The Issue The issue is whether the 100 foot separation of respondents/applicants sewage treatment plant from the surface water management system is adequate.
Findings Of Fact Based upon all of the evidence, the following supplemental findings of fact are determined: Background Respondents/applicant, John D. Remington and Bolton S. Drackett (applicants), are the owners of record of approximately two thirds, or around 2,700 acres, of Keewaydin Island (Key Island), which lies just south of the mainland portion of the City of Naples, Florida. In conjunction with a planned luxury development of forty-two homes on Key Island, applicants have filed an application with respondent, South Florida Water Management District (District), seeking the issuance of a permit authorizing the construction and operation of a surface water management system (system) through which stormwater runoff from the project will be directed and controlled. Petitioner, Florida Audubon Society (FAS), has initiated this proceeding to contest the issuance of a permit. In an earlier and separate proceeding (DOAH Case No. 90-2415), applicants applied for a permit from the Department of Environmental Regulation (DER) to construct a wastewater treatment plant (plant) to serve the planned development. The permit was issued on January 2, 1990, and because all appeals by FAS in Case No. 90-2415 have been concluded, that proceeding is now final. Although the wastewater treatment plant has not yet been constructed, the parties agree that it will be situated more than one hundred feet from the surface water management system. This distance (100 feet) is the minimum amount of space allowed by District rule between the plant and system. Even so, the purpose of the remand proceeding is to determine whether that amount of separation is adequate. Thus, the factual issue here is whether the treated wastewater from the plant and filter fields will enter the surface water management system and cause a violation of applicable water quality standards and other relevant District criteria. In support of their respective positions on this issue, the parties have presented the testimony of a number of experts. In resolving the conflict in their testimony, the undersigned has accepted the more credible and persuasive testimony which is embodied in the findings below. A Brief Description of the Development and System The proposed development and surface water management system were described in detail in the prior recommended order entered in this case. For purposes of this Supplemental Recommended Order, it need only be noted that Key Island now has a lodge, guest quarters and recreation facilities, all presently served by septic tanks. Access to the island is provided by motor launch from an existing shore station. Subaqueous utility crossings from the mainland provide electric power and potable water to the island. The planned development includes the construction of forty-two large luxury homes and an expansion of the lodge facilities to accommodate the needs of the new residents. The homes will be built in phases with approximately ten to be built in the first year. The entire project may take as long as seven or eight years to complete. The proposed surface water management system was designed to handle a seventy-five residential unit development. However, by virtue of a reduction in size imposed by the City of Naples, the project has been reduced to forty-two homes. Even so, the capacity of the system has not been downsized. Therefore, the system as designed will more than accommodate all proposed development on the island. The development area has been divided into seven surface water management basins based upon seven existing natural water sheds on the upland portion of the project. Each basin will have a system of inlets, culverts and swales which will direct runoff to control structures. The dry swales are approximately one foot deep and five to ten feet wide and run parallel on both sides of the cart paths that link the various portions of the project. The cart paths, which will be at an elevation of 5.5 feet above mean sea level (NGVD), will have culverts running underneath to aid in maintaining the natural flow of water and limit impounding of water. The swale bottoms are designed to be one foot below the cart path elevation, or at 4.5 feet NGVD, and will be dry, except during significant rain events, because they are designed so that the bottom of the swale is at least one foot above the average wet season water table. Both the cart paths and swale system utilize a design system that is common to residential developments. Once the water reaches a specified height, it goes over the control structure and is discharged downstream into spreader swales from which the water is dispersed into either interior, low wetland areas or into two artificial lakes (7.3 and 1.0 acres in size) created for wet detention. Basins one, two, three, four and seven are designed to treat water quality by the dry detention method, that is, by the unlined swales that parallel cart paths, while water quality is accomplished in basins five and six by best management practices and wet retention, that is, the two artificial lakes. The Wastewater Treatment Plant The DER permit was issued on January 2, 1990, and carries an expiration date of January 2, 1995. It authorizes applicants to: construct a 0.035 MGD extended aeration process wastewater treatment plant with reclaimed water to dual absorption fields located at the project site as depicted on Wilson, Miller, Barton, Soll & Peek, Inc. design drawings, project number 6270, sheets 1 thru 5 of 5, dated March 20, 1989, revised October 16, 1989 and received October 19, 1989. The design drawings were submitted in support of construction application, engineering report, hydrologeolic characteristics and hydraulic modeling for effluent disposal report and related documents, dated March 20, 1989. The hydraulic capacity of the plant is limited to 0.030 MGD based on the reclaimed water disposal system. The collection system shall not exceed the 0.030 MGD hydraulic capacity as well. The wastewater treatment plant is designed to meet all DER water quality, health and safety standards. For example, the plant must achieve 90% removal of biological oxygen demand (BOD) and 90% removal of total suspended solids from the raw wastewater, or effluent levels below 20 parts per million for BOD and 10 parts per million suspended solids, whichever is more stringent. The plant must also have twenty-four hour detention in the aeration chamber and four hours detention in the clarifer. Further, a chlorine chamber contact time of fifteen minutes is required. In addition, DER has issued the permit with certain specific conditions. Among others, these include standards as to effluent chlorine residuals, the requirement that a professional engineer inspect the construction, operation requirements, sampling schedules, defined perameter levels, and the establishment of a hydraulic plant load (permitted maximum daily flow) at 30,000 gallons per day. By issuing the permit, DER has concluded that up to 30,000 gallons per day of sewage effluent can be treated and disposed of by the plant filter fields without violation of applicable DER water quality, health and safety standards. The wastewater treatment plant will be located on a centralized utility site within basin seven of the system. There are also gravity sand filters and a drainfield effluent disposal system located in basin six, which is the northeastern corner of the project. The plant will provide a high degree of treatment and disinfection for the effluent before it is discharged to the filter field. The filtered (treated) effluent will flow by gravity main to the filter fields located in an adjacent basin. Two filter fields will be used in disposing of the treated wastewater effluent. Constructed as sand mounds at a grade level of two or three feet above the existing island elevation, each filter will have dimensions of twenty feet wide and four hundred feet long. The filter fields will be constructed as a bed of gravel wrapped in filter cloth and placed within a mound of soil. A perforated four-inch pipe will be installed within the gravel bed at 5.5 feet NGVD to distribute the effluent through the filter beds. The effluent will then percolate downward and laterally away from the bed and into the groundwater table. At that point, the effluent will become indistinguishable from the groundwater Because the total daily flow will be pumped alternately into one part of the two sections of the drainfield, this allows one filter field to "rest" for a seven-day period during the use of the other filter field, thereby avoiding saturation. Therefore, the average theoretical maximum input into a filter field over a one year period at the plant's maximum capacity is 15,000 gallons per day. The plant was designed and permitted for maximum daily flows at all times of the year. However, the actual operating conditions will reflect significantly less flows due to the seasonality of the population and occupancy levels. More specifically, the plant was designed and permitted for seventy- five dwelling units and ancillary uses with an estimated maximum design flow of 28,450 gallons per day. The approved planned development will contain only forty-two dwelling units and ancillary uses with a maximum design flow of 21,200 gallons per day. Therefore, the permitted plant will treat the wastewater to a higher level due to the reserve capacity, and the plant will rarely be used at over fifty percent of its available capacity. Revised projected wastewater flows will range from daily loads of 2,325 gallons per day during the months of August and September to a high of 15,137 gallons per day during the month of February. This projected usage is consistent with historical occupancy and usage trends in the Naples area which show that occupancy of homes is at its peak during the dry season (the cooler winter months) and substantially lower during the wet season (the hot summer months). Applicants' projected wastewater flows are found to be reasonable and are hereby accepted. In making this finding, the undersigned has rejected the contention by FAS that the daily wastewater flows will be higher than that projected by the applicants and the plant will operate at maximum capacity for sustained periods of time. The system plans reflect that there will be swales within basin six located between one hundred ten and one hundred twenty feet to the west of the filter fields. These swales run parallel along a cart path and flow to the north discharging into an artificial lake at the north end of the project. The swales in this basin have a bottom elevation of 4.5 feet NGVD and decrease to an elevation of 3.5 feet NGVD at the point of discharge into the artificial lake. Adequacy of Separation Between Plant and System Rule 40E-4.091, Florida Administrative Code, adopts and incorporates by reference a document known as the "Basis for Review for Surface Water Management Permit Applications within the South Florida Water Management District - September 1989" (Basis for Review). Section 3.2.2.8 of the Basis for Review reads as follows: Sewage treatment percolation ponds. Above ground pond dikes shall not be within 200 feet of water bodies or 100 feet of dry detention/ detention areas. Additional calculations by the applicant may be necessary in unusual cases requiring deviations from these dimensions. The purpose of the above section is to provide adequate separation between above-ground percolation ponds and surface water management systems in case the percolation pond dike fails. For example, above grade percolation ponds contain large volumes of sewage treatment plant effluent. If a pond dike should fail, a large portion of effluent would be quickly released into the adjacent ground. The minimum 100-foot separation is designed to provide adequate distance for percolation into the ground prior to infiltrating the surface water management system. However, filter fields contain lesser volumes of effluent than do percolation ponds, and should a filter field fail, the effluent will trickle out the side of the field with a much lower rate of effluent release than from a failed pond dike. In accordance with the District rule, applicants have proposed to locate the surface water management system more than one hundred feet from the wastewater treatment plant and filtration beds. Even though the rule standards have been met, the purpose of this remand proceeding is to determine whether that amount of separation is adequate to prevent adverse impacts to the water quantity and water quality functions of the system from the operation and location of the filter fields. The Computer Models As a part of their application filed with DER in 1989, applicants' witness Missimer prepared and submitted a report known as "Hydrogeologic Characteristics and Hydraulic Modeling for Effluent Disposal at Keewaydin Club". The report was based on a computer model known as "Modflow" and was designed to show the increase in elevation of the water table for a loading rate of 30,000 gallons per day alternating between the two filtration beds. The purpose of the modeling analysis filed with DER was to investigate whether the plant would continue to discharge effluent to the drainfields under the most extreme conditions. The model demonstrated that the effluent discharge would not be impaired even under conditions that are beyond any reasonable or probable operating conditions. After reviewing the model, DER accepted those results and issued a permit. Utilizing in large part the underlying assumptions and parameters of the Missimer model, and without performing any independent field evaluation on the site, FAS witness Chin ran the model to investigate the impact of the operation of the plant on the system. Because the model used by Dr. Chin was not constructed for the design of a surface water management system, but rather was constructed for the purpose of designing an adsorption field, without modification it provided a more than worst case scenario of impacts associated with the operation of a plant. In this case, Dr. Chin utilized the ultra- conservative assumptions used in designing the adsorption field and made no revisions to the model. Thus, it is found that the model as used by Dr. Chin, and any conclusions drawn from the model alone, are not a sufficient or reasonable basis for evaluating the impact of the plant on the system. The model used by Dr. Chin is not representative of the natural occurring conditions on the island or the reasonably expected plant flow rates. Moreover, in developing the worst case scenario, as opposed to reasonable expectations, both the Chin and Missimer models incorporated the simultaneous occurrence of certain conservative assumptions including an impermeable flow boundary, a year round wet season water table elevation, a conservative rate of transmissivity, and a constant rate of evapotranspiration. The use of these assumptions caused the model output to grossly overstate the effects of the plant on the system in the following manner. First, by assuming a flow barrier on the island, the model had the effect of overestimating the height of the groundwater mound from operation of the plant than would occur if no boundary were used. Second, the assumption of a year-round wet season groundwater level is unrealistic since groundwater levels fluctuate seasonally, receding to near zero NGVD on the island during the dry season. Thus, the model overestimated the height of the groundwater level. Further, by using only the upper ten feet of the water table aquifer in calculating the rate of transmissivity, the model incorporated a much lower rate than would be attained had the entire thickness (74 feet) of the aquifer been used. This also resulted in an over-estimation in the height of the mound from the operation of the plant. Finally, by assuming a constant rate of evapotranspiration, the model "grossly exaggerated" the impact to the groundwater level from operation of the plant. In reality, as the water table increases, the loss of water from evapotranspiration increases significantly and constitutes a major output of a water budget. Besides the foregoing assumptions, the Chin model also assumed a continuous loading rate of 30,000 gallons per day for a period of up to one year. While the District should properly consider the permitted flow rate of the plant in evaluating a worst case of potential impact, there was no evidence substantiating any likelihood of the plant actually producing 30,000 gallons per day for 365 consecutive days in conjunction with all other conservative assumptions discussed above. The more reasonable and accepted method of analyzing the impact of plant flows is to examine the peak month's average day flow over a six-month period. As noted earlier, for the proposed forty-two units, the peak day flow is estimated to be approximately 21,200 gallons per day. Therefore, it is highly probable that actual flow rates will be much lower than the maximum plant capacity of 30,000 gallons per day. By failing to use the more reasonable and realistic reduced flow rates, the Chin model overestimated the elevation of the groundwater level from the operation of the plant. In contrast, the Missimer analysis demonstrates that it is extremely unlikely that the plant output will ever elevate groundwater to the extent that it would reach the system swales by either surface water or groundwater flow. The foregoing modeling assessments, including the criticisms of the Chin model, were concurred in by the District expert. Water Quantity Impacts There is no credible evidence to support a finding that the operation of the plant will adversely impact the ability of the system to provide adequate flood protection and drainage. Indeed, the more credible evidence shows that an alteration of existing drainage patterns will not occur by virtue of the operation of the plant, and the post-development discharge rates will not exceed the pre-development discharge rates. Therefore, the undersigned's previous finding that applicants have provided reasonable assurance that the the system provides adequate protection and drainage is not altered after considering the operation and location of the plant. There is insufficient credible evidence to support a finding that the plant's operation will adversely impact the system functions in such a way as to cause adverse water quantity impacts on receiving waters and adjacent lands. Indeed, the post-development discharge rate approximates the pre-development discharge rate on receiving waters, the ultimate receiving water body (the Gulf of Mexico) has an infinite capacity to receive water, and there are no adjacent lands subject to flooding from discharge of the system regardless of whether there is any impact of the plant on the system. There is no credible evidence to support a finding that the plant will cause the system to have an adverse impact on surface and groundwater levels and flows. Rather, the more persuasive evidence shows that the plant's operation will not result in groundwater elevation in the area of the system that would cause the impoundment of water or prevent the percolation of water into the soil. In addition, the overflow levels for control structures will operate as designed to insure against over-drainage or flooding. Finally, the operation of the filter fields will not cause adverse impacts on surface and groundwater levels and flows. Water Quality Impacts The operation of the plant will not impair the water quality functions of the system. This is because the swales will continue to detain the first flush of run-off allowing the majority of the suspended solids and other pollutants to settle out regardless of the operation of the plant. Further, in the unlikely event the treated wastewater effluent reached the system, it would be indistinguishable from the stormwater or rainfall due to the high level of treatment from the plant, the filter fields and dilution from groundwater and rainfall. The operation of the plant will not cause adverse water quality impacts on the receiving waters. In making this finding, the undersigned notes initially that the plant is permitted by DER, and therefore it is assumed to comply with all DER water quality standards. Second, there is no evidence that the system will impact the operation of the plant. In the event the groundwater mixed with treated effluent resurfaces, there would be no adverse impact to the surface water quality. This is because the treated effluent from the plant exceeds state water quality standards. Once the treated effluent becomes a part of the groundwater, it is unlikely that it will resurface again in the areas of the swales, which are more than one hundred ten feet away. Indeed, in order for the groundwater with effluent to travel that distance, it would have been in the groundwater system for at least one hundred days. This period of time is more than sufficient for the denitrification and adsorption processes to remove all nutrients. Even if the worst case scenario became a reality and the groundwater reached the swale bottoms, it would only result in a wetting of the ground and would not be of sufficient quantity to create a flow of water in the swale to travel off-site impacting a receiving water. In any event, at that point, any groundwater resurfacing that distance away would no longer be effluent. Finally, during abnormal conditions, such as a hurricane or large storm event, the groundwater may rise to the surface and mix with the surface water and enter the system. However, any effluent already significantly diluted under normal circumstances would be indistinguishable from the stormwater or rainfall. Adverse Environmental Impacts There is no credible evidence that the operation of the plant filter fields will adversely impact the system in such a manner as to cause an adverse environmental impact. In so finding, the undersigned rejects the contention that the system will act as a conduit for treated effluent to travel off-site to the ponds, marsh, mangrove areas or receiving waters. The evidence shows that the design of the filter fields and high permeability of the island soils will prevent the surface flow of effluent to the system swales. The elevation of the swales above the groundwater table level will prevent the introduction of effluent into the swale system. In the unlikely event the groundwater reaches the bottom elevation of the swale, there would be no significant environmental impact because the quality of effluent would be indistinguishable from the groundwater due to the high level of treatment and dilution, and such water would still be further treated by the system before discharge to receiving bodies. The location of the plant and system will not have an adverse impact on the gopher tortoise population on the island. Rather, the system should enhance the gopher tortoise population by providing mananged land with vegetation suitable for gopher consumption. Further, the general development on the island will reduce the number of raccoons which prey on gopher eggs and young gophers. Miscellaneous During the remand hearing, FAS presented evidence concerning the impact of tides and mean sea level rise and saline lakes on the island. This evidence was essentially the same as that presented in the prior hearing and was rejected in favor of the more credible evidence presented by the applicants on this issue. Nothing was presented during the remand hearing which would alter these prior findings. During the hearing, and in response to a question by District counsel, witness Missimer agreed it would not be unreasonable to install a few monitoring wells to insure that the system is operating properly. Because this requirement is not unreasonable, will serve a valuable purpose, and has been utilized by the District as a special condition on numerous prior occasions, it should be incorporated into the permit conditions. Even though the evidence clearly shows that seasonal tidal fluctuations would not have an adverse impact on the functioning of the system, if such a tidal incursion were to occur, the placement of a check valve device on the water control structures would prevent sea water from flowing back into the system. Such a device would be a minor addition to the system, would not otherwise affect its design, and if deemed necessary by the District, should be incorporated into the permit conditions. Prior to hearing, the District retained the services of an outside consultant to assist it in preparation for trial. The consultant did not testify at final hearing and prepared no reports. He did make several computer runs, none of which are a part of this record. Among other things, District witness Rogers relied upon the computer runs in formulating his opinion on the issue presented on remand.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting the requested permit in accordance with the agency's proposed agency action dated March 28, 1990. DONE and ENTERED this 22 day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22 day of March, 1991.
The Issue The issue is whether Vista of Fort Walton Beach, LLC (Vista), should be issued Surface Water Management Permit No. 04-2012-0013G authorizing the construction of an earthen embankment dam and impoundment to impound stormwater runoff from a proposed commercial development in the City of DeFuniak Springs (City), Walton County, Florida.
Findings Of Fact The District has regulatory jurisdiction over the construction of certain types of impoundments within its boundaries. If an impoundment is at least ten feet high but less than 25 feet in height and has an impounding capacity of at least 50 acre-feet, a general permit is required. See Fla. Admin. Code R. 40A-4.041(1). Vista, a limited liability corporation, owns an odd- shaped parcel in the City on which it intends to build a small commercial development consisting of a 17,000-square foot building, a parking lot, and related amenities. The vacant parcel abuts the north side of U.S. Highway 90 just east of 18th Street and is approximately 1.66 acres in size. The property is partially wooded and has a small wetland area on its northeastern corner. In conjunction with the proposed commercial development, Vista intends to construct an impoundment to control stormwater runoff from the project. Because the impoundment will be ten feet high and have an impounding capacity of at least 50 acre-feet, Vista is required to obtain a general permit. See Fla. Admin. Code R. 40A-4.041(1). Vista filed a permit application with the District on June 8, 2012. On August 8, 2012, the District gave notice that it intended to issue a surface water management permit to Vista. The permit allows the construction of a stormwater retention basin. A mitigation plan for impacts to 0.23 acres of wetlands was also approved but is not at issue in this proceeding. As described in the District staff report, the project will encompass one earthen embankment dam and impoundment to impound the storm runoff. It will operate as a dry stormwater retention basin designed to impound water only during rainfall events. The facility will utilize a pipe and riser spillway system, and the basin outfall will be protected by a rip-rap lined plunge pool. Due to space restrictions, an engineered retaining wall will be incorporated into the embankment's north side slope. The stormwater will discharge through controlled overflow structures into a nearby wetland area that lies northeast of Vista's property and will then be integrated into an existing channel that eventually forms the headwaters of Sandy Creek to the north. Petitioner has resided on her property since around 1932. Her odd-shaped parcel, described as being between five and seven acres in size, lies immediately to the north of Vista's property. A small wetland is located on the southeastern corner of her property. The two parcels share a common boundary line, appearing to be no more than a hundred feet or so. Because the boundary line is lower than the highest part of each owner's property, a "trench" has formed along the line. Wabash Avenue, a platted but un-built roadway that begins on U.S. Highway 90, runs to the northwest through the wetland area and along the eastern boundaries of both properties. As alleged in the Second Amended Petition, Petitioner is concerned that the project will cause flooding on her property. In a broader sense, she appears to be opposed to any commercial development on Vista's property. The back side of the Vista parcel slopes downhill to a recessed area that is adjacent to both properties. Although some fill has already been placed on the property in preparation for the development, the applicant intends to add "a lot" more fill to the entire parcel to create a gradual slope down to the edge of Wabash Avenue. A basin or pond around 0.20 acres in size will be formed within the fill area and a retaining wall consisting of multiple segments will be constructed around the basin. The wall will be separated from Petitioner's property by a 20-foot buffer, while at its closest point the basin will be "35 feet or so" from her property line. The plans submitted by the applicant demonstrate that the system will be built in accordance with all District standards and should operate in a safe manner. Before construction can begin, the District must approve the retaining wall design specifications. During rain events, the first inch of water will be retained on site for treatment. Additional water will be stored in the basin and then slowly allowed to discharge from the basin into the wetlands. The point of discharge from the basin is at a location a minimum of 20 feet south and east of Petitioner's property line. To ensure that the retention system will not discharge runoff at a higher rate than was discharged before development, Vista performed hydrologic calculations demonstrating pre- and post-development runoff. According to accepted models developed by the United States Department of Agriculture and its predecessor, the Soil Conservation Service, the current peak runoff from the Vista property is 2.46 cubic feet per second (CFS) during a two-year, 24-hour storm event. After development, the volume of water will be reduced to 0.74 CFS. During a 25-year, 24-hour storm event, the volume of runoff post-development is anticipated to drop from 12.59 CFS to 6.51 CFS. Finally, during a 100-year, 24-hour storm event, post- development runoff will be slightly reduced from 19.64 CFS to 18.99 CFS. Therefore, as sited, sized, and designed, the project will reduce runoff during all anticipated storm events. The foregoing calculations were not credibly contradicted and satisfy the requirement that an applicant give reasonable assurance that the project will not cause an increased flow such that it will endanger downstream property in times of flood with respect to state or frequency. See Fla. Admin. Code R. 40A-4.301(2)(f). They also confirm that water in the impoundment will not be raised to a level that could be harmful to the property of others. See Fla. Admin. Code R. 40A- 4.301(2)(c). Thus, the potential for flooding on Petitioner's property will be reduced if the project is constructed as permitted. The Department of Transportation (DOT) is currently repairing the drainage system on U.S. Highway 90 in front of the Vista property. Stormwater from that project drains into the wetlands through an easement deeded to the City at the rear of the Vista property. Petitioner pointed out that after the DOT project began, and fill was added to the Vista property, she has experienced an increase in water on her property. Whether the DOT project is responsible in any way for this hydrologic change is not known. However, accepted testimony by two professional engineers supports a finding that Vista is not responsible for any hydrologic changes on Petitioner's property. Vista was not required to take into account any runoff from the DOT project in making its hydrologic calculations because the amount of runoff from its own property will actually be reduced by the retention system. At hearing, Petitioner contended that a fence she built on the common boundary line with Vista sometime after 1990 was illegally removed by Vista in order to construct the basin. According to Mr. George, who first surveyed the property line in 1990 and then surveyed it a second time a few years ago, the fence was built a few feet beyond Petitioner's property line and lies within the buffer zone between the basin and her property. Petitioner argues that even if this is true, the doctrine of adverse possession applies and she is now the owner of the property on which the fence was built. This type of dispute, however, can only be resolved in circuit court, and not in an administrative forum. See § 26.012(2)(g), Fla. Stat. The District has examined the property records and is satisfied that Vista has ownership of the property on which the impoundment will be built. Notably, the basin will not be located within the 20-foot buffer where the fence once stood and which is dedicated to the City as an easement. Finally, through cross-examination at hearing, Petitioner suggested that any project designed by humans carries with it the remote possibility that it will fail and create a catastrophic situation on her property. In the unlikely event that the design and operation of the retention basin threaten the safety of adjoining property owners, section 373.429 and rule 40A-1.205 enable the District to revoke, suspend, or modify a permit to protect the safety of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order approving the issuance of Surface Water Management System Permit No. 04-2012-0013G to Vista. DONE AND ENTERED this 11th day of March, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2013. COPIES FURNISHED: Jonathon Steverson, Executive Director Northwest Florida Water Management District 152 Water Management Drive Havana, Florida 32333-4712 Helen J. Crenshaw 61 North 18th Street DeFuniak Springs, Florida 32433-9547 Kevin X. Crowley, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 James Busby Vista of Fort Walton Beach, LLC Post Office Box 760 Fort Walton Beach, Florida 32549-0760
Findings Of Fact The Parties and the Property. The Respondent, Saddlebrook Resorts, Inc. (Saddlebrook), is a corporation organized and existing under the laws of Florida, and is wholly owned by the Dempsey family. Saddlebrook is located on approximately 480 acres in central Pasco County, east of I-75 and south of State Road 54. The Petitioner, Wiregrass Ranch, Inc. (Wiregrass) is a corporation organized and existing under the laws of Florida, and is wholly owned by the Porter family ("the Porters"). Wiregrass owns approximately 5,000 acres of property which extends from Saddlebrook west approximately one mile to State Road 581 and south for approximately four miles. The Respondent, the Southwest Florida Water Management District (SWFWMD), is a political subdivision created pursuant to Chapter 61-691, Laws of Florida, which exists and operates under the Water Resources Act, Fla. Stat., Ch. 373. SWFWMD is charged with regulating, among other things, surface water management systems in Pasco County. Saddlebrook discharges surface water onto Wiregrass at two locations on the southern and western boundaries of Saddlebrook, known as the south outfall and the west outfall. Saddlebrook's property is part of a drainage basin totalling approximately 1400 acres that contributes runoff to Wiregrass' property. Until approximately 1973, the Saddlebrook property was undeveloped and owned by the Porters. In approximately 1973, the Porters sold the Saddlebrook property to the Refram family, which began developing the property. In approximately 1979, Saddlebrook acquired the property from the Reframs. The Saddlebrook property includes residential development, a conference center, and golf course and tennis facilities. Wiregrass' property, which is largely undeveloped and used for ranching, consists of pine-palmetto flatwoods, wetland strands, isolated wetlands, and improved pastures. The Porters' Civil Action Against Saddlebrook. The Porters instituted a civil action against Saddlebrook, Porter, et al. v. Saddlebrook Resorts, Inc., Case No. CA 83-1860, in the Circuit Court of the Sixth Judicial District, Pasco County, complaining that post-development discharges from Saddlebrook exceed pre-development discharges. In the civil litigation, the Porters contended that Saddlebrook's peak flow discharges should be returned to pre-development, or 1973, levels. A primary purpose of Saddlebrook's proposed redesign is to return peak flow discharges to those levels that existed in 1973, in response to the Porters' complaints in the civil action. Saddlebrook's current surface water management system is deemed by SWFWMD to be in compliance with Rule 40D-4, and SWFWMD's regulations do not require redesign or modification of the current system. Prior to Saddlebrook's submission of its application, SWFWMD advised Saddlebrook that, because Rule 40D-4 became effective on October 1, 1984, SWFWMD considered that date to be the "pre-development" condition for purposes of evaluating Saddlebrook's discharges. Saddlebrook requested that SWFWMD evaluate its application using 1973 as the pre-development condition. SWFWMD advised Saddlebrook that it would apply 1973 as the pre-development condition if the Porters consented. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for purposes of evaluating those discharges relevant to Saddlebrook's MSSW permit application. Saddlebrook's MSSW Permit Application. On or about February 8, 1990, Saddlebrook submitted its application for MSSW permit no. 497318.00, seeking SWFWMD's conceptual approval of the redesign of Saddlebrook's surface water management system. The proposed redesign calls for modification of most of the existing drainage control structures at Saddlebrook and installation of new control structures at several locations, including the south and west outfalls. After submission of its initial application, Saddlebrook made various subsequent submittals in response to SWFWMD requests for additional information. Saddlebrook's response to SWFWMD's requests culminated in final submittals on March 7, 1991 and April 5, 1991. In its various submittals, Saddlebrook provided, among other things, detailed descriptions of all proposed modifications to its drainage system, engineering reports, and computerized flood-routing analyses of runoff from Saddlebrook under pre-development (1973) and post-modification conditions. Saddlebrook provided all information requested, and SWFWMD thereafter deemed its application complete. SWFWMD's Review of Saddlebrook's Application. In the fifteen months following Saddlwbrook's initial February, 1990, submittal, SWFWMD conducted an intensive review of the application. During the course of this review, SWFWMD staff performed numerous field inspections, made an independent determination of all input data to the computer analyses of Saddlebrook's discharges, and made six separate formal requests for additional information. SWFWMD's requests for additional information required, among other things, that Saddlebrook modify various input data and rerun its computer analyses of discharges under the pre-development and post-modification conditions. In addition, SWFWMD required Saddlebrook to perform computer modelling analyses of discharges from Wiregrass' property onto the property of downstream landowners. Because, unlike the Porters, these downstream owners had not provided consent to use 1973 as the relevant pre-development date, SWFWMD required Saddlebrook to model this downstream discharge using a "pre- development" date of 1984. SWFWMD performed its standard review procedures in connection with Saddlebrooks' application. In addition, SWFWMD also performed its own computer-modelling analyses of Saddlebrook's discharges. This modelling was based on input data independently collected by SWFWMD staff in the field and from other sources. SWFWMD staff also met with the Porters' hydrologist, Dr. Gerald Seaburn, and thoroughly reviewed concerns he expressed in connection with Saddlebrook's application. In addressing these concerns, SWFWMD performed additional work, including conferring with an independent soils expert, performing additional field inspections, and modifying the SWFWMD computer modelling analyses based on alternative input parameters suggested by Dr. Seaburn. In reviewing Saddlebrook's application, SWFWMD applied the design and performance criteria set forth in its "Basis of Review for Surface Water Management Permit Applications" ("Basis of Review"), which is incorporated by reference in F.A.C. Rule Chapter 40D-4. Based upon its review of Saddlebrook's application, SWFWMD concluded that Saddlebrook had demonstrated compliance with the design and performance criteria set forth in SWFWMD's Basis of Review and the conditions for permit issuance under F.A.C. Rule 40D-4.301. By a Staff Report dated April 29, 1991, and Notice of Proposed Agency Action dated May 3, 1991, SWFWMD recommended approval of Saddlebrook's application. Compliance With SWFWMD Permitting Criteria. The design and performance criteria for MSSW permitting set forth in SWFWMD's Basis of Review fall into four categories: (1) water quantity, in terms of peak flow discharges for projects, like Saddlebrook's, located in open drainage basins; (2) flood protection; (3) water quality; and (4) wetlands impacts. Water Quantity. Under the Basis of Review's water quantity standards, SWFWMD requires that projected peak flow discharges during a 25-year, 24-hour storm event under the proposed system be reasonably similar to peak flow discharges under the pre- development condition. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quantity standards. This evidence demonstrated that peak flow discharges during a 25-year, 24-hour storm event under the proposed system will be less than, but reasonably similar to, pre-development (1973) peak flow discharges. The evidence presented at the formal hearing also demonstrated that, under the proposed system, peak flow discharges during a 25-year, 24-hour storm event from Wiregrass' property onto downstream landowners will be less than, but reasonably similar to, 1984 peak flow discharges. The evidence presented by Saddlebrook further demonstrated that storage will be increased under the proposed redesign versus the pre- development, 1973 condition. On Saddlebrook's property, there will be approximately 35 percent more storage than existed in 1973, and the total storage for Saddlebrook and the contributing drainage basin upstream of Saddlebrook will be increased by approximately 15 percent over that existing in 1973. Flood Protection. Under the flood-protection standards of the Basis of Review, SWFWMD requires that the applicant demonstrate that under the proposed condition the lower floor of all residential and other buildings on-site, and in areas affected by the site, will be above the 100-year flood elevation. SWFWMD also requires that there be no net encroachment into the flood plain, up to that encompassed by the 100-year event, which will adversely affect conveyance, storage, water quality or adjacent lands. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's flood-protection standards. The testimony of Mr. Fuxan and Wiregrass' related exhibit, Ranch Ex. 35, purporting to show that in a 25-year, 24-hour storm Saddlebrook's proposed redesign will "flood the [Saddlebrook perimeter] roads and just sheet flow onto the Porter property" is not accurate. As part of its redesign, Saddlebrook will construct an additional berm along the southwestern and southern perimeters of its property. This berm will detain water on Saddlebrook's property during a 25-year, 24-hour storm event and prevent it from "sheet-flowing" onto the Wiregrass property. Water Quality. Under the water-quality standards of the Basis of Review, SWFWMD requires, for systems like Saddlebrook's involving wet detention and isolated wetlands, that the applicant provide sufficient storage to treat one inch of runoff from the basins contributing runoff to the site. This volume must be discharged in no less than 120 hours, with no more than one-half of the volume being discharged within the first 60 hours. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quality standards. Wetland Impacts. Under the wetland-impacts standards of the Basis of Review, SWFWMD requires that the applicant provide reasonable assurance that the proposed system will not adversely impact on-site and downstream wetlands. The evidence presented at the formal hearing demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to on-site wetlands. Saddlebrook's proposed redesign will impact only approximately .167 acres of on-site wetlands, for which Saddlebrook will fully mitigate by creating .174 acres of forested wetlands and buffer area. The evidence presented at the formal hearing also demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to off-site wetlands. Reasonable assurance that off- site wetlands will not be adversely impacted was demonstrated by, among other things, evidence establishing that: (1) discharge points will not change under the proposed condition; (2) discharge elevations will be reasonably similar under the proposed condition; (3) there will be no significant variation in the water fluctuations in the wetlands adjacent to the south and west outfalls as a result of the proposed condition; (4) the drainage basin areas will be reasonably similar under the proposed condition; and (5) the proposed redesign will satisfy SWFWMD's water quality requirements. Wiregrass' Petition. In its Petition for Formal Administrative Hearing, Wiregrass focused primarily on water quality issues and stormwater runoff rates (or peak flow discharges), alleging the following "ultimate facts" which it claimed "entitle [it] to relief": The application, as submitted, contains insufficient storage to meet water quality criteria. The application, as submitted, will result in storage volumes on the project site which will not be recovered within 72 hours [sic] as required by the DISTRICT criteria. The application, as submitted, contains calculations based on erroneous hydraulic gradients. The application, as submitted, will result in storage volumes insufficient to meet water quality criteria as required by DISTRICT criteria. Post development stormwater runoff rates are underestimated in the application, resulting in system design with insufficient retention storage capacity to meet the DISTRICT's water quantity criteria. The failure to store stormwater or irrigation runoff impacts the substantial interest of the RANCH in that it deprives it of groundwater resources necessary for the successful operation of the ranch. Further, the lack of storage of stormwater and irrigation water is a prohibited waste of the water resources. At the formal hearing, Wiregrass presented no evidence to support any of the foregoing allegations of its Petition. Objections Raised by Wiregrass At The Hearing. At the final hearing, Wiregrass' opposition to Saddlebrook's permit application focused on three different grounds: For purposes of evaluating peak flow discharges, SWFWMD does not have jurisdiction to use a pre-development date prior to October 1, 1984. Under F.A.C. Rule 40D-4.301(1)(i), which provides that an applicant must give reasonable assurance that the surface water management systems "is consistent with the requirements of other public agencies," SWFWMD must apply not only its own permitting criteria but also those of other governmental entities, including county planning ordinan Under F.A.C. Rule 40D-4.301(1)(b), which provides that a permit application must give reasonable assurances that the surface water management system "will not cause adverse water . . . quantity impacts", SWFWMD must consider whether the annual volume of runoff will increase as a result of the proposed surface water management system. None of the foregoing objections was raised in Wiregrass' Petition as a basis for denying Saddlebrook's application. (Annual volume was alluded to in the Petition only as being pertinent to the question of Wiregrass' "substantial interest" for purposes of standing.) In any event, for the reasons set forth below, each of these objections was refuted by the evidence presented at the formal hearing. The 1973 Pre-Development Date. In their civil action against Saddlebrook, the Porters took the position that Saddlebrook's surface water management system should be redesigned so that discharges approximate those levels existing in 1973, before development of the Saddlebrook property. Dr. Gerald Seaburn, a hydrologist retained by the Porters, testified in the civil action that 1973 is the appropriate pre-development date for purposes of evaluating Saddlebrook's peak flow discharges. David Fuxan, a civil engineer retained by the Porters, took the position in the civil action that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels. At the formal hearing in this proceeding, Mr. Fuxan testified that it is still his position that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for evaluating those discharges relevant to Saddlebrook's MSSW permit application. Use of a 1984 "pre-development" date would prevent Saddlebrook from making the modifications the Porters claim in the civil litigation that it must make. Saddlebrook's existing system, about which the Porters complain in the civil litigation, is in all material respects the same system that was in place on October 1, 1984. Use of this existing system as the benchmark of comparison for attenuation of peak flows, therefore, would mean that substantial modifications to the existing system could not be made without substantially increasing retention storage on Saddlebrook. Substantially increasing retention storage on Saddlebrook is not possible due to the high water table and proximity of the lower aquifer. See Finding of Fact 70, below. In addition, a primary claim of the Porters in the civil action is that duration of flow under Saddlebrook's existing system exceeds 1973 levels and has resulted in expanded wetlands on the Porter property. But duration of flow and peak flow discharges are inversely related: duration of flow can be decreased only if peak flow discharges are increased. Accordingly, the only way that Saddlebrook can reduce the duration of flow onto Wiregrass to 1973 levels, as the Porters have demanded, other than increasing retention storage on Saddlebrook, is to return peak flow discharges to 1973 levels. Other Governmental Agencies' Requirements. F.A.C. Rule 40D-4.301(1)(i) provides that a permit applicant must give reasonable assurance that the surface water management system "is consistent with the requirements of other public agencies." SWFWMD has consistently interpreted this provision to be "advisory", i.e., to apprise applicants that they must also comply with other applicable laws and that issuance of an MSSW permit by the District does not relieve them of the responsibility to obtain all necessary local and other permits. SWFWMD's long-standing and consistently-applied interpretation and practice is not to require applicants to prove compliance with the regulations of other govermental agencies in order to obtain an MSSW permit. There are two primary reasons for this interpretation and practice. First, the Southwest Florida Water Management District includes 16 counties and 96 municipalities. In addition, other state and various federal agencies have jurisdiction within its territory. It is impracticable for SWFWMD to become familiar with, and to apply, the permitting and other regulations of more than 100 other agencies. Second, SWFWMD has concluded that, under Part 4 of Secton 373 of the Flordia Statutes, it does not have authority to deny a permit application based on its interpretation of another governmental agency's regulations. In any event, the evidence demonstrates that Saddlebrook has provided reasonable assurance that the proposed redesign will be "consistent with the requirements of other public agencies" as provided in F.A.C. Rule 40D- 4.301(1)(i). Limiting Condition No. 3 of the proposed permit requires that Saddlebrook must comply with Pasco County and other local requirements: The Permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition the permittee shall obtain all necessary Federal, State, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit. In addition, Standard Condition No.3 ensures that SWFWMD approval will not supersede any separate permitting or other requirements imposed by Pasco County: The issuance of this permit does not . . . authorize any . . . infringement of federal, state or local laws or regulations. (Emphasis added.) Finally, the Pasco County ordinance upon which Wiregrass relies imposes requirements that are in substance identical to SWFWMD's with respect to MSSW permit applications. Saddlebrook's compliance with SWFWMD's regulations likewise would satisfy the substance of the requirements of the county ordinance. Annual Volume of Runoff. F.A.C. Rule 40D-4 (incorporating the Basis of Review) does not address, and SWFWMD does not regulate, the annual volume of runoff in open drainage basins. If annual volume of runoff is relevant under Rule 40D-4.301, as Wiregrass contends, that rule requires only that the applicant provide reasonable assurance that "the surface water management system" will not cause adverse quantity impacts. Saddlebrook's existing surface water management system has not caused a significant increase in the annual volume of runoff onto Wiregrass' property. The increase in the annual volume of runoff from Saddlebrook that has occurred over the pre-development 1973 condition has resulted from the urbanization of Saddlebrook's property. The increase in the annual volume of runoff from Saddlebrook over that existing prior to development (1973) is approximately 3.4 inches. This increase is only a small fraction of the natural year-to-year variation in runoff resulting from differences in rainfall alone. Rainfall can vary up to 30 inches on an annual basis, from 40 to 70 inches per year. The resulting year-to-year variations in runoff can total as much as 20 inches. The approximately 3.4 inches increase in the annual volume of runoff from Saddlebrook due to urbanization has caused no adverse impact to Wiregrass. The natural drainage system on the Wiregrass property has in the past and throughout its history received and handled increases in the annual volume of runoff of up to 20 inches due to rainfall differences. Such increases simply flow through Wiregrass' property. Of the approximately 3.4 inch increase in annual runoff due to urbanization, only approximately one-third of an inch is due to the filling in of bayheads by Saddlebrook's prior owner. This increase is insignificant and has not caused a substantial adverse impact to Wiregrass. Any reduction of storage resulting from the filling of bayheads will be more than compensated for under the proposed redesign. Storage on Saddlebrook's property will be increased by approximately 35 percent under the proposed condition over that existing in 1973, before the bayheads were filled. In open drainage basins, like Saddlebrook's, downstream flooding is a function of the rate of peak flow of discharge, not the annual volume of runoff. This is one of the reasons why, in the case of open drainage basins, SWFWMD regulates peak flow discharges and not the annual volume of runoff. Because Saddlebrook's proposed redesign will attenuate peak flow discharges to those levels that existed in the pre-devlopment 1973 condition, Saddlebrook has provided reasonable assurance that there will not be increased flooding on Wiregrass' property in the future. The evidence does not establish that Wiregrass has suffered, or will suffer, any adverse impact due to an increase in the annual volume of runoff from Saddlebrook as a result of the design, or redesign, of the system, or as a result of urbanization, or otherwise. It is not possible to design a surface water management system at Saddlebrook that would reduce the annual volume of runoff. Such a system, which involves the percolation of surface water from retention ponds into a deeper, aquifer system, requires a deep water table. At Saddlebrook, the water table is near the ground surface. As a result, it is not possible to store a significant quantity of water in retention ponds between storm events. In addition, the water levels in the deeper and the shallower aquifer systems at Saddlebrook are approximately the same and, therefore, there is insufficient hydraulic pressure to push the water through the confining layer between the two systems and into the deeper aquifer system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order granting Saddlebrook's application for surface water management permit no. 497318.00, subject to the terms and conditions in the SWFWMD Staff Report. RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3658 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. Accepted and incorporated to the extent not subordinate or unnecessary. 7.-9. Rejected as not proven and contrary to the greater weight of the evidence. First sentence, accepted. Second sentence, rejected as not proven and contrary to the greater weight of the evidence. Accepted but not necessary. 12.-13. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but not necessary. The extent of the wetland expansion is rejected as not proven and contrary to the greater weight of the evidence. The rest is accepted. However, the increased volume is due in large part to urbanization, not to the surface water management system. It also is due in part to alterations to the property done by the Porters. Accepted but subordinate and unnecessary. Accepted. However, this would occur only during a 25-year, 24-hour storm event, and there was no evidence that one has occurred or, if it has, whether Mr. Porter was there to observe it. 18.-20. Accepted but subordinate and unnecessary. Characterization "much of" is rejected as not proven and contrary to the greater weight of the evidence. Otherwise, accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. Rejected as not proven and contrary to the greater weight of the evidence. Rejected as not proven and contrary to the greater weight of the evidence that lichen lines, by themselves, are ordinarily are sufficient to set jurisdictional lines. 26.-29. Rejected as not proven and contrary to the greater weight of the evidence. Even if it were proven that the wetlands had expanded, it was not proven, and is contrary to the greater weight of the evidence, that Saddlebrook (and, especially, Saddlebrook's surface water management system) caused the expansion. First sentence, accepted but cumulative. The rest is rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. In any event, both factors are undeniably significant. 32.-34. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. 39.-41. Rejected as not proven and contrary to the greater weight of the evidence that SWFWMD does not apply it. The evidence was that SWFWMD interprets it differently than Wiregrass proposes and applies its own interpretation. Under the SWFWMD interpretation, the permit conditions requiring compliance with other legal requirements constitute the necessary "reasonable assurance." In addition, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and the Pasco County ordinance has been considered as part of this proceeding. Rejected as not proven and contrary to the greater weight of the evidence. Again, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and annual volume has been considered as part of this proceeding. That consideration has affirmed SWFWMD's position that, at least in this case, the proposed stormwater management system does not cause an increase in annual volume that would result in denial of the application. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. First sentence, accepted (although the characterization "far exceed" is imprecise) and incorporated. Second sentence, rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary that no "stipulation" was entered into. But the evidence is clear that Wiregrass, Saddlebrook and SWFWMD all agreed to the use of 1973 as the point of comparison for peak flow discharges. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Respondents' Proposed Findings of Fact. The proposed findings of fact contained in the Proposed Recommended Order of Respondents Saddlebrook Resorts, Inc., and Southwest Florida Water Management District are accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Douglas P. Manson, Esquire Foley & Lardner 101 East Kennedy Boulevard Suite 3650 Tampa, Florida 33602 Stephen R. Patton, Esquire Jeffrey A. Hall, Esquire Kirkland & Ellis East Randolph Drive Chicago, Illinois 60601 Enola T. Brown, Esquire Lawson, McWhirter, Grandoff & Reeves East Kennedy Boulevard Suite 800 Post Office Box 3350 Tampa, Florida 33601-3350 Mark F. Lapp, Esquire Edward Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether proposed Water Use Permits Nos. 20012236.000 (the Potable Water Permit) and 20012239.000 (the Irrigation Permit) and proposed Environmental Resource Permit No. 43020198.001 (the ERP) should be issued by the Respondent, Southwest Florida Water Management District (the District).
Findings Of Fact The Parties The individual Petitioners, Farnsworth, Roop, and Varnum are all Florida citizens and residents of Sumter County. None of the individual Petitioners offered any evidence relating to direct impacts that the ERP would have on their property. With respect to the Potable Water and Irrigation Permits, anecdotal testimony was presented by Petitioners and Wing and Weir relating to well failures and sinkholes in the area. Two Petitioners, Roop and Varnum, live in close proximity to the property encompassed by the three permits. Petitioner Farnsworth’s property is approximately three and a half miles from the project boundary. Wing and Weir live approximately four and a half to five and 18 miles from the project site, respectively. SCAID is a Florida not-for-profit corporation that has approximately 130 members. Farnsworth, the president of SCAID, identified only Roop and Varnum as members who will be directly affected by the activities to be authorized by the permits. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries. The Utility and the Authority are limited liability companies, of which the Villages Inc. is the managing partner. The Villages Inc. is a Florida corporation. The Utility, which will serve as a provider of potable water, is regulated by the Public Service Commission, while the Authority which will provide irrigation water, is not. The Villages Inc., Development The Villages Inc. is a phased, mixed use, retirement community, which is located at the intersecting borders of Lake, Marion, and Sumter Counties. Development has been on going since at least 1983, with a current planning horizon of the year 2019. Currently, there are 15,362 constructed dwelling units in the built-out portion of the Villages Inc. that are located in Lake County and the extreme northeast corner of Sumter County. The portion located in Marion County is 60 percent complete, with 750 homes completed and another 600 under construction. Approximately another 22,000 residences are planned for development in Sumter County by the year 2012, with an additional 10,200 by the year 2019. However, the Potable Water and Irrigation Permits are only for a six-year duration, and the ERP has a duration of only six years. None of the permits authorize development activities beyond that time frame. Generally speaking, the three permits at issue include an area owned by the Villages Inc. that lies in northeast Sumter County South of County Road 466 and North of County Road 466A. However, it is not projected that this entire area will be built-out during the terms of three proposed permits. Area Hydrology and Topography In the area of the Villages Inc., there is a layer of approximately five to ten feet of sand at the land surface, which is underlain by ten to 70 feet of a clayey sand. Both of these constitute the surficial aquifer and are extremely leaky, allowing water to percolate easily through to a lower layer. Except in the vicinity of Lake Miona, there is no water in the surficial aquifer except after rainfall events. The clayey sand layer is underlain by the Upper Floridan, a limestone unit. The top of this limestone layer ("the top of the rock") occurs at fluctuating depths of between 30 and 70 feet. At approximately 350 to 400 feet below the land surface, there begins a transition to a denser unit that serves as a confining layer between the Upper Floridan production zone and the Lower Floridan production zone. This confining layer, which was confirmed by drilling at three locations in the Villages Inc. is approximately 150 feet thick in the area of the Villages Inc. Another transition, this time to a less dense formation, begins at approximately 550 to 600 feet, which is considered the top of the Lower Floridan production zone. While testing conducted on the project site indicated almost no leakage between the Upper and Lower Floridan production zones, it is generally known by experts that there is some exchange of water between the two layers. Both the Upper and the Lower Floridan contain water that meets potable water standards and both are considered water production zones. The water quality of the two zones is not significantly different. The project area is prone to karst activity, that is, the formation of sinkholes. Sinkholes are formed as a result of the collapse of the overburden above subsurface cavities which have been formed through a very gradual dissolution of limestone, thus resulting in a "sink" at the land surface. Surface water bodies in the area include Lake Miona, Black Lake, Cherry Lake, and Dry Prairie, as well as several other small wetlands. The Potable Water and Irrigation Permits The potable water permit is for the withdrawal from the Upper Floridan Aquifer of 1.164 million gallons of water per day (MGD), on an annual average, for potable use in residences and both commercial and recreational establishments. It also limits the maximum withdrawal during peak months to 2.909 MGD. The Irrigation Permit is for the withdrawal from the Lower Floridan Aquifer of 2.850 MGD, on an annual average, for use in irrigation. The peak month usage rate permissible under the proposed permit would be 9.090 MGD. Water withdrawal under the Irrigation Permit will be used for the irrigation of residential lawns, common areas, commercial landscaping, and golf courses. Modeling of Drawdowns In assessing the impacts of proposed water withdrawals from an aquifer, District personnel considered effects on the aquifers and on-surface water features in the area. Computer- generated models of the predicted effects of the Potable Water and Irrigation Permits withdrawals provided one of the principal bases for this assessment. The primary geologist assigned to review the permit applications reviewed two of the models submitted by the Utility and the Authority (jointly the WUP Applicants) and ran one personal model of her own in order to predict the effects of the proposed withdrawals on the aquifers, as well as on any wetlands and other surface water bodies. In particular, the models predict both the vertical and horizontal extent to which the withdrawals may lower the level of water within the aquifers and in-surface waters under various conditions. One of the models submitted by the WUP Applicants predicted drawdowns during a 90-day period of no rainfall while the other predicted the impacts of the withdrawals over the life of the permits, considered cumulatively with the effects of withdrawals from the already-existing Villages' development in Sumter, Marion, and Lake Counties. The District’s geologist modeled the impacts of the withdrawals over the life of the permits and included the cumulative effects of all of the current Villages' withdrawals in Sumter County. All of these models included the combined effects of both the proposed Potable Water and the Irrigation Permits. Based upon these models, it is concluded that there will be no significant drawdowns as a result of the withdrawals authorized by the proposed water use permits. Specifically, the only predicted drawdown in the surficial aquifer (0.25 feet of drawdown) is in an area where there are no natural surface water features. Drawdown in the Upper Floridan is predicted at between 0.1 and 0.2 feet, while the drawdown in the Lower Floridan is predicted at a maximum of 1.5 feet. These minor drawdowns are not expected to cause any adverse impacts. Transmissivity is the rate at which water moves horizontally through the aquifer. In areas with high transmissivity, the results of water withdrawals from an aquifer will generally be low in magnitude, but broad in lateral extent. Water withdrawals from areas of low transmissivity will result in cones of depression that are more limited in lateral extent, but steeper vertically. The use of too high a transmissivity rate in a model, would overpredict the horizontal distance of the drawdowns caused by withdrawals, but would underpredict the vertical drawdown in the immediate vicinity of the withdrawal. Conversely, use of too low a transmissivity would over-predict the effects in the immediate vicinity of the withdrawal but underpredict the lateral extent of the drawdown. The WUP Applicants’ models used a transmissivity value for the Lower Floridan Aquifer of 100,000 feet squared per day ("ft.2/d'). The WUP Applicants’ consultant derived the transmissivity values from a regional model prepared by the University of Florida. The regional model uses a transmissivity value for the entire region of 200,000 ft.2/d for the Lower Floridan. While that transmissivity is appropriate for assessing large-scale impacts, on a more localized level, the transmissivity of the aquifer may be lower. Therefore, the WUP Applicants’ consultant met with District representatives and agreed to use a value half that used in the University of Florida model. A similar approach was used for the transmissivity value used in modeling effects in the Upper Floridan. Notably, specific transmissivity values recorded in four wells in the Villages Inc. area were not used because two of these wells were only cased to a depth of just over 250 feet, with an open hole below that to a depth of 590 feet. Thus, the transmissivity measured in these wells reflect conditions in the confining layer at the immediate location of the wells - not the transmissivity of the Lower Floridan production zone. Further, site-specific information on transmissivity, measured during pump tests at individual wells, does not correlate well to the transmissivity of the aquifer, even at short distances from the well. Transmissivities measured at individual wells are used to determine the depth at which the pump should be set in the well, not to determine the transmissivity of the aquifer. Thus, the use of transmissivities derived from the regional model, but adjusted to be conservative, is entirely appropriate. Moreover, using a transmissivity in her modeling of the project impacts of 27,000 ft.2/d for the Lower Floridan Aquifer, the district geologist’s model predicted no adverse impacts. Leakance is the measure of the resistance of movement vertically through confining units of the aquifer. The leakance value used by the District for the confining layer between the Upper and Lower Floridan was taken from the University of Florida model. Tests conducted on the site actually measured even lower leakance values. Thus, the evidence establishes that the leakance value used in the WUP Applicants’ and the District’s modeling for the Floridan confining layer was reasonable and appropriate. Competent, substantial evidence also establishes that the leakance value used for Lake Miona was reasonable. The WUP Applicants submitted to the District substantial data, gathered over several years, reflecting the balance of water flowing into Lake Miona and the lake’s levels in relation to the potentiometric surface. This documentation verified the leakance value used for Lake Miona in the modeling. Finally, the District modeling used appropriate boundary condition parameters. The District modeling used what is known as the "constant head" boundary and assumes the existence of water generated off-site at the boundaries. Such a boundary simulates the discharge of the aquifer at a certain level. The use of constant head boundaries is an accepted practice. The modeling conducted on behalf of the District and the Applicants provides a reasonable assurances that the Potable Water and Irrigation Permits will not cause adverse water quality or quantity changes to surface or groundwater resources, will not cause adverse environmental impacts to natural resources, and will not cause pollution of the aquifer. Furthermore, because the predicted drawdowns are so insignificant, reasonable assurances have been provided that the withdrawals will not adversely impact existing off-site land uses or existing legal withdrawals. The modeling also provides reasonable assurances that the withdrawals will not be harmful to the water resources of the District. Moreover, monitoring requirements included in the proposed Potable Water and Irrigation Permits provide additional reasonable assurance that – should the withdrawal effects exceed those predicted by the modeling – such effects are identified and necessary steps are taken to mitigate for any potential impacts. The District has reserved the right to modify or revoke all or portions of the water use permits under certain circumstances. Specifically, the proposed Potable Water Permit requires a monitoring plan that includes the following pertinent provisions: There shall be no less than three control wetland and ten onsite wetland monitoring sites; A baseline monitoring report, outlining the current wetland conditions; * * * A statement indicating that an analysis of the water level records for area lakes, including Miona Lake, Black Lake, Cherry Lake, Lake Deaton and Lake Griffin, will be included in the annual report; A statement indicating that an analysis of the spring flow records for Gum Spring, Silver Spring, and Fenney Spring, will be included in the annual report; * * * Wildlife analyses for potentially impacted wetlands, lakes, and adjacent property owner uses or wells, including methods to determine success of the mitigation; A mitigation plan for potentially impacted wetlands, lakes, and adjacent property owner uses or wells, including methods and thresholds to determine success of the mitigation; An annual report of an analysis of the monitoring data . . . . Similar provisions are included in the proposed irrigation permit. The WUP Applicants, in conjunction with the District, have developed sites and methodologies for this monitoring. Reasonable Demand The water to be withdrawn under the proposed Potable Water Permit will serve 10,783 people. This total results from the simple multiplication of the number of residences to be built during the next six years (5,675) by the average number of residents per household (1.9). Those numbers are based upon historical absorption rates within the Villages Inc. development since 1983, an absorption rate that doubles approximately every five years. The Utility proposed a per capita use rate of 108 gallons per day for potable use only. District personnel independently verified that per capita rate, based upon current usage in the existing portions of the Villages Inc. and determined that the rate was reasonable. Based upon the population projections and the per capita rate, the District determined that there is a reasonable demand for the withdrawal of the amount of water, for potable purposes, that is reflected in the Potable Water Permit. The Utility has provided reasonable assurance regarding the Utility’s satisfaction of this permitting criterion. As to the irrigation permit, the Villages Inc. plans, within the next six years, to complete the construction of 1,911 acres of property that will require irrigation. The amount of water originally requested by the Authority for irrigation withdrawals was reduced during the course of the application process at the request of the District. The District determined the reasonable amount of irrigation water needed through the application of AGMOD, a computer model that predicts the irrigation needs of various vegetative covers. Since the Authority intends to utilize treated wastewater effluent as another source of irrigation water, the District reduced the amount of water that it would permit to be withdrawn from the Lower Floridan for irrigation. The District, thus, determined that the Authority would need 1.59 MGD annual average for recreational and aesthetic area irrigation and 1.26 MGD annual average for residential lawn irrigation, for a total of 2.85 MGD. The Villages Inc. also plans to accumulate stormwater in lined ponds for irrigation use. However, unlike its treatment of wastewater effluent, the District did not deduct accumulated stormwater from the amount of water deemed necessary for irrigation. This approach was adopted due to the inability to predict short-term rainfall amounts. The uncontroverted evidence of record establishes reasonable assurances that there is a reasonable demand for the amount of water to be withdrawn under the proposed irrigation permit. Conservation and Reuse Measures Both the Utility and the Authority applications included proposed measures for the conservation and reuse of water. The conservation plan submitted in conjunction with the irrigation permit application provides for control valves to regulate both the pressure and timing of irrigation by residential users; contractual restrictions on water use by commercial users; xeriscaping; and an irrigation control system for golf course irrigation that is designed to maximize the efficient use of water. In addition, in the proposed permits, the District requires the Utility and the Authority to expand upon these conservation measures through such measures as educational efforts, inclined block rate structures, and annual reporting to assess the success of conservation measures. The Authority also committed to reduce its dependence on groundwater withdrawals through the reuse of wastewater effluent, both from the on-site wastewater treatment facility and through contract with the City of Wildwood. Reasonable assurances have been provided that conservation measures have been incorporated and that, to the maximum extent practicable, reuse measures have been incorporated. Use of Lowest Available Quality of Water In addition to the reuse of treated wastewater effluent, the Authority intends to minimize its dependence on groundwater withdrawals for irrigation use through the reuse of stormwater accumulated in lined ponds. Thirty-one of the lined stormwater retention ponds to be constructed by the Villages Inc. are designed as a component of the irrigation system on-site. Ponds will be grouped with the individual ponds within each group linked through underground piping. There will be an electronically controlled valve in the stormwater pond at the end of the pipe that will be used to draw out water for irrigation purposes. These lined stormwater ponds serve several purposes. However, the design feature that is pertinent to the reuse of stormwater for irrigation is the inclusion of additional storage capacity below the top of the pond liner. No groundwater will be withdrawn for irrigation purposes unless the level of stormwater in these lined ponds drops below a designed minimum irrigation level. Groundwater pumped into these ponds will then be pumped out for irrigation. Thus, the use of groundwater for irrigation is minimized. The Authority has met its burden of proving that it will use the lowest quality of water available. With respect to the potable permit, the evidence establishes that there are only minor differences between the water quality in the Upper Floridan and Lower Floridan in this area. The Upper Floridan is a reasonable source for potable supply in this area. Thus, reasonable assurances have been provided by the Utility that it will utilize the lowest water quality that it has the ability to use for potable purposes. Waste of Water In regard to concerns that the design of the Villages Inc.'s stormwater/irrigation system will result in wasteful losses of water due to evaporation from the surface of the lined ponds, it must be noted that there are no artesian wells relating to this project and nothing in the record to suggest that the groundwater withdrawals by either the Utility or the Authority will cause excess water to run into the surface water system. Additionally, the evidence establishes that, to the extent groundwater will be withdrawn from the Lower Floridan and pumped into lined stormwater ponds, such augmentation is not for an aesthetic purpose. Instead, the groundwater added to those ponds will be utilized as an integral part of the irrigation system and will be limited in quantity to the amount necessary for immediate irrigation needs. Finally, the water to be withdrawn will be put to beneficial potable and irrigation uses, rather than wasteful purposes. Under current regulation, water lost from lined stormwater ponds through evaporation is not considered as waste. Thus, the Authority and the Utility have provided reasonable assurances that their withdrawals of groundwater will not result in waste. The ERP The stormwater management system proposed by the Villages Inc. will eventually serve 5,016 acres on which residential, commercial, golf course, and other recreational development will ultimately be constructed. However, the proposed permit currently at issue is preliminary in nature and will only authorize the construction of stormwater ponds, earthworks relating to the construction of compensating flood storage, and wetland mitigation. Water Quality Impacts The stormwater management system will include eight shallow treatment ponds that will be adjacent to Lake Miona and Black Lake and 45 lined retention ponds. Thirty-one of these lined ponds will serve as part of the irrigation system for a portion of the Villages Inc.'s development. All of these ponds provide water quality treatment. The unlined ponds will retain the first one inch of stormwater and then overflow into the lakes. The ponds provide water quality treatment of such water before it is discharged into the lakes. The water quality treatment provided by these ponds provides reasonable assurances that the project will not adversely impact the water quality of receiving waters. While they do not discharge directly to surface receiving waters, the lined retention ponds do provide protection against adverse water quality impacts on groundwater. There will be some percolation from these ponds, from the sides at heights above the top of the liner. However, the liners will prevent the discharge of pollutants through the highly permeable surface strata into the groundwater. The Villages Inc. designed the system in this manner in response to concerns voiced by the Department of Environmental Protection during the DRI process regarding potential pollutant loading of the aquifer at the retention pond sites. Furthermore, by distributing the accumulated stormwater - through the irrigation system - over a wider expanse of vegetated land surface, a greater degree of water quality treatment will be achieved than if the stormwater were simply permitted to percolate directly through the pond bottom. There is no reasonable expectation that pollutants will be discharged into the aquifer from the lined ponds. If dry ponds were used, there would be an accumulation of pollutants in the pond bottom. These measures provide reasonable assurances that there will be no adverse impact on the quality of receiving waters. Water Quantity Impacts With regard to the use of lined retention ponds, as part of the Villages Inc.’s stormwater system and the impact of such ponds on water quantity, the evaporative losses from lined ponds as opposed to unlined ponds is a differential of approximately one (1) inch of net recharge. The acreage of the lined ponds - even measured at the very top of the pond banks - is only 445 acres. That differential, in terms of a gross water balance, is not significant, in view of the other benefits provided by the lined ponds. As part of the project, wetlands will be created and expanded and other water bodies will be created. After rainfalls, these unlined ponds will be filled with water and will lose as much water through evaporation as would any other water body. The design proposed by the Villages Inc., however, will distribute the accumulated stormwater across the project site through the irrigation of vegetated areas. The documentation submitted by the Villages Inc. establishes that the ERP will not cause adverse water quantity impacts. The Villages Inc. has carried its burden as to this permitting criterion. Flooding, Surface Water Conveyance, and Storage Impacts Parts of the project are located in areas designated by the Federal Emergency Management Administration (FEMA) as 100-year flood zones. Specifically, these areas are located along Lake Miona, Black Lake, between Black Lake and Cherry Lake, and at some locations south of Black Lake. Under the District’s rules, compensation must be provided for any loss of flood zone in filled areas by the excavation of other areas. The District has determined, based upon the documentation provided with the Villages Inc.’s application, work on the site will encroach on 871.37 acre feet of the FEMA 100-year flood zone. However, 1,051.70 acre feet of compensating flood zone is being created. The Villages Inc. proposes to mitigate for the loss of flood zone primarily in the areas of Dry Prairie and Cherry Lake. At present, Cherry Lake is the location of a peat mining operation authorized by DEP permit. Mining has occurred at that site since the early 1980s. The flood zone mitigation proposed by the Villages Inc. provides reasonable assurance that it will sufficiently compensate for any loss of flood basin storage. The Villages Inc.'s project provides reasonable assurance that it will neither adversely affect surface water storage or conveyance capabilities, surface or groundwater levels or surface water flows nor cause adverse flooding. Each of the 45 retention ponds to be constructed on-site will include sufficient capacity, above the top of the pond liner, to hold a 100-year/24-hour storm event. This includes stormwater drainage from off-site. In addition, these ponds are designed to have an extra one foot of freeboard above that needed for the 100-year/24-hour storm, thus providing approximately an additional 100 acres of flood storage beyond that which will be lost through construction on-site. Furthermore, the Villages Inc. has proposed an emergency flood plan. In the event of a severe flood event, excess water will be pumped from Dry Prairie, Cherry Lake, and Lake Miona and delivered to the retention ponds and to certain golf course fairways located such that habitable living spaces would not be endangered. Environmental Impacts and Mitigation There are 601 acres of wetlands and surface waters of various kinds in the Villages Inc.’s project area. Forty-one acres of wetlands will be impacted by the work that is authorized under the ERP. Each of these impacted wetlands, along with the extent of the impact, is listed in the ERP. The impacts include both fill and excavation and all will be permanent. When assessing wetland impacts and proposed mitigation for those impacts, the District seeks to ensure that the activities proposed will not result in a net loss of wetland functionality. The object is to ensure that the end result will function at least as well as did the wetlands in their pre-impact condition. Functional value is judged, at least in part, by the long term viability of the wetland. While small, isolated wetlands are not completely without value, large wetland ecosystems – which are less susceptible to surrounding development – generally have greater long-term habitat value. The District’s policy is that an applicant need not provide any mitigation for the loss of habitat in wetlands of less than 0.5 acre, except under certain limited circumstances, including where the wetland is utilized by threatened or endangered species. Some wetlands that will be impacted by the Villages Inc.’s project are of high functional value and some are not as good. The Villages Inc. proposes a variety of types of mitigation for the wetlands impacts that will result from its project, all of which are summarized in the ERP. In all, 331.55 acres of mitigation are proposed by the Villages Inc. First, the District proposes to create new wetlands. Approximately 11 acres of this new wetland will consist of a marsh, which is to be created east of Cherry Lake. Second, it proposes to undertake substantial enhancement of Dry Prairie, a 126-acre wetland. Currently – and since at least the early nineties – Dry Prairie received discharge water from the peat mining operation at Cherry Lake. Without intervention, when the mining operations stop, Dry Prairie would naturally become drier than it has been for several years and would lose some of the habitat function that it has been providing. The Villages Inc.’s proposed enhancement is designed to match the current hydroperiods of Dry Prairie, thus ensuring its continued habitat value. Third, the Villages Inc. has proposed to enhance upland buffers around wetlands and surface waters by planting natural vegetation, thus providing a natural barrier. Placement of these buffers in conservation easements does not provide the Villages Inc. with mitigation credit, since a 25-foot buffer is required anyway. However, the District determined that the enhancement of these areas provided functional value to the wetlands and surface waters that would not be served by the easements alone. Fourth, the Villages Inc. will place a conservation easement over certain areas, including a 1500-foot radius preserve required by the Fish and Wildlife Conservation Commission (FWCC) around an identified eagles’ nest. These areas will also be used for the relocation of gopher tortoises and, if any are subsequently located, of gopher frogs. While the Villages Inc. is also performing some enhancement of this area, it will receive no mitigation credit for such enhancement – which was required to meet FWCC requirements. However, since the conservation easement will remain in effect in perpetuity, regardless of whether the eagles continue to use the nest, the easement ensures the continued, viability of the area’s wetlands and provides threatened and endangered species habitat. In order to provide additional assurances that these mitigation efforts will be successful, the District has included a condition in the proposed permit establishing wetland mitigation success criteria for the various types of proposed mitigation. If these success criteria are not achieved, additional mitigation must be provided. With the above described mitigation, the activities authorized under the ERP will not adversely impact the functional value of wetlands and other surface waters to fish or wildlife. The Villages Inc. has met its burden of providing reasonable assurances relating to this permit criterion. Capability of Performing Effectively The Villages Inc. has also provided reasonable assurances that the stormwater management system proposed is capable of functioning as designed. The retention ponds proposed are generally of a standard-type design and will not require complicated maintenance procedures. In its assessment of the functional capability of the system, the District did not concern itself with the amount of stormwater that the system might contribute for irrigation purposes. Rather, it focused its consideration on the stormwater management functions of the system. The question of the effectiveness of the system for irrigation purposes is not relevant to the determination of whether the Villages Inc. has met the criteria for permit issuance. Consequently, the record establishes that the documentation provided by the Villages Inc. contains reasonable assurances that the stormwater system will function effectively and as proposed. Operation Entity The Villages Inc. has created Community Development District No. 5 (CDD No. 5), which will serve as the entity responsible for the construction and maintenance of the stormwater system. CDD No. 5 will finance the construction through special revenue assessment bonds and will finance maintenance through the annual assessments. Similar community development districts were established to be responsible for earlier phases of the Villages Inc. The ERP includes a specific condition that, prior to any wetlands impacts, the Villages Inc. will either have to provide the District with documentation of the creation of a community development district or present the District with a performance bond in the amount of $1,698,696.00. Since the undisputed testimony at hearing was that CDD No. 5 has, in fact, now been created, there are reasonable assurances of financial responsibility. Secondary and Cumulative Impacts The Villages Inc.’s application also provides accurate and reliable information sufficient to establish that there are reasonable assurances that the proposed stormwater system will not cause unacceptable cumulative impacts upon wetlands or other surface waters or adverse secondary impacts to water resources. The system is designed in a manner that will meet water treatment criteria and there will be no secondary water quality impacts. Further, the use of buffers will prevent secondary impacts to wetlands and wetland habitats and there will be no secondary impacts to archeological or historical resources. In this instance, the stormwater system proposed by the Villages Inc. will function in a manner that replaces any water quantity or water quality functions lost by construction of the system. In its assessment of the possible cumulative impacts of the system, the District considered areas beyond the bounds of the current project, including the area to the south that is currently being reviewed under the DRI process as a substantial deviation. The District’s environmental scientist, Leonard Bartos, also reviewed that portion of the substantial deviation north of County Road 466A, in order to determine the types of wetlands present there. Furthermore, the District is one of the review agencies that comments on DRI and substantial deviation applications. When such an application is received by the District’s planning division, it is routed to the regulatory division for review. The District includes its knowledge of the DRIs in its determination that there are no cumulative impacts. Reasonable assurances have been provided as to these permitting criteria. Public Interest Balancing Test Because the proposed stormwater system will be located in, on, and over certain wetlands, the Villages Inc. must provide reasonable assurances that the system will not be contrary to the public interest. This assessment of this permitting criteria requires that the District balance seven factors. While the effects of the proposed activity will be permanent, the Villages Inc. has provided reasonable assurances that it will not have an adverse impact on the public health, safety, or welfare; on fishing or recreational values; on the flow of water; on environmental resources, including fish and wildlife and surface water resources; or on off-site properties. Furthermore, the District has carefully assessed the current functions being provided by the affected wetland areas. With respect to historical or archeological resources, the Villages Inc. has received letters from the Florida Department of State, Division of Historical Resources, stating that there are no significant historical or archeological resources on the project site that is the subject of this permit proceeding. Thus, the evidence establishes reasonable assurances that the Villages Inc.'s stormwater system will not be contrary to the public interest. Additionally, the District and Applicant presented uncontroverted evidence that the proposed project will not adversely impact a work of the District, and that there are no applicable special basin or geographic area criteria.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that a final order be entered issuing Water Use Permit Nos. 20012236.000 and 20012239.000 and Environmental Resource Permit No. 43020198.001, in accordance with the District’s proposed agency action. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 June, 2002.
The Issue The issue in this case is whether the Southwest Florida Water Management District (District) should issue to Century Realty Funds, Inc. (Century) Environmental Resource Permit (ERP) No. 44000227.002 (the ERP), which would modify Management and Storage of Surface Waters (MSSW) Permit No. 400227.000 (the Permit) and Stormwater Exemption No. EO1481, issued by the District to Century in July 1985 for construction of a surface water management system for Angler's Green Mobile Home Park located in Mulberry, Polk County, Florida.
Findings Of Fact The District issued Management and Storage of Surface Waters (MSSW) Permit No. 400227.000 and Stormwater Exemption No. EO1481 to Century in July 1985 for construction of a surface water management system for Angler's Green Mobile Home Park (MHP) located in Mulberry, Polk County, Florida. Angler’s Green MHP Angler’s Green MHP is an 83-acre residential golf course development of approximately 385 homes located off of State Road 37 near Mulberry. Residents at Angler’s Green own their own mobile homes and lease the residential lots pursuant to annual leases expiring December 31 of each year, with guaranteed renewal conditioned upon owner compliance with the terms and conditions of the lease. Prior to being developed as a mobile home park, the property which is now Angler’s Green MHP was part of a phosphate mining operation and was reclaimed under a phosphate mining land reclamation plan approved by the Florida Department of Natural Resources and a reclamation contract dated September 4, 1984. Final contours of the Angler’s Green site were made in accordance with the approved reclamation plan. After reclamation contouring, a 23-acre manmade (former phosphate mine pit) lake remained in the northeast quadrant of the Angler's Green site. The resulting lake had a finger arm (bay or cove) extending from the southwest corner of the main body of the lake, oriented in a north-to-south direction and located west of a peninsula of land extending into the northwest part of the lake from the north. The lake also had a short, narrow canal leading into the main body of the lake from the south; the canal connected at a right angle to longer narrow waterway to the south of and extending parallel to the main body of the lake in an east-to-west orientation. There also were two smaller ponds on the property after reclamation contouring. After reclamation, surface water onsite generally flowed westerly and discharged from the property to a railroad ditch along the western boundary of the property. The recorded post-reclamation, pre-development water level for the 23-acre lake, as indicated on the site grading plans, was around 127.1 to 127.8 feet above Mean Sea Level (M.S.L.). The 1985 Permits On July 10, 1985, the District issued MSSW Permit No. 400227.000 and Stormwater Exemption No. EO1481 to Century to authorize the construction of a surface water management system for Angler’s Green. The MSSW Permit had an expiration date of July 10, 1988. As designed, the permitted Angler’s Green surface water management system was to route internal stormwater runoff to swales, detention ponds, and catchment areas before discharging through a sidebank sand filtration system (a berm approximately 300 feet long containing an 8” perforated drain pipe covered by a filter fabric and sand filter material) to receiving waters at the northwest corner of the property. The permitted system was designed with five drainage areas known as Basins A through E. Basin A was in the southeast quadrant of the site; Basin B was to its east in the southeast quadrant of the site; Basin E was to the north of Basin A and included the 23-acre former phosphate mining pit reclaimed as an artificial lake, which was referred to as “Lake E” or sometimes “Pond E"; Basin C was to the west of Basin E; and Basin D was to the west of Basin C and to the north of Basin B. The two smaller ponds on the property were designated Pond C-1 and Pond B-1 and were located in Basin C and Basin B, respectively. Basin D was in the northwest corner of the site; the discharge structure was in the northwest corner of Basin D. As the system was designed, stormwater from Basin E would appear to sheet flow naturally into Lake E; stormwater from Basin A would appear to flow naturally to the southwest, away from Lake E, but the system routed the water from the southwest corner of Basin A to the western end of the waterway on Lake E through an underground pipe. Stormwater from Basin B was to flow to and be retained in Pond B-1; as the system was designed, surface water was not designed to discharge offsite from Basin B. As designed, Lake E served as a detention pond for water from Basin E and Basin A. It was to have a control structure (CS-1) in the arm of Lake E that would produce a seasonal fluctuation range of two feet, from 127.5’ above M.S.L. to 129.5’ above M.S.L. Stormwater discharging from CS- 1 was to be conveyed by pipe to Pond C-1, where it was to mingle with surface water draining from Basin C. When full, Pond C-1 would cascade into the golf course area in Basin D and, as necessary, in a portion of Basin B. After catchment and detention in the golf course area, overflow was eventually and ultimately to discharge offsite through the side-bank sand filtration system in the northwest corner of Basin D. In this manner, the Angler’s Green surface water management system was designed to accommodate the 24-hour, 25- year storm event, which was estimated to produce approximately 8 inches of water in a 24-hour period. It also was designed to comply with the water quality requirements as specified in Florida Administrative Code Chapter 17-25 (1985 Ann. Supp.) by detaining the first half-inch of runoff before discharging it offsite through the sidebank sand filtration system in the northwest corner of Basin D. (All rule citations are to the Florida Administrative Code.) Omission of the Stangls During the review process, the District noted from drawings submitted as part of Century's MSSW Permit application that the project area did not include approximately the eastern third of the main body of Lake E. District staff brought this to Century's attention in a request for additional information (RAI) and stated: "If possible, you should obtain a perpetual right to operate and maintain the lake from other owners." In response, Century falsely represented to the District that L. Kirk McKay, a joint venture partner of Century, was the only riparian owner on Lake E and that Century had obtained from him a perpetual right to operate and maintain Lake E as part of the MSSW Permit. In fact, the Stangls owned property on the east side of the lake, including approximately 500 feet of lakefront and contiguous lake bottom. The Stangls and two partners purchased the property from McKay himself in 1979. The Stangls bought out their partners in 1984. The District relied on Century's misrepresentation. The District would not have issued the MSSW Permit to Century if the District had known that Century did not own or control all the land being used for the Permit--specifically, including all of Lake E. See Rule 40D-4.101(1)(d) and (2)(d)6. (1985) (application must include "evidence of ownership or control"). In addition, because the District was unaware of the Stangls' ownership of a portion of Lake E, the District did not require Century to give the Stangls direct, actual notice of the Century's permit application. Instead, the District only required that Century publish notice of the District’s receipt of the permit application. Notice was published on April 3, 1985, in the Lakeland Ledger, a newspaper of general circulation qualified under the terms of Section 50.011, Florida Statutes. But the Stangls did not see the published notice, were unaware of the permit application, and did not ask to participate in the permitting process. The Stangl property adjacent to Angler’s Green remained undeveloped and unoccupied until 1999, when the Stangls' son, John, established a business on the site. Prior to 1999, the Stangls visited the property a couple times a year. They were fully aware of the construction and operation of Anglers Green as a mobile home park across Lake E. During this time, Century leased 385 lots with guaranteed annual renewal conditioned only upon compliance with lease terms and conditions. Amenities under the leases included clubhouse and golf course privileges. At no time before 2000 did the Stangls take any action to challenge the validity of Century's 1985 MSSW Permit. 1985 Surface Water Management Permitting Requirements In 1985, permitting requirements for surface water management systems were divided between two regulatory schemes. Surface water management permits in Polk County were issued by the District under Chapter 373, Florida Statutes, and Rule Chapters 40D-4 and 40D-40, which addressed water quantity and flooding issues for projects greater than and less than 40 acres, respectively. Water quality permits or exemptions from water quality permitting requirements were issued by the Department of Environmental Regulation under Chapter 403, Florida Statutes, and Rule Chapter 17-25 to address water quality concerns. It was not until 1988 that permitting requirements were consolidated into the MSSW regulatory program administered by the District under Rule Chapters 40D-4 and 40D-40. In 1985, the District did not have a Basis of Review (BOR) to specify system design requirements for applicants to provide reasonable assurances that the conditions for issuance of surface water permits were satisfied. Standards and criteria for the design and performance of surface water management systems were contained in Rule 40D-4.301(2) (1985) Under subsection (2)(i) of that rule, projects designed to meet the requirements of Chapter 17-25 [Regulation of Stormwater Discharge] were presumed to meet applicable State water quality requirements. There were no requirements for wet detention pond littoral zones. 20. Under Rule 17-25.03(2)(b) (1985 Ann. Supp.), stormwater management systems for projects with drainage areas less than 100 acres that provided retention or detention with filtration of the first half-inch of runoff were exempt from the permitting requirements of Rule Chapter 17-25. 21. In 1985, District Rule 40D-4.301(2)(j) (1985) allowed for natural areas and existing water bodies to be used for stormwater retention or detention purposes when not in conflict with environmental or public use considerations. Areas that could be considered for this purpose included previously-degraded areas or man-made areas (such as borrow pits). Apparently, the District allowed Century to use Lake E as a detention pond under this provision. Deviations from MSSW Permit Angler’s Green MHP was constructed in two phases, with the first phase completed in 1985, and the second phase completed in 1987. Construction of at least the part of the surface water management system to serve the first phase took place prior to 1985; it was not clear from the evidence whether construction of the part of the surface water management system to serve the second phase also took place prior to 1985, but it clearly took place prior to construction of the second phase in 1987. Condition No. 4 of Century's MSSW Permit required the submittal of a certification that the system was constructed in accordance with the approved and permitted design. But Century did not provide any such certification. Century also never certified to the District that its new stormwater discharge facility, as constructed, continued to qualify for exemption from State water quality requirements. Although the surface water management system was constructed and operating, the District never transferred the 1985 Permit to the operation phase. In several respects, the Angler’s Green surface water management system was not constructed as designed, approved, and permitted in 1985. The pipe to convey stormwater from the southwest corner of Basin A back to the Lake E waterway apparently never was constructed; instead, stormwater from Basin A was routed to Pond B-1. (There also was a berm constructed in Basin A near the southern boundary of the site; but that berm apparently was a visual berm, and there was no evidence that it affected performance of the surface water management system.) Control structure CS-1 (which was supposed to be located in the arm or bay of Lake E) and the pipe to convey overflow from there into Pond C-1 also never were constructed. By the early 1990's, Angler's Green was experiencing flooding in the golf course area in Basin D and B for extended periods of time. In November 1993, the District responded to a complaint of flooding in that vicinity. Upon investigation, the District determined that malfunction of the surface water management system serving Reservation Lakes (now known as Paradise Lakes), a development to the north and downstream of the Angler's Green system, was causing water to back up through the wetlands and the sand filtration system in the northwest corner of the Angler’s Green project. As a result, water overtopped the discharge structure, equalized at levels above the top of the discharge structure's berm, and flooded the golf course for extended periods of time. At some undetermined point in time, an unpermitted pond was dug in Basin D, apparently in an attempt to alleviate flooding of the golf course. In addition, possibly for the same purpose, a pump was installed in Basin D near Pond C-1, and a pipe was installed to convey stormwater from there into Lake E. The sidebank sand filtration system designed to provide filtration of stormwater prior to discharge from the northwest corner of the site does not appear to exist today. It may be present but difficult to see after 15 years of plant growth; or it may have been removed or disturbed as a result of re-grading in the area. However, the evidence proved that the discharge structure was present in 1993, and there is no reason to believe that it was not installed during construction of the surface water management system--i.e., by 1987 at the latest. In addition, at some undetermined point in time, a pipe was installed at the northeast corner of Lake E to convey overflow from Lake E eastward to a drainage ditch located alongside SR 37 to the north of the Stangls' property. No witnesses could testify as to when the pipe to the SR 37 ditch was installed or its elevation. (The District and Century state in their PRO that Map No. 2 in P/I Exhibit 14--an aerial map/survey submitted to the District by Century on August 13, 1990, as part of Century's 1990 Water Use Permit No. 209993.000 application--notes the pipe's elevation as 127.95 feet above M.S.L.; but no such finding could be made from review of the exhibit.) Roads in Angler's Green have inverted crowns to convey runoff from roads, driveways, and roofs away from mobile home lots. Some runoff from these impervious surfaces appears to be directed into a swale on the east side of the site; this swale leads to Lake E. In addition, approximately 12 drains have been installed in or near roads in Angler's Green that convey water through pipes directly into Lake E or Pond C-1. Under current Rule Chapters 40D-4 and 40D-40, road drains connecting impervious surfaces to Lake E would have to be shown on application construction drawings, and separate stormwater calculations would have to be provided in an application. But in 1985 this was not required. Century's calculations, together with flow arrows on drawings showing the direction of stormwater flow towards the detention ponds, were considered sufficient--especially since Century's calculations used a relatively high runoff co-efficient. As a result, the existence of these drains and pipes are not considered to be substantial deviations from the original, approved design. Similarly, approximately 64 roof drains and pipes conveying water from roofs directly into Lake E and Pond C-1 would not be considered substantial deviations from the original, approved design. In addition, these apparently were installed by mobile homeowners over the years, not by Century. From 1985 to 2000, the District did not have occasion to address regulatory concerns at Angler’s Green, except for the complaint of flooding in the golf course area that occurred in November 1993 and a more recent complaint about an area of the golf course that was designed to flood under certain conditions. Otto Stangl’s Complaint and the District’s Response Around November 1999, John Stangl noticed a fish kill in the ditch along SR 37 near the Stangl property. He also was contacted by a governmental compliance officer concerning the fish kill. Upon investigating, John Stangl saw the unpermitted pipe leading from Lake E that was discharging into the SR 37 ditch where the fish kill was observed, as well as the unpermitted pump that was pumping water from the Angler’s Green golf course area through a pipe that discharged into Lake E. In February 2000, Otto Stangl complained to the District about the fish kill and the existence of the unpermitted structures associated with Lake E. Upon receiving Otto Stangl’s complaint, District staff conducted site visits of the Angler’s Green project. Staff observed the unauthorized pump and pipe conveying water from Pond C-1 to Lake E and the unauthorized pipe conveying water from Lake E to the SR 37 ditch. Staff also observed that the Lake E control structure was missing, the pipe to convey stormwater from Basin A to Lake E was missing, and Basin D had been re-graded. In February 2000, the District also became aware of the fact that Century did not have full ownership or control of Lake E. On March 15, 2000, the District issued Century Notice of Non-Compliance and directed Century to either construct the system as designed and permitted or to seek a permit modification. On May 8, 2000, Century submitted a letter application to modify the original MSSW Permit No. 400227.000 by constructing the originally permitted Lake E control structure and pipe conveying water from Lake E to Pond C-1, but in a different location in Lake E than originally permitted due to the existence of homes at the location where these structures were originally planned. The application was subsequently amended to be a formal modification upon Century’s request for further modification to allow Basin A stormwater to flow to Pond B-1 and to expand Pond B-1 and add a control structure and an effluent filtration system. Despite having actual knowledge since at least February 2000 that the Angler's Green surface water management system was built partially on their property, the Stangls did not ask for a hearing on the 1985 Permit. Instead, they awaited the District's consideration of Century's modification application and sought to challenge the District's notice of intent to grant the modification permit issued on October 29, 2001. The District’s Regulatory Compliance Practices In the 1980's, the District appeared to pay little or no attention to construction of permitted projects or submission of required post-construction certifications. Many projects permitted by the District in the 1980’s, such as Angler’s Green, were built and operating although no certifications had been submitted; as a result, the permits issued for these projects never were transferred to the operation phase. Eventually, some projects not built in compliance with issued permits came to the attention of the District, typically through third-party complaints about drainage problems and flooding. By this time, there was a large backlog of issued construction permits for which no required post-construction certifications had been submitted. The backlog of these older projects was so large that the District decided not to initiate an aggressive, systematic, and comprehensive review of all permits for which no required certifications had been submitted. Instead, projects were checked on an ad hoc basis as complaints regarding the functioning of their surface water management systems were registered. When it came to the attention of the District in this manner that a project had been built under an MSSW permit but that no required certifications had been submitted, the District first attempted to secure the required certifications in the form of certified as-built construction drawings and a Statement of Completion, as required by BOR 2.7. In so doing, it was common practice for the District to accept certifications beyond the expiration date on a permit. If projects were substantially completed, the District would not deem the permit as expired simply because the required certifications had not been submitted before the expiration date; and such projects did not lose their status as being permitted. It should be noted that, according to the testimony of the District's expert, William Hartmann, this agency practice was not based on an interpretation of Rule 40D- 4.321(1)(b) (1985) (on duration of construction permits). Rather, the agency practice was to ignore the expiration of the construction permit under those circumstances. In addition, it does not appear from the evidence that the District ever before has faced the situation presented in this case--where a person on whose property part of a surface water management system was built without the person's consent opposes modification and asserts the construction permit has expired. In cases where the agency's practice was applied, if the required certified as-built construction drawings and Statement of Completion could not be provided because the project was not built in accordance with the MSSW permit, the District would require the permittee to either bring the system into compliance with the approved permit designs or obtain a modification of the construction permit. Letter modifications would be accepted when the requested modification would not substantially alter the permit authorization, increase the authorized offsite discharge, impact the environmental features of the project, decrease the required retention/detention, decrease the required flood control elevations for roads or buildings, or decrease pollution removal efficiency. See Rule 40D-4.331(2)(b) (1985). (The current version of the rule adds renewal or extension of the existing permit duration.) Alterations meeting the threshold requirements for a letter modification would be presumed to meet the conditions for issuance for a permit. Otherwise, formal permit modifications would be required. When application is made for a permit modification, the District’s practice is to evaluate those aspects of the surface water management system being modified. Review generally would not extend to the entire system. Permittees seeking to modify their surface water management systems generally are not required by the District to bring the unmodified portions of the system into compliance with current design criteria. Proposed ERP Permit Modification ERP Application No. 44000227.002 seeks authorization to modify portions of the Angler’s Green surface water management system. The specific alterations for which approval is sought are: permanent removal of the existing, unpermitted 18-inch pipe between Lake E and SR 37 roadside ditch; permanent removal of the pump and associated piping conveying water from Pond C-1 to Lake E; installation of the control structure (CS-1), together with installation of pipe to convey water from the control structure to Pond C-1, as designed and approved in the 1985 Permit but different location in the northwest corner of the main body of Lake E; re-grading of the northwesterly portion of the golf course to more closely conform to the original permitted plan and help keep Basin B separate from Basin D; reconstruction of the side-bank sand filter system in the northwest corner of the property, as designed and approved in the 1985 Permit but with a slightly higher invert elevation (122.04 feet above M.S.L.) to prevent water from backing up into Angler's Green from Paradise Lakes again, and with a concrete flume and spreader swale between Pond C-1 and the berm of the side-bank sand filter system; enlargement of Pond B-1; installation of a control structure on Pond B-1; and installation of 100 feet of 6-inch side-bank sand filter discharging to the southwest corner of the property from Pond B-1. By removing the unpermitted pipe to the roadside ditch along SR 37 and by constructing control structure CS-1, with the same control elevations as in the 1985 Permit (albeit at a different location in Lake E), and connecting CS-1 by pipe to Pond C-1 as envisioned in the 1985 Permit, the function of Lake E should approximate its function under the design approved in 1985. Modifying the permitted design to authorize Basin A to flow to Pond B-1 instead of Lake E results in less water flowing to Lake E; these changes will not increase water quantity or quality impacts to Lake E, as compared to the 1985 Permit. As compared to reclamation conditions prior to implementation of the 1985 Permit, water quantity and quality impacts to Lake E would be expected both under the system as designed and permitted in 1985 and as proposed to be modified, by virtue of the similar use of Lake E as a detention pond under either system. Pond B-1 is being enlarged to better accommodate the flow from Basin A. The control structure being added at Pond B-1 will control flow into the swale to the west so as to address water quantity impacts in that area. Stormwater calculations for the revised Pond B-1 demonstrated that the post-development discharge rate will not exceed the pre- development discharge rate, so that there are no concerns for adverse water quantity impacts to receiving waters or adjacent lands or flooding impacts to on-site or off-site property. The historical flows to the west are still maintained. The discharge structure being added at Pond B-1 will account for treatment of the Basin A flow. Based on calculations for revised Pond B-1, the enlarged pond will retain and percolate half an inch of stormwater runoff from the contributing area in 36 hours (which is consistent with current BOR design requirements). The proposed Pond B-1/Basin B modifications, including the routing of Basin A stormwater to Pond B-1, will not adversely affect the quality of receiving waters in that vicinity such that state water quality standards would be violated. Angler's Green is located in the Southern Water Use Caution Area of Polk County. No surface or groundwater levels or surface water flows have been established for this area under Section 373.042, Florida Statutes. The proposed modifications do not involve any works of the District. The proposed modifications are based on generally accepted engineering and scientific principles and employ treatment methods of effluent filtration which involve commonly accepted designs that can be effectively performed and function as proposed. There are no concerns about Century’s financial, legal, or administrative capability to undertake the proposed modifications as specified in the permit, if issued. There are no applicable special basin or geographic area criteria established for this area. Environmental Concerns As with its review of the proposed permit modification for water quantity impacts, the District's review of environmental concerns was limited to review of impacts from the proposed modifications to the original permitted design; unmodified portions of the original permit were not reviewed for compliance with current requirements. An approximately 20 square-foot permanent impact is proposed to Lake E due to the placement of the control structure (SW-1) in the water. A 379 square-foot temporary impact is proposed to Lake E due to the placement of a cofferdam to facilitate construction of the control structure. Temporary impacts to Lake E resulting from the construction of the control structure would be addressed through the use of sediment and erosion controls to prevent possible sedimentation and turbidity that may arise during the construction activity. The placement of a control structure in Lake E would create very minor permanent impacts resulting from the loss of the footprint of the control structure. These impacts would be insignificant. Due to the very minor nature of these proposed impacts, no mitigation would be required, and no loss of wetlands would be required to be recorded on the Wetlands/Surface Water Table. Construction of SW-1 would not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District. No secondary impacts would be expected from construction of SW-1. No unacceptable cumulative impacts upon wetlands and other surface waters would be expected to occur as a result of construction of SW-1. The project area includes .71 acre of herbaceous/forested wetlands (WL-1) in the northwest corner. The potential for secondary impacts is addressed by an existing fence surrounding WL-1, which eliminates concerns for secondary impacts to this wetland area. No adverse impacts would be anticipated to occur to these wetlands, and no adverse secondary impacts to the water resources would be expected to occur as a result of the proposed modifications themselves. The proposed modifications would not cause unacceptable cumulative impacts to wetlands and other surface waters. Class II or Class III waters would not be affected by the proposed modification project. Therefore, Rule 40D- 4.302(1)(c) is not applicable. No seawalls, lagoons or estuaries are involved in this project. Therefore, Rule 40D-4.302(d) is not applicable. The proposed modifications would not be contrary to the public interest. Relocation of a control structure and enhancement of the Basin B portion of the system would create no significant change in impacts. The proposed modifications constitute a slight improvement over water quality from the original permitted design. No threatened or endangered species were identified for Angler’s Green. The proposed relocation and construction of the Lake E control structure, preservation of onsite wetlands in the northwest corner, and re-design of Pond B-1 present no environmental concerns. Consequently, the proposed modifications do not create any potential for adverse effects regarding the conservation of fish and wildlife, including endangered or threatened species or their habitats. The proposed modifications do not adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The project area does not involve navigable waters and does not affect the flow of water or cause harmful erosion or shoaling. Hence, Rule 40D-4.302(1)(a)(3) does not apply to this permit modification application. There are no significant historical and archaeological resources involved in this Project. Therefore, Rule 40D-4.302(1)(a)(6) is not applicable to this permit modification application. The proposed modifications would not be contrary to the public interest; they would not adversely affect the public health, safety or welfare or the property of others. No adverse impacts are anticipated to occur as a result of the proposed modifications. The proposed modifications maintain the historic water elevation for Lake E and maintain historic flows for the project area. The modified system should also provide some improvement in water quality.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order denying Century's permit modification application designated ERP No. 44000227.002. DONE AND ENTERED this 8th day of July, 2002, in Tallahassee, Leon County, Florida. ________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2002. COPIES FURNISHED: Joseph D. Magri, Esquire Merkle & Magri, P.A. 5510 West LaSalle Street Tampa, Florida 33607-1713 Joseph P. Mawhinney, Esquire Clark, Campbell & Mawhinney, P.A. Post Office Box 6559 Lakeland, Florida 33802 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E. D. Sonny Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
The Issue Whether the Southwest Florida Water Management District should issue the Individual Environmental Resource Permit (the "Individual ERP," the "ERP" or the "Permit") applied for by Entryway Developers, LLC ("Entryway")? The ERP was preliminarily issued by the District as Draft Permit No. 43024788.000 (the "Draft Permit"). If it becomes final, it will allow Entryway's successor in interest, Westfield Homes of Florida ("Westfield") both to construct a new surface water management system in service of a proposed subdivision, known as Ashley Glen, in southern Pasco County, and to conduct dredge and fill activities on site.
Findings Of Fact The Parties The Petitioner in this proceeding is Dr. Octavio Blanco. A veterinarian, citizen of Florida and a resident of Pasco County, he holds a property interest (described below) in property immediately adjacent to Ashley Glen. One of the three Co-Respondents, the Southwest Florida Water Management District (the "District" or "SWFWMD") is a public entity created by Chapter 61-691, Laws of Florida. It exists and operates under Chapter 373, Florida Statutes (the "Florida Water Resources Act of 1972" or the "Act"). The District is the administrative agency charged with the responsibility to conserve, protect, manage and control the water resources within its geographic boundaries. It does so through administration and enforcement of the Act and the rules promulgated to implement the Act in Chapter 40D, Florida Administrative Code. Entryway, the second of the three Co-Respondents, is a limited liability company and the original applicant for the Permit. Westfield, the third of the Co-Respondents, is a Florida general partnership and the current owner of the Ashley Glen Project. If the Permit is issued by way of a final order, Westfield will be the permit-holder. An application for an Individual ERP must be signed by the owner of the property or the owner's authorized agent. If signed by an agent, a letter of authority must be submitted by the owner. See Fla. Admin. Code R. 40D-4.101(2). Westfield was not the owner of the property on the site of the Project at the time of the filing of the application. Entryway was the owner. Westfield filed with DOAH a letter of authority received from Entryway.2 The letter authorized Westfield to sign the Individual ERP application. Ashley Glen and the Blanco Property "Ashley Glen-Villages 2-5" ("Ashley Glen" or as it is referred to in the Draft Permit, the "Project") is a 266.36-acre residential subdivision planned to be divided into more than 400 lots. Located in southern Pasco County, the subdivision is on the north side of State Road 54, approximately three miles west of US 41 and less than 1000 feet east of the Suncoast Parkway. To the north, Ashley Glen is bounded along an abandoned railroad right-of-way. The right-of-way extends beyond the northwest and northeast corners of the property in both easterly and westerly directions. There are 72.69 acres of surface waters and wetlands on the Ashley Glen site. Among the 19 isolated and contiguous wetlands on the property is a portion of a Cypress-forested wetland system (the "Cypress-forested Wetland"). The Cypress-forested Wetland was described at hearing by one of Westfield's experts as "a large wetland" (tr. 41) that is typical of the area. As with similar wetland systems throughout the state, the Cypress-forested Wetland undergoes "seasonal drawdowns and dry-outs, and in the wet season . . . flood[s] out to the edges and even beyond in certain storm events." (Tr. 43). The portion of the Cypress-forested Wetland that is on the Ashley Glen site is identified by the Permit as "Wetland A3." Wetland A3 is 29.94 acres. The entire Cypress-forested Wetland system south of the railroad bed of which Wetland A3 is a part is at least twice as large. Most of the remainder of the Cypress Wetland south of the railroad right-of-way is on the Blanco Property. It appears from exhibits used during the hearing that the Cypress Wetland originally extended north of where the railroad right-of-way now lies in its abandoned state. The connection was indicated also in the testimony of Mr. Courtney (Westfield's "wetlands" and "ERP" expert3) when he stated that there was potential for contiguity with systems to the north. Aerial photographs used at hearing indicated that the Cypress- forested wetland system was, indeed, part of the contiguous wetland system to the north of the railroad bed. The contiguity between the Cypress-forested Wetland and the system to the north was confirmed by Dr. Baca, Petitioner's wetland ecologist, on the basis of on-site examinations. Dr. Baca believes the Cypress-forested Wetland to be part of a much larger system that extends northward and to the west and that is contiguous with the Gulf of Mexico. He determined that despite the establishment of the railroad bed, the Cypress-forested Wetland remains connected to the contiguous wetland system to the north by way of pipes under and through the bed. Drainage on the Ashley Glen site is primarily from south to north with significant contribution from a drainage basin to the east. Drainage from the south is channelized by a ditch that runs nearly the length of the property from Wetland C12 at the southeastern tip to Wetland A3 near the site's northern boundary. Drainage from the eastern basin toward Wetland A3 is intercepted by the ditch. The result is that the drainage from the east is captured before it reaches Wetland A3 and drainage from the south bypasses Wetland A3 to be discharged northward at the railroad bed so that all of the drainage is "short-circuited by [the] ditch to the actual discharge location of [Wetland] A3." (Tr. 41). The discharge location from Wetland A3 was more precisely described at hearing by Mr. Courtney as "the confluence of [Wetland] A3 and the railroad bed where [the ditch] discharges off-site flows and [the] easterly to westerly flows into pipes that go under [the] old railroad bed " (Tr. 40-41). This testimony supports Dr. Baca's confirmation of the connection between the Cypress-forested Wetland and the contiguous wetland system north of the railroad bed. To the west of the ditch and the Ashley Glen site is the Blanco property. It has been held by Dr. Blanco's family for a period spanning six decades. Its boundaries roughly form an elongated narrow rectangle. From the eastern and western ends of 400 feet of frontage on State Road 54 (the southern boundary of the Blanco Property) the eastern and western boundaries run parallel of each other approximately 8000 feet to the north where the northernmost boundary of the Blanco Property meets the abandoned railroad right-of-way. The majority of the northern half of the Blanco Property is in the Cypress-forested Wetland. In addition to the drainage from the south and the east received prior to the digging of the ditch, the wetland receives drainage from the west which traverses the property between the Blanco Property and the Suncoast Parkway. With the exception of one acre on which sits the house in which Dr. Blanco's mother lives, the Blanco Property is presently the subject of a Land Trust Agreement. Through this unrecorded instrument, dated December 19, 1996, Dr. Blanco has an ownership interest in the property. Dr. Blanco's concern for the property pre-dates his ownership interest conferred by the trust agreement. He lived on the property from the age of three until he left for college. During that time, he "constantly" (tr. 374) observed many species of wildlife in the Cypress-forested Wetland, as he explained at hearing: Starting with mammals, I observed many deer, foxes, coons, coyotes, squirrels, ground squirrels, fox squirrels. And then numerous bird species . . . from the sandhill cranes to various storks and herons and egrets and . . . [m]ostly aquatic birds . . . many hawks [and] an occasional eagle [as well]. A lot of animals, such as frogs and snails. The apple snails particularly I've noticed. I've always admired them and the way they lay their eggs up on the water line. So, I've noticed them for years out there [along with] [m]any snakes [and], alligators. Id. Over the years, Dr. Blanco has observed changes, especially among the wading birds and the aquatic species: You see less and less of them. The periods where there's consistent water to support their life has grown shorter as time goes by. And this time of year where there's water, the life is pretty abundant. But then, in recent years, I've noticed that the time period seems to be getting shorter and shorter. And then . . . when I go out there, I use all my senses, not just my eyes, and the place just sounds different when it's full of life versus when it's, essentially, dried up. (Tr. 374-375). Just as in any typical cypress-forested wetland, during wet periods, the cypress trees in the Cypress-forested Wetland "will be inundated and the ground will be saturated to the edge of the uplands." (Tr. 45). During these times, the majority of the storms that deliver rain are considered small, that is, rainstorms of below half an inch. Much bigger storms, of course, also contribute to the water that stands in the wetland from time to time. "By the same token, in droughts or dry seasons, the water levels . . . typically drop to at or below the ground level." (Tr. 46). The dry periods, if part of the natural cycles between hydro-periods, contribute to the health of the system. For example, during dry periods nutrients are oxidized, one of the functions of a wetland. In 2002, the Cypress-forested Wetland was dried out from mid-March at the end of the dry season until the end of July, a period of drought. The dry season and the occasional drought contribute, of course, to a lowering of the water table below the surface of the wetland. But the water table may also be lowered by the pumping of water from wellfields in the area, one to the northwest of the site, another to the southeast. That pumping is monitored by the District. The District takes action to minimize damage from any lowering of the water table caused by pumping water from the wellfields. Apple snails have been recently observed in the Cypress-forested Wetland. "Apple snails are unique in that they're the sole food of the snail kite, an endangered species." (Vol. III, p. 61). There are snags and dead trees in the Cypress-forested Wetland as well. Used by many birds and mammals, they provide particularly good habitat for woodpeckers. The Cypress-forested Wetland is not a pristine wetland. The establishment of the railroad bed had an impact. In its abandoned state, the railroad bed continues to have an influence on its discharge to the north. The Suncoast Parkway "might have had some impact." (Tr. 53). Cattle grazing on both the Blanco Property and the Ashley Glen site has had an impact on the herbaceous ground cover layer and on the wetland's water quality although it is unlikely that the cows grazed in the Cypress-forested Wetland. ("Generally, [cows] don't graze on . . . wetland plants, because they're either bitter tasting or [have] poor textures . . . .") (Vol. III, p. 58). The well- fields in the area have had historic impacts mitigated, as mentioned, through implementation of an area-wide hydrology restoration plan by SWFWMD. The most significant impact to the Cypress-forested Wetland resulted from the combination of the construction of State Road 54 and the ditch's channelization of stormwater runoff migrating through the center of the Ashley Glen site. Had the property not been ditched, the stormwater runoff and any other migrating water would have been conveyed by sheet flow into the Cypress-forested Wetland. Despite the varied impacts over the years, the Cypress-forested wetland remains ratable today "as a mid to higher level quality wetland for the area." (Tr. 43). The Draft Permit Application for the permit was submitted on February 7, 2003. After eight formal submittals of information in response to questions by the District, a Draft Permit was issued on December 16, 2003. The Draft Permit lists the "Project Name as Ashley Glen - Villages 2-5" and otherwise refers to Ashley Glen as the "Project." The Permit allows the Project to fill 43.75 acre-feet of the 100-year flood plain on the Ashley Glen site. At the same time, the Permit allows 51.98 acre-feet of excavation on- site. Project construction will result in the filling of 1.61 acres of forested and non-forested wetlands and secondary impacts to at least one of the isolated wetlands. The permit speaks to secondary impacts to another of the wetlands and surface waters on-site and finds that there are none: "[O]ne isolated wetland, 0.37 acre in size, and 2.81 acres of surface waters will be impacted, however, since these areas provide no significant habitat functions, no habitat mitigation will be required." District Ex. 5, pgs. 3-4. The mitigation for the impacts that require mitigation, in the District's view, includes creation of 2.89 acres of wetlands and preservation of 65.32 acres of wetlands. The Permit also authorizes the construction of a new surface water management system (the "SWM System") to serve Ashley Glen. The Surface Water Management System The SWM System consists of six wet detention ponds, four isolated wetland treatment systems, an attenuation pond, and an associated conveyance and discharge structure. The wet detention ponds and the isolated wetland treatment systems were designed in accordance with Section 5.2 of the District's Basis of Review. Westfield Ex. 6 depicts the "generalities of the [SWS] [S]ystem in [Ashley Glen's] built environment." (Tr. 56). Key pipe areas are shown in white on the exhibit. For example, the existing ditch is re-located slightly to the east; the exhibit shows in white where water is piped from the northern terminus of the new, re-located ditch into Pond P11. This piped water will consist of drainage from the south that is now conveyed by the existing ditch and drainage from the east that passes through Wetland W2 and Wetland W1. In keeping with the historical drainage pattern that preceded the existence of the ditch, drainage from the basin on the eastern part of the property that passes through Wetland F4, Wetland E4, and Wetland D5 will also be discharged westward into P11 to be discharged at a point toward the southernmost part of Wetland A3, the wetland's headwaters. The discharge from P11 was described by Mr. Courtney at hearing: The discharge of P11 was placed up in the headwaters of A3 [where] . . . the [existing] ditch short-circuited the discharge of . . . waters to the discharge point of A3. [An SWM System] . . . control structure is placed at the headwaters of A3, a much better situation for A3, given that the quantities and quality of water is going to be the same or better, because water is now going to be reintroduced to the headwaters of A3 as opposed to short- circuiting it. (Tr. 57). Mr. Courtney estimated that one-fourth to one-half of the surface water flows on the property coming from the south and the east were routed unnaturally by the ditch to Wetland A3's discharge point at the railroad right-of-way at the northernmost point of the wetland. The project re-routes these waters to a point near the headwaters of Wetland A3 (in its southernmost part). Surficial flow, therefore, that had by- passed Wetland A3 because of ditching will be routed by the SWM System to the headwaters of Wetland A3 after treatment and attenuation provided that the attenuation pond reaches a high enough elevation. Any water discharged to Wetland A3 from the attenuation pond will flow in a northerly direction (the historical flow pattern) through the wetland to the point of discharge at the railroad bed. Provided that the restored flow is of good quality, restoration of the hydrology is a benefit to the system. On this point, Dr. Baca agreed with Mr. Courtney. The Cypress-forested Wetland on the Blanco Property and the wetland system that extends north of the railroad bed "are dependent upon the treatment, the care and the protection afforded the wetland on the Ashley Glen property." (Vol. III, pg. 60). Wetlands B8 and D3, surrounded by developed lots, are served by detention ponds. Internal drainage from the lots is collected from street systems. Pop-off from the systems goes either directly to a detention pond and then a wetland or to a sump and then to a wetland. After treatment, the drainage is conveyed to Pond P11. Pond P10, a relatively small detention pond, is situated at the headwaters of Wetland A3. The pond treats runoff and flows into Wetland A3. Pond P11, although not a stormwater detention pond and for which the applicant receives no treatment credit, is nonetheless "a good backup treatment mechanism for stormwater that is meeting state water quality standards as discharged from all of the drainage systems in the uplands." (Tr. 59). Through the attenuation process, moreover, it will perform some treatment that meets or exceeds the minimal requirements of ERP permitting. After attenuation and whenever the pond reaches a certain elevation, waters are discharged into Wetland A3. A major point of focus of Dr. Blanco's case is the excavation of the attenuation pond and its interaction with Wetland A3. The attenuation pond is designated in the Draft Permit as Pond P11 ("P11"). P11 If excavated according to present plans, P11 will be 25 feet deep at its deepest point (less than one percent of the pond). "[T]he deepest areas run along the corridor that goes between [Wetlands] B6 and D5." (Tr. 166). The shallowest areas of P11 are along the western edge of the pond where a shelf will be constructed. The surface area of the pond will take up approximately 40 acres. (See endnote 4). The Respondents refers to P11 as a "100 year flood plain compensation area." (Tr. 116). The Permit's "Water Quantity/Quality list of ponds denominates P11's "treatment type" as "[a]ttenuation" which would make it an attenuation pond. Dr. Blanco prefers to call P11 a borrow pit asserting that one reason for its excavation is to obtain fill for the development. Dr. Blanco's labeling of P11 as a borrow pit appears to be correct since the District referred to it as a borrow pit and since significant dredging on site is allowed by the Draft Permit. Whether Dr. Blanco's and the District's nomenclature for P11 is accurate or not, there is no dispute that P11 is part of the stormwater management system. The Draft Permit ascribes to it the function of attenuation: the process by which flow is slowed that allows compounds to be reduced in concentration over time. It is a significant component of the SWM System. Conveyance of water of sufficient quality that has undergone attenuation from the pond into a point near the headwaters of Wetland A3, moreover, poses the potential to improve the wetland's hydrology. Dr. Blanco asserts that fill needed by the Project could be obtained off-site. In other words, P11 does not need to be excavated to obtain the fill. But obtaining fill material is not the only purpose of P11 since it also provides retention and attenuation functions. Dr. Blanco's main concern with P11, however, is not its status as a borrow pit. His concern is based on three of its characteristics, the latter two of which relate to its nature as a borrow pit: 1) its placement, excavated directly adjacent to Wetland A-3; 2) its depth, at its deepest point, 25 feet; and 3) its size; close to 40 acres in open surface area.4 Due to sheer size of P11's open surface area, significant volumes of water in P11 will be lost routinely to evapo-transpiration. When the water level in P11 is below the water level in Wetland A3, moreover, the pond will draw water out of the Cypress-forested Wetland. Whenever the water is below its control elevation, it will take a considerable volume of water to raise it to the elevation appropriate to protect Wetland A3 and the rest of the Cypress-forested Wetland. Reaching the control elevation will occur only when all available storage has been filled and contributions of water (from rainfall, stormwater run-off, or by way of conveyance through the SWM System or otherwise) exceed loss through evaporation and seepage, downward and lateral. The parties disagree as to whether the applicant has provided the assurances necessary to justify issuance of the Permit. The most contentious point is about the effect P11 will have on Wetland A3 and the extended Cypress-forested Wetland. Westfield (with the support and concurrence of the District) bases its case for assurances, in the main, on a type of computer modeling. Dr. Blanco, on the other hand, presented testimony that criticized the computer modeling that was done in this case in support of the application. That computer modeling is known as "Interconnected Pond Routing" or "ICPR." ICPR Interconnected Pond Routing ("ICPR") is a type of hydrological computer model that takes into account surface water flows. It does not take into account groundwater flows, downward or lateral seepage or the lowering of the water table by well-field pumping. It models the surface water hydrology of a site as it might be affected, for example, by detention basins and channel pipes. It models pre-design of a site to be developed and then post-design of a site prior to actual development to provide comparative analysis. It is also a predictive tool. As with any predictive tool, its accuracy can only be definitively determined by observation and collection of data after-the-fact, in this case, after development. ICPR modeling is used in particular for stormwater and surface water management systems. For that reason, it was used by Westfield to support the ERP application in this case. Before ICPR modeling of the Ashley Glen site and the surrounding area was conducted, topographic information was collected by survey. The results of the survey and the modeling that followed resulted in several of the exhibits used by Westfield at hearing. For example, the topographic information and ICPR were used to produce a post-development map (Westfield Exhibit 12). In addition to sub-basins reflected in Westfield Exhibit 11 that relate to the hydrology of the site the map shows two pods (a "Southern Pod" and a "Northern Pod") of development. Approximately 400 feet of the Southern Pod will abut Wetland A3 on the pod's western edge. The location of the Southern Pod will necessitate re-location of the existing ditch. The Northern Pod, in contrast, will be separated from Wetland A3 by both P11 and the proposed road. The Northern Pod, the larger of the two proposed pods of development, is farther from Wetland A3 although it is separated from Wetland C2 solely by the proposed road. The sub-basins on Westfield Ex. 12 are reflected in Westfield Ex. 11, the result of pre-design modeling that revealed three off-site basins composed of 218, 544 and 908 acres. Each sub-basin corresponds to a detention pond designed to assist in enhancing the site's post-development hydrology. The modeling was also used to introduce P11, Westfield's proposed 100-year flood compensation area that would act as a detention pond for attenuation. Each sub-basin used in the modeling exercises covers an area for which there is information relative to size, curve number and time of concentration, all of which was entered into the modeling. Kyle Cyr, a registered P.E. in the State of Florida, and an expert in ICPR and stormwater modeling, described at hearing what happened next: The input is then directed towards a node, which we call the wetlands of the node or detention ponds. And then each node is interlinked by either channels, pipes or weirs, swells, drop structures. * * * [W]e check the models for pre and post to make sure there's no adverse impacts to off- site properties. No additional flows are allowed to leave the site. * * * We end up with flows, staging elevations for each node. . . . [The result is] [a] drainage report. [The] drainage report has a pre- and post- analysis in it. * * * [The] drainage report [is used] to design the site, to design the elevations and grading of the roads and [then] the lot and culvert sizes. (Tr. 147, 148). The drainage report and the information with regard to the design was then submitted by Westfield to the District together with a "pond wetland hydrology interaction report" and modeling with regard to "several minor storm events, a one-inch, a two-inch and a mean-annual event run . . . like a normal rainfall in the area." (Tr. 150). Various hydrographs for storm events were prepared by Westfield. In general, storm events should assist the hydrology of Wetland A3. The SWM System poses the potential that in storm events, P11 will discharge water to Wetland A3. The discharge pre-supposes that P11 will be at an appropriate elevation to allow the discharge with the addition of the surface water conveyed by the system into the pond. Hydrographs of the time versus inflow into Wetland A3 for pre-development and post-development conditions for the storm events were prepared by Westfield. For the one-inch storm and the mean-annual events, provided the pond is at an appropriate elevation prior to the storm (a proviso applicable to all of the hydrograph information), it is reasonably expected that there will be slight increases in peak flow after the development than before. For the two-inch storm, it is reasonably expected that there will be a slight drop in peak flow. None of the changes should have a negative effect on Wetland A3 so long as P11 maintains appropriate water elevations so that water has not been drawn out of the wetland that would have sustained the wetland had P11 not been excavated.5 Hydrographs that depict expected volume over a 72-hour time frame were also prepared based on the same storm events. During the applicable time frame for two-inch and mean-annual events, it is reasonably expected that there will be a slight increase in the volume of water entering Wetland A3 after development. As the result of a one-inch storm event, it is reasonable to expect there to be a slight decrease in volume over the 72 hours. None of the changes are expected to have a negative effect on Wetland A3, again, provided that appropriate water elevations are maintained in P11. Finally, hydrographs were prepared for time-versus- inflow for 25-year and 100-year storm events both pre- development and post-development. The modeling showed that, after development, "[a]djacent properties will not experience the higher flood level [that] they have in the past." (Tr. 156). The decrease is due to the holding back of water in detention ponds after development that will flow off at a slower rate than under pre-development conditions. The hydrographs show the difference in water flowing onto the site and Wetland A3 after the development under typical conditions in comparison to before development is slight. Water levels in Wetland A3 at times of typical storm events, after development, therefore will not be affected in any meaningful way by the SWM System so long as P11's water level is maintained at an appropriate elevation. In accordance with Section 4.2 of the District's Basis of Review, the SWM System is designed so that "[o]ff-site discharge is limited to amounts that will not cause adverse off- site impacts." Section 4.2 of the Basis of Review. See District Ex. 4, CHAPTER FOUR, pg. 1. The allowable discharges from the Project were established as a pre-development peak discharge rate from a 25-year, 24-hour storm. The modeling showed that the post-development discharge rates do not exceed the pre-development peak discharge rate. The ICPR modeling did not consider the outfall from Wetland A3 that occurs at the abandoned railroad right-of-way on the northern end of Wetland A3. As explained by Mr. Cyr, "Wetland A3 is . . . [a] boundary condition. That's where our model stops." (Tr. 198). The structure at the outfall at the northern end of Wetland A3 consists of three 42-inch pipes. Had the outfall been considered, Mr. Cyr testified, it would have had no effect on the results of the modeling. The understanding of the effect on the hydrology of the site provided by ICPR modeling conducted by Mr. Cyr, the drainage report and the other aspects of the information (such as the hydrographs and the design and information related to water quality) gathered and produced by Westfield support the District in its decision to issue the Permit. But there is a criticism of the modeling. It was presented by Dr. Blanco's witness: Mr. Vecchioli, an expert in hydrology as it relates to groundwater. The Site's Hydrogeology The area in which Ashley Glen, the Blanco Property and the Cypress-forested Wetland sit was described by John Vecchioli, a licensed geologist in Florida and an expert in hydrogeology, as: a low-lying plain of limited altitude . . . underlain by some 20 to 50 feet of . . . fine to very fine sand, sometimes silty, sometimes containing a clay layer or two. And then beneath that blanket of sand is . . . the upper Floridan [A]quifer, . . . a thick deposit of limestone, which also constitutes the primary source of drinking water for the area. (Tr. 93). Connected with the surface waters of the area so that the aquifer and the surface waters function as a single system, the Floridan Aquifer in Pasco County is known as a "leaky- confined aquifer." Id. Its "leaky-confined" nature means that: [The Floridan is] not firmly capped by thick layers of clay, but rather by sand deposits that although . . . more pervious than the layers of clay, still impede the exchange of water between the two systems. Id. The source of the water in the upper Florida Aquifer is mainly rainfall because the Aquifer "intercept[s] waters from the surface." (Vol. III, Tr. 95). Much of the water in the upper Floridan is recharged, "very young water . . . indicating that it has a good connection with the surface." Id. The interaction between the surface water and ground water was shown by a study that "showed . . . 93% of the water derived from . . . public supply wells [was] primarily from capture of water from the surface environment." (Vol. III, Tr. 94). Furthermore, "[t]here's some 133 million gallons per day pumped from a combination of wellfields in [the] area [of Ashley Glen and the Blanco Property]." Id. The documented adverse impacts of the pumping in the area has been limited to "drying up the surface, capturing water from streams, pulling down . . . wetlands." Id. The interaction between the surface waters and groundwater in and around Ashley Glen leads to Mr. Vecchioli's opinion that the effects of the SWM System on groundwater, and in particular the effect of Pond P11, "is a very important aspect . . . almost totally ignored [by Westfield and the District.]" Id. In other words, ICPR, because it does not account for effects on groundwater, is a flawed model for determining the impact on all water resources in the area. It did not consider "downward leakage as a means for water to escape from the pond [P11]." (Vol. III, p. 96). The omission is critical because the Floridan aquifer system has a potentiometric surface that's some 10 to 20 feet lower than the water table or surface environment most times during the year. The meaning of this was explained at hearing by Mr. Vecchioli: [T]here's a downward gradient where water will flow from the land surface in the vicinity of Pond 11 [Pll] down into the Floridan. When [Westfield's consultants] did the evaluation of the wetland-pond interaction, they ignored this. They essentially said that because we don't intend to penetrate the confining layer, which SWFWMD does not want done, that there won't be any leakage out of the pond vertically. This is not correct . . . . [I]n creating the pond . . . 25 feet or roughly half of the confining bed, or a greater amount, [will be removed], so this makes it much easier for water to move from the water table at land surface down into the Floridan . . . . Id. The failure to account for downward leakage or "vertical seepage" is significant. "[I]t . . . creates the uncertainty as to whether P11 is going to receive enough water to stay saturated to the top for much of the year." (Vol. III, Tr. 96- 97). If the water level in P11 does not stay at the control elevation, "there will be a downward gradient that prevails from the adjacent wetland [Wetland A3] into the pond and part of this will leak out into the Floridan aquifer, in addition to additional water lost by evaporation from the open surface of the pond. [This] . . . will create a deficiency in storage for the pond." (Vol. III, Tr. 97). Furthermore, with the removal of the sand during excavation and the replacement of it with water, "the material the water [that is contributing to seepage] has to move through is less, so you have much less energy lost to frictional forces." (Vol. III, Tr. 115). The result is that vertical seepage will be more likely to occur after the pond is excavated than before. In other words, it will be much easier for water to move from the surface into the Floridan. The seepage, moreover poses difficulties in maintaining elevation in P11. Evaporation from the pond will be greater than evaporation from the wetland. If water in the pond is not at the appropriate elevation, water will be drawn from Wetland A3. The wetland will be drier than under natural conditions. Mr. Vecchioli stopped short of predicting that downward leakage would damage the wetland; he stated only that damage would occur if P11 functions as he thought it "might." (Vol. III, Tr. 106). In essence, Mr. Vecchioli's opinion does not stand as a projection of certainty that the wetland will be damaged. Instead, it presents a factor that was not considered by Westfield in its analysis and by the District in its review. The District counters Mr. Vecchioli's opinion with the fact that the depth of the excavation is in compliance with the District's Basis of Review and that it will not remove what SWFWMD considers to be a "primary retarding material or section," that is, a layer of clay. But it will remove much of the sand. Sand, while it inhibits downward seepage from the surface into the aquifer, is nonetheless not impermeable; it is not an aquitard. Seepage, therefore, will occur despite compliance with the Basis of Review (as explained, below) with regard to depth of excavation and aquitards. Depths of Excavation and Aquitards Subsection 6.4.1.b of the Basis of Review addresses depths of excavation: 6.4.1 Dimensional Criteria (as measured at or from the control elevation). * * * b. Depth - The detention or retention area shall not be excavated to a depth that breaches an aquitard such that it would allow for lesser quality water to pass, either way, between the two systems. In those geographical areas of the District where there is not an aquitard present, the depth of the pond shall not be excavated to within two (2) feet of the underlying limestone which is part of a drinking water aquifer. District Ex. 4, CHAPTER SIX, Pg. 2 The term "aquitard" is not a term that appears in the "Explanation of Terms" section of the Basis of Review. See District Ex. 4, Section 1.7, CHAPTER ONE, pgs. 2-6. The District does not consider sand to be an aquitard. Clay, on the other hand, is an aquitard. As explained by Mr. Ritter at hearing, the term aquitard is "defined as a somewhat impermeable layer that if you were to cut through that, that would be considered a breach." (Vol. III, Tr. 128). If the District were to consider sand an aquitard, there is nowhere in the District that a pond could be excavated in compliance with subsection 6.4.1.b of the Basis of Review. The Ashley Glen proposal for the excavation of Pond P11 to a depth of 25 feet complies with the Basis of Review. The depth of excavation of the pond does not come within two feet of the underlying limestone. Nor does it breach a clay layer or any other aquitard. Compliance with the "depth of excavation" and "aquitard" provisions of the Basis of Review does not cure the problem with the placement of Pond P11: adjacent to Wetland A3. The problem was addressed (although not resolved) by a post- Draft Permit correction that showed more water reaching Wetland A3 by way of the SWM System than had been shown in the original modeling. Post-Draft Permit Correction The modeling described at hearing included a correction after the issuance of the Draft Permit. The correction was made because of "an additional off-site contributing area east of the project that was not considered in the original flood study prepared by the [applicant's] consultant . . . ." (Tr. 222). The model was updated to incorporate the additional contributions that had not been considered prior to the issuance of the Draft Permit. After the additional data was introduced, the modeling suggested changes that Westfield made to its proposal. On the north end of the Project, a conveyance channel had to be enlarged. Additional culverts were proposed beneath the proposed roadway to reduce flood impacts from the additional flows entering from the east that had been overlooked. Further evaluation by the District ensued in the wake of the additional modeling. Ultimately, in the process that preceded the final administrative hearing, the application was determined by the District to "still me[e]t the conditions for issuance and [staff, therefore] recommended approval." Id. In other words, this additional water would not cause too much water to flow into Wetland A3 and cause adverse impacts from flooding. The additional data demonstrates that there will be more water flowing through the SWM System and into Wetland A3 then originally projected but not too much so as to cause adverse flooding impacts. The additional water, however, does not cure the problem that Pond P11 poses for Wetland A3 as explained by Mr. Vecchioli due to the wetland's location, depth and open surface area. Location, Depth and Open Surface Area In the final analysis, while there may be nothing out of compliance technically with the depth of P11 and the size of its open surface area, when these factors are combined with the location of P11, adjacent to Wetland A3, there is a problem: the potential for adverse impact to Wetland A3 and the extended Cypress-forested Wetland of which it is a part. Seepage and evaporation will make it difficult to maintain the water levels in P11 necessary for the pond to discharge into the wetland. Furthermore, when the water table is down, whether due to drought, pumping activities in the region or for some other reason, and P11 is not at an appropriate elevation, it will draw water out of Wetland A3. Seepage and evaporation have the potential to exacerbate the drawdown. Seepage promoted by the presence of Pond P11 was not taken into account in the modeling done for the project. Without consideration of all the factors material to the site that should enter an appropriate calculation, there is not reasonable assurance that Wetland A3 and the Cypress-forested Wetland will not suffer adverse impacts from the SWM System. Monitoring Water Quantity Section 3.2.2.4(c) of the Basis of Review states: Whenever portions of a system could have the effect of altering water levels in wetlands or other surface waters, applicants shall be required to monitor the wetlands or other surface waters to demonstrate that such alteration has not resulted in adverse impacts, or to calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules, and reporting requirements shall be specified in permit conditions. District Ex. 4, Chapter Three, P. 6. The District determined that the routing analysis and volume calculations with regard to the hydrology on-site and the hydrology of the wetlands provided by Westfield show that there will not be significant or frequent negative changes in wetland hydrology on site. The District concluded, therefore, there is no necessity to require monitoring of wetland water levels in the Permit. The District's determination, based as it is on the ICPR modeling provided by Westfield, does not withstand the criticism by Mr. Vecchioli. If the District, in the face of the evidence of record and Mr. Vecchioli's criticism, nonetheless decides that reasonable assurances have been made by Westfield, the District should require monitoring pursuant to the subsection 3.2.2.4(c) of the Basin of Review; without doubt, the excavation of Pond P11 adjacent to Wetland A3 has at least the potential to affect water levels in the wetland system. Water Quality The depth of P11 poses some dangers to water quality. Generally, the deeper a Florida lake, the more anoxic and "the more likely you have . . . nutrients such as phosphorus, binding up in the [waterbody] and then being released later" (vol. III, p. 64) to affect the waterbodies negatively. Wetlands surrounding P11, acting like "sponges" would provide treatment that removes nutrients and locks up chemicals to reduce their toxicity would improve water quality. But the District's rules do not require biological treatment for nutrients as part of the design of a surface water system. Given its nature as an attenuation pond, P11 will act like a secondary sediment sump. This aspect of P11 contributes no treatment credit to the application, as mentioned earlier, but any water entering Wetland A3 from P11 will have been treated by an SWM System so as to meet the District's requirements. Other measures will improve water quality on- site. One of such measures, for example, is that cattle on-site will be removed. Other measures related to water quality were examined by District staff. As he testified on behalf of the District, Mr. Sauskojus "checked to see whether or not . . . erosion control was located between any construction in the wetlands and/or buffers provided." (Tr. 288). He also checked to see that structures through which stormwater flowed into wetlands were equipped with skimmers. The inquiries led him to conclude as an expert in environmental resource permitting that water quality would not be adversely affected by the SWM System. Monitoring of water quality by the District may be done after the Permit has been finally issued and the SWM System is constructed. The District so provides in the Basis of Review. Section 5.13 of the District's Basis of Review states: Staff reports and permits for projects not requiring monitoring at the time of permit issuance will include a statement that water quality monitoring will be required in the future if necessary to ensure that state water quality standards are being met. This should not be construed as an indication that the District is contemplating the implementation of a program of intensive water quality monitoring by all permittees. District Ex. 4, Chapter Five, P. 6. Assurances Other than ICPR P11's Shelf Westfield proposes creation of a shelf along the western boundary of P11. It is approximately 150 feet wide with a slope of "a hundred to one . . . a flat area . . . right around the seasonal high elevation of [the] pond." (Tr. 158). Just as it does not claim treatment credit for P11, Westfield does not claim treatment credit for the shelf. There will not be any planting on the shelf; nor is it designed to serve as a littoral zone. A "shelf is . . . in some cases the final location for . . . the filtration [and] the protection for the wetland[;] . . . it acts as a wetland buffer for the mature forested wetland." (Vol. III, p. 59). But the shelf to be provided by Westfield is "just . . . a secondary shelf to help the interaction between the wetland and the pond." (Tr. 159). Without vegetation, the shelf provided will be of insignificant benefit. Dewatering During Construction To prevent dewatering of Wetland A3 during construction, a dewatering plan must be provided the District before excavation of P11 begins. The Permit contains a general condition that if the contractor "decides to use dewatering" (tr. 223) of a wetland, the District must be notified so that an assessment of adverse effects on the wetland can be made.6 Wetland Impacts: Avoidance, Minimization and Mitigation Direct impacts to wetlands include excavation or filling: events that entail physical construction in the wetland. The Project proposes direct wetland impacts to 1.61 acres of wetlands and 2.81 acres of surface waters or wet ditches. With regard to impacts, an applicant must first attempt to avoid them. If that fails, the applicant must minimize the impact. Finally, the applicant must propose mitigation for impacts. Direct Impacts to Wetlands In addition to the secondary impacts caused by the Project's upland activities to the many wetlands on-site that are buffered or that were not buffered and that have to be offset by mitigation, Wetland B12, a wetland little more than one-half acre in size, will receive both direct and secondary impacts. The direct impact is caused by the proposed road. The direct impact is unavoidable because of road alignment required by the Department of Transportation, "a human health and safety issue [that relates] to State Road 54." (Tr. 64). The direct impact to Wetland B12 takes up .15 acres, leaving .43 acres of the wetland without direct impact. (At the same time, Wetland B9 is avoided by the curve in the proposed road and the road is aligned to avoid direct impact to Wetlands B6 and D5.) Wetland B12 is exempt from fish and wildlife review because it "is not connected by a ditch or overland flow to a larger than half-acre wetland at seasonal high " (Tr. 283). The value of Wetland B12, as an isolated wetland, is not as high as the value of Wetland A3. It has also suffered de-watering and encroachment by exotic species. Wetland C12, just down the proposed road from Wetland B12, will incur direct impact to 0.05 acres. The remainder of the wetland on site, 1.80 acres will be preserved under a conservation easement. Wetland B4 is a small, herbaceous wetland. In the middle of what is now cow pasture slated for excavation if the Project is approved, Wetland B4 will suffer permanent destruction by the creation of Pond P11. The direct impact will cover 0.75 of an acre, the size of the wetland as it now exits. Wetland C4, 0.60 acres in size, will also be permanently destroyed by the establishment of several lots in the Northern Pod of development and excavation of P4, a wet detention pond. The justification offered by Westfield for the permanent destruction of these two relatively small isolated wetlands is economic. Saving them would cost $215,000. Mitigation of the Direct Impacts The project preserves wetlands on site with conservation easements. If the wetland is a good candidate for wetland stormwater treatment, the project attempts to augment its hydrology. The direct impacts of Westfield's planned activities are proposed to be mitigated by the construction of 2.89 acres of non-forested wetlands and by the preservation of 65.32 acres of wetlands on site. Section 3.3.2 in the Basis of Review provides: Subsections 3.3.2[.1] through 3.3.2.2 [of the Basis of Review] establish ratios for the acreage of mitigation required compared to the acreage which is adversely impacted by regulated activity. District Ex. 4, CHAPTER THREE, P. 21. When preservation of wetland and other surface waters is the vehicle of mitigation, it also provides: The ratio guideline for wetland and other surface water preservation will be 10:1 to 60:1 (acreage wetlands and other surface waters preserved to acreage impacted). District Ex. 4, CHAPTER THREE, P. 24. The ratio of wetlands and other surface waters proposed for preservation (65.32 acres) to wetlands proposed to be permanently destroyed (1.61 acres) by Westfield is more than 40 to 1, well within the guideline. The wetland area to be created is designated as Wetland B2. Adjacent to two wetland systems, Wetland A3 and Wetland C2, and lying between them, Wetland B2 will also serve as a wetland habitat wildlife corridor. The 2.89 acres of created non-forested wetlands that will constitute Wetland B2 offset 1.36 of non-forested impact, a ratio of 2.13 to 1. The ratio is within the guidelines for created wetlands in Section 3.3.2.1.1. of the Basis of Review. In the District's view, the applicant's wetland mitigation proposal provides the District with reasonable assurances that impacts to wetland functions will be offset. Put slightly differently by Mr.Sauskojus, in the view of District staff, "weighing the proposed direct impacts, the secondary impacts and the mitigation provided, . . . there will not be adverse impacts on site or offsite . . . ." (Tr. 293). Since downward and lateral seepage from Pond P11 was not taken into account, however, the mitigation plan offered by Westfield is not designed to offset any impacts from the seepage to Wetland A3 and the Cypress-forested Wetland. These impacts are secondary impacts. Secondary Impacts A secondary impact is an impact that follows a direct impact to a water resource. An example of a secondary impact is boat traffic increase because of the installation of a boat ramp or a marina that poses an increased threat of collision with manatees. The construction of the boat ramp or the marina would entail direct impacts to the water resource. The increased boat traffic would constitute impacts secondary to the construction of the ramp or marina. A way to minimize secondary impacts is through buffers. Just as the Cypress-forested Wetland should be buffered from development, so should the isolated wetlands on-site. Isolated wetlands are important for several reasons. They accept the brunt of the discharges from the developed uplands and so are responsible for filtering nutrients, pesticides and chemicals from stormwater and other run off. They also are spots where wildlife congregate. Birds, in particular, will be under siege from the cats that inevitably accompany development. Buffers, particularly vegetated buffers, assist in protection of wetlands whether contiguous or isolated. Section 3.3.7 of the Basis of Review provides: Secondary impacts to habitat functions of wetlands associated with upland activities will not be considered adverse if buffers, with a minimum width of 15' and an average width of 25' are provided abutting those wetlands that will remain under the permitted design, unless additional measures are needed for protection of wetlands used by listed species for nesting, denning, or critically important feeding habitat. District Ex. 4, CHAPTER THREE, Pg. 16. The upland activities of the Project have an average 25-foot buffer. For the bulk of the Project, the buffer is at least 15 feet, a minimum buffer that is normally required. Close to the headwaters of Wetland A3, however, the Southern Pod of development does not have a buffer that is equal to or more than 15 feet. In this area and other areas where there are less than 15 feet of buffer (such as around isolated Wetlands B8 and D3), the Project calls for a double silt fence, that is, a two- rowed fence to hold back silt. The silt fence will protect the wetland from damage during grading of the lots and construction of the residences. But it will not protect the wetland from secondary impacts caused by upland activities after the Project is developed. The buffers are made up of bahaia grass primarily. The import of the buffer's composition was explained at hearing by David Sauskojus, a District employee: If a buffer is made up of pasture grass, it is definitely much less effective relative to protecting habitat functions than . . . an undisturbed upland. . . . [I]n this case, . . . in the past before they made it pasture, [the undisturbed upland would have] consisted of palmettos, bryonia, bushes, [and] shrubs, that would have provided some kind of habitat value to the wetland itself. (Tr. 282). Despite the low quality of the composition of the buffers, the additional width of buffers in other areas that allow the average of the buffers to exceed 25 feet was reasonable assurance in the view of District personnel that the encroachment of development closer than 15 feet in certain areas would not have secondary habitat impacts to Wetland A3. Because of this "offset," the District did not request the applicant to mitigate for the encroachments into the minimum 15 feet of buffer normally required. Cumulative Impacts Section 3.2.8.1 of the Basis of Review provides: Cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities as described in 3.2.8 would then result in a violation of state water quality standards as set forth in subsection 3.1.1(c) or significant adverse impacts to functions of wetlands or other surface waters identified in subsection 3.2.2 within the same drainage basin when considering the basin as a whole. District Ex. 4, CHAPTER THREE, P. 19. The Project will not cause unacceptable cumulative impacts on the wetlands and other surface waters on site. Fish, Wildlife and Listed Species Under the Basin of Review, when a party applies for an ERP, "[g]enerally, wildlife surveys will not be required." District Ex. 4, Basin of Review, Section 3.2.2, CHAPTER THREE, page 4. The Basin of Review details when a wildlife survey is required: The need for a wildlife survey will depend upon the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species, and whether the proposed system will impact that use such that criteria in subsection 3.2.2 through 3.2.2.3 and subsection 3.2.7 will not be met. Survey methodologies employed to inventory the site must provide reasonable assurance regarding the presence or absence of the subject listed species. Id. It is apparent from the record that District staff initially believed that a wildlife survey was needed. The file of record contains a document prepared by District staff entitled "Project Information Review List," (the "First Request for Additional Information" or "1st RAI"). Dated March 7, 2003, it refers to the Application's receipt one month earlier. Under the heading "SITE INFORMATION," the following appears: Has any current wildlife survey been performed on site? In particular, what recent observations have been made of wildlife usage within Wetlands B4, C4 and B12? The submitted wildlife survey not only is almost three years old, but it represents a preliminary effort. (emphasis supplied), Westfield Ex. 19, File of Record,(1st Volume), p. 104. The staff request for additional information continues with recommendations not only to cure the outdated nature of the survey but also for the methodology that should be used: Id. Staff would recommend, for the above three wetlands, that a survey be performed which is consistent with Florida Fish and Wildlife Conservation Commission's methodology, documented within; Standardized State Listed Animal Species Survey Procedures for FDOT Projects by Jim Beaver, revised in 1996, and Wildlife Methodology Guidelines by Mike Alan, 1988. Reference Rules 40D-4.101(1)(c) and (e) and 40D-4.301, F.A.C. and Section 3.2.2, Basis of Review (B.O.R.). The file of record reflects a response to the 1st RAI. With regard to the question as to whether a current wildlife survey has been performed, the criticism of the submitted survey and the recommended methodology to be used in a subsequent survey, Westfield's ERP consultant, King Engineering Associates, Inc., ("King") responds: Site conditions have not changed since King conducted the original preliminary listed species survey. During more recent site visits, King staff have not observed any additional listed species, or evidence of their breeding/nesting activity on the subject property. Onsite wetlands B4 and C4 are essentially shallow, wet depressional areas in the pasture. While these herbaceous wetlands could potentially provide occasional foraging habitat for wading birds, they do not represent suitable habitat for breeding/nesting of any listed species. Wetland B12, a forested wetland, likewise does not represent suitable habitat for breeding/nesting of listed species, and no listed species have been documented in this wetland. As a follow-up effort to King's preliminary listed species survey, and following recommendations made in that report, King has performed additional wildlife surveys. Specifically, a Southeastern Kestrel Survey and Gopher Tortoise Burrow Survey were conducted by King. The results of these follow-up surveys, which were included with Attachment 7 of the original submittal, revealed that neither of these two listed species is currently present on, or breeding/denning on, the subject property. Westfield Ex. 19, File of Record, (1st Volume), p. 123. On May 7, 2003, the District responded by letter to the additional information provided by King with a second Request for Additional Information (the "2nd RAI"). The letter states, "[y]our permit application still lacks some of the components necessary for us to complete our review; the enclosed checklist describes the missing information." District Ex. 19, File of Record, (1st Volume), p. 184). The checklist attached, under the heading "SITE INFORMATION" states: The response to Request for Additional Information (RAI) Comment No. 3, regarding wildlife surveys, does not give the District reasonable assurance that threatened or endangered species do not use the wetlands proposed to be impacted. Many changes have taken place in the vicinity of the project since King performed the preliminary survey three years ago. The construction of the Suncoast Parkway and several nearby residential developments have re-shaped habitat availability within this area. The District strongly recommends performing a wildlife survey to evaluate the usage by threatened or endangered species of Wetlands B4, C4 and B12. The survey should be performed using the previously noted Florida Fish and Wildlife Conservation Commission (FFWCC) methodology. Additionally, when/if the survey is performed, please provide details regarding the actual survey, including but not limited to, dates, times of day, location and methods used. Westfield Ex. 19, File of Record (1st Volume), p. 185. On June 20, 2003, King responded in writing to the 2nd RAI. With regard to the strong recommendation of a wildlife survey that uses the FFWCC methodology, King wrote: The applicant is confident based on the results of the existing Preliminary Listed Species survey and the extended amount of property contact time by field scientists and District staff in the intervening months when hydro-period, wetlands delineation, and permit application work were on-going, that no wetland dependent species are present. Westfield Ex. 19, File of Record, (1st Volume), p. 198. In addition to the time spent on the preliminary survey, the response lists 64 hours of time when the site was visited for purposes of "[w]etland delineation, wetland delineation & [h]ydro-periods," "h]ydro-periods," "[h]ydro-period [r]eview with SWFWMD," "[f]ollow-up Gopher Tortoise/Kestrel [s]urvey" and "[f]ield [v]isit with ACOE staff." Id. On July 18, 2003, a third RAI ("3rd RAI") was issued by staff. Satisfied with the June 20, 2003, response with regard to the earlier inquiries about a wildlife survey, the 3rd RAI makes no reference to the earlier requests with regard to site information or the need for wildlife survey. Dr. Baca, Dr. Blanco's wetlands ecologist, criticized the wetland information provided by Westfield along the same lines as did District staff in the documents in the file of record. For example, Dr. Baca testified with regard to endangered species that a survey should be conducted over several seasons. A great deal of time must be spent studying the particular habitat and looking for particular organisms. "It cannot be an aside to other work . . . with wetlands or soil studies . . . [i]t has to be a focus of [a wildlife survey]." (Vol. III, tr. 33). A survey for endangered or threatened species requires time and focus precisely because of the nature of listed species; in Dr. Baca's words, "they're not around very much and sometimes they're not around very long." (Vol. III, tr. 32). Time of day that a survey is conducted, moreover, has an impact on the likelihood that wildlife will be found on site. As Dr. Baca testified, Most of the time, you'll find more wildlife on-site around the hours of dusk and dawn . . . Other times, especially during cold weather, wildlife will come out during the hottest part of the day, which is around noon . . . [a]ll of these add to the amount of time that would be required to do a proper study. (Vol. III, Tr. 33). There is no evidence of record as to time of day of the visits used by Westfield for credit toward wildlife observation. Finally, it is apparent that the on-site visits following the preliminary species survey three years prior to the submission of the application did not employ the methodology recommended by the District: the FWWCC methodology. Perhaps an equivalent methodology could be employed, but there is no evidence of an attempt to conduct a survey with an acceptable methodology, either that of FWWCC or an equivalent. The District's acceptance of the Kestrel Survey may have been appropriate.7 But the hours spent visiting the site for wetland delineation and purposes other than to survey wildlife were not shown to have employed the FWWCC methodology or its equivalent and do not supplant the need for a wildlife survey that employs an appropriate methodology. The Mitigation Plan When the impacts of a project that requires an ERP permit are such that an applicant is unable to meet the criteria for approval (the "public interest test"), the applicant may propose or accept measures that mitigate the adverse impacts of the regulated activity so that the Project in its entirety can be demonstrated to be "not contrary to the public interest." In other words, "[t]he mitigation must offset the adverse effects caused by the regulated activity." § 373.414(1)(b), Fla. Stat. It is "the responsibility of the applicant to choose the form of mitigation." Id. As explained by the testimony, all of the mitigation proposed by Westfield is on-site.8 The Respondents' Joint Proposed Recommended Order addresses mitigation for the adverse impacts caused by the Project. The proposed findings that relate to mitigation are summed up in paragraph 16 of the proposed order: 16. The mitigation for the project is appropriate and adequately compens[]ates for the unavoidable direct and secondary wetland impacts from the Project. Respondents' Joint Proposed Recommended Order, p. 6. In support of this finding, the proposed order cites to the File of Record, Westfield Ex. 19, testimony from Mr. Courtney at Tr. 66-76 and 120-121 and testimony from Mr. Sauskojus at Tr. 284-286. Mr. Sauskojus' testimony explains how the mitigation plan adequately mitigates for the direct impacts to wetlands on site. But that explanation does not demonstrate mitigation for all of the potential impacts. No effort was offered for how the plan was designed to mitigate for the impact of draw-down from Wetland A3 caused by low elevation of Pond P11 due to seepage, for example, because seepage was not accounted for in the ICPR modeling. Mr. Courtney's testimony is no different with regard to the same critical omission. Westfield, quite simply, did not take into account, as Mr. Vecchioli testified, the effect of seepage in the information it provided the District. Nor was the mitigation plan designed to mitigate for secondary impacts that might have been indicated by a wildlife survey since an appropriate wildlife survey was not conducted. At bottom, Westfield did not provide reasonable assurances as required by the statutes and rules; it omitted an adequate wildlife survey from the submission of information to the District and it failed to account for seepage from Pond P11 and its effect on Wetland A3 and the Cypress-forested Wetland. Its mitigation plan does not make up for Westfield's failure to demonstrate that the Project is otherwise "not contrary to the public interest."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Individual Environmental Resource Permit sought by Entryway and Westfield be DENIED. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 17th day of December, 2004.
Findings Of Fact On November 13, 1990, the St. Johns River Water Management District (SJRWMD) Governing Board voted to issue to the University of North Florida (UNF), a Management and Storage of Surface Waters (MSSW) permit #4-031-0359GM for the construction and operation of a surface water management system associated with road and parking lot construction on the UNF campus in Jacksonville. On the same day, the board also voted to issue water resource management permit #12-031-0007G authorizing dredging and filling in waters of the state related to said road and parking lot construction. Petitioners timely petitioned for hearing, challenging the SJRWMD decision to award the permits. Neither the standing of the Petitioners nor the Intervenor is at issue in this proceeding. The UNF campus contains approximately 1000 acres in Duval County, Florida, and lies completely within the jurisdiction of the SJRWMD. The UNF is an agency of the State of Florida, and has the apparent authority to make application for the referenced permits. The UNF campus is designated as a wildlife sanctuary. Of the 1,000 acres, wetlands constitute approximately 450 acres. Prior to development of the UNF campus, the property was utilized for silviculture, with pine trees farmed and harvested on the land. The property was and continues to be crossed by numerous logging roads and trails. During the 1970's extensive alterations occurred in the property related to local development activity. Swamps and stream flows were disrupted. Wetlands headwaters were altered by the construction of lakes. Adjacent highways and office developments were constructed, borrow pits were utilized, and wetlands were filled. There is some planted pine forest, generally no more than 40 years old, remaining on the UNF campus. Much of the UNF property remains undeveloped and consists of a variety of common habitat, including pine flatwoods, oak hammocks, and various wetlands. The existing UNF campus is crossed by a series of wetlands located generally north to south through the property. The wetlands include Sawmill Slough, Buckhead Branch, Boggy Branch, and Ryals Swamp. The water in the area flows to the southeast. Previous construction of UNF Drive required the crossing of Buckhead Branch and the filling of portions of Boggy Branch. The UNF now proposes to construct approximately .66 miles of three lane roadway across the southern portion of the campus to connect the existing UNF access drive into a loop (the "loop" road), approximately .34 miles of two lane roadway from a point on the loop into an upland area in the southeastern part of the campus (the "eastern connector"), pave an existing parking lot near UNF nature trails, and construct related surface and stormwater management facilities. The purpose of the loop road project is to enhance access around the UNF campus. The eastern connector will provide access to an undeveloped upland area of the campus. The expansion is related to and required by the anticipated continued growth of the University. The on-campus silviculture logging roads and trails, which remain from the pre-development period, have long been utilized by the UNF community as nature trails. The trails bisect a substantial part of the remaining undeveloped campus. In 1978, approximately 12 miles of trails were listed by the UNF with the United States Department of the Interior as National Recreational Trails, a national collected listing of recreational trails. These named trails, (the "maintained trails" as identified below, and the White Violet, Switchcane, and Turkey Trace trails) were marked by means of paint blazing and signs. In some locations, such markings, and at least one sign remain visible, even though the paint markings have not been repainted since the original blazing occurred. The UNF is fiscally unable to maintain all twelve miles of trail for general public use. The UNF concentrates maintenance and education efforts on three of the trails, the Blueberry, the Red Maple and the Goldenrod (hereinafter referred to as the "maintained trails"). The maintained trails, approximately 6 miles in total length, are signed and marked to provide clear and safe direction through the area. For public use, the UNF provides educational materials related to the maintained trails. Approximately 17,000 persons use the maintained trails annually. Two rangers are employed to supervise the maintained trails. In the most recent two year fiscal period, about $21,000 has been spent rebuilding and upgrading parts of the maintained trails. The UNF provides no security for the logging trails (hereinafter the "unmaintained trails") which are not part of the maintained trail system, and does not encourage the use of the old logging roads as trails. The proposed road construction project will adversely affect the use of the unmaintained trails because the road projects will intersect and overlap several of the trails. The evidence fails to establish that the UNF is without authority to amend, alter, relocate or abandon trails listed with the United States Department of the Interior as National Recreational Trails, or that notice need be provided to the Department prior to such action. There are additional recreational facilities available on the UNF campus, including two jogging trails, as well as a multi-sport facility in the north part of the campus. Approximately 10 total miles of trails exist (including the maintained trails and excluding the unmaintained logging trails). Persons who travel to the maintained trails by automobile currently park in an unpaved lot. The proposed roadway construction for which permits are being sought includes expansion and paving of the nature trail parking lot. This improvement will provide for better access to, and increased utilization of, the maintained trails and eliminate maintenance problems experienced in relation to the unpaved parking area. Notwithstanding the adverse impact on current use of the unmaintained logging trails, the project will enhance recreational development. Operation of the stormwater system, which will result in improved water quality discharged into the receiving waters, will not adversely affect recreational development. Although the recreational values of the impacted unmaintained trails will be adversely affected, on balance the additional access to the maintained trails and the recreational opportunities presented elsewhere on the UNF campus negate the impact on the unmaintained trails. Construction of the roadway will adversely impact portions of the Boggy and Buckhead Branches, which contains wetlands (as defined by, and under the jurisdiction of, the SJRWMD) and waters of the State of Florida (as defined by, and under the jurisdiction of, the Florida Department of Environmental Regulation, which has authorized the SJRWMD to review projects on the DER's behalf). The extent of the wetland impact was determined by the UNF and corroborated by the SJRWMD in an reliable manner. The wetlands impact areas are identified as follows: Area 1, at the upper margin of Boggy Branch, includes slash pine canopy and mixed bay trees; Area 2 is primarily second growth loblolly bay canopy, dense undergrowth, swamp. The loblolly is approximately 20 years old; Area 3 is a west flowing connection between Boggy and Buckhead Branches; Area 4, (the Buckhead Branch crossing), is bay canopy and bottomland hardwood. Areas 1, 2 and 4 will require filling for the construction of the loop road. Area 3 requires filling for the construction of the eastern connector. A total of approximately 2.3 total acres of forested wetlands are included within the impacted area. Of the 2.3 acres identified as wetlands for MSSW permitting purposes, 1.5 acres are classed as waters of the state for purposes of dredge and fill permitting. The wetlands are generally classified as fair to poor quality, although there is a limited wetland area classified as fair to good quality. The wetlands impact of the project on wetland dependent and off-site aquatic species would, without mitigation, be unpermittable. The loop road project includes three drainage areas. Accordingly to plans, drainage area #1 is served by curbs and gutters into storm sewers and discharging into wet detention pond E, drainage area #2 is served by curbs and gutters into storm sewers and discharging into wet detention pond F, and drainage area #3 is served by curbs and gutters discharging into a dry retention swale located adjacent to the road. Stormwater management and treatment for the eastern connector will be provided by a swale system located adjacent to the eastern connector. The western portion of the loop road and the newly paved nature trail parking lot will be separately served by a dry swale system and two retention ponds at the newly paved nature trail parking lot. Wet detention ponds retain the "first flush" stormwater runoff and discharge the water at a reduced rate through a "bleed down" structure. Pollutant removal occurs when first flush runoff is retained and mixed with additional water. Pond and soil organisms and littoral plants provide additional treatment. Such ponds are effective and require minimal maintenance, generally involving removal of nuisance species and cleaning of the "bleed down" structure. Oil skimmers will prevent the discharge of oils and greases from the site. The wet detention ponds have side slopes no steeper than a 4 to 1 horizontal to vertical angle and will be mulched or vegetated to prevent erosion. Dry retention facilities retain the "first flush" runoff and attenuate peak stormwater discharge. The water within the dry swale is filtered as it percolates down through the soil. Maintenance of dry swale systems requires mowing and removal of silt buildup. The design of the system provides that the post development peak rate of discharge will not exceed the pre-development peak rate of discharge for a 24 hour duration storm with a 25 year return frequency. The project will not cause a reduction in the flood conveyance capabilities provided by a floodway. The project will not result in flows and levels of adjacent streams, impoundments or other water courses being decreased so as to cause adverse impacts. The projects detention basins will provide the capacity for the specified treatment volume of stormwater within 72 hours following a storm event. The project is not located in and does not discharge directly to Class I or Class II waters, to Class III waters approved for shellfish harvesting, or to Outstanding Florida Waters. The receiving waters for the system are Boggy and Buckhead Branches, both Class III surface waters. Operation of the system will not cause or result in violation of state water quality standards for the receiving waters. The discharge from the system will meet Class III water standards. There is no evidence that operation of the system will induce pollution intrusion. The design and sequence of construction includes appropriate Best Management Practice provisions for erosion and sediment control, including silt barriers and hay bales. Such provisions are required by the SJRWMD permit conditions. Silt barriers will completely enclose the dredging locations. The bottoms of silt curtains will be buried and will extend 3.5 to 4 feet above the land surface. Slopes will be stabilized by sodding or seeding. The locations of the wet ponds and dry swales, nearby the roadways, will facilitate maintenance activities. Maintenance requirements are included within the SJRWMD permit conditions and are sufficient to ensure the proper operation of the facilities. Although the Petitioners asserted that prior violations of SJRWMD rules related to water quality discharge by the UNF indicate that the UNF is not capable of effectively and adequately operating and maintaining the system, the evidence establishes that the permit conditions are sufficient to provide for such operation and maintenance. The project also includes replacement of an existing culvert at a connection between Boggy and Buckhead Branches. The existing culvert is impounding water during the wet season. The replacement culvert will be installed at the connection floor elevation and will serve to restore the natural hydrology. The new culvert will also be substantially larger than the existing pipe, and can allow fish and wildlife passage under the road. In order to mitigate the impact of the project on wetland dependent and off-site aquatic species, the UNF has proposed to create a 6.3 acre freshwater forested wetland at a site contiguous to Buckhead Branch. The wetlands creation project includes 2.9 acres of submerged wetlands and 3.4 acres of transitional wetlands. Of the 6.3 acres, 4.1 acres of the created wetlands are designated to mitigate the adverse impacts related to the dredge and fill activities. The mitigation proposal constitutes a ratio of 2.7 acres of wetlands creation for every acre of wetland impact. The mitigation site is a low upland pine flatwood and mesic flatwood area surrounded on three sides by wetlands related to Buckhead Branch. The mitigation area will be scraped down to a suitable level and over-excavated by six inches. The elevation of the proposed wetland creation area is based upon water table data and surveying of the Buckhead Branch, located adjacent to the proposed mitigation area, which serves as the wetlands reference area. The UNF monitors surface and ground water elevation in the proposed mitigation area and in Buckhead Branch, and records rainfall amounts. The hydrology of the proposed wetland creation area is based upon the connections of the created wetlands with Buckhead Branch and is sufficient to assure an appropriate hydroperiod. The six inch over-excavation will receive muck soils removed from the impacted wetland areas. The subsurface soils in the wetland creation area are, because of the existing water table level, compatible with the wetland creation. The muck soil will naturally contain seeds and tubers of appropriate vegetation. Additionally, wetland trees, based upon trees in adjacent wetland areas, will be planted in the wetland creation. Prior to planting, the UNF will be required to submit an as-built survey demonstrating that the hydrology and elevation newly- created wetland is proper. The UNF proposal to monitor and maintain the created wetland includes physical and aerial examination of the site, which will be protected by a deeded conservation easement. The monitoring and maintenance plan will continue for three years. The mitigation effort must achieve a ground cover of not less than 80% to be considered successful. Nuisance species will comprise less than 10% of the site's vegetation, and excessive nuisance species will be removed. The UNF is required to periodically report the status of the site to the SJRWMD. The mitigation proposal is adequately detailed and sufficient to offset adverse impacts to wetlands resulting from construction and operation of the system and the dredge and fill project. The wetland creation permit conditions indicate that the wetlands will function as designed and approved by the SJRWMD. The wetland creation is greater in size than the impacted wetlands, will replace the habitat and function of the impacted wetlands and will offset the adverse impacts of the loss of existing wetlands. There will be no impact on any threatened or endangered animal species. The evidence that such species utilize impacted sites is limited. Existing utilization of the impacted site will be accommodated by the remaining wetlands and the created wetland mitigation area. There is no evidence that fish will be adversely affected by the project. Construction and operation of the system will not cause adverse changes in the habitat, abundance, diversity or food sources of threatened and endangered species or off-site aquatic and wetland dependent species. More than five years ago, a bald eagle, listed as endangered by the State of Florida, was observed perched on an upland tree in an area where a retention pond will be constructed. The eagle was not nesting or feeding at the time of observation. The closest known eagle's nest is more than four miles away from the site. None of the impacted area provides appropriate feeding ground for a bald eagle. Colonies of red-cockaded woodpeckers exist between one and one half to ten miles away from the UNF campus. Red- cockaded woodpeckers have been observed on the UNF campus but not in the vicinity of the areas to be impacted by the project. Red- cockaded woodpeckers habitat pine trees at least 50 years old. While the existing pine may provide red-cockaded woodpecker habitat in the future, the pine trees to be impacted by this project are not suitable habitat for red-cockaded woodpeckers at this time. There are no pines on the UNF campus which would currently provide suitable red-cockaded woodpecker habitat. Woodstorks have been sighted on the UNF campus, but not in the impacted area or the mitigation area. Woodstorks feed in areas dissimilar to the impacted areas, therefore there should be no impact on the species. Gopher tortoises have been observed on the UNF campus, but not in the impacted wetland areas or in the mitigation areas. There is no evidence that gopher tortoises would be impacted by this project. A number of animal species identified as wetland dependent have been observed on the campus. However, the evidence of actual utilization of impacted areas by such species is unclear as to frequency and manner of utilization. Such wetland-dependent species are capable of utilizing proximal habitat and will be absorbed by the unimpacted wetland acreage on the UNF campus. Further, the impact on potential habitat caused by the project will be effectively mitigated through the created wetland area. Five hooded pitcher plants are located within the wetland impact area and will be destroyed by construction activities. The hooded pitcher plant is listed by the State of Florida as a threatened species, however, the plant is common in wet areas throughout Duval, Clay, St. Johns and Nassau Counties. Because the muck soils removed from the area will contain seeds, roots and rhizomes from existing vegetation, the plants will likely reproduce in the created wetland area which will contain the muck soil removed during the permitted construction activity. There is no evidence that the dredge and fill project will adversely affect public health, safety and welfare. There are no significant secondary impacts resulting from the proposed project. The SJRWMD considered the environmental impacts expected to occur related to the construction of the roadways for which the permits are sought. In this case, the anticipated secondary impact of the project relates to the effect of automobiles on existing wildlife. The evidence does not establish that there will be such an impact. The road poses no obstacle to wildlife migration. The replacement of the existing culvert with a new culvert at the proper ground elevation may provide enhanced access for some wildlife. The cumulative impacts of the project include the potential expansion of the eastern connector which would require the crossing of Boggy Branch, and future building construction in the southeast portion of the UNF campus. There is no evidence that such impacts, which would require additional permitting, could not be offset with additional mitigation at such time as the permitting is sought.
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 11-12, 1991, in Jacksonville, Florida.
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. D. "Sonny" Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact In 1984, the South Florida Water Management District (SFWMD) issued surface water management permit number 48-00201-5 for a 515 acre project, Isleworth Golf and Country Club, located in southwest Orange County. The permit was issued to the developer, Isleworth Partners. Sometime after the permit was issued and the system was constructed, nitrate concentrations were detected in holding ponds BE-15 and 16. District staff speculated that the shallow ground water table was contaminated with residual nitrogen left from nutrient applications to a citrus grove previously on the site. They were concerned that the high nitrate ground water was seeping into the storm water storage ponds and would eventually be discharged into adjoining Lake Bessie, thereby affecting the water quality of the lake. Lake Bessie, along with other lakes in the region, was also experiencing rising levels. On March 24, 1988, Isleworth Partners submitted to the SFWMD its application number 03248-G, to modify the existing surface water management permit, to help prevent the water quality problems from occurring in Lake Bessie, as described above, and to ameliorate and mitigate against increased lake levels in Lake Bessie. It was not intended to provide flood protection for Lake Bessie. The solution proposed in the modification request, as well as in water use permit applications processed at the same time, was to retain substantially more water in storage ponds BE-15 and 16, and to recycle some of the water from those ponds for use in irrigating the golf course. There were no objections to the water use modifications which were processed with the surface water management permit modification, and the water use modifications were approved by the SFWMD governing board in June 1988. As they affect ponds BE-15 and 16, the water use modifications include pumping the ponds down to a new control level of 97 feet NGVD and using that water to irrigate the golf course. This process has already been implemented with beneficial results: the nitrate concentrations in the ponds have been reduced. The surface water management modification which is the subject of the application at issue is to raise the weir structure from 101.6 to 103 feet NGVD in pond BE-15 to provide complete retention of a 10 year/24 hour storm event without discharge to Lake Bessie from the pond. The under drain system at Pond BE-15 will also be plugged to prevent the existing permitted bleed down of the pond waters into Lake Bessie. This structural modification involves simple construction work and can be completed in one or two days. Ponds BE-15 and 16 are currently connected by an equalizer pipe, and will remain so. Under the modifications the ponds will be maintained (control elevation) at 97 feet NGVD through the use of existing permitted pumps. The maximum elevation of the ponds will be raised from 101.6 feet to 103 feet NGVD by the alteration of the weir. This means the waters in the ponds would have to top 103 feet to overflow and discharge, by way of an existing pipe, to the swales along Lake Bessie and thence into the lake. A 10 year/24 hour storm event is the amount of rainfall that will statistically occur in a 24-hour period once every ten years, or ten times in a 100-year period. The amount of rainfall in a 10 year/24 hour storm event is roughly seven and a half inches. The modification proposed by Isleworth Partners is intended to retain the runoff from that storm. Currently, under the system as permitted, only the first inch of runoff must be retained. This is about 2.4 inches of rainfall or approximately a 3-year/1-hour storm event. Substantially more water will be retained in Ponds BE-15 and 16 under the proposed modification. The staff of SFWMD recommended that the application be granted, with twelve standard limiting conditions and eight special conditions, including the following: * * * The permittee shall be responsible for the correction of any water quality problems that result from the construction or operation of the surface water management system. The district reserves the right to require that water quality treatment methods be incorporated into the drainage system if such measures are shown to be necessary. * * * (Isleworth Exhibit #3, p. 6) John Robertson, Donald Greer and Robert Londeree reside on Lake Bessie. John Robertson and Donald Greer are members and officers of a nonprofit corporation, the Petitioner in this case, Friends of the Lakes, Inc. These residents are concerned that the level of Lake Bessie has risen in the last few years and that it is becoming polluted. Long standing docks which had been primarily dry are now frequently under water. The residents have observed milky or greenish yellow water discharging from pipes from the Isleworth development. These residents, who are not parties to the proceeding, concede that, if the modification works as intended, the system will be improved and the impact to Lake Bessie Will be lessened. Petitioner, Friends of the Lakes, Inc., questions the reliability of the pumping system to maintain the 97.0 foot control elevation. If the ponds are maintained at a control level of 97.0 feet, the 10 year/24 hour storm water will be retained. If, however, through a series of smaller events, the level is higher than 97.0 feet, less capacity will exist, and the water will discharge sooner to Lake Bessie. The current permitted pump operates at 375 gallons a minute. Depending on whether the pump is operated continuously or part-time, it would take from four to twenty days to pump down the pond from a maximum 103 feet to the 97 foot level. The District found the pumping system to be acceptable at Isleworth because the development has a full-time maintenance staff of 35 people, of whom three work on the pumping system. A maintenance supervisor checks the pumps daily, and the developer has an agreement with a pump company to replace the pump, if needed, within four to six hours. The system is considered reliable and the increased pond holding capacity will insure that more water will be retained than under the existing permitted system. Stephen Miller is the professional engineer whose firm prepared the application for modification and the original application for the surface water management permit. He is aware of some changes in the project as constructed which differ from his design for the original system. These changes relate specifically to grading on the golf course and not, as suggested by Petitioner, to the operation of ponds BE-15 and 16. Stephen Miller believes that the modifications will do exactly what they are proposed to do. The application for the modifications took into account the existing conditions which differ from the permitted construction plans. Ronald R. Potts testified for Petitioner as an expert in geology and surface and ground water hydrology. He agrees that the application for modification meets all requirements of the SFWMD with the exception of a single standard condition: * * * 3. The permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition, the permittee shall obtain all necessary federal, state, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit (Isleworth Exhibit #3, P. 6.) The district staff report recommending approval for the modification request was sent to Orange County for its review and comment. Orange County made no objections. Within Orange County it is the engineering department which is responsible for the implementation and interpretation of the Orange County subdivision regulations as they apply to storm water management. The SFWMD does not attempt to enforce other agencies' requirements. The Orange County Engineer, George Cole, determined that neither section 10.1.2 nor section 10.4.4(D) of the Orange County Subdivision Regulations were applicable to the modification proposed by Isleworth. Section 10.1.2 requires that recharge to the Floridan Aquifer, where soils are compatible, shall be accomplished by providing for retention of the total run off generated by a 25 year frequency, 24 hour duration storm event from the developed site. Section 10.4.4(D) of the Orange County Subdivision Regulations requires that a pond design detain a 100 year storm event when discharge into a lake without a positive outfall is proposed. When the County first approved Isleworth's Planned Development, it set a specific requirement that the storm water management system retain the first inch of runoff and detain the difference between pre-development and post- development discharge for a 25 year/24 hour storm. "Retention" of storm water means that the water must be held on site and disposed of by some means other than discharge. "Detention" requires only that water be held back for a period of time before discharge. The Isleworth property is not located in a prime recharge area, as under its soils is a highly impermeable lens, commonly called "hardpan." Lake Bessie has a positive outfall, a pipe connecting Lake Bessie with nearby Lake Down. Although the pipe was plugged with debris for a period of years, it has been cleaned out and the potential exists for outfall from Lake Bessie in flood conditions. The County's 100 year/24 hour detention requirement would still allow the ponds to discharge more water to Lake Bessie than the proposed 10 year/24 hour retention design, and is, therefore, less restrictive. Lake Bessie presently is one of Florida's most pristine lakes with crystal clear water that is ideal for recreational purposes. The natural dynamic state of lakes is that over a period of time they evolve from oligotrophic, with clear water and a balanced system; to mesotrophic, with less water clarity, more nutrients, increased algae and less desirability for human use; to a eutrophic state, with even less clarity, choking vegetation, less fish and less pleasing appearance and utility. This occurs in a natural state as lakes fill in with decaying matter from the shore. Petitioner claims that discharge from Isleworth will hasten the death of the lake. Phillip Sacco testified for the Petitioner as an expert biologist and limnologist (one who studies fresh bodies of water). He performed a modeling analysis to determine the amount of phosphorus being discharged into Lake Bessie and he opined that the Isleworth development will cause Lake Bessie to change to a eutrophic state. A significant component of his analysis was his assumption that 920 acre-feet of water would be discharged into Lake Bessie as a result of the modification. (transcript pp. 557-558). The 920 acre feet is actually the total amount of water which enters Lake Bessie from the entire Lake Bessie basin, not just from the Isleworth property, and includes both surface water (2%) and ground water (98%). The analysis is discredited by the false assumption. Mr. Sacco also theorized that the interaction of nitrogen and phosphorus precipitated by the change in land use occasioned by the Isleworth development would produce deleterious effects on Lake Bessie's water quality: "Nitrogen is the dynamite; phosphorus is the fuse and the land use change of Isleworth is the match." The permit modification application at issue does not relate to a land use change. The change from orange groves to residential development occurred years ago and has already been permitted. In fact, the land change providing the ignition in Mr. Sacco's vivid metaphor is just as likely in the even earlier cultivation of the groves and use of nutrients in their production. The single result of the modification at issue will be less water being discharged into Lake Bessie than is currently permitted from the system, thus conserving the water quality present in the lake. The residents who testified are not parties to this proceeding. Although two of them established they are members and officers of Friends of the Lake, Inc., no evidence was produced regarding the corporation, its legal existence or purpose.
Recommendation Based on the above it is hereby RECOMMENDED: that a final order be issued granting the application for permit modification, and denying Isleworth Partners' request for costs and attorney's fees. DONE AND ENTERED this 17th of August, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1989. APPENDIX Case NO. 88-3056 The following constitute specific rulings on the findings of fact proposed by the parties: PETITIONER'S PROPOSED FINDINGS: 1-2. Adopted in part in paragraph 9. However, testimony on the dying trees was excluded as beyond the witnesses' expertise. 3-4. Adopted in part in paragraph 2, otherwise rejected as not based on competent evidenc. Adopted in paragraph 3. Adopted in part in paragraph 10, otherwise rejected as unsupported by the evidence. The pumps already exist and are permitted. Rejected as irrelevant Rejected as unnecessary Rejected as inconsistent with the evidence. Adopted in paragraph 12. Rejeceted as unsubstantiated by competent evidence; the proposed fact is also too vague and ambiguous to properly address. Rejected as unsupported by competent evidence. Rejected as irrelevant, unnecessary, or unsupported by competent evidence. 14-15. Rejected as unsupported by the weight of evidence. Rejected as unnecessary. Rejected as contrary to the weight of evidence and irrelevant. Adopted in part in paragraph 16; the contribution by the development is rejected as unsupported by competent evidence. Rejected as unsupported by competent evidence. Addressed in paragraph 16. Rejected as contrary to the evidence. Rejected as irrelevant. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. 25-31. Rejected as irrelevant and unnecessary. Rejected as testimony summarized rather than findings of fact. Rejected as unecessary. Rejected as unnecessary. RESPONDENT'S PROPOSED FINDINGS: ISLEWORTH PARTNERS Adopted in paragraph 1, except the finding regarding the existing system meeting district requirements is rejected as irrelevant. Adopted in substance in paragraphs 2 and 3. 3-4. Adopted in substance in paragraphs 5 and 6. Adopted in substance in paragraph 7. Rejected as cumulative and unnecessary. Adopted in part in paragraph 9, otherwise rejected as unnecessary. Adopted in substance in paragraph 11. Rejected as unnecessary. Adopted in paragraph 12. Adopted in paragraph 13. Included in conclusion of law #6. Adopted in paragraph 13. 14-19. Adopted in substance in paragraphs 14 and 15. Rejected as unnecessary. Adopted in paragraph 16. 22-25. Adopted in part in paragraph 16, otherwise rejected as unnecessary. Adopted in part in paragraph 4, otherwise rejected as unnecessary. Rejected as unnecessary. 28-31. Adopted in part in paragraph 9, otherwise rejected as unnecessary. 32. Adopted in paragraph 18 and in conclusion of law #2. SOUTH FLORIDA WATER MANAGEMENT DISTRICT 1-2. Adopted in paragraph 3 and 4. Adopted in paragraph 5. Adopted in paragraph 7. 5-6. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 13. 9-10. Adopted in paragraph 14. Adopted in paragraph 16, otherwise rejected as cumulative or unnecessary. Adopted in part in paragraph 14. COPIES FURNISHED: J. Alan Cox, Esquire Bogin, Munns & Munns 105 West 5th Avenue Tallahassee, FL 32303 Chris H. Bentley, Esquire W. Douglas Beason, Esquire Rose, Sundstrom & Bentley 2548 Blairstone Pines Drive Tallahassee, FL 32301 William Doster, Esquire Lowndes, Drosdick, Doster, et al., PA P.0. Box 2809 Orlando, FL 32802 James K. Sturgis, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680
Conclusions On May 11, 2007, the Division of Administrative Hearings (‘DOAH’) submitted a _ Recommended Order (“RO”) to the Department of Environmental Protection (‘DEP’) i in . these consolidated proceedings. Copies of the RO were served upon the Petitioners, Mellita A. Lane, Jacqueline M. Lane, Peter A. Lane, (“Lane Petitioners”); Friends of Perdido Bay,.Inc., and James A. Lane (“FOPB”); and the Co-Respondent, International Paper Company (“IP” ). On May 29, 2007, all Petitioners and Respondent IP filed Exceptions to the RO. Respondent DEP filed Exceptions to the RO and Motion for Remand. ; On June 8, 2007, the FOPB filed a Reply to IP’s Exceptions and a Response to DEP’s Motion for Remand and Exceptions. The Lane Petitioners filed their Response to iP’s and DEP’s Exceptions. Respondent DEP filed Responses to the Exceptions filed . by the FOPB, the Lane Petitioners and IP. Respondent IP filed Responses to the Exceptions of FOPB, the Lane Petitioners and DEP. This matter is now before me for. final agency action. . _ BACKGROUND » Florida Pulp and Paper Company first began operating the Cantonment paper mill in. 1941. St. Regis Paper Company (St. Regis” ) acquired the mill in 1946. In 4984, Champion International Corporation (“Champion”) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such a as printing and writing grades c of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to | be printing and writing paper. ' The mill s wastewater effluent i is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is . sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class I water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama, on the west. The dividing line between ‘the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 98 crosses the Bay, going east and west, and forms the boundary between what is-often referred to as the “Upper Bay” and “Lower Bay.” The Bay is relatively shallow, especially | in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay i is designated asa Class ill water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. Itis primarily a freshwater river but itis sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (“OFW’) in 11979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, isa large tract of land owned by IP called the Rainwater Tract, The northern part of the tract is primarily freshwater wetlands. The southern partis a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. | ' Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (‘DER’) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The United States Environmental Protection Agency ("EPA") issued St. Regis a National Pollutant Discharge Elimination System (“ NPDES") permit i in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its wastewater treatment plant (‘WWTP’) in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production - process. In 1987, Champion applied to DER for an operating permit-for its modified WWITP and also petitioned for a variance from the Class iI water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's . subsequent proposal to issue the operating permit and variance was formally challenged. In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for the operating permit and requested a . temporary operating permit ("TOP"), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 (‘the 1989 Consent Order’). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violations of state water quality standards in Elevenmile Creek for dissolved oxygen (“DO”), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommend measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed bya series of related scientific studies, which are referred to collectively in the RO as “the Livingston studies.” The 1989 Consent Order had no expiration date, but it was tied to the TOP, , which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The mill was not in compliance with all water quality standards in December 1 994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. instead, the Department agreed through correspondence with . Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. - In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1 995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal ‘operating permits into a single permit identified as Wastewater Permit Number FLO002526-002-IWF/MT. During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmiie Creek or the Escambia River. . In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WwTP upgrades consist of converting toa. modified activated sludge treatment process, incteasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (‘MGD’). IP proposes to convey the treated effluent by-pipeline 10.7 miles to the 1,464-acre wetland tract owned by IP (contained within-the larger Rainwater Tract), where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and Upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to: reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department published notice of its intent fo issue a proposed permit, consent order, experimental wetland exemption, and waiver. The — Department authorizations would allow IP to change its industrial wastewater treatment system at the mill, construct an effluent distribution system within the wetland tract, construct the 10.7-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands. In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane (“Lane Petitioners”) filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge (“ALJ”) and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions. In May 2005, Friends of Perdido Bay, Inc., and James Lane filed a petition for | hearing to challenge the Department authorizations. The FOPB petition was forwarded to DOAH and the pending cases were consolidated for the fi nal hearing. The FOPB petition was subsequently amended. In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the DEP could review and act on the permit revision. In January 2006, DEP issued a proposed revised | NPDES permit and a corresponding First Amendment to Consent Order. On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision {o Consent Order filed on July 26, 2006. The DOAH Administrative Law Judge CALL") held a lengthy final hearing in these consolidated cases on May 31, June 1, 2, and.26 through 30, and July 17, 27, and 28, 2006. Prior to the hearing, the parties filed their Joint Pre-Hearing sit on May 24, 2006. The ALJ subsequenty submitted his RO on May 11, 2007. -
