The Issue The issue in this case is whether the Southwest Florida Water Management District (SWFWMD) should grant Individual Environmental Resource Permit (ERP) Application No. 4316067.00 for approval of a proposed surface water management system (SWMS) for a planned road improvement project.
Findings Of Fact County Line Road extends a short distance east from its intersection with U.S. 41, approximately along the boundary between Pasco County and Hillsborough County. It currently serves as access to residential and rural areas in its vicinity but does not connect with any major road east-west roadway at its eastern end. Since at least 1995, Pasco County's Metropolitan Planning Organization (MPO) has considered it necessary by 2020 to connect County Line Road to Collier Parkway (which runs north and south to the east and north of County Line Road but connects at its southern end to Hillsborough County Road, which extends from there to the east) to create and serve as another major east-west roadway to alleviate traffic congestion on State Road 54 to the north. The MPO's plans are updated continually, most recently in 1998. The MPO's current plans call for building a half-mile segment of two-lane roadway by 2000 to connect County Line Road to Collier Parkway and widening it to a four-lane road by 2010. Once these plans were made, and the general corridor for the new roadway chosen by the MPO, Pasco County conducted a route study and decided to utilize and improve the existing County Line Road to the extent possible consistent with traffic safety considerations before routing the new roadway to the northeast towards a connection with existing roadway (known as Willow Bend Road), which in turn connects with Collier Parkway. In so doing, Pasco County would improve County Line Road where it now crosses 13-Mile Run Creek. 13-Mile Run Creek is the name for the water body and wetland area crossed by County Line Road. It is part of a system of connected lakes, wetland areas, and various natural and man- made water conveyances known as the 13-Mile Run that begins to the north of County Line Road in Pasco County and flows south into Cypress Creek and the Hillsborough River in Hillsborough County. After completing the route study, Pasco County surveyed the project area and identified wetlands in the project area. Then, the road improvements and new roadway, including the surface water management system, were designed. Pasco County designed its road project to accommodate widening to four lanes in 2010 without further direct impact to wetlands. This will allow traffic to flow much more safely on the two lanes built in 2000 while the additional two lanes are built in 2010. As part of this design, the culverts that will provide for north-to-south flow of 13-Mile Run under the roadway, as well as the animal-crossing tunnels under the roadway, will be oversized to accommodate the four-lane roadway in 2010. As a result, all direct impacts to wetlands from the ultimate four- lane road construction (approximately 1.5 acres of direct impact) will occur during the initial construction of two lanes in 2000; there will not have to be any additional wetland impacts in 2010. The Petitioner and Intervenors contend that Pasco County did not prove a need for the four-lane road Pasco County proposes for 2010. They point to evidence that Florida Department of Transportation (DOT) 1995 maps did not "code" the proposed road segment as a four-lane road in 2010, as well as evidence that in 1995 Hillsborough County objected (based on the DOT coding) to Pasco's plans for a four-lane road in 2010. But Pasco County proved that DOT's failure to code the proposed road segment as a four-lane road in 2010 was a mistake. Since 1995, DOT has corrected the error. When Pasco County's MPO updated its transportation plan in 1998, neither Hillsborough County nor anyone else objected to the plans for a four-lane road in 2010, despite Pasco County's solicitation of comments and advertised public workshops and hearings. The Intervenors in particular also point to evidence that the DOT has published "Standards for Low and High Volume Highways in Annual Average Daily Volumes" in a Manual of Uniform Minimum Standards for Design, Construction and Maintenance for streets and Highways (1994)(also known as the "Green Book"). These standards characterize a two-lane urban collector highway with less than 11,000 AADT and a four-lane urban collector highway with less than 37,000 AADT as low-volume facilities and characterize a two-lane urban collector highway with more than 16,000 AADT and a four-lane urban collector highway with more than 45,000 AADT as high-volume facilities. Meanwhile, there was evidence was that, using a regional traffic demand forecasting model developed by DOT to determine future transportation needs for planning purposes: (1) Pasco County's MPO forecasts approximately 12,500 to 13,000 vehicles per day on the road in 2010 and 16,000 vehicles per day on the road in 2020; and (2) in 1997, the MPO forecasts 12,000 vehicles per day (1078 peak hour) on the road by 2015. But the only explanation of this evidence was the testimony of the MPO's transportation planner that the "Green Book" is not used for purposes of planning to meet future transportation needs. There was no other evidence as to the significance or proper use of the "Green Book." Assuming that AADT means "annual average daily trips" (there was no evidence as to what it stands for), there was no evidence that the Pasco County MPO's plan to four-lane County Line Road in 2010 is inconsistent with the "Green Book." The Intervenors also contend that the planned widening of State Road 54 will eliminate the need to four-lane the proposed road improvements at County Line Road. But the MPO's transportation planner testified that the MPO's forecast of the need to do so took into account the planned State Road 54 improvements. The Intervenors also contend that the proposed road improvements at County Line Road will not serve as an alternative to State Road 54 because Collier Parkway is a north-south highway, not an east-west highway. But, as indicated in Finding 1, supra, utilizing Collier Parkway for a short, north-south jog will connect the east-west roadways on either side of Collier Parkway. The Petitioner and Intervenors contend that Pasco County's design does not minimize direct impacts to wetlands precisely because it is designed to accommodate the four-lane widening project in 2010. Clearly, the direct impact to wetlands in 2000 could be reduced if Pasco County's design only accommodated a two-lane road. But it is not clear that the cumulative impact to the wetlands through the year 2010 will be less if the wetlands have to be impacted twice, once in 2000 for two lanes of roadway and again in 2010 for the other two lanes. A Department of Environmental Protection (DEP) witness for the Intervenors believed that it was preferable not to accommodate two additional lanes during the initial construction. But his familiarity with Pasco County's application was limited (in part because DEP has no regulatory jurisdiction), and several other experts testified persuasively that Pasco County's design would be better in terms of minimizing total, cumulative direct and secondary impacts to the wetlands. It also would cost significantly less to build the four-lane road in two stages if the first stage of construction of two lanes accommodates the subsequent stage of construction of the two additional lanes. In addition, traffic flow would be safer during construction of the two additional lanes if the first stage of construction accommodates the subsequent stage. Given the plan to accommodate a four-lane road in 2010, Pasco County designed its road project to minimize direct impacts on wetlands. First, the design uses the existing road in the wetland area. Second, the design uses concrete retaining walls instead of earthen berms in the wetland areas, which reduces the direct impact to the wetland areas by 30 percent. Third, the design was modified to further reduce the direct impact to wetlands by reducing the width of the median and eliminating one of two sidewalks at the creek crossing. The only way to further reduce the direct impacts to wetlands would have been to design and construct a bridge to cross the wetlands. The Intervenors called their DEP witness to testify in support of their contention that Pasco County should be required to bridge the wetlands. But again, the DEP witness's knowledge of Pasco County's application was limited, and several other witnesses testified persuasively that such a requirement for this road improvement project would be unreasonable in light of the existing County Line Road (which is a fill road.) In addition, bridging 13-Mile Run would create water flow and quantity problems that would have to be addressed, since it would remove the existing roadbed that serves to stop flow in times of high water. See Finding 19, infra. Pasco County's design provides for two wet detention ponds, one at either end of the project area, that will treat one-inch of runoff from the project area and will retain all of the runoff from a 25-year, 24-hour storm (nine inches of runoff.) As a result, there are reasonable assurances that there will be no adverse impact on water quality from the project; to the contrary, water quality probably will improve since the existing County Line Road does not provide any water treatment. Likewise, Pasco County has provided reasonable assurances that water discharges from the project area will not increase. As a result of the project, approximately 3.5 acre-feet of flood plain storage will be eliminated. To more-than- compensate for this loss of flood plain water storage area, Pasco County's design includes a flood plain mitigation area of approximately 4.5 acre-feet with a connection to 13-Mile Run Creek. The flood plain mitigation area also will serve as the project's wetland mitigation area at a ratio of approximately 4- to-1, i.e., four acres of created wetland for each acre of direct wetland impact. (Wetlands disturbed by the illegal installation of a Florida Gas Transmission pipeline just north of County Line Road and now under court-ordered restoration are considered pristine wetlands for purposes of the wetland mitigation ratio.) While wetland restoration has a mixed record of success, and it may be difficult to restore all of the values of the original wetland, the prospects for success of Pasco County's proposed wetland mitigation area are reasonably good. The mitigation plan calls for planting 780 emergent woody species per acre. To the extent that the mitigation plan for this project will replace disturbed wetlands and wetlands not successfully restored by the restoration of the area impacted by the Florida Gas Transmission pipeline (which appears to have been either inadequately planned or poorly implemented), the project may well result in a net improvement of the wetlands in the 13-Mile Run Creek area. Impacts from the roadway immediately to the west of the project area have been addressed in the SWMS permit for construction at the intersection of U.S. 41 and County Line Road. Impacts from Hillsborough County's planned widening of the roadway immediately to the west of the project area will be addressed in the SWMS for that widening project. The Petitioner in particular raised the question of flooding in the vicinity--at the U.S. 41/County Line Road intersection and along the shores of Hog Island Lake to the southeast of the creek crossing. The Intervenors initially also raised those questions but have been satisfied by the assurances given by Pasco County that the proposed project will not increase flooding in those areas. The SWMS associated with construction of the U.S. 41/County Line Road intersection appears to have been successful in alleviating flooding there, and Pasco County has given reasonable assurances that the proposed road project in this case will not increase flooding in the Hog Island Lake area. The generous flood retention compensation proposed by Pasco County may alleviate flooding in the Hog Island Lake area to some extent. It also is noted that, if the project were modified to bridge the creek crossing (without any other modifications), flooding in the Hog Island Lake area could increase. See Finding 13, supra. The Petitioner also opposed Pasco County's SWMS application on the ground that no minimum surface or ground water levels or minimum surface water flows have been established in the area under Section 373.042, Florida Statutes (1997). But Pasco County provided reasonable assurances that, regardless where the minimum levels ultimately are set, the proposed project will have no appreciable effect. Pasco County has designed the project to maintain water current flows and quantities. It is found that Pasco County has implemented practicable design modifications to reduce or eliminate adverse impacts of the proposed project. (As used here, the term "modification" does not include the alternative of not implementing the SWMS in some form, nor the alternative of a project that is significantly different in type or function from that proposed.) As used in the preceding finding, the term "practicable" would eliminate modifications which would adversely affect public safety through the endangerment of lives or property. For example, one modification suggested by the Petitioner and Intervenors would have been to have the new road follow existing County Line Road further to the east. However, that would have made the connection between the new road and what would remain of County Line Road hazardous at the design speed of the new road and, depending on how much further east the new road follow existing County Line Road, there would be the hazard of residential driveways connecting to the new road. As used in Finding 21, the term "practicable" also would eliminate modifications which are not technically capable of being done or not economically viable. While there was no evidence that alternatives considered in this case were either not technically capable of being done or not economically viable, general consideration was given to the higher total project costs of not accommodating the planned addition of two lanes in 2010 (with no appreciable environmental benefit). Likewise, general consideration was given to the significantly higher cost (approximately two to three times as much, depending on whether the construction of the first two lanes accommodates the subsequent construction of the two additional lanes) to bridge the wetlands in an attempt to reverse direct wetland impacts from the existing fill road and somewhat decrease additional direct wetland impacts, as well as the dubious benefits of increasing the flow of 13-Mile Run, which certainly would not reduce (and might well increase) flooding in the Hog Island Lake area. In addition, bridging the creek crossing would create traffic engineering problems in providing access to residential areas in the vicinity, especially the Foxwood subdivision. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not violate state water quality standards applicable to waters as defined in Section 403.031(13), Florida Statutes (1997). Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not be contrary to the public interest, considering and balancing the following factors: Whether the proposed project will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, Florida Statutes (1997); and The current condition and relative value of functions being performed by areas affected by the proposed activity. To the extent that the proposed project may not meet one or more of the public interest test criteria, Pasco County proposes mitigation measures that will offset any adverse effects. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on- site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, Florida Administrative Code, including any antidegradation provisions of sections 62- 4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, Florida Administrative Code, will be violated; will not cause adverse secondary impacts to the water resources; will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes (1997); will not cause adverse impacts to a work of the District established pursuant to Section 373.086; is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed; and will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. Pasco County provided reasonable assurances that that its proposed SWMS, with SWFWMD's general and specific conditions, will not cause unacceptable cumulative impacts upon wetlands and other surface waters, as delineated pursuant to the methodology authorized by subsection 373.421(1), Florida Statutes (Supp. 1998).
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 granting ERP Application No. 4316067.00. DONE AND ENTERED this 18th day of March, 1999, 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 18th day of March, 1999. COPIES FURNISHED: Charles J. Traina, Esquire Post Office Box 625 Brandon, Florida 33509-0625 Margaret Lytle, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Mark F. Lapp, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara Wilhite, Esquire Pasco County West Pasco Government Center 7530 Little Road, Suite 340 New Port Richey, Florida 34654 David and Sheryl Bowman, pro se Post Office Box 1515 Lutz, Florida 33548-1515 E. D. Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue in this case is whether the development order issued by Polk County for Robert Crowder's development known as Paradise Country Estates complies with Chapter 380, Fla. Stat. (1991). The Department of Community Affairs' Petition for Appeal of Development Order (the DCA Petition) alleges that the development order is contrary to Polk County's 1985 comprehensive plan for the following reasons: Paragraph 11 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 9, Objective III, "Natural Resources," of the Land Use Element (LUE) of the 1985 Plan. Policy 9 states: "Structures should be placed in a manner which will not adversely affect the natural flow regime and which will not reduce the recharge capabilities." Paragraph 12 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 10, Objective III, "Natural Resources," of the LUE. Policy 10 states: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Paragraph 13 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 11, Objective III, "Natural Resources," of the LUE and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Respectively, these policies state: 11. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Paragraph 14 of the DCA Petition alleges that the development order is contrary to a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources," which describes the Green Swamp as a "rare and unique land area resource for conservation consideration" and also states: The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Paragraph 15 of the DCA Petition alleges that the development order is contrary to the following section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships": The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. Paragraph 16 of the DCA Petition alleges that the development order is contrary to Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan: "Protect or improve existing ground and surface-water quality." Paragraph 17 of the DCA Petition alleges that the development order is contrary to Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE: Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. Paragraph 19 1/ of the DCA Petition alleges that the development order is contrary to Policy 2, Objective IV, "Residential Uses," in Part V of the LUE: Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. Paragraph 20 of the DCA Petition alleges that the development order is contrary to Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code). 2/ Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Paragraph 21 of the DCA Petition alleges that the development order is contrary to Section 5-2(4) of Polk County Ordinance 81-28. 3/ Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Paragraph 22 of the DCA Petition alleges that the development order is contrary to Section 6-2(3)(a) of Polk County Ordinance 81-28. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site.
Findings Of Fact The Proposed Project and Location. The project site is on Dean Still Road in Polk County, approximately 2 miles west of State Road 33. It is approximately 6 and 1/2 miles from Polk City and 15 miles from the City of Lakeland. The proposed project is comprised of 356 lots on approximately 1280 acres with a gross density of 1 unit per 3.6 acres. Although the average lot size varies, the project was reviewed under the Southwest Florida Water Management District's (SWFWMD) criteria for rural development which requires that at least 90% of the lots be at least 2 acres in size (excluding jurisdictional wetlands), and 10% of the lots be at least 1 acre (excluding jurisdictional wetlands). The site has been zoned Rural Conservation under Polk County's Zoning Code for approximately 12 years. This designation allows a density up to 1 unit per acre. Individual water wells and on-site waste disposal systems (septic tanks) will be utilized for each home. There are no water or sewer extensions proposed for the site or for adjacent areas by any governmental entity. Access to the site from Polk City is along Dean Still Road, which is unpaved at this time. The County has plans to pave it in the near future. Of the 1280 acres comprising the project site, 362 acres have been claimed as jurisdictional wetlands and approximately 642 acres have been mapped within the 100-year floodplain by the Federal Emergency Management Agency (FEMA). 51 of the lots platted in the project are entirely within the FEMA 100- year flood plain. Several other lots contain large portions within FEMA 100- year flood plain. Despite the significant amount of wetlands and floodplains on the site, the project is designed so that no net loss will occur in the floodplains and less than 1% (.59%) of the jurisdictional wetlands will be impacted by development. Impervious conditions on the site will only increase by 2.8% after development. All structures will be set at or above the 100 year flood elevation, as calculated by the project engineers, and will be constructed in accordance with the County's flood protection standards. The project is designed so that post-development runoff is less than pre-development runoff and post-development drainage basins conform to pre-development drainage basins. Existing drainage patterns for the site are designed to be maintained. The property comprising the project has been used through the years for a variety agricultural purposes, including harvesting watermelons, soybeans, corn, and silage. It has been drained and ditched to facilitate these activities. It is currently being used for grazing cattle. A sod farm is located to the south of the property. Additional cattle grazing lands run south from there to Polk City. To the north of the site are ranchlands which run to the border of the Withlacoochee Wildlife Area. Immediately to the west of the site are 20-30 scattered mobile homes and additional ranchlands in a subdivision known as Evans Acres. This subdivision was initially approved by DCA in 1983, and was comprised of 48 lots on approximately 1,290 acres. The original lots ranged in size from 5 to 60 acres. Apparently, individuals have since split their lots and many of the existing lots are 2 to 5 acres in size. A few of the original lots are used for both residential and ranching purposes. Including the large and small lots, there are approximately 163 lots on the property comprising Evans Acres. On the property directly to the east of the site are approximately 16 mobile homes along Melody Lane. These existing homesite numbers are small and scattered when compared to the 356 lots proposed for Paradise Country Estates. Approximately 120 families live in the general vicinity of the proposed project. The Green Swamp. The project is within the Green Swamp Area of Critical State Concern (ACSC). The site is within the drainage basin of the Withlacoochee River, which has been designated an Outstanding Florida Water (OFW) and is approximately three and a half miles to the north. The Green Swamp ACSC was designated by the Legislature. Chapter 79- 73, 380.0551, Florida Statutes (1991). It was the second area to be designated and now is one of only four areas in the State retaining this designation. The Green Swamp was designated because the area's natural resources were considered to be of regional and statewide importance and because of concerns that uncoordinated development could endanger these resources. The Green Swamp is a regionally significant area for recharge of the Floridan Aquifer. The Green Swamp is unique because the top of the Floridan Aquifer is at or near the surface over much of the area. This creates what is known as the potentiometric high of the Floridan Aquifer. The potentiometric high pressurizes the Floridan Aquifer, permitting it to be used for drinking water wells. The Florida Aquifer serves as the principal source of drinking water for central Florida. It supplies the entire State with about 48 percent of its ground water supply. The potentiometric high also serves to hold back salt water intrusion into the Floridan. Recharge is important in maintaining the potentiometric high of the Floridan Aquifer. Although the Green Swamp has been characterized as a recharge area for the Floridan Aquifer, the actual recharge capabilities of the Green Swamp vary considerably throughout the region. Some areas within the Green Swamp, such as the high, dry, sandy ridge on the eastern boundary of the Green Swamp clearly are high recharge areas. In some areas, the Floridan Aquifer rises essentially to the ground surface, with no confining layer above it. In those areas, a considerable amount of surface water filters into the Floridan Aquifer. In other areas, including in the vicinity of the project site, recharge capability is considerably less. See "G. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code, (3) Ground Water Recharge." The head waters of several rivers, including the Withlacoochee River, are in the Green Swamp. Polk County's Comprehensive Plan. Polk County's Comprehensive Plan, as amended by Polk County Ordinance 85-08 (Ordinance 85-08), is referred to as Polk County's 1985 comprehensive plan, or the 1985 plan. It includes a Land Use Element (LUE) and a Conservation Element. The Land Use Element. The 1985 Plan is a "policy plan." As a "policy plan," the LUE does not map land use classifications or densities or intensities of development. The different parts of the plan must be considered together to ascertain their meaning. As stated in the Foreward to the LUE: The Policy Plan is a flexible and realistic guide to future public decisions. Existing conditions are first determined and analyzed. Then, community goals are identified providing a process of finding out where we are and where we want to go. * * * . . .. The challenge is to determine the means of achieving the identified community goals at minimal cost and the least possible hardship on any segment of our society. Under the policies planning process this is accomplished by developing all possible alternative courses of action that will advance the community toward the desire goal. The policies are then a general statement of purpose and outlining broad principles toward which the plan is guided in the implementation stage. A policy plan does not detail specific actions or locations on a map. Rather it provides a broad framework within which day-to-day decisions are made in a consistent manner toward an identified goal. The ultimate product of those community goals will be the heritage of Polk County's future. At 4-2, the LUE discusses the need to give attention to "the proper distribution of population densities in keeping with sound planning practices, the physical capabilities of the land, and the relationship of the population and housing densities to existing or proposed transportation facilities and other community services." It then speaks to "Retention of Open Spaces": A second potential problem to be faced, as urban growth continues, is the potential loss of the open space characteristics that now contribute substantially to its desirability as a community in which to live and visit. To a large extent, the desirable characteristics are provided by extensive agricultural areas. Such uses are compatible with residential and other types of urban land uses and should be encouraged to remain to the maximum extent possible. Desirable open space is also presently provided by . . . wetland areas not suited for urban development. By encouraging such areas to remain in their present condition, a substantial amount of open space can be retained to provide the needed visual relief and openness necessary within a highly urbanized community. At 4-5, discussing "Retention of Unique Agricultural Lands," the LUE states that cattle raising and field crops are subject to potential intrusion by urban development and states: "The development of planning techniques, which will encourage the retention of important agricultural lands and provide for orderly urban development, thus becomes a matter of considerable importance." The Goals, Objectives, and Policies (GOPs) of the LUE starting at 5-1 include the following: General Goal: To maintain productive and mutually compatible use of lands and waters within Polk County in a manner consistent with the economic, physical and social needs, capabilities, and desires of Polk County and its citizens. Objective I - Agricultural Uses: To ensure that a sufficient quantity of appropriate lands are available and protected for productive agricultural uses necessary to a sound economic base. Policies: * * * 2. Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. * * * 5. Provide all possible incentives for the retention of lands into agricultural production. * * * Objective III - Natural Resources Minimize adverse impacts of development on valuable natural resources including the protection of water quality and quantity in surface and ground waters. Policies: * * * 2. The subdivision and platting of land shall be permitted in accordance with the zoning district applied to the property and in compliance with the Polk County Subdivision Regulations and Flood Protection/Surface Water Management Ordinance. * * * Site alteration should be permitted only when such alteration will not adversely affect the natural flow regime or the natural recharge capabilities of the site. Site alteration should be permitted only when such alteration will not result in the siltation of wetlands or reduce the natural retention and filtering capabilities of wetlands. Site alteration activities should provide for water retention and settling facilities; should maintain an overall site runoff equivalent to the natural flow regime prior to alteration and should maintain a runoff rate which does not cause erosion. * * * Storm water runoff should be released into the wetlands in a manner approximating the natural flow regime. Structures should be placed in a manner which will not adversely affect the natural flow regime and which well not reduce the recharge capabilities. Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. Objective IV - Residential Areas To ensure that an adequate supply of appropriately located lands are available for the development and maintenance of residential areas that can be efficiently and effectively provided with necessary public facilities and services. Policies: Promote and encourage the provision of a wide range of housing opportunities, in appropriate locations, to permit a choice of housing types to suit the particular needs of all citizens. Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. * * * Encourage new residential development that can be effectively served by the existing transportation facilities. Promote new residential development in non-urban areas, that is properly designed to combine with future adjacent development, to create a neighborhood of sufficient size to facilitate the efficient and effective provision of all necessary public facilities and services. Part VI of the LUE, entitled "Alternate Approaches," discusses the pros and cons of different concepts for planning and managing of growth. It settles on a "Resource-Responsive Concept" as the preferred growth alternative. This concept holds in part: Wherever possible, future growth should be encouraged to take place in or near established urbanized areas. Scattered growth incapable of functioning as meaningful self-contained communities should be discouraged. And it is preferable that the urbanizing area, as it extends over extensive areas within the County, not be developed in one continuous, monotonous maze of residential, commercial, and industrial uses - but that there be open space provided at appropriate intervals so as to provide visual relief and a sense of scale to the overall urban community. Such open space areas can be productively utilized for agricultural and conservation purposes or recreation areas, public facilities and services required. It is proposed that the most appropriate urban growth concept to meet such guide-lines and the policy statements of this land use plan be a resource-responsive growth concept. Under this concept, urban growth and development will be guided and encouraged with respect to its responsiveness to the natural and human resource capabilities of the County. Within any given area of the County, the resources will be careful evaluated in terms of their capability to support growth, and the physical form and intensity of development will be then shaped to provide the physical form and intensity of development will be then shaped to provide a balance with such resources. Prime resources to be considered are as follows: Natural Resources Topography and soil conditions Vegetation and tree cover Wildlife habitats present Drainage characteristics; relationship to rivers and lakes Natural water supply capabilities General aesthetic qualities Human Resources Transportation facilities (roads, railroads, airports) Available water supply and sewage facilities Community facilities, such as schools, parks, libraries Protective services, such as fire and police Established land uses within the area Economic conditions and potentials. Part VII of the LUE, entitled "Implementation," states: "Initial implementation of a Comprehensive Plan and initiation of the continuing planning process for growth management requires the establishment of principals and standards for measurement of proposed activities against the adopted policies of the community." It includes a section entitled "Principles and Standards for the Control and Distribution of Population Densities and Structural/Development Intensity," which provides in part: All Types of Urban Development: * * * Each new development or land use should follow sound land planning principles to maximize site advantages, avoiding when possible, adverse impacts on the natural resources and hazards to health, safety, or general welfare. * * * Residential Development: Low-density single-family development (1-4 units/acre), other than rural residences related to agricultural operations, shall be located in areas capable of being developed into stable, cohesive neighborhoods. In a section entitled "Legal Requirements of Implementation," it states that "all actions taken by local government, whether in the form of permitting private development to occur or in the provision of public facilities and services, are required to be fully consistent with the adopted Comprehensive Plan. The plan, once adopted, must occupy a central position in the consideration of all proposed development." In another section, entitled "Coordination with Other Plan Elements," it states that the "land use element cannot be implemented alone [but] must be coordinated with the [other elements]." In another section, entitled "Needed Improvements in the Zoning Ordinance," it is recognized that "it will be essential that a thorough review of the zoning ordinance be undertaken and that the ordinance be revised as appropriate to achieve consistency with overall planning objectives." It acknowledges that there were "major identified deficiencies in the current zoning regulations" and advises that "the following needs among others should be addressed as a minimum in making revisions to the zoning ordinance": "Revision of the Density Requirement in Residential Districts." Despite the admonitions in the 1985 Plan, to date there has been no revision of the land use classifications, densities, or intensities in the County's zoning code. As before the 1985 Plan was adopted, zoning in the Green Swamp ACSC remains Rural Conservation (RC) and allows up to one unit per acre residential development. The Conservation Element. Part II of the Conservation Element of the Polk County Comprehensive Plan is a "Summary of Natural Resources." At 2-18, there appears a section entitled "Rare and Unique Natural Resources," which describes the Green Swamp, as well as other natural resources in the County, as a "rare and unique land area resource for conservation consideration." At 2-19, as amended by Ordinance 85-08, this element of the comprehensive plan also states: This area comprises the hydrologic heartland of Central Florida and contains the headwaters of the Withlacoochee, Hillsborough, Peace and Oklawaha Rivers. The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Part IV of the Conservation Element is a "Summary of Special Problems, Areas, Issues, and Relationships." Starting at 4-2, it addresses the following: Displacement . . .. Cities in Polk County have historically developed on the ridges and the urbanized areas are spreading outward rapidly into the prime citrus lands and the "marginal" (flood prone) lands. There is considerable concern about urban development in wetland soils and flood prone areas. The double barreled concern for development in wetland soils and wetland areas is that they might well serve valuable natural functions and the private and public problems created by development subjected to flood damages. This property damage promotes public pressure for drainage in wet areas. The issue in wetland drainage and flood control is the jeopardy of natural functions that wetlands and water fluctuations provide in natural systems and flood damage costs. . . . [C]oncern for the growing demand for uplands development which steadily displaces [good pasture land] . . . relate[s] to the use of good pasture land for development. Density The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. * * * Water * * * Another area of concern relates to the draw down and recha[r]ge of the Floridan Aquifer and is claimed to be a rational concern of an area much larger than Polk County. * * * Pollution Environmental pollution, as it relates to water, is a major local concern. * * * Water pollution is concerned because of its effects on recreation and tourism. Water degradation and the pollution of lakes and rivers tends to remove the intangible value that Polk County enjoys in thee form of its surface water resources. * * * Also, the related cost issues of municipal sewage treatment and disposal, effluent disposal techniques, septic tank useage are environmentally economic choices to be made by the public. Discussing the topic, "Preservation and Management," starting at 4-4, Part IV of the Conservation Element states in part: Many issues relate to what, how, or when something should be conserved. * * * Lakes, rivers and canals of the county are of concern as sources of flooding and as resources for flood control, if properly managed. Flood prone areas surrounding surface water have been identified for much of the county. These water bodies are also legitimate concerns as the habitat for fish and other wildlife that provide a significant value in their own right. The area of these water bodies are also special scenic and recreational values that contribute to tourism and development. Part V of the Conservation Element is where the "Goals, Objectives and Policies" are found. It start with some general observations, including in part: . . .. It can be expected, therefore, that the natural environment of the county will continue to undergo modification of one type or another in response to the needs of people. . . . The inventory of total space will, therefore, diminish as these changes take place, resulting in corresponding losses within particular categories of natural resources. What is important is that no critical loss of impairment of a natural resource take place; that development be managed so as to create minimum disturbance of the remaining natural resource systems; and that there be compensation replenishments of resources wherever possible. It then lists a General Goal and several resource-specific objectives and policies: General Goal: Maintain, protect, develop and utilized the natural resources in a manner that will balance and replenish the natural ecological systems and will best serve and promote the desired quality of life for Polk County resident, present and future. * * * Water Resource Objective: To conserve and protect the quality and quantity of water resources through proper management. * * * 6. Identify and protect significant acquifer [sic] recharge areas for maximum recharge capability and protect the water available for aquifer recharge. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the functions of the Potentiometric High of the Floridan Aquifer. Prevent further salt-water intrusion into the Floridan Aquifer. Protect or improve existing ground and surface-water quality. Protect the water retention and biological-filtering capabilities of wetlands. Protect the natural flow regime of drainage basins. Rare and Unique Natural Resource Objective: To conserve and protect, through proper resources management, areas having unique natural characteristics and particularly sensitive environmental balance. * * * Policies: Identify all significant areas in Polk County deemed to have unique natural resource characteristics. Encourage proper management of unique wetland areas of the County as a vital water resource. Encourage a proper system for control of development in flood prone and wetland areas to regulate alternation [sic] of the natural system of water retention and storage during periods of heavy rainfall. Preserve and protect, to the maximum extent possible, all delineated areas having valuable unique resource characteristics. Part V of the Conservation Element concludes with a "Summary," which states in part: The objectives and policies set forth above should not be considered as controls to be rigidly applied in every instance of decision-making dealing with the natural environment. Rather, in dealing with resource conservation issues, guidance is preferable to control. . . . A number of potential implementation actions and programs, presented in the following part, will further assist in establishing the direction and scope of conservation activities in the County. Part VI of the Conservation Element is entitled "Implementation." While acknowledging at 6-1 that Polk County cannot establish an implementation program unilaterally, without regard to the co-responsibilities of other governmental authorities at the regional state and federal levels, it states at 6-2 that Polk County "can and should": Utilize the general objectives and policies established by this Element as considerations in all decision making concerning the use and improvement of land within the County. * * * 3. Utilize, to the fullest extent possible, the policies and implementation controls of other elements of the Polk County Comprehensive Plan, and those of other governmental entities having jurisdiction, to further the conservation of natural resources. Starting at 6-3, Part VI discusses the Conservation Element's "Relationship to Other Plans." At 6-4, after stating that the Conservation Element will be largely implemented through the policies and programs of other comprehensive plan elements, Part VI provides: Land Use Element - This element will provide the overall framework for conservation [sic] potentialities through the manner in which land uses are distributed, arranged, and interrelated throughout Polk County. Policies and implementation programs of this element will determine the degree to which new development is properly related to soil types and capabilities, natural habitats, flood prone areas, wetlands and unique resource areas of the County. Land regulatory controls such as zoning, subdivision regulations and development impact reviews provide the basic tools for implementation of the policies of the Land Use Element. Starting at 6-5, Part VI discusses "Guidelines for Implementation." At 6-5, it points out: The nature of conservation policy, being of such broad application and diversity of interest, requires that its effective implementation utilize many approaches, techniques and procedures. Its application is carried out, for the most part, in an indirect way as a by-product of other more direct decisions and actions relation to the development and growth of the County. It is essential, therefore, that Polk County draw upon all possible alternative mechanisms and techniques which will lead to the effective conservation of its natural resource systems. Among the various approaches which Polk County may utilize to further its conservation objectives are the following. * * * Influence in the allocation of resources to achieve the objectives of the conservation plan. Control of events which determine resources allocation in keeping with the conservation plan. * * * Specific procedures and techniques which may be utilized to facilitate the implementation process include the following. * * * 7. Protect natural water bodies and adjacent wetland areas through the regulation of development densities and proper management of stormwater runoff. This would require a cooperative effort with the Water Management Districts in identifying flood plains for various flood frequencies. Polk County's Flood Protection and Surface Water Management Code. Polk County's Flood Protection and Surface Water Management Code was enacted as Ordinance 81-28 and was amended by Ordinance 85-07. Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code. Land Use, Density and Intensity. DCA alleges that the land use, density and intensity of the development Crowder proposes for the site is inconsistent with: (1) the section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships"; (2) a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources"; (3) Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE; and (4) Policy 2, Objective IV, "Residential Uses," in Part V of the LUE. 6/ As previously stated, the 1985 Plan is a policy plan that does not map land use classifications or densities or intensities of development. Crowder's Paradise Country Estates is consistent with the County's Zoning Code, which has not changed since before the 1985 plan, and Zoning Map. The development was not otherwise reviewed for land use, density or intensity. But it is clear that the 1985 plan does not condone exclusive resort to the zoning code to determine the appropriateness of the land use, density and intensity for development in the Green Swamp ACSC. See, especially, the section entitled "Density" in Part IV of the Conservation Element of the Plan. In the Green Swamp ACSC, especially, reference must also be made to the Plan itself. See Part VII of the LUE, entitled "Implementation." It is not found that all residential use on the Crowder property would be, in itself, inconsistent with the 1985 Plan. But, taking into consideration all of its land use, density and intensity provisions, it must be found that the development order issued in this case, especially at its level of density and intensity and especially in the manner of its issuance, is inconsistent with the 1985 Plan. The crux of the problem with this development, like others in the Green Swamp ACSC already permitted by County development orders, is that, first, the 1985 comprehensive plan and the County zoning regulations in place at the time were inadequate and, second, the steps envisioned in the plan to make them adequate have not been taken. For the plan and the zoning regulations to be adequate, and for a development order for a project in the Green Swamp ACSC in Polk County to be consistent with the 1985 comprehensive plan, either: (1) the plan must be amended to map land use classifications, densities and intensities of development in the Green Swamp ACSC; (2) the zoning code must be amended as envisioned in the comprehensive plan for the Green Swamp ACSC; or (3) the County must evaluate development orders for projects in the Green Swamp ACSC on a case- by-case basis for consistency with the comprehensive plan. None of these three possibilities happened in this case. 7/ Flood Plain Delineation. Paragraph 12 of the DCA Petition alleges that the Crowder development violates Policy 10 of Objective III, "Natural Resources," of the LUE: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Specifically, it is alleged that the use of a Federal Emergency Management Agency (FEMA) undetailed "A" zone to map the flood prone area on the site, and the failure to perform a detailed study, did not comply with the Flood Disaster Protection Act of 1973. Other allegations in the DCA Petition also implicate the delineation of the flood prone areas on the site. See, (5) Ground and Surface Water Quality, below. A FEMA "A" zone is the zone depicting the area determined by FEMA to be flood prone. In this context, FEMA defines a "flood prone" area as an area flooded in a 100-year, 24-hour storm. At the time Polk County reviewed the Crowder project for approval of the roadway and construction drainage plans, FEMA was requiring that a detailed study be performed to delineate the flood prone area. Polk County apparently was not aware of this requirement and was not enforcing it. Nor, apparently, was Crowder's engineer aware of it. In any event, Crowder did not have a detailed study performed to delineate the flood prone area on the site, and the County did not require it. In approximately March, 1992, Polk County received a written communication from FEMA advising of the requirement for a detailed study of the flood prone area in the case of developments like Crowder's. Polk County now requires compliance with this FEMA requirement. Crowder did not rely simply on the FEMA undetailed "A" zone to map the flood prone area on the site. Crowder's engineers used the existing undetailed FEMA maps as a starting point for determining base flood elevations. The engineers digitized the areas which had been designated as flood prone on the FEMA panels. The engineer then overlayed the digitized FEMA map with the on- site wetlands survey of the property, which had been field-staked and field- shot. Topographical field shots of the property which had been conducted throughout the site at one foot intervals were also overlayed on the digitized FEMA map. In addition, the engineer took into consideration mapped wetlands soils and compared flooding conditions which had occurred on adjacent property to assess whether all areas actually prone to flooding had been characterized as flood prone on the FEMA map. The methodology used by the project engineers was based on sound engineering practices. Nonetheless, it does not qualify as a "detailed study" as far as FEMA is concerned. A "detailed study" would include the application of a computer program that would "route" hypothetical flood waters onto and through the property to ascertain flood elevations in different stages of the hypothetical flood. It is not possible to determine how a detailed study would change the delineation of the flood prone area in Crowder's proposal. The total area of flood prone area could either increase or decrease; it could increase in some places and decrease in others. As it is, several of the lots platted in the Crowder development would be entirely within both the FEMA undetailed "A" zone and the flood prone area mapped by Crowder's engineers. Ground Water Recharge. DCA alleges that platting Paradise Country Estates will adversely impact recharge of the Floridan Aquifer, contrary to Policy 9 and 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. In the vicinity of the project site, the Floridan Aquifer comes to within 35 feet approximately of the ground surface. Above the Floridan Aquifer is a shallow aquifer, which rises to within approximately 12 inches of the surface. There is a layer of clastic soils (sand and clay) between the surficial aquifer and the Floridan Aquifer. This confining layer slows the rate of recharge to the Floridan. As a result, the project site is in an area having low, or even very low, to moderate recharge capabilities, at best. USGS Professional Paper 1403-E, which was released in 1990, uses groundwater modelling to quantify recharge rates, instead of using qualitative terms such as "low," or "poor," "moderate" and "high" to describe recharge capabilities. USGS Professional paper 1403-E reports that many areas in the Green Swamp previously labeled as good, moderate or high recharge areas are actually capable of only recharging at rates of 3 to 4 inches per year. The subject property appears to be in the 2 to 3 inch range per year for recharge according to USGS Professional Paper 1403-E. Only three known sample soil borings have been taken on the project site. As a result, the extent of permeability and overall thickness of the confining layer between the surficial and Floridan aquifers is not certain. But there is no reason to believe that there are any karst features or other geologic faults in the area that would allow for direct connections between the surficial and Floridan aquifers. The soil borings that have been taken on the site verify the various geological surveys and studies describing the recharge capabilities in the area. Due to the site's limited capabilities as a recharge area, it is unlikely that the platting of this site will result in any significant reduction in its natural recharge rate. The project is not inconsistent with Policy 9 or 11, Objective III, "Natural Resources," of the LUE, or Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Individual Water Well Use. DCA alleges that the planned use of individual water wells in Crowder's Paradise Country Estates will impact the quantity of the Floridan Aquifer (and the surficial aquifer) contrary to Policy 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. The potentiometric level of the Floridan Aquifer protects the Floridan Aquifer from salt-water intrusion. Significant de-watering of the aquifer caused by large municipal or industrial wells extracting a high volume of water from the aquifer at an intense rate can lower the potentiometric pressure, thus increasing the potential for salt-water intrusion into the aquifer. (Furthermore, the lowered potentiometric pressure creates a hydraulic gradient which encourages surface waters to percolate downward at a faster rate due to the decreased pressure in the Floridan Aquifer. See the preceding sections on Ground Water Recharge and the following section on Ground and Surface Water Quality.) Large municipal, industrial or agricultural wells which exceed 6 inches in diameter must obtain consumptive use permits from the SWFWMD. The Water Management District takes into account what the District determines to be a safe yield per acre when issuing a consumptive use permit. Small, residential wells are not subject to this permitting process as their impacts are much smaller and less intense, and not a concern with regard to their effect on the potentiometric pressure. For this reason, some coastal areas have begun using smaller, individual wells as an alternative to larger municipal wells. The Floridan Aquifer is replenishing itself fast enough for residential wells not to "de-water" or "draw down" the aquifer's supply of ground water. Residential wells do not lower the potentiometric pressure of the Floridan to a significant degree. Nor would they affect the normal supply of ground water, or contribute to salt-water intrusion. Pumping tests performed within two to three miles west of the project site which utilized several residential-size wells support the foregoing conclusions. For these reasons, it is found that the development will not adversely impact the normal supply of ground water and thus will not interfere with the functions of the potentiometric high of the Floridan Aquifer, including its protection against salt-water intrusion. Since the water wells would pump only from the Floridan Aquifer, they would not impact the supply of surface water. In regard to the use of water wells, the project is not inconsistent with Policy 11, Objective III, "Natural Resources," of the LUE, or with Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Ground and Surface Water Quality. DCA alleges that Paradise Country Estates will result in unacceptable contamination of the Floridan Aquifer, the surficial aquifer, and the surface water (particularly the Withlacoochee River) contrary to Policies 9, 10 and 14 of the "Water Resource Objective" of the Conservation Element. Paragraph 20 of the DCA Petition alleges that the use of individual on-site disposal systems (OSDS), or septic tank systems, in violation of Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code), 8/ in particular, will be part of the cause of the unacceptable contamination (other causes being from lawn and garden maintenance and automotive wastes.) On-Site Disposal Systems. Chapter 10D-6, Florida Administrative Code, sets forth requirements for the use of on-site waste disposal, or septic tank, systems in the State of Florida. That chapter, which is administered by the Department of Health and Rehabilitative Services ("HRS") through local health departments, provides construction standards for the installation of on-site waste disposal systems. The septic tank serves as a holding tank designed to separate solids and floatable materials and allows anaerobic digestion of organic materials. The remaining effluent exits the tank into the soil infiltrative process, which is referred to as the drainfield. The drainfield is composed of gravel placed around perforated pipes, which are designed to evenly distribute and release the effluent into soil material where the effluent undergoes aerobic digestion. Eventually, any constituents remaining in the effluent which have not been absorbed by the root zone or otherwise decomposed reach the subsurface waters which are referred to as the surficial water table. Each individual lot owner will be required to obtain a permit from the local health department prior to installing an on-site waste disposal system. Prior to issuing a permit, HRS inspects each site to assess soil limitations and to conduct a percolation test to determine the seasonal high water table for the site. Because the soils on the site are severely limited for filtration purposes and the high water table is only 10 to 12 inches below the surface, individual lot owners will be required to mound their on-site waste disposal systems to overcome these limitations. Although the fill used to mound the systems will be comprised of suitable soils, it is possible that the foreign soils will absorb moisture from the existing soils on this site, a phenomenon referred to as capillary fringe affect. This phenomenon can cause those portions of the fill which come in direct contact with the existing soils on the site to lose their filtration capabilities. Unless the fill becomes saturated from other sources, it is unlikely that capillary fringe affect will render the filtration process ineffective. The effects of capillary fringe affect can be lessened by mixing fill with soils found on the site, a practice undertaken by contractors when installing on-site waste disposal systems. In addition, increasing the amount of fill used to mound the system would decrease the potential affects of this phenomenon. 9/ Floridan Aquifer Water Quality. In some areas of the Green Swamp, the Floridan Aquifer is actually considered a surficial aquifer since no confining layers of soil or clay separate the subsurface water from the Floridan Aquifer. These areas would typically be characterized as areas with high recharge capabilities (or high potential for contamination). However, throughout the project site, a confining layer exists which is composed of clayey sands which have a very low permeability. Therefore, there is relatively little interaction between the surficial aquifer and the Floridan Aquifer on this particular site. For this reason, the use of individual on-site waste disposal systems on this site would pose no significant risk to the water quality of the Floridan Aquifer. Surficial Aquifer and Surface Water Quality.-- As for the surficial aquifer and surface water quality, Chapter 10D-6, Florida Administrative Code, requires on-site waste disposal systems be located at least 75 feet from waterbodies. Normally, and when the systems are operating properly, this assures that adequate filtration and decomposition occurs before wastewater reaches surface waters on or near the site. But, in the case of the Crowder proposal, it is necessary to consider that at least some of the mounded systems will be subjected to flooding and will become saturated. Even based on the analysis by Crowder's engineers, 51 of the lots in Paradise Country Estates are entirely flood prone; there is no place to put an OSDS on those lots that is not flood prone. If a "detailed study" had been done, it is possible that more lots would be entirely within the flood hazard zone. Other lots not entirely within the flood zone may not be able to accommodate an OSDS on the part of the lot not within the flood zone. If the OSDS mound is saturated during flood conditions, the system will fail, and untreated waste, or inadequately treated waste, will be released into the surface flood waters. This waste water will move laterally across the project site. Roots may absorb some nitrates or other organic compounds; 10/ otherwise, the waste water and its constituents will remain in the surface water. Lateral movement across the site generally will be slow, as the site is relatively flat. Some of the waste water and its constituents will get into the surficial aquifer. There are ditches or canals alongside and on the site that will direct the rest of the surface water into Pony Creek and other tributories of the Withlacoochee River, an Outstanding Florida Water approximately three and a half miles to the north. The Department of Environmental Regulation issued a dredge and fill permit for the project's road network's impact on wetlands on the site. But it did not pass on the use of OSDS in the individual lots. It also erroneously referred to the Withlacoochee as a natural Class III, instead of an Outstanding Florida Water. See F.A.C. Rule 17-302.700(9)(i). The Southwest Florida Water Management District (SWFWMD) issued a surface water management permit for the project. In evaluating a permit application, SWFWMD considers surface water quality. But the focus of SWFWMD's inquiry is the pre- and post-development peak flows. Also, when it considers water quality, SWFWMD considers the impact of site alteration on water quality, not the impact of the use of OSDS on the site. In addition, the Crowder project was reviewed under special criteria for low-density rural subdivisions that do not require the submission of as much information. It was not clear from the evidence precisely how SWFMD evaluates water quality under those criteria. For these reasons, based on the evidence, it cannot be said that the Crowder project's OSDS will be meet the minimum standard of being "located to avoid impairment to them or contamination from them during flooding," as required by Section 5-1(6) of Polk County Flood Protection and Surface Water Management Code, or that the project will "protect the normal . . . quality of ground and surface water . . . necessary for the protection of resources of state and regional concern," as required by Policy 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Finally, the project will not "protect or improve existing ground and surface-water quality," as required by Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan. Other Appeal Issues. Except as set forth above, the Crowder development did not violate the 1985 comprehensive plan and Flood Protection and Surface Water Management Code provisions cited in the DCA Petition. Agency Practice - Other Development in the Area. As previously described, Evans Acres, to the west of the Crowder site, was approved by DCA in 1983. (See Finding 10, above.) As approved, it was comprised of 48 lots on approximately 1,290 acres (a density of one unit per 27 acres). The original lots ranged in size from 5 to 60 acres. Unbeknownst to the DCA, individuals apparently have since split their lots and many of the existing lots are 2 to 5 acres in size. A proposed development known as Turkey Creek is located between the project site and Evans Acres. Turkey Creek is comprised of approximately 57 lots on 170 acres with a gross density of 1 unit per 3 acres. The physical characteristics of the Turkey Creek property, including the abundance of wetlands and floodplains, are essentially the same as the proposed project site. DCA appealed Turkey Creek in June of 1992. However, in that case, the County had been approximately two years late in rendering the Turkey Creek development order to the DCA. Meanwhile, the developer incurred development expenses and already had constructed roads and drainage facilities for the development. The developer, the County and DCA executed a settlement agreement which allows the development to proceed according to the original construction plans, but requires homeowners to install dual septic tank systems and have their septic tanks cleaned and inspected every three years. Several other developments, which are in the general vicinity of the project site and have many of the same physical characteristics, including Yearling Trace and Buck Hill, have been appealed by DCA. Yearling Trace is comprised of 108 units on approximately 544 acres. Buck Hill is comprised of 55 units on approximately 214 acres. Those projects were appealed by DCA in June and April, 1992. In some of these cases, the County did not timely render development orders to DCA in a timely manner. In the case of Buck Hill, the DCA had been mailed an unapproved copy of development plans in October, 1990; in early 1992, DCA contacted the County to inquire, as no County-approved development plans ever had been sent to the DCA. In many of these cases, substantial development expenses had been incurred; in some cases, roads and drainage facilities already had been constructed. DCA decided to settle the pending appeals in which the County was late rendering the development order, and in which the developer already had constructed roads and drainage facilities, consistent with the Turkey Creek settlement. In cases where the County was late rendering the development order, but the developer had not already constructed roads and drainage facilities, the DCA determined to settle not only for stipulations to upgrade the OSDS, as in the Turkey Creek settlement, but also for requirements that a "detailed" flood zone study be done, in accordance with the FEMA requirements. Prior to the DCA appeal, Crowder had expended approximately $31,000 in permit fees. In addition, he has incurred development costs, primarily for engineering fees and related services. Through the time of the final hearing, he had spent approximately $99,000 on engineering fees and services. (The evidence was not clear how much had been incurred by the time of the DCA appeal.) However, the County was not late in rendering the Crowder development order, and Crowder has not constructed roads or drainage facilities. In view of the different circumstances in Crowder's case, DCA's prior agency practices do not compel that Crowder's development be treated in the same manner, i.e., be settled on the same terms, as the Turkey Creek and the others. DCA has argued that FLWAC's Final Order in the case of Dept. of Community Affairs v. Narbi International Company, Inc. and Lake County, 14 FALR 3223 (1992), controls this case and requires the Crowder development order to be overturned on appeal. Narbi involved development Green Swamp ACSC, albeit in Lake County. Factually, there are many differences between Narbi and this case. The Narbi development order was a rezoning from agricultural with a residential density of up to one unit per five acres to a residential planned unit development (PUD) zoning with a density of one unit per 1.35 acres. Also, Lake County's comprehensive plan had an "urban containment policy," which DCA equated with its non-rule policy preventing "urban sprawl" or "leap-frog development." Thirdly, in Narbi, it was found that a geologic fault existed on the project site which allowed a direct connection from the surficial aquifer to the Floridan Aquifer. Because of the factual differences, Narbi does not control the outcome of Crowder's case. Conditions for Approval. Based on the testimony of its witnesses, DCA has proposed that, notwithstanding its deficiencies, the Crowder project can be approved if its density is lowered to between one unit per ten acres and one unit per 20 acres. The rationale of DCA's witnesses seems to be that the proposed lower density, in and of itself, would cure at least the most significant of the deficiencies. Since the Crowder development order under review was for approval of particular road and drainage plans, the plans would have to be redrawn at the lower density and resubmitted for approval by the County subject to the final order to be entered in this case. It is not possible for the Commission to approve, on condition of lowered density, the plans that were the subject of the development order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order rescinding and denying approval for the development order in this case. RECOMMENDED this 10th day of March, 1993, 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 10th day of March, 1993.
The Issue Petitioners challenge the South Florida Water Management District’s (the District) proposed action to issue Individual Environmental Resource Permit (ERP) 50-06558-P to authorize conceptual approval of a surface water management (SWM) system to serve 1,919 acres of a phased, multiple-use development referred to as the Palm Beach County Biotechnolgy Research Park (BRP) and to authorize construction and operation of Phase 1A of that proposed project. The ultimate issue is whether the Applicants provided reasonable assurances that the proposed activities will not be harmful to the water resources of the District; will not be inconsistent with the overall objectives of the District; and will comply with the water quantity, environmental, and water quality criteria of the District’s ERP regulations, which are set forth in Part IV of Chapter 373, Florida Statutes, Florida Administrative Code Chapter 40E-4, et. seq.; and the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District – September 2003 (BOR).1
Findings Of Fact THE PARTIES The Florida Wildlife Federation, Audubon Society of the Everglades, and Jupiter Farms Environmental Council, Inc. (d/b/a Loxahatchee River Coalition) are not-for-profit corporations in existence prior to 2003 with more than 25 members in Palm Beach County. Palm Beach County Environmental Coalition was formed in 1997 and is a private, county-wide, non-profit citizen’s organization. Ms. Ketter, Mr. Bell, Ms. Larson, and Mr. Christensen are individuals affected by the proposed BRP. The Respondents stipulated that the parties who remained Petitioners after Mr. Silver’s withdrawal as a Petitioner have standing to bring this proceeding. The District, a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, operates pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district with its principal office in West Palm Beach, Florida. The County is a duly-constituted governmental entity. THE PROJECT SITE AND ADJACENT LANDS The site of the project is generally referred to as the Mecca Farms, which is a contiguous tract of 1,919 acres of land. At present, the Mecca Farms is used for farming and mining operations. There presently exists a permitted, SWM system on the Mecca Farms that was first permitted in 1979, and has been modified from time to time since then. The existing SWM system includes 73 acres of ditches and a 272-acre above-ground impoundment area. The Mecca Farms site is located within the C-18 Basin. There are no jurisdictional wetlands or delineated surface waters on the Mecca Farms. The following, which is taken from the Staff Report (SFWMD Ex. 1), accurately describes the project site and its adjacent lands: The project site consists of 1,919 acres presently supporting an active orange grove with approximately 73 acres of associated drainage and irrigation ditches/canals and a 30-acre active sand mining operation. The ditches/canals are presently maintained at an elevation of approximately 17 feet NGVD.[3] These ditches/canals provide drainage conveyance to a 272-acre above- ground impoundment located in the northeast corner of the site utilizing four (4) 22,000 gpm pumps. The above-ground impoundment discharges to the west leg of the C-18 Canal via gravity discharge. Project site ditches and canals also connect directly to the C-18 Canal through an 18,000 gpm pump. An additional 224-acre agricultural area east of the 1,919 acres of orange groves is connected to and drains into the canal/ditch system on the project site. This adjacent area was leased from the adjacent land owner by the grove owner for use as row crops and was connected to the grove canal/ditch system for better control of drainage and irrigation. The area is no longer used for row crops. There is also a small area on the site that contains caretaker housing and an equipment maintenance building for the orange groves. These facilities were originally permitted in 1979 under Surface Water Management Permit No. 50-00689-S and subsequent modifications. The citrus grove and primary drainage facilities have been in existence since the 1960s. The Hungryland Slough is located north of the project site, separated from the project site by the C-18 Canal. This area is comprised primarily of publicly-owned natural areas, including an area referred to as Unit 11, which is owned in the majority by Palm Beach County. To the west is the J.W. Corbett Wildlife Management Area (CWMA) owned and managed by the Florida Fish and Wildlife Conservation Commission (FFWCC). To the east, a large area of low-intensity agricultural land exists under the ownership of Charles Vavrus and within the City of Palm Beach Gardens. These lands contain extensive wetlands that are adjacent to the Loxahatchee Slough to the east. The Acreage, a low-density residential area, is located directly to the south of the project site. The only access to the site at this time is an unpaved extension of Seminole Pratt-Whitney Road (SPW), connecting the site at its southwestern corner to the Acreage. THE PROPOSED PROJECT The subject application is for conceptual approval of the SWM system for the BRP and for construction and operation of Phase 1A of the project. All of the proposed Phase 1A construction will occur on the Mecca Farms site. The following, taken from the Staff Report, accurately describes the proposed project: The [BRP] is a phased multiple use development planned for approximately 1,919 acres and will consist of land uses related to science and technology, biotechnology, biomedical, and other related research and development industries and manufacturing. Additionally, proposed support and complementary land uses include educational, institutional, residential, commercial, and recreational facilities, along with utilities and a large created natural area. THE PROPOSED SWM SYSTEM The proposed SWM system will consist of several interconnected lakes that will provide wet detention for storm water runoff from the property site and from 39 acres of off- site flows from SPW Road and a proposed Florida Power and Light (FPL) Substation. The lakes will collect, store, and treat the runoff. The storm water will pass through the lakes, through a 247-acre area referred to as the “Natural Area” (which will be created as part of the mitigation plan), and discharged to the C-18 Canal. To provide additional water quality treatment, these lakes will include planted littoral zones and the southern lake will include a filter marsh. The Natural Area will, in subsequent construction phases, be constructed on the western boundary of the Mecca site with discharge to the C-18 canal, which is adjacent to the northern boundary of the Mecca Farms. The southern boundary of the Natural Area will be the north boundary of the lake that is to be constructed on the southern end of the property. This is the area that is available for use as a flow-way (which will be discussed in greater detail in a subsequent section of this Recommended Order). The Natural Area will be a wetland type system that will move water slowly through that system providing additional storage and water quality benefits prior to discharging through a gravity control structure into the C-18 Canal. The C-18 Canal discharges to either the Northwest or Southwest Fork of the Loxahatchee River, depending on how structures are operated downstream. Discharges travel in the C-18 Canal for approximately nine miles before reaching the Loxahatchee River. The existing SWM system for the Mecca Farms currently discharges to the C-18 Canal, as will the proposed SWM system. The proposed project will not discharge to the CWMA or the Hungryland Slough. The Grassy Waters Preserve and the Loxahatchee Slough are several miles from the project site and will not be affected by the project’s proposed activities. The following, which is taken from the Staff Report, accurately describes the proposed SWM system. The proposed conceptual surface water management system which will serve the 1,919-acre site will consist of site grading, storm water inlets and culverts which will direct all runoff to a series of interconnected lakes for water quality treatment and attenuation of the peak runoff rate. Pumps will control the runoff rate from the developed site into the adjacent onsite BRP natural area. The BRP natural area will discharge into the C-18 canal via a gravity control structure. The system has been designed to accommodate 39 acres of off-site flows from SPW [Road] and a proposed Florida Power and Light (FPL) Substation. The existing control elevation of the citrus grove is 17.0’ NGVD. The proposed control elevations are 18.0’ NGVD for the developed area and 19.0’ NGVD for the natural area. The control elevations are being raised to provide a “step down” of water elevations from wetlands to the north, west and east of the site (20.5’ to 21.0’) to lower elevations to the south (17.0’). PHASE 1A CONSTRUCTION The following, which is taken from the Staff Report, accurately describes the proposed Phase 1A construction: The Phase 1A construction activities will allow the applicant to proceed with lake excavation, clearing and site grading of 536 acres in the southern portion of the site. No permanent buildings or parking areas are proposed at this time. Stormwater from Phase 1A and the remainder of the site, to remain in agricultural use, will be treated in the Phase 1A lakes and then pumped into the existing impoundment for additional water quality treatment and attenuation prior to discharging to the west leg of the C-18 Canal via the existing weir structures. The existing 18,000 gpm pump that connects the on-site ditches and canals directly to the C-18 Canal will remain, but will only be used if the impoundment is full. (See Special Condition No. 21). Approval of Phase 1A authorizes the use of the existing, previously permitted surface water management facilities, therefore, the previous permit no. 50-00689-S is superceded by this permit. The 224 acre agricultural area east of the existing grove that is connected to the grove canal/ditch system will be severed as part of Phase 1A. The pipe connecting this area will be removed and portions of the berm around this area will be regraded so the area will sheetflow into the adjacent pasture land’s canal/ditch system as it did previously [sic] to being connected to the grove system. Of the 536 acres involved in the Phase 1A construction, 87 acres will become lake bottom and 449 acres will remain pervious area, subject only to grading. CONCEPTUAL APPROVAL Pertinent to this proceeding, Florida Administrative Code Rule 40E-4.021(5) defines the term “conceptual approval” to mean an ERP issued by the District which approves a conceptual master plan for a surface water management system or a mitigation bank. Florida Administrative Code Rule 40E-4.305, pertains to conceptual approvals and provides, in relevant part, as follows: Conceptual approvals constitute final District action and are binding to the extent that adequate data has been submitted for review by the applicant during the review process. A conceptual approval does not authorize construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system or the establishment and operation of a mitigation bank. * * * For phased projects, the approval process must begin with an application for a conceptual approval which shall be the first permit issued for the project. An application for construction authorization of the first phase(s) may also be included as a part of the initial application. As the permittee desires to construct additional phases, new applications shall be processed as individual or standard general environmental resource permit applications pursuant to the conceptual approval. The conceptual approval, individual and standard general permits shall be modified in accordance with conditions contained in Chapters 40E-4 and 40E-40, F.A.C. Issuance of a conceptual approval permit pursuant to Chapter 40E-4, F.A.C., shall not relieve the applicant of any requirements for obtaining a permit to construct, alter, operate, maintain, remove, or abandon a surface water management system or establish or operate a mitigation bank, nor shall the conceptual approval permit applicant be relieved of the District’s informational requirements or the need to meet the standards of issuance of permits pursuant to Chapters 40E-4 or 40E-40, F.A.C. . . . PERMITTING CRITERIA In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. The conditions for issuance focus on water quantity criteria, environmental criteria, and water quality criteria. Florida Administrative Code Rule 40E-4.301 contains the following permitting conditions applicable to this proceeding: In order to obtain a standard general, individual, or conceptual approval permit ... an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters ...; will not cause adverse secondary impacts to the water resources; will not adversely impact the maintenance of surface or ground water levels or surface water flows ...; will not cause adverse impacts to a work of the District ...; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and will comply with any applicable special basin or geographic area criteria established in Chapter 40E-41 F.A.C. Florida Administrative Code Rule 40E-4.302 provides the following Additional Conditions for Issuance of Permits applicable to this proceeding: In addition to the conditions set forth in section 40E-4.301, F.A.C., in order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system: Located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 4.2.3 through 4.2.3.7 of the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District: Whether the activity will adversely affect the public health, safety or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the Basis of Review. . . . THE BASIS OF REVIEW The District has adopted the BOR and incorporated it by reference by Florida Administrative Code Rule 40E- 4.091(1)(a). The standards and criteria found in the BOR are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Section 1.3 of the BOR provides, in part, as follows: . . . Compliance with the criteria established herein [the BOR] constitutes a presumption that the project proposal is in conformance with the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302, F.A.C. WATER QUANTITY The term “control elevation” describes the level of freshwater water bodies established by a SWM system. The existing SWM system has a control elevation of 17’ NGVD. The control elevation for the proposed lake system will be raised to 18’ NGVD, and the control elevation for the proposed Natural Area will be raised to 19’ NGVD. Raising the control elevations will permit more treatment of storm water prior to discharge and will permit a more controlled discharge. In addition, raising the control elevation will lessen seepage onto the project site from adjacent wetlands. The Applicants provided reasonable assurances that the proposed project will not cause adverse water quantity impacts to receiving waters and adjacent lands, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E- 4.301(a). The Applicants provided reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E-4.301(b). The Applicants provided reasonable assurances that the proposed project will not cause adverse impacts to existing surface water storage and conveyance capabilities, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E-4.301(c). VALUE OF FUNCTIONS OF WETLANDS AND SURFACE WATERS Florida Administrative Code Rule 40E-4.301(d), requires the Applicants to establish that “. . . the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system . . .” “. . . will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters.” The District established that the term “value of functions,” as used in the rule, refers to habitat and life support functions. Because there are no wetlands or delineated surface waters on the Mecca Farms site, there are no direct adverse impacts to the functions that wetlands provide to fish and wildlife. The Applicants have provided reasonable assurances to demonstrate that the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters will not be adversely affected. The existing project site does not contain nesting areas for wetland-dependent endangered or threatened wildlife species or species of special concern. The potential for use of the existing project site for nesting by such species is minimal. The existing project site does contain habitat for the American Alligator and foraging habitat for wading birds and birds of prey. The primary foraging habitat on the existing site is around the perimeter of the existing 272-acre impoundment area in the northeast portion of the site. The existing impoundment will be replaced by on-site storm water treatment lakes and the BRP Natural Area that will have shallow banks planted with wetland plant species common to the area. Wildlife is opportunistic; and wading birds commonly feed in areas where there is water, wetland vegetation and wetland plants. The end result will be that the proposed project will have more and better foraging habitat acreage than the existing site. The Natural Area will provide a wetland buffer between the developed area and CWMA that will prevent any adverse impacts both to the wetlands and other surface waters in CWMA and to the value of the functions those wetlands and other surface waters provide to fish, wildlife, and listed species. The Natural Area will provide a wetland buffer between the developed area and Unit 11 that will prevent any adverse impacts both to the wetlands and other surface waters in Unit 11 and to the value of the functions those wetlands and other surface waters provide to fish, wildlife, and listed species. There was no competent evidence that the proposed project would impact the ability of the Florida Fish and Wildlife Conservation Commission to manage the CWMA through control burns or otherwise, thereby adversely affecting the diversity or abundance of fish and wildlife (including endangered species and their habitats). Petitioners attempted to raise the issue of mosquito control in their Petitions and at the Final Hearing. The allegations pertaining to mosquito control were struck by the District and Special Condition Number 26 was added before the Petitions were referred to DOAH. Petitioners made no attempt to amend their Petitions and have not challenged Special Condition 26. The Addendum to Staff Report (SFWMD Ex. 2) contains the following Special Condition Number 26: “Upon submittal of an application for construction of any buildings, the permittee shall submit a mosquito control plan for review and approval by District Staff.” Since there will be no buildings containing people or other facilities which would encourage the use of mosquito spraying, it is appropriate for the mosquito control condition to apply to only future phases of construction. There was no competent evidence of impacts attributable to pesticides associated with the application for the SWM system or for Phase 1A construction and operation that would adversely affect the diversity or abundance of fish and wildlife including endangered species and their habitats. The Applicants have satisfied the criteria set forth in Florida Administrative Code Rule 40E-4.301(d). WATER QUALITY The primary concern during Phase 1A construction will be erosion control. Best Management Practices (“BMPs”) are operational and design elements used to either eliminate or reduce the amount of pollutants at the source so they do not get into a SWM system or move downstream. To contain erosion in Phase 1A, the Applicants will use the following BMPs: Silt screens and turbidity barriers within existing ditches and around the perimeter of property. Planned construction sequencing to reduce movement and stock piling of material; Slope stabilization and seeding or sodding of graded areas; and Containment of construction materials with berms. All erosion and turbidity control measures will remain in place until the completion of the on-site construction and approval by the District’s post-permit compliance staff. The Applicants provided reasonable assurances that the proposed Phase 1A construction activities will not adversely impact the quality of receiving waters and that those activities will not violate State water quality standards. Section 5.2.1, BOR, requires that a SWM system provide wet detention for the first one inch of runoff. The proposed SWM system will provide wet detention for one and one-half inches of runoff. The Applicants provided reasonable assurances to demonstrate that the technical criteria in the BOR will be met. Under Section 1.3 of the BOR, compliance with the criteria in the BOR constitutes a presumption that the Proposed Project is in conformance with the conditions for issuance. This presumption was not rebutted by the Petitioners. The lake system will include planted littoral zones to provide additional uptake of pollutants. A filter marsh is also included in the southern lake. All of the storm water runoff from the lakes will pass through the filter marsh, which will be planted with wetland plants. The filter marsh will provide additional polishing of pollutants, uptake, and filtering through the plants. The discharge will then go into the BRP, which will provide the discharge additional uptake and filtering. BMPs utilized during the Operations and Maintenance phase will include regular maintenance inspections and cleaning of the SWM system, street-sweeping, litter control programs, roadway maintenance inspections and repair schedule, municipal waste collection, pollution prevention education programs, pesticides, herbicides and fertilizer storage, and application training and education. The littoral zones, filter marsh, BRP natural area, and BMPs were not included in the water quality calculations and are over and above rule requirements. The Applicants provided reasonable assurances to demonstrate that the proposed project will not adversely affect the quality of receiving waters. Therefore, Rule 40E- 4.301(1)(e), F.A.C., will be satisfied and water quality standards will not be violated. HAZARDOUS SUBSTANCES Pursuant to Section 5.5.5 of the BOR, commercial or industrial zoned projects shall provide at least one-half inch of dry detention or retention pretreatment as part of the required retention/detention, unless reasonable assurances can be offered that hazardous materials will not enter the project's SWM system. The Addendum to Staff Report reflects the following Special Condition 25 pertaining to hazardous materials: Upon submittal of an application for construction of commercial or industrial uses the permittee shall submit a plan that provides reasonable assurances that hazardous materials will not enter the surface water management system pursuant to the requirements of section 5.2.2(a) of the Basis of Review. Applicable permitting criteria does not require the Applicants to present a hazardous substances plan at this point because no facilities that will contain hazardous materials are part of the Phase 1A construction. SECONDARY IMPACTS Florida Administrative Code Rule 40E-4.301(1)(f) and Section 4.1.1(f) of the BOR, require an applicant to provide reasonable assurances that the proposed activities will not cause adverse secondary impacts to the water resources. A secondary impact is an indirect effect of a project resulting in adverse effects to wetlands or other surface waters. The District considers those adverse effects that would not occur "but for" the activities that are closely linked and causally related to the activity under review. This standard is discussed further in the Conclusions of Law section of this Recommended Order. The County’s Exhibit 3 is a secondary impact analysis identifying the secondary impacts that may potentially result from the proposed project. These impacts are: 1) the widening of SPW Road; 2) the construction of an FPL substation; 3) the extension of PGA Boulevard; and 4) the potential relocation of a runway at North County Airport. The secondary impact analysis performed pursuant to the Uniform Mitigation Assessment Method (UMAM) contained in Florida Administrative Code Chapter 62-345 reflects that up to 153.3 acres of wetlands may be partially or completely impacted by these secondary impacts, resulting in approximately 71.21 units of functional loss. Where future activities are expected to directly impact wetlands, secondary impacts were assessed based on the loss of all current functional value within the direct footprint of that activity. Additionally, an assessment was conducted to determine the degree of partial functional loss where impacts beyond the footprint of these activities are anticipated. SPW Road is an existing dirt road which is in the County's five-year road plan to widen as a four-lane paved road. Because the widening of the existing dirt road to a four-lane paved road is part of the five-year road plan, the impacts of that widening are not attributable to the subject project. However, as part of the proposed project, it is proposed to widen SPW Road to a six-lane paved road. The additional impacts associated with the widening from four to six lanes will be caused by, and are linked to, the proposed project. These impacts amount to approximately 2.2 acres. The FPL substation, which is proposed to service the proposed project, may result in 1.6 acres of potential direct impacts to wetlands. In addition, 1.0 acre of potential indirect secondary impacts may occur to wetlands that are not going to be dredged and filled. Those indirect secondary impacts may have some adverse impact on the functional value to those wetlands for wildlife utilization. The extension of PGA Boulevard to the Mecca Farms site has the potential to result in 45.6 acres of direct impacts to wetlands and 56.6 acres of indirect secondary wetland impacts which will not be dredged or filled, but will be in close proximity to the road. The secondary impact assessment for PGA Boulevard assumed the incorporation of wildlife crossings to minimize habitat fragmentation. If the airport runway needs to be shifted, potential direct wetland impacts to an additional 22.7 acres may occur. Indirect impacts to 23.6 acres of wetlands in close proximity could also occur. Runway relocation may or may not be necessary due to the PGA Boulevard extension; however, the analysis assumed the need for the relocation. Each of the projects listed above as potential secondary impacts will require a separate construction and operation permit from the District. The issuance of this permit does not in any way guarantee the issuance of permits for any of these identified potential secondary impacts. MITIGATION PLAN The Applicants provided a conceptual mitigation plan using UMAM to demonstrate how potential secondary impacts could be offset. Mitigation options have the potential to provide more than twice the functional gain than the functional loss from the identified secondary impacts. The conceptual mitigation options include: 194 acres of the land that had been acquired for future mitigation needs in Unit 11. 227 acres of the BRP natural area. 32.6 acres in the southern lake wetland along with proposed upland habitat. Sufficient mitigation is available in these options to offset the potential secondary impacts. The mitigation for the four potential secondary impacts is not required to be implemented now because the impacts are not occurring now. Section 4.2.7 of the BOR requires that the District consider those future impacts now and that a conceptual mitigation plan be provided to demonstrate and provide reasonable assurances that those impacts, in fact, can be offset in the future. The Governor and Cabinet sitting as the Board of Trustees considered and approved a request for public easement of approximately 30 acres to use a portion of CWMA for SPW Road, an FPL substation, and the land area that may be needed by District in the future for the connection to the flow-way. As consideration in exchange for the public easement over 30 acres, the County will transfer fee simple title of 60 acres to the State. This public easement also provides a benefit for CERP as it includes the small portion that the District is going to need for its future CERP project to connect to the flow-way on the proposed project site. The Applicants provided reasonable assurances that mitigation will offset secondary impacts to wetlands and other surface waters. UNIDENTIFIED SECONDARY IMPACTS Testimony at the final hearing raised a question as to whether there is nesting or roosting by listed wading bird species in adjacent off-site wetlands outside the eastern boundary of the project site. Evidence was inconclusive on nesting or roosting in these areas. Because the status of adjacent listed wading bird nesting or roosting is uncertain, the District suggested in its Proposed Recommended Order that a special condition requiring a wildlife survey prior to construction near the eastern project boundary be added to the permit as follows: Prior to application for construction within 1000 feet of the eastern boundary of the above-ground impoundment, the applicant shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. The District represented in its Proposed Recommended Order that the County has no objection to adding the foregoing condition. CUMULATIVE IMPACTS Pursuant to Section 373.414(8), Florida Statutes, the District is required to consider cumulative impacts upon wetlands and other surface waters delineated in Section 373.421(1), Florida Statutes, within the same drainage basin. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. The cumulative impact analysis is geographically based upon the drainage basins described in Figure 4.2.8-1 of the BOR. Cumulative impacts are unacceptable when they would result in unacceptable adverse impacts to the functions of wetlands and surface waters within a drainage basin. There are no wetlands or other surface waters delineated pursuant to Section 373.421(1), Florida Statutes, on the Mecca Farms site. Therefore, no cumulative impacts are created by the direct impacts of the project. Cumulative impacts may be created by a project's secondary impacts. If a wetland impact has been appropriately mitigated on-site within the drainage basin, there is no residual impact, and therefore no cumulative impact. The PGA Boulevard extension, a portion of the SPW Road widening, and the airport runway relocation are located within the C-18 Basin. The proposed mitigation options are all located in the C-18 Basin and will offset those impacts. Those potential secondary impacts are considered to meet the cumulative impact requirements of Section 373.414(8), Florida Statutes. The Applicants provided reasonable assurances that the proposed project will not result in cumulative impacts to the C-18 Basin. The FPL substation is located within the L-8 Drainage Basin. The majority of the SPW Road expansion is located within the C-18 Basin, but a portion is located on the basin line between the C-18 Basin and the L-8 Basin. Because the mitigation for the L-8 impacts are proposed in a different basin, the Applicants were required to conduct a cumulative impact analysis for the L-8 Basin impacts. Based on the Florida Land Use Cover Classification System, there are 43,457 acres of freshwater wetlands within the L-8 Basin. Approximately 41,000 acres of the wetlands in L-8 Basin are in public ownership. This total constitutes approximately 95 percent of all the wetlands in the L-8 Basin. Public ownership of these wetlands provide a high level of assurance that these lands will be protected in perpetuity. The Respondents established that proposed mitigation can fully offset the potential impacts from the SPW Road expansion and the FPL substation and the approximately four acres of impacted wetlands in the L-8 Basin. The Applicants provided reasonable assurances that there are no unacceptable adverse cumulative impacts on the L-8 Basin.4 GROUND WATER FLOWS, SURFACE WATER FLOWS, AND MINIMUM FLOWS AND LEVELS Florida Administrative Code Rule 40E-4.301(1)(g) requires an applicant to provide reasonable assurances that the proposed activity will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The term "maintenance of surface and groundwater levels or surface water flows" in Florida Administrative Code Rule 40E-4.301(1)(g) means that a project will not adversely impact the maintenance of surface water flows that contribute to meeting the minimum flow for the water body. An adverse impact to the maintenance of surface or groundwater levels or surface water flows may occur when a project discharging to a water body with a designated minimum flow level is proposed to be diverted. An analysis was done to compare the peak discharge rate from the existing SWM system on the Mecca Farms site with the projected peak discharge rate from the proposed SWM system. The analysis showed that the peak discharge rate under the proposed system will be less than that of the existing system. That result was expected since the proposed system will have higher control elevations, which, as noted above, will provide better treatment and permit a better control of the discharge into the C-18 Canal. Under the existing SWM system, storm event water in a dry period is frequently stored in the existing impoundment for future irrigation purposes. Under the proposed SWM system such storm event water will be discharged downstream, which will benefit those downstream areas during dry periods. The proposed system will also provide better control over pulse discharges during heavy storm events. The Applicants provided reasonable assurances that the proposed activities will not adversely impact the maintenance of surface or ground levels or surface water flows as required by Florida Administrative Code Rule 40E-4.301(1)(g). THE DISTRICT’S OBJECTIVES Sections 373.414 and 373.416, Florida Statutes, require an applicant to provide reasonable assurances that a regulated activity will not be harmful to the water resources and will not be inconsistent with the overall objectives of the District. Congress initially authorized the Central and Southern Florida (“C&SF”) Project in 1948. Thereafter extensive work was undertaken pertaining to flood control; water supply for municipal, industrial, and agricultural uses; prevention of saltwater intrusion; and protection of fish and wildlife. The work included construction of a primary system of 1000 miles each of levees and canals, 150 water-control structures, and 16 major pump stations. Unintended consequences of the C&SF Project have included the irreversible loss of vast areas of wetlands, including half of the original Everglades; the alteration in the water storage, timing, and flow capacities of natural drainage systems; and the degradation of water quality and habitat due to over-drainage or extreme fluctuations in the timing and delivery of fresh water into the coastal wetlands and estuaries. In 1992, Congress authorized the C&SF Project Comprehensive Review Study, which is generally referred to as the “Restudy.” The objective of the Restudy was to reexamine the C&SF Project to determine the feasibility of modifying the project to restore the South Florida ecosystem and provide for the other water-related needs of the region, such as water supply and flood protection. In April 1999, the U.S. Army Corps of Engineers issued the Central and Southern Florida Project Comprehensive Review Study Final Integrated Feasibility Report and Programmatic Environmental Impact Statement (“Restudy Report”). The Restudy Report recommends a comprehensive plan for the restoration, protection, and preservation of the water resources of Central and South Florida. The resulting plan is known as CERP. The North Palm Beach County Part I project, which includes restoration of the Northwest Fork of the Loxahatchee River (“NWFLR”), is a component of CERP. The successful completion of CERP and the successful restoration of the NWFLR are high-priority objectives of the District. The Loxahatchee River is an important feature of the South Florida ecosystem, nationally and internationally unique, and an important natural and economic resource. Rules pertaining to MFL for the NWFLR and for the recovery of the NWFLR are found at Florida Administrative Code Rule 40E-8.011; 40E-8.221(4); and 40E-8.421. Recovery goals, which are not presently being met, have been established; and strategies to meet those goals have been identified. The Mecca Farms site is located within the boundaries of the CERP North Palm Beach County Part I project and has the potential to affect CERP and the restoration of the NWFLR. Projects that potentially would affect or would be within or adjacent to a CERP project are evaluated on a case-by- case basis to determine whether a proposed project would not be inconsistent with CERP and other District objectives. There was a dispute between Respondents and Petitioners as to whether the proposed project was inconsistent with the District’s objectives, including CERP and its goals pertaining to the restoration of the NWFLR. Petitioners contend that the District has insufficient evidence that the Mecca Farms will not be needed for the construction of a reservoir. That contention is rejected. The greater weight of the credible evidence established that sufficient storage is available at a superior site known as the Palm Beach Aggregates (PBA) site in the L-8 Basin, which is a unique geological site that will provide in-ground storage of water.5 Water from the PBA storage site can be conveyed to the NWFLR to increase dry season flows. Water can be stored at the PBA site in the wet season to prevent potentially damaging high flows. The L-8 Basin, which is adjacent to the C-18 Basin, receives more water during the wet season than it uses. This means that at present a significant amount of water must be discharged to tide (lost) during the wet season to provide for flood protection in this area. As envisioned, the water currently lost to tide could be stored at the PBA site for use during the dry season. By combining the water storage in the L-8 Basin with connective flow-ways to the C-18 Canal, water demands within the C-18 Basin, including the NWFLR, can also be met by the PBA storage site.6 An increase in freshwater flows to the NWFLR will further the District’s restoration goals for the NWFLR. Storage at PBA has regional benefits for other significant natural areas because it will provide additional flows to the Loxahatchee Slough and Grassy Waters Preserve. Those additional flows will further the District’s CERP goals. Since October of 2003, County staff and the District’s ERP staff have coordinated review of the subject project with the District’s CERP Planning and Federal Projects Division and other District staff working on projects in this region. The County asked the District to determine if the Mecca Farms’ site could in some way accommodate CERP objectives, and three alternatives were considered: 1) no action; 2) a reservoir; and 3) a flow-way. As opposed to a reservoir, the more valuable and the more practical, use of the Mecca Farms site would be as part of the system to convey the stored water to the areas that would most benefit from its discharge. The proposed flow-way in the BRP Natural Area would be an integral part of that conveyance system and would provide the District with greater flexibility in managing and directing the discharge of the water stored at the PBA site. Prior to the development of the flow-way concept as part of the proposed development, CERP identified a single route to take water from PBA to the NWFLR. The flow-way will provide an additional route from PBA to the NWFLR. That additional route will provide the District with greater operational flexibility. The flow-way will complement the L-8 Basin flow- way and help reduce peak flows to the NWFLR and the Estuary. The flow-way also provides a potential route allowing excess water to be brought back from the C-18 Basin to the PBA site for storage. There are no other potential routes that allow water to be directed from the C-18 Basin in the wet season to the PBA site. The flow-way provides a feature that was not part of the CERP original plan and is therefore an unanticipated benefit for CERP. The Applicants provided reasonable assurances that the proposed project is not inconsistent with the District’s objectives.7
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the District issue the subject ERP for the conceptual approval of the SWM system for the BRP and the Phase 1A construction and operation subject to the general and special conditions set forth in the Staff Report and the Amended Staff Report. It is further RECOMMENDED that the District add the following special condition: Prior to application for construction within 1000 feet of the eastern boundary of the above-ground impoundment, the applicants shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. DONE AND ENTERED this 3rd day of December, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 3rd day of December, 2004.
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD) should issue an Environmental Resource Permit (ERP) for the redevelopment of property owned by G5 Properties, LLC (G5).
Findings Of Fact The property owned by G5 east of U.S. 41 and south of Sunrise Boulevard in Fort Myers was developed as separate parcels by different owners in the 1970’s and 1980’s under the stormwater management regulations in effect at that time. Similarly, the Duke’s property to the south was developed in that era under the same stormwater management regulations. The properties do not meet current ERP regulations. G5 acquired the two parcels comprising its property with the intention of redeveloping it, primarily by constructing a two-story medical office building on what was the southern parcel. G5 applied to upgrade the surface water management system on the property, primarily by installing a detention pond on the southern parcel and directing surface water flow from a designated sub-basin on the southern parcel into the detention pond. The detention pond was to serve the dual purposes of storage and water quality treatment. It was properly sized to store and treat the runoff from the sub-basin in a 25-year/3-day (the proper design) storm. Discharge from the detention pond was to be into the existing stormwater conveyance (an underground pipe) in the road right-of-way along the eastern property line (west of Austin Street). From there, water flows south into a drainage ditch to the south of the Duke’s property. From there, water flows west to Whiskey Creek and eventually into the Caloosahatchee River. (The River is impaired; neither the Creek nor the River are designated as Outstanding Florida Water). Although most of the redevelopment of G5’s medical office building is on what was the southern parcel, and most of the stormwater falling on the southern parcel is directed into the detention pond, there is a covered portico entrance on the north side of the medical office building with a driveway that ramps up to the entrance from the west and ramps down away from the entrance to the east. The covered portico and ramped driveway extend onto what was the northern parcel. Some of the surface water runoff from the driveway flows to the west into the Florida Department of Transportation (DOT) swale in the U.S. 41 right-of-way, as it did before redevelopment; some of the surface water runoff from the driveway flows to the east and north, onto what was the northern parcel of G5’s property. Except for this runoff flow from the driveway, the drainage patterns on the northern parcel remain practically the same, the only differences being the replacement of a small amount of impervious surface with new impervious surface (pavement) and a small amount of impervious surface with pervious surface. G5’s redevelopment of its medical office building includes a driveway along the south side of the building, just north of the Duke’s property, leading to parking on the south and east side of the building. Some of the surface water runoff from the entrance to the driveway flows to the west into the DOT swale in the U.S. 41 right-of-way, as it did before redevelopment. G5’s ERP does not provide for any storage or water quality treatment for runoff from the northern parcel, except for the addition of removable (for cleaning) filter inserts for the storm drains in that part of the property. During the application process, G5 modified its proposal to deepen the detention pond. This was done to allow the redeveloper of the Taco Bell half a mile to the south of the Duke’s property to take credit for additional storage and water quality treatment in order to get a Lee County permit for its project. The Taco Bell also was developed under the old stormwater management regulations, but its redevelopment was able to use a SFWMD “No Notice General Permit” because it impacted no wetlands, was less than ten acres, and had less than two acres of impervious surface. However, it needed a Lee County stormwater permit, which it could not get without additional water quality storage and treatment. Lee County allowed the Taco Bell redevelopment project to take credit for an increase in the depth of the detention pond at the G5 site and issued its permit. Although Taco Bell got credit for water quality storage and treatment at the G5 property, no surface water runoff from the Taco Bell site actually reaches G5’s detention pond, or even the Duke’s property. It flows north through the pipe along Austin Street to the drainage ditch to the south of the Duke’s property, and from there to Whiskey Creek and the Caloosahatchee River. However, the deeper detention pond would provide additional storage and water quality treatment for the G5 site for storms bigger than the design storm. Petitioner’s surveyor testified that there are up to four places along the property line between the G5 property and the Duke’s property where topography indicates that some surface water runoff can flow from the G5 property across the property line to the Duke’s property, post-redevelopment. His testimony was based on a comparison of spot elevations he took in the vicinity of the property line with elevations taken by other surveyors. In addition, the surveyor could not say how much flow would occur in a 25-year, 3-day storm. There was persuasive testimony from G5’s engineer that the flow from one of the four locations identified by Petitioner’s surveyor (in the southeast corner of the southern parcel of G5’s property) existed pre-redevelopment. Contrary to Petitioner’s argument, this testimony actually did not contradict other testimony of the engineer that all runoff from the new pavement on the southern parcel of the G5 property was intended to flow into the new detention pond. In that location in the southeast corner, G5’s redevelopment project removed pavement, added 4-inch high curbing along the edge of the new pavement, and added grass between the curb and the property line (which would tend to reduce runoff onto the Duke’s property). Another location identified by Petitioner’s surveyor was between the new office building and the property line. The surveyor related a water stain on the pavement and an exposed tree root ball to significant standing water and high flow conditions. Petitioner contends that this occurs because an asphalt overlay, four-tenths of a foot thick, was placed on top of the existing pavement in that area. To the contrary, G5’s engineer testified that the surface water management system functions as it should and that the overlay did not change the grade but was “just to benefit the existing asphalt from deteriorating any more.” The water stain could be attributable at least in part to landscape irrigation, and the tree root may have been exposed mechanically. Even if the surveyor’s testimony proved that there is some water flow in that area, he could not testify as to the quantity of flow. Based on a preponderance of the evidence, G5 provided reasonable assurances that its surface water management system functions properly and that post-redevelopment runoff from the G5 property onto the Duke’s property does not exceed pre- redevelopment conditions. Petitioner cites significant standing water on the Duke’s property after a heavy rain on January 26, 2011, as proof that the G5 redevelopment has caused flooding of the Duke’s property. However, there was no standing water on the G5 property, and hardly any water in the detention pond. The standing water on Petitioner’s property was above two storm drains on the western part of the Duke’s property, which drain into the same pipe as the storm drains on the western side of the G5 property and the outfall structure discharging from the detention pond on the G5 property. The standing water on the Duke’s property probably was caused by clogs in the drains in the Duke’s stormwater management system, not by G5’s redevelopment. Mr. Harrow claimed that the Duke’s property was inspected when purchased, its stormwater management system was functioning properly, and it was properly maintained. But he also testified that maintenance ceased at some point and that it would require an engineer to correct what is wrong with it now, which Mr. Harrow believed to be cost-prohibitive and the responsibility of G5, not Petitioner. Petitioner contends that no ERP should issue for G5’s redevelopment project without the participation of Taco Bell in the operation and maintenance of the G5 detention pond. To the contrary, the Taco Bell permit might be deficient if Taco Bell has no control over the operation and maintenance of G5’s detention pond, but there is no reason why Taco Bell has to participate in the operation and maintenance of G5’s detention pond. By a preponderance of the evidence, G5 provided reasonable assurances that it has the legal and financial ability to operate and maintain its system, including the detention pond. If a new development, G5’s redevelopment project (which includes all 3.41 acres in the northern and southern parcels of the G5 property) would not meet the criteria for issuance of an ERP because there was no demonstration that there is enough water quality storage and treatment. However, because of the addition of water quality storage and treatment for the southern parcel and the addition of filters for the drains on the property, the redevelopment of the site resulted in a net improvement in water quality storage and treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that SFWMD deny G5 an ERP for its redevelopment for failure to meet BOR requirements as to water quality storage and treatment. DONE AND ENTERED this 25th day of May, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2011. COPIES FURNISHED: Margaret M. Craig, Esquire Bricklemyer Smolker & Bolves, P.A. 500 East Kennedy Boulevard, 2nd Floor Tampa, Florida 33602-4936 Matthew D. Uhle, Esquire Law Office of Matthew D. Uhle, LLC 1617 Hendry Street, Suite 411 Fort Myers, Florida 33901-2926 Douglas H. MacLaughlin, Sr., Esquire South Florida Water Management District 3301 Gun Club Road, Mail Stop Code 1410 West Palm Beach, Florida 33406-3007 Tommy B. Strowd, Interim Executive Director South Florida Water Management District 3301 Gun Club Road, Mail Stop Code 1410 West Palm Beach, Florida 33406-3007
The Issue The issues are whether to (a) issue an Environmental Resource Permit (ERP) to the Department of Transportation (DOT) and Martin County (County) authorizing construction and operation of a surface water management system to serve a project known as the Indian Street Bridge; (b) issue DOT a letter of modification of ERP No. 43-00785-S authorizing roadway and drainage modifications to the Kanner Highway/Indian Street intersection; and (c) issue DOT a letter of modification of ERP No. 43-01229-P authorizing roadway and drainage modifications to Indian Street between the intersections of Kanner Highway and Willoughby Boulevard.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Citizens for Smart Growth, Inc., is a Florida 501(c)(3) corporation with its principal place of business in Palm City, Florida. It was formed by Odias Smith in August 2001, who serves as its president. The original directors were Kathie Smith, Odias Smith, and Craig Smith, who is the Smiths' son. The composition of the Board has never changed. According to the original Articles of Incorporation, its objectives are "preserving and enhancing the present advantages of living in Martin County (Quality of Life) for the common good, through public education, and the encouragement of reasonable and considered decision making by full disclosure of impacts and alternatives for the most appropriate use of land, water and resources." The exact number of members fluctuates from time to time. There are no dues paid by any member. At his deposition, Mr. Smith stated that no membership list exists; however, Kathie Smith stated that she currently has a list of 125 names, consisting of persons who at one time or another have made a contribution, have attended a meeting, or asked to be "kept informed of what's going on or asked to be on a mailing list or a telephone list, so they could be advised when we have meetings." No meetings have been held since 2006. Therefore, the Petitions filed in these cases have never been discussed at any meetings of the members, although Ms. Smith indicated that telephone discussions periodically occur with various individuals. Kathie Smith believes that roughly 25 percent of the members reside in a mobile home park north of the project site on Kanner Highway on the eastern side of the St. Lucie River, she does not know how many members reside on the western side of the St. Lucie River, and she is unaware of any member who resides on the South Fork of the St. Lucie River immediately adjacent to the project. Although the three Petitions allege that "seventy percent of the members . . . reside and/or recreate on the St. Lucie River," and in greater detail they allege how those members use that water body or depend on it for their livelihood, no evidence was submitted to support these allegations that 70 percent (or any other percentage of members) use or depend on the South Fork of the St. Lucie River for recreational or other activities. Petitioners Odias Smith and Cathie Smith reside in Palm City, an unincorporated community just south of Stuart in Martin County. They have opposed the construction of the new bridge since they moved to Palm City in 2001. It is fair to infer that Mr. Smith formed the corporation primarily for the purpose of opposing the bridge. Their home faces north, overlooking the South Fork of the St. Lucie River, from which it is separated by Saint Lucie Shores Drive and a narrow strip of common-ownership property. A boat dock extends from the common-ownership property into the St. Lucie River, providing 5 slips for use by the Smiths and other co-owners. The home is located three blocks or approximately 1,000 feet from the proposed western landfall of the new bridge. Due to the direction that the house faces (north) and the site of the new bridge, the surface water management system elements associated with the bridge will not be visible from their property. Mr. Smith believes, however, that when looking south through a veranda window on the second floor of his home, he will be able to see at least a part of the new bridge. From the front of their house, they now have an unobstructed view of the existing Palm City Bridge, a large structure that crosses the St. Lucie River approximately six- tenths of a mile north of their home, and which is similar in size to the new bridge now being proposed by the Applicants. The Smiths' home is more than 500 feet from the Project's right- of-way, and they do not know of any impact on its value caused by the Project. While the Smiths currently engage in walking, boating, running, fishing, and watching wildlife in the neighborhood or the South Fork of the St. Lucie River, there was no credible evidence that the Project would prevent them from doing so after the bridge and other improvements are constructed. Also, there was no evidence showing that the ERP Letter Modifications will cause them to suffer any adverse impacts. In fact, as noted below, by DOT undertaking the Project, the neighborhood will be improved through reduced flooding, improved water quality, and new swales and ponds. The County is a political subdivision of the State. It filed one of the applications at issue in this proceeding. DOT is an agency of the State and filed the three applications being contested. The District has the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Part IV, Chapter 373, Florida Statutes, and Title 40E of the Florida Administrative Code. The Department of Environment Protection (DEP) has delegated certain authority to the District, including the authority to authorize an applicant to use sovereign submerged lands via a public easement within the District's geographic jurisdiction. The Project Construction of a new bridge over the St. Lucie River has been studied extensively by the Applicants for over twenty years. DOT has awarded the contract and nearly all of the right-of-way has been purchased. The Project will begin as soon as the remaining permits are acquired. The Project is fully funded through the American Recovery and Reinvestment Act of 2009 and County funding. The Project is located in the County and includes 62.06 acres of roadway bridge development and 12.45 acres of sovereign submerged lands. The Project begins on the west side of the St. Lucie River on County Road 714, approximately 1,300 feet west of Mapp Road in Palm City and ends on the east side of the St. Lucie River approximately 1,400 feet east of Kanner Highway (State Road 76) on Indian Street. It includes construction and operation of a surface water management system to serve the road and bridge project. The total length of the Project is approximately 1.96 miles (1.38 miles of roadway and 0.58 miles of bridge) while the total area is approximately 74.51 acres. After treatment, surface water runoff will discharge to the tidal South Fork of the St. Lucie River. The Project encompasses a bridge crossing the South Fork of the St. Lucie River and the Okeechobee Waterway. Both are classified as Class III waters. The bridge transitions from 4 to 6 lanes east of the Okeechobee Waterway and will require a 55-foot vertical clearance and a 200-foot horizontal clearance between the fender systems at the Okeechobee Waterway. The bridge will cross over a portion of Kiplinger Island owned and preserved by the County. A part of the island was donated to the County in 1993-1994 by The Kiplinger Washington Editors, Inc., and the Kiplinger Foundation, Inc. Audubon of Martin County owns another part of the island. The transfer of title to the County does not include any restriction on the use of the island for conservation purposes only. Documentation submitted at hearing refers to a "two hundred foot wide road right-of-way" easement that the bridge will cross and allows the County to designate where on the island parcel such an easement would be. Therefore, spanning the bridge over a portion of the island owned by the County is clearly permissible. The Project also includes the roadway transition and widening/reconstruction of (a) County Road 714 from the beginning of the Project to Mapp Road from 2-lane to a 4-lane divided roadway; (b) Southwest 36th Street from Mapp Road to the beginning of the bridge from a 2-lane rural roadway to a 4-lane divided roadway with wide roadway swales; and (c) Kanner Highway (along Indian Street) from a 4-lane to a 6-lane divided urban roadway. Drainage improvements on both sides of the St. Lucie River are associated with the roadway construction. DOT proposes to provide both on-site and off-site mitigation for wetland and surface waters impacts pursuant to a mitigation plan approved by the District. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. Besides these rules, certain related BOR provisions which implement the rules must also be considered. The conditions for issuance primarily focus on water quality, water quantity, and environmental criteria and form the basis of the District's ERP permitting program. The parties have stipulated that the Project either complies with the following rule provisions or they are not applicable: Rules 40E-4.301(1)(a), (b), (g), (g), (h), and (k), and 40E- 4.302(1)(a)3. and 6. All other provisions remain at issue. Where conflicting evidence on these issues was submitted, the undersigned has resolved all evidentiary conflicts in favor of the Applicants and District. Based on the parties' Stipulation, the following provisions in Rule 40E-4.301(1) are in dispute and require an applicant to provide reasonable assurances that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any anti-degradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated; will not cause adverse secondary impacts to the water resources; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; These disputed criteria are discussed separately below. Surface Water Storage and Conveyance Rule 40E-4.301(1)(c) requires that an applicant provide reasonable assurances that a proposed activity will not cause adverse impacts to existing surface water storage and conveyance capabilities. Through unrefuted evidence, this requirement was shown to be satisfied. The evidence also establishes that the surface water in and around the Project will actually improve if the Project is constructed as permitted. Further, it will create improved and upgraded surface water management and treatment in areas that now lack features such as swales, retention/detention ponds, curbs and gutters, and improve the overall surface water storage and conveyance capabilities of the Project and surrounding areas. In its current pre-development condition, flooding has occurred in certain areas adjacent to and within the Project area due to poor conveyance, low storage volume, and high tailwater conditions that result from high tides. The Project will remedy historic flooding issues in the Old Palm City area which lies adjacent to a portion of the Project alignment. Surface water runoff will be captured, controlled, and treated by a system of swales, weirs, and retention/detention facilities for pretreatment prior to discharging into the South Fork of the St. Lucie River. Reasonable assurances have been given that existing surface water storage and conveyance capabilities will not be adversely affected. Value of Functions to Fish, Wildlife, and Species Rule 40E-4.301(1)(d) requires that an applicant provide reasonable assurances that a proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. BOR Section 4.2.2 further implements this provision. For the following reasons, the rule and BOR have been satisfied. The evidence shows that the existing functions to fish and wildlife were assessed and analyzed by a number of federal and state fish and wildlife agencies. There were extensive review and site inspections by the District, DOT, United States Fish and Wildlife Service, United States Army Corps of Engineers, and National Marine Fisheries Commission to assess the existence of, and potential impact on, fish and wildlife that may result from the Project. These studies revealed that while portions of the South Fork of the St. Lucie River provide potential habitat for aquatic or wetland-dependent or threatened species of special concern, no nesting or roosting areas within the vicinity of the Project were observed. The evidence further supports a finding that "other surface waters" over and under the Project will not receive unacceptable impacts due to their current condition, the detrimental influences of Lake Okeechobee discharges, and tidal impacts. Many of the wetlands to be impacted by the Project were shown to have been impacted by historic activities, and they provide diminished functions to fish and wildlife. The wetland functions were assessed through the Uniform Mitigation Assessment Methodology (UMAM). The UMAM is a standardized procedure for assessing the functions provided by wetlands and other surface waters, the amount that those functions would be reduced by a proposed project, and the amount of mitigation necessary to offset that loss. Detailed UMAM assessments were prepared by the Applicants and the District. They demonstrate that while certain functional units will be lost, they will be fully offset by the proposed mitigation. No credible evidence to the contrary was presented. Water Quality of Receiving Waters Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that a project will not adversely affect the quality of receiving waters such that State water quality standards will be violated. BOR Section 4.2.4 implements this rule and requires that "reasonable assurances regarding water quality must be provided for both the short term and long term, addressing the proposed construction, . . . [and] operation of the system." The receiving water body is the South Fork of the St. Lucie River, which is designated as an impaired water body. The evidence establishes that the Applicants will avoid and minimize potential short-term impacts to water quality by using silt screens and turbidity barriers, and implementing other best management practices to contain turbidity during construction of the Project. They will also use a temporary trestle rather than barges in the shallow portions of the South Fork to avoid stirring up bottom sediments. Finally, a turbidity monitoring plan will be implemented during construction and dewatering activities for all in-water work. All of these construction techniques will minimize potential impacts during construction. The evidence further establishes that water quality standards will not be violated as a result of the Project. In fact, in some cases water quality will be enhanced due to the installation and maintenance of new or upgraded surface water management features in areas where they do not exist or have fallen into disrepair. Over the long term, the Project is expected to have a beneficial effect on water quality. By improving existing surface water management and adding new surface water treatment features, the Project will provide net improvement to water quality. Wetland Delineation and Impacts The Project includes unavoidable impacts to wetlands and other surface waters. A total of 18.53 acres of wetlands and other surface waters within the Project site will be impacted by the Project, including 3.83 acres of wetlands that will be directly impacted and 14.7 acres of wetlands and other surface waters that will be secondarily impacted. The delineated wetlands are depicted in the Staff Report as wetlands 2a, 19a, 19b, 22, 25-29, 30a, 30b, and 30c, with each having a detailed UMAM assessment of its values and condition. (Impacts to wetland 25 are not included in this Project because they were accounted for in a separate permit proceeding.) Using a conservative assessment and set of assumptions, the District determined that, with the exception of wetlands 19a, 19b, 22, and 27, all wetlands would be impacted by the Project. However, the wetlands that would be impacted suffer from varying historical adverse impacts that have compromised the functions and values they provide to fish, wildlife, and species. This is due to their proximity to urban development, vegetative connectivity, size, historic impacts, altered hydroperiod, and invasive plant species. Likewise, even though the wetlands to be impacted on Kiplinger Island provide certain resting and feeding functions for birds, the value of these functions is comparatively lower than other wetlands due to the presence of invasive species and lack of management. The preponderance of the evidence supports a finding that the Applicants provided reasonable assurances that the Project will not cause adverse impacts to fish, wildlife, or listed species. See Fla. Admin. Code R. 40E-4.301(1)(d). Secondary Impacts Rule 40E-4.301(1)(f) and BOR Sections 4.1.1(f) and 4.2.7. require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources, both from a wetlands and water quality standpoint. Secondary impacts are those that occur outside the footprint of the project, but which are very closely linked and causally related to the activity to be permitted. De minimis or remotely-related secondary impacts, however, are not considered unacceptable. See § 4.2.7.(a). There will be secondary impacts to 6.83 acres of freshwater wetlands and 7.87 acres of mangroves, or a total of 14.7 acres. To address these secondary impacts, the Applicants have established extensive secondary impact zones and buffers along the Project alignment, which were based in part on District experience with other road projects and another nearby proposed bridge project in an area where a State Preserve is located. While Petitioners' expert contended that a 250-foot buffer on both sides of the roadway's 200-foot right-of-way was insufficient to address secondary impacts to birds (who the expert opines may fly into the bridge or moving vehicles), the greater weight of evidence shows that bird mortality can be avoided and mitigated through various measures incorporated into the Project. Further, the bird mortality studies used by the expert involved significantly different projects and designs, and in some cases involved projects outside the United States with different species concerned. Engineering and Scientific Principles Rule 40E-301(1)(i) requires that an applicant give reasonable assurance that a project "be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Unrefuted evidence establishes that the proposed system will function and be maintained as proposed. Financial, Legal and Administrative Capability Rule 40E-4.301(1)(j) requires that an applicant give reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms of the permit. The evidence supports a finding that Applicants have complied with this requirement. Elimination and Reduction of Impacts Before establishing a mitigation plan, Rule 40E- 4.301(3) requires that an applicant implement practicable design modifications to eliminate and reduce wetland and other surface water impacts. In this case, there are unavoidable, temporary wetland impacts associated with the construction of the Project, as well as unavoidable wetland impacts for direct (project footprint), secondary, and cumulative impacts of the Project. The record shows that the Applicants have undertaken extensive efforts to eliminate and reduce wetland and other surface water impacts of the Project. For example, DOT examined and assessed several innovative construction techniques and bridge designs to eliminate and avoid wetland impacts. To eliminate and reduce temporary impacts occurring during construction, DOT has reduced the effect of scour on the pier foundation and reduced the depth of the footing to minimize the amount of excavation on the mangrove island. Also, during construction, the contractor is prohibited from using the 200- foot right-of-way on the mangrove island for staging or stockpiling of construction materials or equipment. The majority of the bridge width has been reduced to eliminate and avoid impacts. Also, the Project's alignment was adjusted to the north to avoid impacts to a tidal creek. Reasonable assurances have been given that all practicable design and project alternatives to the construction and placement of the Project were assessed with no practicable alternatives. Public Interest Test Besides complying with the requirements of Rule 40E- 4.301, an applicant must also address the seven factors in Rule 40E-4.302(1)(a)1.-7., which comprise the so-called "public interest" test. See also § 373.414(1)(a), Fla. Stat. In interpreting the seven factors, the District balances the potential positive and negative effects of a project to determine if it meets the public interest criteria. Because Petitioners agree that factors 3 and 6 of the rule are not at issue, only the remaining five factors will be considered. For the following reasons, the Project is positive when the criteria are weighed and balanced, and therefore the Project is not contrary to the public interest. Public Health, Safety, and Welfare The Applicants have provided reasonable assurance that the Project will not affect public health, safety, and welfare. Specifically, it will benefit the health, safety, and welfare of the citizens by improving traffic conditions and congestion, emergency and hurricane evacuation, and access to medical facilities. In terms of safety, navigation markers are included as part of the Project for safe boating by the public. See Fla. Admin. Code R. 40E-4.302(1)(a)1. Conservation of Fish and Wildlife The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The mitigation projects will offset any impacts to fish and wildlife, improve the abundance and diversity of fish and wildlife on Kiplinger Island, create mangrove habitat, and add to the marine productivity in the area by enhancing water quality. See Fla. Admin. Code R. 40E-302(1)(a)2. Fishing or Recreational Values The Project has features that allow for pedestrian and bicycle utilization and observation areas which should enhance recreational values. The Old Palm Bridge, approximately one mile north of the Project, has had no adverse impact on the fishing recreation along the South Fork of the St. Lucie River. Navigation will not be affected due to the height and design of the new bridge. Finally, the bridge is expected to be a destination for boating, kayaking, fishing, and bird watching. See Fla. Admin. Code R. 40E-4.302(1)(a)4. Whether the Activity is of a Permanent Nature The parties have stipulated that the Project is permanent in nature. No future activities or future phases of the project are contemplated. Temporary and permanent impacts are all being fully mitigated. See Fla. Admin. Code R. 40E- 4.302(1)(a)5. Values of Functions Being Performed in Affected Areas Due to historic impacts to the areas affected by the Project, the current condition is degraded and the relative value of functions is minimal. Although Kiplinger Island will have temporary impacts, that island is subject to exotic species and has no recreational use or access by boaters or members of the public. The Applicants propose mitigation which will improve and enhance these wetland functions and values in the areas. See Fla. Admin. Code R. 40E-4.302(1)(a)7. Summary The evidence supports a finding that the Project is positive as to whether it will affect the public health, safety, welfare, or property of others; that the Project is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the Project is positive as to conservation of fish, wildlife, recreational values, marine productivity, permanency, and current values and functions. When weighed and balanced, the Project is not contrary to the public interest. Cumulative Impacts Rule 40E-4.302(1)(b) requires that an applicant give reasonable assurance that a project will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in BOR Sections 4.28 through 4.2.8.2. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. An analysis is geographically based upon the drainage basins described in BOR Figure 4.4.1. Petitioners' contention that Figure 4.4.1 is inaccurate or not representative of the basin in which the Project is located has been rejected. In this case, the North St. Lucie Basin was used. To assess and quantify any potential unacceptable cumulative impacts in the basin, and supplement the analyses performed by the Applicants, the District prepared a Basin Map that depicted all the existing and permitted wetland impacts as well as those wetlands under some form of public ownership and/or subject to conservation restrictions or easements. The District's analysis found that the wetlands to be mitigated were of poor quality and provided minimal wildlife and water quality functions. Cumulative impacts from the Project to wetlands within the basin resulted in approximately a four percent loss basin-wide. This is an acceptable adverse cumulative impact. Therefore, the Project will not result in unacceptable cumulative impacts. Mitigation Adverse impacts to wetlands caused by a proposed activity must be offset by mitigation measures. See § 4.3. These may include on-site mitigation, off-site mitigation, off- site regional mitigation, or the purchase of mitigation credits from mitigation banks. The proposed mitigation must offset direct, secondary, and cumulative impacts to the values and functions of the wetlands impacted by the proposed activity. The ability to provide on-site mitigation for a DOT linear transportation project such as a bridge is limited and in this case consists of the creation of mangrove and other wetlands between the realigned St. Lucie Shores Boulevard and the west shore of the St. Lucie River, north and south of the proposed bridge crossing. BOR Section 4.3.1.2 specifically recognizes this limitation and allows off-site mitigation for linear projects that cannot effectively implement on-site mitigation requirements due to right-of-way constraints. Off-site mitigation will offset the majority of the wetland impacts. Because no single on-site or off-site location within the basin was available to provide mitigation necessary to offset all of the Project's impacts, DOT proposed off-site mitigation at two established and functioning mitigation areas known as Dupuis State Reserve (Dupuis), which is managed by the County and for which DOT has available mitigation credits, and the County's Estuarine Mitigation Site, a/k/a Florida Oceanographic Society (FOS) located on Hutchinson Island. Dupuis is outside the North St. Lucie Basin and was selected to offset direct and secondary impacts to freshwater wetlands. That site meets the ERP criteria in using it for this project. The FOS is within the North St. Lucie Basin and was selected to offset direct and secondary impacts to estuarine wetlands. Like Dupuis, this site also meets the ERP criteria for the project. The preponderance of the evidence establishes that the on-site and off-site mitigation projects fully offset any and all project impacts, and in most instances before the impacts will actually occur. Sovereign Submerged Lands and Heightened Public Concern Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. For purposes of granting a public easement to the Applicants, the District determined that the Project is not contrary to the public interest and that all requirements of the rule were satisfied. This determination was not disputed. The only issue raised by Petitioners concerning the use of submerged lands is whether the application should have been treated as one of "heightened public concern." See Fla. Admin. Code R. 18-21.0051(5). If a project falls within the purview of that rule, the Board of Trustees of the Internal Improvement Trust Fund (Board), rather than the District, must review and approve the application to use submerged lands. Review by the Board is appropriate whenever a proposed activity is reasonably expected to result in a heightened public concern because of its potential effect on the environment, natural resources, or controversial nature or location. Id. In accordance with established protocol, the ERP application was sent by the District to DEP's review panel in Tallahassee (acting as the Board's staff) to determine whether the Project required review by the Board. The panel concluded that the Project did not rise to the level of heightened public concern. Evidence by Petitioners that "many people" attended meetings and workshops concerning the Project over the last 20 years or so is insufficient to trigger the rule. Significantly, except for general project objections lodged by Petitioners and Audubon of Martin County, which did not include an objection to an easement, no adjacent property owner or other member of the public voiced objections to the construction of a new bridge. Revised Staff Report On October 20, 2010, the District issued a Revised Staff Report that merely corrected administrative errors or information that had been previously submitted to the District. Contrary to Petitioners' assertion, it did not constitute a material change to the earlier agency action either individually or cumulatively. Therefore, it was properly considered in this proceeding. Letter Modifications The Letter Modifications were used as a mechanism to capture minor alterations made to previously issued permits for Kanner Highway and Indian Street. Neither Letter Modification is significant in terms of water quality, water quantity, or environmental impacts. Both were issued in accordance with District rules and should be approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application Nos. 091021-8, 100316-7, and 100316-6. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2010. COPIES FURNISHED: Carol Ann Wehle, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 Jeffrey W. Appel, Esquire Ray Quinney and Nebeker, P.C. 36 South State Street, Suite 1400 Salt Lake City, Florida 84111-1401 Bruce R. Conroy, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 John J. Fumero, Esquire Rose, Sundstrom & Bentley, P.A. 950 Peninsula Corporate Circle Suite 2020 Boca Raton, Florida 33487-1389 Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road Mail Stop 1410 West Palm Beach, Florida 33406-3007
Findings Of Fact Lake Worth Drainage District requested a variance from the provisions of Rule 17-3.121(13) , Florida Administrative Code, related to dissolved oxygen parameters which would be involved in the installation of a canal known as the S-9 Canal to be located in Palm Beach County, Florida. That request was met by the Department of Environmental Regulation's Statement of Intent to Deny, leading to a request for formal hearing filed by Petitioner with the Department on May 26, 1983. On June 1, 1983, the Department requested the Division of Administrative Hearings to conduct a formal hearing in that matter. The variance request became D.O.A.H. Case No. 83-1741. Contemporaneous with the variance request that was pending before the Department of Environmental Regulation, was petitioner's request for necessary construction permits to install the S-9 Canal. Again, the Petitioner was informed of the agency's intent to deny that permit request. As a consequence, Petitioner requested a formal hearing to question the Department's policy decision. That request for formal hearing was made on June 23, 1983. Effective July 1, 1983, the Department asked the Division of Administrative Hearings to conduct a formal hearing related to that permit request. The case related to the dredge and fill permit is D.O.A.H. Case No. 63-2132. WITNESSES AND EXHIBITS In the final hearing, petitioner presented the testimony of Richard Wheeliahn, Assistant Manager for Lake Worth Drainage District; John Adams, General Counsel for Lake Worth Drainage District; Mike Slaton, supervisory biologist with the United States Corp. of Engineers; William Winters, Lake Worth Drainage District's in-house engineer; Rebecca Serra, South Florida Water Management District's Water Management Engineer, who was accepted as an expert in water management engineering; Raleigh Griffis, Agricultural Agent with the United States Department of Agriculture, accepted as an expert in the agricultural practices found within the area of the proposed S-9 Canal; William E. Hill, Consulting Engineer for Petitioner, who was accepted as an expert in civil engineering and drainage design; and Robert D. Blackburn, consultant to Lake Worth Drainage District, accepted as an expert in freshwater ecology to include water quality and biology. Respondent called as witnesses Dan Garlick, Environmental Specialist for the Department of Environmental Regulation, accepted as expert in dredge and fill matters; Keith McCarron, Environmental Specialist for the Southeast Branch of the Department of Environmental Regulation, accepted as an expert in dredge and fill matters and Helen Setchfield, Technical Assistant to the Department's Director of the Division of Environmental Permitting. In addition, Richard L. Miller, Rebecca Butts, Francis T. Kuschell, Donald King and Dan alley were public witnesses in favor of the proposed project. Rosa Druando and Sherry Cummings were public witnesses opposed to the project. Petitioner offered 45 exhibits which have been received. Respondent introduced two exhibits which were admitted. The public offered two composite exhibits which were admitted. SPECIFIC FACTS Lake Worth Drainage District is a governmental entity created by the Florida Legislature. The District's function is that of the control of water supply and elevation related to lands within its jurisdiction. Those areas in dispute in the present case are within that jurisdictional ambit. In this instance, Lake Worth Drainage District has proposed the construction of a drainage facility involving dredging and filling of approximately 45,000 cubic yards of material. In particular, Petitioner seeks necessary permits from Respondent to construct a canal known as the S-9 Canal, whose purpose would be to transport the flow of water from an agricultural operation north of the canal site. Petitioner's Exhibit No. 1 depicts the area in question with the north- south orange tape representing an unnamed drainage ditch or canal and the blue tape showing the proposed S-9 connecting it to the east-west orange tape line which is L23W. The primary type of water expected in the canal is stormwater; however, surface and groundwater will also be in the canal system at times. The agricultural operation is capable of discharging at a rate which would utilize 145 CFS of the potential capacity of the canal system contemplated for construction which ultimate capacity is 170 CFS. The proposed canal by its connection of the existing agricultural drainage ditch or canal and L23W, becomes part of a water transport system flowing to the Atlantic Ocean through the South Florida Water Management District and Lake Worth Drainage District canal network. The principal benefit of the construction of S-9 would be to create a uniform connection of water discharge from the agricultural operation into L23W. Secondarily, it would relieve periodic flooding of a residential area west of the unnamed drainage ditch and northwest of the proposed S-9 Canal. It is not designed to receive direct water input from that residential area. Only the agricultural operation has been granted permits to discharge into the unnamed canal through two pumping stations to the east of that canal and as a result of the present permit request through S-9 and thus to L23W. Those persons living in the residential area west of the unnamed canal have not sought necessary permitting for discharge into the proposed S-9 System. Moreover, even if permits were granted to the residents, the S-9 system would only allow the addition of 25 CPS over and above the 145 which the agricultural operation has preempted. The 25 CPS would not satisfactorily address high water problems found in the residential area. A more particular description of the limited value of the project's benefit to the homeowners is that it protects against occasional flooding which occurs when the farm operation discharges into the unnamed canal, causing water incursion in the southeast corner of the residential area to the west of the unnamed canal. If the S-9 Canal is constructed, it will be built within an 80 foot right-of-way held by petitioner. The canal as depicted in petitioner's Exhibit 35 admitted into evidence is 40-45 feet wide, approximately 5-8 feet deep and is configured in a u-shape transversing an area of 7,730 feet. The applicants in this present proposal have added a vegetated iittoral zone on one side of the canal and it covers approximately 20 percent or 1.9 acres of the canal surface. This zone affords a limited amount of treatment of the water in the system. In this regard, approximately 30 percent of the nutrients found within the water flowing in the system would be expected to be taken up or absorbed in the vegetational zone, except in the months of August and September, when optimum retention time within the system will not be afforded to allow the littoral zone to uptake 30 percent of contaminants in the water. A 21 foot maintenance berm would be constructed on the east side of the canal and bleeder pipes would be installed to control water elevations in the adjacent wetlands. The 170 CFS volume mentioned before is the design capacity of the proposed system. At that volume, the flow velocity is less than 2.6 feet per second, a velocity at which the canal's structural integrity would be expected to continue, i.e., erosion will not occur. The 145 CFS expected from the agricultural operation pursuant to permits for discharge issued by the South Florida Water Management District would promote a flow velocity of approximately 2 feet per second. This farm activity is known as the DuBois farm. (Its permit from the South Florida Water Management District allowing the 145 CFS to be discharged into the unnamed drainage ditch or canal is not contingent upon the construction of S-9.) The configuration of the S-9 Canal has been brought about principally to advantage the Petitioner in obtaining a construction permit from the United States Corps of Engineers. The Corps had an interest in protecting that corridor of land over which it has jurisdiction which is adjacent to the S-9 Canal and is described as a wetland area. A consequence of this choice of design for S-9 is the typical 72 to 80 hour travel time of water introduced into the system providing some settling of pollutants and some assimilation of pollutants within the littoral zone of the canal discussed before. 10..Necessary permits have been obtained from South Florida Water Management District and the United States Corps of Engineers to allow the construction of the proposed project. The configuration of this project takes into account the special concerns of those two agencies. In this sequence of collateral permitting, South Florida Water Management District has been responsible for an examination of stormwater quality considerations in deciding to grant a permit to Petitioner. With the construction of S-9 and connection of the unnamed canal to S- 9 and thus to L23W, all the waters within that conveyance system become Class III waters of the state in keeping with Chapter 403, Florida Statutes and its associated rules of the Florida Administrative Code. In effect, this is a dredge and fill activity under the Respondent's jurisdiction found in Rule 17- 4.20, Florida Statutes. As such, it becomes a stationary installation which can reasonably be expected to be a source of water pollution of waters of the state by discharge of pollutants into waters of the state as envisioned by Section 403.087, Florida Statutes. During the construction phase of the canal, water quality degradation can be controlled related to turbidity, transparency and other criteria. Upon connection of the S-9 Canal to L23W and the utilization of that system, problems will be experienced with dissolved oxygen levels and to a lesser extent, nutrients and total coliform. Oils and greases problems are possible though not probable. No other water quality impacts are expected after connection. In expectation of the difficulty in achieving compliance with Respondent's water quality standards related to dissolved oxygen, the Petitioner has sought a variance under Section 403.021, Florida Statutes. This request is necessary because the dissolved oxygen levels in the proposed S-9 Canal, the unnamed canal or drainage ditch and L23W are not expected to uniformly exceed 5 mg/1. See Rule 17-3.121(13), Florida Administrative Code. The problem with dissolved oxygen in the unnamed canal and L23W and expected in the S-9 canal is not an enigma. This condition is prevalent in the South Florida area to include Palm Beach County, the site of the project. The water in the canals and drainage ditches in the region is frequently in violation of the standards related to dissolved oxygen, given the elevations of the land, climatic conditions, type of plant life, water temperature and constituents of the water. The addition of S-9 to the system would neither improve nor significantly degrade the quality of water related to the dissolved oxygen values for Class III waters, of which this proposed system is constituted. This finding acknowledges the fact that dissolved oxygen values in the unnamed canal are superior to L23W. Nonetheless, upon completion of S-9 and connection to the two other canals, no significant positive improvements of dissolved oxygen will be realized. Moreover, considering the fact that the installation of the S-9 Canal will stop the flooding on the southeast corner of the residential area west of the unnamed drainage ditch or canal, an increased volume of water flowing into L23W at any given moment can be expected, compared to the present outfall primarily along the Florida Power and Light system road into L23W. This has significance related to the dissolved oxygen standard to the extent of an increased volume of water in which substandard dissolved oxygen levels are found being introduced into L23W. It is more significant related to nutrients and bacteriological quality of the water, in particular fecal coliform. While there is no reason to believe that the quality of cleansing of water involved in sheet flow into L23W related to nutrients and coliforms is remarkably better at present, given the sparse vegetation along the power-line road which leads to L23W, than would be the case with S-9 with littoral zone, the increased volume of cater being introduced at the connection of S-9 and L23W during times of peak discharge, can be expected to present greater quantities of nutrients and coliform. In essence, the treatment afforded by the littoral zone and the transport in the S-9 Canal, contrasted with the treatment afforded during the transport of waters by sheet flow along the relatively barren stretch of land adjacent to the power-line road is found to be comparable, and the differences relate only to volume of discharge. This difficulty with nutrients and coliform count has been confirmed by tests made in the unnamed canal showing excessive levels of nitrogen, phosphorus and coliform and the water treatment features of the S-9 Canal will not entirely remove these materials. Although the farming practices of the DuBois operation tend to alleviate some nutrient loading in the unnamed canal, the test results established that those practices do not entirely eliminate the introduction of those nutrient materials into the canal. Consequently, some problems related to the effects of nutrient loading on populations of flora and fauna in the proposed system can be expected. In the context of the variance request, alternatives to the construction of the S-9 Canal are here considered. The alternative to leave the circumstance as it now exists carries with it the risk of periodic flooding of the southeast corner of the residential property west of the unnamed canal. That area and the balance of the residential acreage are subject to flooding without regard for the agricultural operation to the east. To deal with the difficulty related to the elevated water table, rainfall events and the flooding due to farm operation, some persons who reside in that residential tract have employed their own pump systems and ditches and retention areas to combat problems related to the geography of their property. In addition, the property is protected to some extent from outside influences by the existence of a dike and associated ditch, which limit some off-property incursion of water and assists to an extent in the transport of water away from their property. Moreover, the DuBois farm operation recently has placed a barrier at the end of the unnamed canal which directs water south along the Florida Power and Light road into L23W. In addition, the farm management has held down the pump speed during a rain event to protect the residential area. Nonetheless, at times the dike in the southeast corner adjacent to the residential property has breached in heavy rain events. As an alternative, the installation of S-9 would be only partially effective in alleviating the adverse conditions in the residential area west of the unnamed canal. It principally helps the DuBois farm operation. The relief afforded the residents would be the cessation of flooding caused by the operation of the farm pumps to the east as they breach the area in the southeast corner of the residential property, the future possibility of introducing as much as 25 CFS into the S-9 System subject to appropriate permits and the more tenuous possibility that the farm operation and the residential area could share the remaining 145 CPS capacity in the proposed system. The latter point isn't tenable from an examination of testimony at hearing. First, because the farmer wishes to conserve fertilizer and to maintain the moisture gradient and he does this by pumping off stormwater in a rainfall event, which events are most prevalent during his agricultural season. Secondly, the residential area is most in need of relief when the farmer is. Finally, the question of necessary permits to share capacity is unclear. Other alternatives related to a more comprehensive protection of the residential area by diking, a direct connection canal system to L23W from the unnamed canal, or dispersed sheet flow through the wetland area adjacent to the proposed S-9 Canal are not viable either for reason of design infirmity or impediments from other permitting agencies or inadequate property rights. Therefore, the viable choices are to either leave the property as it now stands or grant a permit to allow the construction of S-9. Between the remaining choices, no particular advantage is gained by the construction of this project. Dissolved oxygen problems in L23W, the receiving body of water, will not improve with the S-9 construction in a significant way and given the increased volume of discharge into L23W promoted by this construction are made worse. Nothing in the construction is so compelling to cause the exercise of the Respondent's discretion in favor of the grant of a variance related to dissolved oxygen values. 16..In examining the variance request by affording deference to Petitioner's regulatory responsibility, the need of the Lake Worth Drainage District to provide relief to those residents who are paying for drainage services is conceded. To that end, the proposed project does provide a certain amount of relief but it does not have as its primary emphasis purported assistance to those residents. As often stated, its principal benefit is to the DuBois farm operation. Left unresolved is the major source of suffering which is the lay of the land, a source which has prevailed from the beginning of the utilization of that property on the part of the residents. Plainly stated, much of the residential area was from the beginning and continues to be under water. The removal of the farm flooding and the future possibility of introducing a small increment of discharge into the S-9 system from the residential area subject to necessary permitting does not modify the characterization of this project as being one primarily for the farmer and to a much lesser extent for the residents. On this occasion, Petitioner's choice to fulfill its change is not persuasive enough to create special permission to violate the dissolved oxygen standard. In summary, a variance from the dissolved oxygen standard for Class III waters is not indicated. On the question of the permit application, in addition to failing to give reasonable assurances related to dissolved oxygen, the applicant has failed to satisfactorily address the problems with nutrients and coliforms. Other water quality standards have been satisfactorily addressed. Again, most of the water that will be introduced into the proposed system shall be stormwater; however, there will be other water components in the system constituted of surface water an groundwater, which also carry nutrients arid bacteriological deposits. Surface and groundwater are involved, given the level of elevations in the area, the depths of the unnamed canal, S-9 Canal and L23W and the fact that the DuBois farm operation can extract waters from the E-l Canal to the east of the farm properties as well as discharge water into that canal. It will not always be possible to distinguish whether the water in the proposed system is stormwater, groundwater or surface water. Consequently, South Florida Water Management's permitting related to stormwater is not definitive.
The Issue The issue to be determined is whether Application No. 090107-1 for Environmental Resource Permit No. 56-03461-P and the Sovereignty Submerged Lands Public Easement for the Crosstown Parkway Extension should be issued as proposed in the notice issued by the South Florida Water Management District.
Findings Of Fact The Parties Petitioner resides in the City of Port St. Lucie, with a primary residence at 6470 Northwest Volusia Drive, Port St. Lucie, Florida. Petitioner frequents the area to be affected by the Proposed Project and uses the established Savannas Preserve State Park Halpatiokee Trail (“Halpatiokee Trail”) for birdwatching and engaging in activities, including lectures and tours, related to native plants found in the vicinity of the Halpatiokee Trail and the Savannas Preserve State Park. Intervenor is a 501(c)(3) corporation with its principal place of business in the City of Port St. Lucie. Intervenor’s standing was not challenged at the final hearing. The City is a Florida municipal corporation and the applicant for the Permit. The District is a water management district created by section 373.069, Florida Statutes. It has the responsibility to conserve, protect, manage, and control water resources within its geographic boundaries. See § 373.016, Fla. Stat. The District has the power and duty to exercise regulatory jurisdiction over activities subject to the Permit pursuant to chapter 373, Part IV, and to apply and implement statewide environmental resource permitting rules, including Florida Administrative Code Chapter 62-330. § 373.4131(2)(a), Fla. Stat. In implementing responsibilities with regard to ERPs, the District has developed and adopted the ERP Applicant’s Handbook - Volume I (“A.H.”) to provide standards and guidance to applicants. § 373.4131(1)(a)9., Fla. Stat. The District also performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under part IV of chapter 373 for which the District has permitting responsibility. § 253.002(1), Fla. Stat. The District has been delegated the authority to take final agency action, without any action by the BTIITF, on applications for authorization to use sovereignty submerged lands for any activity for which the District has permitting responsibility. § 253.002(2), Fla. Stat.; Fla. Admin. Code R. 18-21.0051(2). Background In 1980, the City had a population of approximately 20,000 residents. The City presently has a population of approximately 179,400 residents and is anticipated to reach 225,000 by 2035. The North Fork of the St. Lucie River (“NFSLR”) runs through the City in a general north-south direction. The City is divided by the NFSLR, with roughly two-thirds of the City being west of the NFSLR, and one-third of the City being east of the NFSLR. The NFSLR in the area of the Proposed Project is an Outstanding Florida Water Body and an Aquatic Preserve. The NFSLR within the City is spanned by two bridges linking and providing access to the two sides of the City. The southernmost bridge is the St. Lucie Boulevard Bridge, a six- lane bridge with three lanes in each direction. The northernmost bridge is the Prima Vista Boulevard Bridge, a four- lane bridge with two lanes in each direction. Both of the existing bridges, and intersections around the bridges, currently operate at peak hours with a level of service of “F”, which is the lowest level of service classification assigned by the Florida Department of Transportation. In addition to traffic congestion, the two existing bridges have been deemed to be deficient in matters of public health and safety, including emergency response times and the need for prompt evacuation in the event of a hurricane or a nuclear incident at the nuclear power plant on nearby Hutchinson Island. Planning The City first identified a third east-west crossing of the NFSLR in its 1980 Comprehensive Plan. A third crossing has been included in each revision to the Comprehensive Plan since that time. In January 2009, the City submitted a conceptual permit application for the Crosstown Parkway Extension to the District. The 2009 application included six proposed bridge alignment alternatives, designated as: 1(C); 1(F); 2(A); 2(D); 6(A); and 6(B). In order to evaluate alternatives for the proposed third crossing, the six alternatives were subjected to environmental assessments which included “purpose and need” considerations. The Proposed Project was evaluated by means of a Project Development and Environmental Study, and the City, in cooperation with the Florida Department of Transportation and the Federal Highway Administration, prepared an Environmental Impact Statement (“EIS”) pursuant to the National Environmental Policy Act. The City, along with Federal and state agencies, participated in the Efficient Transportation Decision Making Process (“ETDM”) to evaluate the alternative east-west corridors crossing the NFSLR. As part of the ETDM process, modifications to eliminate or reduce impact were analyzed, including widening the Prima Vista Boulevard and Port St. Lucie Boulevard bridges, construction of a tunnel, and construction of second decks on the existing bridges. For various legitimate reasons, those options were rejected. The EIS considered each of the proposed bridge alignment alternatives. Each of the alternatives would have affected the NFSLR Aquatic Preserve, though in differing degrees. The analysis of the six alternatives in the EIS was performed using three overall categories: socioeconomic; biological environment; and physical environment. Environmental impacts in terms of acreage and wetland functions were considered. The EIS also considered public health, safety, and welfare considerations as socioeconomic impacts of the six alternatives. Alternative 1(C) was ultimately identified as the preferred alternative corridor in the EIS. In February 2014, the City, the Florida Department of Transportation, and the Federal Highway Administration collectively chose Alternative 1(C) as the preferred route for the Crosstown Parkway Extension. The City amended the permit application in 2014 to request authorization for the construction of alternative 1(C). That amended application is the subject of the proposed agency action at issue. Alignment The existing Crosstown Parkway begins at the interchange of Interstate 95 on the west side of the City, and extends east to Manth Lane. The proposed Crosstown Parkway Extension would extend the existing Crosstown Parkway from its current terminus at Manth Lane for a distance of approximately 1.5 miles to the east side of Floresta Drive, then across a 4,000-foot bridge section over the NFSLR, ending at U.S. Highway 1. The proposed bridge is to be slightly north of midway between the existing bridges. The proposed Crosstown Parkway Extension bridge will have three lanes in each direction, with bicycle lanes and multi-use paths. Petitioners contend that Alternative 6(A) should have been selected as the preferred alignment. Alternative 6(A) would impact the NFSLR Aquatic Preserve and wetlands, though to a lesser extent, but would have far greater impacts to residential communities on both sides of the NFSLR. More to the point, the City presented a prima facie case for the selection of Alternative 1(C) that included considerations of traffic flow, ease of evacuations, hospital access, and impacts to residential communities, all of which are “non-environmental safety factors” that are appropriate for consideration. See Fla. Bay Initiative, Inc., et al. v. Dep’t of Transp. and So. Fla. Water Mgmt. Dist., Case No. 95-5525 et seq. (DOAH Apr. 11, 1997; SFWMD June 23, 1997). Although Petitioners demonstrated that Alternative 6(A) would have fewer environmental effects, they failed to produce substantial competent evidence to counter the safety and public interest factors that are to be weighed and balanced in conjunction with the District’s evaluation of the Permit. The Environmental Resource Permit The proposed Crosstown Parkway Extension corridor includes portions of the NFSLR, Evans Creek, the Coral Reef Waterway, and associated floodplains. The Proposed Project area involves approximately 91.53 acres of development associated with the Crosstown Parkway Extension. Permanent in-water impacts include two sets of pilings. The total area of the pilings is 493 square feet, or 0.0113 acres. Construction of the Crosstown Parkway Extension bridge will involve secondary impacts resulting from shading of the water and benthic riverbed from the bridge, and temporary impacts related to construction. The application includes a 2.134 acre sovereignty submerged lands public easement. Approximately 1.44 acres of the Proposed Project will be constructed in, on, or over sovereignty submerged lands within the NFSLR. The difference in acreage is to account for temporary use of sovereignty submerged lands for construction and maintenance purposes. The area of the Proposed Project includes 14.202 acres of land owned by the BTIITF that are managed as part of the Savannas Preserve State Park. Those lands are not submerged. Authority to grant approval to use non-submerged state lands has not been delegated to the District, is not incorporated in the proposed agency action, and is not at issue in this proceeding. The City has applied for an easement for those state-owned lands from the Department of Environmental Protection (“DEP”). Water Quality and Water Quantity From the standpoint of water quantity permit criteria, the Proposed Project meets the discharge rate, design storm, floodplain encroachment, and flood protection criteria set forth in the ERP rules. The Proposed Project is divided into five stormwater basins. The stormwater management facilities are designed and permitted to provide water quality treatment and attenuation, including wet detention and dry retention areas. Stormwater from the bridge itself will not be drained into the waters of the NFSLR, but will be routed to the management facilities for treatment. The Permit authorizes the required water quality treatment volume of 2.5 inches times the percent of impervious area. The City has agreed to provide 50 percent more water quality treatment volume than is required by the permitting criteria. As to temporary impacts, the Permit includes implementation of a pollution prevention plan/turbidity and erosion control plan with additional conditions requiring compliance with water quality criteria during construction of the Proposed Project. By stipulation of the parties, the City has provided reasonable assurances to satisfy applicable water quality criteria pursuant to rule 62-330.301(1), and has provided reasonable assurances of compliance with rule 62-330.301(1). The Proposed Project is located within the watershed of DEP waterbody/WB ID/number 3194, the North St. Lucie Estuary, which has been identified as impaired for dissolved oxygen, nutrients, and fecal coliform. Since the existing ambient water quality of the receiving waters is impaired for nutrients, the City is required, pursuant to rule 62-330.301(2), to implement measures that will result in a net improvement of the water quality in the receiving waters for nutrients. The Stormwater Management Report, sections 3.1.6 and 4.4, demonstrate that the stormwater management system proposed for the Crosstown Parkway Extension will provide greater removal of nutrients, including nitrogen and phosphorus, than currently exists, which will result in a net improvement of water quality. Thus, the City has established, through its prima facie case, that it meets the standards of rule 62-330.301(2). Petitioners failed to prove, by a preponderance of persuasive competent and substantial evidence, that the stormwater management system would be ineffective to remove nutrients as proposed. Natural Resources There are no seagrasses in the NFSLR in the vicinity of the proposed Crosstown Parkway Extension bridge out to the area subject to potential secondary impacts. Although Ms. Scotto speculated as to the existence of polychaete worms in the area, she had no direct knowledge of any benthic resources at the location. Wetlands within the Crosstown Parkway Extension area can generally be described as freshwater marsh, floodplain forest, and mixed wetland hardwoods. In addition, mangroves fringes exist along the edges of the open water bodies. Impacts Direct Impacts The Proposed Project will result in direct impacts to 7.9 acres of wetlands and 1.18 acres of surface waters with additional secondary impacts. The area of submerged lands physically impacted by the Proposed Project is limited to the pilings that support the bridge, which constitute a total of 0.29 acres of direct impacts. Wetland fill impacts of 1.53 acres will occur where the Crosstown Parkway transitions from a bridge to a roadway, to a width of 225 feet within the U.S. Highway 1 right-of-way. The low level of the bridge structure will result in canopy removal within forested wetlands, and shading of vegetation beneath the bridge structure. As a result, it was assumed that all wetlands underneath the bridge impacted by shading of the structure would be directly and fully eliminated. Petitioners assert that the permit application evaluation should have taken into account direct and secondary impacts to threatened plant species listed by the Department of Agriculture and Consumer Services in Florida Administrative Code Rule 5B-40.0055, particularly the rose pogonia and nodding pinweed. However, the District does not have authority to consider such species in the context of an ERP. Secondary Impacts Secondary impacts are not direct impacts of the Proposed Project, but are those adverse effects to the functions of the surrounding wetlands and habitats that would not occur but for the construction of the Proposed Project. Secondary impacts include shading from the Crosstown Parkway Extension bridge, and light and noise that could deter use of the area by fish and wildlife. Secondary impacts to wetlands were assessed in two zones extending outward from the direct impact area. The first zone extends from 0 to 50 feet from the bridge footprint, and the second zone extends from 50 to 250 feet from the bridge footprint. There was no persuasive competent and substantial evidence that the secondary impacts of the Proposed Project would have any measurable impact on surface waters, including temperature and salinity. The City provided reasonable assurance that the secondary impacts that would be caused by the Proposed Project will not cause or contribute to violations of water quality standards, or adversely affect the functions of adjacent wetlands or other surface waters. Although there will be some locally evident impact to the functions of wetlands within the zones of secondary impact, because the City meets the “Opt-Out” provisions discussed below, the City is not required to implement practicable design modifications to reduce or eliminate such impacts. There was no persuasive competent and substantial evidence that the secondary impacts of the Proposed Project would affect the functions of wetlands outside of the zone of secondary impacts. There was no persuasive competent and substantial evidence that the construction, alteration, and reasonably expected uses of the Crosstown Parkway Extension would adversely impact the ecological value of the uplands to aquatic or wetland-dependent listed species for enabling existing nesting or denning by these species. The loss of canopy, including issues of detrital export and functions related to downstream systems, were accounted for in the UMAM calculations for quantifying the functional loss of resource values resulting from the Proposed Project. Petitioners stipulated to the UMAM scores related to direct impacts of the Proposed Project. Petitioners disagreed with the UMAM scores related to secondary impacts because they were not “considered for the impacts to those [Department of Agriculture and Consumer Services]-listed threatened and endangered plants.” The ERP permitting criteria take into account a comprehensive list of invertebrates, fish, amphibians, reptiles, birds, and mammals that are to be considered in the evaluation of secondary impacts that may result from a project. See A.H. Table 10.2.7-1. The City demonstrated, and Mr. Braun acknowledged, that the permitting standards do not list plants as a matter for consideration, either generically or by species. The suggestion that the evaluation of ecological values must include, by implication, species of plants is not accepted.3/ Mr. Braun also testified that the only issues in dispute regarding the quantification and mitigation of secondary impacts were those pertaining to the headwaters of Hogpen Slough. It was his opinion that the collection and treatment of stormwater from the bridge and road in the permitted stormwater basins will divert and interrupt sheet flow that currently flows from U.S. Highway 1 and undeveloped property to the north into the Hogpen Slough drainage area, and that such effects will alter the salinity envelope in Evans Creek and impact the fishery nursery in the area. However, Mr. Braun admitted that “there has been no modeling that would show how the effect of the changes in the water, how they will be effected by the project.” The basic thrust of Mr. Braun’s testimony was best characterized by the following exchange: Mr. Fumero: You don’t have any analysis to show that what's currently contemplated will result in a salinity imbalance? Your point is that the Applicant should demonstrate, should provide some analysis showing that it will not, correct? Mr. Braun: That's correct.[4/] In response to Petitioners’ concerns with the impacts to Hogpen Slough, the City demonstrated that the Hogpen Slough drainage basin encompasses an area of almost 700 acres, and extends for a mile and a-half to two miles east of the area discussed by Mr. Braun. Upon construction of the Proposed Project, the areas that currently drain to Hogpen Slough will continue to drain to Hogpen Slough, with enhanced water quality treatment and attenuation for the additional impervious area created by the road widening at the intersection with U.S. Highway 1. Thus, the Proposed Project will have a de minimis, if any, effect on the overall quantity of water draining from the Hogpen Slough drainage basin to Hogpen Slough, with the stormwater from the Proposed Project itself being subject to an enhanced degree of water quality treatment. Under the burden of proof applicable to this proceeding, as discussed in the Conclusions of Law herein, Mr. Braun’s concern as to the effect of the Proposed Project on Hogpen Slough, without more, is insufficient to support a finding as to any adverse secondary impacts. Cumulative Impacts The Proposed Project is considered not to have unacceptable cumulative impacts if mitigation offsets adverse impacts within the same basin where the impacts occur. As set forth herein, the proposed mitigation is located within the same basin as the impacts from the Proposed Project. Mitigation The City proposes to provide both on-site and off-site mitigation to offset impacts of the Proposed Project. The City has proposed proprietary mitigation for the easement to cross state lands and regulatory mitigation to compensate for impacts to natural resources. The ecological values of the areas affected by the Proposed Project’s direct, secondary, and temporary impacts to freshwater wetlands and surface waters, and the mitigation needed to offset those impacts, was determined using UMAM. UMAM is authorized by statute and adopted by rule. The undersigned accepts UMAM as an accurate and representative measure of the impacts of the Proposed Project. In order to calculate UMAM functional loss scores, and thereby the mitigation necessary to offset impacts, all areas under the Crosstown Parkway Extension bridge were accounted for as though they were to be filled in their entirety, with 100 percent functional loss. The loss of canopy was accounted for and included consideration of detrital export and functions related to downstream systems. In calculating the mitigation to be provided, the City developed a fictitious “hybrid corridor” that assumed the worst case scenario impacts of each of the six build alternatives identified in the 2009 application. That hybrid corridor included greater impacts than any single alternative corridor, including the Alternative 1(C) corridor at issue. That hybrid corridor was then used as the basis for the development of the mitigation plan used for the Alternative 1(C) corridor. As such, the mitigation proposed is conservative. Applying the UMAM methodology, it was determined that direct impacts would result in 6.64 functional loss units, secondary impacts would result in 2.47 functional loss units, and temporary impacts would result in 0.27 functional loss units, for a total of 9.38 functional loss units. Platt’s Creek To mitigate for the freshwater wetland and surface water impacts, the City constructed the Platt’s Creek mitigation area as authorized by District Permit No. 56-03199-P. Platt’s Creek, located approximately five miles upstream from the project and adjacent to the NFSLR, was an orange grove containing upland habitat and a retention pond. The Platt's Creek project, a joint mitigation area with St. Lucie County, is designed to restore and create hydric hammock, floodplain forest, and freshwater marsh. The mitigation at Platt’s Creek involves the same habitats that are being impacted by the project. Although Platt’s Creek is not located in the NFSLR Aquatic Preserve, it is located upstream of the Proposed Project, within the same basin as the Proposed Project’s impacts, and will provide downstream benefits to the Aquatic Preserve. The Platt's Creek project also provides a regional benefit to the NFSLR by improving water quality. The UMAM calculation established that 9.38 mitigation units would be required to offset the functional loss from all of the Proposed Project impacts. The City dedicated 11.25 functional units from the Platt’s Creek mitigation area to offset the impacts, which is in excess of the requirement. The City has completed construction and planting at Platt’s Creek, and is now monitoring success of the completed mitigation work. Pursuant to the Permit, St. Lucie County is responsible for long-term operation and maintenance of the Platt’s Creek mitigation area. Bear Point As mitigation to offset direct, secondary and temporary mangrove impacts, the City purchased mitigation credits from Bear Point Mitigation Bank located in the Indian River Lagoon. Bear Point provides the same type of mangrove habitat as that affected by the Proposed Project. Using the modified Wetland Rapid Assessment Procedure, which was the method used to determine functional units when the Bear Point Mitigation Bank was created, it was determined that 0.26 functional units would be required to offset the worst case hybrid corridor mangrove impacts applied to the Proposed Project. The City purchased 0.50 functional units from the Bear Point Mitigation Bank to offset the 0.26 acres of functional loss, which is in excess of the requirement. The Proposed Project is in the Mitigation Service Area for the Bear Point Mitigation Bank. The proposed mitigation is within the same basin as the Proposed Project’s impacts. Mitigation Conclusion The City established, by a preponderance of competent substantial evidence, that the mitigation provided was sufficient to offset the environmental impacts. Petitioners failed to counter the City’s case. Mr. Braun’s concerns with the proposed mitigation were primarily directed to its failure to account for impacts to plants species as discussed herein. Ms. Scotto expressed no opinion as to whether the mitigation provided meets the ERP standards, whether the mitigation provided meets the standards for proprietary authorization, or whether the mitigation is consistent with the NFSLR Aquatic Preserve Management Plan. She did not review mitigation for secondary impacts. Ms. Goldberg, noting the extent of the proprietary mitigation provided, testified that mitigation should not be a “Christmas present” for agencies. She also noted that Platt’s Creek does not match the maturity and diversity of the impact areas. However, she did not dispute the UMAM scores that formed the basis for the mitigation. Elimination or Reduction of Impacts The City reduced the width of the main section of the bridge from 143 feet to 103 feet, resulting in a 3.27 acre reduction of impacts, an approximate 30-percent reduction. The evidence was convincing that the bridge could not be further reduced in width without compromising safety and functionality. The City proposed construction methods, including the use of top-down construction or construction by use of temporary pile-supported structures, designed to reduce temporary construction-related impacts. The City has committed to the installation of specialized light fixtures that direct light onto the pavement only, which will reduce light trespass on adjacent habitats. Impacts were eliminated and reduced through the location and design of the stormwater ponds as described in the Permit. No evidence was adduced to counter the prima facie case on that issue. Although Alternative 1(C) had greater environmental impacts than other build alternatives, the City demonstrated by a preponderance of the competent substantial evidence that non- environmental safety factors, including traffic flow, ease of evacuations, hospital access, and impacts to residential communities, precluded further efforts to avoid impacts through the selection of a different corridor. Opt-Out Provision A.H. section 10.2.1.2(b) provides that: The Agency will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when: * * * b. The applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. Although the areas impacted by the proposed Crosstown Parkway Extension bridge are of high quality, the combination of using the Platt’s Creek Mitigation Area, the Bear Point Mitigation Bank, and the NFSLR Aquatic Preserve Management Plan Projects, provides regional ecological value and greater long- term ecological value than the areas affected. Based thereon, the City was not required to implement practicable design modifications to reduce or eliminate impacts of the Proposed Project though, as indicated herein, it did so. Public Interest Balancing Test Portions of the Proposed Project are within Outstanding Florida Waters. Therefore, the City must provide reasonable assurances that the Proposed Project is clearly in the public interest, as described by the balancing test set forth in section 373.414(1)(a), rule 62-330.302(1)(a), and A.H. sections 10.2.3 through 10.2.3.7. To determine whether a regulated activity located in, on, or over wetlands or other surface waters is in the public interest, the following criteria must be considered and balanced: whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others; whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; whether the regulated activity will be of a temporary or permanent nature; whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources; and the current condition and relative value of functions being performed by areas affected by the proposed regulated activity. Public Health, Safety, or Welfare or the Property of Others A.H. section 10.2.3.1 establishes four criteria to be balanced in order to determine if regulated activities will adversely affect the public health, safety, or welfare or the property of others. The evidence in this case failed to demonstrate that impacts resulting from the Proposed Project would affect waters subject to a shellfish harvesting classification (A.H. section 10.2.3.1(b)), would cause or alleviate flooding on the property of others (A.H. section 10.2.3.1(c)), or would result in environmental impacts to the property of others (A.H. section 10.2.3.1(d)). A.H. section 10.2.3.1(a) requires an evaluation of hazards or improvements to public health or safety. The Crosstown Parkway Extension is calculated to relieve traffic and access problems that have earned the existing roadway infrastructure linking the east and west sides of the City a service level of “F”. By so doing, the Crosstown Parkway Extension is designed to improve emergency response times and evacuation times. The proposed Crosstown Parkway Extension corridor involves the fewest overall impacts to residences, communities, and businesses. Petitioners assert that the Crosstown Parkway Extension will create health issues from vehicle emissions, and adverse effects to wildlife and habitat from light pollution. Those alleged impacts would apply to all of the build alternatives, including Petitioners’ preferred Alternative 6(A). Furthermore, Petitioners failed to provide any quantification of either the amount or effect of any such impacts. Finally, as to the alleged light pollution, the City incorporated design modifications to the bridge lighting system to reduce such impacts. There was insufficient evidence to support a finding that the Crosstown Parkway Extension will, on balance, adversely affect public health or safety. Although more directly relevant to the sovereignty submerged lands easement, the water quality enhancement projects, including the installation of baffle boxes, reestablishment of oxbows, and dredging of unsuitable sediments in Evans Creek, will maintain and improve water quality in the NFSLR and, as a whole, result in an improvement to the water quality of the NFSLR. Thus, reasonable assurance has been provided that the Crosstown Parkway Extension will not adversely affect public health, safety, or welfare or the property of others. Conservation of Fish and Wildlife The Endangered Species Biological Assessment Report submitted as part of the ERP application was comprehensive in its scope, assessing each of the bridge alternatives. The Report concluded that the Proposed Project would have no effect on any federally-listed plant species, “may affect but [was] not likely to adversely affect” listed species, including the smalltooth sawfish, eastern indigo snake, wood stork, and manatee, and would have no effect on any other federally-listed species. The area of the Proposed Project includes no designated critical habitat. The report further concluded that each of the build alternatives, including the Proposed Project, could affect several state-listed plant and animal species, but that the Proposed Project would affect no threatened or endangered species. As to those state-listed species, the Report concluded that efforts to avoid and minimize impacts to species and their habitats had been implemented, and that a mitigation plan had been developed to compensate for unavoidable impacts to wetlands and fish habitat. The Report, which is part of the ERP application, and is, by law, part of the City’s prima facie case, is accepted. The City agreed to perform surveys for protected species and implement measures designed to protect those species from direct project effects as described by the Fish and Wildlife Conservation Commission. There was insufficient evidence to demonstrate that the agreed-upon surveys and protective measures would be ineffective in preventing adverse impacts to the wildlife species of concern. Furthermore, the City incorporated design features and construction methodologies to reduce and eliminate impacts, and provided mitigation to replace functions provided to these species affected as a result of the project. More mitigation to provide habitat and improve water quality within or adjacent to the NFSLR and the Aquatic Preserve has been provided than was required. The mitigation provides regional ecological value and greater long-term ecological value than the wetlands to be impacted. There was insufficient evidence to support a finding that the Crosstown Parkway Extension will result in adverse impacts to the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, or adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Petitioners assert that various plant species listed by the Florida Department of Agriculture and Consumer Services will be impacted by the Proposed Project. As set forth previously, the plant species of concern to Petitioners are not species defined in the A.H., and are not species that are subject to consideration in the decision to issue or deny an ERP. As set forth in paragraphs 54 and 55 above, Petitioners also assert that the alteration of the inputs to Hogpen Creek would affect the salinity regime in the Evans Creek receiving waters, thereby adversely affecting fishery nursery areas. Petitioners’ argument was made without information on the volume of water to be discharged over what period of time, without information as to the size of the Hogpen Slough watershed, without information as to the stormwater system design, and without modeling that would show how the waters would be affected by the Proposed Project. In sum, the evidence as to adverse impacts to Hogpen Slough, and resultant effects on the conservation of fish and wildlife, was made without evaluation, and was entirely speculative. The City demonstrated that areas that currently drain to Hogpen Slough will continue to drain to Hogpen Slough, with enhanced water quality treatment, and with attenuation for the additional impervious area created by the road widening at the intersection with U.S. Highway 1. Thus, the preponderance of the evidence indicates that post-construction discharges of water to Hogpen Slough will offer greater benefits to the conservation of fish and wildlife than current discharges. The City has demonstrated, by a preponderance of competent substantial evidence, that the proposed Project will not adversely affect the conservation of fish and wildlife, or their habitats. Navigation, Flow of Water, or Erosion or Shoaling The Proposed Project will not prevent fishing, boating, or other forms of recreation in the NFSLR. A bridge hydraulic analysis demonstrates that the Proposed Project will not cause impacts to water levels, flow, or velocity of the NFSLR or other water bodies. Navigation will not be adversely impacted as the bridge span will be at least as high as other bridges on the NFSLR. The bridge will meet Coast Guard minimum clearances, and Coast Guard-required aids to navigation will be included. Navigation by canoes and kayaks will be improved because of the dredging of the unsuitable sediments and the placement of a new and more accessible canoe launch. The Permit requires the implementation of best management practices to prevent erosion and sedimentation during construction. The City has demonstrated, by a preponderance of competent substantial evidence, that the Crosstown Parkway Extension bridge would cause no adverse effect on navigation or the flow of water, or harmful erosion or shoaling. Fishing or Recreational Values or Marine Productivity The Proposed Project is expected to have no effect on fishing, sport or commercial fisheries, or marine productivity. Although recreational values and fishing may be affected during construction, such impacts are temporary. The long-term effects of the Proposed Project, which include those direct and secondary impacts caused by shading of the vegetative and benthic resources under and adjacent to the Crosstown Parkway Extension bridge, are offset by mitigation including the reconnection of oxbows, which is designed to improve water quality and provide habitat that was previously isolated, and sediment dredging at Evans Creek, which will also improve water quality, fish habitat, and recreational values. The new Americans with Disabilities Act (“ADA”)- compliant canoe/kayak launch will allow for improved and more accessible recreational use. As has been discussed at length herein, the evidence was insufficient to support a finding that the Proposed Project will be reasonably expected to eliminate or degrade fish nursery habitat, change ambient water temperature, change the normal salinity regime, significantly reduce detrital export, change nutrient levels, or otherwise have any adverse effects on populations of native aquatic organisms. Rather, with the mitigation proposed in terms of land acquisition, access enhancement, sediment removal and re-establishment of oxbows, water quality treatment projects, and the stormwater treatment and attenuation being provided, the City established that the Proposed Project would have no measurable adverse impact on fishing, recreational values, or marine productivity. There is no doubt that Petitioner’s enjoyment of the Halpatiokee Trail will be compromised. However, alternative, though more publically accessible areas for walking and canoeing will be provided. Petitioner was critical of the fact that the alternative areas would not be as wild and undeveloped as the existing trails and was particularly critical of the Savannas County Park Trail mitigation, since it is paved to provide access for handicapped nature lovers. This is, however, a balancing test. Based on the record as a whole, there was insufficient evidence to support a finding that the Proposed Project will, on balance, have an adverse effect on fishing or recreational values and marine productivity. Temporary or Permanent Nature The Proposed Project is of a permanent nature. Temporary impacts will occur during construction, but are considered less harmful than the permanent impacts as the temporary impact areas will eventually recover. Although there will be permanent habitat loss, such loss will be offset through mitigation. Historical and Archaeological Resources There was no evidence of significant historical or archaeological resources on or near the Proposed Project. Current Condition and Relative Value of Functions The current condition and relative value of functions is high, as demonstrated by the UMAM scores. This value is due to the location in the NFSLR Aquatic Preserve and state park, connectivity to other wetlands and surface waters, and utilization by fish and wildlife. To offset impacts to the current condition and relative value of functions being performed by areas affected by the Proposed Project, the City provided mitigation in excess of the rule requirements, including the purchase and enhancement of additional lands, and the construction of various types of water quality improvement projects. The mitigation projects and goals are described in the Aquatic Preserve Mitigation Plan. Public Interest Balancing Test - Conclusion The City has proven, by a preponderance of the competent substantial evidence adduced in this proceeding, that, upon balancing the impacts of the Proposed Project with its benefits, the activities authorized by the Permit will be clearly in the public interest. Sovereignty Submerged Lands The City requested an easement over 2.134 acres of sovereignty submerged lands. Approximately 1.44 acres of the 91.53-acre project will be constructed in, on, or over sovereignty submerged land. Permanent in-water impacts consist of two sets of piles to be installed in the Coral Reef Waterway, the NFSLR, and Evans Creek, with a total fill area within the sovereignty submerged lands of 492 square feet or 0.0113 acres. The submerged lands public easement is 157 feet wide, greater than the reduced 104-foot width of the Crosstown Parkway Extension bridge. The area of the easement in excess of the 1.44 acres over which the bridge will pass is to accommodate temporary construction and maintenance activities. Aquatic Preserve The area within the sovereignty submerged lands easement is in the NFSLR Aquatic Preserve. In order to obtain an easement in an aquatic preserve, the City is required to demonstrate that the benefits exceed the costs, and that the Proposed Project is consistent with the NFSLR Aquatic Preserve Management Plan. Consistency with the NFSLR Aquatic Preserve Management Plan is a component of the public interest assessment required by rule 18-20.004(2)(a)(3). Proprietary mitigation was proposed for recreation areas, water quality and quantity, wetlands, wildlife and habitat, floodplain social considerations, and relocations. Proprietary mitigation consistent with the NFSLR Aquatic Preserve Management Plan includes: the installation of baffle boxes within five waterways that discharge into the aquatic preserve. Baffle boxes are designed to slow the flow of water from upland and developed areas, allowing sediment to fall out before the water is discharged to the NFSLR. They are a proven and effective means of improving water quality in a receiving water body; the removal of muck and sediment from Evan’s Creek. The removal of such materials is designed to improve water quality, navigation, and habitat in Evans Creek; the construction of a new, ADA-accessible canoe/kayak launch to replace the current Halpatiokee launch that will be displaced by the Crosstown Parkway Extension, the creation of the ADA-compliant Savannas Recreation Area Trail between Savanna Road and Midway Road, and the improvement of the Savannas Preserve State Park Education Center. The Halpatiokee canoe/kayak launch was slated for closure by the DEP under any of the build alternatives. ADA-accessibility for the canoe/kayak launch and recreation trail, along with improved canoe/kayak launch parking, will enhance public access to the NFSLR Aquatic Preserve and Savannas Preserve State Park5/; purchase and conveyance to the BTIITF of approximately 110 acres, including wetlands and uplands adjacent to the Aquatic Preserve at the Evans Creek, Crowberry, Brywood, Emerson, Highpoint, and Riverwalk sites. Acquisition also includes the Green River parcel in the Savannas Preserve State Park. Each of those sites was identified as priority acquisitions in the NFSLR Aquatic Preserve Management Plan or by the DEP. The conveyances also include an obligation for the City to remove exotic vegetation from the parcels over a period of five years; and oxbow reconnection and removal of accumulated sediments at Site 5 West and Riverplace Upstream, adjacent to the Aquatic Preserve, designed to improve water quality and habitat. Cost/Benefit Analysis Costs related to the 2.134-acre easement include reduced habitat at the bridge location, shading of the water column and areas of herbaceous and forested wetlands, including mangroves, pre-emption of public use, some of which is temporary and some of which due to the loss of functional use of the Halpatiokee Trail under the bridge, and reduced aesthetics. Those costs, except for the Halpatiokee Trail impacts, would be evident to varying degrees at each of the proposed build alternative routes. The City demonstrated that the Crosstown Parkway Extension is a public necessity for which no other reasonable alternative exists. The Crosstown Parkway Extension provides the most efficient means of addressing current traffic congestion, the severe traffic congestion anticipated in the future, and other access and evacuation issues described herein, with the least overall impact to the public. The Crosstown Parkway Extension will not involve dredging or filling in the Aquatic Preserve. Although there will be pilings in the Aquatic Preserve, pilings are not “fill” pursuant to rule 18-20.003(27). The DEP and the City entered into a Memorandum of Understanding (“MOU”) that identifies projects that the City committed to undertake, and lands that the City committed to convey to state ownership to provide for proprietary and sovereignty submerged lands mitigation. The MOU projects are consistent with the approved NFSLR Aquatic Preserve Management Plan. Consistency with an adopted management plan is given great weight when determining whether the project is in the public interest. As set forth above, benefits of the Proposed Project to the Aquatic Preserve include enhanced public access, improved and enhanced water quality, and enhancement and restoration of natural habitats and functions. The City also proposes to convey approximately 110 acres to the BTIITF. The City has proven, by a preponderance of the competent substantial evidence adduced in this proceeding, that, upon balancing, the social, economic, and environmental benefits associated with the Proposed Project, including the extensive proprietary mitigation being provided, far exceed the costs of the 2.134-acre submerged lands easement. Findings of Fact - Conclusion Based on the foregoing Findings of Fact, and as supported by a preponderance of the competent, substantial, and credible evidence, the standards and conditions for issuance of the Permit as set forth herein have been satisfied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the South Florida Water Management District enter a final order approving the issuance of Environmental Resource Permit and Sovereignty Submerged Lands Public Easement, Permit No. 56-03461-P, to The City of Port St. Lucie, on the terms and conditions set forth in the Notice of Consolidated Intent to Issue and Staff Report, as modified, and the complete Application for Environmental Resource Permit. Said approval shall not be construed as relieving The City of Port St. Lucie from obtaining an upland easement for the 14.202 acres of non-submerged state-owned land required for the Proposed Project. DONE AND ENTERED this 8th day of November, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 8th day of November, 2016. 1/ T.162:22-181:19.
Findings Of Fact The Petitioner is the owner of Lot 28, Hidden Bay Subdivision, Martin County, Florida. On July 19, 1990, Petitioner filed an application with the Respondent for a dredge and fill permit to construct on the wetland portion of his lot a single family dwelling on stilts, a garage, and a connecting driveway to an existing roadway. The application also seeks a permit to retain a roadway that was constructed on the property before the Respondent asserted jurisdiction over the property. The existing roadway is 25 feet wide and 510 feet long and remained in existence at the time of the formal hearing. The connecting driveway on the wetlands portion of the property would require 40 cubic yards of fill. The following, taken from the Notice of Permit Denial entered by Respondent, accurately describes the proposed project: The proposed project will entail the temporary placement of 500 cubit yards of clean fill in order to set piles for a proposed stilt house. Additional fill (40 cubic yards) is proposed for a driveway to access a proposed garage. Riprap is proposed along the east slope of the driveway and along the northwest slope under the proposed stilt house. In addition, 186 cubic yards of the existing unauthorized fill road is proposed to remain. Total acreage to be impacted by this project is .092 acres. Petitioner's lot fronts Bessey Creek and is located in Section 1, Township 38 South, Range 40 East, in Palm City. Petitioner's lot is located approximately 2,200 feet south of the C-23 Canal on Bessey Creek. Bessey Creek is designated a Class III water. Bessey Creek combines with other tributaries and ultimately discharges into the North Fork of the St. Lucie River, which is designated an Outstanding Florida Water. Petitioner's lot consists of 1.82 acres. Respondent has asserted jurisdiction over approximately 1.3 acres of Petitioner's lot on the grounds that it is a fresh water wetland. Petitioner does not challenge Respondent's asserted jurisdiction in this proceeding. The Respondent has jurisdiction over dredge and fill activities conducted on the portion of Petitioner's lot that is at issue in this proceeding. This project is not exempt from permitting procedures. A dredge and fill permit is required for the proposed construction. Prior to applying for this permit, Petitioner contacted James McElheny, a landscape architect, who assisted Petitioner in drawing up the plans for the house, the driveway, and the garage that Petitioner desired to construct on the property. Without being aware that a permit from the Respondent would be required, Petitioner constructed a driveway on a portion of his property that was within the permitting jurisdiction of Respondent. This driveway extended to the landward end of a boardwalk that terminated as a dock in Bessey Creek. After Petitioner became aware of the need for a permit, he removed the filled driveway to a point that Martin County and Respondent agreed was appropriate. A portion of the driveway remained on property within the permitting jurisdiction of the Respondent at the time of the formal hearing. The plan prepared by Mr. McElheny also depicted this existing, unauthorized roadway. Petitioner's application seeks, in part, a permit to retain this driveway. On June 10, 1991, Respondent issued its Notice of Permit Denial based on the Respondent's conclusion that the Petitioner had failed to provide the required assurances in Sections 403.918(1) and (2), Florida Statutes. The Notice of Permit Denial provided, in pertinent part, as follows: The Department hereby denies the permit for the following reasons: This project is expected to have both short and long term impacts to biological resources and water quality. The total acreage to be impacted by this project is .092 acres. In addition, the applicant has not provided reasonable assurance that the project is not contrary to the public interest pursuant to Section 403.918(2), Florida Statutes. Pursuant to 403.919, F.S. which gives the Department the authority to examine secondary impacts, the Department has concerns about additional wetland resource and water quality impacts that may result from this project. Floodplain areas are essential to the river system and provide important functions for the environment. The floodplain serves as a buffer system in high tide and storm events. It also serves as a source of detrital input which supports the freshwater and estuarine food chains. In addition, these areas act to improve water quality by stabilizing sediment and filtering upland runoff. Long-term effects of the proposed project would include a decrease in the productivity of the system, as well as a decrease in the filtering and stabilizing capabilities of the system. Water quality degradation is also expected to occur with upland runoff from pesticides, fertilizers, sewerage and petroleum products. Floodplain wetlands also provide a habitat for a wide variety of reptiles, amphibians, birds, crustaceans and mammals. This would eliminate this wetland habitat. This project is expected to be in violation of the following Florida Statutes and Florida Administrative Code Rules: 403.918 Criteria for granting or denying permits 17-312.080 Standards for Issuance or Denial of Permit 17-312.300(3) Mitigation Intent 17-302.560 Criteria: Class III waters The Department has determined that the following changes to the project make the project permittable. Modify the project to reduce or eliminate adverse environmental impact by: Removing the unauthorized fill road from water of the state. Relocate the proposed house to utilize as much upland area on the property as possible. Relocate the garage and access driveway to an upland area [and] eliminate or modify the garage and access road to reduce impacts. Section 403.918, Florida Statutes, provides the following permitting criteria pertinent to this proceeding: A permit may not be issued . . . unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. . . . A permit may not be issued . . . unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. . . . (a) In determining whether the project will adversely affect the public health, safety, or welfare or the property of others . . . the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others. Whether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitat; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The Respondent is entitled to consider the cumulative impact of the proposed project pursuant to Section 403.919, Florida Statutes, which provides as follows: The department, in deciding whether to grant or deny a permit for an activity which will affect waters, shall consider: The impact of the project for which the permit is sought. The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought. The impact of projects which are under review, approved, or vested pursuant to s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations. The residence that Petitioner proposes to build on the wetland portion of the property will be constructed on pilings so that the underside of the house will be 12 feet above the ground. There will be a total of 12 pilings, with each piling being 10 inches square. The "footprint" of the house will be 1,654 square feet. If the project is permitted, best management practice will require that a silt screen be erected around the construction site during construction to prevent silt runoff. The proposed site for the house is located in a natural clearing that would require minimal clearing. If the project is to be permitted in this wetland, the site selected by Petitioner is the best site with the least impact on the wetland. Petitioner would be required to remove up to two laurel oaks and seven red maple trees. These are relatively small trees, and both species are common. Petitioner would also be required to remove shrub of no particular unique value. Petitioner proposes to mitigate the removal of the trees by replanting on the property trees that were removed in a 2-1 ratio, so that 6 laurel oaks and 14 red maples would be replanted. Petitioner also proposes to revegetate the area beneath the residence, with the exception of the area required by the pilings. There are invasive, exotic plants on the property, such as Brazilian pepper, that would be removed by Petitioner and replaced by native plants. Ms. Jacqueline Kelly, the environmental specialist who reviewed this project for Respondent, visited the property approximately four times for a total of eight hours. Ms. Kelly is of the opinion that no dredge and fill activity should be permitted on jurisdictional wetlands. Ms. Kelly testified that she observed several species of birds while she was on the property, including a wood stork, a great blue heron, a little blue heron, a tricolored heron, an osprey, bluejays, woodpeckers, and grackles. The wood stork is an endangered species and the little blue heron, the tricolored heron, and the osprey are species of special concern. These birds do not nest on the subject property, and they were not observed in the area of the wetland on which the proposed construction would occur. There was no testimony upon which it can be concluded that the proposed construction will stop these species from coming on to the property. Because of the slope of the terrain, the upland portion of the Petitioner's property drains away from the wetland while the portion on which the proposed construction would occur drains toward the wetland. At the formal hearing, Petitioner suggested that any concerns as to drainage from the roof of the proposed residence could be discharged onto the upland portion of the lot by gutters. In his post-hearing submittal, Petitioner proposes that a condition of the permit be that "[a] roof drainage system be installed that allows the roof to drain to the upland portion of the project." The permitting requirement contained in Section 403.918(6), Florida Statutes, pertaining to historical or archaeological resources was not at issue in this proceeding. Ms. Kelly concluded that Petitioner has not provided reasonable assurances required by Section 403.918(2), Florida Statutes, as to each of the remaining permitting criteria. The rationale given by Ms. Kelly for her conclusions is not persuasive. The greater weight of the evidence is that all reasonable assurances required by Section 403.918(2), Florida Statutes, that were at issue in this proceeding have been provided as it pertains to the construction of the residence. The existing roadway was filled using shell rock which has stabilized. The mere existence of the roadway on the wetland property was not shown to violate any permitting criteria since this roadway does not violate water quality standards and is not contrary to the public interest. Petitioner did not, however, provide reasonable assurances that the utilization of this existing roadway as either a driveway or a parking area would not violate water quality standards as required by and within the meaning of Section 403.918(1), Florida Statutes, or that such use would not be contrary to the public interest or that those parts of the project would not be contrary to the public interest as required by and within the meaning of Section 403.918(2), Florida Statutes. Petitioner did not provide reasonable assurances that the construction of the garage or the extension of the driveway on these wetlands would not violate water quality standards as required by and within the meaning of Section 403.918(1), Florida Statutes, or that those parts of the project would not be contrary to the public interest as required by and within the meaning of Section 403.918(2), Florida Statutes. John Meyer was of the opinion that the project should be denied because of the possible precedent that the permitting of this project may establish for other owners of wetland properties. There was no factual or legal basis established for this opinion. The permitting of this project has no value as a precedent for other projects. There was no evidence that there were other permit applications pending for other projects in wetlands, and Mr. Meyer could only recall one or two such applications ever having been filed. The greater weight of the evidence establishes that speculative cumulative impacts of this project does not prohibit the permit pursuant to the provisions of Section 409.919(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which permits Petitioner to construct the residence on stilts with the following conditions: That silt screens be erected during the actual construction to prevent silt runoff from the construction from reaching Bessey Creek. That a roof drainage system be installed that allows the roof to drain to the upland portion of the project. That Petitioner be required to mitigate for the removal of laurel oaks and red maple by replanting on the property two laurel oaks for each laurel oak removed and by replanting on the property two red maples for each red maple removed. That Petitioner be required to revegetate with native plants the area under the house except for the areas required for the stilts. IT IS FURTHER RECOMMENDED that Respondent deny a permit to construct a garage or extend the existing roadway. IT IS FURTHER RECOMMENDED that Respondent permit Petitioner to retain the existing roadway on the condition that the roadway not be utilized as either a driveway or as a parking area for motor vehicles. DONE AND ENTERED this 12th day of January 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of January 1994.
