The Issue The issue is whether Bayou Arbors, Inc. (Arbors), is entitled to a dredge and fill permit to construct docks in DeBary Bayou, Volusia County, Florida.
Findings Of Fact On January 8, 1986, DER received an application from Arboretum, a predecessor in interest of Arbors, to construct 12,758 square feet of docks in DeBary Bayou to provide ninety eight (98) boat slips, and to dredge 2,509 cubic yards of shoreline material from DeBary Bayou in areas within DER's jurisdiction under the proposed boat docks, and to place approximately 800 linear feet of concrete riprap along the shoreline after it was dredged. Following the initial application review process, which included on- site evaluations by several DER biologists, on April 14, 1986, DER prepared a Biological and Water Quality Assessment in which DER's staff recommended that the project be modified to delete the dredging, allowing the littoral zone to remain intact. On April 24, 1986, DER forwarded its Biological and Water Quality Assessment to Mr. Charles Gray, the property owner. In response to DER's recommendations, the Applicant submitted, and on April 30, 1986, DER received, a revised Application which deleted the originally-proposed shoreline dredging of 2,509 cubic yards of material as well as the placing of 800 linear feet of concrete riprap. This Application was submitted by Mr. Duy Dao, a Professional Engineer registered in the State of Florida. This Application proposed constructing approximately 17,000 square feet of docking facilities, providing ninety-eight boat slips, along approximately 2,580 linear feet of shoreline adjacent to twenty-four acres of uplands owned by the Applicant. The original and the revised drawings omitted a vertical scale from the cross-section drawings of the project. This omission gave the impression that the shoreline bank of DeBary Bayou was steeper than it actually is and that the water depths in DeBary Bayou adjacent to the north shoreline are deeper than they actually are. However, DER's biologists were on-site four times between February 25, 1986, and May 19, 1986. They observed the existing slope of the DeBary Bayou shoreline and the existing depths in DeBary Bayou, and the on-site observations negated the effect of the omission in the drawings. The omission in the drawings did not affect DER's evaluation of the project. On May 23, 1986, DER issued its Intent to Issue and Draft Permit No. 64-114399-4 to Arboretum. The Intent to Issue and the Draft Permit include the following Specific Conditions: Further construction on the Applicant's property along the DeBary Bayou shall be limited to uplands; Issuance of this permit does not infer the issuance of a permit for dredging in the Bayou at a future date, should an application for dredging be submitted; A deed restriction shall be placed on the condominium limiting boats moored at the facility to seventeen feet or less. A copy of the deed restriction shall be submitted to the Department within sixty days of issuance of this permit; There shall be no "wet" (on-board) repair of boats or motors at this facility; All boats moored at the dock shall be for the use of residents of the condominium only. Public use of the dock or rental or sale of mooring slips to non-residents of the condominium is prohibited; Manatee warning signs shall be placed at 100 foot intervals along the length of the dock(s); Turbidity shall be controlled during construction (by the use of siltation barriers) to prevent violations of Rule 17-3.061(2)(r), Florida Administrative Code. On June 29, 1987, Volusia County, DER and Arboretum entered into a "Joint Stipulation for Settlement" wherein Arboretum agreed not to construct more than twenty-six docks accommodating more than fifty-two boat slips along Arboretum's DeBary Bayou frontage of 2,580 feet. Furthermore, Arboretum agreed that it would modify the configuration and the design of the boat slips and the location of the boat docks; that it would post Slow Speed, No Wake zone signs and manatee education signs along DeBary Bayou from the 1-4 bridge west to a point 100 feet west of the western boundary of Arboretum's boat docks; and that as mitigation for the removal of vegetation from the littoral zone where the boat slips would be constructed, Arboretum would plant wetland hardwood trees. In addition to the Joint Stipulation for Settlement, on June 14, 1987, the property owners, Charles Gray and Sandra Gray, as part of their agreement with Volusia County, executed a "Declaration of Covenants, Conditions, and Restrictions" to which the Joint Stipulation for Settlement was attached as an exhibit. Said Declaration of Covenants, Conditions, and Restrictions, reiterated the Joint Stipulation's limitation of construction of boat docks in DeBary Bayou and further provided that said boat docks would not be constructed at the Arboretum project site in DeBary Bayou unless and until certain maintenance dredging set forth in Article II of the Declaration of Covenants, Conditions, and Restrictions occurred. Furthermore, Article III of said Declaration of Covenants, Conditions and Restrictions set forth certain prohibitions regarding constructing boat ramps on the Arboretum property and docking or storing boats along the DeBary Bayou shoreline except at the site of the proposed docks. In 1969, an artificial channel was excavated in DeBary Bayou adjacent to the north shoreline of DeBary Bayou by a dragline operating along the shoreline. At present, said channel has been partially filled by organic sediments originating in DeBary Bayou. There exists in Section 403.813(2)(f), Florida Statutes, an exemption from the DER's permitting requirements for the performance of maintenance dredging of existing man-made channels where the maintenance dredging complies with the statutory provisions and with the regulatory provisions found in Florida Administrative Code Rule 17-4.040(9)(d). The dragline excavation work performed in DeBary Bayou in 1969 created a structure which conforms to the definition of "channel" provided in Section 403.803(3), Florida Statutes. The maintenance dredging required by the Declaration of Covenants, Conditions, and Restrictions is to be performed by suction vacuuming of the silt sediment, from the 1969 channel and that dredged material is to be placed on Arbors' upland property at the project site. This maintenance dredging differs from the dredging originally proposed by the applicant in its application submitted in January 1986. The dredging originally proposed, which DER recommended against, was to be performed by back hoes and drag-lines which would have cut into the north shoreline of DeBary Bayou and would have affected the littoral zone along the project shoreline. The average water level in Lake Monroe and DeBary Bayou is approximately 1.8 feet above mean sea level. On April 18, 1987, transact studies in DeBary Bayou showed water levels at 3.2 feet above mean sea level and that water depths in DeBary Bayou to a hard sand/fragmented shell bottom ranged from approximately one foot along the south shoreline to approximately nine feet in deep areas in the former channel. The average depth of the channel is five feet below mean sea level. The water depth in DeBary Bayou ranges from approximately one to three feet. At times of average water levels, one to three feet of silt or unconsolidated sediment overburden covers the natural hard sand/shell bottom of DeBary Bayou. This silt and sediment overburden is composed of organic material and is easily disturbed. When it is disturbed, it raises levels of turbidity, although there was no evidence presented that the turbidity would violate state water quality standards. This silt and sediment overburden has been deposited at a faster rate than it would normally be deposited under natural conditions because of the Army Corps of Engineers' herbicidal spraying of floating plants in DeBary Bayou. As this silt and sediment overburden decomposes, it takes oxygen from the water. The presence of a strong odor of hydrogen sulfide indicates that the oxygen demand created by the sediment is greater than the available supply of oxygen at the sediment-water interface. This unconsolidated silt and sediment overburden does not appear to harbor either submerged vegetation or significant macroinvertebrate populations. The Shannon/Weaver diversity index of benthic macroinvertebrates at four locations in DeBary Bayou indicated lowest diversity at the project site and highest diversity at the 1-4 overpass, where a small patch of eel grass is growing. Removal of this silt and sediment overburden from the 1969 channel will enhance the system, enabling a hard bottom to be established, with a probability of subsequent establishment of a diversity of submerged macrophytes. Removal of the silt and sediment overburden from the 1969 channel will restore the natural hard sand/fragmented shell bottom in that area of DeBary Bayou. It is unlikely that boat traffic in the restored channel will cause turbidity which will violate state water quality standards. Removal of this silt and sediment overburden will improve water quality in DeBary Bayou by removing a source of oxygen demand. Removal of this silt and sediment overburden will create a better fish habitat by exposing some of the natural bottom of DeBary Bayou. Fish are unable to spawn in the unstable silt and sediment. Removal of this silt and sediment overburden will increase the depth of water in DeBary Bayou channel to between four to six feet. The maintenance dredging, required by the Declaration of Covenants, Conditions, and Restrictions, is limited by statute to the channel which was excavated in 1969. Therefore, a continuous channel will not be maintained from the project site eastward to Lake Monroe. At present, a sandbar exists at the confluence of DeBary Bayou and Lake Monroe. During low water, this sandbar restricts navigation into and out of DeBary Bayou to small craft. At present, boats can and do travel on DeBary Bayou for fishing and for other water-related recreational activities. However, due to water level fluctuations, boating on DeBary Bayou is easier during higher water periods. During lower water periods, navigation into and out of DeBary Bayou is still possible, but boaters must proceed using common sense and caution. The United States Fish and Wildlife Service (FWS) has no evidence that manatees presently use or have ever used DeBary Bayou. Adult manatees have an average girth of approximately three (3) feet. Without a continuous channel open to Lake Monroe, manatees are not likely to go up DeBary Bayou. Since the water at the sandbar at the mouth of DeBary Bayou at its confluence with Lake Monroe is generally less than three feet deep throughout the year, it is likely that these shallow waters will deter manatees from entering DeBary Bayou. DeBary Bayou is a spring-fed run from a spring a substantial distance upstream. The sheetflow of the spring water follows a circuitous route through marsh areas prior to reaching the area of this project. The proposed site is just west of the 1-4 overpass and Lake Monroe. The FWS's data show that the St. Johns River in Volusia County has an extremely low documented manatee mortality rate resulting from boat/barge collisions. Generally, boats greater than 23 feet long are more likely to kill manatees outright than smaller boats are. In marinas, manatees are very rarely killed by collisions with boats. Manatees and marinas are highly compatible. On August 1, 1986, the FWS issued a "no-jeopardy" opinion regarding Arbors' project. In this letter, the FWS stated that Arbors' project was not likely to jeopardize the continued existence of the manatee or to adversely modify the manatee's critical habitat. In the year since the FWS issued its no-jeopardy opinion, no manatee mortalities resulting from boat-barge collisions have been documented in the St. Johns River in Volusia County. The FWS recommended one boat slip per one hundred linear feet of waterfront, or twenty-six boat slips for the project. A single-family residence which would be entitled to one pier could berth an unlimited number of boats at that single pier. The FWS would have no control over the number of boats using that single pier. Arbors' project calls for twenty-six piers. The FWS's evaluation of Arbors' project is exactly the same as that agency's evaluation of any other marina project anywhere in areas designated as critical manatee habitat. All of the St. Johns River in Volusia County, Florida, is designated as critical manatee habitat. On July 16, 1986, after issuance of its Intent to Issue, DER received comments from the Florida Department of Natural Resources regarding Arbors' project and its potential impact on manatees. DER considered the possibility of boat/manatee collisions and had specifically considered this issue. DER did not agree with the broad and general concerns expressed by the Department of Natural Resources, and DER's rules have not adopted a specific requirement regarding a ratio between the length of a project's shoreline and the number of permittable boat slips. On July 16, 1986, the Department received a letter from the FWS concerning fisheries issues and navigation. This FWS letter was received after issuance of DER's Intent to Issue. Although DER considered these comments, DER disagreed with the FWS's recommendations regarding these issues. Water quality sampling and analysis showed that at present, there are no violations of DER's Class III water quality standard in DeBary Bayou, except for the dissolved oxygen criterion on some occasions during early-morning hours, and that result is to be expected. It is further not expected that there will be any water quality violations after the project is completed. If the work areas affected by driving piles to build floating docks and the work area around the maintenance dredging of the DeBary Bayou channel are contained within turbidity barriers, as required by general and specific conditions of the DER's proposed Draft Permit, it is anticipated that no violations of the Class III turbidity criterion will occur during construction of Arbors' project. By maintenance dredging the former DeBary Bayou channel, Arbors will remove the silt and sediment overburden from the channel and restore a deep (four to five feet below mean sea level) channel having a hard sand/fragmented shell bottom. Arbors' dock will be restricted to small boats whose operation in the deep channel will be unlikely to re-suspend silt and sediment and cause violations of the Class III turbidity criterion. Additionally, it is unlikely that any turbidity which is created by turbulence from boat propellers in a designated "No Wake, Slow Speed" zone will violate the Class III turbidity criterion. Although the entire project will be enhanced by the proposed maintenance dredging, such dredging is not a part of the permit application. From the evidence it appears that the project is permittable without the dredging. Although Arbors' project will result in the addition of some oils and greases associated with outboard motors to DeBary Bayou, the addition is not expected to result in violations of the Class III water quality standards. Additionally, release of heavy metals from anti-fouling paints should be minimal, and that release can be further controlled by specifically prohibiting over-water repair of boats and motors. Some addition of phosphorous to the waters of DeBary Bayou is anticipated due to use of phosphate-based detergents for washing boats. Additionally, minimal amounts of phosphorous may be added to DeBary Bayou from re-suspension of organic silts by turbulence from boat propellers. However, DER has no standards for phosphorous in fresh waters, and the minimal additional amounts of phosphorous expected from these sources are not anticipated to violate DER's general nutrient rule. Operation of boats at Arbors' proposed boat docks will cause no water quality problems which would not be caused by operation of boats at any other marina anywhere in Lake Monroe or anywhere else in the State of Florida. While WVC's expert, Robert Bullard, testified that Arbors' proposed boat docks could potentially cause violation of DER's Class III water quality criteria for turbidity, oils and greases, heavy metals and phosphorous, he was unable to testify that Arbors' project actually would cause such violation. His testimony in this regard was speculative and is not given great weight. No other WVC expert testified that Arbors' project was likely to cause violation of any criteria of DER's Class III water quality standards. It is anticipated that the shade cast by the boat docks will not have an adverse affect on water quality. Additionally, DeBary Bayou is a clear, spring-fed water body open to direct sunlight. The boat docks will cast shade which will enhance fish habitat. The proposed docks will not threaten any production of fish or invertebrate organisms. The mitigation plan proposed by the applicant and accepted by Volusia County and DER requires planting wetland hardwood tree species. These trees will certainly assist in stabilizing the bank of DeBary Bayou and minimizing erosion of the shoreline. Additionally, these trees will absorb nutrients from the water and will perpetuate the wooded wetland habitat along the DeBary Bayou shoreline. Arbors' own expert, Carla Palmer, also suggested the sprigging of eel grass in the dredged portion of DeBary Bayou. Such planting should be included as part of the mitigation plan. DER considered the cumulative impact of this docking facility. Four marinas are presently permitted on Lake Monroe and in the St. Johns River between Lake Monroe and Deland. DER considered these facilities' existence when it reviewed Arbors' application, and was satisfied that Arbors' boat dock facility would not have an adverse cumulative impact. There are no specific guidelines for a cumulative impact evaluation; accordingly, DER must apply its cumulative impact evaluation on a case-by-case basis. In the present case, there is no showing of adverse cumulative impacts from this project. Arbors' project will not adversely affect significant historical or archaeological resources recognized pursuant to applicable Florida or Federal Law. WVC was organized in March 1985, to oppose development in West Volusia County. WVC did not meet regularly and did not keep regular minutes of its meetings in the interim between organizing and filing the Petition in June 1986, for an administrative hearing on the Intent to Issue a permit for Arbors' project. When the Petition was filed, WVC did not have a membership roll, and was unsure how many members it had. Further, it is unclear as to how many members may have attended an "emergency" meeting to authorize filing said Petition. Approximately five months after said Petition was filed, WVC was incorporated and approximately nine months after the Petition was filed, WVC compiled a list of the people who were WVC members in June 1986. The emergency meeting WVC held in June 1986, to authorize filing said Petition was the first and the only such "emergency" meeting WVC ever held. The minutes of the emergency meeting have been lost. In June 1986, WVC may have had written rules authorizing emergency meetings and authorizing it to file suit, but its Chairman is unsure of this. Six of WVC's approximately 20 members may have lived within one mile of Arbors' project site in June 1986. Two of these members lived on waterfront property on Lake Monroe east of the 1-4 bridge. Some of these WVC members have never taken a boat west of 1-4 onto DeBary Bayou. WVC, as an organization, never sponsored outings or boat trips onto DeBary Bayou before filing the Petition. WVC's officers at the time of filing the Petition did not use DeBary Bayou for boating, fishing or swimming. No WVC members have ever seen manatees in DeBary Bayou. As with any other similar project on Lake Monroe, the boats which might be berthed at Arbors' project might add additional trash to the waters of Lake Monroe, might disturb the wildlife which WVC members might see on their property, and might cause wakes which might erode waterfront property. One of WVC's founders, who was an officer in June 1986, when WVC filed the Petition, stated that she would not be adversely affected in kind or degree any more than any other taxpayer in Florida. Friends timely intervened and its intervention was authorized by its membership at a regularly noticed meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Permit Number 64-114399-4, subject to those specific conditions set forth in paragraph 6 hereof and as modified by the stipulation entered into between Arboretum, Volusia County, and Department of Environmental Regulation, as more particularly described in paragraphs 7 and 8 hereof, and to include within the mitigation plan the sprigging of eel grass in areas of the dredged portion of DeBary Bayou. DONE AND ENTERED this 16th day of September 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of September 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2463 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner and Intervenor, West Volusia Conservancy, Inc., and Friends of the St. Johns, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(5); 8(24); 13(8); 46(57); and 47(57). 2. Proposed findings of fact 3, 4, 7, 10, 11, 12, 28, 29, 32, 34, 35, 36, 40, 42, 43, 44, and 45 are rejected as being subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 5, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27, 30, 31, 33, 39, and 41 are rejected as being unsupported by the competent, substantial evidence. 4. Proposed findings of fact 6, 9, 18, 19, 21, 22, 37, and 38 are rejected as irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Bayou Arbors, Inc. 1. Each of proposed findings of fact 1-56 are adopted in substance as modified in the Recommended Order, in Findings of Fact 1-56. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-28(12-27); 29-38(29-38); 39(38); and 40-48(39-47). Proposed finding of fact 12 is rejected as unnecessary. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard S. Jackson, Esquire 1145 West Rich Ave. Deland, Florida 32720 Dennis Bayer, Esquire P. O. Box 1505 Flagler Beach, Florida 32036 Philip H. Trees, Esquire P. O. Box 3068 Orlando, Florida 32802 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-8241
Findings Of Fact At all times pertinent to the issues herein, the Department was the state agency responsible for the regulation and issuance of dredge and fill permits for waters of the state. Hunt is a real property development company which owns the property in issue located contiguous to Sarasota Bay on the east and an artificial canal, dredged many years ago, located to the south. The property in issue includes submerged lands. Petitioners, Manasota and Manatee are environmental interest associations whose standing as parties hereto was stipulated to by Hunt and the Department. The Rosens are owners of a piece of land at the bayward end of the property located to the south of the artificial canal to the south of the property in issue. On September 2, 1988, Hunt applied to the Department for a dredge and fill permit to construct a dock system four feet wide and approximately one thousand feet in length along the northern edge of the artificial canal. Four access walkways would extend from the existing berm to the north out to the proposed dock. The request also sought permission to trim mangroves to facilitate construction of and provide access to the dock; to place 22 cubic yards of fill to stabilize an existing private road; and to relocate the existing access channel by dredging approximately 700 cubic yards of material. Petitioners do not object to the placement of the 22 cubic yards of fill. During the review process, the Department identified several deficiencies in the proposal which it required be modified before a permit could be issued. Hunt agreed to comply with all of the Department's modifying requirements. As a result, in its amended form the proposal calls for the dock to be reduced in size from 5,080 square feet to approximately 3,800 square feet; access points to be reduced from four to three; the installation of a flushing system consisting of a 30 inch culvert between the west end of the canal and the mangrove swamp to the north to enhance the water quality in the artificial canal; the submittal of historical information to demonstrate the existence of a historic canal which would support maintenance dredging; and the submittal of a mitigation proposal for the seagrasses which would be destroyed by the dredging of a new channel and for the mangroves to be trimmed to facilitate the dock construction. The revised application also sought permission to construct a previously approved (different permit) boardwalk, the mitigation for which has been completed and is apparently successful. This mitigation is located in the northern boundary of the Hunt property. The wetlands area adjacent to Hunt's north property line is a Class II, Outstanding Florida Water, (OFW). The property in issue is located contiguous to Sarasota Bay, a Class II water body designated as an OFW). This portion of the bay is not approved for shellfish harvesting. Sometime between 1951 and 1957, a channel was dredged from the Intracoastal Waterway running generally north and south in the bay, west across approximately 400 feet of bay bottom into what was then a mangrove forest on the east side of Longboat Key. The westernmost 1400 foot extension of that channel into the forest is the artificial canal in issue which receives untreated storm water runoff from Jungle Queen Way, the roadway to the south of the canal. The canal is a Class III water and is not an OFW. Approximately 1,225 feet of the southern shoreline of that canal is seawalled, with approximately 35% of the southern shoreline having mature mangrove trees along it. The entire northern shoreline is vegetated by mature mangrove trees. There is no seawall on the northern shore. The canal varies in depth from less than one foot at points to a maximum of 7 1/2 feet at other points. As a result of shoaling at the canal juncture with the bay, a sand spit has formed, and at low tide, water depth is minimal but allows the passage of shallow draft vessels if their motors are raised. The original channel has silted in to a great degree and has become vegetated by approximately 1,350 square feet of various shoal grasses. It is home to several species of water animal including crown conch, lightning whelk, venus sunray clams, jingle shell, banded tulip snail and common nassa snail as well as supporting a diverse and abundant group of bottom dwelling organisms. The grass beds are fish habitats as well as nursery and feeding grounds and fish species present include some important to commercial and sport fishing. Though the remains of the original channel are often indistinct and difficult to define, the Department, in its analysis of the application for permit, determined from a review of the documentary evidence presented , and it is also found here, that a historic channel exists as described, and is navigable at least fifty percent of the time. As such, the Department concluded that that channel qualified for the maintenance dredge exemption. The Department also concluded that a minimum amount of dredging would be required to clear the historic channel sufficiently to allow boats to utilize it during a full range of tidal conditions. The seagrass beds currently existing in the historic channel would be substantially damaged by a maintenance dredging in the area. Though the Department has no authority to require mitigation for this impact should Hunt exercised its right to maintenance dredge, as an alternative, Hunt proposed to dredge a hook shaped channel curving to the north around that portion of the historic channel which penetrates the grass beds. This alternative site is also located in Class II waters and an Outstanding Florida Water. Dredging at the alternative site would displace much the same amount of material, (approximately 700 cubic yards), and the resultant channel would be approximately the same length, width, and depth overall. The alternative site will cross an area which contains a shoal grass, Cuban Shoalweed, but utilization of this site will have a substantially lesser impact to the overall seagrass population than would dredging of the historic channel. If Hunt chooses to utilize the alternative route, it would have to comply with the Department's mitigation requirements which include transplanting the displaced grass from the alternative channel to another location. The conditions for the mitigation were developed by Department personnel in conjunction with the Department of Natural Resources whose personnel have agreed to participate in the transplantation. Hunt has agreed to undertake additional mitigation planting regardless of whether the transplant is successful. The Department has determined that Hunt's total mitigation program is sufficient to offset the adverse impacts of the proposed dredging. Any sea grasses in the area of the channel will be protected by the installation of signs indicating their location. Speed will be limited by the installation of "No Wake" zone signs, and, in addition, the natural dog-leg in the channel should minimize the impact to adjacent shorelines and reduce the potential for shoaling or erosion. The Department gathered water quality data for the area from 1988. This is consistent with the current statutory and rule criteria which permits the use of data existing in the year prior to application. To supplement this, however, the Department also required that Hunt submit water quality data for the actual project site as a part of the application process. From this input, existing ambient water quality standards were established. To insure that these existing ambient water quality standards within the OFW are maintained during construction, the Department has established a mixing zone and has indicated a requirement for the use of double turbidity curtains. Additional safeguards include limiting dredging to periods of low tide. The Department has concluded that these prosthetic activities will most likely result in maintenance of the water quality standards required for Class II and OFW. Any diminishment of those standards would be of limited duration. The Department was also satisfied that the project would not adversely impact in this area after construction was completed and the facility in operation. In support of this position, the Department relied on evidence tending to show that the design of a culvert proposed for incorporation into the project should significantly improve flushing of the water within the canal. Pollutant loading to the system should be reduced as a result of the biological filtration of the mangrove community which will absorb many of the excess nutrients currently in the canal water, and the removal of suspended solids. Expert evidence on the subject indicates that flushing time, currently estimated at 9 days, will be reduced to less than 4 days. Polluting activities, such as fueling facilities, live-aboards, and major repair and maintenance of boats in the canal will be prohibited. Any pollutants not removed by the natural filtration process described above will, therefore, remain in the canal water for less time than before. If vessels are docked in the canal, the minimal amount of resulting oil and grease pollution should not be sufficient to degrade water quality in either the canal or the bay to a point below acceptable established standards. In fact, such impact should be both non-detectable and non-measurable.. Hunt's plan calls for the removal of approximately 20 of the approximately 2,400 mangrove trees and the trimming of approximately 230 additional ones. Though this trimming, as a part of an exempt activity, is also exempt, and as a result, mitigation in not required, Hunt indicates its intention to plant 3 trees for every tree removed or trimmed, and this proposal, considered acceptable to the Department, has been incorporated as one of the permit conditions. The new mangrove area to be planted in mitigation should be fully established within 3 years of planting and will provide the same beneficial function as the replaced trees. Hunt's mitigation planting for the previously mentioned boardwalk project has been successful. To protect the manatee population as much as possible, the Department has also included conditions to the permit requiring the posting of manatee awareness signs along the canal and channel and the installation of a permanent informational display at the facility. These measures, though no guarantee of compliance by individual boaters, are currently the most effective safeguards short of prohibition of boat activity. The Department has concluded, and it is so found, that, considering the proposed project against the statutory criteria relating to dredge and fill permitting of this nature, the project, as conditioned, is in the public interest and would have no cumulative impact on the environment in the area. When the 36 special conditions attached to the permit by the Department are complied with, the effect on fish and wildlife resources in the area should be beneficial. As a result of the mitigation activities, both mangrove and seagrass populations should be increased and the shoreline enhanced. Water quality in the canal should be significantly improved above existing conditions, and the abandonment of the historic maintenance dredging operation, with its associated impacts, is clearly in the public interest. The incorporation of a permit condition precluding any subsequent maintenance dredging in the historic channel upon completion of the relocation is a safeguard clearly in the public interest. The evidence also indicates, supporting Departmental findings to that effect, that the project will not adversely affect the public health, safety, welfare or property of others; nor will it adversely affect the conservation of fish and wildlife, endangered, threatened or other. It will not adversely affect navigation or flow of water or cause harmful erosion or shoaling. It will not adversely affect fishing or recreational values or marine productivity in the area; nor will it endanger significant historical or archaeological resources which exist currently in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case granting a Dredge and Fill permit to Hunt Building Corporation consistent with the terms and conditions outlined in the Department's Intent to Issue, dated March 29, 1990, under file NO. 41-1542543. RECOMMENDED this 3rd day of January, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASES NO. 90-2350 & 90-2736 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR PETITIONERS, MANASOTA AND MANATEE: 1. Accepted. 2(a) - (e). Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. Rejected as contrary to the evidence. Accepted. - 17. Accepted and incorporated herein. Accepted. - 22. Not appropriate Findings of Fact. Should be in Conclusions of Law. 23. - 26. Rejected. 27. - 30. Accepted and incorporated herein. 31. - 33. Accepted. Accepted except for last clause. Not a Finding of Fact but a comment on the state of the evidence. Rejected. Not proven. Not a proper Finding of Fact and not supported by authority. Accepted and incorporated herein except that the canal is a Class III water body. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. Rejected. Accepted. Accepted but not determinative of any issue of fact or law. Ultimate Fact. Rejected. FOR RESPONDENT HUNT Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. 6. & 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. 13. Repetitive information. 14-1 & 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. FOR RESPONDENT DEPARTMENT: 1. - 5. Accepted and incorporated herein. 6. - 8. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. - 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. 23. & 24. Accepted. Accepted and incorporated herein. - 31. Accepted and incorporated herein. 32. Accepted and incorporated herein. COPIES FURNISHED: Martin Rosen 672 Jungle Queen Way Longboat Key, Florida 34228 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Patricia Petruff, Esquire John V. Quinlan, Esquire Dye & Scott, P.A. P.O. Box 9480 Bradenton, Florida 33506 Cecile I. Ross, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel DER 2600 Blair Stone Road Tallahassee, Florida 32399-2400
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.”
The Issue The issue is whether an Environmental Resource Permit (ERP) and a Letter of Consent to Use Sovereignty Submerged Lands (Letter of Consent) should be issued to Respondent, Palm Beach County (County), authorizing it to fill 7.97 acres of submerged lands for a restoration project in Lake Worth Lagoon.
Findings Of Fact Based upon all of the evidence, the following findings are determined: The Parties Trump is the owner association for a two-towered residential and commercial condominium building located at 525 South Flagler Drive in downtown West Palm Beach, upland and west of the project site in the Lagoon. Each tower rises thirty floors and together they have of two hundred twenty units. The first five floors are common areas including a lobby on the first floor, while a pool and patio are located on the fifth floor of the north tower. The property is separated from the Lagoon by Flagler Drive, a four-lane divided road with landscaping and sidewalks which runs adjacent to, and on the western side of, the Lagoon. There is no dispute that Trump has standing to initiate this action. Flagler owns, manages, and leases two multi-story office buildings located at 501 Flagler Drive on the upland real property directly west of the project location. Like the Trump property, the Flagler property is separated from the Lagoon by Flagler Drive. There is no dispute that Flagler has standing to participate in this matter. The County is a political subdivision of the State and is the applicant in this proceeding. The Department is the state agency with the authority under Part IV, Chapter 373, Florida Statutes,2 to issue to the County an ERP for the project, as well as authority as staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to authorize activities on sovereign submerged lands pursuant to Chapter 253, Florida Statutes, and Chapter 18-21. Background On October 29, 2007, the County submitted to the Department its Joint Application for an ERP and Letter of Consent to use sovereignty submerged lands in the Lagoon owned by the Board of Trustees. The application was assigned File No. 50- 0283929-00. After an extensive review process, including three requests for additional information, on August 12, 2008, the Department issued its Notice of Intent authorizing the County to fill 7.97 acres of submerged lands in the Lagoon with approximately 172,931 cubic yards of sand and rock material to create the following: (a) approximately 1.75 acres of red mangrove habitat including 1.52 acres of mangrove islands and 0.23 acres of red mangrove planters; (b) approximately 0.22 acres of cordgrass habitat; (c) approximately 0.90 acres of oyster habitat; (d) approximately 3.44 acres of submerged aquatic vegetation habitat; and (e) a 10-foot by 556-foot (5,560 square feet) public boardwalk with two 3-foot by 16-foot (48 square feet) educational kiosk areas and a 16-foot by 16-foot (256 square feet) observation deck for a total square footage of approximately 5,912 square feet. The Notice of Intent also included a number of general and specific conditions particular to this project. Trump (by timely Petition) and Flagler (by intervention) then challenged the Notice of Intent. They contend generally that the project unreasonably infringes upon or restricts their riparian rights and fails to meet the permitting and consent to use criteria set forth in Chapters 18-21 and 40E-4, as well as Chapter 373, Florida Statutes, and Section 253.141, Florida Statutes. Conflicting evidence on these issues was presented at the hearing. The conflicts have been resolved in favor of the County and the Department, who presented the more persuasive evidence. The Project The project area is a cove in the Lagoon, a Class III water body which extends within the County from North Palm Beach to Manalapan. The western side of the water body in the project area is lined with a vertical concrete seawall approximately 6.64 feet above the mean low water line. The waters immediately adjacent to the Trump and Flagler upland property are generally two to five feet deep along the seawall. To the east lies the island of Palm Beach, to the south is the Royal Park Bridge, which connects West Palm Beach and the Town of Palm Beach, while to the north is the Flagler Memorial drawbridge. The Lagoon is approximately 2,000 feet from shore to shore. The Intracoastal Waterway (ICW) runs roughly through the middle of the Lagoon in a north-south direction. Currently, there is an artificial dredge hole in the project area around four hundred feet from the western seawall. The dredge hole, which descends to approximately twenty feet at its deepest location, is filled with muck, which can be re- suspended by wave energy into the water, blocking the sunlight necessary for the support of biotic life. The muck covers the natural hard bottom, consumes oxygen, and presents an unsuitable environment for benthic organisms. The dredge hole is too deep to support seagrasses. The project calls for filling the dredge hole to intertidal elevations, i.e., between the high and low tide elevations, for mangroves and elevations suitable for seagrass. In all, approximately 173,000 cubic yards of fill will be placed in and around the hole to build up three separate islands within the project footprint, on which the County will plant 10,000 red mangroves, which naturally grow between fifteen and twenty-five feet in height. (The County estimates that eighty to ninety percent of the mangroves will survive and grow to a height of at least fifteen feet.) The top of the islands, not including mangroves, will be just below the mean high water mark. The County also proposes locating planters along the seawall and oyster reefs along the southern end of the project. The planters are designed to extend out approximately twenty feet from the seawall and will be placed on sovereign submerged lands. The last five feet will consist of limestone rock. Mangrove, spartina, and seagrass habitats will provide a biodiverse source of food and habitat for other species, and occurs naturally within the Lagoon but has been lost over time. Oyster habitat is proposed for additional bio-diversity and to provide a natural water filtration function. From the County's perspective, the restoration project would be incomplete without all the habitats proposed. The planters will be at an intertidal elevation, planted with red mangroves and spartina, and faced with rock to reduce wave energy in the area. The oyster reefs are rock structures designed to rise one foot above mean high water line for visibility to boaters. The project also includes a boardwalk and attached educational kiosks on the south side of the project to bring the public in contact with the habitats. The County will maintain the boardwalk, empty the trash daily, and open/close the gates at sunrise/sunset. The County proposes a minimum ten-foot buffer between seagrass beds and the fill area. The project is part of the County's Lagoon Management Plan, which outlines the County's restoration goals within the Lagoon. The County has performed numerous other restoration projects within the Lagoon to re-introduce mangrove and seagrass habitat, such as Snook Island, which consisted of filling a 100- acre dredge hole, installing mangrove islands, seagrass flats, and oyster reefs. The Snook Island project restored mangrove habitat and recruited fish and bird species, including endangered and threatened species. Snook Island has remained stable, with no sediment deposition or erosion. The County intends to fill the dredge hole with native lagoon bottom sediment. A clam-shell machine will deposit the sediment below the water line to reduce turbidity. Sediment will be placed around the edges of the dredge hole, reducing the velocity of the fill as it settles to the bottom and encapsulates the muck, as required by Draft Permit Special Condition No. 19. The County will use turbidity curtains, monitor conditions hourly, and stop work if turbidity levels rise beyond acceptable standards. These precautions are included in Draft Permit Conditions 12, 13, and 14. The County will use construction barges with a four- foot draft to avoid propeller dredge or rutting and will place buoys along the project boundary to guide the construction barges, precautions integrated into the Draft Permit conditions. The County's vendor contracts require maintenance of construction equipment to prevent leakage. A similar condition is found in the Draft Permit. Both the intertidal and seagrass flats elevations at the top of the islands will be built at a 4:1 slope; elevations subject to wind and wave energy will be reinforced with a rock revetment constructed of filter cloth and rock boulders. Seagrass elevations will have no reinforcing rock because they are deep enough to avoid significant currents. Proposed drawings were signed and sealed by a professional engineer. The ERP Criteria To secure regulatory approval for an ERP, an applicant must satisfy the conditions in current Rules 40E-4.301 and 40E- 4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality. The latter rule requires that a public interest balancing test be made, and that cumulative impacts, if any, be considered. Also, the BOR, which implements the rule criteria, must be taken into account. a. Rule 40E-4.301 21. Paragraphs (1)(a), (1)(b), (1)(c), (1)(g), (1)(h), and (1)(k) and subsections (2) and (3) of the rule do not apply. Although Trump and Flagler have focused primarily on paragraphs (1)(d), (f), and (i) in their joint Proposed Recommended Order, all remaining criteria will be addressed. Paragraph (1)(d) requires that an applicant give reasonable assurance that the proposed activity "will not adversely affect the value of the functions provided to fish and wildlife and listed species by wetlands and other surface waters." Based on the project design, the filling of the dredge hole and capping of muck, the restoration of seagrass habitat, and the creation of mangrove habitat, the project will have no adverse impacts but rather will be beneficial to the value of functions for fish and wildlife. Paragraph (1)(e) requires that an applicant give reasonable assurance that the proposed activity will not adversely affect the quality of receiving waters. The County will be required to manage turbidity that may be generated from the project. In part, the turbidity will be contained by the proposed construction method for filling the dredge hole. As noted earlier, the native sand will be deposited using a clamshell-type arm to dump the sand under the water around the periphery of the edge of the downward slope of the dredge hole. This will continue around the periphery of the hole, building up a lip and letting it slide down towards the bottom of the hole, squeezing the muck into the center of the hole and beginning to encapsulate it. Once there are several feet of native sand over the muck to encapsulate it, the County will resume the filling at the target rate. Subsection 4.2.4.1 of the BOR requires that the County address stabilizing newly created slopes of surfaces. To satisfy this requirement, the County will place the fill at a 4:1 slope. The outer edge of the mangrove islands slope back to a 4:1 slope and use rock rip-rap to stabilize that slope. Also, filter cloth, bedding stones, and boulders will be used. Because water currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de-stabilize. There will be turbidity curtains around the project area. Those are floating tops and weighted bottoms that reach to the bottom and are intended to contain any turbidity that may be generated by the project. Specific Conditions 12, 13, and 14 require extensive monitoring of turbidity. The County proposes to use a barge with a draft no greater than four feet. This aspect of the project will require a pre-construction meeting and extensive monitoring throughout the project. As a part of the application review, the County performed a hydrographic analysis which was coordinated with and reviewed by the Department staff. There are no expected debris or siltation concerns as a result of the project. The more persuasive evidence supports a finding that over the long term, the project is expected to have a beneficial effect on water quality. By filling the dredge hole and providing habitat for seagrass, mangroves, and oysters, the project will provide net improvement to water quality. The requirements of the rule have been met. Paragraph (1)(f) requires that the applicant provide reasonable assurance that the activities will not "cause secondary impacts to the water resources." More detailed criteria for consideration are found in BOR Subsection 4.2.7. The County has provided reasonable assurance that through best management practices, it will control turbidity. Also, Specific Conditions in the proposed permit require that water quality monitoring be conducted throughout the process. There will be no impacts to upland habitat for aquatic or wetland dependent species. This is because a vertical seawall is located upland of the project site, and no surrounding uplands are available for nesting or denning by aquatic or wetland dependent listed species. A secondary impact evaluation also includes an evaluation of any related activities that might impact historical and archaeological resources. There are, however, no historical or archaeological resources in the area. If resources are uncovered during the project, Draft Permit conditions require notification to the Department of State. Finally, there are no anticipated future activities or future phases on the project to be considered. Rule 40E-4.301(1)(i) requires that the applicant provide reasonable assurance that the project "will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Trump and Flagler contend that the project cannot be constructed and successfully operated as proposed. Trump's expert witness, Joseph Pike, testified that there were ambiguities and conflicts within the plan drawings that would require changes upon build-out; either fill will be placed outside of the fill area, or the mangrove islands will be smaller than depicted. Mr. Pike also voiced concerns that a 4:1 slope would not be stable and might cause fill to migrate to existing seagrass beds. He further stated that the Snook Island project included 18:1 slopes, and he thought providing rock revetment only at the intertidal zone was insufficient. Mr. Pike acknowledged that he had used 4:1 slopes in lake projects; however, in a tidal project involving fill placement, he opined that a 4:1 slope was likely to "relax." He did not do calculations about what slope might hold and admitted that prior experience using similar slopes with the same type of fill might change his opinion. Finally, Mr. Pike noted that a portion of the dredge hole would not be filled and concluded that the project would not fully cap the muck. Trump's biologist, James Goldasitch, speculated that the water flow changes would cause sediment deposition on existing seagrass beds, possibly causing the seagrasses to die. He admitted, however, that the County's plans called for the creation of 3.44 acres of seagrass and did not know the amount of habitat created compared to the amount of habitat he anticipated being affected. The Department's engineer, Jack Wu, approved the hydrologic aspects of the County's plan, but Mr. Goldasitch speculated that Mr. Wu was more focused on shoreline stability than on depositional forces. Mr. Goldasitch never actually spoke to Mr. Wu regarding his analysis, and Mr. Wu's memorandum refers not only to engineering and construction aspects of the proposal but also to the criteria in Rules 40E-4.301 and 40E-4.302. Mr. Goldasitch believed the County's boardwalk will impact the seagrass beds by blocking sunlight, but acknowledged that the Draft Permit required the boardwalk to be elevated and portions to be grated. Both the Florida Fish and Wildlife Conservation Commission and the Department's expert witness concluded that the permit conditions for constructing the boardwalk, which are common, eliminated impacts to seagrass. Mr. Goldasitch further opined that the 4:1 slope might slump, but then deferred to the opinion of a registered engineer on this type of engineering matter. The County presented its professional engineer, Clint Thomas, who worked on the project design. Mr. Thomas explained that permit drawings are not intended to be construction-level in detail, but are merely intended to provide sufficient detail for the regulator to understand the project within the 8 and 1/2 by 11-inch paper format required by the Department. The County will ultimately prepare permit-level, construction-level, and as-built drawings. Permit conditions also require a pre-construction meeting. No fill will be placed outside the area designated for fill, and the 4:1 slope will start at the outer boundary of the designated fill area until it reaches the specified elevation. Mr. Thomas acknowledged that the plan view drawings depict a mangrove island too close to the western project boundary, but stated that the mangrove island would simply be placed farther to the east during the construction-level plan process. Islands will become smaller islands, but will not be relocated, and in no event will the fill area expand; the fill boundary is a very strict limit. There is no evidence that the County has ever violated a fill boundary established in a permit. The 4:1 slope was based on the type of fill proposed for the project and to maximize project features. Mr. Thomas has successfully used 4:1 slopes with non-compacted fill in the Lagoon, both at Snook Island in its as-built state and at other projects. The islands at Snook Island are similar to those proposed. Other areas in the Lagoon have held slopes steeper than 4:1 with the same type of fill. Therefore, Mr. Thomas opined the 4:1 slope would hold. In rendering this opinion, he explained that the currents in the project vicinity are only around 1.2 knots. Because currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de- stabilize. Mr. Thomas addressed the contention that a change in water flow velocity would cause sediment to deposit on existing seagrass. The oyster reefs are rubble structures that allow the water to flow through. If any sediment flows through, it will deposit on the north side of the oyster bar, rather than on the seagrass beds. Given these considerations, the evidence supports a finding that the project will function as proposed. Finally, paragraph (1)(j) requires that the County provide reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit. The evidence supports a finding that the County has complied with this requirement. In summary, the evidence supports a finding that the County has given reasonable assurance that the project satisfies the criteria in Rule 40E-4.301. b. Rule 40E-4.302 In addition to the conditions of Rule 40E-4.301, the County must provide reasonable assurance that the construction of the proposed project will not be contrary to the public interest. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7. Rule 40E-4.302(1)(a)1. requires that the Department consider whether the activity will adversely affect the public health, safety, or welfare or the property of others. Trump first contends that the project will increase the mosquito population. The evidence shows, however, that the mangroves will be placed below the mean high water mark and therefore no increase in mosquitoes should occur. Also, the design of the project, coupled with the local mosquito control program, should ensure that there will be no increase in mosquito population or a risk to the public health. Trump also raised the issue of an increase in trash along the boardwalk area or in the newly-created mangrove islands. The County presented evidence that there will be appropriate trash receptacles in the area as well as regular garbage collection. In terms of safety, navigation markers are included as a part of the project for safe boating by the public. The County consulted with the United States Coast Guard regarding navigation issues. Further, the project will not cause flooding on the property of others or cause an environmental impact on other property. Although a number of Trump residents expressed sincere and well-intended concerns about the project impacting the value of their condominiums (mainly due to a loss of view), BOR Subsection 4.2.3.1(d) provides that the "[Department] will not consider impacts to property values or taxes." Rule 40E-4.302(1)(a)2. requires that the Department consider whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Subparagraph 4. of the same rule requires that the Department consider whether the activity will adversely affect the fishing or recreational value or marine productivity in the vicinity of the activity. The proposed activity is a restoration project for the creation of seagrass and mangrove habitats. As such, it is beneficial to the conservation of fish and wildlife and is expected to increase the biotic life in the project area. Besides providing additional habitat for fish and wildlife, the project will add to the marine productivity in the area. In terms of recreational opportunities, the project is expected to be a destination for boating, kayaking, fishing, and birdwatching. The Florida Fish and Wildlife Conservation Commission has also recommended issuance of the permit with the standard manatee condition for in-water work. This recommendation has been incorporated as Specific Conditions 23 through 25 Rule 40E-4.301(1)(a)3. requires that the Department consider whether the activity will adversely affect navigation and the flow of water, or cause harmful erosion or shoaling. The nearest navigation channel is the ICW. The project is located outside of that area. Subsection 4.2.3.3 of the BOR provides additional guidance on the evaluation of impacts of this nature. Paragraph (a) of that subsection provides that, in evaluating a proposed activity, the Department "will consider the current navigational uses of the surface waters and will not speculate on uses which may occur in the future." Trump residents indicated that in the project area persons are now picked up off the seawall and then travel to the ICW. Access to the seawall is possible from the east and south, although existing shoals currently limit the approach from the south. Large boats do not use the area because of shoals. In general, "[t]here's not a whole lot of boating activity in the project area." The parties agree that if the project is constructed as designed, boats will not be able to travel directly out from the seawall in front on Trump or Flagler to the ICW, as they now do. However, navigation in the area will still be available, although not as convenient as before. As to water flow, shoaling, and erosion, the more persuasive evidence supports a finding that the 4:1 slope will be stable and will not cause fill to migrate outside of the boundaries of the project into existing seagrass beds. The tidal flow will continue through the area after construction without sediment deposition into existing seagrass beds or destabilizing the 4:1 slope. There will be no shoaling or erosion. Finally, the project will be permanent and there are no significant historical and archaeological resources in the area. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6. In summary, the evidence supports a finding that the County's proposal is neutral as to whether the activity will adversely affect the public health, safety, welfare, or the property of others; that the County's proposal is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the County's proposal is positive with respect to the conservation of fish and wildlife, recreational values and marine productivity, permanency, and current values and functions. When these factors are weighed and balanced, the project is not contrary to the public interest and qualifies for an ERP. D. Proprietary Authorization Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. In making its review, the Department reviews the rule in its entirety; it also looks at the forms of authorization (e.g., letters of consent, leases, deeds, or easement) to determine the most appropriate form of authorization for an activity. Trump and Flagler have raised contentions regarding the proprietary authorization, including whether the application should have been treated as one of heightened public concern, whether the proper form of authorization has been used, and whether their riparian rights are unreasonably infringed upon by the project. Heightened Public Concern Rule 18-21.0051 provides for the delegation of review and decision-making authority to the Department for the use of sovereign submerged lands, with the following exception found in subsection (4) of the rule: (4) The delegations set forth in subsection (2) are not applicable to a specific application for a request to use sovereign submerged lands under Chapter 253 or 258, F.S., where one or more members of the Board, the Department, or the appropriate water management district determines that such application is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location. On March 13, 2008, the Department's West Palm Beach District Office sent a "heightened public concern [HPC]) memo" to the Department's review panel in Tallahassee,3 seeking guidance as to whether the project required review by the Board of Trustees under the above-cited rule. The Department emailed the County on March 14, 2008, stating that the project would be elevated to the Board of Trustees for review to approve the entire Lagoon Management Plan. The County asked for reconsideration, concerned over timing restraints on grant opportunities. This concern is based on the fact that the County will receive grant monies to assist in the construction of the project and must have regulatory approval by a date certain in order to secure those funds. A second HPC memorandum was sent to the review panel on April 22, 2008. Part of the interim decision to elevate the application to the Board of Trustees concerned the boardwalk connection to the City of West Palm Beach's existing seawall. The City of West Palm Beach is the upland owner of the seawall, sidewalk, and Flagler Drive. On June 9, 2008, the Mayor of West Palm Beach sent a letter to the Department stating that the City "fully supports" the proposed activity, and that the County and the City collaborated on the design of the project, held joint public meetings, and produced a project video. See Department Exhibit Trump and Flagler argue that under the City Charter, the Mayor cannot unilaterally bind the local government to allow structures to be built on City property. Assuming this is true, one of the remaining conditions for the County to initiate the project is to obtain a "letter of concurrence" from the City of West Palm Beach authorizing the County to connect the boardwalk to the seawall. Therefore, the review panel ultimately concluded that the application could be reviewed at the staff level and did not require Board of Trustees review. The evidence at hearing did not establish that the application was one of heightened public concern, given the limited size of the project, its location, and the net benefit to both environmental and natural resources. Compare Brown, et al. v. South Fla. Water Mgmt. Dist., et al., DOAH Case No. 04-0476, 2004 Fla. ENV LEXIS 112 (DOAH Aug. 2, 2004, SFWMD Sept. 8, 2004). Therefore, review by the Board of Trustees was not required. Form of Authorization Trump and Flagler contend that an easement is required by the County, rather than a consent of use. The standard for obtaining an easement is more stringent than a consent of use, and an easement offers a greater interest in sovereign lands. Rule 18-21.005(1) provides the general policy direction for determining the appropriate form of authorization and reads in relevant part as follows: It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged lands necessary for the activity. For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate. This rule requires that the Department should apply the lowest and least restrictive form of authorization. Trump and Flagler argue that the County's project constitutes a spoil disposal site under Rule 18-21.005(1)(f)8., a public water management project other than public channels under Rule 18-21.005(1)(f)10., or a management activity which includes "permanent preemption by structures or exclusion of the general public," as described in Rule 18-21.005(1)(f)11. Each of these activities requires an easement rather than a letter of consent in order to use sovereign submerged lands. The evidence shows that the County's project is not a spoil disposal site. Also, it is not primarily a public water management project as there is no evidence that the project relates in any way to flood control, water storage or supply, or conservation of water. Likewise, there is no evidence indicating that the activities will prevent access by the public by exclusion. Even though many of the features (structures) of the project will be permanent, the project is intended to generally increase public access to water resources, as well as the islands, boardwalk, and kiosks. Besides raising the issue of heightened public concern, the second HPC Memorandum dated April 22, 2008, sought guidance as to whether the project required a consent of use or an easement. The review panel concluded that the project qualified for a consent of use, rather than an easement under Rule 18- 21.005(1)(f), because the County's project most closely fits the definition in Rule 18-21.005(1)(c)15. That rule provides that if the proposed activity involves "[h]abitat restoration, enhancement, or permitted mitigation activities without permanent preemption by structures or exclusion of the general public," an applicant may use sovereign submerged lands with a consent of use. Because the County's project increases public access not only to water resources in the Lagoon but also to the permanent structures being built, it more closely falls within the type of activity described in Rule 18-21.005(1)(c)15. Notably, all of the County's restoration projects in the Lagoon have been previously authorized through a consent of use. Finally, the review panel concluded that the project did not fall under Rule 18-21.005(1)(f)16., which requires an easement for environmental management activities that include "permanent preemption by structures or exclusion of the general public" because of the rule's focus on the exclusion of the general public. Riparian Rights The parties have stipulated, for the purpose of this proceeding, that Trump and Flagler have riparian rights, including view, ingress/egress, fishing, boating, swimming, and the qualified right to apply for a dock, that should be considered. Trump and Flagler contend that their right to wharf out (build a dock) from the seawall, ingress/egress from navigable water, and view will be unreasonably infringed upon if the application is approved. See Fla. Admin. Code R. 18- 21.004(3)(a)("[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands"). For the reasons given below, the greater weight of evidence establishes that none of these riparian rights will be unreasonably infringed upon. Currently, while access is possible from the east and the southern approaches, existing shoals limit the southern approach. The boardwalk will further limit boat traffic on the south end, and boats would not be able to cross over the islands. Boat traffic will still be able to access the cove from the north end, and the restoration project will create a boating destination. Trump witness Pike opined that the County's project would negatively affect navigation between the upland parcels and the ICW because the project would eliminate the eastern and southern approaches and leave only the northern approach, which could not be used by both parcels fully. The County's expert, Dr. Nicholas De Gennarro, testified that, during his site visits, he observed boat traffic waiting for the drawbridges using the east side of the ICW away from the project site. Dr. De Gennarro noted that several existing structures are closer to the ICW than the proposed County project, which lies 220 feet away from the ICW. Thus, Dr. De Gennarro concluded that the project would not impact navigation in the ICW. With respect to ingress/egress, Dr. De Gennarro acknowledged that access to the Trump and Flagler properties would not be available from the southern and eastern approaches, but concluded that the restriction represented nothing more than an inconvenience. He noted that the southern approach was already a less preferable approach due to existing shoals. At present, there is very little boating in the area outside of special events. While the project would limit the use of boats directly over the one and one-half acres of mangrove islands, the project will provide a boating destination. Further, both the City docks to the north of the site and the temporary docks in front of Flagler's property –- both used for special events –- will still be available under the County's proposal. There is no swimming and very little fishing in the area because of the degraded conditions caused by the dredge hole. Accordingly, while the project will fill a small portion of water currently available, but not used, for swimming, it will greatly enhance swimming by providing a destination for swimmers. The mangroves planned for the intertidal islands are likely to reach a height of fifteen feet and will be interspersed with spartina. The seawall is located six feet above the water line, making a person's view at eye level already several feet above the water. Trump and Flagler's buildings are built at even higher elevations. Therefore, the mangroves will not substantially obscure the view from either property, even at street level where the view is already partially obscured by existing landscaping. The Lagoon is approximately 2,000 feet across. From north to south around one hundred acres of water can now be viewed from the vicinity. Since the intertidal islands only comprise one and one-half acres, the overall impact to the view of the water body is very small. The mangroves in the planters extending out from the seawall will be trimmed to one foot above the seawall; the County requested the condition and committed at hearing to trimming the mangroves if the City of West Palm Beach does not. County photographs show Trump and Flagler's present view of the water body and demonstrate the comparatively small percentage of the view affected by the one and one-half acres of mangrove islands. See County Exhibits 133a-e and 134a-d. The photographs also demonstrated that sizeable palm trees are already part of the existing view. Additionally, the County photographs depicted the small impact that trimmed mangrove planters would have on the view. The area obstructed by the mangrove islands and seagrass is negligible compared to the expanse of the existing view. Trump and Flagler offered no evidence to contradict the County's analysis regarding the scope of the impact on the view. Trump residents Dale McNulty, Dean Goodman, and Charles Lemoine testified that they personally would not want to view mangrove islands regardless of tree size or the size of the islands. Understandably, after years of unfettered view and an open expanse of water, they are opposed to any type of project in this area of the Lagoon. However, Mr. Goodman acknowledged that he would still be able to see the Town of Palm Beach from his unit. The evidence supports a finding that while the project will undoubtedly alter the view of the water from both Trump and Flagler's property, the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights. Mr. Lemoine stated that he had a forty-foot trawler that he would like to dock in front of his property. He currently docks the boat at a marina twenty miles north of the Trump property. He prefers to bring his boat in stern first and enter slips oriented north to south. He indicated that he can drive his boat in five feet of water, but prefers six feet; however, he also testified that he has brought his boat directly up to the bulkhead in front of Trump, which is approximately a two- or three-foot depth. The witness has seen sailboats and other boats moored near the bulkhead over extended timeframes. Mr. Lemoine speculated that Trump might seek a dock, either alone or in conjunction with Flagler, but admitted that Trump has never applied for a dock permit. He stated that Trump has had discussions about the possibility of a dock over the last fifteen years and speculated that a dock plan might include anything from the purchase/lease of the City docks to a lease of Trump's riparian interests to a third party. By contrast, Trump resident and former Board member Dean Goodman indicated "the idea was to provide an amenity [for] a number of people that are in the building that are boaters." Mr. Goodman stated that he hoped to be able to have a boat in front of the building someday, but did not own a boat in Florida. Association president Dale McNulty explained that, while informal discussions have occurred regarding the possibility of a dock, no official action had been taken. Mr. McNulty characterized the dock plans as being "sort of in the land of wishful thinking." Mr. Pike, while acknowledging that both parcels would still be able to design a dock for their property, opined that the County's project unreasonably limited the size and configuration of the docks possible. Mr. Pike initially admitted that a safe navigation depth for a forty-foot boat, or even a sailboat, was four feet below mean low water (MLW), but stated that he would prefer to design a dock with an additional two-to- three feet of water below the four-foot draft to avoid propeller damage. However, Mr. Pike conceded that he has designed docks for boats in four feet below MLW and ultimately based his own calculations on an assumption of a four-foot draft and one-foot cushion, or five feet below MLW. Mr. Pike also opined that a north-south alignment for boat slips was a preferred slip orientation. Given the bathymetry in the area and the documented seagrasses, Mr. Pike estimated that twenty slips could be designed for the Flagler property, rather than the thirty-four slips provided for by the County Manatee Protection Plan. He thought that a design might accommodate thirty to thirty-two slips for Trump, rather than the forty-slips provided for by the County Manatee Protection Plan. Based on the limitation on number of slips and configurations, the witness opined that the County's project would unreasonably interfere with Trump and Flagler's ability to design a dock. He admitted, though, that the numbers derived from the County Manatee Protection Plan represent a maximum number, rather than a specified or guaranteed number. He further admitted that other agency limitations may further restrict Trump and Flagler's right to dockage. Without a permit application or plan from Trump or Flagler, County witness Robbins concluded that the most reasonable assumption was an owner-oriented facility designed for the building owners/tenants. The County introduced a graphic illustrating areas available for dock construction, with sufficient depth for 35- to 40-foot boats (-6 feet NGVD) and with no seagrasses present. Rule 18-21.004(4)(b)2. limits ownership-oriented facilities generally to forty square feet for each foot of riparian shoreline, giving Trump the ability to apply for a dock that preempted a maximum of 16,000 square feet, and Flagler a maximum of 14,000 square feet. Under the County Manatee Protection Plan, Trump would be limited to forty slips; Flagler would have the potential for thirty-four slips. Mr. Robbins testified that, in his experience, a minus five MLW is a common depth for docks, but that elevations as shallow as a minus four MLW could be used depending on the type of boats and the dock configuration. Mr. Robbins explained that, even with the County's project in place and factoring in the other limitations, Trump would still have 61,842 square feet of potential space within which to design a dock. Flagler would still have 41,481 square feet of potential space, even considering the need to retain a path for ingress and egress from the Trump parcel. A more detailed analysis of the seagrasses might make more square footage available for dock construction. Dr. De Gennarro also evaluated whether a dock could be designed to serve Trump and Flagler's parcels. The vessel owner statistics for the County indicate that at least ninety-five percent of the boats registered in the County are thirty-nine feet or less; consequently, Dr. De Gennarro focused on boats forty feet or less. Dr. De Gennarro considered the water depths and the existence of subaquatic vegetations and concluded that the graphic presented by Mr. Robbins was conservative, but still provided adequate space for both Trump and Flagler to construct appropriate dockage, allowing thirty-eight boats for Trump and thirty-two for Flagler of varying size. However, Dr. De Gennarro concluded that a dock design of forty slips for each would also be possible, depending on the size of the boats. Dr. De Gennarro proposed that a single, double-loaded parallel dock design would be a good layout for a potential docking facility in front of both Trump and Flagler's property that would be protected by the County's proposed islands, provide sufficient water depths, and provide an attractive facility. He specified, however, that the single, double-loaded parallel dock design was simply one of "many" that might work in the given space. Dr. De Gennarro explained that the existing dredge hole would not be a preferable location for either a mooring field or a dock because the deep muck-bottom would drive up the costs for either type of facility. Accordingly, Dr. De Gennarro concluded that the County's project would not foreclose or even substantially restrict the ability to locate a dock in front of Trump and Flagler’s property. The more persuasive evidence supports a finding that neither the right of ingress/egress nor the right to boat in the vicinity is unreasonably infringed upon by the County's project. Trump and Flagler will continue to have reasonable access to navigation. The northerly approach preserved by the County's project will allow for boat traffic to safely navigate in the area. While the southerly and easterly approaches are eliminated by the County's plan, the evidence indicates that the two approaches were less preferable than the northerly approach because of the presence of shoals. Based on the above considerations, the County's project will not unreasonably infringe upon Trump or Flagler's qualified right to a dock. The fact that the project might preclude the design and permitting of a dock that would host very large vessels does not mean that Trump and Flagler's rights regarding docking have been unreasonably infringed. The evidence shows that substantial docking facilities of multiple configurations are still possible even if the County's project is approved. In summary, the County's application for proprietary authorization should be approved. Other Contentions All other contentions raised by Trump and Flagler have been considered and are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the County's application for a consolidated ERP and consent to use sovereignty submerged lands. DONE AND ENTERED this 24th day of September, 2009, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2009.
The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
