The Issue The issue is whether, to the exclusion of fair debate, specific provisions of the Charlotte County comprehensive plan are not in compliance with certain requirements of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background Introduction Charlotte County Charlotte County is located in Southwest Florida. It is bordered on the south by Lee County, north by Sarasota and DeSoto counties, west by the Gulf of Mexico, and east by Glades County. Charlotte County comprises 693.7 square miles of land and 129 square miles of water--mostly Charlotte Harbor and its tributaries. Although only 18 miles in length from north to south, Charlotte County contains 120 miles of coastline. Charlotte Harbor and its two main tributaries physiographically divide the Charlotte County into eastern, central, and western portions. The eastern portion of the County is bounded on the west by the Peace River and Charlotte Harbor. The eastern portion of the County contains Punta Gorda, which is the sole municipality in Charlotte County. Punta Gorda abuts the southern bank of the mouth of the Peace River and the bank along the northeast corner of Charlotte Harbor. The central portion of the County is bounded on the east by the Peace River, the south by Charlotte Harbor and the Peace River, and the west by the Myakka River. The central portion of the County contains Port Charlotte, which is the major, unincorporated town center in Charlotte County. Port Charlotte encompasses the area from the mouth of the Peace River to the area of the intersection of State Route 776 and U.S. Route 41, although the specific area of this intersection is sometimes referred to as Murdock. The community at the northern bank of the Peace River at U.S. Route 41 is known as Charlotte Harbor. Between the community known as Charlotte Harbor and Interstate 75 is the community known as Harbor View. Farther upstream the Peace River, but still on its north and west bank, and east of Interstate 75, is the community known as Harbor Heights. The central portion of the County also contains large areas of urbanized development-- west of Interstate 75, south of State Route 776, and on both sides of U.S. Route 41--that are served by septic tanks or package plants. The western portion of the County is bounded on the east by the Myakka River and Charlotte Harbor, the south by Charlotte Harbor and Gasparilla Sound, and the west by Gasparilla Sound, Placida Sound, and Lemon Bay, which separate the mainland from the County's coastal barriers. Most of the western portion of the County is also known as the Cape Haze Peninsula. The western portion of the County also contains the coastal barriers dividing Lemon Bay, Placida Sound, and Gasparilla Sound from the Gulf of Mexico to the west. The western portion of the County contains large areas of urbanized development that are served by septic tanks or package plants. These areas are mostly north and west of the Rotonda, which occupies the center of the Cape Haze Peninsula, and south of Englewood, which is a community immediately north of the county line. Charlotte Harbor (including Gasparilla Sound) is an aquatic preserve totaling about 270 square miles (a small part of which is in Lee County). Charlotte Harbor is the second largest estuary in Florida. The water quality of Charlotte Harbor is "fair to good" with "somewhat lower water quality" along the eastern shoreline of the harbor and at the mouths of the Myakka and Peace rivers. Natural Resources and Coastal Planning Element (Natural Resources Element), p. 3-15. Human impacts to these waters have depressed water clarity and elevated concentrations of bacteria, nutrients, and suspended sediments. Phytoplankton productivity is typically limited by the amounts of available nitrogen, as relatively high levels of phosphorus are available from the Peace River watershed, but the limiting factor in certain regions of the tidal rivers, which also have relatively high levels of nitrogen, is light availability. The "most severe threats to water quality and natural systems in Charlotte Harbor" are "population growth and urbanization," which are focused along the coastline of the harbor, and mining, chemical processing, and agricultural activities, which apply to all surface waters in the watershed. Natural Resources Element, p. 3-19. Gasparilla Sound separates Charlotte Harbor from Lemon Bay, which is an aquatic preserve and an Outstanding Florida Water. Lemon Bay is a narrow, 12 square-mile body of water running about 13 miles between the coasts of Charlotte and Sarasota counties and the coastal barriers, which range from 1/8th of a mile to 1.2 miles off the mainland. The average depth of Lemon Bay is six feet at mean high water. The water quality of Lemon Bay is "generally good," but only fair to poor for dissolved oxygen and fecal coliform bacteria in the bay waters and mouths of the tributary creeks. The urbanized creeks of the Englewood area also have high nutrient levels. Natural Resources Element, p. 3-23. Charlotte County is relatively low-lying with elevations from 0 feet at the Gulf coastline to 75 feet in the northeast section. However, the highest areas of the County are in the extreme eastern end of the County, which is very lightly populated and bears relatively low densities on the Future Land Use Map (FLUM). Nearly the entire population of Charlotte County resides at elevations of less than 15 feet. Natural Resources Element, Map 3.13. County soils are poorly drained, so that 97 percent have "severe limitations" for septic tank drainfields. Future Land Use Element (FLUE), pp. 1-5 and 1-49. The only soil rated as "moderate" for septic tank drainfields is Orsino fine sand, which covers less than one percent of the County--mostly along the Prairie Creek and Alligator Creek east of U.S. Route Infrastructure Element, p. 4-138. Most of the County is susceptible to flooding; the 100-year floodplain encompasses most of the urbanized area of the County. On June 23, 1995, for instance, a cluster of thunderstorms not associated with a tropical storm or hurricane produced 15 inches of rain over nine hours. The resulting flood damaged $2.5 million of public property (mostly roads, but including a 12-inch water main that was first exposed and then ruptured by rushing water) and $1 million of private property. As reflected on Natural Resources Element Map 3.16, nearly the entire coastline, including that along Charlotte Harbor, is within the hurricane vulnerability zone for a Category 1 hurricane; in fact, most of the coastline is within the hurricane vulnerability zone for merely a tropical storm. The County has designated areas within the hurricane vulnerability zone for Category 1 and tropical storms as its Coastal High Hazard Area (CHHA). FLUE, p. 1-64. Except for parts of the northern end of the central part of the County and the southern end of the eastern part of the County, the entire County west of Interstate 75 is in the hurricane vulnerability zone for all storms up to a Category 3 hurricane. According to FLUE Map 1.17, the CHHA is extensive in Charlotte County. For the western part of the County, the CHHA encompasses all of the barriers and nearly the southern half of the Cape Haze Peninsula. For the central part of the County, the CHHA encompasses nearly one-quarter of the coastal area between State Route 776 and U.S. Route 41, a thin band to the east (along the northern end of Charlotte Harbor and the north bank of the Peace River), and a thicker band to the west along the north bank of the Myakka River. For the eastern part of the County, the CHHA encompasses a thin band along the east bank of the Peace River and along the northern end of Charlotte Harbor around Punta Gorda and a thicker band along the remainder of the east bank of Charlotte Harbor south of Punta Gorda. Running parallel to the coast, parts of two coastal barriers--one a peninsula and the other an island--and a bridgeless barrier island chain separate the Cape Haze Peninsula from the Gulf of Mexico. The northernmost coastal barrier is Manasota Key, which is a peninsula connected to the mainland in Venice. The southern 4 miles of Manasota Key are in Charlotte County. The southernmost barrier is Gasparilla Island, which is an island. The northern 1.8 miles of Gasparilla Island are in Charlotte County. Manasota Key and Gasparilla Island are connected by roads to the Cape Haze Peninsula. Located between Manasota Key and Gasparilla Island is a chain of bridgeless barrier islands known, from north to south, as Thornton Key, Knight Island, Bocilla Island, Don Pedro Island, and Little Gasparilla Island (Don Pedro island chain). (Sometimes Palm Island is added to this list, although it may signify an alternative name rather than another historic island.) At present, the Don Pedro island chain is connected by land, but these islands can be separated by water in very high tides and were more continually separated by water in the recent past. Stump Pass divides the Don Pedro island chain from Manasota Key, and Gasparilla Pass divides the Don Pedro island chain from Gasparilla Island. About 90 percent of the Don Pedro island chain is within the hurricane vulnerability zone for a tropical storm. The Don Pedro island chain is part of a highly dynamic system. For example, Stump Pass has migrated south 1.3 miles over a 100-year period ending in 1984. With respect to the area within Charlotte County, Manasota Key contains 59 acres of active dunes, the Don Pedro island chain contains 228 acres of active dunes, and Gasparilla Island contains 24.3 acres of active dunes. Natural Resources Element, p. 3-148. The widths of all three coastal barriers vary from 80 to 2000 feet. The northern two miles of Manasota Key have withdrawn up to 100 feet during the last century. The southernmost mile has recently been even more dynamic, eroding 40 to 170 feet from 1953 to 1975. The area in between built up 20 to 40 feet during the last century. Similarly, areas of erosion and accretion characterize different parts of Gasparilla Island in Charlotte County. The Don Pedro island chain has been cut by at least five different inlets in the 100-year period ending in 1981. Inlets or passes now closed are former Bocilla Pass on Knight Island, Blind Pass between Knight and Don Pedro islands, and Little Gasparilla Pass between Don Pedro and Little Gasparilla islands. With respect to the Don Pedro island chain, the County states: "Generally, the beach areas one-half to 1 mile north and south of inlets are the most dynamic of all on barrier islands and must be considered high-hazard zones for any structures. Low elevations make the island vulnerable to flooding." Natural Resources Element, p. 3-148. The Don Pedro island chain provides about 12.5 miles of Gulf shoreline and is separated from the mainland by as little as 200 feet of water. A bridge ran to the islands until removed by the Army Corps of Engineers in the 1960s during construction of the Intracoastal Waterway. Beach renourishment projects have enjoyed different levels of success in meeting the expectations of their engineers. In the most recent such project, Palm Island Resort conducted a relatively small project at the north end of its island in 1995, but the additional sand naturally transported offsite within one year. Natural Resources Element, pp. 3-153 and 3-159. 2. County's Planning Challenges Although generally in good condition, the surface waters of Charlotte County present a planning challenge to Charlotte County, which attempts to "continue to provide water for all the various human needs--residential, agricultural, and industrial--without damaging the natural systems which supply the water and make Florida a desirable place in which to live." Natural Resources Element, p. 3-40. The County recognizes that the "primary threats to [its] surface waters include non-point source pollution generated by urban and agricultural runoff, leachate from septic tanks and package wastewater treatment plants, erosion from improper land clearing activities, upstream sources of contamination (particularly phosphate mining in the Peace River Basin), and historic construction of dead-end finger canals." Id. The planning challenges faced by Charlotte County are complicated by its self-described status, with such other communities as Cape Coral and Lehigh Acres, as a "platted lands" community. During the 1950s, 1960s, and 1970s, large- scale developers platted vast amounts of land into individual lots and sold them to large numbers of persons. Among the most notable developers of Charlotte County land were the Mackle Brothers and General Development Corporation (GDC), which has been succeeded by Atlantic Gulf Communities Corporation. GDC subdivided the 185 square-mile Port Charlotte subdivision--nearly one-sixth the area of Rhode Island--in the central and western parts of the County, as well as in adjacent Sarasota County. The portion of this massive subdivision in Charlotte County contains 118,254 lots and parcels, of which 88,543, or about 75 percent, remain vacant. Another notable developer was the Cavanaugh Leasing Corporation of Miami, which developed Rotonda West. Marketed as a "self-contained circular community of 50,000," the Rotonda West development, with its surrounding subdivisions, totals 26,260 lots, of which 24,226 remain vacant. Seven subdivisions, including the two already noted, account for 186,001 total lots, of which 145,639 remain vacant. As acknowledged in the FLUE data and analysis in the comprehensive plan: The overplatting of land has made achieving growth management objectives very difficult. For the most part, development has followed the extension of potable water lines in Charlotte County. Therefore, the provision of infrastructure appears to be the most effective tool for directing where, when, and at what intensity development will proceed. The growth management strategy within this comprehensive plan utilizes the provision of infrastructure as the primary tool for managing growth and development in Charlotte County. It is referred to as the Urban Service Area strategy. FLUE, p. 1-13. Of the total of 443,968 acres of existing land uses in Charlotte County, the five largest categories are agricultural--229,695 acres; park, recreation, or refuge-- 91,269 acres; vacant-60,317 acres; other (such as roads, canals, and lakes)--33,224 acres; and residential--18,844 acres. Commercial land uses total only 1337 acres--less than the 2814 acres in mining and 1501 acres in industrial. FLUE, Table 1.9. Over 80 percent of the County's assessed valuation is derived from residential properties, which is the highest proportion in Florida, for which the average is only 66 percent. FLUE, p. 1-68. The magnitude of the planning challenges confronted by Charlotte County is largely driven by residential development. The County's population grew in the 1980s from 58,460 to 110,975, doubling as it has in every decade since the 1950s. FLUE, Chart 1.1. During the 1980s, Charlotte County led the nation in population growth with nine percent annual increases. FLUE, p. 1-67. The population of Charlotte County is largely elderly; in 1990, one-third of the residents were at least 65 years old. FLUE, Chart 1.4. No other county in Florida has a greater percentage of residents at least 65 years old, and only one county in the United States has a higher percentage of residents at least 65 years old. Almost half of the County's population is over the age of 54 years; its median age of 53.7 years is the highest in Florida. The large population growths experienced by Charlotte County are due to a net in-migration because the County had 2904 more deaths than births between 1990 and 1994. County personal incomes are bunched in the middle. Only 7.5 percent of County households live below the poverty line, which is second lowest in Florida. But only 5.8 percent of County households have incomes over $75,000; the average in Florida is 10 percent. Charlotte County has a low labor force participation rate (42 percent versus the Florida average of 60 percent), and County employment is concentrated in the low- paying areas of retail, services, and construction (85 percent versus the Florida average of 60 percent). FLUE, p. 1-67. Combining these factors with the 62nd lowest millage rate in Florida and few industrial and commercial properties on the tax rolls leaves Charlotte County with a fairly narrow tax base. FLUE, p. 1-68. All of these conditions contribute to the difficulty of meeting the planning challenges presented by extremely large numbers of prematurely platted lots. As the County has addressed this problem: There are no absolute solutions for the problems associated with the premature platting and sales of land. When the original developers go bankrupt, as many inevitably do, local governments, taxpayers, and ratepayers are left with the bill. Must they honor the obligations made by the original developer? Can a local government simply turn its back upon those customers? There are no easy answers to these questions which have legal, political, and economic implications. FLUE, p. 1-100. 3. County's Planning Strategies After reviewing several possible planning strategies, the County chose the Urban Service Area (USA) strategy as the key component of its overall strategy to deal with the problem of large numbers of prematurely platted lots, FLUE, p. 1-104, and its "primary growth management tool." FLUE, p. 1-132. The County has refined its urban-containment strategy since adopting its first comprehensive plan under the 1985 Local Government Comprehensive Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (Chapter 163), in 1988. In the 1988 plan, Charlotte County adopted an "urban growth boundary" that encompassed all of the platted lands within a 215 square mile area. FLUE, p. 1-132. In 1989, Respondent Department of Community Affairs (DCA) challenged the 1988 plan largely on the ground that it did not discourage urban sprawl. Following a lengthy hearing, Charlotte County and DCA entered into a Joint Agreement on Remedial Actions and Sanctions. On March 15, 1990, the Administration Commission entered a final order determining that portions of the 1988 plan were not in compliance with Chapter 163 and incorporating the remedial agreement into the order. Implementation of the agreement was difficult, and the Administration Commission did find the plan to be in compliance until May 1994. The main theme of the remedial actions was to encourage development where public facilities are available and physical conditions are most suitable and discourage development of other areas within the County. Accordingly, Charlotte County decreased densities in outlying areas, including the Don Pedro island chain. Establishing the USA as the major part of its urban- containment strategy, the County reduced the former urban growth area by 28 square miles. Even so, the still-vast 187 square-mile USA encompasses nearly the entire County west of Interstate 75 and about 25 square miles east of Interstate 75. FLUE, p. 1-133 and FLUM Series No. 2. The USA is divided into 97 square miles of Infill Areas (13 of which are in Punta Gorda) and 90 square miles of Suburban Areas. The designation of 84 square miles of Infill Areas within the unincorporated County better corresponds to the 79 square miles projected to be needed for residential growth through 2010. However, this growth management strategy likely will not result, in the planning timeframe, in compact urban development featuring viable mixed uses in functional proximity to each other due to three factors: the large numbers of already-sold platted lots, the lack of resources to confront this problem more directly, and the urbanization-- almost inevitably in an inefficiently sporadic pattern due to the excessive designated densities as compared to the projected population growth--of an additional 90 square miles of Suburban Area within the USA. The County's ability to discourage urban sprawl is compounded by two limitations upon its ability to control the provision of infrastructure: the prevalence of private utilities providing central sewer and water services and the prevalence of Municipal Services Taxing Units (MSTUs) and Municipal Services Benefits Units (MSBUs) funding road and drainage projects. Although the use of MSTUs and MSBUs to provide the infrastructure crucial to guiding the location and timing of urbanization is obviously not unique to Charlotte County, the extensiveness of these alternative means of providing such infrastructure may be. The County's ability to control the timing of the extension of central water and sewer expanded with the 1991 acquisition of General Development Utilities. However, 12 of the 14 utilities supplying potable water in Charlotte County are privately owned. Infrastructure Element, p. 4-106. According to Infrastructure Element Map 4.23, the certificated territory of Charlotte County Utilities covers about 70 percent of the central portion of the County and about 20 percent of the western portion of the County. The City of Punta Gorda has the certificated territory for the relatively small area of the eastern portion of the County that is served by central water. Infrastructure Element Table 4.18 indicates that, in 1995, Countywide average daily demand was 14,605,950 gallons of potable water, including Charlotte County Utilities with an average daily demand of 6,070,990 gallons and the City of Punta with an average daily demand of 3,168,000 gallons. Thus, private utilities supply a little more than one-third of the potable water in the entire County. The situation is worse with respect to central sewer. Two public utilities and seven private utilities supply central sewer. Infrastructure Element Map 4.26 indicates that the certificated territories for central sewer are much smaller than are those for central water. Relatively little of the western portion of the County has central sewer, and the territory of Charlotte County Utilities is significantly smaller than the territory served by Rotonda West Utilities Corp. For the central portion of the County, the territory of Charlotte County Utilities is significantly larger than that of the other major utility, Florida Water Services Corp.--Deep Creek. The City of Punta Gorda has most of the territory for central sewer in the eastern part of the County. Average daily demand in 1995 totaled 6,283,960 gallons including Charlotte County Utilities receiving 1,950,470 average gallons daily and the City of Punta Gorda receiving 2,038,580 average gallons daily. Thus, private utilities treat a little more than two-thirds of the wastewater, although, considering the 514,300 average gallons daily treated by package treatment plants (Infrastructure Element, Table 4.25), the share of the private utilities is a little less. A precursor to community development districts, for which developers form entities for the construction and operation of certain public facilities, such as roads and drainage, MSTUs and MSBUs are also means by which residents receiving certain services pay for those services, primarily roads and drainage. An MSTU differs from an MSBU because the former imposes an ad valorem tax and the latter imposes a tax based on other factors. Capital Improvements Element, p. 8-9. As the County notes, "[t]he extent of the County's use of MSTUs and MSBUs is unique in Florida and perhaps in the country." Capital Improvements Element, p. 8-8. Both sources of revenue funded about $7.2 million in local roads and drainage in 1995-96. Capital Improvements Element, p. 8-8. This is a significant source of funding for roads and drainage. For the five fiscal years ending in 2002, the total County expenditures for "street/drainage/waterways/other projects" are $10.7 million and for "road improvements/M&O" (presumably maintenance and operation) are $59.4 million/ during the same five-year period, MSBUs and MSTUs provide $10.6 million of total revenues of $174.7 million. Capital Improvements Element, Capital Improvement Program, p. C-2. Thus, unless a portion of the $5.6 million in "natural resources" expenditures during this five-year period are allocated to drainage, MSTUs and MSBUs provide all of the funds for County-funded drainage projects and an undeterminable percentage (due to the grouping of streets, drainage, waterways, and other projects under one item)-- substantially less than 15 percent--of the funds for County- funded road projects. Id. As the County observes, "[t]he use of the rural MSBUs makes living in rural Charlotte County competitive with living in the [USA] and detracts from the ability to contain growth within the [USA]." Capital Improvements Element, p. 8-9. Public Participation The planning process that culminated in the new plan began with the County's preparation of its Evaluation and Appraisal Report (EAR). In this process, the County evaluated the success of its plan, identified any new planning challenges that it faces, and developed new planning strategies to meet these challenges. Charlotte County began the EAR process in 1993. Completing the EAR in 1995, the County transmitted it to the Southwest Regional Planning Council, which determined in January 1996 that the EAR was legally sufficient. In developing a new plan based on the EAR, the County conducted 115 public meetings from 1995-97. All interested persons could speak at these meetings. Additionally, County residents had an unusual opportunity for input into the plan because of the County's reliance on the Charlotte Assembly, whose membership represented a broad range of County residents who wanted to participate directly in the preparation of a new plan. The Charlotte Assembly worked on the plan from October 1996 through the summer of 1997. On March 18, 1997, the County Commissioners transmitted the proposed plan to DCA. Following receipt of the report of DCA's objections, recommendations, and comments, the County Commissioners adopted the plan on October 7, 1997. There is no evidence in the record of any shortcomings in the contents of the public-participation procedures adopted by Charlotte County, nor in its implementation of these procedures in the planning process that produced the plan. Standing of Petitioners Plummer Eugene Plummer (Plummer) is the president of The Historical Knights Bldg., Inc. He owns a majority of the shares of the corporation, which owns the real property located at 2600 Bayshore Boulevard (the Site). The Site is in the Charlotte Harbor Redevelopment Area. At the time of the hearing, a two-story building constructed in 1923 was located at the Site, as well as the Knight Dock, from which Confederate forces had shipped cattle during the War Between the States. However, several months prior to the hearing, in February 1998, the County had razed an older building located at the Site known as the Mott Willis Building. The Mott Willis Building was originally constructed as the first general store in Charlotte County. At different times, Mr. Willis and members of the Knight family lived upstairs. In the 1920s, the original building was enlarged by its envelopment within a larger general store, which had fallen into disrepair for the 20 years preceding its demolition. At the time of its demolition, the Mott Willis Building was unsafe, although Plummer had identified several possible sources of funding a rehabilitation effort to convert the building to a children's theater, after which he and his corporation intended to donate the building to the County. There is no doubt of the historic significance of the Mott Willis Building. On December 16, 1993, the County passed an ordinance designating the Mott Willis Building as historically significant. In 1996, the building was listed in the Florida Master Site Plan. And, on May 30, 1997, the Mott Willis Building became the first building in Port Charlotte to be listed in the National Register of Historic Places. Plummer testified that the petitioners in DOAH Case No. 98-1634 are he and The Historical Knights Bldg., Inc. (Tr. p. 179.) Plummer testified that he attended code enforcement hearings in connection with the demolition of the Mott Willis Building. He estimated that the hearings ended in 1996. (Tr. p. 180.) He testified that he never appeared before the County Commission, but sent them a letter. In response to a question asking when he sent the letter to the County Commission, Mr. Plummer answered, "It was back earlier"--in apparent reference to the hearings of the Code Enforcement Board. (Tr. p. 180.) In response to the next question--"How far back in relation to the code enforcement board hearings?"--Mr. Plummer replied, "It was after." He testified that he had a copy of the letter and offered to bring it to the hearing on a subsequent day, but did not do so. The County received no document from Plummer or The Historical Knights Bldg, Inc., containing objections, recommendations, or comments concerning the plan during the review and adoption period, which was from March 18 to October 7, 1997. Plummer never personally addressed the County Commission during this period, nor any other earlier period, concerning the preservation of the Mott Willis Building. However, the preponderance of the evidence supports the finding that, in the months immediately preceding the demolition of the Mott Willis Building, including the period between March 18 and October 7, 1997, Plummer presented to the Code Enforcement Board objections, recommendations, and comments concerning the imminent demolition of this building. The preponderance of the evidence, including reasonable inferences, establishes that Plummer's objections, recommendations, and comments included a claim that the Board, using the power of the County, was proposing the demolition of the building in violation of provisions of the former comprehensive plan, including a provision of the Conservation and Aquifer Recharge Element that was contained in the former plan. On the other hand, the evidence, including reasonable inferences, establishes that Plummer was unaware of the plan-adoption process that was underway while he was trying to preserve the Mott Willis Building from demolition. Otherwise, Plummer would likely have updated his reference in his petition, although, to some extent, he appears to have long labored under the misimpression that this forum presents him an opportunity for redress of the County's failure, as Plummer perceives it, to comply with the provisions of its own comprehensive plan. Also, Plummer proved diligent in the defense of the Mott Willis Building, and he likely would have been an active proponent of stronger historical provisions in the present plan, had he known that the planning process was underway. On these facts, including inferences, it is impossible to find by a preponderance of the evidence that Plummer or The Historical Knights Bldg., Inc., ever submitted directly to the County Commissioners any recommendations, objections, or comments to the plan during the period between transmittal and adoption. However, two factual questions remain concerning the standing of Plummer or The Historical Knights Bldg., Inc. The first factual question is whether the objections, recommendations, or comments that Plummer submitted to the Code Enforcement Board were effectively submitted to the local government. If so, a second factual question is whether the contents of these objections, recommendations, and comments sufficiently pertained to the pending plan as to confer standing on Plummer or The Historical Knights Bldg., Inc. First, regardless of the awareness among members of the Code Enforcement Board of the comprehensive plan, the Board is part of the local government of Charlotte County and is an important resource available to the County Commission in the preparation of the plan, as the Board's business routinely involves matters pertinent to comprehensive planning. Thus, for the purpose of determining standing in a plan-challenge case, the objections, recommendations, and comments that Plummer submitted to the Code Enforcement Board were submitted to the Board as an agent or subdivision of the County and, thus, to the County itself. The more difficult factual question is whether Plummer's objections, recommendations, and comments sufficiently pertained to the plan as to confer standing to challenge the plan. Unaware of the plan-adoption process then underway, Plummer clearly did not offer any comments directly on the proposed plan. However, his objections, recommendations, and comments in defense of the Mott Willis Building were clearly germane to the comprehensive planning process, especially as it applied to the County's treatment of its historic resources. Plummer's objections, recommendations, and comments focused narrowly on the single issue of one important historic resource, at least one pertinent provision of the former plan protecting historic resources, and the adequacy of the County's commitment to the preservation of one of its most distinctive historic resources. The ensuing destruction of this historic resource, although possibly justified under the facts (which were not litigated at the final hearing in these cases), nonetheless reinforces the urgency of Plummer's repeated requests that the County address squarely the issue of the preservation of its historic resources and the adequacy of its present policies and its implementation of those policies. Based on these facts, Plummer and The Historical Knights Bldg., Inc., are affected persons with standing in DOAH Case No. 98-1634GM. Data and Analysis Historic Resources The Historic Preservation Element notes that the Florida Master Site File contains 462 historic and archaeological sites in the County. Of the 340 of these sites that are historic structures, only 81 are in the unincorporated County. Of the five of these 340 historic structures that are also listed on the National Register of Historic Places, only two of them are in the unincorporated County. Historic Preservation Element, p. 9-5. The Historic Preservation Element traces the history of Charlotte County from 12,000 B.C. when it marked the northern end of the territory occupied by the Calusa Indians. Many of the archaeological sites pertain to the Calusa period, which ended when these native people disappeared early in the 18th century--victims of European-borne disease, slave raids, and warfare. The Spanish arrived in Charlotte County in 1513. Spanish Cubans established fish "ranches" in Charlotte Harbor for the purpose of supplying fish to Cuba. In 1763, the English assumed control of Florida, which was acquired by the United States in 1821 and became a State in 1845. During the War Between the States, Union forces encamped on an island to enforce a blockade of Charlotte Harbor, from which Confederate troops shipped cattle, timber, and salt. By 1863, more than 2000 head of cattle were shipped each week to the Confederacy. During the last week of 1863, two union ships made their way up the Myakka River and engaged in a skirmish with Confederate troops. By the end of the war, cattle ranching had established itself in the area, although fishing remained an important commercial activity. Among the cattle docks occupying the shores of Charlotte Harbor was Knight's Pier, around which Charlotte Harbor grew. In the late 1880s, Punta Gorda was founded, and phosphate was discovered in the upper Peace River. The railroad reached Punta Gorda in 1886 and, with it, the area's first tourists. Historic Preservation Element, pp. 9-12. The plan notes that the County established an Historic District by ordinance. Among the "major historical and archaeological sites" identified by the Charlotte County Historic Preservation Board are the Knight Dock (modern replacement); Willis Store, "a two-story frame house that was constructed circa 1923 to replace the original Knight general store which was built a year after the dock in 1863"; and the Willis home, "a two-story frame house that was constructed between 1910 and 1920 on property west of Bayshore Drive and south of Edgewater Drive." Historic Preservation Element, p. 9-17. The Historic Preservation Element contains Maps 9.1 and 9.2, which depict the general location of historic structures and archaeological sites, using seven-unit alphanumeric codes for each structure or site. Historic Preservation Element Table 9.1 supplies the "primary name" and "category of property": i.e., "structure" or "building." However, the "primary name" is, in nearly every case, merely the address of each property. Absent knowledge of the street address of a property or, even less likely, its Florida Master Site File code number, it is impossible to determine if the table, and thus the maps, include a specific property, such as the Mott Willis Building, or the Site. FLUE Table 1.12 lists "historical structures," but omits the Mott Willis Building. Sanitary Sewer The relevant history of wastewater management is that outhouses and cesspools yielded to septic tank systems, and, largely in the 1970s and 1980s, septic tank systems in some areas yielded to large centralized wastewater treatment systems, whose construction was often aided by federal funding under the Clean Water Act, as it is now known. However, septic tanks and even cesspools remained the means of wastewater management for 25 million U.S. households in 1990. Columbia Exhibit 10, p. 3. Residents of Charlotte County remain largely dependent on septic tank systems. County-owned Charlotte County Utilities, which is the largest sewer provider, serves 11,278 central sewer customers, as compared to 40,000 septic tank systems in operation in the County. In fact, the number of County septic tank systems exceeded by 3000 persons the number of customers served by all central sewer providers, including the 10,956 customers served by the City of Punta Gorda. Infrastructure Element, Table 4.23. Although typically associated with single family residential use, about 20 percent of the septic tank systems in Charlotte County serve commercial and institutional uses, such as strip malls, schools, and churches. A conventional septic tank and drainfield, such as the typical system in use in Charlotte County, represent an anaerobic, onsite wastewater disposal system. A conventional septic tank system uses a tank to separate settleable and floatable solids from wastewater. The wastewater then passes into the drainfield through an outlet, which is placed above the settled solids and below the floating grease and other scum. The remaining solids and semi-solids, collectively known as septage, must be periodically pumped out of the tank, treated with disinfectant (normally lime), and landspread at approved sites. In March 1993, the Department of Health and Rehabilitative Services published a consultant's evaluation of onsite wastewater disposal systems in Florida (HRS Report). County Exhibit 64. The HRS Report evaluates septic tank systems, as they operate in a variety of installations illustrative of the design, installation, and operation of such systems in Florida. One of the major purposes of the HRS Report is to examine the impacts of septic tanks systems on groundwater, which provides 87 percent of Florida's public potable water and 94 percent of its private supplies. County Exhibit 64, p. 1-1. As already noted, some treatment of wastewater occurs in the septic tank, but most of the treatment takes place after the wastewater enters the drainfield's unsaturated zone. Here, various biological, chemical, and physical processes effect the primary treatment prior to the entry of the leachate into the groundwater. As the report notes, "the 'soil is the system.'" County Exhibit 64, pp. 4-1 and 4-5. The composition of residential, as opposed to commercial, wastewater entering the septic tank varies, but within typical ranges. Wastewater contains nitrogen and phosphorous, including nitrate nitrogen, which may reduce the oxygen-carrying capacity of the blood of infants; toxic organics in the form of household cleaners, many of which persist in the aqueous environment and are known carcinogens; heavy metals, such as lead, copper, cadmium, and arsenic, which are toxic to humans; and pathogenic bacteria and viruses, which can cause illness in humans. The infiltration process that takes place between the release of the wastewater from the septic tank and its entry into the groundwater transforms organic and ammonium nitrogen to nitrate by microorganisms operating in aerobic conditions. The typical septic tank system removes about 20 percent of the nitrogen from the effluent. However, nitrate moves freely through the groundwater, and the reduction of nitrates in groundwater occurs primarily through dilation. County Exhibit 64, p. 4-34. The septic tank system removes only 4-8 percent of the phosphorus from raw wastewater. Moreover, soil has a finite ability to retain phosphorus, which, with continued loading, will move deeper into the soil. County Exhibit 64, p. 4-34. Septic tank systems more effectively eliminate bacteria that enter the soil. The elimination of bacteria is accomplished partially by low temperatures and low levels of nutrients and energy sources. Although survival rates for pathogenic bacteria are extremely variable--sometimes in excess of six months in unsaturated, unnutrified soil--"most, if not all," pathogenic bacterial indicators die within three feet of the infiltrative surface. However, improper siting of the drainfield can result in the introduction of pathogenic bacteria into the groundwater, in which pathogenic bacteria may survive sufficient periods of time--from seven hours to 63 days--to travel as much as 100 feet. County Exhibit 64, pp. 4-36 through 4-37. Viruses occur in less than two percent of human stool excreted in the United States, but, when they occur, they occur in large numbers. If retained in the soil, viruses typically become inactivated at a daily rate of 30 to 40 percent. However, viruses can penetrate more than three meters of unsaturated soil. County Exhibit 64, pp. 4-37 through 4-40. Human viruses associated with the leachate from septic tanks live for 30-60 days in Charlotte soils. Toxic organic compounds found in septic tank leachate include toluene, acetone, and xylenes, which may be found in solvents, cleaners, and perfumes. No study has examined the efficiency of septic tank system treatment of toxic organics. A model drainfield removed less than 10 percent of the toluene. County Exhibit 64, pp. 4-40 through 4-42. Little information exists concerning the efficacy of septic tank system treatment of surfactants and heavy metals. County Exhibit 64, pp. 4-43 and 4-44. For all contaminants, though, the efficacy of the septic tank system treatment is "dependent on the properties of the soil underlying the infiltrative surface." County Exhibit 64, p. 4-46. Soil characteristics that interfere with the treatment process include moisture content, organic content, pH, structure, particle size, and pore size distribution and continuity. Satisfactory performance occurs "where an aerobic, unsaturated zone of medium to fine texture soils, 2 to 5 ft. in thickness, is maintained below the infiltrative surface during operation." County Exhibit 64, p. 4-47. However, even under these optimal conditions, phosphorus and metal retention are finite processes, and the transport of pathogenic viruses is largely unknown. On balance, the HRS Report finds that "[p]ublic health and environmental risks from properly sited, designed, constructed, and operated septic tank systems appear to be low. However, use of conventional septic tank system technology in high density developments or environmentally sensitive areas could increase these risks to unacceptable levels." County Exhibit 64, p. 4-47. Surveying Florida soils, the HRS Report notes that about three-quarters of state soils have "severe or very severe limitations" for conventional septic tank system design--the most common limitation being seasonal wetness or shallow groundwater. County Exhibit 64, p. 4-51. The consultants and the Department of Health and Rehabilitative Services conducted several field studies of the effects of septic tank systems upon groundwater. Among the conclusions of this research are that conventional septic tank systems "will be prohibited" in areas with sandy soils and relatively high water tables; high density installations of septic tank systems present the "potential for nitrate contamination" of the groundwater after 20-30 years of continued use of the system (the lengthy period of time due to the slow groundwater velocities); nitrogen is particularly difficult to retain, even in 2-4 feet of unsaturated, suitable soil and after careful distribution of the effluent to the drainfield; removal of fecal coliform bacteria is "nearly complete" in two feet of unsaturated, suitable soil; and viruses are likely to pass through the sandy soils and enter the groundwater, although their rate of transport may be relatively slow, as compared to the rate of transport of other contaminants. County Exhibit 64, pp. 4-91 through 4-92 and 9- 3 through 9-4. As already noted, Charlotte County has only one soil that is not "severely limited" for septic tank use, and this sand is found in only 0.8 percent of the County. Reflective of the unsuitability of Charlotte County for septic tank use, the water table in the County is close to the surface and "highly susceptible to groundwater contamination." Infrastructure Element, p. 4-93. Containing the "highest quality groundwater in the county," as compared to deeper aquifers, the water table, or surficial, aquifer contains over 1 billion gallons of good quality potable water. However, the water table aquifer is the most susceptible to contamination from such point sources as landfills, percolation ponds for sewage effluent disposal, land application of sewage effluent and sludge, industrial sites, and underground storage sites, and from such nonpoint sources as septic tank systems, agricultural and residential use of fertilizers and pesticides, and saltwater intrusion. Infrastructure Element, pp. 4-83 and 4-93. Older septic tank systems present even greater risks to human health and the environment for two reasons. First, the useful life of conventional septic tank systems, such as those installed in Charlotte County, is no more than 20 years, assuming regular maintenance. Septic tanks should be pumped out no less frequently than every five to eight years. Infrastructure Element, p. 4-158. However, septic tank owners typically forego regular maintenance or periodic inspections until catastrophic failure, so inefficient filtration may begin much sooner than 20 years and continue unnoticed for some time. Also, as noted in the HRS Report, the capacity of the soil to retain phosphorus is finite, and the potential for nitrate contamination becomes much greater after 20 years. Second, older septic tank systems were installed under a much more lax regulatory scheme that fails to assure reasonably proper functioning of the drainfield. Of the 24,000 septic tank systems installed prior to 1983, County employees have estimated, based on periodic inspections, that 70 percent (16,800) of septic tank systems have insufficient separation between the water table and drainfield. Up to 1983, regulations required only six inches separation between the bottom of the drainfield and the top of the wet season water table. In 1983, regulations increased this separation to 24 inches. The 16,800 septic tank systems with insufficient separation routinely supply the water table with a variety of contaminants harmful to the health of County residents and visitors and the water resources of the County. Regulations also now require greater separation between the drainfield and surface waters, including canals and swales that hold water for more than 72 hours after a storm event ends. Regulations required a 25-foot setback in 1965, a 50-foot setback in 1972, and a 75-foot setback in 1983 (although 50 feet remained acceptable for lots platted in 1972 or before). Presently, 10,000 septic tank systems are within 150 feet of surface waters. Inadequate setbacks, especially when coupled with six-inch separations between the drainfield and the water table, do not adequately protect the County's surface waters from contamination from septic tanks. The age of the septic tanks in Charlotte County, coupled with the age of the plats, also impacts the permitted density of septic tanks. Prior to 1975, state law imposed no requirements for minimum lot size for septic tank systems. In 1983, when the separation between the drainfield and water table was increased to 24 inches, state law mandated that the minimum lot size for septic tank systems was 1/4 acre or about 10,000 square feet. However, most studies conclude that the minimum lot size, to prevent the pollution of groundwater and surface waters, is 1/2 to 1 acre. Despite this fact, Charlotte County continues to allow owners of 10,000 square- foot lots to use conventional septic tank systems, if they also have central potable water. Infrastructure Element, p. 4-141. These densities, together with the inadequate separation of drainfields and water tables and inadequate setbacks of drainfields from surface waters, multiply the risk presented by septic tank systems to human health and environmental resources. Based on this data and analysis, Charlotte County divided septic tank systems into two groups: those installed prior to 1983 and those installed in 1983 and later. This distinction is amply supported by the data and analysis. However, the data and analysis do not justify unconditional reliance upon conventional septic tank systems installed in 1983 and later. Even when properly sited in a two-foot layer of suitable, unsaturated soils, conventional septic tank systems are not as effective as central wastewater systems in treating wastewater. This differential is heightened given the factors surrounding septic tank systems in Charlotte County: high density, unsuitable soils, low- lying land, a high water table, and the proximity of surface waters. Centralized wastewater treatment plants remove over 90 percent of the contaminants, killing most bacteria and viruses, and oxidize the effluent. Centralized systems facilitate careful monitoring and ongoing maintenance to ensure the attainment of prescribed water quality levels. By contrast, onsite systems present difficult monitoring and maintenance issues and typically lack advanced devices, common in centralized systems, such as flow-equalization systems-- leaving even a well-designed onsite system overloaded by two wash loads in rapid succession, so that its tank contents flush out into the drainfield. Newer onsite wastewater systems have begun to offer an alternative to the conventional septic tank system. Innovative alternative systems may include anaerobic filters to minimize the release of nitrates into groundwater or surface water, ultraviolet disinfection to damage the genetic material of the cell walls of the viruses and bacteria present in the leachate so as to prevent their replication, fixed growth systems to allow aerobic microorganisms in a slime layer to attach and grow on the wastewater so as to extract a soluble organic matter that is a source of carbon and energy, intermittent sand filters to receive numerous doses of small amounts of leachate and reduce biochemical oxygen demand (BOD) and total suspended solids to 10 mg/L or less, and recirculating sand filters to reduce levels of BOD, total suspended solids, fecal coliform bacteria, and nitrogen. Columbia Exhibit 10, Appendix A. However, even these alternative systems provide less treatment than centralized wastewater plants, such as the County's largest plant, East Port, which treats 5 million gallons per day. Moreover, the feasibility of alternative onsite wastewater systems depends on a number of factors including the density and intensity of development, availability of inspection and maintenance programs, and the physiographic characteristics of the installation site, including its size, soils (especially where one of the alternative systems would be used in conjunction with a conventional drainfield), and proximity to groundwater and surface water. Alternative onsite wastewater systems are not in wide use in Charlotte County. At present, only four aerobic treatment units exist in the County. The County also is participating in a pilot project involving 200 homes whose tanks have monitoring ports to facilitate inspections of water quality. Nothing in the record establishes that the U.S. Environmental Protection Agency (EPA) prefers alternative onsite wastewater systems to centralized wastewater systems. The premise of the EPA Report to Congress on the use of decentralized wastewater treatment systems, which is Columbia Exhibit 10 (EPA Report), is that the newer alternative onsite systems are suitable for use in less densely populated areas. The EPA Report does not offer a detailed comparison of the efficiency of onsite wastewater systems with centralized wastewater systems, as operating in the conditions prevalent in Charlotte County--e.g., a high water table, unsuitable soils, low-lying land, nearby surface waters, and high densities. Nor does the EPA Report offer a detailed analysis of the relative costs of the two methods of wastewater treatment, as they might be implemented in Charlotte County. Even if there were evidence that some combination of alternative components could achieve treatment levels comparable to centralized wastewater treatment under the conditions in existence in Charlotte County (and there is not), the EPA Report does not identify the components necessary to achieve such comparable treatment. Thus, the EPA Report does not compare the costs of a decentralized system, including maintenance and monitoring, to the costs of the centralized system. Petitioners Columbia assert that septic tanks have not contributed significantly to water quality degradation in Charlotte County. To the contrary, the opposite of this contention is true. As the County notes: Septic systems are recognized as both polluters of groundwater and the major alternative to centralized sewage treatment plants. Under non-ideal conditions, septic systems can contaminate the surficial aquifer with nitrate, total dissolved solids, bacteria, and viruses. Since most of the naturally occurring soils occurring in Charlotte County are classified by the U.S. Soils Conservation Service as severe for septic tank use [citation omitted], the use of septic tanks to treat domestic sewage in some of the more densely populated areas of Charlotte County must be questioned. Natural Resources Element, p. 3-65. As reflected in Infrastructure Element Charts 4.2 and 4.3, onsite wastewater systems account for only 2.9 and 0.5 percent of the total nitrogen and total phosphorus loadings in Charlotte Harbor. Given the prevalence, as noted above, of phosphorus in the water, the nitrogen loading is of greater significance to the features of water quality adversely affected by overnutrification. The three percent of nitrogen loading attributable to septic tank systems is meaningful in light of the fact that the two largest sources of nitrogen--nonpoint source (67.3 percent) and atmospheric deposition (20.1 percent)--are relatively resistant to reduction by County action. Also, as already noted, localized areas of Charlotte Harbor, such as at the mouths of tributaries, are more impacted by nutrients, and nutrients are only some of the contaminants derived from septic tank leachate. Fecal coliform bacteria, in part likely from septic tank leachate, have occasionally reached dangerously elevated levels numerous times since the County began monitoring for this bacteria in September 1994. Several times, County officials have had to close swimming beaches, such as at Port Charlotte Beach and Harbor Heights. Although fecal coliform bacteria is not specific to human wastes, County officials have conducted limited human virus testing to confirm the presence of human viruses at the points at which several canals enter Charlotte Harbor, so as to indicate the possibility that at least some of the fecal coliform bacteria is indicative of the presence of human intestinal wastes. After weighing all of these factors, as well as the requirements of the remedial agreement into which it had entered with DCA, Charlotte County decided to undertake a large-scale expansion of its central sewer system. Shortly after acquiring General Development Utilities in 1991, Charlotte County adopted a 25-year central water and sewer plan. However, estimated costs for this master plan are $678 million--$610 million for Charlotte County Utilities and $68 million for private utilities. Infrastructure Element, p. 4-168. The County then adopted shorter-range plans for the expansion of central sewer into limited areas over periods of five and ten years. Twelve areas would receive central sewer by 2002 and additional areas would receive central sewer by 2010. The five- and ten-year plans remain in place, but the sources of funding have changed. Initially, the County sought approximately $50 million in new funds through a referendum to extend the one cent local sales tax to pay for this two-stage expansion of central sewer collection and transmission lines and treatment capacity. However, in November 1996, the voters defeated the referendum by 400 votes, or less than .005 of the total votes. After the rejection of the one cent sales tax, Charlotte County decided to fund the necessary expansion of central sewer collection and transmission lines and treatment capacity with connection fees, which would be due upon the availability of central service at built-out lots. The funding for the first phase of expansion is $2.82 million. In identifying the areas first to receive centralized sewer service, the County considered several factors for each area: density, number of pre-1983 septic tank systems, proximity to surface waters, proximity to lift stations with unused capacity, proximity to existing transmission lines with unused capacity, and proximity to existing central wastewater treatment plants with unused capacity. By considering the proximity of each area to components of the existing central sewer system with remaining capacity, the County lowered the cost of connections. Proximity to lift stations, for example, lowered the cost from $8000 per connection to $4000 per connection and thereby reinforced the financial feasibility of the sewer expansion plan. By incorporating septic tanks, where possible, as holding tanks in low-pressure systems, the County further reduced the cost of connections without unreasonably jeopardizing the integrity of the system. In selecting the areas for service, the County even considered household incomes to ensure further that landowners would be able to pay the connection costs and the program would be financially feasible. Charlotte County has borrowed money from the State Revolving Fund to pay for the central sewer expansion. The County must repay this money in 18 years. The loan documents require that the County mandate connections to the expanded system as it becomes available. Additionally, the bonds issued by the County in the acquisition of the water and sewer system also require mandatory connections to County-owned central water and sewer service. Charlotte County will collect the estimated connection fee of $3982 by allowing landowners to amortize the principal, together with eight percent annual interest, over seven years; the County estimates the monthly payment to be $62-70. The County offers programs to assist persons who cannot afford to pay the connection fee. County sewer fees are already high due to the cost of servicing the acquisition debt resulting from the County's acquisition of these facilities, including a $92 million bond issued in connection with the purchase of General Development Utilities; acquisition debt service is the largest portion expense borne by Charlotte County Utilities. Infrastructure Element, p. 4- 168. The analysis of the County's financial ability is contained in the Capital Improvements Element and Infrastructure Element, pp. 8-35 et seq. The analysis demonstrates that all identified sources of revenue are financially feasible and that the entire sewer expansion program is financially feasible. Eventually, the County identified 12 areas to include in the first phase of the sewer expansion program, which is to be completed by 2002. The second phase is to be completed by 2010. These 12 areas contain 3680 lots, of which 2275 are already developed. All of the areas are in the central portion of the County, mostly along U.S. Route 41 between the Peace River and State Route 776. Nearly all of the 12 areas are adjacent to, or in close proximity to, areas served by existing gravity sewers. The 12 areas are entirely within Infill Areas in the USA. The two areas that have drawn the most attention in these cases are A1 and A2. A1 is a triangular parcel bounded on the northeast by U.S. Route 41 and the south by Charlotte Harbor. A2 is an extremely small area about four blocks northwest of A1 and just off of U.S. Route 41. Petitioner Jordan lives in A1. By the time of the hearing, the County had already completed the expansion program in these areas and had successfully used the existing lift station. A1 is largely tourist commercial with a density of about 3.5 units per acre. A2 is mixed use with a density of about 15 units per acre. Eighty to ninety percent of the septic tank systems in A1 and A2 are pre-1983 systems. A1 abuts Charlotte Harbor, and A2 is only about three blocks from the harbor. Petitioner Jordan challenged the County's reasoning for the exclusion of the area between A1 and A2. This area is in the second phase of the expansion project. There is no evidence whatsoever that the County omitted this area, even if economically depressed relative to A1 and A2, in a manner that is arbitrary or intended to discriminate against lower-income residents. Moreover, this entire area, which is known as Charlotte Harbor, appears to be in the middle, among other locations in the County, in terms of median household income. In no way has the County's identification of the first- or second-phase areas to receive central sewer had an impact on affordable housing. Charlotte Harbor contains the County's only Community Redevelopment Agency area. Although this area is largely built-out, the County has reduced densities from 15 and 30 units per acre to 3.5 units per acre, so as to direct population away from this the Charlotte Harbor Community Redevelopment Agency Area, which is almost entirely within the CHHA and is 90-95 percent built-out. Potable Water Bocilla Utilities was incorporated by the developers of Colony Don Pedro, or their affiliates, in the early 1980s during the development of Colony Don Pedro, which is a resort development on Don Pedro Island. Bocilla Utilities has a proven record of technical competence and professional integrity in producing and supplying potable water to those island residents who are its customers. A no-name storm destroyed the wells of Bocilla Utilities in June 1982. In 1984, Bocilla Utilities received a permit to operate a reverse osmosis plant. Built in 1985, the plant was designed to produce 30,000 gallons of potable water daily. The plant has not been extensively damaged since its construction. Bocilla Utilities operates two wells to remove brackish water from about 165 feet deep and is in the process of adding an already-permitted third well at the site. Just seaward of the plant are two 50,000 gallon underground storage tanks for holding finished water prior to its distribution to customers. Bocilla Utilities deep-well injects the waste byproduct of the production process. The plant and wells of Bocilla Utilities are located on the part of the Don Pedro island chain that is divided into three narrow spits of land immediately south of where Bocilla Pass formerly divided the chain. The Gulffront lots along a small road are platted to be 100 feet wide and 300 feet deep. On the other side of the road, the lots, which front Bocilla Lagoon, are platted to be 80 feet wide and about 150 feet deep. Bocilla Lagoon is about as wide as the spit of land on its Gulf side. Behind Bocilla Lagoon is another spit of land a little narrower than the first and with waterfront lots on either side of a narrow road. Kettle Harbor, which is a little wider than Bocilla Lagoon, is behind the second spit of land, and behind Kettle Harbor is a third spit of land, about the same width as the second, with waterfront houses on either side of a narrow road. The plant and wells of Bocilla Utilities are about 2900 feet south of where the island closed over the portion of Bocilla Pass leading into the Gulf of Mexico. Most of the pass still remains; it is blocked from the Gulf by six 300- foot Gulffront lots that are platted to be about 300 feet deep and about 80 feet wide. The plant is located above 75 feet from Bocilla Lagoon, and the wells are within 50 feet of the lagoon. Water lines are covered by 2 1/2 to 3 feet of sand. In general, "the shoreline is the most extensive of all high hazard areas." Natural Resources Element, p, 3-206. As disclosed by Natural Resources Element Map 3.13, which depicts topographical contours, the Don Pedro island chain is low-lying, with its highest point not much more than five feet in elevation. There is no central sewer on the Don Pedro island chain. Most of the septic tank systems are within 100 feet of surface waters. Because nearly all of the lots on the Don Pedro Island chain were platted prior to 1972, septic tanks may be installed within 50 feet of surface waters. In 1991, Bocilla Utilities became a public utility regulated by the Florida Public Services Commission (PSC). The PSC has granted Bocilla Utilities a certificated territory on the Don Pedro island chain that Bocilla Utilities must serve at a PSC-approved rate. The territory is bounded on the south by the Don Pedro Island State Park and the north by the Palm Island Resort. Within these limits, the territory runs from the Gulf of Mexico to the Intracoastal Waterway. Bocilla is now permitted for 120,000 gallons per day and, at the time of the hearing, was completing the first phase of its expansion, to 60,000 gallons per day. Bocilla Utilities will construct the second phase of its expansion when customer demand dictates. At the time of the hearing, Bocilla Utilities was serving 186 connections. Its service lines reached 58 homes whose owners chose not to connect to central water. Its service lines also reached 291 empty lots. Additionally, Bocilla Utilities had not yet extended lines to 36 homes and 159 empty lots within its certificated territory. These 730 lots constitute Bocilla Utilities' entire certificated territory, except for one unplatted 12-acre parcel. Ignoring this unplatted parcel, approximately two-thirds of the portion of the Don Pedro island chain within the certificated territory of Bocilla Utilities is unbuilt. Over 1800 of the 1842 platted lots on the Don Pedro island chain are available for residential development. Thus, the 730 lots within the certificated territory of Bocilla Utilities constitute almost 40 percent of the available platted lots on the entire Don Pedro island chain. About 80 homes on the Don Pedro island chain use wells and/or cisterns for potable water. Although the record is not entirely clear, little of the Don Pedro island chain remains unplatted. This fact has an important bearing on the effect of the Bridgeless Barrier Island Overlay District, which, on its face, limits density to one unit per acre. This density is more theoretical than real. For already-platted land, which applies to nearly the entire island chain, the designated density under the overlay district is one unit per platted lot. Thus, as a practical matter, the Bridgeless Barrier Island Overlay District will do very little to limit population growth on the Don Pedro island chain. As was the case prior to the adoption of the first plan, the permitted densities for the Don Pedro island chain remain governed by the more generous land development regulations in effect at the time of platting the island chain. For the same reasons, the policy requiring mandatory connections to central water, as applied to the Don Pedro island chain, will not have any impact on the designated density permitted on the island chain by the plan. Given the practical ineffectiveness of the Bridgeless Barrier Island Overlay District in limiting population on the Don Pedro island chain, Petitioners Starr argue that the practical effect of the plan provisions requiring mandatory connection to central water, as applied to the island chain, will accelerate population growth. Although, for the reasons just noted, this growth will not express itself in higher densities at build-out. Instead this growth will express itself in two ways: accelerated development of the undeveloped, though platted, land and intensification of the use of already-developed land. Any analysis of the impact on island population growth of a policy of mandatory connections to central water must begin with the fact that population growth, at present, has not been remarkable fast on the island chain. In its answers to interrogatories, Charlotte County argues that island growth is driven by two invariables (at least for the present): the lack of a bridge and the presence of vested platted lots. Undoubtedly, the lack of bridge access to the Don Pedro island chain discourages population growth. Starr Exhibit 9, pp. 1-3. Of course, the presence of vested platted lots favors population growth. However, conventional density analysis, which addresses dwelling units per acre, inadequately describes the intensity of use of the Don Pedro island chain, which is a popular tourist destination for visitors and County residents. A better measure of residential intensity measures the intermittent residential use of the dwelling units present on the island chain. A fixed number of dwelling units, many of which are occupied intermittently by their owners or renters, generate residential intensity based on the periods of time that they are occupied. Thus, factors contributing to longer periods of occupancy of a fixed number of dwelling units drive any analysis of the anthropogenic impacts upon the highly sensitive natural resources of this barrier island system and its adjacent estuarine and open waters. From the perspective of the intensity of residential uses, the policy of mandatory connections to central water, as applied to the island chain, intensifies residential uses by increasing the periods of occupancy of the dwelling units present on the island chain. Absent evidence of the promotion of the Don Pedro island chain as a pristine adventure experience more typical of eco-tourism than conventional tourism, it is evident that tourist destinations with reliable sources of potable water enjoy greater appeal than tourist destinations lacking reliable sources of water. As the principal of Bocilla Utilities testified, central potable water adds value to an island residence, and this value may express itself in fair market value or in rental value, both of which are indicators of more appealing tourist destinations and, thus, greater periods of occupancy of each residence. The dry months in Southwest Florida are approximately coextensive with the winter, during which time a large number of visitors seek relief from unpleasant weather elsewhere. Thus, the availability of potable water is an important issue during a period of time associated with tourism. The possibility of potable water shortages among persons occupying residences not connected to central water is more than theoretical. In the past, drought conditions have produced water shortages among island residents dependent on cisterns and wells for potable water. Some residents have used garden hoses running from spigots in residences served by Bocilla Utilities to fill their cisterns during dry months, although the frequency of this occurrence, given the vigilance of Bocilla Utilities, is probably quite low. Water shortages experienced by persons occupying residences not served by central water produce lower levels of consumption of potable water in three ways. Persons subject to such shortages will use water more prudently to avoid shortages and, of course, will use no water at all when the supply is exhausted. Also, the unreliability of potable water supplies at such residences will discourage their occupancy, so as to lower further levels of potable water consumption. Reports of actual usage reflect the lower levels of potable water consumption at residences that rely exclusively on cisterns for potable water. The three members of Petitioners Starr average nearly 2300 gallons per month or about 76 gallons per day at their respective households, which are supplied by cisterns. Assuming only two persons per household, rather than the County average of 2.23 persons, this would represent 38 gallons of potable water per day per person. This consumption rate is less than half of the County's level of service standard for potable water, which is 85 gallons per day per person. Infrastructure Element, p. 4- 106. Betty Brenneman, who is a member of Petitioners Starr, testified that, during her 12 years on the island, she has detailed knowledge of the island residences, largely due to her work as a real estate agent and manager for 24 rental properties. She noted that, prior to the availability of central water, there were only one or two single family pools on the island chain, but now there are at least 24 pools. From the perspective of conventional density analysis, the presumed inevitability of the development of the platted lots does not justify the acceleration of this process through the adoption of a mandatory water connection policy on the island chain. But, even if the island chain were built- out, the intensification of residential uses resulting from a requirement of mandatory connections to central water, as applied to the Don Pedro island chain, raises serious planning issues in the context of the unique resources of the Don Pedro island chain, the risks posed to residents of this island chain that is highly vulnerable to catastrophic storm surge and winds, the planning challenges generally confronting the County in addressing the urban sprawl resulting from a large number of platted lots, and the strategies adopted by the County to address these challenges. The Don Pedro island chain is the sole location outside of the USA for which the County requires mandatory connections to water or sewer. Except for the environmental issues unique to a barrier island and its adjacent estuarine waters and the unique natural hazards posed to residents of this barrier island, the situation on the Don Pedro island chain is a microcosm of the formidable planning challenges facing Charlotte County due to the vast numbers of prematurely, and poorly, platted lots and the importance of the County taking advantage of the few strategies that it has been able to adopt to address these challenges. If every one of the 226,000 buildable lots within the County's three urbanized areas were developed, the County would realize a density in these urbanized areas, which consist of 215 square miles (or 137,600 acres), of 1.64 units per acre. FLUE, p. 1-99. The development of such vast amounts of land at such low densities underscores the costly impacts of urban sprawl and inefficient land-development practices, as the County will attempt to find ways to provide extensive public facilities and services, such as extra roads, longer water and sewer lines, more drainage systems, and more public safety substations, that are necessary to serve such far-flung development. As the County admits, "[u]rban sprawl, which is the opposite of concentrated growth, is a far more expensive and inefficient way for land to be developed." FLUE, p. 1-131. In responding to utilities' claims that they must serve their certificated territories economically by adopting a policy of mandatory connections (anywhere outside of the USA, but especially on a bridgeless barrier island chain), the County ignores its analysis of the relationship of platted lands and central utility service and, for the reasons already discussed, the unusual limitations already imposed upon the County in discouraging urban sprawl through County control of the timing and location of the provision of infrastructure: As with the overplatting of the county, the granting of vast certificated areas has made the task of managing growth extremely difficult; when dealing with numerous private utility providers, the issuance of certificated areas is a primary growth management tool, and one which is not altogether available in Charlotte County. FLUE, p, 1-147. Repeatedly, the County recognizes in the plan that the availability of central water facilitates growth within the served area. At one point, the County's analysis points out: "Besides roads, central potable water lines have had the greatest infrastructure influence on the development pattern of Charlotte County." Infrastructure Element, p. 4-153. Reflecting the insights borne of many years of dealing with the logistical and fiscal challenges of finding ways to extend vital public facilities to vast areas of prematurely platted land, the County's analysis adds: "Growth and development can be channeled toward certain locations in Charlotte County through the provision of potable water service; the intensity of use can be determined through the provision of central sanitary sewer service." Infrastructure Element, p. 4-143. It thus follows that: "Rural Service Areas are those locations in which central potable water and sanitary sewer should not be extended during the planning time period. This action, along with very low residential densities, reduces the likelihood of major population growth occurring in rural areas of Charlotte County. The Rural Service Area includes the bridgeless barrier islands . . .." Infrastructure Element, p. 4-149. In general, the County has attempted to adopt growth management strategies that "govern development without sacrificing the positive aspects of urban sprawl." FLUE, p. 1-132. The County's ambivalence toward sprawl, which may partly explain its extension of the mandatory water connection policy to the Don Pedro island chain, is disclosed in the following analysis: Urban sprawl, which is the opposite of concentrate growth, is a far more expensive and inefficient way for land to be developed. . . . The growth management strategy incorporated within this comprehensive plan is developed and implemented with the urban sprawl rule in mind. Characteristics of urban sprawl identified by this rule include: lands which have been prematurely converted from rural lands; lands in which development is not functionally related to adjacent areas; and lands which fail to maximize the use of existing public facilities. Patterns of urban sprawl include leapfrog or scattered development, strip commercial development, and large expanses of single-use development. Due to past practices, Charlotte County can be considered an urban sprawl community. The County is characterized by strip commercial development lining the major urban corridors, large expanses of single- family homesites which have been platted and deemed vested for development, and scattered development which has resulted from various development pressures. Most academic sources, however, point only to the downside of urban sprawl without identifying its positive aspects. In Charlotte County, these past practices have at least kept the cost of home and business ownership low. FLUE, p. 1-131. It remains open to question whether urban sprawl in Charlotte County has actually kept the cost of home ownership low or, stated in the alternative, depressed residential real estate values. Limiting home ownership costs to mortgage principal, mortgage interest, ad valorem taxes, and homeowner's insurance, Housing Element Table 6.17 shows that, among the six counties of Southwest Florida, Charlotte County is fourth in the percentage of its households spending at least 30 percent of their income on housing. Twenty percent of Charlotte County households spend at least 30 percent of their income on housing, which is slightly less than the 21.8 percent of Collier County households spending at least 30 percent of their income on housing. Of course, these figures ignore differences in income and housing values, but the mean cost of a new house in Charlotte County in 1990 was $77,200, which is $5100 over the state mean, 16th among Florida's 67 counties, and 13th among Florida's 33 coastal counties. Housing Element, p. 6-viii. In any event, the extension of central water through the Don Pedro island chain, together with mandatory connections, will raise real estate costs, as already noted. Notwithstanding any ambivalence toward sprawl, the County's extension of the mandatory water connection policy to the Don Pedro island chain ignores the many limitations already imposed upon the County in trying to control the admittedly adverse effects of urban sprawl through land use restrictions. The demographic factors present in the County coupled with the large extent to which important infrastructure is not provided by the County are accentuated by the more typical concerns of local governments in Florida arising out of the 1995 Bert J. Harris, Jr., Property Rights Protection Act (Harris Act). In addition to the Fifth Amendment constitutional prohibition against uncompensated takings, the Harris Act arguably imposes additional statutory restrictions upon the County and State in regulating land uses without compensating landowners. The County notes that the Harris Act "may severely limit local, regional, and state government actions regarding land uses of private property owners or may require compensation for such actions," FLUE, p. 1-3, and "seriously hampers . . . the County's ability to reduce the density of . . . existing plats." Natural Resources Element, p. 3-202. In the face of all of these limitations upon the County's ability to limit urban sprawl on the sensitive Don Pedro island chain, the County's extension of the mandatory water connection requirement to the island chain is counterproductive. in the extreme. Nothing in the Harris Act compels the County to require island landowners to connect to central water, or else owe damages to these landowners. To the contrary, allowing island landowners not to connect to central water is one of the few cost- and risk-free strategies left to the County for discouraging sprawl on the island chain. Although the benefits of not requiring mandatory water connections may not completely offset the disadvantages of the platted density, the importance of not requiring mandatory water connections on the island chain assumes greater importance because it is one of the few available options left to the County to deal with the planning challenges presented by the densely platted island chain. Under the circumstances, the County's decision not to exercise this option but, instead, to require mandatory water connections on the island chain, is inexplicable and repugnant to the data and analysis, which militate in favor of reduced densities and residential intensities on the island chain. In addition to yielding benefits to the natural resources of and surrounding the island chain, a policy contributing to reduced densities and residential intensities also addresses the unique natural perils confronting the island's residents or visitors and their property. In the past 110 years, Charlotte Harbor has absorbed the energy of at least seven named tropical storms or hurricanes, as well as many no-name storms such as the thunderstorm cluster of June 1995. The area between Charlotte Harbor and Hillsborough Bay is at the intersection of numerous hurricanes forming in the Gulf of Mexico and the Atlantic Ocean and has experienced a very high number of tropical storms and hurricanes. Even ignoring the no-name storms, tropical storms or hurricanes have hit the Don Pedro island chain an average of once every 16 years. The Don Pedro island chain is generally low. As already noted, nearly all of the island chain will be inundated by the storm surge associated with the landfall of merely a tropical storm; the small remaining portion of the island chain is inundated by a Category 1 storm. FLUE, Map 1.17. The Storm Tide Atlas for Charlotte County, which was prepared by the Southwest Florida Regional Planning Council, reveals that a tropical storm hitting land at a point about midway between the Bocilla Utilities water plant and wells and Bocilla Pass is about four feet above National Geodetic Vertical Datum; this location on the island chain will be under about one half foot of water. The same location is under about two feet of water in a Category 1 hurricane, five feet of water in a Category 2 hurricane, a little over eight feet of water in a Category 3 hurricane, and nearly 14 feet of water in a Category 4 or 5 hurricane. County Exhibit 53, Plate 2 and back page. A Category 3 storm would cause significant damage to island properties, including the wells and transmission lines of Bocilla Utilities, that are located close to the water and within one-half mile of an historic pass. Although the plant itself is designed to resist the storm surge and winds associated with a storm producing winds of 140 miles per hour, a Category 5 storm would, in the words of the director of the County Emergency Management Department, "wipe the island clean" of everything, including the plant, the wells, the transmission lines, and any residents or visitors failing or unable to heed orders to evacuate. (Transcript, p. 1908.) The parties raise several other issues concerning the requirement of mandatory connections to central water, as applied to the Don Pedro island chain. The County justifiably contends that the quality of Bocilla Utility water is more reliable than the quality of the water from cisterns or wells. The Bocilla Utilities water will be more reliable due to the ongoing monitoring and treatment performed by Bocilla Utilities and the infrequent monitoring and less-extensive to nonexistent treatment performed by owners of wells and cisterns. In 1996, the director of the County Health Department tested four bad samples from the Don Pedro island chain: three from wells and one from a cistern. E. coli bacteria contaminated one well sample, and coliform bacteria contaminated one well sample and two cistern samples, one of which came from a kitchen faucet. In all, there was one incident of reported diarrhea and vomiting likely associated with bad water. However, these four bad samples came from Little Gasparilla Island, which is not in the certificated territory of Bocilla Utilities and which is characterized by older, more dense residential development than that within the certificated territory of Bocilla Utilities. And, prior to 1996, the director could not recall a single problem with potable water quality on the island chain. Although the cisterns collect rainwater, which is relatively pure, the conditions in the cistern and onsite delivery line may be less than ideal. Also, the wells and many of the cisterns are installed in the ground, where they are vulnerable to contamination from stormwater runoff. Most wells are only 8-10 feet deep so as to tap a shallow freshwater lens under the island chain. Typically, the wells are jetted in with a hose, rather than bored, and lack a concrete apron, so they too are vulnerable to contamination from stormwater runoff. However, the record establishes that the wells and cisterns in use on the Don Pedro island chain do not represent a measurable threat to human health. For instance, Robert Starr (Starr), who has lived on the island for 11 years, uses a cistern, which, like many on the island chain, was installed by Bocilla Utilities, and reports no problems. Starr changes filters once a month. The same is true with the two other members of Petitioners Starr, who have lived on the island for six and 12 years, respectively. Greater consumption of potable water means greater production of septic tank leachate and irrigation runoff. About 75 percent of the amount of potable water consumed will become wastewater. These inputs will have a deleterious effect on Lemon Bay. Each side mounts fire-safety arguments that largely cancel each other out. The County asserts that the lack of hydrants allowed a home to burn to the ground "several years ago." Petitioners Starr assert that Bocilla Utilities lacks the commitment to providing serviceable hydrants in their certificated territory with sufficient water pressure to extinguish a house fire. Whatever the truth of these assertions, firefighters have four floating pumps to draw saltwater from nearby surface waters to fight house fires in the certificated territory of Bocilla Utilities, as well as in the much larger area of the Don Pedro island chain that is not within the certificated territory of Bocilla Utilities or otherwise served by central water. Additionally, unless island residents have a particular aversion to death by fire and asphyxiation, as opposed to death by water and drowning, they would more likely, when addressing perils to their lives and property, focus upon the greater risk posed to them by storm surge and wind, as presented by a storm, or even by the more persistent wind and tidal action. Plan Provisions Governing Historic Resources Historic Preservation Element Objective 1.1 is that the County, "[b]y June 1, 1999, will develop a program which will protect the County's historical and archaeological resources." The policies under Historic Preservation Element Objective 1.1 provide an array of programs and mechanisms by which to achieve this objective. These programs and mechanisms include providing matching funds (if financially feasible) for federal and state programs to obtain grants to contribute to the knowledge of the County's historic and archaeological heritage, offering transferable development rights or other incentives for the preservation of historic and archaeological resources, and adopting an historic preservation ordinance to provide specific criteria to protect historic and archaeological resources. Historic Preservation Element Objective 1.2 is for the County, by June 1, 1999, to develop and maintain a site inventory on the County geographical information system of all significant historic buildings, historic architecture, historic districts, and archaeological objects and places. Historic Preservation Element Policy 1.2.4 is to "strive" to "locate, identify, preserve, protect, and recognize its archaeological sites and historic structures " Historic Preservation Element Objective 1.3 is for the County to encourage the nomination of historic buildings, sites, districts, or objects to the National Register of Historic Places or the Local Register of Historic, Archaeological, or Scenic Places. Historic Preservation Element Objective 1.4 is for the County to "participate" in public education campaigns to promote public awareness of the importance of preserving its historic, archaeological, architectural, and scenic resources. Although Housing Preservation Element Goal 2 is, among other things, to identify "historically significant housing," none of the objectives or policies under that goal mentions such housing by name, although Housing Element Policy 2.1.1 is to assist public and private housing providers by providing information and assisting in obtaining state and federal grants to increase the supply of, among other things, "special needs groups," which may incorporate those persons "needing" historically significant housing. According to the FLUE Table of Contents, the "Free- standing Future Land Use Map series" includes a map entitled, "Historical Sites Overlay District, 1997-2010" (Historical FLUM). The Historical FLUM identifies itself as, "Future Land Use Map Series No. 6, Adopted October 7, 1997." Although FLUE Objective 2.1 does not identify the maps that are part of the adopted Future Land Use Map (FLUM) series, it is evident which maps are part of the FLUM map series, and the Historic FLUM is clearly part of the FLUM that the County adopted as part of the plan. The Historic FLUM is a map of the County measuring about 17 inches by 11 inches. Eight major roads are indicated on the map. Locations of interest on the map are depicted by a small pentagon on the map and a line leading from the pentagon to a code, such as "CH00445." The Historical FLUM is the same map as Historical Element Maps 9.1 and 9.2. However, Historic Preservation Element Table 9.1, which is required to obtain the street addresses of the historical sites that are depicted on the Historical FLUM, does not accompany the Historical FLUM, nor does the Historical FLUM incorporate or even mention the table. Provisions Governing Potable Water and Sanitary Sewer Infrastructure Element Objective 1.7 is to "manage development within the . . . 100-year floodplain." Infrastructure Element Policy 1.7.1 provides that, for properties within the 100-year floodplain, the County shall grant transferable development rights to landowners electing, in perpetuity, not to disturb or alter their land within the 100-year floodplain. Infrastructure Element Policy 8.1.5 protects areas of prime aquifer recharge by limiting densities to one unit per 10 acres. Infrastructure Element Objective 8.2 is to "maintain. . . or improve. . ." the County's groundwater resources, which "shall not be degraded, either directly or indirectly, by human influences, below Federal or State standards." Infrastructure Element Policy 8.2.5 is to "maintain . . . current policy requiring mandatory connection to sewer and water service when such service is provided, thus reducing the number of septic tanks and wells in use." Infrastructure Element Goal 9 is for the County to encourage public and private utilities to provide economically efficient water and sewer systems that "maximize. . . the use of existing facilities to meet the needs of a growing population, while protecting the environment." Infrastructure Element Objective 9.1 is for County and utilities to provide water and sewer services to new and existing development "in conjunction with" previously certificated territories and the USA strategy. Infrastructure Element Policy 9.1.1 encourages utilities to extend sewer and water services to Infill Areas in accordance with the USA strategy. Infrastructure Element Policy 9.1.4 states that certificated territories will be extended or expanded for water or sewer outside of Infill Area boundaries, subject to certain exceptions. Infrastructure Element Policy 9.1.7 provides that landowners of new development within the Infill Areas or previously certificated territory where central water or sewer is not available, shall connect to central water or sewer when it becomes available and within 365 days of written notice from the utility. Infrastructure Element Policy 9.2.2 requires mandatory connection to central sewer for landowners whose property is served by a package plant, which is allowed in the USA as a "temporary measure." Infrastructure Element Policy 9.2.3 provides that the availability of water and sewer will not necessarily justify development approval. Infrastructure Element Objective 9.3 is for the County to "protect its existing and future potable water supplies, such as the Peace River, and wellhead locations." Infrastructure Element Objective 9.4 is, in part, to identify and conserve water supplies. Infrastructure Element Policy 9.4.7 is for the County to encourage water utilities to adopt a conservation rate for users. Infrastructure Element Goal 10 is for utilities to maintain adequate levels of service for water and sewer. Infrastructure Element Objective 10.1 is for utilities to provide the capital improvements needed to maintain existing facilities, replace obsolete or worn facilities, and eliminate existing deficiencies. Infrastructure Element Policy 10.1.1 adopts level of service standards of 190 gallons per day per dwelling unit for water and 161.5 gallons per day per dwelling unit for sewer. Per person rates are calculated by dividing these rates by 2.23. Infrastructure Element Policy 10.1.2 is for all facility improvements to meet the adopted levels of service standards. Infrastructure Element Policy 10.1.5 states that concurrency determinations are on the basis of the relevant facility, not on the basis of the entire County or system. Infrastructure Element Goal 11 is for the County to "attempt to reduce negative impacts to the natural environment and the public health, safety, and welfare resulting from the use of sanitary wastewater treatment systems (septic systems, package treatment plants, and central sewer systems)." Infrastructure Element Objective 11.1 is for the County to "develop and begin implementing a septic system management program" by October 1, 2000. Infrastructure Element Policy 11.1.2 is for the County to "develop and maintain a schedule of septic system maintenance" and to "begin implementation" by October 1, 2000. Infrastructure Element Policy 11.1.3 bases the schedule on the geographic area, system size, drainfield and water table separation, system age, performance history, soil type, surface water setback, and other information. Infrastructure Element Policy 11.1.5 allows the continued use in the USA of "properly constructed and functioning septic systems which are maintained in accordance with the septic system management program," unless a utility requires connection to a central sewer system. Infrastructure Element Policy 11.1.6 imposes upon the owners the cost of the septic system management program. Infrastructure Element Policies 11.1.1 and 11.1.4 are for the County to complete a pilot septic tank system management program by October 1, 1999, and to use private companies to inspect and maintain septic tanks as part of the septic tank system management program. Infrastructure Element Objective 11.2 is for the County to "develop and begin implementation" of an ambient water quality monitoring program, by December 31, 2000, "to determine the impacts of pollution resulting from the use of sanitary wastewater treatment systems (septic system, package treatment plants, and central sewer systems)." Infrastructure Element Policy 11.2.3 requires the repair or replacement of systems violating water quality standards and endangering the public health. Infrastructure Element Policies 11.2.1 and 11.2.4 are for the County to collect and analyze soils samples for pollutant loadings by December 31, 2000, and to enforce the minimum requirements of Rule 10D-6 for new or replacement septic tank systems. Infrastructure Element Objective 11.3 states: "Developed properties will be connected to central potable water or sewer service when it is available and within 365 days upon written notification by the utility provider." Infrastructure Element Policy 11.3.1 defines availability as a utility line within a public easement or right-of-way abutting the property and within 200 feet of the property line of a developed establishment. Infrastructure Element Policy 11.3.2 requires connection to central water, and Infrastructure Element Policy 11.3.3 requires connection to central sewer. Infrastructure Element Policy 11.3.4 is for the County to "encourage" interconnection of package treatment plants and the replacement of such plants with larger, more economical treatment systems or alternative onsite treatment systems with advanced treatment standards. Infrastructure Element Objective 11.5 is for the County to "attempt to reduce the percentage of septic systems serving new development." Infrastructure Element Objective 11.6 is for the County to "require the installation of advanced onsite treatment and disposal systems based on lot size or proximity to surface water for new development by July 1, 1998 " Infrastructure Element Policy 11.6.1 provides that proximity to surface water means 150 feet, and Infrastructure Element Policy 11.6.2 provides that lot size means up to and including 10,000 square feet-unless, in either case, the area is scheduled to receive central sewer, according to the five-year schedule of capital improvements. However, Infrastructure Element Policy 11.6.3 requires mandatory connection to central sewer, even if an alternative wastewater treatment system is installed. Infrastructure Element Goal 12 is for the County to operate its water and sewer utilities efficiently and for the benefit of the public. Infrastructure Element Objective 12.1 is for the County to provide adequate capital improvements to attain the minimum level of service standards in the operation of its water and sewer systems. Infrastructure Element Policy 12.1.1 is to include major capital expenditures for water and sewer on the five-year schedule of capital improvements. Infrastructure Element Policy 12.1.6 is for the County to seek federal and state assistance to fund central water and sewer infrastructure for Charlotte County Utilities. Infrastructure Element Policy 12.1.7 requires the County to implement a short-range central sewer installation program from 1997-2002 within the areas shown in Infrastructure Element Map 4.A. Infrastructure Element Policy 12.1.8 requires the County to implement a long-range central sewer installation program starting in 2002 within the areas shown in Infrastructure Element Map 4.B. Infrastructure Element Map 4.A contains the 12 areas previously described within the central portion of the County, mostly along U.S. Route 41 and State Route 776. Infrastructure Element Map 4.B contains primarily two massive areas: one encompassing A1 and A2 from Infrastructure Element Map 4.A together with a much larger area along U.S. Route 41 abutting the mouth of the Peace River and another even larger area along U.S. Route 41 about midway between State Route 776 and the Peace River. Capital Improvements Element Policy 1.3.20 is for the County to apply numerous criteria in implementing capital improvements projects. These criteria include the elimination of public health or safety hazards, elimination of capacity deficiencies, ability to service future growth, financial feasibility, and consistency with the USA strategy. FLUE Goal 1 is for the County to "manage growth and development in a manner which safeguards the public investment, balances the benefits of economic growth with the need for environmental protection, and prevents urban sprawl." FLUE Objective 1.1 is for the USA strategy to direct the "timing, location, density, and intensity of development and infrastructure . . . so that at least 90% of the urbanized development is located within the [USA's] Infill Areas." FLUE Policy 1.1.1 divides the USA into the Infill Areas and Suburban Areas and divides the County into the USA and Rural Service Area. FLUE Policy 1.1.2 identifies levels of service standards for each public facility and sets the frequency of various services, such as garbage pickup and fire response times; Infill Areas have the most intensive and frequent services and the Rural Service Area has the least intensive and frequent services. FLUE Policy 1.1.6 states: "Within the bridgeless barrier island Rural Service Area location, Charlotte County will prohibit higher densities of new residential development by allowing only for residential uses at very low densities not to exceed one dwelling per acre or one dwelling unit per platted lot consistent with Policy 2.5.3." FLUE Objective 1.3 is to "use the location and timing of infrastructure and services to direct growth in an orderly and efficient manner." Regarding the provision of infrastructure and services, FLUE Policy 1.3.1 places the highest priority on the Infill Areas and lowest priority on the Rural Service Area, although FLUE Policy 1.3.2 warns that the County may provide higher levels of infrastructure and services to any area to protect the public health, safety, and welfare or "at the request and capital outlay of the citizens of the area." FLUE Objective 1.4 is the platted lands strategy, which is to reduce the number of platted vacant lots by one percent annually by January 1, 2005. FLUE Policy 2.4.1 incorporates into the plan the Charlotte Harbor Management plan, Charlotte Harbor Surface Water Improvement and Management Plan, and Lemon Bay Aquatic Preserve Management Plan. FLUE Policy 2.5.3 establishes the Bridgeless Barrier Island Overlay District, which comprises the Don Pedro Island chain. This policy states, in part: "In order to reduce the potential for devastation resulting from involuntary natural disasters, this overlay district restricts the intensity of residential development." FLUE Goal 3 recognizes the supremacy of the U.S. and Florida constitutions. FLUE Objective 3.1 is for the County to respect private property rights. FLUE Policy 3.1.3 is for the County to deprive no person of life, liberty, or property without due process of law. FLUE Goal 5 is for the County to regulate the use of land "to safeguard the public investment and to protect the population." FLUE Objective 5.1 is for the County to limit densities in the CHHA to 3.5 units per gross acre, although FLUE Policy 5.1.1 recognizes the lower density of one unit per gross acre on the bridgeless barrier islands, subject to one unit per grandfathered lot. FLUE Objective 5.2 is for the County to "locate public facilities in locales which are less susceptible to severe weather damage and are not within the [CHHA] unless such location is the only one which serves a particular structure's intended public purpose." Housing Element Policy 1.3.2.e is for the County to promote affordable housing by implementing the community redevelopment plan for Charlotte Harbor. Housing Element Policy 2.1.6 is for the County to consider, when reviewing its land development regulations, the potential damage of catastrophic hurricanes. Natural Resources Element Goal 1 is: "To conserve, protect, enhance, and where necessary restore Charlotte County's environmental and natural resources to ensure their long-term quality for the future; increase public access to the shoreline and coastal waters; protect human life in areas subject to natural disaster; and limit public expenditures in areas subject to natural disaster." Natural Resources Element Objective 1.2 is to protect the quality of surface waters. Natural Resources Element Policy 1.2.2.a is to locate onsite sewage disposal systems as far landward as feasible on waterfront properties to reduce nutrient and pathogen loading into surface waters. Natural Resources Element Policy 1.2.2.b is to prohibit the discharge of runoff, wastewater, or other sources of contamination into surface waters below applicable water quality standards, including those higher water quality standards applicable to Outstanding Florida Waters. Natural Resources Element Objective 1.3 is for the County to "protect its marine and estuarine habitats and finfish and shellfish resources to ensure long-term viability and productivity for scientific, commercial, sport, and recreational purposes." Natural Resources Element Objective 1.4 is not to degrade groundwater quality. Natural Resources Element Policy 1.4.1 is to prohibit the storage of hazardous materials in areas recharging the intermediate aquifer. Natural Resources Element Policy 1.4.6 is to continue to require connections to central water and sewer. Natural Resources Element Objective 1.8 is for the County to "protect existing natural reserves, preserves, and resource conservation areas . . .." Natural Resources Element Policy 1.8.1 is for the County to apply unspecified "development review criteria" to the aquatic preserves, Don Pedro State Park, and Port Charlotte Beach State Park partly or wholly within the Bridgeless Barrier Island Overlay District, although it is unclear exactly what development the County would be permitting in these preservation areas. Natural Resources Element Objective 1.13 is for the County to "protect its beach and dune systems, including native dune vegetation, from human induced erosion." Natural Resources Element Policy 1.13.3 prohibits all construction activity seaward of the Coastal Construction Control Line except as permitted by the Department of Environmental Protection under Chapter 161, Florida Statutes. Natural Resources Element Objective 1.16 is for the County to "reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the [CHHA] except as necessary to ensure public health and safety." Natural Resources Element Policy 1.16 identifies the CHHA as "all areas designated by the Southwest Florida Regional Planning Council as requiring evacuation in the event of a landfalling Category I hurricane." Natural Resources Element Policy 1.16.2 provides: Within the [CHHA], Charlotte County will prohibit new publicly funded buildings, except for restrooms and other structures including, but not limited to: boat ramps boat docks, picnic shelters, bridge tender's building, landscape or facility maintenance sheds, boat lock, and food or rental concession stand, along with the necessary water, sewer and road infrastructure which are appropriate and necessary for public use and recreation and cannot be located elsewhere. Public buildings and structures along with the necessary water, sewer and road infrastructure associated with essential life safety services, such as police/sheriff district stations, fire stations, or emergency medical service stations may be developed or redeveloped in [CHHA] as needed to protect the public health, safety, and welfare. . . . Natural Resources Element Policy 1.16.6 is for the County to "actively facilitate" the removal of density from the CHHA by plat vacation and other means. Natural Resources Element Policy 1.16.7 provides that owners of land in the Category 1 hurricane vulnerability zone may transfer their development rights elsewhere in the County. Natural Resources Element Objective 1.17 is to start reducing hurricane evacuation times by 2000. Natural Resources Element Objective 1.19 is for the County to "limit additional public investment in the [CHHAs] except as necessary to ensure public health or safety." Natural Resources Element Policy 1.19.1 is for the County to "prohibit the construction or reconstruction of County funded facilities or infrastructure in the [CHHA] except for recreation facilities and those necessary to ensure public health and safety." Natural Resources Element Policy 1.19.2 is for the County to use its eminent domain power and regulatory authority to relocate threatened or damaged public structures and infrastructure landward of the CHHA when appropriate. Natural Resources Element Objective 1.20 is for the County to "direct concentrations of population away from [CHHAs]." Ultimate Findings of Fact Public Participation and Standing of Petitioners Plummer Petitioners Columbia and Petitioner Jordan failed to prove to the exclusion of fair debate that the contents or implementation of the public-participation procedures failed to assure broad and effective participation by all interested residents in the preparation of the Plan. The County complied in all respects with all applicable requirements of public participation. Petitioners Plummer proved that each of them is an affected person. Each of them owns or operates a business in Charlotte County. Individually and on behalf of The Historical Knights Bldg., Inc., Plummer submitted objections, recommendations, and comments during the period between the transmittal and adoption of the plan. Plummer submitted these objections, recommendations, and comments to an agent or subdivision of the County, and they pertained to matters directly involved with the plan that was then under preparation. Historic Resources Petitioners Plummer proved to the exclusion of fair debate that the plan is inconsistent with the requirement of identifying any historic districts on the FLUM. Charlotte County had created an historic district prior to the adoption of the FLUM in October 1997. The FLUM--i.e., Future Land Use Map Series No. 6-- contains historically significant properties. Although the properties are not well identified on the FLUM, Petitioners Plummer failed to prove to the exclusion of fair debate that the plan, as a whole, fails to satisfy this requirement, considered within the context of all applicable requirements. For the same reasons, Petitioners Plummer failed to prove to the exclusion of fair debate that the existing land use maps fail to designate historic resources. Historic Preservation Element Maps 9.1 and 9.2 sufficiently designate historic resources to satisfy this criterion. Petitioners Plummer proved to the exclusion of fair debate that the plan lacks any operative provision to preserve or sensitively adapt historic resources. An objective promising, by June 1, 1999, to "develop a program . . . [to] protect the County's historical and archaeological resources" is not an objective, but only a promise to adopt such an objective in the future. In the meantime, the missing objective is unavailable as a standard against which to evaluate development orders or to evaluate the internal consistency of other plan provisions. Similarly, a policy to "strive to . . . preserve [and] protect" archaeological sites and historic structures is not a policy to protect these resources. The objective and policy described in the preceding paragraph are the most demanding provisions contained in the plan for the protection of historic resources or historically significant property. These two instances of the operative provisions of the plan failing to satisfy important requirements are material, especially given the relatively weak plan provisions concerning historic resources, the ambiguities in the FLUM and existing land use map identifying historically significant properties, and the failure of the FLUM to designate the historic district. Petitioners Plummer failed to prove to the exclusion of fair debate that the plan is inconsistent with any requirements concerning the identification of historically significant and other housing for conservation, rehabilitation, or replacement. The plan sufficiently identifies such housing, and the range of potential action allowed by the requirement--conservation through replacement-- does not support a strict application of the textual part of this requirement. Absent evidence of significant historic housing stock, the County's identification of these properties on the FLUM and existing land use map was sufficient for consistency with this requirement. Sanitary Sewer and Potable Water Petitioners Starr, Petitioners Columbia, and Petitioner Jordan failed to prove to the exclusion of fair debate that the plan's requirements of mandatory connections to central water or sewer are inconsistent with any provisions protecting private property rights. Petitioners Columbia and Petitioner Jordan failed to prove to the exclusion of fair debate that the plan's requirement of mandatory connections to central sewer is unsupported by data and analysis. The record amply supports the County's decision to expand its central sewer system and require owners of improved land to connect when service becomes available. Petitioners Columbia and Jordan failed to prove to the exclusion of fair debate that the County failed to provide analysis of the fiscal impacts of existing public facility deficiencies, facility capacity by service areas, and replacement strategies. Such analysis is amply presented in the plan and, additionally, the record in these cases. With respect to Petitioner Jordan's allegations of unsupporting data and analysis, expanding central sewer into the first 12 areas reveals no discriminatory intent against lower-income or group housing, nor any lack of financial feasibility due to the income levels prevailing in the first 12 areas to be served. The evidence suggests that the areas to be served are low-lying, and the infrastructure is vulnerable to damage from coastal storms, including stormwater intrusion into the central sewer system. These facts do not deprive the plan provisions extending central sewer into these areas from support from the data and analysis in light of the greater risks to human and environmental health posed by ongoing reliance upon septic tanks in these low-lying, densely populated areas. Petitioners Columbia and Jordan failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer are internally inconsistent with any other provisions in the plan. With respect to Petitioner Jordan's allegations of internal inconsistency, providing central sewer in the CHHA is necessary to ensure public health and safety. Extending central sewer into the CHHA does not violate the plan provision to direct population concentrations away from the CHHA; the areas in question are largely built-out, and the risks posed by the septic tank leachate to human health and environmental resources are substantial and well-documented. The evidence does not suggest that extending central sewer will subsidize or encourage new land development in the CHHA. The choice of the first 12 areas into which to extend central sewer was clearly driven by legitimate concerns, such as lift-station capacity, environmental sensitivity, and financial feasibility, not illegitimate concerns arising out of housing discrimination. Extending central sewer into the areas selected for the first two phases of the expansion program will clearly reduce negative environmental impacts from wastewater systems and heighten the efficiency of use of the central sewer system. Expanding central sewer will not exceed the capacity of the central sewer system. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer deprive the plan of financial feasibility or operative provisions for the orderly and balanced future economic, social, physical, and environmental development. The record establishes that the requirement of mandatory connections to central sewer helps the plan achieve these requirements. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan lacks an objective to correct facility deficits and maximize the use of existing facilities and a policy to establish priorities regarding public facilities. Among other provisions, the provisions establishing the USA satisfy these criteria, as between the USA and Rural Service Area, as do the provisions assigning the highest priority, within the USA, to the Infill Areas as opposed to the Suburban Areas. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer deprive the plan of the effect of discouraging urban sprawl. To the contrary, the extension of central sewer, with mandatory connections, tends to ameliorate the effects of sprawl by reducing the impacts upon natural resources of sprawling residential development. Given the vast numbers of platted lots and the County's inability to reduce these numbers significantly, the extension of central sewer to areas already platted and largely developed does not tend to encourage sprawl. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan lacks a policy to establish criteria, including financial feasibility, in evaluating local capital improvement projects. Capital Improvement Element Objective 1.3 and the ensuing policy cluster--especially Policies 1.3.19 and 1.3.20.i--satisfy this requirement. For the same reasons, Petitioner Jordan failed to prove to the exclusion of fair debate that the plan lacks provisions ensuring financial feasibility Petitioner Jordan failed to prove to the exclusion of fair debate that the plan lacks an objective to restrict development activities that would damage coastal resources, protect human life, and limit public expenditures in areas subject to natural disasters. FLUE Policy 2.4.1 incorporates the Charlotte Harbor Management Plan, Charlotte Harbor Surface Water Improvement and Management Plan, and the Lemon Bay Aquatic Preserve Management Plan. Natural Resources Element Objective 1.16 is to reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the CHHA, except for reasons of public health and safety. Natural Resources Element Objective 1.17 is to start reducing hurricane evacuation times by 2000. Natural Resources Objective 1.19 is to limit additional public investment in the CHHA, except for reasons of public health and safety. Natural Resources Element Objective 1.20 is to direct population concentrations away from the CHHA. Various policies within the clusters under these objectives satisfy the other CHHA requirements cited by Petitioner Jordan. Petitioners Starr have proved to the exclusion of fair debate that the plan provisions requiring mandatory connections to central water, as applied to the Don Pedro island chain, are unsupported by the data and analysis because they accelerate the build-out of the island chain, raise the intensity of residential use of existing and future dwelling units, attract populations to an extremely vulnerable barrier island chain within the CHHA, unnecessarily expose human life to the perils of hurricanes, mandate extremely vulnerable infrastructure investments in the CHHA by island residents without any measurable, compensating gains in public health or safety or environmental enhancement, and increase the consumption of potable water and production of septic tank leachate in an environmentally sensitive area. Petitioners Starr have proved to the exclusion of fair debate that the plan provisions requiring mandatory connections to central water, as applied to the Don Pedro island chain, are internally inconsistent with plan provisions discouraging urban sprawl, such as FLUE Goal 1 to prevent urban sprawl; FLUE Objective 1.1 to direct at least of 90 percent of urbanized development into the USA; FLUE Objective 1.3 to use the location and timing of infrastructure and services to direct growth in an orderly and efficient manner; FLUE Policy 1.3.1 to prioritize the provision of infrastructure and services first to Infill Areas, then to Suburban Areas, and last to the Rural Service Area; FLUE Objective 1.4 to reduce the number of platted vacant lots by one percent annually by 2005; FLUE Objective 1.6 to ensure that the location and intensity of development to coincide with the availability of facilities and appropriate topography and soil conditions; Natural Resources Element Objective 1.3 to protect marine and estuarine habitats; Natural Resources Element Objective 1.8 to protect existing natural preserves; Natural Resources Element Objective 1.16 to reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the CHHA, except for reasons of public health and safety; Natural Resources Element Objective 1.17 to start reducing hurricane evacuation times by 2000; Natural Resources Element Objective 1.19 to limit public investment in the CHHA, except for reasons of public health and safety; and Natural Resources Element Objective 1.20 to direct concentrations of population away from the CHHA. However, Petitioners Starr failed to prove to the exclusion of fair debate that the plan lacks objectives and policies to protect the coastal environment and conserve potable water resources.
Recommendation It is RECOMMENDED that, pursuant to Section 163.3184(9)(b), Florida Statutes, the Department of Community Affairs submit the recommended order to the Administration Commission for final agency action. DONE AND ENTERED this 11th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2000. COPIES FURNISHED: Robert J. Starr Post Office Box 5337 Grove City, Florida 34224 Betty L. Brenneman Post Office Box 67 Placida, Florida 33946 Suzanne Neyland Post Office Box 849 Placida, Florida 33946-0849 John G. Columbia 2150 Cedarwood Street Port Charlotte, Florida 33948 Daniel R. Fletcher Post Office Box 2670 Port Charlotte, Florida 33949 Eugene J. Haluschak 3191 Lakeview Boulevard Port Charlotte, Florida 33948 John L. Harmon 3083 Beacon Drive Port Charlotte, Florida 33952 Rhonda Jordan 4437 Parmely Street Charlotte Harbor, Florida 33980 Robert K. Lewis, Jr., Attorney 6237 Presidential Court Suite A Fort Myers, Florida 33919-3508 Shaw P. Stiller Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Martha Young Burton Brendan Bradley Carl Kitchner Renee Francis Lee Assistant County Attorneys Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948-1094 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
Findings Of Fact The petitioners Petitioners are special taxing districts and political subdivisions of the State of Florida, which were created pursuant to Chapter 298, Florida Statutes. The petitioners and their pertinent structures and operations were authorized by Chapter 298, Florida Statutes, for the purpose of providing irrigation, drainage and flood protection for the landowners within their respective boundaries. In order to effect this purpose, the petitioners designed and operate their water control structures to pump excess stormwater and surface water directly to Lake Okeechobee (the "Lake") in the case of East Beach Water Control District (East Beach) and directly to the Rim Canal at the southern end of the Lake in the case of South Shore Drainage District (South Shore), East Shore Water Control District (East Shore), and South Florida Conservancy District (South Florida). East Beach covers a total area of approximately 6,542 acres located along the southeast shore of the Lake. Approximately 75-80 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 20-25 percent of the drainage area is urbanized. The urban area includes the City of Pahokee. South Shore covers a total area of approximately 4,230 acres located along the Rim Canal at the south end of the Lake. Approximately 80-85 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 15-20 percent of the drainage area is urban and industrial. The urban area includes a portion of the cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely scattered home sites throughout the District. East Shore covers a total area of approximately 8,136 acres located along the Rim Canal at the south end of the Lake. With the exception of lands developed as canals, levees, roads, and other service-related systems, the entire district is used for agricultural purposes. South Florida covers a total area of approximately 32,754 acres located along the Rim Canal at the south end of the Lake with 28,649 acres located in Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90 percent of the land is used for agricultural purposes and the remaining 10-15 percent is used for urban or industrial purposes. The City of Belle Glade constitutes a major part of the urban land with the remainder situated around the cities of South Bay, Lake Harbor and other scattered home sites. Here, the parties have stipulated that petitioners have standing to maintain this challenge. Background Before 1986, petitioners' discharges into the Lake had not been regulated by the respondent, Department of Environmental Regulation (Department). In 1985 the Governor of the State of Florida issued Executive Order Number 86-150. This executive order observed that the Lake Okeechobee Technical Committee, formed to study water quality and water supply conditions in the Lake, had found the Lake to be in danger of becoming hypereutrophic because of the excessive amounts of nutrients, especially phosphorus, it was receiving, and had recommended corrective actions to substantially reduce the nutrient load and provide for long-term monitoring, research and management needs for the Lake. To protect and preserve the Lake, the executive order directed, inter alia, that the Department "bring all private and publically controlled backpumping sources into the lake under permit review or under enforcement for operating without a permit." Pursuant to that executive order, the Department, in concert with petitioners, began the process of regulating petitioners' discharges into the Lake. The Department initially attempted to have the petitioners enter into consent orders; however, the petitioners objected to that concept. Ultimately, both the Department and petitioners agreed to the issuance of short-term operating permits (TOPs) containing specific conditions aimed at determining the composition of the discharges from petitioners' systems and at reducing the pollution loading into the Lake. The TOPs, issued December 30, 1986, and effective until September 23, 1988, were issued pursuant to the Department's regulatory authority over pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code. 2/ Pertinent to this case, Section 403.088, Florida Statutes, provided, and continues to provide, as follows: 403.088 Water pollution operation permits; temporary permits; conditions-- (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which by itself or in combination with the wastes or other sources, reduces the quality of the receiving waters below the classification established for them . . . (2)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. . . (3)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (b) of subsection (2) may apply to the department for a temporary operation permit . . . After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds: The proposed discharge does not qualify for an operation permit; The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules of constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort through research and other means to discover and implement such a method; The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternate waste disposal system; There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state; The denial of a temporary operation permit would work an extreme hardship upon the applicant; The granting of a temporary operation permit will be in the public interest; or The discharge will not be unreasonably destructive to the quality of the receiving waters. A temporary operation permit issued shall: Specify the manner, nature, volume, and frequency of the discharge permitted; Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition of the permit; Require the permitholder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to ensure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters; Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest. And, Section 403.927, Florida Statutes, provided, and continues to provide, as follows: 403.927 Use of water in farming and forestry activities.-- . . . it is the intent of the Legislature to provide for the construction and operation of agricultural water management systems under authority granted to water management districts and to control, by the department or by delegation of authority to water management districts, the ultimate discharge from agricultural water management systems. . . . The department may require a stormwater permit or appropriate discharge permit at the ultimate point of discharge from an agricultural water management system or a group of connected agricultural water management systems. . . (4) As used in this section, the term: * * * (b) "Agricultural water management systems" means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter. The agricultural water management systems owned and operated by petitioners fall within the definition of "agricultural water management systems" set forth in Section 403.927(4)(b), Florida Statutes. Consistent with the provisions of Section 403.088, Florida Statutes, Rule 17-4.070(1), Florida Administrative Code, provides: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules. However, for discharges of wastes to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S. Chapter 17-4, Florida Administrative Code, further delineates the specific procedures to obtain permits and the specific standards for issuing and denying permits. In July 1988, petitioners applied for an extension of their TOPs. The monthly water quality monitoring data petitioners had submitted to the Department reflected, however, that the discharges from petitioners' systems were in contravention of the Department's rules and standards. Accordingly, since petitioners had not met the obligations set forth in the TOPs, the Department advised petitioners that the TOPs would not be extended and that they were required to apply for new operating permits. The new permit applications Following the Department's refusal to extend the TOPs, petitioners filed applications for operating permits for their discharges, and the Department, consistent with its previous reviews, undertook its review pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was amended with regard to, inter alia, the definition of stormwater management systems so as to include pumped discharges such as petitioners. Further, pertinent to this case, Part IV of Chapter 373 provided: 373.416 Permits for maintenance or operation-- (1) . . . the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. 373.418 Rulemaking; preservation of existing authority.-- It is the intent of the Legislature that stormwater management systems be regulated under this part incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403. Neither the department nor governing boards are limited or prohibited from amending any regulatory requirement applicable to stormwater management systems in accordance with the provisions of this part. It is further the intent of the Legislature that all current exemptions under chapters 373 and 403 shall remain in full force and effect and that this act shall not be construed to remove or alter these exemptions. In order to preserve existing requirements, all rules of the department or governing boards existing on July 1, 1989, . . . shall be applicable to stormwater management systems and continue in full force and effect unless amended or replaced by future rulemaking in accordance with this part. Upon the amendment of Part IV, Chapter 373, Florida Statutes, petitioners amended their pending applications to reflect their desire that the applications be processed pursuant to the newly amended provisions of Part IV, Chapter 373, as they relate to stormwater management systems. The Department, acknowledging the amendments to chapter 373, processed the applications accordingly; however, in view of the provisions of section 373.418(1) which "incorporat[ed] all of the existing requirements contained in or adopted pursuant to chapters 373 and 403," the Department did not in fact change the standards by which these applications were reviewed, to wit: Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. On March 14, 1991, the Department issued a notice of permit denial to each petitioner. In each of the denials, the Department noted the provisions of Section 373.416(1), Florida Statutes, ["the . . . department may require such permits and impose such reasonable conditions as are necessary to assure that the operation . . . of any stormwater system . . . will comply with the provisions of this part and applicable rules promulgated thereto . . . and will not be harmful to the water resources of the district"] and Section 373.418(1), Florida Statutes, ["incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403"], and concluded that the applications should be denied for the following reasons: The Department has completed its review of the subject application, supporting documents and the discharge monitoring reports submitted by the applicant as required by Department Permit NO. IT50- 125678. Based on this review the Department has made the determination that the applicant has failed to provide reasonable assurances that the discharge from the agricultural stormwater management system proposed by the applicant will be in compliance with the aforementioned sections of Chapter 373, F.S. and the Class I Surface Water Quality Standards adopted by the Department pursuant to Chapter 403.061, F.S. and contained in Section 17-302.540, F.A.C. and the Antidegradation Policy for Surface Water Quality contained in Section 17-302.300(3), F.A.C. The Department's action is facially consistent with the provisions of chapter 373, and chapter 403 incorporated therein, as well as the existing rules adopted pursuant to such chapters which require, whether the system be exempt or not, that discharges comply with state water quality standards. See e.g., Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17- 4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4, Florida Administrative Code. Availing themselves of the point of entry accorded by the notice of permit denial, petitioners filed a request for administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of their applications. Such proceedings are currently pending before the Division of Administrative Hearings, but distinct from this proceeding under Section 120.535, Florida Statutes. The Section 120.535 challenge The challenged policy, as alleged in paragraphs 19 of the petition, purports to be as follows: The Department has made a policy determination, which draws a distinction between "agricultural stormwater discharges" and other stormwater discharges regulated by Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto. The Department has identified the Petitioners' discharge as "agricultural stormwater discharges" and has subjected the petitioners to a set of rules and criteria that the Department has not adopted but which are apparently different from the general stormwater regulations adopted pursuant to Chapter 373, Florida Statutes. Such articulation of the challenged policy is substantially identical to petitioner's statement of the issue identified in their proposed final order, as follows: The issue for determination in this case is whether the Department's policy to apply criteria different from that contained in its "Regulation of Stormwater Discharge" Rule 17-25, Florida Administrative Code, and/or Rule 40E-4, Florida Administrative Code, of the South Florida Water Management District (SFWMD), when seeking to regulate an agricultural stormwater management system, as defined in Chapter 373, Part IV, Florida Statutes, constitutes a rule . . . . The premises for the petitioners' challenge are their contention that the Department has drawn a distinction between the agricultural stormwater discharges of petitioners and other stormwater discharges, which is not supported by statutory or duly promulgated rules, and that the Department has applied criteria, which are not supported by statutory or duly promulgated rules, to evaluate petitioners' applications. The credible proof fails, however, to support petitioners' premises. Contrary to the assertions raised by petitioners, the statutory and duly promulgated rules heretofore discussed provide ample authority for the Department's action, and there is no credible proof that the Department is applying any criteria that is not apparent from an application or reading of such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida Administrative Code, provides: The permit requirements of Chapter 17-4 or other applicable rules, rather than those of this chapter, shall apply to discharges which are a combination of stormwater and industrial or domestic wastewater or which are otherwise contaminated by non-stormwater sources unless: (a) the stormwater discharge facility is capable of providing treatment of the non- stormwater component sufficient to meet state water quality standards . . . . Here, the proof is compelling that the Department's decision was predicated on existing statutory and rule authority, and that it did not apply any criteria not promulgated as a rule or not contained within existing statutory authority to evaluate petitioners' applications, or treat petitioners' discharges differently than any other stormwater discharge contaminated by non-stormwater sources.
The Issue The issue is whether Florida Administrative Code Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority for the reasons alleged by Petitioners.
Findings Of Fact Austin is the owner of real property located at 1580 Indian Pass Road, Port St. Joe, Florida. Heslin is the owner of real property located at 1530 Indian Pass Road, Port St. Joe, Florida. Lighthouse is the applicant for a coastal construction control line (CCCL) permit for structures and activities proposed to occur on property located adjacent to Austin’s property. Heslin’s property is located within 500 feet of the proposed project site. The property for which the CCCL permit is sought is located landward of the mean high water line (MHWL). On January 31, 2006, the Department gave notice of issuance of a CCCL permit to Lighthouse. The proposed permit authorizes activities 228 feet seaward of the CCCL, specifically, the construction of a subdivision roadway/cul-de- sac including asphalt and limerock foundation, excavation of soil, filling of soil, ornamental street lights, stormwater management swales, below grade utilities, and dune enhancement plantings. Lighthouse obtained a subdivision plat for the site from Gulf County, Florida, on June 28, 2005, which includes 12 platted lots seaward of the CCCL, each approximately one quarter acre in size. When issuing the CCCL permit, the Department did not consider the platted subdivision that will be serviced by the permitted roadway project. Austin filed a petition challenging the issuance of the CCCL permit to Lighthouse. The challenge is styled Gloria Austin v. Lighthouse Walk, LLC and Department of Environmental Protection, DOAH Case No. 06-1186 (hereafter “the Permit Challenge”), and is pending before Judge Alexander. Heslin sought and was granted leave to intervene in the Permit Challenge. Paragraphs 6, 10, and 18 of the Petition for Formal Administrative Proceeding (Petition) in the Permit Challenge state as follows: 6. The proposed subdivision that is intended to be built by Lighthouse, will result in incompatible high density residential development seaward of the costal control line and seaward of the Petitioners’ homes. The incompatible and inappropriate nature of this subdivision will greatly increase the danger of Petitioners’ homes being damages by storm driven debris in the event of a major storm event such as a hurricane occurring in this area. * * * The area in question on Cape San Blas is presently developed in very low density single family home sites. The proposed development would create high density development seaward of the coastal construction control line for which construction is totally unnecessary and could easily be greatly minimized. The parcel in question could accommodate a residential subdivision without encroaching seaward of the present coastal construction and control line. In light of the above, it is clear the project violates Rule 62B- 33.005(3), Florida Administrative Code. * * * 18. The proposed permit would create a high density subdivision which would create a multitude of small single family lots on this site. By granting the permit for this site development, the Department is condoning the intended construction of a multitude of single family residences which are totally inappropriate for the beach dune system in this area. The combined effect of the construction of single family residences on the proposed plat seaward of the coastal construction control line will maximize impacts to the beach dune system, not minimize the impact as required by the Department’s rules in Chapter 62B-33, Florida Administrative Code. Lighthouse moved to dismiss the Petition in the Permit Challenge, to strike certain allegations, and for an Order in limine in that case. The Department filed a memorandum of law in support of Lighthouse’s motion, stating, in part: Contrary to Petitioner’s argument in paragraph 2(b), the Department’s rule contains a standard for determination of “cumulative effects.” Rule 62B- 33.005(3)(a), F.A.C., provides that “[I]n assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell.” The Department’s rules also contain a regulatory definition of “impacts” (not “cumulative impacts” as argued by the Petitioner). Therefore, consideration of future applications not yet pending with the Department is outside the scope of the Department’s permitting jurisdiction under the rule. Contrary to the arguments made by Petitioner in paragraph 2(c) and (d) construction of a “residential subdivision” is not a foregone conclusion. First, in Rule 62B-33.005(3)(a), F.A.C., it states that “[e]ach application shall be evaluated on its own merits in making a permit decision; therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Second, use by an applicant of the single family home general permit authorized by Section 161.053(19), F.S., and existing in Rule 62B-34.070, F.A.C., is not governed by the principle that a general permit is authorized without additional agency action. The concept of a general permit adopted by rule exists in many different permitting programs of the Department. The different permitting programs are created and governed by their organic statutes, and only those statutes (and rules promulgated under them) should be looked to for the legal principles that apply in the permitting program. (See paragraph 4. above). The case law cited by Petitioner in paragraph 2(c) of her response refers to general permits established under Chapter 403, F.S., specifically authorized by Section 408.814, F.S. Section 403.814(1) provides for use of a general permit 30 days after giving notice to the department “without any agency action by the department.” See § 403.814(1), Fla. Stat. (2005). No similar provision appears in Section 161.053(19), F.S. In addition, Section 403.814, F.S. provides for administrative review of the use of a general permit where the Department publishes or requires the applicant to publish notice of its intent to use a general permit. See § 403.814(3), Fla. Stat. (2005); Hamilton County Bd. of County Comm’rs v. State, Department of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991) and City of Jacksonville v. Department of Environmental Protection, 24 F.A.L.R. 938 (Fla. DEP 2001). By Order dated May 23, 2006, Judge Alexander struck paragraphs 6, 10, and 18 of the Petition in the Permit Challenge, holding, in part: Second, the Motion to Strike is granted in part, and paragraphs 6, 10, and 18 are stricken. The Motion to Strike paragraphs 9 and 19 is denied since paragraph 9 simply tracks the language in Florida Administrative Code Rule 62B-33.005(3)(a), and neither paragraph makes specific reference to impacts from the proposed construction of a residential subdivision. Although paragraphs 5 and 13 refer to alleged impacts to “wildlife habitat,” “drainage,” and “wind and water borne missiles during a storm,” which might arguably include matters unrelated to this action, the granting of the Motion in Limine below precludes Petitioner from introducing evidence regarding impacts to habitat other than sea turtles, the stormwater exemption, and wind and water borne missiles caused by the proposed construction of a residential subdivision. Finally, the Motion in Limine is granted, and Petitioner (and Intervenor) shall be precluded from introducing evidence in support of allegations relating to cumulative impacts caused by the proposed construction of a residential subdivision, debris and wind and water borne missiles from the proposed construction of a residential subdivision, the exemption of swales from stormwater discharge permit requirements, and any habitat impacts unrelated to sea turtles. See § 161.053, Fla. Stat. (2005); Fla. Admin. Code R. 62B- 33.005, 62B-33.007, and 62-25.030(1)(c). Petitioners have alleged in this case that Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority. Lighthouse has disputed that allegation in its Motion for Summary Final Order, which is fully supported by the Department. Section 161.053(5)(a), Florida Statutes, was first adopted by the Legislature in 1983. The statute was amended without any substantive changes to its text in 1987. Section 161.053(5)(a)3., Florida Statutes (2005),2 currently states in pertinent part: Except in those areas where local zoning and building codes have been established pursuant to subsection (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: The department may authorize an excavation or erection of a structure at any coastal location as described in subsection (1) upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including: * * * 3. Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system, which, in the opinion of the department, clearly justify such a permit. Rule 62B-33.005(3)(a) was amended in 1996 as follows: (3) After reviewing all information required pursuant to this Chapter, the Department shall: (a) Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other activities proposed within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. * * * (7) An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site, however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event. An exception to this policy may be made with regard to those activities undertaken pursuant to Subsections 16B-33.005(3)(d) and 16B- 33.006(2), Florida Administrative Code. Rule 62B-33.005(3)(a) was amended in 2000, as follows: After reviewing all information required pursuant to this Chapter, the Department shall: * * * Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Rule 62B-33.005(3)(a) currently appears as set forth in the preceding paragraph, but without the underlining. One of the provisions in Rule 62B-33.005(3)(a) that is being challenged in these cases states that the Department shall: [d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. This provision was first added to Rule 62B-33.005 in 1996. It was amended on August 27, 2000. The other provision in Rule 62B-33.005(3)(a) that is being challenged in these cases is the requirement that: [e]ach application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. This provision was first added to Rule 62B-33.005 in 1996. Rule 62B-33.005 is intended by the Department to implement Section 161.053(5)(a)3., Florida Statutes. Rule 62B-33.005(3)(a) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.053(5)(a)3., Florida Statutes. Petitioners disagree with the Department’s construction of the statute. Rule 62B-41.002 was first developed on August 23, 1992, as part of the newly enacted Rule Chapter 16B-41, which was later designated as Rule Chapter 62B-41. Rule 62B-41.002(28), first developed in 1992, is the precursor to Rules 62B-41.002(19)(a) and (b), which were added on October 23, 2001. Rule 62B-41.002 is intended by the Department to implement Section 161.041, Florida Statutes. Rule 62B-41.002(19)(b) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.041(2)(c), Florida Statutes. Petitioners disagree with the Department’s construction of the Statute. The current language of Section 161.041(2), Florida Statutes, was adopted by the Legislature in 1987, as follows: The department may authorize an excavation or erection of a structure at any coastal location upon receipt of an application from a property or riparian owner and upon consideration of facts and circumstances, including: Adequate engineering data concerning inlet and shoreline stability and storm tides related to shoreline topography; Design features of the proposed structures or activities; and Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system or coastal inlet, which, in the opinion of the department, clearly justify such a permit. Rule 62B-41.002(19) was amended to its current form in 2001, as follows: Renumbered as (19) * * * “Adverse Impacts” are those impacts to the active portion of the coastal system resulting from coastal construction. Such impacts are caused by coastal construction which has a reasonable potential of causing a measurable interference with the natural functioning of the coastal system. The active portion of the coastal system extends offshore to the seaward limit of sediment transport and includes ebb tidal shoals and offshore bars. "Cumulative Impacts" are impacts resulting from the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell individual coastal construction which, if permitted as a general practice on other coastal properties in the same general area, or if added to the adverse impacts from existing coastal construction are expected to result in an adverse impact. The scope of the "cumulative impact" review under the Environmental Resource Permit (ERP) program is described in the “Basis of Review” used by the South Florida Water Management District, St. Johns River Water Management District, and Southwest Florida Water Management. Under the “Basis of Review,” cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities, would result in a violation of state water quality standards or significant adverse impacts to functions of wetlands or other surface waters. The cumulative impact evaluation is conducted using an assumption that reasonably expected future applications with like impacts will be sought, thus necessitating equitable distribution of acceptable impacts among future applications. In reviewing impacts of a current ERP project application, the agency will review impacts from pending projects and extrapolate from those impacts to see what impacts future projects could contribute, using objective criteria, such as comprehensive plans, plats on file with local governments, or applicable land use restrictions and regulations. Tony McNeal, the administrator of the Department’s CCCL permitting program, acknowledged in his deposition testimony that the last sentence of Rule 62B-33.005(3)(a) “is a way of saying that the Department is not going to be bound by its prior actions in similar cases.” However, he also explained that the sentence does not allow the Department to act inconsistently because the Department “consistently applies the same rules” to each project that comes before it and “[t]he only thing that changes are the facts surrounding the project.”
Findings Of Fact Based on the Stipulation of counsel, the exhibits, and the pleadings filed herein, the following findings of fact are made: On December 11, 1998, Ms. Morro, who is the wife of Michael J. Morro, the developer of the property, filed her application with the District for an Environmental Resource Permit (ERP), which would authorize the construction of a surface water management system (including one wet-detention pond) to serve a 12-lot, single-family residential subdivision known as Tranquility on Lake Brantley in Seminole County, Florida. In more specific geographic terms, the project is located on the south side of Wekiva Springs Road, on Cutler Road, and on the north side of Lake Brantley near the City of Longwood. The application was assigned number 40-117-0567A-ERP. The exhibits filed herein suggest that Ms. Morro, and not Mr. Morro, owns the subject property. After determining that the Applicant provided reasonable assurance that the proposed activities met the conditions for issuance of a permit and the system was consistent with its review criteria, on July 14, 1999, the District approved the application and issued Permit Number 40- 117-51722-1 (1999 Permit). However, the Permit did not authorize the construction of a retaining wall on Lot 10 of the Applicant's property. There is no record of any third party challenging the issuance of the 1999 Permit. On February 19, 2002, the Applicant submitted "as built drawings" to the District, as required by Condition 10 of the 1999 Permit, to enable the District to verify that the work was completed in compliance with the approved plans and specifications. These as-built drawings did not reflect a retaining wall on Lot 10. Mr. Adley resides and owns property at 880 Lake Brantley Drive, Longwood, Florida, which is "next to" the Morro property. It is fair to say that a less-than-harmonious relationship exists between the two neighbors. Indeed, the exhibits reflect that Mr. Adley, the Applicant, and the Applicant's surveyor "have been involved in several causes of action between them over details of development on this property," and that over the years Mr. Adley has filed numerous complaints with the District regarding alleged violations by the Applicant while she performed work under the 1999 Permit. Mr. Adley is familiar with ERPs and the process for obtaining one, having had ownership interests in businesses that have obtained ERPs from the District, and having participated in the activity undertaken to obtain the permits and then implement the activities authorized by the permits. On May 16, 2003, Mr. Adley sent a letter to Kirby A. Green, III, Executive Director of the District, citing seven issues regarding Ms. Morro's proposed subdivision and asking that he be notified, in writing, "of any modifications to the permit, request for modifications of the permit, notice of violations, change to the approved plan, changes to the Covenants and Articles of Incorporation, any other changes to the proposed construction activities and any public notices that would effect [sic] [his] right to file for an administrative hearing." Mr. Adley also indicated that he had scheduled a meeting with William E. Carlie, Jr., District Compliance Manager, to be held on May 19, 2003, "to discuss these issues with him in person." On May 29, 2003, Mr. Adley sent a letter to Duane Ottenstroer, then Chairman of the District's Governing Board, regarding "the subdivision being constructed next to [his] home." In his letter, he voiced concerns about the recorded conservation easement on the Morro property being significantly different from the easement approved by the 1999 Permit. He also complained that the Applicant had submitted false information with an application submitted to the District in 1991. Finally, he enclosed a copy of the letter previously sent to Mr. Green. On June 6, 2003, Mr. Adley sent a second letter to Mr. Carlie advising that the Applicant was violating the conditions in the 1999 Permit in five respects. The letter confirmed that Mr. Adley would again meet with District staff concerning this matter on June 11, 2003. After conducting an investigation regarding Mr. Adley's allegations of violations by the Applicant, on September 12, 2003, K. Wilford Causseaux, an engineer in the Department of Water Resources, sent a letter to the Applicant's surveyor, Michael W. Solitro (who Mr. Adley says is the former Seminole County Surveyor who loaned the Applicant money in April 1998 to develop the land and then purchased a discounted lot from the Applicant in return for "development services"), affirming the staff's finding that the "construction on [Morro's] residential property on Brantley Drive has encroached on the 100-year flood plain in the rear yard of Lot 11." Also, the letter identified the remedial steps that must be undertaken to correct three "issues associated with [the] residential construction." Finally, the letter noted that Mr. Morro had agreed to remove fill on Lot 7 that violated the "limits of construction" and return the rear-lot grading to its pre-development condition. On September 29, 2003, Mr. Adley sent a third letter to Mr. Carlie confirming that the District had not allowed the Applicant to construct a retaining wall in lieu of a swale on Lot 11 and that if the Applicant wished to construct a wall, she must apply for a modification to the 1999 Permit. The letter also noted that Mr. Carlie agreed to notify Mr. Adley "in writing of any modification to the permit," including "minor" modifications. Finally, Mr. Adley requested the status of the incorrect conservation easement recorded on the property. Apparently in response to that letter, by email dated October 10, 2003, Mr. Carlie notified District counsel that Mr. Adley "has submitted a written request for actual notice of any proposed modification of this permit, will likely object, and potentially will challenge any agency action in this regard to a 120 hearing." On October 24, 2003, Mr. Carlie responded to Mr. Adley's letter of September 29, 2005, and advised him that the staff had determined that "portions of the fill placed for development of [Lot 11] are waterward of the limits of construction" and that this action "is a violation of the permit subject to enforcement action." The letter confirmed that the District understood Mr. Adley's "request to be noticed of any modifications of the reference permit" and promised that "actual notice (mailed notice to your residence) of any action this agency undertakes in this regard" would be given. Mr. Carlie further explained that some modifications to a permit could be issued by letter, while other modifications required an application, fee, and formal agency action. He indicated that the remedial steps outlined in his letter dated September 12, 2003, to Mr. Solitro "may qualify for a permit modification by letter under the provisions of section 40C-4.331 F.A.C." Finally, Mr. Carlie stated that the "District continues to understand your concern about this project and request to be noticed of any modifications of the reference permit. You will be provided actual notice (mailed notice to your residence) of any action this agency undertakes in this regard." Also on October 23, 2003, Mr. Carlie sent a second letter to Mr. Adley outlining in detail the results of the District's investigation of Mr. Adley's concerns expressed in various letters and at least two meetings with staff. On May 3, 2004, Frank J. Meeker, the District's Ombudsman, sent Mr. Adley a letter regarding a Verified Complaint dated April 1, 2004, that Mr. Adley had filed with the Executive Director. (The Verified Complaint was not included in the exhibits which accompanied the Stipulation, but a copy is attached to the Motion.) The letter responded to "six specific objections" Mr. Adley had raised concerning work on the Morro property. It also instructed the District staff to prepare, within thirty days, a letter of modification to the 1999 Permit which addressed the conservation easement, monuments, and 100- year flood elevation issues, together with a recommendation for approval or denial, and to submit the modified conservation easement to the Executive Director for approval or denial. Finally, the letter noted that Mr. Adley would receive "written notice of these actions" and an opportunity to object to these modifications. The record is unclear whether Mr. Meeker's instructions to staff resulted in a letter of modification to the 1999 Permit without further action by the Applicant, or whether it triggered an application by the Applicant to modify her 1999 Permit based upon the staff recommendations. More than likely, the latter occurred. On May 26, 2004, Mr. Meeker provided a follow-up letter to Mr. Adley in which he confirmed that Mr. Adley had been given a copy of the project plans dated June 17, 1999, used by Ms. Morro in securing the 1999 Permit. He further advised that until he received a staff survey "to determine the size of the dock [for purposes of determining if a permit was required] and the location of the red wall and retaining wall," no disposition of those issues could be made. Finally, he advised that no formal request for modification of the 1999 Permit had been filed, but if and when one was filed, he was "directing staff to supply you with a copy of such application." On July 6, 2004, Ms. Morro filed an application with the District seeking to modify her 1999 Permit. (The application noted that Mr. Morro would serve as Ms. Morro's authorized agent to secure the permit.) In the application, Ms. Morrow described the proposed activity as follows: "Alteration of permitted conservation easement[,] to remove easement from lot 11[,] and provide reserved rights for construction of 2 single family docks." This application was assigned number 10-117-51722-2. As noted above, the application did not include a provision for a retaining wall on Lot 10. However, sometime between the time the application was filed in July 2004 and January 21, 2005, the Applicant amended her application to add a request for a retaining wall. By email dated July 12, 2004, counsel for the District notified the reviewer of the application, Anthony Miller, that "I told Mr. Adley to call PDS [Permit Data Services]. Who should I contact there to see what notice was sent? Mr. Adley is going to challenge this so we need to make sure everything is done right." Mr. Miller emailed back the following response: "I have no idea. I assume it was noticed as usual through PDS to those listed to receive notices. Should we do anything more, like contacting Mr. Adley directly?" By letter dated July 15, 2004, Mr. Carlie forwarded a "complete copy" of Ms. Morro's application to Mr. Adley. The letter noted that Mr. Adley's receipt of the letter, attached materials, and notice of rights "shall serve [as] the notice you requested for the purposes of timeframes under Chapter 120, F.S." (A copy of Notice of Rights was enclosed; it set out in detail the process by which Mr. Adley could request a formal hearing.) The enclosed construction drawings did not indicate the inclusion of a retaining wall. During the staff's review process of the application, two Requests for Additional Information (RAI) were sent by the District to Mr. Morro on August 3, 2004, and January 21, 2005. Significantly, item 4 on page 2 of the RAI dated January 21, 2005, noted that "[t]he plans indicate that a retaining wall is proposed. Please provide detailed calculations, and a revised wall detail as necessary, to demonstrate that this portion of the surface water management system will function as intended." (Emphasis added) Copies of both RAIs were sent to Mr. Adley. On February 28, 2005, the Applicant filed a letter and attachments in response to the January 21, 2005 RAI, which included, among other things, plans and details prepared by a professional engineer for a retaining wall to be located landward of the 100-year floodplain, the limit of construction. The Stipulation and exhibits do not indicate whether these documents were ever provided to Mr. Adley at that time.1 However, on March 9, 2005, they were provided to his counsel for review. See Finding of Fact 21, infra. By letter dated January 21, 2005, Mr. Adley's former counsel (Timothy A. Smith, Esquire) made a public records request for inspection of "the district files relating to permit numbers 40-117-51722, 40-117-0567, and any other district permits or applications for such permits relating to the property owned by Frances and Michael Morro on Brantley Drive along the northern shore of Lake Brantley." (The letter indicates that Mr. Smith would meet District counsel in Palatka on January 25, 2005, to review this part of the records request.) The letter also requested that Mr. Smith be allowed to review all files of eleven District employees which related to the various iterations of the Morro project in 1990-1991, 1997-1998, and 1999 to present. The records pertaining to the second part of the request were apparently located in another office and were to be inspected at a later time. According to the Stipulation, in response to the public records request, on March 9, 2005, Mr. Smith reviewed all requested files in the District's main office in Palatka and the District's field office in Altamonte Springs. (As noted above, part of the records were inspected on January 25, 2005, in Palatka.) It is fair to infer that on March 9, 2005, Mr. Smith would have had the opportunity to review the Applicant's plans and details for a retaining wall filed with the District on February 28, 2005. By this time, then, Mr. Adley should have been on notice that the Applicant had modified her application and now sought to build a retaining wall. On March 30, 2005, the District, through its Altamonte Springs field office, approved Ms. Morro's application and issued Permit No. 40-117-51722-2 (2005 Permit). The 2005 Permit authorized the modification of the 1999 Permit "to include the construction of a retaining wall along the rear of Lots 6, 7, 8, 9, and 10 and the 'lot split' lot, and to amend the easement on Lots 9 and 10, to allow selective clearing and trimming of the conservation easement in accordance with a District approved landscape plan, and to exclude lands no longer under the applicant's control." On April 10, 2005, notice of the issuance of the 2005 Permit was published by Ms. Morro in the Sanford Herald, a newspaper of general circulation in Seminole County. See Fla. Admin. Code R. 40C-1.1007(1). The Notice provided that "[p]etitions for administrative hearing on the above application must be filed within twenty-one (21) days of publication of this notice or within twenty-eight (28) days of the District depositing notice of this intent in the mail for those person to whom the District made actual notice. Failure to file a petition within this time period shall constitute a waiver of any right(s) such person(s) may have to request an administrative determination (hearing) under sections 120.569 and 120.57, F.S. concerning the subject permit." Therefore, if notice was received by publication, petitions objecting to the issuance of a permit were due no later than May 1, 2005, or if written notice was given, petitions were due no later than May 8, 2005. The District did not send Mr. Adley written notice of its intent to issue the 2005 Permit. There is no indication in the Stipulation, exhibits, or Motion as to why notice was not sent, particularly since Mr. Adley had made numerous requests for written notice of any District action on the property, and he had been promised such notices by various District personnel since at least October 2003. On April 25, 2005, Ms. Morro began construction of the retaining wall authorized by the 2005 Permit and construction continued over the next thirty calendar days. It is fair to assume that the wall was completed on or about May 25, 2005. Also on April 25, 2005, or the day construction began, at Mr. Adley's direction, Mr. Smith (his former counsel) telephoned Mr. Carlie to inform him that construction activity on Lot 10 was taking place. Therefore, it is clear that on that date, Mr. Adley had observed that construction on the Morro property had begun. In response to Mr. Smith's telephone call, Mr. Carlie then requested that two District employees, Mr. Casseaux and David Eunice, investigate what was occurring on the Morro property. On the same date that Mr. Smith telephoned Mr. Carlie, Casseaux and Eunice inspected the Morro property and observed that a retaining wall authorized by the 2005 Permit was under construction. It is fair to infer from the stipulated facts that Mr. Carlie reported these findings to Mr. Smith within a short period of time. On an undisclosed date, but presumably within a day or so, Mr. Smith reported to Mr. Adley that he had spoken with Mr. Carlie and was told the construction was in conformance with "the Permit" but that Mr. Carlie did not specifically refer to either the 1999 Permit or the 2005 Permit as authorizing the work. The Stipulation and exhibits do not indicate whether Mr. Carlie advised counsel that the 2005 Permit had been approved. However, given the history of this dispute, it would be highly unusual for counsel not to make inquiry about the disposition of the application, or for Mr. Carlie not to provide this information during the course of their telephone conversations, particularly since Mr. Carlie was well aware of Mr. Adley's long-standing interest in the Morro project. Mr. Adley could not tell from his view of the property whether the exact location of the construction was lakeward of the limits of construction, which was the 100-year floodplain, and therefore could only rely on the District staff. Mr. Adley asserts that he did not learn of the 2005 Permit modification until July 25, 2005, through a conversation with an unidentified neighbor. Whether Mr. Adley (or his counsel) then called the District to verify the accuracy of the neighbor's information is not of record. (The initial Petition for Administrative Hearing simply alleges that "petitioner received notice of the District's action on July 25, 2005, through a conversation with a neighbor.") On August 15, 2005, or twenty-one days later, through counsel, Mr. Adley filed his initial Petition for Administrative Hearing with the District challenging the issuance of the 2005 Permit. (The Amended Petition was later filed on October 12, 2005, as a result of the striking of certain allegations in the first filing.) The District's Motion was then filed on November 16, 2005. (Action on the Motion has been delayed because of substitution of Petitioner's counsel, and delays by the parties in taking discovery and preparing the Stipulation.)
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.
The Issue Whether the North Fort Myers Homeowners Association, Inc.'s participation in the underlying proceeding entitles Florida Cities Water Company, Inc., to an award of attorney's fees and costs pursuant to Sections 120.57(1)(b)5 and 120.59(6), Florida Statutes.
Findings Of Fact By Consent Order 88-0384 between the Department of Environmental Regulation ("DER") and the Florida Cities Water Company, Inc., ("FCWC"), the FCWC agreed to complete certain modifications to its Waterway Estates wastewater treatment plant. The consent agreement established deadlines for said modifications. The FCWC was apparently unable to meet the deadlines for completion of modifications. By Consent Order 90-1747, executed in December, 1990, the DER extended the previously established deadlines and provided for issuance of a temporary operating permit by the DER to the FCWC. In December, 1990, the North Fort Myers Homeowners Association, Inc., ("Homeowners") filed a Petition for Administrative Hearing, challenging the consent agreement deadline extension and the provision related to issuance of a temporary operating permit by the DER to the FCWC. The case was referred to the Division of Administrative Hearings (DOAH Case No. 91-0235). In April, 1991, the DER and FCWC executed an Amended Consent Order #90- 1747, deleting the provisions related to issuance of a temporary operating permit. The DER thereafter moved to dismiss the Homeowners petition for hearing. In May, 1991, the Hearing Officer granted the motion to dismiss without prejudice and provided the Homeowners with an opportunity to file an amended petition. In June 1991, Homeowners filed an amended petition challenging the amended consent order. The DER and FCWC filed a joint motion to strike substantial portions of the amended petition. In July, 1991, the joint motion to strike was granted. In October, 1991, the DER filed a motion for summary recommended order of dismissal. On October 31, 1991, the Hearing Officer entered a Recommended Order of Dismissal. A Final Order was subsequently issued by the DER adopting the Recommended Order. During the pendency of DOAH Case No. 91-0235, Homeowners filed DOAH Case No. 91-6436, North Fort Myers Homeowners Association, Inc., v. State of Florida Department of Environmental Regulation, Florida Cities Water Company and Bradley Development Company. In this case, the Homeowners challenged the proposed award of a wastewater collection system permit to Bradley Development Company, the developer of the Barrett Park housing project. On October 1, 1991, FCWC moved to be dismissed as a party to Case No. 91-6436. The motion was granted on October 31, 1991. On December 12, 1991, based on Bradley Development Company's previously filed motion, the Hearing Officer entered a Recommended Order of Dismissal for failure to state a claim in Case No. 91-6436. A Final Order was issued by the DER adopting the Recommended Order and ordering the issuance of a collection system permit to Bradley. There is clear evidence that the Homeowners were opposed to the development of the Barrett Park housing project for a number of reasons, one of which was the fact that the project would tie into the apparently inadequate Waterway Estates wastewater treatment plant. The Homeowners desired to force the FCWC to complete the modifications required by relevant regulatory agencies prior to additional burdens being placed upon the treatment system. The evidence fails to establish that the participation of Homeowners in the foregoing proceedings was for an improper purpose.
The Issue Should Petitioner fine Respondent for using contaminated spoil from the previous septic system to cover a new drainfield being installed?
Findings Of Fact Petitioner issues permits for the construction, installation, modification, or repair of onsite sewage treatment systems in accordance with Section 381.0065, Florida Statutes. Those repairs are conducted by septic tank contractors as qualified and registered by Petitioner, with the expectation that the registrants shall be subject to ethical standards of practice in their business as established by Petitioner's rules. See Section 489.553(3), Florida Statutes. Respondent, whose address is Post Office Box 390073, Deltona, Florida 32738-0073, is registered by Petitioner as a septic tank contractor. Respondent does business as Alpha Environmental Services. Respondent contracted with a customer at 1019 Pioneer Drive, Deltona, Florida to replace an onsite sewage treatment and disposal system at that address. Petitioner issued a permit for the work related to the septic system. Leila Baruch, then of the Volusia County Florida Environmental Health Agency, certified by Petitioner in inspecting septic systems, inspected the site before the work was performed. On February 18, 1999, Ms. Baruch returned to the site for the purpose of examining the "easy way" drainfield which Respondent had installed over the natural soil at the bottom of the replacement system. The easy way drainfield is a system of pipes surrounded by pieces of styrofoam. At the time of this inspection, the cover that was to be placed over the top of the drainfield had not been arranged. Ms. Baruch observed the old contaminated material that had been excavated from the failed system (the spoil) located to the side of the new drainfield. The new drainfield had been left uncovered to allow the inspector to observe its placement depth. As was the custom, the Volusia County Environmental Health Agency approved the installation of the drainfield concerning its relative depth and a call was made from Ms. Baruch to Respondent's business indicating that it would be acceptable to cover the drainfield following the more recent inspection. By this contact, it was not intended to grant permission to cover the drainfield with the spoil that had been removed from the failed system. This call to Respondent's business was made on February 18, 1999. Later on February 18, 1999, Ms. Baruch spoke with Respondent. This contact was based upon remarks that had been made to Ms. Baruch by the customer homeowner during Ms. Baruch's inspection of the site earlier on that date. The customer's remarks were to the effect that she understood that Respondent intended to use the spoil removed from the original septic system to cover the new system. In her conversation with Respondent, Ms. Baruch reminded Respondent that Respondent could not use the spoil to cover the new drainfield. In addition, Ms. Baruch read from Rule 64E-6.015(6), Florida Administrative Code, concerning the prohibition against the use of spoil material in covering the new drainfield. Ms. Baruch returned to the job site two or three days later and observed that the spoil material from the failed septic system had been used to cover the new drainfield. Respondent was responsible for the placement of the spoil material as a cover for the new drainfield. This condition in which the spoil material had been placed over the new drainfield was also observed by Scott Chambers of the Volusia County Environmental Health Agency, who is registered as a sanitarian with the Florida Environmental Health Association and certified by Petitioner for inspection of onsite sewage and disposal systems. As a consequence of the findings made by the inspectors, Petitioner cited Respondent for violation of Rule 64E-6.015(6), Florida Administrative Code, and seeks to impose a fine in accordance with Rule 64E-6.022(1)(p), Florida Administrative Code. Respondent's contention in his testimony that the spoil material was not placed immediately on the new drainfield is rejected. A substantial portion, if not all, of the new drainfield was covered by the spoil removed from the failed drainfield.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds Respondent in violation of Rule 64E-6.015(6), Florida Administrative Code, and imposes a $500.00 fine in accordance with Rule 64E-6.022(1)(p), Florida Administrative Code. DONE AND ENTERED this 17th day of November, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael Jedware Post Office Box 390073 Deltona, Florida 32738-0073 Angela T. Hall, Agency Clerk Department of Health Bin A02 CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1999. 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
