Findings Of Fact The applicant, Tom Tona, owns the mortgage on the island consisting of Lots 1 and 2, Block 8, Elliots Point Subdivision, Fort Walton Beach, Florida. Mr. Tona has taken steps to perfect his ownership of the island and holds a property interest sufficient to afford him standing to apply for a permit. Elliots Point Subdivision is a residential subdivision development surrounding a lagoon which opens into Santa Rosa Sound in Fort Walton Beach, Florida. The island is located in the lagoon opening to Santa Rosa Sound. It has a large area of wetlands on the north shore. The wetlands function as a habitat for wildlife in the area. Water depths surrounding the island are shallow. The island currently acts as a barrier island for the property located on the shore of the lagoon. The barrier effect of the island helps to prevent the lagoon shore from erosion which would be caused by the wave action in the sound. However, the island, itself, is rapidly eroding due to the same wave action it protects the lagoon shore from. The evidence clearly demonstrated that unless this erosion is stopped the island will completely wash away along with the habitat, including wetlands, it now provides to wildlife and no longer protect the lagoon shore from the erosion it otherwise would experience without the presence of the island. The subdivision appears to be almost completely developed along the lagoon with single family dwellings. A canal consisting of two vertical seawalls runs in between the island and Elliots Point. The canal leads to a public boat ramp within the subdivision. The vertical sea wall of the canal along with the boats that pass through it is causing erosion to occur within the wetlands adjoining the seawall. It is this 55 foot area of the wetlands that Respondent proposes to construct part of the riprap revetment. Petitioner, Audrey Dickason, owns property on the far side of the lagoon from the island. Petitioner's property does not adjoin the island, but is close enough to the island to be within view of the island. On March 6, 1991, the applicant submitted an application to the Department of Environmental Regulation for a dredge and fill permit to construct a riprap revetment around the entire island. This was Mr. Tona's first application with the Department and at the time of filing Mr. Tona was very inexperienced in completing dredge and fill applications. The application was completed to the best of Mr. Tona's knowledge. Additionally, as happens with any form document, this application did not entirely fit the fact that this was an island project and the type of property interest Mr. Tona was asserting over the island. The application as originally filed did not list any adjacent property owners. Mr. Tona did not believe there were any adjacent property owners since an island was involved. Regardless of whether Mr. Tona should have listed any property owners of the subdivision, the failure to list any such property owners was not done to deceive or defraud the Department or the island's neighbors and in reality had no impact on the notification of parties who may have been interested in Mr. Tona's application. The owners of the property directly across from the island testified at the hearing and voiced their concerns to the Department during the processing of the application. Moreover, as indicated earlier, Petitioner's property does not adjoin the island. Since Petitioner's property does not adjoin the island, she was not entitled to be listed in Mr. Tona's application for the dredge and fill permit. The evidence simply did not establish that this debatable issue justifies the denial of Mr. Tona's application for a dredge and fill permit. The application filed by Mr. Tona also had the box indicating that he owned the property checked. The other box which could have been checked was that he would acquire an interest in the property. Neither box quite fit Mr. Tona's circumstances since he already had an interest in the property. The Department advised that it would be sufficient to check the ownership box and attach a copy of the mortgage assignment which gave Mr. Tona his interest. Mr. Tona followed the Department's advice. Again, the information as to ownership was not submitted to deceive or defraud the Department or the island's neighbors and in reality had no impact on the application process. In fact, the necessary information to determine Mr. Tona's interest was submitted to the Department. Again, there is nothing in the information submitted by Mr. Tona in the application which would justify denying that application as it has since been amended. As indicated above, after consulting with the Department, Mr. Tona amended his application so that the riprap revetment would only be constructed on a 55 foot strip along the northwest corner of the island immediately adjacent to the vertical seawall and on a 322 foot stretch of the island shore, beginning at the intersection of the vertical seawall and the southwest shore of the island and extending along the shore of the island to the edge of the wetland marsh on the north side of the island. The riprap would consist of clean limestone and would extend into state waters. The fill would not impede the flow of water or cause harmful erosion or shoaling. In fact, the purpose of the revetment is to stop the rapid erosion of the island which is currently taking place and preserve the wetland habitat which exists on the island. The evidence did not demonstrate that the type fill the applicant intends to use in the construction of the revetment would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The evidence demonstrated that the placement of the fill would create more habitat for fish and wildlife. The revetment is intended to be a permanent structure. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the proposed revetment met departmental standards for water quality and the public interest and issued an Intent to Issue with a draft permit authorizing the construction of the riprap revetment described above subject to several standard permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in Section 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other riprap revetments in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this riprap revetment. For similar reasons, the evidence demonstrated that the proposed revetment would not be contrary to the public interest. In essence, the evidence demonstrated that the revetment would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. In fact, the evidence demonstrated that the only effect on the environment the proposed revetment would cause would be a beneficial effect. Petitioner's fear that the grant of this permit will allow Mr. Tona to build a house on the island and thereby destroy her view is not the type of factor which may be considered in determining whether a dredge and fill permit should be granted or denied. See Miller v. Department of Environmental Regulation, 504 So.2d (Fla. 1st DCA 1988). Petitioner's concerns for the revetment's affect on the wildlife of the area were not established by any evidence. The evidence did demonstrate that Petitioner's concerns for the wildlife using the island were simply feinted by her and are belied by the fact that if the island is not preserved from erosion there will be no habitat for any wildlife to use once the island erodes away. Based on all the evidence, Mr. Tona's application for a dredge and fill permit to construct a riprap revetment should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a dredge and fill permit to construct a riprap revetment as sought by Tom Tona in his permit application as amended and subject to the permit conditions contained in the Department's Intent to Issue. DONE and ENTERED this 23rd day of September, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3872 The facts contained in paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3 and 4 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 8 and 9 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact are immaterial. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are adopted in substance, except for the finding relating to notice which was not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. COPIES FURNISHED: Michael Mead P.O. Drawer 1329 Fort Walton Beach, Florida 32549 William Stone P.O. Drawer 2230 Fort Walton Beach, Florida 32549 Candi Culbreath Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400
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 Whether the proposed Florida Administrative Code Rules 28-20.110, 28-20.120, and 28-18.210 are invalid exercises of delegated legislative authority.
Findings Of Fact Parties Petitioner, Florida Keys Citizens Coalition, Inc. ("FKCC"), is a non-profit Florida corporation whose address is 10800 Overseas Highway, Marathon, Florida 33050. The primary purpose of FKCC is to "protect the quality of life of the citizens of the Florida Keys." The primary emphasis of the organization involves issues related to the carrying capacity, the limits of the infrastructure, and the environmental qualities of the Florida Keys. Consistent with its purpose, FKCC opposes regulations which it believes will diminish the quality of the natural habitat in Monroe County and the City of Marathon and hinder safe and efficient emergency evacuation. FKCC has been involved in previous Monroe County litigation, including participating as a party to at least two formal administrative challenges to the 2010 Monroe County Comprehensive Plan (Monroe County Comprehensive Plan). Petitioner, Last Stand, Inc., is a non-profit Florida corporation whose address is Post Office Box 146, Key West, Florida 33041-0146. The primary purpose of Last Stand is to preserve and protect the quality of life in the City of Key West, the Florida Keys, and their environs, with particular emphasis on the natural environment. To that end, Last Stand opposes regulations that it believes diminishes the quality of the natural habitat in the Florida Keys and regulations that hinder safe and efficient emergency evacuation in the Florida Keys. Last Stand is an organizational member of FKCC. Moreover, many individual members of Last Stand are also members of FKCC. A substantial number of members of both FKCC and Last Stand live, work, and/or engage in various recreational activities in the City of Marathon or in nearby areas. For example, a substantial number of members of both of those organizations regularly use and enjoy the nearshore waters of Monroe County for recreational water activities, such as boating, diving, snorkeling, and/or swimming.3 A substantial number of members of both organizations also regularly use and enjoy terrestrial habitats in Monroe County, including the City of Marathon, for recreational activities such as hiking and bird-watching. A substantial number of the members of both FKCC and Last Stand may be adversely affected or impacted by the issues which are in dispute in this proceeding. Moreover, the issues in this proceeding are germane to the purposes of both FKCC and Last Stand. Also, both FKCC and Last Stand regularly represent their members' interests in formal administrative hearings and local commission meetings relative to environmental and growth management issues. Respondent, Administration Commission, consists of the Governor and Cabinet and is empowered to adopt, by rule, any enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan in the Florida Keys area. Respondent, Monroe County, is a local county government within the Florida Keys Area of Critical State Concern ("ACSC"). Respondent, City of Marathon, is a municipality within the Florida Keys ACSC. Intervenor, the DCA, is the state land planning agency responsible for the general supervision of the administration and enforcement of the ACSC program. As the state planning agency, the DCA is authorized to propose changes to local comprehensive plans and land development regulations within an ACSC for adoption by the Administration Commission. Economic Base of Florida Keys Tourism is the economic base of the Florida Keys. Moreover, the basis for the Florida Keys' tourism is a healthy natural environment that supports fishing, diving, water sports, boating, bird-watching habitat, visiting endangered species habitat, and other related activities. History of the Florida Keys ACSC The Florida Keys area is designated as an ACSC and consists of, unincorporated, Monroe County, the City of Layton, the City of Key Colony Beach, the Village of Islamorada, and the City of Marathon. See § 380.0552(3), Fla. Stat. (2004).4 The City of Key West has been separately designated as an ACSC pursuant to Florida Administrative Code Rule Chapter 28-36. The Florida Keys were originally designated by the Administration Commission in 1975 and re-designated by the Legislature in 1986. The legislative intent section and the Principles for Guiding Development, as set forth in Subsections 380.0552(2) and (7), Florida Statutes, together require an effective land use management system that protects the natural environment and character of the Florida Keys, maintains acceptable water quality conditions, ensures adequate public facility capacity and services, provides adequate affordable housing, supports a sound economic base, protects constitutional property rights, and requires adequate emergency and post- disaster planning to ensure public safety. During the past 20 years, the growth management process has been implemented in essentially two phases. The first phase involved developing, adopting, and implementing the first comprehensive plans and regulations under the new designation. These plans and regulations were adopted by the county and cities in the mid-1980s. The 1986 plan established a growth management system that substantially increased protection of natural resources and began to reduce the over-allocation of density in the Florida Keys. It also achieved the long-term protection of North Key Largo. However, several major problems were not adequately addressed by the 1986 plan, including maintaining evacuation capability, water quality protection, sewage treatment, stormwater treatment, and community character. In addition, although the plan required a focal point plan for Big Pine Key, this planning process did not result in a viable plan that adequately protected the Florida Keys deer. The required open space ratios proved difficult to maintain within habitats once development occurred, resulting in fragmentation of habitat. The second phase involved the planning process undertaken in the early 1990s to meet the requirements of the Growth Management Act and to update the plan based on lessons learned in implementing the 1986 plan. In developing, reviewing, and litigating the Monroe County Comprehensive Plan, the following critical issues emerged involving how to: maintain acceptable hurricane evacuation capability; retrofit existing development and provide new development with adequate wastewater and storm water facilities, including, where appropriate, upgrading of on-site systems; determine the carrying capacity of the Keys to withstand the impacts of additional land development and modify state and local plans, regulations and programs so that the carrying capacity is not exceeded; provide an adequate supply of affordable housing while maintaining acceptable hurricane evacuation and protecting the environment. In 1996, the Administration Commission adopted a rule which included a cap of 255 residential units per year for Monroe County. The rule also adopted a five-year Work Program into the Monroe County Comprehensive Plan with the local governments to construct sewage treatment facilities, replace cesspits, and purchase land to protect natural habitat. Monroe County, the City of Marathon, and the DCA were required to submit reports to the Administration Commission each year "documenting the degree to which the Work Program objectives for that year [had] been achieved." The rule contemplated that if the local governments did not make "substantial progress" towards accomplishing the tasks of the Work Program, the unit cap for new residential permits would be reduced by at least 20 percent for the following year. The Administration Commission found a lack of "substantial progress" in 1999 and adopted a rule which reduced the annual allocation of residential permits by 20 percent and extended the five-year Work Program to seven years. The Administration Commission found "substantial progress" had been accomplished in 2001 and began rulemaking to restore the permit allocation. However, the rule was challenged, and since the Administration Commission found a lack of "substantial progress" in 2002, the Commission adopted a revised rule which did not restore permits. The Carrying Capacity Study The 1996 Administration Commission rule amended the Monroe County Comprehensive Plan to require the completion of a carrying capacity analysis. The carrying capacity analysis shall be designed to determine the ability of the Florida Keys ecosystem, and the various segments thereof, to withstand all impacts of additional land development activities. The analysis shall be based upon the findings adopted by the Administration Commission on December 12, 1995, or more recent data that may become available in the course of the study, and shall be based upon the benchmarks of, and all adverse impacts to, the Keys land and water natural systems, in addition to the impact of nutrients on marine resources. The carrying capacity analysis shall consider aesthetic, socioeconomic (including sustainable tourism), quality of life and community character issues, including the concentration of population, the amount of open space, diversity of habitats, and species richness. The analysis shall reflect the interconnected nature of the Florida Keys' natural systems, but may consider and analyze the carrying capacity of specific islands or groups of islands and specific ecosystems or habitats, including distinct parts of the Keys' marine system. (Ref. 1991 Stip. Settlement Agreement). Agencies: County, DCA, DEP, DOH, DOT, GFC, SFWMD, NMS, SFRPC, EPA, USFWS, Army COE, and other interested parties to include representatives of environmental organizations and development interests. The Florida Keys Carrying Capacity Study ("FKCCS") was completed over a period of six years. Six million dollars was allocated by the DCA and the United States Army Corps of Engineers to produce the Monroe County Sanitary Wastewater Master Plan, the Stormwater Management Plan, and the FKCCS. The contractor, URS Corporation, completed the FKCCS and the Carrying Capacity/Impact Assessment Model ("CCIAM"), a separate component to be used in forecasting land use scenarios. A panel of external experts was used to peer review the scope of work. In September 2002, the study was completed. The National Research Council of the National Academy of Sciences ("Council") reviewed the CCIAM and FKCCS and, as a result of its review, adjustments were made to the CCIAM. The Council's review concluded that overall, due to data constraints and other issues in certain portions of the CCIAM, the model proved insufficient to develop a comprehensive carrying capacity framework that would allow for undisputable determinations of whether future development scenarios fall within the carrying capacity of the Florida Keys. The marine module, the most data- deficient, was subsequently removed from the CCIAM. The FKCCS recommended four main guidelines for future development in the Florida Keys: Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats and species have been severely affected by development and further impacts would only exacerbate an already untenable condition. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater and stormwater master plans, ongoing research and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Florida Keys. If further development is to occur, focus on redevelopment and infill. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. Partnership Agreement While preparing the Assessment Report for 2003, the DCA Secretary concluded that the existing policy direction, consisting of imposition of the Work Program by the Administration Commission and reduction of residential permits, due to lack of substantial progress, was not sufficient to solve the problems facing the Florida Keys. The Assessment Report described difficulties and delays in implementing the Work Program. Most of the sewage treatment facilities contemplated by the Work Program were not constructed and valuable upland habitat continued to be developed. On December 16, 2003, the Administration Commission concluded that Monroe County had not made substantial progress and directed the DCA "to determine changes that would be necessary to the comprehensive plan to fully implement the requirements of the Work Program[,] as well as habitat protection provisions." The Administration Commission also accepted the staff recommendation that it "determine substantial progress has been made for the City of Marathon, and that some permits will be provided back to the City of Marathon," the number to be determined at the Administration Commission's January 27, 2004, meeting. The DCA approached the Florida Keys local governments and community-based organizations and proposed a Partnership Agreement to "begin implementation of the Work Program associated with the Florida Keys Protection Act." The DCA Secretary addressed the governing boards of the Florida Keys' local governments concerning the proposed Partnership Agreement. Monroe County, the City of Marathon, and the Village of Islamorada adopted resolutions supporting the partnership proposal. By letter dated February 25, 2004, the DCA Secretary requested that the Governor, as a member of the Administration Commission, authorize the Administration Commission staff to initiate rulemaking to amend the Comprehensive Plans of Monroe County and the City of Marathon. According to the letter, this action was requested based upon a series of significant commitments made by each of these local governments which addressed issues related to habitat protection, affordable housing, wastewater and stormwater management projects, land acquisition, and nutrient credits. The letter also noted the following: A complete follow-through on these commitments would mean over $410 million would be spent in the coming years to address these issues in the Florida Keys. Habitat protection will be increased, environmentally-sensitive hammock and pinelands would be purchased, new wastewater and stormwater management projects would be initiated, and 230 units of affordable housing would be made available for residents of the Florida Keys. * * * In essence, we have developed proposals that allow additional units primarily for affordable housing in the Florida Keys, but also would ensure the most pressing issues will be jointly addressed by local and state government. Consistent with the February 25, 2004, letter, the Partnership Agreement consists of commitments by the Florida Keys' local governments and several state agencies to address habitat protection, wastewater and stormwater treatment, affordable housing, and hurricane evacuation. At its March 9, 2004, meeting, the Administration Commission accepted the DCA's recommendation to initiate rulemaking to implement the Partnership Agreement. The Proposed Rules 29. Proposed Rules 28-18.210, 28-20.110, and 28-20.120 were published in the Florida Administrative Weekly on July 16, 2004.5 According to the published notice, the purpose of Proposed Rule 28-18.210 is to amend Policy 101.2.14 of the Marathon Comprehensive Plan to address building permit allocations by increasing the annual residential permitting cap and specifying allocations authorized for market rate and affordable housing, restoring certain allocations authorized for market rate and affordable housing, authorizing certain unused rate of growth ordinance allocations to roll forward, and deleting the requirement for nutrient credits upon a date certain. The notice also provides that the Proposed Rule amends the Work Program set forth in Policy 101.2.14 of the Marathon Comprehensive Plan to establish Year Eight and Year Nine to address tasks not yet completed in the original Work Program. The published notice states that the purpose of Proposed Rules 28-20.110 and 28-20.120 is to amend Policy 101.2.13 of the Monroe County Comprehensive Plan to address building permit allocations by increasing the annual residential permitting cap and specifying allocations authorized for market rate and affordable housing, restoring certain allocations previously reduced to be targeted for affordable housing, authorizing certain unused rate of growth ordinance allocations to roll forward, and deleting the requirement for nutrient reduction credits upon a date certain. The notice also provides that the proposed rules amend the Work Program in Policy 101.2.13 of the Monroe County Comprehensive Plan to establish Work Program provisions for Year Eight, Year Nine, and Year Ten to address tasks not yet completed in the original Work Program. Finally, the notice states that the Proposed Rule amendments address the adoption of necessary land development regulations. The published notice cites Subsection 380.0552(9), Florida Statutes, as the specific authority for the Administration Commission's promulgating the Proposed Rules and Section 380.0552, Florida Statutes, as the law implemented. Petitioners challenge portions of Proposed Rule 28-18.210, which will amend the Marathon Comprehensive Plan and portions of Proposed Rules 28-20.110 and 28-20.120,6 which will amend the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations on the basis that they constituted invalid exercises of delegated legislative authority. Petitioners contend that the proposed rules should comply with Section 380.0552 and Chapters 163 and 380, Florida Statutes, and, therefore, should be analyzed for such compliance in this proceeding. Notwithstanding Petitioners contention to the contrary, for the reason stated in paragraph 199 below, Proposed Rules 28-18.210, 28-20.110, and 28-20.120 will be analyzed based on their consistency with Section 380.0552, Florida Statutes, because that is the provision which the proposed rules explicitly purport to implement. The published notice does not specify the subsection of Section 380.0552, Florida Statutes, that the proposed rules implement. However, the parties agree that the proposed rules must be consistent with Subsection 380.0552(7), Florida Statutes, which set forth the Principles for Guiding Development. Restoration/Increase of ROGO Allocations The Comprehensive Plans for Monroe County and the City of Marathon include a Permit Allocation System, under which Monroe County was originally allocated 255 permits per year for new residential units. As noted in paragraph 18 above, in 1999, the Administration Commission determined that substantial progress on the Work Program had not been accomplished and adopted a rule reducing the annual allocation of permits by 20 percent. After the incorporation of the Village of Islamorada and Marathon, and a voluntary reduction by the Village of Islamorada, the current annual allocation of residential development permits is 158 for Monroe County, 24 for Marathon, and 14 for the Village of Islamorada. Proposed Rule 28-20.110(1) amends Policy 101.2.13 of the Monroe County Comprehensive Plan by increasing the annual unit cap of 158 to 197, thereby restoring the original level of permits issued for new residential development under the Rate of Growth Ordinance ("ROGO"). The proposed rule requires that "[e]ach year's ROGO allocation of 197 new units shall be split with a minimum of 71 units allocated for affordable housing in perpetuity and market rate allocations not to exceed 126 new units per year." Proposed Rule 28-18.210 amends Policy 101.2.14 of the Marathon Comprehensive Plan by increasing the maximum number of permits for new residential units from 24 to 30 per year, thereby, restoring the original level of permits per year for new residential development under ROGO. The proposed rule requires that "[e]ach year's ROGO allocation of 30 units shall consist of 24 market rate and 6 affordable units" and that the affordable housing "remain as affordable housing in perpetuity." In addition to restoring the number of permits for new development to the original levels, Proposed Rule 28-20.110 amends the Comprehensive Plans of Monroe County and Marathon to restore available permit allocations that were unused in previous years and to allow unused ROGO allocations to be allocated in subsequent years. Proposed Rule 28-20.110 adds a new provision to the Monroe County Comprehensive Plan, providing that "effective July 12, 2004, 140 ROGO allocations, which represent unused reductions for ROGO Years Nine through 12, and 25 units lost in Year Ten due to lack of nutrient credits, are reallocated to the County exclusively for affordable housing purposes." Proposed Rule 28-18.210 adds a provision to the Marathon Comprehensive Plan that "effective July 12, 2004, 65 ROGO allocations, which represent unused ROGO allocations for ROGO Years 9 through 12, are to be reallocated to the City exclusively for affordable housing." Advancing/Borrowing Nutrient Credits The existing Comprehensive Plans of Monroe County and the City of Marathon include a nutrient credit system. According to the Monroe County Comprehensive Plan, nutrient reduction credits are earned when existing treatment systems are upgraded. The amount of nutrient reduction credits earned correlate to the type of treatment system to which an old system is upgraded. Thus, if a treatment system is upgraded to the "best centralized system" or the "advanced wastewater treatment system," Monroe County would earn the most nutrient credits possible. For example, elimination of a cesspit by connection to a centralized advanced wastewater treatment system earns 1.5 nutrient credits, and the elimination of a substandard on-site disposal system by connection to a centralized secondary treatment system earns 0.5 nutrient credits. Under the existing Comprehensive Plans of Monroe County and the City of Marathon, development permits for new residential development can only be issued if a nutrient reduction credit has been earned. The requirement that adequate nutrient credits be earned prior to issuance of permits is to mitigate for nutrient impacts of new residential development. However, Proposed Rules 28-18.210 and 28-20.110 provide that Monroe County and the City of Marathon will be permitted to "borrow" nutrient credits from the pool of nutrient credits that are anticipated from the construction and/or completing of sewage treatment facilities. The existing Comprehensive Plans of Monroe County and the City of Marathon provide that nutrient reduction credits are earned by the construction of the Little Venice system according to the schedules prescribed in the Comprehensive Plans. The schedules in the Comprehensive Plans provide that "213 of the total credits estimated to be available from the full operation of the system shall be earned when the wastewater permit is issued, the design/build contract for the system has been fully executed and construction of the system has commenced." The Comprehensive Plans also provide that all the remaining available credits shall be earned when the construction of the Little Venice System is complete, the collection system lines have been installed, and the final total of credits available from the operation of the systems has been calculated. Proposed Rules 28-20.110 and 28-18.210 amend the Comprehensive Plans of Monroe County and Marathon by allowing 213 of the total credits estimated to be available from the full operation of the Little Venice system to be earned, effective July 13, 2003. The proposed rules also provide that when the Little Venice system is completed, "[t]he total credits available shall be reduced by the 213 [credits] advanced in the year 2003." Proposed Rule 28-20.110 amends the Monroe County Comprehensive Plan by allocating 41 nutrient credits for market rate units and 193 nutrient credits for affordable housing units to Monroe County. The Proposed Rule 28-20.110 provides that the 41 nutrient credits will be subtracted from the nutrient credits subsequently earned from hookups to the Key West Resort Utilities Wastewater Facility ("Key West Resort Utilities"). The 193 nutrient credits will be subtracted from hookups to the Key West Resort Utilities, Bay Point, and Key Largo Wastewater Facilities. Repeal of Nutrient Reduction Provision As described in paragraph 42 above, the existing Comprehensive Plans of Monroe County and the City of Marathon have mandatory nutrient provisions that require nutrient credits to be earned prior to issuance of a permit for new residential units. Proposed Rules 28-20.110 and 28-18.210 amend the Comprehensive Plans of Monroe County and the City of Marathon by repealing the mandatory nutrient credit provisions. Pursuant to the proposed rules, "effective July 13, 2005, no nutrient credits shall be required if the local government has made satisfactory progress as determined by the Administration Commission in meeting the deadlines established by the Work Program as adopted by rule after March 15, 2004." Challenges to Increase/Restoration of Permits, Advancing Nutrient Credits, and Repeal of Nutrient Reduction Provision Petitioners contend that the increase in new residential permits is arbitrary and capricious and contravenes the law implemented because it will increase development even though the identified thresholds for growth in the Florida Keys--water quality, terrestrial habitat, and evacuation times-- have been exceeded and will "worsen" the water quality. Petitioners challenge the provision which allows the borrowing or awarding of nutrient credits before wastewater projects are completed as arbitrary and capricious, because it will allow a net increase in the nutrient impacts into the nearshore waters of the Florida Keys and will "worsen" the water quality. Proposed Rules 28-20.110(1) and 28-18.210 increase the number of permits for new residential units from the preceding years. However, the number of permits to be issued under the Monroe County Comprehensive Plan has not increased. Rather, the permits will be issued in a shorter time frame and without being subject to the previous conditions. Even though increased development could result in an increase in the nutrient impacts into the nearshore waters of the Florida Keys, the adverse effect of such nutrient loading is offset by the adequate treatment of wastewater and stormwater runoff. To address the problem of nutrient loading, the Proposed Rules 28-20.110 and 28-18.210 extend the years of the Work Programs and include in those programs tasks, such as construction and completion of wastewater facilities, as well as financing for those projects. Based on the commitments of Monroe County and the City of Marathon in the Partnership Agreement, there is a reasonable expectation that the projects included in the Work Program of the Proposed Rules will be completed. When completed, the wastewater treatment facilities will provide nutrient credits. In anticipation of the completion of the wastewater treatment facilities, Proposed Rules 28-20.110 and 28-18.210 restore the annual permits for new residential units to their original levels and allow previous unused ROGO allocations to be allocated. The Proposed Rules provide that the nutrient credits for these allocations will be borrowed from the pool of nutrient credits that are anticipated from the planned construction and completion of wastewater facilities. Petitioners' contention that the repeal of the mandatory nutrient reduction credit provision is arbitrary and capricious and contravenes the law implemented because such repeal allows the water quality to worsen, is inconsistent with the "no net nutrient" provision of the Comprehensive Plans and is unjustified given that the nutrient pollution has increased since the nutrient credit provisions were adopted. Petitioners also contend that the repeal of the nutrient credit provision is arbitrary and capricious because the repeal is effective on a date certain without further action and without regard for whether it is justified. Proposed Rules 28-20.110 and 28.18-210 repeal the mandatory nutrient reduction credit provisions of the Comprehensive Plans, but the condition precedent to the repeal is the Administration Commission's making a determination that Monroe County and the City of Marathon have "made satisfactory progress . . . in meeting deadlines established by the [new] Work Program." This determination must be made prior to the repeal going into effect. Presumably, the tasks in the Work Program for which satisfactory progress must be made are those relevant and reasonably related to and which result in nutrient credits. Contrary to Petitioners' assertion, the repeal of the mandatory nutrient credit provision does not automatically become effective on the date prescribed in the proposed amendments. Instead, the repeal is contingent on Monroe County's and the City of Marathon's making "satisfactory progress." The term "satisfactory" is not vague as asserted by Petitioners. In the context of Proposed Rules 28-20.110 and 28-18.210, "satisfactory" would be given its common and ordinary meaning, which is "sufficient to meet a demand or requirement."7 Annual Reporting Requirement The existing Comprehensive Plans for Monroe County and the City of Marathon provide that "beginning September 30, 2003, and each year thereafter, [the respective local government] Monroe County and the [DCA] shall report to the Administration Commission documenting the degree to which the Work Program objectives have been achieved." Proposed Rules 28-20.110 and 28-18.210, will modify the annual reporting requirements in the Monroe County and Marathon Comprehensive Plans. The proposed amended provision, which is underlined, and the existing provision are as follows: Beginning September 30, 2003, and each year of the work program thereafter, Monroe County and the Department of Community Affairs shall report to the Administration Commission documenting the degree to which the work program objectives for that year have been achieved. The report for years seven and eight shall be combined and provided to the Administration Commission by September 30, 2005. The Commission shall consider the findings and recommendations provided in those reports and shall determine whether substantial progress has been achieved toward accomplishing the tasks of the work program. Petitioners contend that the proposed rules, which delete the requirement for Monroe County and for the City of Marathon to submit the September 2004 progress report to the Administration Commission, are arbitrary and capricious. Petitioners assert that by deleting the requirement for the 2004 annual progress report, the proposed rules fail to establish an annual safeguard that is required to ensure that the environmental conditions and infrastructure limitation that the annual Work Program is designed to resolve, do not worsen. The proposed rules delete the requirement that Monroe County and Marathon submit their respective reports in September 2004 and delay submission of that report by a year. The time spent negotiating the Partnership Agreement and the proposed changes to the Monroe County Comprehensive Plans and the Land Development Regulations left little time for Monroe County and the City of Marathon to implement the new Work Programs. Moreover, the DCA and the Administration Commission would have had too short a time period in which to judge whether Monroe County and Marathon had made substantial progress. By combining the reports for Years Seven and Eight of the Work Program, the Administration Commission can expect a meaningful report on Monroe County's and the City of Marathon's progress in implementing their respective Work Programs. Monroe County Work Program Under Proposed Rules Proposed Rule 28-20.110 amends the Work Program Policy 101.2.13 of the Monroe County Comprehensive Plan by adding Years Eight, Nine, and Ten to the existing Work Program. Many of the tasks included therein address and are related to wastewater facilities, habitat protection, affordable housing, and hurricane evacuation and implement the Partnership Agreement. Year Eight of the Work Program requires that Monroe County and other designated agencies perform the specified tasks and provide, in relevant part, the following: Year Eight (July 13, 2004 through July 12, 2005) Review and revise (as necessary) the Conservation and Natural Areas Map. Initiate acquisition strategy for lands identified outside the Conservation and Natural Areas identified as worthy of protection. Begin public hearings for Conservation and Natural Areas boundaries. Conclude public hearings for the adoption of the amended Conservation and Natural Areas Boundaries. Adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involves the clearing of any portion of an upland tropical hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two or more acres in size located within a Conservation and Natural Area. Adopt amendments to the comprehensive plan and land development regulations to enact overlay designations, and eliminate or revise the Habitat Evaluation Index, and modify the ROGO/NROGO system to guide development away from environmentally sensitive lands. Amend land development regulations to prohibit the designation of Conservation and Natural Areas (Tier 1) as a receiver site for ROGO exempt development from sender sites; and to further limit clearing of upland native habitat that may occur in the Natural Areas (Tier I) and the Transition and Sprawl Reduction Area (Tier II) upon designation by the County. Develop Land Acquisition and Management Master Plan and address both funding and management strategies. Provide $40 million in financing secured by infrastructure tax for wastewater facilities. Begin construction of wastewater plants or laying of collection lines for Baypoint, Conch Key and Key Largo Trailer Village/Key Largo Park. Ensure the connection for up to 1,350 EDUs [equivalent development units] at Stock Island to Key West Resort Utilities. Complete the Lower Keys and Key Largo feasibility study. Complete projects identified in the Storm Water Management Master Plan. Evaluate and implement strategies to ensure that affordable housing remains affordable in perpetuity for future generations. Establish a partnership with non-profit organizations in order to construct affordable housing using additional state funds. Identify potential acquisition sites for affordable housing proposals and include in the Land Acquisition Master Plan. Provide up to $10 million in bond financing from the Tourist Impact Tax for acquisition of land for workforce housing and affordable housing sites. Complete a comprehensive analysis of hurricane evacuation issues in the Florida Keys and develop strategies to reduce actual hurricane clearance times and, thereby, reduce potential loss of life from hurricanes. As discussed below, several of the tasks in Year Eight of the Work Program implement parts of Goal 105 of the Monroe County Comprehensive Plan. Goal 105 reads: Monroe County shall undertake a comprehensive land acquisition program and smart growth initiatives in conjunction with its Livable CommuniKeys Program in a manner that recognizes the finite capacity for new development in the Florida Keys by providing economic and housing opportunities for residents without compromising the biodiversity of the natural environment and the continued ability of the natural and man-made systems to sustain livable communities in the Florida Keys for future generations. Goal 105, also referred to as the "Smart Growth Goal," provides a framework to implement the FKCCS and a 20-year land acquisition program. The initial phase of implementing Goal 105 calls for the drafting and adoption of "Tier Maps" to be used as guidance for the Monroe County's Land Acquisition Program. Pursuant to Policy 105.2.1 of the Monroe County Comprehensive Plan, the Tier maps will designate and map properties into one of the following three general categories for purposes of Monroe County's Land Acquisition Program and the smart growth initiatives: Natural Area (Tier I); Transition and Sprawl Reduction Area (Tier II); and Infill Area (Tier III). Tier I property is property where all or a significant portion of the land is characterized as environmentally sensitive by policies of the Monroe County Comprehensive Plan and applicable habitat conservation plan. Tier I is to be designated as a Natural Area. New development is to be severely restricted in Tier I. Tier II is any geographic property where scattered groups and fragments of environmentally-sensitive lands, as defined by the Comprehensive Plan, may be found and where subdivisions are not predominantly developed. New development is to be discouraged in Tier II, which is to be designated as Transition and Sprawl Area. Tier III is property where a significant portion of land is not characterized as environmentally sensitive, as defined by the Monroe County Comprehensive Plan, where existing platted subdivisions are substantially developed, served by complete infrastructure facilities, within close proximity to established commercial areas or where a concentration of non-residential uses exist. New development and re-development are to be highly encouraged in Tier III, which is to be designated as Infill Area. Petitioners contend that Task A, which requires Monroe County to "review and revise [as necessary] the Conservation and Natural Areas ["CNA"] Map, vests unbridled discretion to the County to amend the CNA map without adequate standards or criteria." Further, Petitioners assert that Task A does not identify the purpose for which the CNA map is to be used. Based on this assertion, Petitioners contend that Task A is arbitrary and capricious and contravenes law. Task A will assist in the implementation of the Comprehensive Plan by requiring Monroe County to review and revise the CNA map. In reviewing Task A, it is clear that the county must adhere to the criteria prescribed in Goal 105 of the existing Monroe County Comprehensive Plan. When Task A is read together with Goal 105 and its related policies, it is clear that the purpose of Task A is to provide guidance for the Monroe County Land Acquisition Program. As a part of the review and revision process, the Partnership Agreement, which Task A implements, provides that the Monroe County staff should prepare the CNA map utilizing Florida Marine Source Resources Institute ADID maps, the most recent aerial photographs, site visits as necessary, and obtain input from DCA and the public. Moreover, when Task A is read with Task B, and other relevant parts of the Monroe County Comprehensive Plan, it is clear that a CNA map is to be used to implement Goal 105 of the Monroe County Comprehensive Plan, which is related to land acquisition and "smart growth initiatives." Petitioners assert that Task B, which requires Monroe County to "initiate acquisition strategy for lands identified outside the [CNA] boundaries," is arbitrary and capricious and contravenes the law implemented, because it provides no standards or criteria. Task B is consistent with Policy 105.2.1 of Goal 105 of the Monroe County Comprehensive Plan. The Partnership Agreement consistent with Goal 105 provides that Monroe County will identify lands outside the CNA boundaries for acquisition and target for purchase appropriate environmentally-sensitive lands that are contained within upland habitat of two acres or more outside the CNA. Task C requires Monroe County to "begin public hearings for [CNA]." Task D requires Monroe County to conclude the public hearings for adoption of the amended [CNA] boundaries. Petitioners contend that Tasks C and D are arbitrary and capricious and contravene the law implemented, because they do not require that an end result be achieved as a result of these public meetings. When the provisions of Task C and Task D are read together, with Goal 105 and the relevant provisions of the Partnership Agreement, it is clear that the end result sought as a result of the public hearings is to receive public comment regarding the identification of lands to be included in the CNA. Furthermore, this is a reasonable meaning of Tasks C and D in light of the well-known purpose of public hearings. Petitioners challenge Task E, which requires Monroe County to "adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involves the clearing of any portion of an upland tropical hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two or more acres in size located within a [CNA]." The purpose of the moratorium is to prevent impacts to native habitat until Monroe County adopts permanent regulations and amendments. Petitioners contend that Task E of Year Eight of the Work Program, which requires Monroe County to "adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involve the clearing of any portion of an upland hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two acres or more . . . within a [CNA]," is arbitrary and capricious and contravenes the law implemented. Petitioners assert that the criteria for the interim ordinance required fails to protect all hammock and pineland, does not protect enough hammock to ensure that the carrying capacity of the Florida Keys terrestrial habitat to sustain degradation and loss is not exceeded, does not require that the interim protections last until replaced by permanent ones, and does not apply to ROGO-exempt allocations. The criteria for the interim ordinance required by Task E is reasonable and will result in strengthening habitat protection in the areas specified in that provision. The fact that Task E authorizes the adoption of an ordinance that protects less than "all" hammock and pineland, does not make the proposed rule arbitrary and capricious, nor does the proposed rule contravene the law implemented. Petitioners contend that Task F, which requires Monroe County to "[a]dopt amendments to the comprehensive plan and land development regulations to enact overlay designations, and eliminate or revise the Habitat Evaluation Index ["HEI"], and modify the ROGO/NROGO system to guide development away from environmentally sensitive lands," is arbitrary and capricious and contravenes the law implemented. Petitioners claim that the standard set forth in Task F, "to guide development away from environmentally sensitive lands," is no more specific than is statutory language. Petitioners assert that the proposed rule should specify (1) habitat types, patch sizes and other characteristics of the areas to which regulations will apply, and (2) the exact nature of the regulation (i.e. a prohibition on direct or secondary impacts, the application of negative points or open space rations, etc.) that will be relied upon to guide development away from such areas. Task F requires Monroe County to adopt amendments to the Comprehensive Plan and Land Development Regulations to enact the overlay designations requiring Monroe County to implement Policy 105.2.2 of the Monroe County Comprehensive Plan. Task F will implement Goal 105 of the Monroe County Comprehensive Plan. This task will identify areas to which future development will be directed. Also, the overlay designations will give property owners more certainty with respect to whether they can or cannot develop their property. The requirement in Task F, that the HEI be reviewed or eliminated, is reasonable in light of Goal 105 of the Monroe County Comprehensive Plan. The HEI is currently used by Monroe County to evaluate the environmental sensitivity of land and its suitability for development and acquisition. The HEI requires lot-by-lot evaluations, which fail to take into account secondary impact of development and has resulted in the loss of valuable habitat. The Tier System in Goal 105 is designed to move Monroe County away from the existing HEI. Implementation of Goal 105 requires that the existing HEI be eliminated or revised. Task G of Year Eight of the Work Program requires Monroe County to "amend land development regulations to prohibit the designation of [CNA] (Tier 1) as a receiver site for ROGO exempt development from sender sites; and to further limit clearing of upland native habitat that may occur in the [CNA] (Tier I) and the Transition and Sprawl Reduction Area (Tier II) upon designation by the County." Petitioners contend that Task G is arbitrary and capricious and contravenes the law implemented because it fails to permanently protect even that habitat which Monroe County claims is most important to protect, allows the geographic scope of the contemplated rules to be defined in the future without stated criteria or standards, and allows an unnecessary delay in the adoption of protections which the data and legal requirements demonstrate should have been adopted two years earlier. Task G is intended to strengthen protection of habitat by adopting land development regulations to prohibit development in specified areas and to further limit clearing in designated areas. Goal 105, specifically, provides guidance as to the standards that such regulations must follow in Policy 105.2.1 of the Monroe County Comprehensive Plan. Petitioners contend that Task K of Year Eight of the Work Program requiring Monroe County to ensure the connection for up to 1,350 units at Stock Island to Key West Resort Utilities, is arbitrary and capricious and contravenes the law implemented. Petitioners charge that the requirement in the proposed rule is vague and could be met by simply connecting one home to the referenced wastewater utility to remedy a documented, serious water quality problem. When the purpose of Task K is considered, the reasonable meaning of the provision is that the task requires that Monroe County connect approximately 1,350 units to the designated facility. Petitioners contend that Task M of Year Eight of the Work Program, which requires Monroe County to "complete projects identified in the Stormwater Management Master Plan," is arbitrary and capricious and contravenes the law implemented. In support of this contention, Petitioners assert that the Proposed Rule does not identify the name or number of stormwater projects that are to be completed. Petitioners argue that by referring only to "projects," without specifying the name or number of the projects to be completed, the Proposed Rule may require that only a minimum of two projects be completed. The reasonable interpretation of Task M is that Monroe County is required to complete all the remaining projects identified in the Stormwater Management Master Plan. This meaning is supported by a review of related tasks in the previous years of the Work Program. For example, Year Six of the Work Program required Monroe County and other designated agencies to "initiate construction of selected projects as identified in the Stormwater Management Master Plan." Year Seven of the Work Program required that Monroe County and other agencies "continue implementing selected projects identified in the Stormwater Management Master Plan." Petitioners contend that Task P in Year Eight of the Work Program, which requires Monroe County to "provide up to $10 million in bond financing from the Tourist Impact Tax for acquisition of land for workforce housing and affordable housing sites," is arbitrary and capricious and contravenes the law implemented. As a basis for this contention, Petitioners claim that Task P sets a vague requirement which could be met by simply providing $1.00 in bond financing to provide a need which the State and Monroe County claim is important enough to justify the permitting increase allowed by Proposed Rules 28-18.210 and 28-20.110. Contrary to Petitioners' assertions, the requirement to provide $10 million in bond financing could not be met by providing $1.00 in bond financing. The $10 million figure represents the approximate amount of bond financing that will be provided. For the reasons stated above, it is not possible to include an exact amount in this Work Program requirement. The Work Program for Year Nine provides that the following tasks be done between July 13, 2005, through July 12, 2006: In coordination with the Florida Key Aquaduct Authority and Key Largo Sewer District, initiate the process to obtain $80 million in bond financing secured by connection fees. Secure site for lower Keys and Key Largo wastewater facilities. Petitioners contend that Task A for Year Nine for the Work Program, which requires that Monroe County, "in coordination with the Florida Keys Aqueduct Authority and the Key Largo Sewer District, initiate the process to obtain $80 million in bond financing secured by connection fees," is arbitrary and capricious and contravenes the law implemented. Petitioners contend that Task A, which requires that Monroe County only "initiate" the process necessary to obtain the required bond financing, and does not require that the funds be secured and dedicated to actual improvements, delays funding to remedy a critical water quality problem. The reasonable meaning of the provision in Task A, that Monroe County will initiate the process to obtain "80 million in bond financing secured by connection fees," is that Monroe County will take all steps legally necessary to accomplish obtaining the bond financing. Petitioners contend that Task B of Year Nine of the Work Program, which requires Monroe County to "secure a site for lower Keys and Key Largo wastewater facilities," is arbitrary and capricious and contravenes the law implemented, because it delays an important remedy to a critical water quality problem. Task B reasonably requires that one of the first steps that must be taken prior to constructing any wastewater facility is to secure a site. Irrespective of the need for the wastewater facilities specified in Task B, unless a site is secured, no construction can occur. Proposed Rule 28-20.110(1), which amends Policy of the Monroe County Comprehensive Plan by adding Year Ten to the Work Program, provides the following: Year Ten (July 13, 2006 through July 12, 2007) Award Contract for design, construction, and operation of lower Keys and Key Largo wastewater facilities. Begin construction of the lower Keys and Key Largo wastewater plants. Initiate connections to lower keys and Key Largo wastewater systems. Complete construction and hookups for Bay Point, Conch Key and Key Largo Trailer Village/Key Largo Park. Obtain $80M in bond financing secured by connection fees Petitioners contend that Task A, which requires Monroe County to award a contract for design, construction, and operation of the lower Florida Keys and Key Largo wastewater facilities, is arbitrary and capricious and contravenes the law implemented, because it delays an important remedy to a critical water quality problem. Petitioners also contend that Task D, which requires that construction and hookups for specified areas be completed, and Task E, which requires Monroe County to obtain $80 million in bond financing secured by connection fees, are arbitrary and capricious and contravene the law implemented. That Tasks A, D, and E are required to be completed in Year Ten of the Work Program, between July 13, 2006, and July 12, 2007, is reasonable in view of the steps that must be taken prior to completing the responsibilities provided in those tasks. Petitioners contend that Task B, which requires Monroe County to "begin construction of the lower Florida Keys and Key Largo Trailer Village/Key Largo Park wastewater plants" between July 13, 2006, and July 12, 2007, is arbitrary and capricious and contravenes the law implemented. Petitioners assert that this portion of Proposed Rule 28-20.110 delays an important remedy to a critical water quality problem and does not require the completion of construction or the hookup and operation of the necessary facility. Task B of the Work Program, to begin construction of the lower Florida Keys and Key Largo wastewater plants, reasonably and logically follows the task in the preceding work year that required Monroe County to secure a site for the lower Florida Keys and Key Largo wastewater facilities. Given this chronology, it is reasonable that Task B does not require that the specified wastewater facilities be completed and fully operational the same year that construction begins. Petitioners contend that Task C of Year Ten of the Work Program, which requires Monroe County and Largo Sewer District to "initiate connections to lower Keys and Key Largo wastewater systems," is arbitrary and capricious and contravenes the law implemented. As a basis for this contention, Petitioners assert that Task C does not require the completion of connections and operation of the system, but requires only the undefined "initiation" of connections. Task C, which requires Monroe County to "initiate connections" to the lower Florida Keys and Key Largo wastewater facilities, is not arbitrary and capricious. Given the purpose of this task, this provision reasonably requires Monroe County to begin connecting units to the wastewater facilities. Even without a precise number, the reviewing agencies can evaluate the Work Program for Year Ten, including Task C, and determine if Monroe County has made substantial progress. City of Marathon Work Program Under Proposed Rules Proposed Rule 28-18.210 adds Year Eight and Year Nine to the existing Work Program in Policy 101.2.14 of the Marathon Comprehensive Plan. The tasks in the Work Program, many of which implement the Partnership Agreement, include tasks related to the construction of wastewater facilities, affordable housing, and hurricane evacuation. Year Eight of the Work Program of the Marathon Comprehensive Plan include, in relevant, part the following tasks: Year Eight (July 12, 2004 through July 12, 2005) Begin construction of wastewater collection lines for Little Venice Phase II by December 2004. Work with the Florida Keys Aqueduct Authority to initiate bond financing for citywide sewer facilities and to develop a schedule of events necessary to initiate process by December 2004. Develop and advertise a Request for Proposal for the design, construction, operation of Marathon Central Wastewater System by December 2004. Obtain necessary bond financing (60% of projected sewer cost) secured by connection fees by December 2004. Award contract for design, construction and operation of Marathon Central Wastewater System by December 2004. By January 2005, identify potential acquisition sites for affordable work force housing. Establish a partnership with non- profit organizations in order to construct affordable housing using additional state funds. Evaluate strategies to increase the time that affordable housing remains affordable; establish a maximum sales price for work force housing and establish a ceiling on down payments that are not subsidized by public programs; and amend comprehensive plan and/or land development regulations. * * * Develop a map or list of real estate numbers of lots containing environmentally sensitive lands in need of acquisition and submit to the Department of Community Affairs by July 2004. Assist the state in land acquisition efforts by establishing a land acquisition advisory committee to prioritize proposed acquisitions by July 2004. Complete a comprehensive analysis of hurricane evacuation issues in the Florida Keys and develop strategies to reduce actual hurricane clearance times and thereby reduce potential loss of life from hurricanes. Year Nine of the Work Program of the Marathon Comprehensive Plan includes in relevant part the following tasks: Year Nine (July 13, 2005 through July 12, 2006) Begin construction of Phase I of Marathon Central Wastewater System by January 2006. Evaluate wastewater master plan and indicate areas, if any, that will not receive central sewer. For any area that will not be served by central sewer, develop a septic tank inspection program and begin implementation of the program by September 2005. * * * E. Develop and implement a Building Permit Allocation System that discourages and limits development in environmentally sensitive areas within the proposed Marathon comprehensive plan by July 2005. Petitioners contend that Proposed Rule 28-18.210(1), which establishes the Work Program for Years Eight and Nine, is arbitrary and capricious and contravenes the law implemented, because it fails to adopt regulation and plan changes, or requires same, to protect terrestrial habitat to the extent shown necessary in the Carrying Capacity Study. The mere fact that the proposed Work Plan for Years Eight and Nine of the Marathon Comprehensive Plan does not address habitat protection, does not make those provisions arbitrary or capricious. Neither does it mean that they contravene law. In this case, it reflects that the Work Plan emphasizes other issues relevant to the City of Marathon Comprehensive Plan. Siting Utilities and Public Facilities The siting of public facilities in Monroe County is governed by existing Policy 101.12.4 in the Monroe County Comprehensive Plan. According to that policy, Monroe County requires that an "analyses be undertaken prior to finalizing plans for the siting of any new or significant expansion (greater than 25 percent) of any existing public facility," and that the analyses include "an assessment of needs, evaluation of alternative sites and design alternatives for the selected sites and assessment of direct and secondary impacts on surrounding land uses and natural resources." With regard to the assessment impacts on surrounding land uses and natural resources, existing Policy 101.12.4 provides the following: The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach berm areas, units of the coastal barrier resources system, undisturbed uplands (particularly high quality hammock and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, consistent with 105.2.1 offshore islands, and Conservation Land Protection Areas. Proposed Rule 28-20.110(2) amends existing Policy 101.12.4, which deletes the term "Conservation Land Protection Areas" from the category of areas included as environmentally sensitive areas, as quoted above, and replaces it with the term, "Natural Areas (Tier I)." Proposed Rule 28-20.110(2) also adds the following provision to existing Policy 101.12.4. Except for passive recreational facilities on publicly owned land, no new public community or utility facility other than water distribution and sewer collection lines or lift stations, and the existing Key Largo Wastewater Treatment Facility, shall be allowed within the Natural Areas (Tier I) unless it can be accomplished without clearing of hammock or pinelands. Exceptions to this requirement may be made to protect the public health, safety and welfare, if all the following criteria are met: No reasonable alternatives exist to the proposed location; and The proposed location is approved by a super-majority of the Board of County Commissioners. Petitioners contend that Proposed Rule 28-20.110(2), discussed above, is arbitrary and capricious and contravenes the law implemented. Petitioners assert that the Proposed Rule allows the siting of public facilities in terrestrial habitats (CNA or Tier I) and also allows water distribution and sewer collection lines or lift stations to be built as a matter of right in a CNA or Tier I, contrary to the findings of the Carrying Capacity Study. Petitioners also contend that the provision in the Proposed Rule, discussed above, is vague, because it refers to the term "natural areas," but is intended to mean CNAs. In the recent past, a decision to site a sewage treatment facility in an environmentally sensitive hammock elicited considerable controversy. Ultimately, Monroe County and the DCA agreed that public facilities should not be located on environmentally sensitive land. The proposed change to Policy 101.12.4 strengthens the policy by requiring approval of a super majority of the Monroe County Board of County Commissioners (County Commission) for an exemption. This also adds specificity to the policy and provides more protection for natural areas and, thus, improves protection of environmentally- sensitive habitat. Contrary to Petitioners' assertion, the term "natural area" is not vague. The Monroe County Comprehensive Plan currently includes Goal 105, which describes a detailed land classification system. "Natural Area (Tier I)" represents natural areas that can be targeted for acquisition and is an updated term. On the other hand, the term "Conservation Land Protection Areas" refers to lands targeted for acquisition by federal and state agencies. ROGO Exemption for Public Facilities Both Monroe County and Marathon have a "Rate of Growth Ordinance," also known as ROGO. A site proposed for development is ranked based on the environmental sensitivity of the property and receives negative points for greater environmental sensitivity. A site proposed for development can also receive positive points for such things as providing its own water system or elevation above the minimum flood insurance elevation. Monroe County and the City of Marathon award their annual allocation of development permits to the top-scoring sites. Proposed Rule 28-20.110 will make several modifications to the ROGO point allocation system in the Monroe County Comprehensive Plan. Existing Policy 101.3.4 of the Monroe County Comprehensive Plan provides that "public facilities shall be exempted from the requirements of the Permit Allocation System for new non-residential development." The existing policy also provides that certain development activity by enumerated federally tax-exempt, not-for-profit organizations "may be exempted from the Permit Allocation System by the County Commission after review by the Planning Commission upon a finding that such activity will predominantly serve the County's non- transient population." Proposed Rule 28-20.110(3) amends existing Policy 101.3.4 by requiring that the County Commission make an additional finding as a condition of exempting certain development activity by certain federally tax-exempt not-for- profit organizations from the Permit Allocation System. Pursuant to the proposed rule, the County Commission must also find that the "development activity is not planned within an area proposed for acquisition by governmental agencies for the purpose of resource protection." Petitioners contend that the provision of Proposed Rule 28-20.110(3), discussed above, is arbitrary and capricious and contravenes the law implemented in that the development activities of the federally tax-exempt, not-for-profit organizations covered by the proposed rule allows development activity on some environmentally-sensitive areas and is inconsistent with the Carrying Capacity Study. Existing Policy 101.3.4 allows development activity by not-for-profit organizations without a permit allocation because such development does not include overnight accommodations which might impact hurricane evacuation. Since a permit allocation was not necessary, such development was not affected by the negative points awarded for development in an area proposed for acquisition for resource protection. However, some not-for- profit organizations proposed development in environmentally- sensitive areas. The proposed change will prevent ROGO-exempt development on such lands and improve the protection of environmentally-sensitive habitat. Lot Aggregation Existing Policy 101.5.4, of the Monroe County Comprehensive Plan addresses the issue of lot aggregation and provides that "points shall be assigned to Allocation Applications for proposed dwelling units, which include a voluntary reduction of density permitted as of right within subdivisions (residential units per legally platted, buildable lots) by aggregating vacant, legally platted, buildable lots." This policy sought to reduce density within subdivisions by awarding or assigning positive points to applicants who aggregated two or more contiguous, vacant, legally buildable lots. The existing policy motivated and allowed applicants to purchase any contiguous property in order to be awarded additional points and, thus, increased their chances of receiving an allocation, even if the lots were in areas targeted for public acquisition for resource protection. Proposed Rule 28-20.110(4) amends Policy 101.5.4, Subsection 3, by prohibiting the awarding of points to Allocation Applications "for lot aggregation within those areas proposed for acquisition by public agencies for the purpose of resource protection." Petitioners assert that the proposed rule is arbitrary and capricious and contravenes the law implemented because it fails to adequately protect terrestrial habitat to the extent shown necessary in the Carrying Capacity Study. The basis of Petitioners' assertion is that under Proposed Rule 28-20.110(4), an applicant can get positive points for aggregating habitat, if the area is not proposed for acquisition by public agencies for the purpose of resource protection. Proposed Rule 28-20.110(4) will direct applicants seeking to be awarded additional points for "lot aggregation away from areas proposed for acquisition by public agencies for resource protection and, thereby, improve protection of terrestrial habitat. Clearing of Native Vegetation Existing Policy 205.2.7 of the Monroe County Comprehensive Plan provides that the "clearing of native vegetation shall be limited to the immediate development area." Under the existing policy, an applicant with aggregated lots would demand to clear a portion of both lots, so that a large portion of all of the lots would be cleared. Proposed Rule 28-20.110 amends existing Policy 205.27.7 by adding the following provision relating to the clearing of vegetation areas where Allocation Applications have received points for lot aggregation: For applications that receive points for lot aggregation under the Permit Allocation System for residential development, clearing of vegetation shall be limited to the open space ratios in Policy 205.2.6 or 5,000 square feet, whichever is less. The clearing of vegetation for ROGO applications that receive points for lot aggregation is also addressed in Proposed Rules 28-20.120(4), which adds a new provision, Regulation 9.5-347(e), to the Monroe County Land Development Regulations. That new provision is as follows: Section 9.5-347 (e) Lot Aggregation and Clearing: For ROGO applications that receive points for lot aggregation under Section 9.5-122.3 (a)(3), clearing of vegetation shall be limited to the open space ratios in paragraph (b) above or five-thousand (5,000) square feet, whichever is less. Petitioners contend that Proposed Rules 28-20.110(b) and 28-20.120(4) are arbitrary and capricious and contravene the law implemented, because they do not prohibit clearing of aggregated lots and are inconsistent with the Principles Guiding Development and with the Carrying Capacity Study. Notwithstanding Petitioners' assertions, even though the proposed rules do not prohibit all clearing of native vegetation, they will limit the amount of clearing for applicants who receive a ROGO allocation based upon lot aggregation. Under Proposed Rule 28-20.120(4), the clearing will be limited to an amount necessary to construct a reasonably-sized house. Technical Coordination Letter Proposed Rule 28-20.110(5), which will add a new policy, Policy 101.5.11, to the Monroe County Comprehensive Plan, provides the following: If not listed in the document "Parcels Not Located in Threatened and Endangered Species Habitat and Not Subject to FWS Consultation", or involving minor development activity exempted by the U.S. Fish and Wildlife Service (USFWS)", any application for a ROGO or NROGO allocation shall contain a technical coordination letter from the USFWS. The County shall consider the recommendations of the USFWS's technical coordination letter in the issuance of the subject permit, except that if a low-effect habitat conservation plan is required by USFWS, the mitigation requirements of that plan shall be incorporated in the conditions of the permit. As a result of federal litigation, the U.S. Fish and Wildlife Service ("USFWS") created a list of "Parcels Not Located in Threatened and Endangered Species Habitat and Not Subject to FWS Consultation." Monroe County and the DCA have developed the practice of requiring a technical coordination letter from the USFWS for development on parcels that are not on that list or are not otherwise exempt from USFWS review. Proposed Rule 28-20.110(5) incorporates into the Monroe County Comprehensive Plan a current practice that resulted from federal litigation. Monroe County Land Development Regulation 9.5-120 Proposed Rule 28-20.120(1) adds the phrase "species of special concern" to the following terms defined in Section 9.5-120(b) of the Monroe County Land Development Regulation as shown by the underlining: (1) "Known habitat of threatened/endangered animal species or species of special concern"; (2) "Potential habitat of threatened/endangered animal species" or species of special concern; and (3) Wide-ranging threatened/endangered animal species or species of special concern. This proposed change will conform the land development regulations to the Monroe County Comprehensive Plan by expanding the list of species that result in negative points under the Permit Allocation System to include "species of special concern." Existing Regulation 9.5-120(b) includes in the definitions of "known habitat of threatened/endangered animal species" and "potential habitat of threatened/endangered species" the sentence, "The county's threatened and endangered species maps shall constitute prima facie evidence of the species unless determined otherwise by the director of environmental resources." The definition of "wide-ranging threatened/endangered animal species" includes the sentence, "The county's threatened and endangered species maps shall constitute prima facie evidence of wide-ranging threatened or endangered species unless determined otherwise by the director of environmental resources."8 Proposed Rule 28-20.120(1) amends Section 9.5-120(b) by deleting the phrase, "unless determined otherwise by the director of environmental resources" from the sentences quoted above. Proposed Rule 28-20.120(1)(a) adds the following provision to the section of Regulation 9.5-120, which defines the term "known habitat of threatened/endangered species or species of special concern": (1) . . . The county's threatened and endangered species maps shall constitute prima facie evidence of the species. Within areas designated for public acquisition for the purposes of resource protection, any threatened, endangered or species of special concern species observed on site while conducting a habitat evaluation shall be noted on the adopted Threatened and Endangered Species Maps. Such observations noted while conducting a habitat evaluation by County Staff Biologists, consultants certified by the County, conducting habitat evaluations, or state or federal agency representatives conducting field inspections shall also constitute evidence of species. Petitioners contend that the portion of Proposed Rule 28-20.120(1)(a), quoted above, is arbitrary and capricious. Petitioners assert that the Proposed Rule fails to account for potential observations of "known habitat of threatened/endangered animal species" on parcels that are not within "areas designated for public acquisition for purposes of resource protection." Also, Petitioners assert that the Proposed Rule limits observations of species required to be noted on the adopted threatened and endangered species maps to consultants or scientists on the parcel specifically to conduct an HEI analysis and fails to require field verification of the parcel. Proposed Rule 28.20.120(1)(a) will expand the circumstances in which observations of listed species will cause modification of the adopted threatened and endangered species maps. Under the present land development regulations, Monroe County modified the maps only if a county staff biologist observed a listed species and did not take into account other professional observations. Monroe County Land Development Regulation 9.5-122.3 Regulation 9.5-122.3(a)(8) of the Monroe County Land Development Regulations establishes and assigns evaluation criteria and point assignment for applications for proposed dwelling units in Monroe County. The existing regulation requires that negative points be assigned to applications that propose a dwelling unit within a "known habitat of a documented threatened/endangered species" and a "potential habitat of threatened/endangered species." Proposed Rule 28-20.120(2) adds the following language to Section 9.5-122.3.(a)(8),9 as shown by the underlined provisions: Point Assignment: Criteria: -10 An application which proposes a dwelling unit within a known habitat of a threatened/endangered species or a species of special concern. For species of special concern, negative points shall only be applied to areas designated for public acquisition for the purpose of resource protection. -5 An application which proposes a dwelling unit within a potential habitat of a threatened/endangered species or a species of special concern. For species of special concern, negative points shall only be applied to areas designated for public acquisition purposes of resource protection. Regulation 9.5-1223.(a)(8), as amended, adds "species of special concern" to the species covered by the existing regulation. Also, the amended regulation requires that negative points be assigned to applications that propose dwelling units in a habitat of a species of special concern, if the area is designated for public acquisition for purposes of resource protection. Petitioners contend that Proposed Rule 28-20.120(2), which amends Regulation 9.5-122.3(a)(8), is arbitrary and capricious. As a basis for this contention, Petitioners assert that even though the Proposed Rule increases situations where an application is awarded negative points, it decreases protection of habitat by limiting the negative point award only to habitat of special concern that have been designated for public acquisition. Proposed Rule 28-20.120(2) increases situations in which an application will be awarded negative points by adding "species of special concern" to the species covered by Regulation 9.5-122.3(a)(8). By awarding negative points as provided in the proposed rule, there is increased protection of habitat for species of special concern. Monroe County Land Development Regulation 9.5-336 Proposed Rule 28-20.120(3) amends Section 9.5-336(b) of the Monroe County Land Development Regulations as follows: (b) Review and Amendment: The existing conditions map may be refined to reflect conditions legally in existence on February 28, 1986. Such refinements shall be made pursuant to the procedures for typographical and drafting errors in section 9.5-511(e). The existing conditions map as referenced throughout this chapter is intended only to serve as a general guide to habitat types for the purpose of preliminary determination of regulatory requirements. The county biologist shall make the final determination of habitat type based upon field verification, except that existing conditions that reflect disturbed with hammock shall be classified as a low quality hammock. Unlawful conditions shall not be recognized when determining regulatory requirements. Petitioners contend that Proposed Rule 28-20.120(3) is arbitrary and capricious and contravenes the law implemented because it does not protect all habitat. The existing conditions map was prepared in the 1980s. Many of the sites designated on the map as "disturbed with hammock" have re-vegetated since then. The proposed change will protect those sites by requiring clustering away from the hammock and by controlling the amount of allowed clearing. Hurricane Evacuation Monroe County and Marathon face a unique hurricane evacuation challenge. There is only one road out of the Florida Keys, and everyone must use that road to evacuate. For a Category 3 or greater hurricane, all areas of the Florida Keys must be evacuated because of the low elevations, the vulnerability to storm surge, and the logistics of post-disaster recovery. The Monroe County Comprehensive Plan and the Marathon Comprehensive Plan currently state that each ". . . shall reduce hurricane evacuation clearance times to 24 hours by the year 2010." The 24-hour standard was adopted by the Administration Commission at the conclusion of prior litigation over the Monroe County Comprehensive Plan. The term "hurricane evacuation clearance time" refers to the time that the emergency managers must call the evacuation before the arrival of tropical storm force winds. Hurricane evacuation clearance time includes both the time for citizens to mobilize (i.e., get their affairs in order, shelter their houses, take care of their belongings), and the time to evacuate the vehicles from the roadway. Tropical storm force winds typically arrive eight to 12 hours before the eye of the storm. In order to achieve a 24-hour hurricane evacuation clearance time, emergency managers must call the evacuation 32 to 36 hours before the arrival of the eye. The DCA contracted with Miller Consulting, Inc., to create a computer model to estimate the actual hurricane evacuation clearance time for the Florida Keys. The Miller model provides the best available data and analysis for estimating the clearance time. The latest run of the Miller model performed by the DCA using 2000 Census data, supplemented with development permit data up to August 2004, provides the best estimate of clearance time. This run of the Miller model estimates a hurricane evacuation time of 23 hours and 56 minutes to reach the beginning of the Homestead Extension of the Florida Turnpike on the mainland, and 24 hours and 48 minutes to reach the hurricane shelter at Florida International University ("FIU"). The beginning of the Florida Turnpike in Florida City is the appropriate endpoint for hurricane evacuation clearance time estimates. Florida City is a point of relative safety outside of the Category 3 vulnerability zone. Florida City is also the point of dispersal for the Florida Keys, where evacuees disperse to any number of destinations, such as South Dade, the FIU shelter, or a hotel in Orlando. The Miller model estimates that if those permit allocations are restored and the annual allocation is increased as described above, the hurricane evacuation clearance time next year will be 24 hours and four minutes. This exceeds the 24-hour standard adopted by the Administration Commission. Proposed Rule 28-20.110 adds the following requirement to Year Eight of the Work Program in Policy 101.2.13 of the Monroe County Comprehensive Plan and Policy 101.2.12 of the Marathon Comprehensive Plan: "Complete a comprehensive analysis of hurricane evacuation issues in the Florida Keys and develop strategies to reduce actual hurricane clearance times and thereby reduce potential loss of life from hurricanes." The Florida Keys' local governments have begun the comprehensive analysis of hurricane evacuation issues by convening a workgroup comprised of local government-elected officials and staffed by the DCA. The hurricane workgroup is considering alternative strategies to reduce clearance times, such as constructing an additional outbound lane, using transportation system management to create a temporary outbound lane, updating the assumptions for the Miller model, reducing transient occupancy, or calling the evacuation earlier. The working group must develop a strategy that balances or accommodates development and also addresses hurricane clearance times. The hurricane workgroup must do much more than simply squeeze a few more minutes out of the Miller model. There are currently 13,000 to 14,000 vacant platted lots in the Florida Keys, which must be allowed to develop or must be purchased by government. On average, 3,000 dwelling units generates about one hour of clearance time. As an example, if 8,000 or so lots were purchased for habitat protection, then two more hours of clearance time will be needed to accommodate the remaining 5,000 or 6,000 lots. The hurricane workgroup must develop a strategy to handle the amount of development permitting that can be expected and a program to acquire the balance of the vacant lots. Affordable and Workforce Housing There is an affordable housing crisis in the Florida Keys. The geography of the Florida Keys hinders the ability of working families in the Florida Keys to find affordable housing. Unlike other expensive areas, such as Boca Raton, working families cannot find affordable housing nearby; the nearest area where housing prices are affordable is the mainland in Dade County. From 1999 to 2003, there were 693 allocations for affordable housing units in the Florida Keys. This amount includes all the allocations for affordable housing units for that time period, even those allocations for which affordable housing units were not constructed. The number of affordable housing allocations issued from 1999 to 2003 and the number being issued under the existing Comprehensive Plans of Monroe County and the City of Marathon, are not sufficient to address the need for affordable housing. The Partnership Agreements recognize and address the affordable housing shortfall by increasing the number of annual affordable housing allocations, restoring residential allocations lost in previous years, and providing funding for the acquisition of land and the construction of workforce housing. As discussed above, Proposed Rule 28-20.110 implements the provisions of the Partnership Agreement by amending the Monroe County Comprehensive Plan as follows: increasing the number of annual affordable housing allocations from 32 to 71; (2) reallocating 140 unused allocations to affordable housing; and (3) requiring that the affordable housing remain affordable in perpetuity. Additionally, as specified in paragraph 60, the Work Program in Proposed Rule 28-20.110 requires Monroe County to complete tasks which will be an improvement of the affordable housing situation in Monroe County. As discussed above, Proposed Rule 28-18.210 implements the Partnership Agreement by amending the City of Marathon Comprehensive Plan as follows: (1) increases the overall number, though not the percentage, of allocations for affordable housing to six; (2) restoring 65 unused allocations for affordable housing; and (3) requiring that the affordable housing remain affordable in perpetuity. Also, as specified in paragraph 101, Proposed Rule 28-18.210 requires the City of Marathon to complete tasks that will result in improving the affordable housing issues in the City of Marathon. Proposed Rules 28-20.110 and 28-18.210 only partially address the affordable housing shortage in the Florida Keys. Nonetheless, the proposed amendments to the Comprehensive Plans of Monroe County and the City of Marathon will improve the current affordable housing shortage by increasing the number of affordable houses and providing the financial resources to make that more likely to occur. The Principles Guiding Development Subsection 380.0552(7), Florida Statutes (2004), provides in relevant part: PRINCIPLES FOR GUIDING DEVELOPMENT.- -State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development . . . . For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. . . . [T]he following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. In determining whether the Proposed Rules are consistent with the principles, the principles should be considered as a whole. No specific provision should be construed or applied in isolation from other provisions. Ability to Manage Land Use and Development Principle A, set forth in Subsection 380.0552(7)(a), Florida Statutes, is "to strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation." Monroe County and the City of Marathon have evidenced a willingness and commitment to provide the funding required to meet the objectives of the Principles Guiding Development. Both local governments have included in the Proposed Rules tasks which reflect their understanding of the need to provide critical facilities, such as wastewater treatment facilities. While the need for such facilities has previously been acknowledged, the Proposed Rules provide a specific source of revenue to provide the needed facilities. Moreover, with regard to Monroe County, the proposed rules/regulations at issue in this proceeding strengthen the environmental protections measures in the Comprehensive Plans while allowing reasonable development. The proposed rules for Monroe County and the City of Marathon are consistent with Principle A. Environmental Issues Subsections 380.0552(7)(b), (c), and (e), Florida Statutes, are principles which require consideration of the impacts on the environment of the Florida Keys. Principle B is "to protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat." Principle C is "to protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat." Principle E is "to limit the adverse impacts of development on the water quality of water throughout the Florida Keys." Principle I is "to limit the adverse impacts of public investments on the environmental resources of the Florida Keys." The Proposed Rules of Monroe County and the City of Marathon include amendments to the Work Program which provide significant funding for sewage treatment systems that will enhance the protection of the shoreline and marine resources. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle B. The Proposed Rules of Monroe County improve protection of terrestrial habitat, limit clearing of native vegetation, and provide safeguards to ensure that parcels in threatened and endangered species habitat are protected. The proposed rules of Monroe County are consistent with Principle C. The portions of the Proposed Rules of the City of Marathon that are the subject of this proceeding do not specifically address Principle C. However, the Proposed Rules of the City of Marathon are not inconsistent with Principle C. Accordingly, the proposed rules of the City of Marathon are consistent with Principle C. The Proposed Rules of Monroe County and the City of Marathon limit the adverse impacts of development on the quality of water throughout the Florida Keys by the funding commitments that will hasten the construction of the sewage treatment facilities. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle E. The Proposed Rules do not encourage any public investment that would have an adverse impact on environmental resources. To the contrary, the Monroe County and the City of Marathon Proposed Rules provide for public investments in waste water improvements that are accelerated. Also, the Monroe County Proposed Rules prevent the construction of public facilities within a hammock area. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle I. Economic Development Principle D in Subsection 380.0552(7)(d), Florida Statutes, is "to ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. The basis of the Florida Keys' economy is tourism, which is attracted by a clean and healthy environment. The increased protection of water quality that should be achieved by the hastened construction of sewage treatment facilities and the improved protection of habitat will strengthen the economy of the Florida Keys and provide the basis for a sound economic development. Also, the Proposed Rules balance environmental protection with property rights. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle D. Historical Character and Heritage Principle F in Subsection 380.0552(7)(f), Florida Statutes, is "to enhance natural and scenic resources, promote the aesthetic benefits of the natural environment and ensure that development is compatible with the unique historic character of the Florida Keys." Principle G in Subsection 380.0552(7)(g), Florida Statutes, is "to protect the historical heritage of the Florida Keys." The Proposed Rules of Monroe County and the City of Marathon will have little or no impact on the historic character and historical heritage of the Florida Keys. Thus, the Proposed Rules do no harm to either the historic character or historical heritage of Monroe County or the City of Marathon. Public Investments Principle H in Subsection 380.0552(7)(h), Florida Statutes, is "to protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major life investments," including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. . . . The Proposed Rules of Monroe County and the City of Marathon do nothing to undermine the value, efficiency, cost- effectiveness or amortized life of existing major investments. Rather, the Proposed Rules will result in funding and timely construction of the major sewage and disposal facilities that are already contemplated by Monroe County and the City of Marathon's existing Comprehensive Plans. Affordable Housing Principle J in Subsection 380.0552(7)(j), Florida Statutes, is "to make available adequate affordable housing for all sectors of the population of the Florida Keys." The Proposed Rules include a one-time allocation of 165 permits for affordable housing in Monroe County and 65 permits for affordable housing in Marathon. The Proposed Rules will require all future affordable housing to remain as affordable in perpetuity, rather for a limited time frame. The Propose Rules are consistent with Principle J. Natural or Man-made Disaster and Post-Disaster Relief Principle K in Subsection 380.0552(7)(k), Florida Statutes, is "to provide adequate alternatives for the protection of public safety and welfare in the event of a natural disaster or man[-]made disaster and for a post[-]disaster reconstruction plan." The Proposed Rules require officials of Monroe County and the City of Marathon to participate with other Florida Keys' local governments in a comprehensive analysis of hurricane evacuation issues. The Proposed Rules are consistent with Principle K. Health, Safety, and Welfare of Citizens and Maintenance of Florida Keys as Unique Resource Principle L in Subsection 380.0552(7)(l), Florida Statutes, is "to protect the health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource." The Proposed Rules of Monroe County include provisions that increase protection of upland habitat and require a moratorium on ROGO/NROGO applications in hammocks and pinelands, revisions to the CNA maps, and amendments to the land development regulations. The Proposed Rules for Monroe County and the City of Marathon will improve the water quality by providing funding for and hastening the construction of sewage treatment facilities. The Proposed Rules of Monroe County and the City of Marathon will provide more permit allocations for affordable housing, require Monroe County to approve bond funding for the construction of affordable housing, and provide that all future affordable housing remain affordable in perpetuity. Also, the Proposed Rules require Monroe County and the City of Marathon to participate in a Florida Keys wide analysis and solution to the hurricane evacuation problem. The Proposed Rules of Monroe County and the City of Marathon further the objective of and are consistent with Principle K. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle L.
The Issue The issues to be determined in this case are whether Petitioner is entitled to an environmental resource permit and modified sovereignty submerged land lease for the construction of commercial marinas and related structures at Petitioners property in Lee County, Florida. PRELIMARY STATEMENT On October 23, 2006, Petitioner applied to the South Florida Water Management District (“District”) for an environmental resource permit (“ERP”). Petitioner also sought modification of its sovereignty submerged land lease ("Lease") from the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees). On September 28, 2007, the District issued a Staff Report recommending that the ERP and Lease be denied. The Governing Board of the District adopted the staff’s recommendation on October 11, 2007. On October 12, 2007, the Petitioner filed a Petition for Administrative Hearing challenging the agency action. The District referred the petition to DOAH to conduct an evidentiary hearing. The case was abated for an extended period of time during which the parties attempted to settle their disputes. In October 2009, Intervenors' petition to intervene was granted. Intervenors were subsequently granted leave to amend their petition. Following notice from the parties that they were unable to settle their disputes, a final hearing was scheduled. At the final hearing, Petitioner presented the testimony of: Michael Morris, Jr.; David Depew; and Hans Wilson, accepted as an expert in ocean engineering, environmental sciences and navigation. Petitioner presented the testimony of Anita Bain through the introduction of her deposition. Petitioner's Exhibits 5, 8, 9, 14 through 16, 19, 20, 24, 26, 30, 34, 35, 40 through 43, 46 through 50, 52, and 56 through 58, were admitted into evidence. Petitioner's Exhibit 35 was accepted as a proffer. The District presented the testimony of: Holly Bauer- Windhorst, accepted as an expert in environmental biology; Melinda Parrott, accepted as an expert in marine biology and environmental impact analysis; Anita Bain, accepted as an expert in biology and environmental impact assessments; Robert Brantly, a professional engineer and Director of the Department's Bureau of Coastal Engineering; and Mary Duncan, accepted as an expert in biology and manatee impact assessment. The testimony of Peter Eckenrode was presented through his deposition. The District's Exhibits 5, 10, 12, and 14 through 18 were admitted into evidence. Intervenors presented the testimony of: Leonardo Nero, accepted as an expert in marine biology, seagrass conservation, oceanography, navigation, and vessel operation and maintenance; Gary Shelton; Sally Eastman; and Christine Desjarlais-Leuth. Intervenors' Exhibits 1, 5, 7, 8, 9, and 14 were admitted into evidence. The two-volume Transcript of the hearing was filed with DOAH. The parties filed proposed recommended orders. Petitioner filed revised pages to its proposed recommended order to correct scrivener's errors. Petitioner moved to strike an issue that was raised for the first time in the District and Intervenors' Joint Proposed Recommended Order. The motion to strike is granted as discussed in the Conclusions of Law.
Findings Of Fact The Parties Petitioner, Highpoint Tower Technology, Inc., is a Florida corporation with its mailing address at 800 South Osprey Avenue, Building B, Sarasota, Florida 34246. Petitioner is the owner of property located in Section 25, Township 45 South, Range 22 East, in Lee County, Florida, consisting of approximately eight acres. The property is on Bokeelia Island, on the northern tip of Pine Island. Petitioner is the applicant for the ERP and Lease which is the subject of this proceeding. The District is a regional water management agency with powers and duties established in Chapter 373, Florida Statutes. Its principal office is located at 3301 Gun Club Road in West Palm Beach. The District regulates certain construction activities in waters of the state pursuant to Chapter 373, Part IV, Florida Statutes, and Florida Administrative Code Chapter 40E. The District has also been delegated authority from the Board of Trustees to process applications for submerged land leases for structures and activities on or over sovereignty submerged lands. See Fla. Admin. Code R. 18-21.0051. Intervenor Sally Eastman resides on property adjacent to the proposed project. Intervenors, Christine Desjarlias-Leuth and Ron Leuth, own and reside on riparian property approximately 400 feet from the proposed project. Intervenor Gary Shelton owns and resides on riparian property near the proposed project. All Intervenors use the waters of Charlotte Harbor for water-based recreational activities, including fishing, swimming, boating, wading, and nature observation. The Affected Waterbodies The north side of Petitioner's property is adjacent to Charlotte Harbor. The south side of the property is adjacent to Back Bay. Both waterbodies are within the Pine Island Sound Aquatic Preserve. The aquatic preserve is an Outstanding Florida Water. Aquatic preserves are so designated because they have exceptional biological, aesthetic, and scientific value. It is the intent of the Legislature that aquatic preserves be set aside forever as sanctuaries for the benefit of the public. See § 258.36, Fla. Stat. Aquatic preserves were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations. See Fla. Admin. Code R. 18-20.001(1). Charlotte Harbor in this location is a large expanse of open water with 10 to 12 miles of fetch to the north, making it subject to high winds and waves during storms. The water bottom of Charlotte Harbor is sandy. There are many areas of Charlotte Harbor with "prop scars," which are caused when boats travel in shallow waters and impact the bottom with boat motor propellers. There are seagrasses growing in the vicinity of Petitioner's Charlotte Harbor shoreline, mostly Thallasia testudinum (turtle grass) and Syringodium filiforme (manatee grass). Healthy turtle grass beds are growing near the proposed marina structures in Charlotte Harbor. There was some dispute about whether the turtle grass is 12 inches or 18 inches in length. The more persuasive evidence is that mature turtle grass is 18 inches in length. If there is turtle grass of shorter length in the area of the proposed project, it will eventually mature to a length of 18 inches. These seagrass communities qualify as a Resource Protection Area ("RPA") 1, which is defined in Florida Administrative Code Rule 18-20.003(54) as "[a]reas in aquatic preserves which have resources of the highest quality and condition for that area." There is also small patch of soft whip coral offshore, as well as some sea lettuce and interstitial algae on the sandy bottom. No water quality data for this area of Charlotte Harbor was presented by Petitioner. West Indian manatees are known to forage and move in the area near Petitioner's Charlotte Harbor shoreline, as well as in Back Bay. The manatee is a "listed" species. Back Bay is a small, semi-enclosed bay. It is shallow, averaging around four feet in depth at mean low water. A narrow passage known as Jug Creek leads out of Back Bay to Pine Island Sound. There are no seagrasses along Petitioner's shoreline on Back Bay, but there are seagrasses elsewhere in Back Bay. There are many prop scars in the shallower areas of Back Bay. The water bottom in Back Bay is silty and organic. It can be easily stirred up by boats and propeller action. No water quality data for Back was presented by Petitioner. Existing Structures A public access fishing pier extends about 400 feet from Petitioner's property into Charlotte Harbor, generally forming a "T." The pier has existed for decades and was one of the first landing and offloading piers in the region for commercial fishing activities, with fish houses on the adjacent uplands. The riparian owner obtained title to the submerged lands beneath the fishing pier by operation of the Butler Act, which vests title in the riparian upland owner to submerged lands if structures were erected over or upon the submerged lands before 1951. Therefore, a submerged land lease from the Board of Trustees is not required for the fishing pier. However, Petitioner obtained a submerged lands lease in 2000 for two recreational boat slips along the east side of the pier. There is a seawall along Petitioner's Charlotte Harbor shoreline. Petitioner's upland was formerly occupied by approximately 120 mobile homes, which were served by septic tanks. The mobile homes were removed two or three years ago and Petitioner obtained a separate environmental resource permit from the District in May 2006 for a proposed new residential and commercial development on the uplands called Bokeelia Harbor Resort. Construction of the new development, which would include single-family homes, multi-family buildings, a swimming facility, and a restaurant, has not yet begun. In Back Bay, Petitioner's shoreline has a seawall and a number of finger piers extending off the seawall. Petitioner has two submerged land leases in Back Bay, one that authorizes 50 boat slips and another that authorizes 10 slips. Only about a dozen boats have been using these slips in recent years. There are two boat ramps on Petitioner's property for access to Back Bay. The record evidence leaves unclear whether the ramps were for the exclusive use of the former mobile home residents or were used by the general public. The historical and current use of the boat ramps, in terms of the average number of launches per month or year, was not established in the record. There is a man-made, seawalled canal or basin on Petitioner's property that connects to Back Bay. There are piers and slips in the canal, which Petitioner claims could accommodate about 30 boats. Aerial photographs of the canal indicate that 20 to 25 boats is a more reasonable estimate. The water bottom of the canal is privately owned and, therefore, does not require a submerged lands lease. Petitioner presented inconsistent information about the number of existing boat slips in Back Bay. Petitioner claimed that there are as many as 108 slips in Back Bay. That number seems impossible, given that only 60 slips are authorized by the two submerged land leases. There was no exhibit presented to show where the 108 slips are located. The Department of Community Affairs determined that 85 slips in Back Bay were "vested" for purposes of the development of regional impact review program in Chapter 380, Florida Statutes, which means the slips were constructed before July 1, 1973. The Florida Fish and Wildlife Conservation Commission thinks there are now 82 boat slips in Back Bay. The Department of Environmental Protection thinks there are 80. Petitioner had a motive to exaggerate the number of existing slips. The unsupported testimony of Petitioner's witness that there are 108 slips in Back Bay was not substantial evidence.1/ It is found that Petitioner currently has approximately 82 boat slips in Back Bay. Petitioner is not currently controlling the use of the slips in Charlotte Harbor and Back Bay, such as by limiting the size or draft of vessels. There are no signs that inform boaters about seagrasses or manatees. There are currently no sewage pump-out facilities. Petitioner is not currently controlling boaters' uses of fuel or other chemicals. However, no evidence was presented to show the extent of any past or current polluting activities. Petitioner sought to show that the septic tanks that had been removed from the upland property were a source of nutrients and other pollutants to Charlotte Harbor. The District and Intervenors objected to this evidence as irrelevant because the ERP and Lease applications do not involve the removal of the septic tanks and their replacement with a central sewage collection system, and because Petitioner removed the septic tanks some years ago as part of its re-development of the uplands. The objection was sustained, but Petitioner was allowed to make a proffer that the removal of the septic tanks improved the water quality of the adjacent waterbodies. The issue was one of relevancy alone, because it was apparently undisputed that the removal of the septic tanks resulted in some unquantified improvement in the water quality of adjacent waterbodies.2/ The Proposed Project Petitioner proposes to construct new commercial docks and related structures (marinas) in both Charlotte Harbor and Back Bay. The Charlotte Harbor marina would have 24 boat slips, which is 22 more slips than currently exist. The Back Bay marina would have 43 slips, which is 39 fewer slips than currently exist. Overall, the proposed project would result in a reduction of about 17 slips. Petitioner would make all boat slips in the marinas available to the public on a “first come - first served” basis. Some slips would be leased on an annual basis. An unspecified number of slips would be for day rental, primarily to accommodate patrons of the restaurant on the uplands. In Charlotte Harbor, a long pier would extend to a dock configuration that forms a marina basin, with concrete panels on three sides extending from above the water line to below the sandy bottom to act as a breakwater. The opening into the marina basin for ingress and egress by boaters would be to the southeast. On the west side of the marina basin would be a 1500 square foot fishing platform. Slips 1 through 5 would be along the east side of the pier and would have boat hoists to raise the boats out of the water. Because seagrasses are growing near slips 1 through 5, Petitioner agreed to limit the draft of boats using these slips to 30 inches. Slips 6 through 24 would be within the protected marina basin. These slips are intended to accommodate larger boats than the kinds of boats that can safely navigate in the shallow waters of Back Bay. However, boats using slips 6 through 24 would not be allowed to have drafts greater than five feet. These slips would not have hoists. All the new slips in Back Bay are designed for a maximum boat length of 30 feet, but the slips vary with regard to maximum allowed draft, from 16 inches to three feet, depending on the depth of the adjacent waters. The Charlotte Harbor marina would extend about 100 feet more waterward so that it would be 500 feet from the shoreline, which is the maximum extension allowed under Florida Administrative Code Rule 18-20.004(5)(a)1. No boats slips or mooring would be allowed beyond the 500-foot limit. The canal connected to Back Bay would be filled in, and three additional residential units would be placed on the uplands created by the filling. Petitioner suggested that the canal has poor water quality, such as low dissolved oxygen, and that elimination of the canal would be a benefit for the water quality of Back Bay. Petitioner presented no water quality data to support this allegation, but the elimination of the canal would more likely than not have some small water quality benefit for Back Bay. The boat ramps on the upland would be removed. A new seawall would be installed along Petitioner's Back Bay shoreline and approximately 400 reef balls would be placed in the water along the face of the seawall. The reef balls are three feet tall and four feet wide, made of cement, and have openings. It is expected that oysters and barnacles would colonize the reef balls. Because there are oysters, barnacles, and other filter feeders in Back Bay, that expectation is a reasonable one. Fish are likely to be attracted to the reef balls. Petitioner contends that the reef balls, after they are colonized by oysters, will provide water quality benefits, because oysters filter the water when feeding. Although there was some support in the record for this general proposition, there was no evidence presented about the types of pollutants that can be removed from the water by oysters, or the level of water quality improvement that reasonably could be expected. Reef balls have been used at another marina in the region and were determined by the regulatory agencies to provide some public benefit, but Intervenors' expert, Leonard Nero, believes that the value of reef balls is exaggerated. It is his opinion that reef balls do not function like a natural habitat because there is no primary food production or sustainable biological interrelationships. It is found that the proposed reef balls would provide some small environmental benefits to the Back Bay ecosystem. In Back Bay, there are currently no channel markers except in Jug Creek. Petitioner proposes to provide channel markers so that boats entering and leaving the marina would be guided away from shallower waters and away from seagrasses. Petitioner prepared a Marina Management Plan to govern the operation of the marinas, including the use of the slips. The management plan requires waste receptacles and restricts the use and storage of fuel and other chemicals. The plan also includes an education program to inform marina users about water quality and habitat protection. A harbor master would be employed to oversee the operation of the marinas. The harbor master would be responsible for assuring compliance with the requirements in the Marina Management Plan, including maximum boat drafts, fuel spill prevention and clean-up, proper use of sewage pump-out facilities, prevention of hull cleaning and use of deleterious boat cleaning products, and proper disposal of fish cleaning wastes. The harbor master's office would be located on the docks over Charlotte Harbor. The District and Intervenors are not impressed with Petitioner's proposal to employ a harbor master to control marina activities because the harbor master would not be at the marinas 24 hours a day and could not be present at both marinas at the same time. However, the employment of a harbor master would strengthen the use and enforcement of the Marina Management Plan. There would be educational signs for boaters with information about manatees and seagrasses. Petitioner proposes to install sewage pump-out facilities at both marinas that would be connected to the sewage collection system that will serve the upland development. The proposed project includes modifying the proposed upland residential development to add three residential units and a cul de sac, and enlarging a stormwater retention area to accommodate the associated stormwater impacts. Project Impacts Seagrasses It is usually difficult and sometimes impossible for seagrasses to re-colonize an area that has been prop-scarred. Seagrasses are the primary food of manatees, so an adverse impact to seagrasses is an adverse impact to manatees. The seagrasses to the east of the entrance of the proposed Charlotte Harbor marina are subject to disturbance from boats entering and leaving the marina. Boats approaching or departing from slips 1 through 5 are likely to cross these seagrasses from time to time. The water depth in the area of slips 1 and 2 is about minus five feet (mean low water) at the shallowest. For any seagrasses growing at minus five feet, and assuming the seagrasses are 18 inches in length, the clearance between the bottom of a boat with a 30-inch draft and the top of seagrasses would be 12 inches at mean low water. District and Intervenors are also concerned about the potential impacts to the seagrasses near the proposed Charlotte Harbor marina from large boats using slips 6 through 24, which could have a draft of five feet. About 260 feet to the east of Petitioner's pier is another pier, known as Captain Mac's Pier. There are seagrasses between the two piers. Boaters wanting to reach slips 6 through 24 would have to navigate past Petitioner's marina basin, into the area between Petitioner's pier and Cap'n Mac's pier, and then make nearly a 180 degree turn to enter the marina basin. The more persuasive record evidence indicates that this maneuver would sometimes be difficult for inexperienced or inattentive boaters even in relatively calm conditions. In windy and storm conditions, the maneuver would be difficult even for experienced boaters. If there are tethered buoys marking the limits of the seagrasses, as proposed by Petitioner, the buoys would add to the navigational challenge. The preponderance of the credible evidence shows that it is likely that boaters in vessels with drafts greater than 30 inches, when entering or leaving the marina basin, would sometimes cross the seagrasses and do damage to the seagrasses and other submerged resources. Another potential adverse impact to seagrasses is shading caused by structures. Shading caused by the existing fishing pier in Charlotte Harbor appears to have impeded the growth of seagrasses in some areas near the pier. The proposed breakwater for the Charlotte Harbor marina presents a relatively unique shading issue. Petitioner did not adequately demonstrate that shading from the proposed structures in Charlotte Harbor would not adversely affect seagrasses. The District and Intervenors contend that the proposed project would also cause adverse impacts to seagrasses in Back Bay. However, because Petitioner has reduced the numbers of slips in Back Bay and eliminated the boat ramps, the boat traffic in Back Bay should be reduced. Furthermore, Petitioner would restrict boat drafts and mark a channel to guide boaters to deeper waters and away from seagrasses. Therefore, the proposed project would likely reduce the risk of damage to seagrasses and other submerged resources in Back Bay. The District and Intervenors describe Petitioner's proposal to install channel markers in Back Bay as too "tentative" because there is another developer that has proposed to install channel markers and Petitioner's proposal is to install the markers if the other developer does not. However, the details of the channel marking are in evidence. If the channel marking is made a condition for construction of the proposed project, it can be considered a part of the reasonable assurance of compliance with relevant permitting criteria. No specific evidence regarding the general health and value of the seagrasses in Back Bay was presented. The seagrasses in Back Bay are not designated as an RPA. There was no evidence presented that there is soft coral or other submerged resources in Back Bay. Therefore, the reduced risk of harm to the seagrasses in Back Bay does not offset the potential harm that the proposed project would cause to the seagrasses and other submerged resources in Charlotte Harbor. Manatees Petitioner agreed to comply with all of the conditions recommended by the Florida Fish and Wildlife Conservation Commission related to the protection of manatees: In order [to] ensure a minimum clearance of 12 inches above the top of seagrass so as to avoid damage located in the project ingress/egress route, the maximum draft, including propeller(s), for vessels associated with slips 1-5 in Charlotte Harbor shall be 30 inches. The Standard Manatee Conditions for In- Water Work (revision 2009) shall be followed for all in-water activity. Handrails shall be constructed and maintained along the access pier and the landward side of the terminal platform to prevent mooring outside of the designated slip areas. The Permittee shall develop and implement a Florida Fish and Wildlife Conservation Commission (FWC)-approved marina educational program prior to slip occupancy. The Permittee shall develop this educational program with the assistance of FWC, and FWC shall approve this education plan prior to its implementation. The program may include (at a minimum) the posting of permanent manatee educational signs and the display of brochures in a prominent location. The educational program must be maintained for the life of the facility. The [Permittee] shall install and maintain seagrass marker buoys as depicted in the site plan for the docks in Charlotte Harbor. The buoys must be permitted by the U.S. Coast Guard and the Florida Fish and Wildlife Conservation Commission's Boating and Waterways Section, and maintained for the life of the project. The [P]ermittee shall provide bins for the disposal of or recycling of monofilament line or other used fishing gear. The [P]ermittee shall also provide educational signs encouraging the use of these bins. Larger boats are generally more lethal in collisions with manatees because there is usually more momentum involved. Greater momentum generally causes deeper propeller cuts and other serious physical injury. Slips 6 through 24 in the Charlotte Harbor marina would accommodate boats of greater size (up to five-foot draft) than would have used the slips that would be eliminated in Back Bay, creating some small, unquantified additional risk of increased injury or death to manatees in Charlotte Harbor and other area waters. Lee County reviewed the proposed project against the Lee County Manatee Protection Plan and scored the project as "Preferred." The factors that the County considered in scoring the project were not explained. The reduction of boat traffic in Back Bay that would result from the eliminating boat slips and removing the boat ramps, and the marking of a channel away from seagrasses in Back Bay, would reduce the current risk to manatees using Back Bay. However, that reduction of risk is offset by the increased risk of injury to manatees associated with the addition of 17 larger slips in the Charlotte Harbor marina, the potential for collisions with any manatees foraging in the seagrass near the Charlotte Harbor marina, and the potential loss of seagrasses from boat impacts and shading. The overall effect of the proposed project on manatees would probably be negative. Water Quality The District and Intervenors contend that the proposed project would cause additional pollution associated with boating activity and, therefore, would violate the water quality standard applicable in Outstanding Florida Waters that ambient water quality cannot be degraded. However, Petitioner would reduce the total number of boats that could operate out of the marinas and would implement a number of prohibitions and other management practices that would reduce the potential for pollution when compared to the current situation. There was no evidence presented to quantify the pollution that might now be occurring as a result of the absence of pump-out facilities at the marinas, or the presence of related pollution in Charlotte Harbor or Back Bay. However, it was undisputed that the availability of pump-out facilities is generally a benefit for water quality. Petitioner has not indicated where the sewage pump-out facilities would be located. Although this is a relatively minor issue, the location of these facilities can affect the potential for pollution and, therefore, it is reasonable for the District to require this information before the ERP can be approved. Although the District and Intervenors contend that insufficient information was presented regarding flushing characteristics in Charlotte Harbor, that contention is inconsistent with their claim that strong winds, waves, and tidal forces that occur in this area of Charlotte Harbor would cause shoaling and scour at the breakwater. There is sufficient evidence that the Charlotte Harbor marina would be well flushed. An issue was also raised about the potential for turbidity problems in Back Bay caused by disturbance of the silty bottom by boats using the Back Bay slips. However, the reduction of the number of boats that would operate out of the Back Bay marina, the marina management proposals, and the channel marking would likely reduce such incidents in Back Bay. As discussed above, some small water quality benefits to Back Bay would be realized by the reef balls and the elimination of the canal. The overall effect of the proposed project would be to reduce the potential water quality impacts associated with the marinas, resulting in some small net improvement to the ambient water quality of the Pine Island Aquatic Preserve. Shoaling and Scour Shoaling is generally the accumulation of unconsolidated sediments that occur because of their movement by hydrodynamic forces of water flow, waves and currents. Scour is a type of erosion that occurs when current forces, when moving around a structure, push sediments away. Petitioner's expert, Hans Wilson, testified that it would take a relatively extreme amount of wave energy to create scour at the bottom of the breakwater. He said that the proposed breakwater was similar to one used at Royal Palm Yacht Club in Charlotte Harbor, which has not caused shoaling or scour. Robert Brantly, of the Department of Environmental Protection, believes that the proposed breakwater could cause shoaling and scour. While not agreeing with Mr. Brantly's concern, Petitioner offered to place reef balls at the base of the breakwater to further dissipate wave energy. Petitioner's evidence on this issue lacked much detail, but the evidence offered by the District was speculation -- Mr. Brantly thought there might be a problem and wanted to see more information. The District failed to rebut Petitioner's prima facie case that the breakwater would not cause shoaling or scour. Public Uses The District and Intervenors contend that the proposed project would reduce access by the general public to the aquatic preserve because the boat ramps would be eliminated and the fishing platform would be smaller than the area now available to the public on the fishing pier. The evidence shows some small reduction in public access to the aquatic preserve would likely result from the proposed project. Fill The District and Intervenors claimed for the first time in their Joint Proposed Recommended Order that the proposed breakwater for the Charlotte Harbor marina is prohibited fill. Florida Administrative Code Rule 18-20.004(1)(c) prohibits "filling waterward of the mean or ordinary high water line." "Fill" is defined in Rule 18-20.003(27): "Fill" means materials from any source, deposited by any means onto sovereignty lands, either for the purpose of creating new uplands or for any other purpose, including the spoiling of dredged materials. For the purpose of this rule, the placement of pilings or riprap shall not be considered to be filling. The District claims that the breakwater is "clearly prohibited" and that no additional factual evidence needs to be presented to determine the issue. However, although it is clear that the rule prohibits the deposition of fill materials such as dirt or sand into the water, it is not clear what other activities are prohibited by the rule.3/ Docks and marinas are clearly allowed by the aquatic preserve rules. Whether the breakwater is a piling structure is not answered by the record evidence. Evidence regarding the practices of the Board of Trustees, the Department of Environmental Protection, and the District in the interpretation and application of the rule is also absent from the record. Therefore, even if the issue had been timely raised by the District and Intervenors, the record evidence is insufficient to prove their claim.
Recommendation Based on the foregoing Proposed Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District deny the ERP and Lease requested by Petitioner. DONE AND ENTERED this 9th day of November, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2010.
The Issue Whether the Loxahatchee River Environmental Control District's applications for construction of wastewater collection and transmission systems, specifically, Permit Numbers CS50-298013, CS50-301197, and CS50-305990, should be granted by the Palm Beach County Health Department.
Findings Of Fact Respondent, Palm Beach County Health Department (Health Department) was delegated the authority by the Department of Environmental Protection to review applications and issue permits for wastewater collection and transmission systems pursuant to the Specific Operating Agreement for Delegation of Wastewater Program Authority From the Florida Department of Environmental Protection. The argument specifically referenced Chapter 403, Florida Statutes, and the successor to Title 17, Florida Administrative Code, which is Title 62. Respondent, Loxahatchee River Environmental Control District (ENCON), is a water control district. Petitioner, Village of Tequesta (Tequesta), is a municipal corporation. Petitioner Bermuda Terrace & Pinetree Drive Concerned Citizens (Concerned Citizens) is a coalition of homeowners of record owning property in Bermuda Terrace and on Pinetree Drive. On December 17, 1996, the Health Department issued Permit No. CS50-298013 to ENCON for installation of sewers in Bermuda Terrace and Pinetree Drive. On March 27, 1997, the Health Department issued a Notice of Intent to Issue Permit No. CS50-301197 to ENCON for the construction of sewers in Country Club Point and Anchorage Point. On June 24, 1997, the Health Department issued a Notice of Intent to Issue Permit No. CS50-305990 to ENCON for the construction of sewers in Tequesta Country Club. Currently the wastewater in the areas for which the sewers are proposed to be installed flows into septic tank systems. There are 835 homes on the Tequesta Peninsula that would be hooking up to the proposed sewer system. The Health Department created a review form for internal use in reviewing applications for sewage collection permits. The Sewage Collection Checklist contains the statutory and administrative rule requirements for permitting sewage collection and transmission systems. The applications submitted by ENCON were reviewed using the review form. All three applications met the criteria contained in the applicable statutes and rules. 11. Robert Mitchell, who supervises the permitting for wastewater collection systems for the Health Department, opined that the permit applications provided reasonable assurances that the construction and operation of the sewage system would not discharge, emit, or cause pollution. A sewage collection system does not emit or discharge pollution and, if constructed and functioning according to the technical requirements of the administrative rules, does not cause pollution. Thus, the applications compliance with the technical compliance with Rules 62-604.400 and 62-604.300, Florida Administrative Code, is reasonable assurance that the proposed systems will not cause pollution. 12 The proposed permits contain the following specific condition: Prior to construction, all required permits or approvals must be obtained for all aspects of the project from the appropriate agencies. Any dewatering required by the construction of the wastewater collection/transmission system will have to meet the permitting criteria for that particular activity, which comes under the jurisdiction of the South Florida Water Management District and not the Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Permit Nos. CS50-301197, CS50-305990, and CS50-298013 to ENCON for construction of sewer systems. DONE AND ENTERED this 17th day of April, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1998. Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Victoria Coleman, Esquire District 9 Legal Office Department of Health Post Office Box 29 West Palm Beach, Florida 33402 Scott G. Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive Post Office Box 3475 West Palm Beach, Florida 33402-3475 Timothy W. Gaskill, Esquire Curtis L. Shenkman, Esquire DeSantis, Gaskill, Smith & Shenkman, P.A. 11891 U.S. Highway One North Palm Beach, Florida 33408
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 Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
