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 The issue for determination is whether Jupiter Hills Lighthouse Marina is entitled to be issued a permit by the Department of Environmental Protection for its project application submitted July 29, 1992, and revised November 15, 1993, to enlarge an existing marina and add new slips.
Findings Of Fact On July 29, 1992, Jupiter Hills Lighthouse Marina (Respondent Jupiter Hills) submitted an application to the Department of Environmental Protection (Respondent DEP) for a permit to enlarge an existing dock facility to 488 feet and to increase the existing 6 slips to 48 new slips. Respondent Jupiter Hills is located 0.7 miles north of Martin County Line Road, on U. S. Highway One, Indian River Lagoon, Jensen Beach to Jupiter Inlet Aquatic Preserve, more particularly described as Martin County, Section 19, Township 40 South, Range 43 East, Indian River Lagoon Class III Waters. On November 15, 1993, Respondent Jupiter Hills amended its application at the request of Respondent DEP. The revised proposed project increases the dock facility from 6 slips to 18 slips, restricting 12 of the 18 slips for sailboat use; and proposes a new 149 foot long T-shaped pier from the existing pier, creating a total dimension of 180 feet by 60 feet. Further, Respondent Jupiter Hills proposes to remove four existing finger piers and 10 existing mooring pilings, to add eight finger piers and 34 new mooring pilings, and to place riprap along the existing seawall and new pier. The proposed project is located in an Outstanding Florida Water (a designated aquatic preserve), the Jensen Beach to Jupiter Inlet Aquatic Preserve, which is a part of the Indian River Preserve. Significant water quality parameters for this proposed project include coliform bacteria, heavy metals, and oil and grease. Water quality standards for oil and grease are not being currently met. However, to address this noncompliance, Respondent Jupiter Hills has agreed to include, as part of this project, the installation of an exfiltration trench to trap grease coming from the uplands. This trench will improve water quality, causing a net improvement of water quality in the proposed project area. Stormwater from the area, including a portion of U. S. Highway One and parking areas within U. S. Highway One right-of-way, discharge directly into Respondent Jupiter Hills. This stormwater then drains directly into tidal waters. The exfiltration trench is designed to intercept up to three-fourths of an inch of the stormwater flow currently draining into the basin. The owners of Respondent Jupiter Hills will maintain the exfiltration trench. They have signed a long-term agreement with Respondent DEP for the maintenance of the trench, and the agreement is included in Respondent DEP's Intent to Issue. Water quality standards for fecal coliform are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills has proposed a sewage pump-out station which is not currently in the area and which will encourage boaters to pump boat sewage into the city treatment area instead of dumping the sewage into the water. The pump-out station will be connected to the central sewage system, but boaters will not be required to use the sewage pump-out station. However, since liveaboards are more likely to cause fecal coliform violations, Respondent Jupiter Hills has agreed that no liveaboards will be permitted in the proposed project. Water quality standards for heavy metals are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills proposes to use construction materials which have not been treated by heavy metals. Also, because the proposed project area flushes in one tidal cycle, any additional metals from the boats themselves would be swept away quickly. The proposed project will not adversely impact or affect the public health, safety or welfare or the property of others. Respondent Jupiter Hills has provided reasonable assurance that water quality standards will be met, continue to be met, and not violated. As a result, the public health and safety are protected. The proposed pump-out facility will reduce the incidences of illegal head discharges into the Jupiter Sound. Thus, this facility will benefit the health and safety of swimmers or others participating in water-related activities in the Jupiter Sound. The proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Respondent Jupiter Hills has agreed to several measures designed to reduce any adverse impacts to fish and wildlife and the measures have been incorporated into the Intent to Issue. Respondent Jupiter Hills has agreed to not allow new power boats to dock at the proposed facility, which will prevent adverse affects on the manatee population in the area. Additionally, the proposed pump-out facility will improve the water quality, resulting in a benefit to fish and wildlife, including the Benthic habitat and seagrasses. Respondent Jupiter Hills has further agreed to install navigational signs, directing boaters away from manatees, and no wake signs, indicating the presence of manatees; these signs do not presently exist. Furthermore, Respondent Jupiter Hills has agreed to post signs directing boaters away from any seagrasses located in the proposed project area. Whether seagrasses in the proposed project area will be adversely affected is also a factor to be considered. Inspections and surveys of the proposed project area in December 1992 and mid-March 1993 revealed one patch of Halophila decipiens and Halophila johnsonii at the 100 foot contour but no seagrasses within the footprint of the proposed project. A survey of the area in late April 1994 revealed some seagrasses in the proposed project area but no seagrasses within the footprint of the proposed project. In September 1995, an examination of the area revealed Halophila decipiens just waterward of the existing slips down to the southern property boundaries 20 to 30 feet wide and revealed sparse seagrasses approximately 300 to 500 feet from the shoreline. Halophila decipiens is more abundant and thick in the summer and tends to die off and at its thinnest in the winter. Neither Halophila decipiens nor Halophila johnsonii are threatened or endangered species of seagrasses. The seagrasses provide a significant environmental benefit. The benefits include nutrient recycling in the area and providing habitat for Benthic invertebrates, such as crabs, which are at the bottom of the food chain. Also, other plants grow on the seagrasses, such as algae, and the other plants provide food for other organisms. Manatees eat several seagrasses, including Halophia decipiens but it is not one of the manatees preferred seagrasses. Seagrasses can be adversely affected in two ways. One way is that prop dredging could scar the seagrasses. However, as to the proposed project, the depth of the water in the area of the seagrasses will prevent any adverse affects from prop dredging. The second way that seagrasses can, and will, be adversely affected is being shaded by the proposed dock or by boats tied-up to the dock. The density of the seagrass, pertaining to this proposed project, is thin and low and approximately one percent of actual coverage. In determining whether the proposed project is clearly in the public interest, Respondent DEP uses a balancing test which consists of taking the public interest criteria and weighing the pros and cons of the proposed project. Balancing the adverse impacts on the seagrasses and the positive effects of the public interest criteria, the proposed project is clearly in the public interest. The slips in the proposed project will increase by 12; however, the slips can only be used by sailboats. Since sailboats move slowly, the manatees in the area will not be adversely affected by the proposed project. Neither navigation nor the flow of water will be adversely affected by the proposed project. Further, no harmful erosion or shoaling will be caused by the proposed project. Adequate depths are off of the end of the dock for boats to safely navigate. Shoaling is not a potential problem, and therefore, any potential shoaling which may develop will not adversely affect navigation. The proposed dock will not impact navigation into the Intracoastal Waterway (ICW) because the dock will not extend into the ICW and because Respondent Jupiter Hills will provide navigational aids to guide boaters to access the Atlantic ICW. Furthermore, there is sufficient depth for navigation between the end of the proposed dock and the sandbar where the seagrasses are located. Boat traffic coming from the south will primarily originate from the residences to the south. The proposed dock will force these boaters 200 feet offshore where the natural channel is located. Additionally, the dock will keep boaters further offshore from the riparian land owners to the north, including the Petitioners. To improve the public interest aspects of the project, Respondent DEP proposed that Respondent Jupiter Hills install riprap, which Respondent Jupiter Hills agreed to do. Installation of the riprap will be 367 feet along the perimeter of the proposed dock and in a 10 by 50 foot area along the bulkhead north of the dock. Some shoaling will result but will not affect navigation. The riprap will provide substrate and shelter for marine life. The fishing or recreational values or marine productivity will not be adversely affected by the proposed project. Marine productivity will increase because the sewage pump-out station will improve the water quality which will benefit the Benthic community. The proposed project will be of a permanent nature. Significant historical and archaeological resources will not be adversely affected by the proposed project. The Department of State, which is responsible for historical and archaeological resources, reviewed the Notice of Intent and has no objection to the proposed project. The current condition and relative value of functions being performed by areas affected by the proposed project will be increased and, therefore, benefited. No cumulative impacts are associated with the proposed project. The proposed project is not in an area of pristine shoreline; the area is highly developed. Approximately 1,200 feet to the south of the proposed project is a 270 foot dock with about 50 slips. When considered with the other docks in the area, the extension of the dock in the proposed project will not significantly or measurably further violate the water quality. Respondent Jupiter Hills has provided reasonable assurance that the proposed project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order issuing Permit No. 432170499 to Jupiter Hills Lighthouse Marina. DONE AND ENTERED this 8th day of April, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 8th day of April, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioners Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. Partially accepted in finding of fact 10. Rejected as being irrelevant, or unnecessary. See, conclusion of law 43. Also, partially accepted in findings of fact 19-27, 34-35. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 9. Rejected as being unnecessary. Also, see finding of fact 18. Partially accepted in finding of fact 10. Partially accepted in findings of fact 8, 9, and 10. Partially accepted in finding of fact 9. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 11. See, conclusion of law 46. Partially accepted in findings of fact 9 and 16. Partially accepted in finding of fact 18. Partially accepted in finding of fact 18. Partially accepted in finding of fact 31. Partially accepted in findings of fact 18 and 28. Partially accepted in findings of fact 29 and 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 33. Partially accepted in finding of fact 9. Partially accepted in finding of fact 37. Partially accepted in finding of fact 36. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in finding of fact 23. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 26. Partially accepted in findings of fact 3 and 20. Partially accepted in finding of fact 20. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 19-27. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejectd as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Respondent Jupiter Hills' Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Partially accepted in findings of fact 30 and 31. Partially accepted in finding of fact 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 29. Partially accepted in finding of fact 34. Partially accepted in finding of fact 36. Partially accepted in finding of fact 13. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in findings of fact 29, 30 and 33. Partially accepted in finding of fact 31. Partially accepted in finding of fact 15. Partially accepted in findings of fact 4, 5, 8, and 11. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 9. Partially accepted in findings of fact 5, 8, and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 16. Partially accepted in findings of fact 9, 14, 15, and 16. Partially accepted in findings of fact 18, 24, and 27. Partially accepted in findings of fact 18 and 28. Partially accepted in finding of fact 28. Partially accepted in finding of fact 18. Partially accepted in finding of fact 22. Partially accepted in finding of fact 21. Partially accepted in findings of fact 20 and 26. Partially accepted in finding of fact 26. Partially accepted in findings of fact 20 and 26. Rejected as being irrelevant, or unnecessary. Rejected as being unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Rejected as being argument, or a conclusion of law. Rejected as being unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 25. Partially accepted in finding of fact 33 Partially accepted in finding of fact 33. Partially accepted in finding of fact 40. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 10. Rejected as being unnecessary, or a conclusion of law. Partially accepted in findings of fact 27 and 41. Respondent DEP's Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. Partially accepted in findings of fact 9 and 10. Partially accepted in finding of fact 11. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 15. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in findings of fact 19 and 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 21. Partially accepted in finding of fact 22. Partially accepted in findings of fact 25 and 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 29. Partially accepted in finding of fact 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Partially accepted in finding of fact 35 Partially accepted in finding of fact 36. Partially accepted in finding of fact 37. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. NOTE: Where a proposed finding of fact has been partially accepted, the remainer has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence presented, not supported by the greater weight of the evidence, argument, or a conclusion of law. COPIES FURNISHED: J. A. Jurgens, Esquire Post Office Box 1178 Winter Park, Florida 32790-1178 Timothy C. Laubach, Esquire Sears and Manuel, P.A. 1218 Mount Vernon Street Orlando, Florida 32803 M.Tracy Biagiotti, Esquire Scott Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475 West Palm Beach, Florida 33402 (Attorney for Jupiter Hills Lighthouse Marina) Lynette L. Ciardulli Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Douglas MacLaughlin Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Vista of Fort Walton Beach, LLC (Vista), should be issued Surface Water Management Permit No. 04-2012-0013G authorizing the construction of an earthen embankment dam and impoundment to impound stormwater runoff from a proposed commercial development in the City of DeFuniak Springs (City), Walton County, Florida.
Findings Of Fact The District has regulatory jurisdiction over the construction of certain types of impoundments within its boundaries. If an impoundment is at least ten feet high but less than 25 feet in height and has an impounding capacity of at least 50 acre-feet, a general permit is required. See Fla. Admin. Code R. 40A-4.041(1). Vista, a limited liability corporation, owns an odd- shaped parcel in the City on which it intends to build a small commercial development consisting of a 17,000-square foot building, a parking lot, and related amenities. The vacant parcel abuts the north side of U.S. Highway 90 just east of 18th Street and is approximately 1.66 acres in size. The property is partially wooded and has a small wetland area on its northeastern corner. In conjunction with the proposed commercial development, Vista intends to construct an impoundment to control stormwater runoff from the project. Because the impoundment will be ten feet high and have an impounding capacity of at least 50 acre-feet, Vista is required to obtain a general permit. See Fla. Admin. Code R. 40A-4.041(1). Vista filed a permit application with the District on June 8, 2012. On August 8, 2012, the District gave notice that it intended to issue a surface water management permit to Vista. The permit allows the construction of a stormwater retention basin. A mitigation plan for impacts to 0.23 acres of wetlands was also approved but is not at issue in this proceeding. As described in the District staff report, the project will encompass one earthen embankment dam and impoundment to impound the storm runoff. It will operate as a dry stormwater retention basin designed to impound water only during rainfall events. The facility will utilize a pipe and riser spillway system, and the basin outfall will be protected by a rip-rap lined plunge pool. Due to space restrictions, an engineered retaining wall will be incorporated into the embankment's north side slope. The stormwater will discharge through controlled overflow structures into a nearby wetland area that lies northeast of Vista's property and will then be integrated into an existing channel that eventually forms the headwaters of Sandy Creek to the north. Petitioner has resided on her property since around 1932. Her odd-shaped parcel, described as being between five and seven acres in size, lies immediately to the north of Vista's property. A small wetland is located on the southeastern corner of her property. The two parcels share a common boundary line, appearing to be no more than a hundred feet or so. Because the boundary line is lower than the highest part of each owner's property, a "trench" has formed along the line. Wabash Avenue, a platted but un-built roadway that begins on U.S. Highway 90, runs to the northwest through the wetland area and along the eastern boundaries of both properties. As alleged in the Second Amended Petition, Petitioner is concerned that the project will cause flooding on her property. In a broader sense, she appears to be opposed to any commercial development on Vista's property. The back side of the Vista parcel slopes downhill to a recessed area that is adjacent to both properties. Although some fill has already been placed on the property in preparation for the development, the applicant intends to add "a lot" more fill to the entire parcel to create a gradual slope down to the edge of Wabash Avenue. A basin or pond around 0.20 acres in size will be formed within the fill area and a retaining wall consisting of multiple segments will be constructed around the basin. The wall will be separated from Petitioner's property by a 20-foot buffer, while at its closest point the basin will be "35 feet or so" from her property line. The plans submitted by the applicant demonstrate that the system will be built in accordance with all District standards and should operate in a safe manner. Before construction can begin, the District must approve the retaining wall design specifications. During rain events, the first inch of water will be retained on site for treatment. Additional water will be stored in the basin and then slowly allowed to discharge from the basin into the wetlands. The point of discharge from the basin is at a location a minimum of 20 feet south and east of Petitioner's property line. To ensure that the retention system will not discharge runoff at a higher rate than was discharged before development, Vista performed hydrologic calculations demonstrating pre- and post-development runoff. According to accepted models developed by the United States Department of Agriculture and its predecessor, the Soil Conservation Service, the current peak runoff from the Vista property is 2.46 cubic feet per second (CFS) during a two-year, 24-hour storm event. After development, the volume of water will be reduced to 0.74 CFS. During a 25-year, 24-hour storm event, the volume of runoff post-development is anticipated to drop from 12.59 CFS to 6.51 CFS. Finally, during a 100-year, 24-hour storm event, post- development runoff will be slightly reduced from 19.64 CFS to 18.99 CFS. Therefore, as sited, sized, and designed, the project will reduce runoff during all anticipated storm events. The foregoing calculations were not credibly contradicted and satisfy the requirement that an applicant give reasonable assurance that the project will not cause an increased flow such that it will endanger downstream property in times of flood with respect to state or frequency. See Fla. Admin. Code R. 40A-4.301(2)(f). They also confirm that water in the impoundment will not be raised to a level that could be harmful to the property of others. See Fla. Admin. Code R. 40A- 4.301(2)(c). Thus, the potential for flooding on Petitioner's property will be reduced if the project is constructed as permitted. The Department of Transportation (DOT) is currently repairing the drainage system on U.S. Highway 90 in front of the Vista property. Stormwater from that project drains into the wetlands through an easement deeded to the City at the rear of the Vista property. Petitioner pointed out that after the DOT project began, and fill was added to the Vista property, she has experienced an increase in water on her property. Whether the DOT project is responsible in any way for this hydrologic change is not known. However, accepted testimony by two professional engineers supports a finding that Vista is not responsible for any hydrologic changes on Petitioner's property. Vista was not required to take into account any runoff from the DOT project in making its hydrologic calculations because the amount of runoff from its own property will actually be reduced by the retention system. At hearing, Petitioner contended that a fence she built on the common boundary line with Vista sometime after 1990 was illegally removed by Vista in order to construct the basin. According to Mr. George, who first surveyed the property line in 1990 and then surveyed it a second time a few years ago, the fence was built a few feet beyond Petitioner's property line and lies within the buffer zone between the basin and her property. Petitioner argues that even if this is true, the doctrine of adverse possession applies and she is now the owner of the property on which the fence was built. This type of dispute, however, can only be resolved in circuit court, and not in an administrative forum. See § 26.012(2)(g), Fla. Stat. The District has examined the property records and is satisfied that Vista has ownership of the property on which the impoundment will be built. Notably, the basin will not be located within the 20-foot buffer where the fence once stood and which is dedicated to the City as an easement. Finally, through cross-examination at hearing, Petitioner suggested that any project designed by humans carries with it the remote possibility that it will fail and create a catastrophic situation on her property. In the unlikely event that the design and operation of the retention basin threaten the safety of adjoining property owners, section 373.429 and rule 40A-1.205 enable the District to revoke, suspend, or modify a permit to protect the safety of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order approving the issuance of Surface Water Management System Permit No. 04-2012-0013G to Vista. DONE AND ENTERED this 11th day of March, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2013. COPIES FURNISHED: Jonathon Steverson, Executive Director Northwest Florida Water Management District 152 Water Management Drive Havana, Florida 32333-4712 Helen J. Crenshaw 61 North 18th Street DeFuniak Springs, Florida 32433-9547 Kevin X. Crowley, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 James Busby Vista of Fort Walton Beach, LLC Post Office Box 760 Fort Walton Beach, Florida 32549-0760
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.
The Issue The issues in this case are whether IP is entitled to issuance of National Pollutant Discharge Elimination System (NPDES) Permit Number FL0002526-001/001-IW1S ("the proposed permit"), Consent Order No. 04-1202, Authorization for Experimental Use of Wetlands Order No. 04-1442, and Waiver Order No. 04-0730 (collectively, "the Department authorizations"), which would authorize IP to discharge treated industrial wastewater from its paper mill in Cantonment, Escambia County, Florida, into wetlands which flow to Elevenmile Creek and Perdido Bay.
Findings Of Fact Introduction A. The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes (2006),2 to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency (EPA), the Department administers the NPDES permitting program in Florida. IP owns and operates the integrated bleached kraft paper mill in Cantonment, Escambia County, Florida. FOPB is a non-profit Alabama corporation3 established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the President of FOPB. Mellita A. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane are the adult children of Dr. Jacqueline Lane and James Lane. Dr. Lane and James Lane live on property adjacent to Perdido Bay with their son Peter. The Adjacent Waters The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class III water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama on the west. The dividing line between the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay is designated as a Class III water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. It is primarily a freshwater river but it is sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (OFW) in 1979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, is a large tract of land owned by IP called the Rainwater Tract. The northern part of the tract is primarily freshwater wetlands. The southern part is a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. The Mill 1. Production Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company (St. Regis) acquired the mill in 1946. In 1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to be printing and writing paper. The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products. There are two paper machines located at the mill. The larger paper machine, designated P5, produces approximately 1,000 tons per day of writing and printing paper. The smaller machine, P4, produces approximately 400 to 500 tons per day of "fluff pulp." 2. The Existing Wastewater Treatment Plant The existing wastewater treatment plant (WWTP) at the mill is described in the revised NPDES permit as a "multi-pond primary and secondary treatment system, consisting of a primary treatment system (primary settling basin, polymer addition, two solids/sludge dewatering basins, and a floating dredge), and secondary treatment system (four ponds in series; two aerated stabilization basins with approximately 2,200 horsepower (HP) of aeration capacity, a nutrient feed system, two non-aerated polishing ponds and a final riffle section to re-aerate the effluent)." The WWTP is a system for reducing the biological oxygen demand (BOD) of the mill's wastewater by bacteria. IP’s wastewater is nutrient deficient when it enters the WWTP. Nutrients in the form of phosphorus and nitrogen must be added for the growth of bacteria. The WWTP begins with a primary settling basin in which suspended solids settle to the bottom. The solids form a sludge that is pumped by hydraulic dredge into two dewatering basins. The dewatering basins are used alternately so that, as one pond is filled, water is removed from the other pond. After being dewatered, the sludge is removed and allowed to dry. Then, it is transported to a landfill located about five miles west of the mill on land owned by IP. The water removed from the dewatering basins moves into to the first aeration basin. The aeration basin has floating aerator devices that add oxygen to facilitate biological conversion of the wastewater. The wastewater then flows sequentially through three more basins where there is further oxygenation and settling of the biological solids. The discharge from the fourth settling basin flows through a riffle section where the effluent is aerated using a series of waterfalls. This is the last element of the treatment process from which the mill's effluent enters waters of the state. Chemicals are added during the treatment process to control phosphorus and color. Chemicals are also added to suppress foam. Sanitary wastewater from the mill, after pretreatment in an activated sludge treatment system, is "sewered" to the mill's WWTP and further treated in the same manner as the industrial wastewater. A separate detention pond collects and treats stormwater from onsite and offsite areas and discharges at the same point as the wastewater effluent from the WWTP. Stormwater that falls on the industrial area of the mill is processed through the WWTP. The discharge point from the WWTP, and the point at which the effluent is monitored for compliance with state effluent limitations, is designated D-001, but is also called the Parshall Flume. The effluent is discharged from the Parshall Flume through a pipe to an area of natural wetlands. After passing through the wetlands, the combined flow runs through a pipe that enters Elevenmile Creek from below the surface. This area is called the "boil" because the water can be observed to boil to the surface of Elevenmile Creek. From the boil, the mill effluent flows approximately 14 miles down (apparently misnamed) Elevenmile Creek to upper Perdido Bay. Regulatory History of the Mill Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (DER) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The EPA issued St. Regis an NPDES permit in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its WWTP in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production process. In 1987, Champion applied to DER for an operating permit for its modified WWTP and also petitioned for a variance from the Class III water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's subsequent proposal to issue the operating permit and variance was formally challenged.4 In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for a regular operating permit and requested a temporary operating permit (TOP), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 ("the 1989 Consent Order"). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violation of state water quality standards in Elevenmile Creek for dissolved oxygen (DO), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommended measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies, which will be referred to collectively in this Recommended Order as "the Livingston studies." The 1989 Consent Order had no expiration date, but it was tied to the TOP, which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The TOP established the following specific effluent discharge limitations for the mill: Monthly Average Maximum Biological Oxygen Demand (BOD) (Mar-Oct) 4,500 lbs/day 6,885 lbs/day (Nov-Feb) 5,100 lbs/day 6,885 lbs/day Total Suspended Solids (TSS) (Mar-Oct) 8,000 lbs/day 27,000 lbs/day (Nov-Feb) 11,600 lbs/day 27,000 lbs/day Iron 3.5 mg/l Specific Conductance 2,500 micromhos/cm Zinc .075 mg/l The limits stated above for iron, specific conductance, and zinc were derived from the variance granted to Champion. Champion was also granted variances from the water quality standards for biological integrity, un-ionized ammonia, and DO. The 1989 Consent Order, TOP, and variance were the subject of the Recommended Order and Final Order issued in Perdido Bay Environmental Association, Inc. v. Champion International Corporation, 89 ER FALR 153 (DER Nov. 14, 1989). Champion's deviation from the standards for iron, zinc, and specific conductance pursuant to the variance was determined to present no significant risk of adverse effect on the water quality and biota of Elevenmile Creek and Perdido Bay. The mill effluent's effect on transparency (reduced by color in the mill effluent) was considered a potentially significant problem. However, because it was found that there was no practicable means known or available to reduce the color, and there was insufficient information at that time to determine how Champion's discharge of color was affecting the biota, Champion was allowed to continue its discharge of color into Elevenmile Creek pending the results of the Livingston studies. In the administrative hearing, the petitioners argued that it was unreasonable to put off compliance for five years, but the hearing officer determined that five years was reasonable under the circumstances. One finding in the Recommended Order and a reason for recommending approval of the TOP and Consent Order was: After the studies referred to in the consent order, the Department will not allow Champion additional time to study problems further. Significant improvements will be required within the five year period and at the end of that period, the plant will be in compliance with all water quality standards or will be denied an operating permit, with related enforcement action. The requirement of the 1989 Consent Order that Champion be in compliance with all applicable standards by December 1994, was qualified with the words "unless otherwise agreed." In considering this wording, the hearing officer opined that any change in the compliance deadline "would require a new notice of proposed agency action and point of entry for parties who might wish to contest any modification in the operational requirements, or changes in terms of compliance with water quality standards." The mill was not in compliance with all water quality standards in December 1994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. Instead, the Department agreed through correspondence with Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal operating permits into a single permit identified as Wastewater Permit Number FL0002526-002-IWF/MT. In summary, the permit requirements currently applicable to the operation of the Cantonment paper mill are contained in the following documents: January 3, 1983, EPA NPDES Permit December 13, 1989, DER Temporary Operating Permit (TOP) December 13, 1989, DER Consent Order December 12, 1989, DER Variance November 15, 1995, DEP Order (combining the NPDES permit and the State-issued wastewater permit) April 22, 1996, DEP Letter (clarifying November 15, 1995, Order regarding 1983 NPDES Permit) During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmile Creek or the Escambia River. In 2001, IP and Champion merged and IP applied to the Department to have the mill permit and related authorizations transferred to IP. Dr. Lane formally challenged the proposed transfer, but she was determined to lack standing. One conclusion of law in the Recommended Order issued in the 2001 administrative case was that the mill was in compliance with the consent order, TOP, and variance. That conclusion was not based on a finding that Champion was in compliance with all applicable water quality standards, but that the deadline for compliance (December 1, 1994) had been extended indefinitely by the pending permit renewal application. In 2001, Dr. Lane twice petitioned the Department for a declaratory statement regarding the Department's interpretation of certain provisions of the 1989 Consent Order. The first petition was denied by the Department because Dr. Lane failed to adequately state her interests and because she was a party in a pending case in which the Consent Order was at issue. Dr. Lane second petition was denied for similar reasons. Over 14 years after the deadline established in the 1989 TOP for the mill to be in compliance with all applicable standards in Elevenmile Creek, IP is still not meeting all applicable standards. However, the combination of (1) Consent Order terms that contemplated unspecified future permit requirements based on yet-to-be-conducted studies, (2) the wording in the TOP that tied the deadline for compliance to the expiration of the TOP, and (3) the administrative extension of the TOP, kept the issue of Champion's and IP's compliance in a regulatory limbo. It increased the Department's discretion to determine whether IP was in compliance with the laws enacted to protect the State's natural resources, and reduced the opportunity of interested persons to formally disagree with that determination. The Proposed Authorizations A. In General In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to a 1,464-acre wetland tract owned by IP5, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department issued a Notice of Intent to Issue the proposed NPDES permit, together with Consent Order No. 04-1202, Authorization for Experimental Use of Wetlands Order No. 04-4442, and Waiver Order No. 04-0730. An exemption from water quality criteria in conjunction with the experimental use of wetlands for wastewater treatment is provided for in Florida Administrative Code Rule 62-660.300(1). The proposed exemption order would exempt IP from Class III water quality criteria for pH, DO, transparency, turbidity, and specific conductance. The proposed waiver order is associated with the experimental use of wetlands exemption and relieves IP of the necessity to comply with two exemption criteria related to restricting public access to the area covered by the exemption. The Department and IP contend that restricting public access to Tee and Wicker Lakes is unnecessary. The proposed Consent Order is an enforcement document that is necessary if the mill is to be allowed to operate despite the fact that its wastewater discharge is causing violations of water quality standards. A principal purpose of the proposed Consent Order is to impose a time schedule for the completion of corrective actions and compliance with all state standards. The proposed Consent Order would supersede the 1989 Consent Order. The Proposed NPDES Permit 1. WWTP Upgrades IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a modest reduction of BOD and TSS. Upgraded pond 1 is expected to convert soluble BOD to suspended solids and to accomplish other biological conversions seven or eight times faster than the current pond 1. The modification of pond 3 to an activated sludge system is expected to more rapidly remove and recycle the solids back into pond 1. Pond 3 will have a much larger bacterial population to treat the effluent. There would also be additional pH control at the end of pond 3. IP would continue to use its Rock Crossing Landfill for disposal of wastewater sludge removed from the WWTP. Authorization for the landfill is part of the proposed NPDES permit. Groundwater monitoring beneath the landfill is required. The WWTP upgrades would include increased storm surge capacity by converting two existing aeration and settling basins (ponds 2 and 4) to storm surge basins. The surge basins would allow the mill to manage upsets and to withstand a 25-year, 24-hour storm event of 11 inches of rain. Rainfall that falls into the production areas would flow to the WWTP, and be impounded in ponds 2 and 4. After the storm event this impounded water would flow back through the WWTP where it would be treated before flowing through the compliance point and into the pipeline to the wetland tract. The Department required IP to monitor for over 129 pollutants in its stormwater runoff from the mill’s manufacturing facility, roads, parking lots, and offsite nonpoint sources. No pollutants were found in the stormwater at levels of concern. The average volume of mill discharge would be mgd. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP along with other process wastewater, be treated in the same manner in the WWTP, and become part of the effluent conveyed through the pipeline to the wetland tract. 2. Effluent Limitations The effluent limitations required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based and are designed to limit the amount of pollutants that may be discharged per ton of product produced. The Cantonment mill has not had a problem in meeting TBELs. The TBELs that IP must meet are in the "Cluster Rule" promulgated by the EPA and adopted by the Department. The mill already meets the TBELS applicable to its current bleaching operation. In fact, EPA determined that the mill was performing in the top 5 percent of similar mills in the nation. The mill would have to meet the TBELs for a brown kraft operation if that conversion is made by IP. The proposed permit also imposes water quality- based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being violated. For example, the TBEL for BOD for similar pulp and paper mills is 15,943 pounds per day (ppd) on a monthly average, but the WQBEL for BOD for the Cantonment mill would be 4,500 ppd in summer and 5,100 ppd in winter. Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen. The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving waters. The proposed permit also establishes daily maximum limits (the most that can be discharged on any single day). For BOD, the daily maximum limit is 9,000 ppd. William Evans, the Department employee with primary responsibility for the technical review of the proposed Department authorizations, said that setting the daily maximum limit at twice the monthly average was a standard practice of the Department. The maximum daily limits are not derived from the Livingston studies. Dr. Glen Daigger, a civil and environmental engineer, designed a model for the WWTP and determined the modifications necessary to enable the WWTP's discharge to meet all TBELs and WQBELs. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters. 3. Discharge to the Wetland Tract IP proposes to relocate its discharge to the wetland tract as a means to end decades of failure by the mill to meet water quality standards in Elevenmile Creek. Discharging to the wetland tract, which flows to the marine waters of lower Elevenmile Creek and Perdido Bay, avoids many of the problems associated with trying to meet the more stringent water quality standards applicable in a freshwater stream. An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands so that their full assimilative capacity is utilized. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay and lower Elevenmile Creek. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silviculture activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system. As the effluent is discharged from the pipeline, a point designated D-003, it would be re-aerated6 and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile. Approximately 70 percent of the effluent discharged at D-003 would flow by gravity a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a shorter distance to lower Elevenmile Creek. A computer simulation performed by Dr. Wade Nutter, an expert in hydrology, soils, and forested wetlands, indicated that the effluent discharged at D-003 will move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be about one-half inch. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent. Construction activities associated with the effluent pipeline and berm modifications in the wetland tract were permitted by the Department in 2003 through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this work. No person filed a petition to challenge those permits. A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes, and is referred to as the No Significant Adverse Impact (NSAI) analysis. A year of "baseline data" on the wetlands and Tee and Wicker Lakes was collected and submitted to the Department for use in developing the NSAI analysis, but was not made a part of the record in this case. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department. A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit. The Exemption for Experimental Use of Wetlands Florida Administrative Code Rule 62-660.300(1) provides an exemption from water quality criteria for the experimental use of wetlands. The proposed Authorization for Experimental Use of Wetlands Order would exempt IP from Class III water quality criteria for pH, DO, transparency, turbidity, and specific conductance. The proposed exemption order sets forth "interim limits" for pH, DO, color, turbidity, and specific conductance. The proposed exemption order also states that IP may petition for alternative water quality criteria pursuant to Florida Administrative Code Rule 62- 66D.300(1)(b)(c) and (d). The exemption is for 5 years beginning with the commencement of discharge into the wetland tract at D-003. The exemption it can be renewed by IP by application to the Department. The Waiver To qualify for the experimental use of wetlands exemption, Florida Administrative Code Rules 62- 660.300(1)(a)3 and 4 require, respectively, that the public be restricted from the exempted wetland area and that the waters not be used for recreation. IP proposes to prevent public access to the area of the wetland tract where the effluent distribution system is located. This is the freshwater area of the wetland tract and includes the four berms. However, IP does not want, nor believe it is necessary, to prevent public access and recreation on Tee and Wicker Lakes within the tidal marsh below berm 4. These lakes are accessible by boat from Perdido Bay and are used now by the public for boating and fishing. The Proposed Consent Order The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge form Elevenmile Creek to the wetland tract. IP is given 24 months to complete construction activities and begin operation of the new facilities. At least 25 percent of the mill's effluent must be diverted to the wetland tract. At least 25 percent of the effluent is to be diverted to the wetland tract when the new facilities begin operations. The volume of effluent diverted to the wetlands is to increase another 25 percent every three months thereafter so that three years after issuance of the permit 100 percent of the effluent is being discharged into the wetland tract and there is no longer a discharge at D-001 into Elevenmile Creek.7 The proposed Consent Order establishes interim effluent limitations that would apply immediately upon the effective date of the Consent Order and continue during the 24-month construction period when the mill will continue to discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12-month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply at D-003 when 100 percent of the discharge is into the wetland tract. They include the interim limits for specific conductance, pH, DO, color, and turbidity established through the experimental use of wetland exemption. The proposed Consent Order requires IP to submit a report within six months with the results of the 2004 transparency study. The Department must be satisfied that the study shows the transparency standard will not be violated before the wetlands can be used for the discharge. This report has already been submitted to the Department, but the Department has not yet completed its review of the report. Nevertheless, it was admitted into the record as IP Exhibit 79. The proposed Consent Order provides that, in the event IP's does not receive treated sanitary wastewater from the planned ECUA facility, IP will notify the Department and submit an alternate compliance plan to the Department for the Department's approval. The submittal and approval of an alternate compliance plan would extend the time for compliance with water quality standards by another six months. The Department amended the proposed Consent Order at the conclusion of the hearing to provide for notice to the public and an opportunity for persons to object to the Department's action on any alternate compliance plan. The Consent Order requires a "Plan of Action" to determine "whether there remains a critical period for ortho-phosphate loading to lower Elevenmile Creek and Perdido Bay." The proposed Consent Order requires IP to submit within 97 months (which would allow for five years of discharge to the wetland tract) a final report on whether there has been significant adverse impacts in the wetlands and Tee and Wicker Lakes resulting from the discharge of effluent pursuant to the interim limits for pH, DO, specific conductance, turbidity, and color. If the NSAI analysis shows no significant adverse impact has occurred, the proposed Consent Order contemplates that IP or the Department would establish alternative water quality criteria that would apply permanently in the wetland tract. IP is required by the Consent Order to submit quarterly progress reports of its progress toward compliance with the required corrective actions and deadlines. The Consent Order imposes a "stipulated penalty" of $500 per day for noncompliance with its terms. It also contains a statement that a violation of its terms may subject IP to civil penalties up to $10,000 per day. The Principal Factual Disputes A. The Evidence in General Much of the water quality and biological data presented by Petitioners were limited in terms of the numbers of samples taken, the extent of the area sampled, and the time period covered by the sampling. Much of the expert testimony presented by Petitioners was based on limited data, few field investigations, and the review of some, but not all relevant permit documents.8 On the other hand, the Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Even Dr. Lane called the Livingston studies "huge" and "amazing." Therefore, with regard to the factual issues raised by Petitioners that involved scientific subjects investigated in the Livingston studies, Petitioners' data and the expert opinions based on those data were generally of much less weight than the data and conclusions of the Livingston studies. However, the Livingston studies did not address all of the factual issues in dispute. Some of the evidence presented by Petitioners regarding historical water quality conditions in Perdido Bay and Elevenmile Creek was lay testimony. The lay testimony was competent and sufficient to prove the existence of environmental conditions that are detectable to the human senses, such as an offensive smell, a dark color, or a sticky texture. Historical Changes in Perdido Bay Petitioners claim that, before the Cantonment mill began operations in the 1940s, Perdido Bay was a rich and diverse ecosystem and a beautiful place for swimming, fishing, boating, and other recreational activities. Petitioners blame the mill effluent for all the adverse changes they say have occurred in Perdido Bay. Petitioners claim that the water in Perdido Bay was much clearer before the mill was built. James Lane, who has lived on the Bay for 65 years, said he began to notice in the late 1940s that the water was becoming dark and filled with wood fibers. Mr. Lane recalls that there used to be an abundance of fish in the Perdido Bay, including croakers, pinfish, flounder, redfish, minnows, and catfish. Now Mr. Lane sees few of these fish in the Bay and he believes the remaining fish are unfit to eat because they look diseased to him. Mr. Lane said there were extensive areas of sea grasses in the Bay which supported large numbers of shrimp, crabs, and mussels, but these grasses are now gone. The Lane family used to enjoy swimming in Perdido Bay but stopped swimming years ago because the water felt sticky and often had a brown foam or scum on the surface. Mr. Lane and others members of FOPB claim to have gotten infections from swimming in the Bay. Mr. Lane and other witnesses described the odor of Elevenmile Creek near the mill as unpleasant and, at times, offensive. They consider the Creek to be too polluted for swimming. Donald Ray, who has been a Department biologist for 30 years, said he has received many complaints from citizens about the conditions in Perdido Bay. He said the foam that occurs in Perdido Bay is not natural foam, but one that persists and leaves a stain on boats. On the other hand, it is Dr. Livingston's opinion that the ecological problems of Perdido Bay are due primarily to the opening of Perdido Pass around 1900. The opening of the pass allowed Gulf waters to enter Perdido Bay and caused salinity stratification in the Bay, with marine waters on the bottom and fresh water from the Perdido River, Elevenmile Creek, and other tributaries on the top. The stratification occurs regularly in the lower Bay, but only during low flow conditions in most of the upper Bay, Perdido River, and Elevenmile Creek. It restricts DO exchange between the upper and lower water layers and results in low DO levels in the lower layer. Low DO, or "hypoxia," is the primary cause of reduced biological diversity and productivity in Perdido Bay. Dr. Livingston's initial study of the Perdido Bay system (1988-91) included an investigation of historical conditions, using documents and maps, anecdotal statements of area residents, as well as historic water quality and sediment data. Dr. Livingston found general agreement from most sources that: [P]rior to the 1940s, the various rivers and the bay in the Perdido Basin were quite different from what they are today. Eyewitness accounts from 1924 indicate a bay that was clear and "bluish" in color; the bottom could be seen at depths of five feet. According to resident' accounts, seagrasses grew from Garth Point to Witchwood; the grassbeds provided cover for many shrimp that were taken at the time. Flounder were taken with gigs and crabs were taken with hand nets. According to these accounts, the water from the various rivers and creeks in the area was relatively clear, and white sand/gravel bottoms were dominant forms of habitat in the freshwater and estuarine systems. The water was tea- colored but clear. Redfish, trout, blue crabs, shrimp, and mullet were abundant. * * * [T]hrough the early 1900s, the Elevenmile Creek was said to be crystal clear with soft white sand and good fishing. * * * According to various reports, in the early 1950s, the waters of Elevenmile Creek turned black, with concentrations of foam observed floating on the surface. By 1986, more than 28 million gallons of largely untreated effluent was flowing into the Elevenmile Creek- Perdido Bay system each day. Experiments by the Florida Game and Fresh Water Fish Commission had shown that the creek waters were lethal. The Florida Board of Health reported that Elevenmile Creek was "grossly polluted" and that Perdido Bay had been "greatly degraded within the 1.5 mile radius of where Elevenmile Creek dumped into the bay." Nevertheless, Dr. Livingston discounted much of this historical record, especially with regard to the belief that the mill's effluent had adversely affected Perdido Bay, because it was not based on what he considers reliable scientific data. He found "little evidence in the long- term sediment record of a direct response to historical activities of the pulp and paper mill, suggesting that the flushing capacity of Perdido Bay quickly diluted effluents that enter Perdido Bay from Elevenmile Creek." The evidence is persuasive that the salinity stratification in Perdido Bay is a major cause of low DO in the Bay.9 However, the stratification does not explain all of the observed changes in water quality, biological productivity, and recreational values. The stratification does not account for the markedly better conditions in the Bay that existed before the Cantonment paper mill began operations. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. As recently as 2005, there were major toxic blooms of heterosigma in Tee and Wicker Lakes caused by increased nutrient loading from the mill. Other competent evidence showed that the mill's effluent has created nuisance conditions in the past, such as foam and scum, which adversely affected the recreational values of these public waters. Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay, because the flow from the Perdido River tends to push the flow from Elevenmile Creek toward the northeastern shore. Petitioners were justified in feeling frustrated in having their concerns about the adverse impacts of the mill's effluent discounted for many years, and in having to wait so long for an effective regulatory response. However, with regard to many of their factual disputes, Petitioners' evidence lacked sufficient detail regarding the dates of observations, the locations of observations, and in other respects, to distinguish the relative contribution of the mill effluent from other factors that contributed to the adverse impacts in the Bay, such as salinity stratification, natural nutrient loading from the Perdido River and other tributaries, and anthropogenic sources of pollution other than the paper mill.10 Petitioners generally referred to the mill effluent and its impacts to Perdido Bay as if they have been relatively constant for 65 years. The Livingston studies, however, showed clearly that the mill effluent and its impacts, as well as important factors affecting the impacts, such as drought, have frequently changed. Focusing on the fact that the average daily BOD loading allowed under the proposed permit would be same as under the 1989 TOP (4,500 ppd), Petitioners remarked several times at the final hearing that the proposed permit for the mill was no different than the existing permit. According to Petitioners, if the mill is allowed to operate under the proposed permit, one can predict that the future adverse impacts to Perdido Bay will be the same as the past adverse impacts. However, the 1989 TOP and the proposed permit are very different. Therefore, it cannot be assumed that the impacts would be the same. Petitioners' evidence was generally insufficient to correlate past adverse impacts to Perdido Bay with the likely impacts that would occur under the proposed permit. In contrast, that was the focus of the Livingston studies. Development of the WQBELs Whether Perdido Bay is an Alluvial System and Whether Elevenmile Creek is a Blackwater Stream Alluvial systems are generally characterized by relatively high nutrient inputs from tributaries and associated wetlands that provide for high biological productivity in the receiving bay or estuary. Petitioners disagree with Dr. Livingston's characterization of the Perdido Bay system as an alluvial system. Petitioners presented the testimony of Donald Ray, a Department biologist, who said that the Perdido River is not an alluvial river and the natural nutrient loadings to Perdido Bay are less than would occur in an alluvial system. Although it is curious that two experienced biologists cannot agree on whether Perdido Bay is part of an alluvial system, the dispute is immaterial because it was not shown by Petitioners that any of the four proposed Department authorizations is dependent on the applicability of the term "alluvial." The WQBELs developed by Dr. Livingston, for example, were not dependent on a determination that Perdido Bay meets some definition of an alluvial system, but were based on what the data indicated about actual nutrient loadings into Perdido Bay and the Bay's ecological responses to the loadings. If the dispute is not immaterial, then Dr. Livingston's opinion that Perdido Bay is part of an alluvial system is more persuasive, because he has greater experience and knowledge of the coastal bay systems on the Florida Panhandle than does Mr. Ray. Petitioners also take exception to Dr. Livingston's characterization of Elevenmile Creek as a blackwater creek. Petitioners claim Elevenmile Creek is naturally clear to "slightly tannic" stream. This dispute, however, is also immaterial because the proposed permit calls for the termination of the mill's discharge to Elevenmile Creek, including its contribution of color to the Creek. Petitioners assert that Dr. Livingston's characterizations of Perdido Bay as an alluvial system and Elevenmile Creek as a blackwater creek show he is biased and that his "overall analysis" lacks credibility. Dr. Livingston's opinions on these points do not show bias nor compromise the credibility of his overall analysis of the Perdido Bay system, which is actually the product of many scientists and based on 18 years of data.11 2. Selection of 1988 and 1989 Mill Loadings as a Benchmark for the WQBELs Generally, the Department establishes effluents limits for nutrients based on Chlorophyl A analysis. However, the Livingston studies showed that Chlorophyl A was not significantly associated with plankton blooms in Perdido Bay. Therefore, the Department accepted Dr. Livingston's recommendation to base the WQBELs for nutrients on the nutrient loading from the mill in 1988 and 1989, which the Livingston studies showed were good years for Perdido Bay with respect to its biological health. Phytoplankton are a fundamental component of the food web in Perdido Bay. The number of phytoplankton species is a sensitive indicator of the overall ecological health of the Bay. The Livingston studies showed that the loadings of ammonia and orthophosphate from the mill had a direct effect on the number of phytoplankton species. In the years when the mill discharged high loadings of ammonia and orthophosphate, there were toxic algae blooms and reduced numbers of phytoplankton species. In 1988 and 1989, when the loadings of ammonia and orthophosphate were lower, there were no toxic algae blooms, and there were relatively high numbers of phytoplankton species. Petitioners dispute that 1988 and 1989 are appropriate benchmarks years for developing the WQBELs because Petitioners claim there were high nutrient loadings and algae blooms in those years. Mr. Ray testified that the Department received citizen complaints about algae blooms in those years. Dr. Livingston's analysis was more persuasive, however, because it distinguished types of algae blooms according to their harmful effect on the food web and was based on considerably more water quality and biological data. Petitioners also presented water quality data collected from 1971 to 1994 by the Bream Fishermen Association at one sampling station in the northeastern part of Perdido Bay, which indicate that in 1988 and 1989, the concentrations of nutrients were sometimes high. The proposed nutrient WQBELs were derived from data about the actual response of the Perdido Bay ecosystem over time to various inputs. The sampling data from the Bream Fishermen Association were not correlated to ecosystem response and, therefore, are insufficient to refute Dr. Livingston's evidence that 1988 and 1989 were years of relatively high diversity and productivity in Perdido Bay. Furthermore, nutrients loadings would be reduced under the proposed permit. 3. DO and Sediment Oxygen Demand The parties agreed that sediment oxygen demand (SOD) is a major reason for the low DO in Perdido Bay in areas where there is salinity stratification. SOD is caused by the bacterial degradation of particulate organic matter that settles to the bottom. SOD decreases DO in the lower water layer, but also can cause a reduction of DO in the surface layer. Low DO has substantially reduced the biological productivity of Perdido Bay. Thomas Gallagher, an environmental engineer and water quality modeling expert, showed that even without the mill discharge, DO in the bottom waters of Perdido Bay would fall below the applicable Class III water quality standard of 5 mg/l. Low DO conditions are now a "natural" characteristic of the Bay, usually occurring during summer and early fall when freshwater flows are low and temperatures are high. At these times, surface water DO levels are usually above the state standard, but DO in the bottom waters usually range between 1.0 and 2.0 mg/l. Petitioners claim that the dominant source of the sediment in Perdido Bay is the carbon and nutrient loading in the mill's effluent that flows into the Bay from Elevenmile Creek. Mr. Ray, who sampled sediments in Perdido Bay over several years for the Department, believes that the mill effluent is the main source of the sediment and, consequently, the sediment oxygen demand. Dr. Livingston did extensive sediment analyses in Perdido Bay. He compared the data with sediment data from other bays on the Florida Panhandle. It is Dr. Livingston's opinion that the mill effluent contributes little to the sediments or SOD in Perdidio Bay. His initial three-year study concluded: [T]he hypoxic conditions of Elevenmile Creek are due, in part, to mill discharges. However, low dissolved oxygen conditions at depth in Perdido Bay are not due to the release of mill effluents from Elevenmile Creek, and can actually be attributed to a long history of human activities that include alteration of the hydrological interactions at the gulfward end of the estuary. The entry of saline water from the Gulf and the resulting stratification have been coupled with various forms of human development that release carbon, nitrogen, and phosphorus compounds into the estuary. The landward movement of high-salinity water from the Gulf of Mexico, laden with various types of oxygen-consuming compounds from various sources, together with oxygen demand from sediments to the lower water column that is isolated from reaeration due to salinity stratification, are thus responsible for a large portion of the observed hypoxic conditions at depth in Perdido Bay. [The paper mill] is responsible for a relatively small amount of these oxygen-consuming effects. In East Bay, which is a part of Escambia Bay and a relatively pristine system, there was SOD that caused DO to fall below standards in the lower water layer. Dr. Livingston also found severe oxygen deprivation at times in the lower waters of the Styx River and Perdido River, which do not receive mill effluent. Dr. Livingston believes the low DO that occasionally occurs in these rivers is due to agricultural runoff, urban discharges, and natural organic loading from adjacent wetlands. There was extensive evidence, some of which was presented by Petitioners, showing that the mill loadings of carbon and nutrients are less than the loadings from the Perdido River. Mr. Gallagher concluded that the sediment in the Bay is mostly "terrestrial carbon," and not from the mill's effluent. His water quality modeling work determined that the mill's effluent reduced bottom layer DO by about 0.1 mg/l. Dr. Lane believes that the organic solids in the mill's effluent are accumulating in Perdido Bay sediments, but Mr. Gallagher pointed out that degrading solids cannot accumulate because they are degrading. In addition, Mr. Gallagher said that logic dictates that solids that have not settled out after spending several days in the settling basins of IP's WWTP are not going to readily settle in the more turbulent environment of Perdido Bay. Some of the solids are oxidizing or being transported into the Gulf. Mr. Gallagher determined that in summer and late fall, 60 percent of the water in the bottom layer in the upper Bay is from the Gulf and almost all the rest is from the Perdido River. He believes only 0.1 to 2.0 percent of the water in the bottom layer is mill effluent. Dr. Livingston responded to the BOD and carbon issues that "these Petitioners raised over the years" by investigating them as part of the Livingston studies. He found no relationship between loading and DO. Dr. Livingston concluded that the mill was not having much effect on SOD. Dr. Livingston and Mr. Gallagher referred to a carbon isotope study of the sediment in Perdido Bay by Coffin and Cifuentes. The isotope study was a part of the initial three-year Livingston study entitled "Ecological Study of the Perdido Bay Drainage System." The study identified a unique carbon isotope in the mill's effluent and looked for traces of the isotope in the sediments of Perdido Bay. Very little of the carbon isotope was found in the sediments, suggesting that the mill's effluent was not contributing much to the sediments. The carbon isotope study was not offered into evidence. Petitioners assert that the isotope study is hearsay and cannot be used to support a finding of fact.12 However, Dr. Livingston's opinion about the sources of the sediment was not based solely on the isotope study. The isotope study was consistent with his other studies and with Mr. Gallagher's water quality modeling analysis. Therefore, the conclusions of the isotope study serve to support and explain Dr. Livingston's expert opinion that the mill effluent is not the primary source of the sediment and low DO in Perdido Bay. Dr. Livingston summarized his opinion regarding DO and SOD as follows: "all of these lines of evidence, from all the bays that I have worked in and from them scientific literature and from our own studies, every line of evidence simply eliminated the pulp mill as the primary source of the low dissolved oxygen in the bay." 4. Long-term BOD BOD is a measurement of the oxygen demand exerted by the oxidation of carbon, nitrogen, and the respiration of algae. A five-day BOD analysis is the standard test used in the regulatory process. The use of the standard five-day BOD measurement is not restricted to organic material that is expected to completely degrade in five days. Five days is simply the time period selected to standardize the measurement. For example, the five-day BOD analysis is used in the regulation of domestic wastewater even though most of the organic material in domestic wastewater takes about 60 days to degrade and would exert an oxygen demand throughout the 60 days. It was undisputed that paper mill effluent will continue to consume DO after five days. One estimate given was that it would take 100 days to completely degrade. Some of the naturally occurring organic material flowing into Perdido Bay from the Perdido River and Gulf of Mexico would also include material with long-term BOD. Petitioners claim that long-term BOD analysis is essential to determine the true impacts of the mill's effluent on Perdido Bay, but they failed to show that the Livingston studies did not consider long-term BOD.13 The evidence shows that Dr. Livingston's studies accounted for DO demand in all its forms and for any duration. Dr. Livingston's studies focused on the response of Perdido Bay's food web to nutrients and various other inputs as they changed over time. If long-term BOD was having an adverse effect on the food web, the Livingston studies were designed to detect that effect. Dr. Livingston's opinion is that long-term BOD is not a significant problem for Perdido Bay because the Bay is part of a dynamic system and the sediments are regularly flushed out or otherwise recycled in a matter of a few months, not years.14 5. Carbon Dr. Lane, who is a marine biologist, believes a major reason for low DO in Perdido Bay is "organic carbonaceous BOD." However, Dr. Lane presented no evidence other than statements of the theoretical process by which carbon from the mill would cause low DO in the Bay. She presented no scientific data from Perdido Bay to prove her theory.14 Dr. Livingston said that 16 years of studies in the Bay have found DO and carbon to be "totally uncorrelated." Other Water Quality Issues 1. Toxicity Petitioners allege that the mill effluent has had occasional problems passing toxicity tests. Un-ionized ammonia is the likely cause, and the reduction of un-ionized ammonia in the proposed permit and the distribution of the effluent over the wetland tract should prevent toxicity problems from recurring. Dr. Livingston examined tissue samples from various fish and invertebrates and found low levels of bioconcentrating chlorine compounds in Perdido Bay that he believes were "probably associated with discharges from the Pensacola mill." Although they are toxic substances, Dr. Livingston found no diseased organisms and no evidence of food web magnification of these potentially bioaccumulable compounds. Mr. Ray testified that Perdido Bay was the worst of all the bays he has studied in terms of high sediment metals. Most of his sediment sampling was done in 1977 through 1983, years before the Livingston studies got started. His knowledge about subsequent years was based on only two samples, one in 1988 and another in 2005.16 Dr. Lane did an analysis of 12 sediment samples in Perdido Bay, Perdido River, and Elevenmile Creek in 1999 and concluded that "Eleven Mile Creek appears to be the source of all elevated levels [of metals] except silver." The Livingston studies included toxics analysis of Perdido Bay sediments, including metals, dioxin, and other chlorinated organic compounds. Dr. Livingston testified that metal concentrations in the sediments of Elevenmile Creek did not differ from the metal concentrations in the Perdido River and other streams in the area. The concentrations were not significantly different from concentrations in other bays he has studied that do not have a paper mill discharge. 2. Mutagenic Compounds Petitioners claim that there are chemicals in paper mill effluent that are mutagenic and are causing changes in the sex of fish. They introduced an exhibit from the Department's exhibit list (DEP Exhibit 38) that discussed investigations of effluent from the Cantonment mill and other Florida paper mills which found abnormally high testosterone levels and related mutations in female Gambusia fish. The most recent such study16 implicates androgens produced by the microbial degradation of natural chemicals in the trees pulped at the mills, especially softwood trees (pines), as the cause. Petitioners believe IP's proposal to begin using 100 percent pine at the Cantonment mill could cause mutations in fish and other animals exposed to the mill's effluent. Although IP and the Department are aware of the sex change studies, there was no evidence presented that the subject was investigated or addressed by them in the permitting process. DEP Exhibit 38 is hearsay and no non-hearsay evidence was presented on the issue of mutagenic compounds in the mill's effluent. Therefore, no finding of fact in this Recommended Order can be based on the data and analysis in DEP Exhibit 38.18 Furthermore, Petitioners did not raise the issue of mutagenic compounds in the mill's effluent discharge in their petitions for hearing or in the pre-hearing stipulation.19 Antidegradation Policy Petitioners claimed the proposed permit violated the antidegradation policy for surface waters established in Florida Administrative Code Rule 62-302.300(1). An element of that policy is to require, for any discharge that degrades water quality, a demonstration that the degradation is necessary or desirable under circumstances which are clearly in the public interest. Florida Administrative Code Rule 62-4.242(1)(a) contains a list of factors to be considered and balanced in applying the antidegradation policy. These include consideration of whether the proposed project would be beneficial to public health, safety, or welfare and whether the discharge would adversely affect the, conservation of fish and wildlife, and recreational values. The greater weight of the evidence supports the position of IP and the Department that the proposed discharge to the wetland tract would be an improvement over the existing circumstances. However, as discussed below, there was an insufficient demonstration that the discharge would not cause significant adverse impact to the biological community within the wetland tract, and there was an insufficient demonstration that the Perdido River OFW would not be significantly degraded. Without sufficient demonstrations on these points, it is impossible to find that the degradation has been minimized. Petitioners did not prove that the proposed project was not in the public interest, but the burden was on IP to show the opposite. Because IP did not make a sufficient demonstration regarding potential adverse impacts on the biological community within the wetland tract and on the Perdido River OFW, IP failed to prove compliance with Florida's antidegradation policy. Perdido River OFW Florida Administrative Code Rule 62-302.300(2) contains the standards applicable to OFWs and prohibits a discharge that significantly degrades an OFW unless the proposed discharge is clearly in the public interest or the existing ambient water quality of the OFW would not be lowered.20 Petitioners contend that the water quality of the Perdido River would be significantly degraded by the mill's effluent under the authorizations. Mr. Gallagher's modeling analysis predicted improved water quality in the Perdido River for DO and several other criteria over the conditions that existed in 1979, the year the river was designated as an OFW. However, the modeling also predicted that the discharge would reduce the DO in the river (as it existed in 1979) by .01 mg/l under unusual conditions of effluent loading at the daily limit (based on a monthly average) during a drought. Mr. Gallagher's modeling indicated that a very small (less than 0.1 mg/l) reduction in DO in the surface water of the lower Perdido River would occur as a result of the proposed project. He considered that to be an "insignificant" effect and it was within the model's range of error. However, IP made the wrong comparisons in its modeling analysis to determine compliance with the OFW rule, Florida Administrative Code Rule 62-4.242(2). Mr. Gallagher used the model to compare the DO levels in the Perdido River that would result from the mill's discharge of BOD at the proposed permit limit of 4,500 ppd with the predicted DO levels that would have existed in 1979 if St. Regis was discharging 5,100 ppd of BOD. IP should have compared the DO levels resulting from the proposed permit with the actual DO levels in 1979, or at least the DO levels that the model would have simulated using actual BOD loadings by St. Regis in 1979. The DO levels that would have existed in 1979 if St. Regis had discharged 5,100 ppd of BOD are irrelevant. No DO data from 1979 were presented at the hearing and no explanation was given for why DO data for 1979 were not used in the analysis. No evidence was presented that St. Regis discharged 5,100 ppd of BOD as a monthly average in 1979.21 It might have discharged substantially less.22 Petitioners did not prove that the proposed permit would significantly degrade the Perdido River, but the burden was on IP to show the opposite. Because the wrong anti-degradation comparison was made, IP failed to provide reasonable assurance that the Perdido River would not be significantly degraded by the proposed discharge. The Experimental Use of Wetlands Exemption Petitioners claim that IP did not demonstrate compliance with all the criteria for the experimental use of wetlands exemption. There are seven criteria set forth in Florida Administrative Code Rule 62-660.300(1)(a) that must be met to qualify for the exemption. IP is seeking a waiver from two of the criteria and those will be discussed later in this Recommended Order. Impact on the Biological Community a. In General Florida Administrative Code Rule 62- 660.300(1)(a)1 requires a demonstration that "the wetlands ecosystem may reasonably be expected to assimilate the waste discharge without significant adverse impact on the biological community within the receiving waters." Dr. Nutter used a "STELLA" wetland model to predict the effects of discharging mill effluent to the wetland tract. The STELLA model was programmed to evaluate the "water budget" for the wetland tract, as well as simulate the fate of nitrogen, phosphorus, and total dissolved solids (TDS). Petitioners contend that the STELLA model is too limited to adequately assess potential adverse impacts on the biological community, but the model was not the sole basis upon which Dr. Nutter formed his opinions. He also relied on relevant scientific literature, his general knowledge of wetland processes, and on his 40 years of experience in land treatment of wastewater. The STELLA model predicted that there would be about a 10 percent reduction in nitrogen and phosphorus. Dr. Nutter testified that that figure was a conservative prediction and the scientific literature suggests there could be a greater reduction. Wetlands are effective in processing TSS and BOD. Dr. Nutter ran the model with the proposed permit limits and the model predicted 90 to 95 percent BOD removal before the effluent reached berm 4. Dr. Nutter expected pH levels to be in the range of background levels in the wetlands, which vary between 6.5 and 8.0.23 Dr. Nutter predicts that in high flow conditions, there will be more DO in the water flowing from the wetlands into Tee and Wicker Lakes. During low flow conditions, he predicts no change in the DO level. Background DO levels in the wetland tract now range between and 5.0 mg/l. Mr. Gallagher's water quality modeling for Perdido Bay assumed that the water flowing from the wetland tract would have a DO level of 2.0 mg/l, which Dr. Nutter believes this is a conservative estimate, meaning it could be higher. Specific Conductance A fundamental premise of the relocated discharge is that it solves the mill's decades-long failure to meet the stricter water quality standards applicable in the fresh waters of Elevenmile Creek because the new receiving waters would be marine waters. However, the majority (about 70 percent) of the wetland tract is a freshwater wetland. The tidal influence does not reach above berm 4 in the wetland tract. Before the mill's effluent reaches marine waters, it would be distributed over the entire freshwater portion of the wetland tract. Dr. Livingston explained that, but for the mill's discharge, minnows and other small "primary" freshwater fish species would be found in Elevenmile Creek. The primary fish cannot tolerate the mill's discharge because the high levels of sodium chloride and sulfide (specific conductance) cause osmoregulatory problems, disrupting their blood metabolism and ion regulation. High conductivity also eliminates sensitive microinvertebrates. Because Tee and Wicker Lakes are in the tidally influenced, southern portion of the wetland tract, the fish and other organisms in the lakes are polyhaline, which means they are adapted to rapid changes in salinity, temperature and other habitat features. That is not true of the organisms in the freshwater area of the wetland tract. A constructed wetlands pilot project was built in 1990 at the Cantonment mill. The initial operational phase of the pilot project was July 1991 through June 1993. A second phase was conducted for just three months, from September 1997 through December 1997. The pilot project generated some information about "benthic macroinvertebrate diversity," which was "low to moderate." In addition, there were "observations" made of "three amphibian species, three reptile species, approximately 31 bird species, three fish species that were introduced, and two mammal species." The information generated by the pilot project is ambiguous with respect to the effect of the effluent on fish and other organisms attributable to the specific conductance of the effluent, indicating both successes and failures in terms of survival rates. Moreover, the data presented from the pilot wetland project lacks sufficient detail, both with respect to the specific conductivity of the effluent applied to the wetlands and with respect to the response of salt-intolerant organisms to the specific conductivity of the effluent, to correlate the findings of the pilot project with the proposed discharge to the wetland tract. Freshwater wetlands do not have naturally high levels of specific conductance. The specific conductance in the wetland tract is 100 micromhos/cm or less.24 The proposed interim limit for specific conductance for the discharge into the wetland tract is "2,500 micromhos/cm or 50% above background, whichever is greater." Using total dissolved solids (TDS) as a surrogate for analyzing the effects on specific conductance, Dr. Nutter predicted that average TDS effluent concentrations would only be reduced by 1.0 percent.25 His prediction is consistent with the literature on the use of wetlands for wastewater treatment, which indicates wetlands are not effective in reducing TDS and specific conductance. The wetland tract would not assimilate TDS in mill's effluent. The potential exists, therefore, for the discharge to cause specific conductance in the freshwater area of the wetland tract to reach levels that are too high for fish and other organisms which can only live, thrive, and reproduce in waters of lower specific conductance. It was the opinion of Barry Sulkin, an environmental scientist, that the "freshwater community" would be adversely impacted by the salts in the effluent. Although the freshwater area of the wetland tract is not dominated by open water ponds, creeks, and streams,26 the evidence shows that it contains sloughs, creeks, and other surface water flow. No evidence was presented about the biological community associated with the sloughs, creeks, and other waters in the wetland tract, other than general statements about the existing plants and the trees that are being planted. Petitioners did not prove that granting the exemption would cause significant adverse impact to the biological community in the freshwater area of the wetland tract, but it was IP's burden to affirmatively demonstrate the opposite. Because IP did not adequately address the impact of increased specific conductance levels on fish and other organisms in the freshwater area of the wetland tract, IP did not provide reasonable assurance that the proposed discharge would be assimilated so as not to cause significant adverse impact on the biological community within the wetland tract. Tee and Wicker Lakes When the Department issued the proposed exemption order, it did not have sufficient data and analyses regarding Tee and Wicker Lakes to determine with reasonable confidence that these waterbodies would not be adversely impacted by the proposed discharge. A transparency study of the lakes, which IP introduced as an exhibit at the final hearing, had not previously been reviewed by Department staff. Dr. Livingston is still developing data and analyses for the lakes to use in the NSAI analysis. The proposed NSAI monitoring plan states that one of its objectives is to determine the "ecological state" of the tidal ponds, including whether the ponds "could comprise an important nursery area for estuarine populations." In addition, the monitoring is to determine "the normal distributions of salinity, temperature, color, and dissolved oxygen" in the tidal ponds. These are data that must be known before a determination is possible that the discharge would not have a significant adverse impact on the biological community associated with the lakes. Petitioners did not prove that granting the exemption would cause significant adverse impact to the biological community of Tee and Wicker Lakes, but it was IP's burden to affirmatively demonstrate the opposite. Because insufficient data exists regarding baseline conditions in Tee and Wicker Lakes, IP did not provide reasonable assurance that the proposed discharge would not cause significant adverse impact on the biological community within the wetland tract. 2. Public Interest and Public Health Florida Administrative Code Rule 62- 660.300(1)(a)2. requires the applicant to demonstrate that "granting the exemption is in the public interest and will not adversely affect public health or the cost of public health or other related programs." Public Interest Petitioners made much of a statement by Mr. Evans that the public interest consideration in this permit review was “IP’s interest”. Petitioners claimed that this statement was an admission by the Department that it gave no consideration to the public interest. However, in context, Mr. Evan's statement was not such an admission. Moreover, Florida Administrative Code Rule 62-302.300(6) expressly provides that the public interest is not confined to activities conducted solely for public benefits, but can also include private activities conducted for private purposes. The proposed exemption order does not directly address the public interest criterion, but it notes that "existing impacted wetlands will be restored." In IP's application for the exemption, it states that the exemption would "contribute to our knowledge of wetlands in general and to the refinement of performance guidelines for the application of pulp mill wastewater to wetlands." Petitioners dispute that the wetland tract is being restored. The evidence shows that some restoration would be accomplished. The natural features and hydrology of the tract have been substantially altered by agriculture, silviculture, clearing for pasture, ditching, and draining. The volume of flow in the discharge would offset the artificial drainage that occurred. A mixture of hardwood tree species would be planted, which would restore more of the diversity found in a natural forested wetland. However, an aspect of the project that could substantially detract from the goal of restoration is the transformation of the freshwater wetlands to an unnatural salty condition. Dr. Nutter said that the salt content of the mill's effluent was equivalent to Gatorade, but for many freshwater organisms, that is too salty. Another public benefit of the exemption that was discussed at the final hearing is that it would allow IP to relocate its discharge from Elevenmile Creek and thus end its adverse impacts to the Creek. That public benefit is not given much weight because IP has not shown that its adverse impacts to Elevenmile Creek cannot be eliminated or substantially reduced by decreasing its production of paper products. The evidence shows only that IP has attempted to solve its pollution problems through environmental engineering.27 A sufficient public interest showing for the purpose of obtaining the experimental use of wetlands exemption should not be a rigorous challenge if all the other exemption criteria are met, because that means the proposed wetland discharge was shown to have no harmful consequences. The public interest showing in this proceeding was insufficient, however, because the other exemption criteria were not met and there is a reasonable potential for harmful consequences. Public Health Petitioners raised the issue of the presence of Klebsiella bacteria, which can be a public health problem when they occur at high levels. The more detection of Klebsiella, however, does not constitute a public health concern. Petitioners did not show that Klebsiella bacteria exist in the mill's effluent at levels that exceed applicable water quality standards. Petitioners also did not present competent evidence about the likely fate of Klebsiella bacteria in the proposed effluent distribution system. Dr. Lane's statement that Klebsiella bacteria might be a problem is not sufficient to rebut IP's prima facie showing that the proposed permit will not cause or contribute to a violation of water quality standards applicable to pathogenic bacteria. Petitioners also point to past incidents of high total coliform concentrations in Elevenmile Creek in support of their contention that the proposed exemption poses a risk to public health. However, these past incidents in Elevenmile Creek are not sufficient to prove that fecal coliform in the effluent discharged to the wetland tract will endanger the public health. IP proposes to restrict access to the wetland distribution system. Furthermore, the fate of bacteria in the wetlands is much different than in the Creek. The more persuasive evidence is that the wetland tract would destroy the bacteria by solar radiation and other mechanisms so that bacteria concentrations in waters accessible by the public would not be at levels which pose a threat to public health. Protection of Potable Water Supplies and Human Health Florida Administrative Code Rule 62- 660.300(1)(a)5. requires the applicant for the exemption to demonstrate that "the presently specified criteria are unnecessary" to protect potable water supplies and human health, which presupposes that the applicant has applied for an exemption from water quality criteria applicable to human health. IP has not requested such an exemption and, therefore, this particular criterion appears to be inapplicable. Even if it were applicable, the evidence does not show that the effluent would cause a problem for potable water supplies or human health. 4. Contiguous Waters Florida Administrative Code Rule 62- 660.300(1)(a)6. requires a showing that "the exemption will not interfere with the designated uses of contiguous waters." Contiguous waters, for the purpose of this criterion, would be Elevenmile Creek, Perdido Bay, and the Perdido River. Petitioners argue that Tee and Wicker Lakes should be considered contiguous waters for the purpose of this criterion of the exemption rule. However, Tee and Wicker Lakes are within the exempted wetland tract so they are not contiguous waters. Petitioners contend that IP failed to account for the buildup of detritus in the wetlands and its eventual export to Perdido Bay. Their contention is based primarily on the opinion of Dr. Kevin White, a civil engineer, that treatment wetlands must be scraped or burned to remove plant buildup. However, Dr. Nutter explained that periodic removal of plant material is needed for the relatively small "constructed wetland" treatment systems that Dr. White is familiar with, but should not be needed in the 1,464-acre wetland tract. Nevertheless, because IP did not provide reasonable assurances that the proposed permit and related authorizations would not significantly degrade the Perdido River OFW, IP failed to meet this particular exemption criterion regarding interference with contiguous waters. 5. Scientifically Valid Experimental Controls Florida Administrative Code Rule 62- 660.300(1)(a)6. requires a showing that "scientifically valid environmental controls are provided . . . to monitor the long-term effects and recycling efficiency." Petitioners' argument about this particular criterion was largely misplaced. The term "environmental controls" modifies the term "monitor" and connotes only that the experiment would be monitored in a manner that will generate reliable information about long-term effects and performance. For monitoring purposes, IP's proposed NSAI protocol is an innovative and comprehensive plan that complies with this exemption criterion. Petitioners' objections to the lack of sufficient information about Tee and Wicker Lakes is more appropriately an attack on the sufficiency of IP's showing that its discharge would not cause a significant adverse impact on the biological community within the wetland tract. That issue was discussed above. 6. Duration of the Exemption Petitioners argue that the exemption can not exceed five years in duration, but the time schedules established by the proposed Consent Order and proposed permit would allow the exemption to be in effect for nine years. The Department's exemption order states that the five years does not begin to run until IP begins to discharge effluent at D-003 into the wetland tract. The possibility that IP might seek to renew the exemption after five years does not make the exemption something other than a five-year exemption. The Department's action on the request to renew the exemption would be subject to public review and challenge by persons whose substantial interests are affected. The Waiver The proposed waiver order would excuse IP from compliance with the criteria in Florida Administrative Code Rule 62-660.300(1)(a)3. and 4., which require that public access and recreation be restricted in the area covered by the exemption for experimental use of wetlands. Without the waiver, the public would have to be excluded from Tee and Wicker Lakes. Section 120.542, Florida Statutes, requires a showing by the person seeking the waiver that the purpose of the underlying statute will be achieved by other means and the application of a rule would create a substantial hardship or would violate principles of fairness. Petitioners contend that IP failed to demonstrate substantial hardship. However, Petitioners do not want public access to Tee and Wicker Lakes restricted. The sole reason for their objection to the proposed waiver is apparently to thwart the issuance of the exemption. Section 120.542, Florida Statutes, defines "substantial hardship" as a demonstrated economic, technological, legal, or other type of hardship to the person requesting the waiver. In the proposed waiver order, the Department identifies IP's hardship as the possibility that denial of the waiver could result in denial of IP's NPDES permit and closure of the mill. The proposed waiver order then describes the number of jobs and other economic benefits of the mill that would be lost if the mill were closed. As discussed in the Conclusions of Law below, the Department's interpretation of Section 120.542, Florida Statutes, to accept a demonstration of hardship that is associated with denial of the waiver is mistaken. The statute requires that the hardship arise from the application of the rule. In this case, IP must demonstrate that it would suffer substantial hardship if it were required to restrict public access and recreation on Tee and Wicker Lakes. Petitioners claimed that IP has no authority to restrict the public from gaining access to Tee and Wicker Lakes because those are public waterbodies which the public has a right to enter and use. A substantial legal hardship for IP in complying with the exemption rule, therefore, is that compliance is impossible. The Consent Order 1. Compliance Schedule Subsections 403.088(2)(d) and (e), Florida Statutes, provide that no permit shall be issued unless a reasonable schedule for constructing, installing, or placing into operation of an approved pollution abatement facility or alternative waste disposal system is in place. Petitioners claim the time schedules for compliance are not reasonable. Petitioners presented no competent evidence, however, that the WWTP upgrades, pipeline construction, and other activities required by the proposed permit can be accomplished in a shorter period of time. One recurring theme in the Petitioners' case was that the adverse impacts associated with the continued discharge to Elevenmile Creek should not be allowed to continue, even for an interim period associated with construction of the WWTP upgrades and effluent pipeline. However, Petitioners also advocated the relocation of the discharge to the Escambia River, or to a "constructed wetlands." Both of these alternatives would have required a transition period during which the discharge to Elevenmile Creek would likely have continued. Furthermore, the Consent Order imposes interim limits on the discharge to Elevenmile Creek that would apply immediately upon issuance of the proposed permit. Although altered by the mill's effluent discharge, Elevenmile Creek is now a relatively stable biological system. The proposed permit would effectuate some improvement in the creek and Perdido Bay even during the construction phase. 2. Contingency Plan The proposed Consent Order includes a contingency plan in the event that the NSAI monitoring analysis shows adverse impacts to the biological community within the wetland tract. The plan provides for alternative responses including relocating all or part of the wetland discharge to Elevenmile Creek. Petitioners object to the plan, primarily because they contend it is vague. The provisions in the contingency plan for relocating all or part of the discharge from the wetland tract to Elevenmile Creek, appear to reflect a presumption that the negatives associated with continued discharge to the wetlands would outweigh the negatives associated with returning the discharge to Elevenmile Creek. However, it is not difficult to imagine scenarios where the harm to the biological community of the wetland tract is small in relationship to the harm to the biological community that might have reestablished itself in Elevenmile Creek. Because the selection of an alternative under the contingency plan requires the consideration of data and analyses associated with future events, it is impossible to know at this time whether future action taken by the Department and IP pursuant to the contingency plan would be reasonable. If the contingency plan is intended by the Department and IP to authorize future action when circumstances described in the plan are present, then the plan is too vague. On the other hand, there is adequate detail in the plan if the purpose of the plan is merely to establish a framework for future decision-making that would be subject to permit modification, public review and challenge. Clarification is needed. 2. Penalties Petitioners complained that the stipulated of $500 per day for violations of the proposed Consent Order is too small to provide a deterrent to a company of the size of IP. Petitioners are correct, but did not present evidence to show what size penalty would be appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order: Denying proposed revised NPDES Permit Number FL0002526- 001/001-IW1S; Disapproving revised Consent Order Number 04-1202; Denying IP's petition for authorization for the experimental use of wetlands; and Denying IP's petition for waiver. DONE AND ENTERED this 11th day of May, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.
Findings Of Fact Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built. Sometimes during July, 1982, Moore used a shovel to excavate a channel from the open waters of Estero Bay to a dock existing at the edge of the fill pad. Approximately 48 cubic yards of excavated material was piled up along the banks of the channel. The channel measured approximately 1.5 feet deep (at low tide) by 9 feet wide by 70 feet long. The channel was dug so that Moore could got his boat in and out from the dock at medium tide. The passage to the deck was already possible at high tide, as Moore had a shallow draft pontoon boat. In July, 1981, Moore constructed a rip-rap revetment with backfill the northern side of his house fill pad. The back fill area contains approximately 160 cubic yards of fill, and is approximately 10 feet wide by 110 feet long. Red mangrove and black mangrove are and were the dominant vegetational species in the area where the channel was dug, where the excavated material was placed, and where the revetment and fill was constructed. The area of dominant mangrove vegetation extends from the work areas to the open waters of Estero Bay. Moore did not apply for or receive a permit from DER prior to undertaking the work referenced above. Upon discovery of the work in September, 1982, DER notified Moore that a permit was needed for the excavation and filling he conducted. In October, 1982, Moore agreed to fill in the channel and remove all unauthorized fill by January 19, 1983. Inspection by DER on January 26, 1983, showed that restoration had not been started, and in fact more work had been done on the channel. DER issued a Notice of Violation and Orders for Corrective Action (NOV) to Respondent on March 29, 1003, alleging violations of Chapter 403, Florida Statute's, and DER rules and requiring restoration of the areas dredged and filled. Upon service of the Notice of Violation by the Sheriff, Respondent petitioned for this hearing. DER incurred costs of 5101.88 in investigating the violations alleged in the NOV. As of the date of the hearing, restoration work still had not been performed. Although the spoil piles alongside the channel are now diminished, the channel itself was deep as it previously had been and the rip-rap revetment and backfill had not been removed.
The Issue The issues are whether Respondent Lennar Homes, Inc., is entitled to an environmental resource permit to construct a 516- acre residential development in Miami-Dade County known as Lakes by the Bay South Commons Project and, if so, under what conditions.
Findings Of Fact On May 18, 2001, Respondent Lennar Homes, Inc. (Lennar Homes), filed an application with Respondent South Florida Water Management District (District) for an environmental resource permit (ERP) for a 516-acre residential development in Miami- Dade County known as Lakes By The Bay (Project). On June 12, 2002, Lennar Homes filed a revised ERP application for the Project. The application, as revised, is for an ERP conceptually approving the construction of a surface water management system to serve the Project and authorizing the construction to clear the site, excavate the wet retention areas, and expand an existing lake. Providing 3300 single- family residences, the Project is the last phase of a master planned residential development, which presently contains over 1500 residences north and west of the Project. The Project is bordered by Southwest 97th Avenue to the west, Southwest 87th Avenue to the east, Southwest 216th Street to the north, and Southwest 232nd Street to the south. Immediately south of the Project are a regional wastewater treatment plant and county solid waste landfill. These facilities occupy opposing banks of the C-1 Canal, which runs a short distance from the southwest corner of the Project. The Project site is drained, cleared, and infested with Brazilian pepper and melaleuca. The Project will impact 135 acres of wetlands, but these wetlands are severely degraded due to the construction of roads, berms, and canals. No evidence suggests that the site is presently used by any listed species. At present, drainage across the site is from west to east, where stormwater is intercepted by the L-31E levy and canal running along the west side of Southwest 87th Avenue. At its nearest point (the southeast corner), the Project is about one mile from the southern part of Biscayne Bay. Biscayne Bay is an Outstanding Florida Water. Much of its central and southern parts, including the area closest to the Project site, are within Biscayne National Park. In contrast to the northern part of Biscayne Bay, the central and southern parts contain significant mangrove-lined coastal wetlands. The bay bottom in southern Biscayne Bay hosts dense seagrass beds, and coral reefs within Biscayne National Park support a diverse community of marine life. The L-31E levy and canal redirect stormwater from the Project site south to the C-1 Canal, which runs, in this area, in a northwest-to-southeast direction before emptying into Biscayne Bay. The C-1 Canal drains an extensive area to the north and northwest of the Project. The landfill and water treatment plant are a short distance downstream of the Proposed Project. The parties have stipulated that the Project meets the following ERP criteria (with minor rephrasing from the stipulation): The Project will not adversely affect significant historical and archaeological resources. The Project is not located within an Outstanding Florida Water and will not result in the direct discharge of surface water into an Outstanding Florida Water. Lennar has proposed mitigation to offset the adverse impacts of the Project, and the mitigation is in the same drainage basin as the adverse impacts. Therefore, the Project will not generate unlawful cumulative impacts, in violation of Section 373.414(8)(a)-(b), Florida Statutes. The Project will not cause adverse water quality impacts to receiving waters and adjacent lands, in violation of Rule 40E-4.301(a), Florida Administrative Code. The Project will not cause adverse flooding to onsite or offsite property, in violation of Rule 40E-4.301(b), Florida Administrative Code. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities, in violation of Rule 40E-4.301(c), Florida Administrative Code. The Project will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes, in violation of Rule 40E-4.301(g), Florida Administrative Code. The Project will not cause adverse impacts to a work of the District established pursuant to Section 373.086, Florida Statutes, in violation of Rule 40E-4.301(h), Florida Administrative Code. The Project will be conducted by an entity with sufficient financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, as required by Rule 40E-4.301(j), Florida Administrative Code. No special basin or geographic area criteria established in Chapter 40E-41, Florida Administrative Code, are applicable to the Project. The Project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling, as prohibited by Section 373.414(1)(a)3, Florida Statutes. The Project will be permanent, as addressed by Section 373.414(1)(a)5, Florida Statutes. The District issued its Staff Report on March 13, 2002. The Staff Report approves the proposed mitigation plan, which would enhance or create and preserve 135 acres of onsite wetlands by creating an upland buffer, emergent marsh and transitional herbaceous shrub areas, and tree island areas. Much of the proposed mitigation area will occupy the southern half of the perimeter of the Project site. As proposed in the mitigation plan, Lennar Homes will grant the District a conservation easement over the mitigation area and will be required to meet certain mitigation performance conditions. Shortly prior to the commencement of the final hearing in this case, the District decided to change the proposed permit regarding mitigation. The purpose of the change was to require Lennar Homes to allow the mitigation area to be used as a flowway between the C-1 Canal, upstream of the nutrient loads deposited by the landfill and water treatment plant, and an area to the east of the Project site. The receiving area consists of vestigial tidal creeks leading to presently remaining tidal creeks that empty into small embayments within Biscayne Bay. The general purpose of the change was to remediate the loss of freshwater flows into these tidal creeks, the embayments, and Biscayne Bay that resulted from the construction of drainage canals and levies, such as C-1 and L31-E. Accordingly, the District issued an Addendum to Staff Report on August 9, 2002. The Addendum adds an easement to the original mitigation plan by adding Special Condition #24, which states: No later than 30 days after permit issuance and prior to commencement of construction resulting in wetland impacts, the permittee shall submit two certified copies of the recorded flowage easement for the mitigation area and associated buffers and a GIS disk of the recorded easement area The recorded easement shall be in substantial compliance with Exhibit 41. Any proposed modifications to the approved form must receive prior written consent from the District. The easement must be free of encumbrances or interests in the easement which the District determines are contrary to the intent of the easement. . . . Exhibit 41 (actually Exhibit 41A) is entitled, "Perpetual Flowage, Inundation, Construction, and Access Easement." Representing a grant from Lennar Homes to the District, the easement (Flowage Easement) is for any and all purposes deemed by [the District] to be necessary, convenient, or incident to, or in connection with, the unrestricted right to regularly, or at any time, and for any length of time[,] overflow, flood, inundate, flow water on, across, and through, store water on, and submerge the [encumbered property], together with the unrestricted right at any time to enter upon and access the [encumbered property], with any and all vehicles and equipment, including but not limited to the right to move, transport, store, operate, and stage equipment, materials and supplies, in order to construct, operate, and maintain any and all structures, improvements, equipment, pumps, ditches and berms upon the [encumbered property] deemed by [the District] to be necessary, convenient, incident to or in connection with the implementation of the BBCW Project on the [encumbered property], or in connection with any project in the interest of flood control, water management, conservation, environmental restoration, water storage, or reclamation, and allied purposes, that may be conducted now or in the future by the [District], or to carry out the purposes and intent of the statutory authority of the [District], presently existing or that may be enacted in the future, together with all right, title, and interest in and to the [BBCW] Project Structures. * * * This Easement shall at no time be construed to alleviate or release [Lennar Home's] responsibilities and require [sic] under ERP Permit No. to construct and maintain an on-site mitigation area as described and authorized in the ERP Permit. Other provisions of the Flowage Easement impose all risk of loss in connection with the flowway upon Lennar Homes, which indemnifies the District from all losses, costs, damages, and liability in connection with the flowway. On September 5, 2002, after the hearing, but a few days before the taking of the post-hearing testimony, the District issued a Revised Addendum to Staff Report. The Revised Addendum restates Special Condition #24 with a few relatively minor changes and adds Special Conditions ##25 and 26. Special Condition #25 attempts to harmonize the Flowage Easement with the original mitigation plan contemplated by the Staff Report. Special Condition #25 provides that when the District exercises its rights under the Flowage Easement, other special conditions shall be deleted, so as, for example, to relieve Lennar Homes of its obligations to maintain the mitigation area (except for a 25-foot buffer) and post a mitigation-performance bond. Special Condition #26 changes the language in the conservation easement, which was contemplated by the original Staff Report and mitigation plan, to harmonize this easement with the Flowage Easement. Lennar Homes has submitted a version of the Revised Addendum to Staff Report that would satisfy its concerns. The Lennar Homes version would require the District, within 30 days after issuing the ERP to Lennar Homes, to obtain permits from the U.S. Army Corps of Engineers and the local environmental regulatory agency, although not the Florida Department of Environmental Protection, which, under state law, would have to issue an ERP to the District before it could construct the flowway. The Lennar Homes version would also give the District only 90 days after issuing the ERP to Lennar Homes within which to exercise its right to construct the flowway and would sequence events so that Lennar Homes would not spend the estimated $2 million on wetland enhancement and creation and then lose the investment due to the inundation of the mitigation site with water, as authorized by the Flowage Easement. The Comprehensive Everglades Restoration Plan plays a crucial role in this case. But for this plan, the District would not have attached the additional conditions contained in the Addendum to Staff Report and Revised Addendum to Staff Report--without which conditions, the District now contends that Lennar Homes is not entitled to the ERP. Congress initially authorized the Central and Southern Florida (C&SF) Project in 1948. Objectives of the C&SF Project included flood control, water supply for municipal, industrial, and agricultural uses, prevention of saltwater intrusion, and protection of fish and wildlife. The C&SF Project attained these objectives, in part, through a primary system of 1000 miles each of levees and canals, 150 water-control structures, and 16 major pump stations. Unintended consequences of the C&SF Project have included the irreversible loss of vast areas of wetlands, including half of the original Everglades; the alteration in the water storage, timing, and flow capacities of natural drainage systems; and the degradation of water quality and habitat due to over-drainage or extreme fluctuations in the timing and delivery of freshwater into the coastal wetlands and estuaries. In 1992, Congress authorized the C&SF Project Comprehensive Review Study (Restudy). The objective of the Restudy was to reexamine the C&SF Project to determine the feasibility of modifying the project to restore the South Florida ecosystem and provide for the other water-related needs of the region. Completed in April 1999, the Central and Southern Florida Project Comprehensive Review Study Final Integrated Feasibility Report and Programmatic Environmental Impact Statement (Restudy Report) notes that, among the unintended consequences of the C&SF Project, was "unsuitable freshwater flows to Florida and Biscayne bays and Lake Worth Lagoon [that] adversely impact salinity and physically alter fish and wildlife habitat." The Restudy Report states that, absent comprehensive, new restoration projects, the "overall health of the [South Florida] ecosystem will have substantially deteriorated" by 2050. The Restudy Report recommends a comprehensive plan for the restoration, protection, and preservation of the water resources of Central and South Florida. This plan is known as the Comprehensive Everglades Restoration Plan (CERP). Acknowledging the complex dynamics of the restoration goals identified in CERP, the Restudy Report establishes Project Implementation Reports to tie together CERP and the detailed design necessary for the construction of individual restoration projects and adaptive assessments to monitor the performance of individual components, incorporate new data, and refine future components. The Restudy Report is, among other things, a programmatic environmental impact statement. The Restudy Report states: "Due to the conceptual nature of [CERP] and the associated uncertainties, many subsequent site-specific environmental documents will be required for the individual separable project elements." In May 2002, the District and U.S. Army Corps of Engineers completed a draft of the Project Management Plan for the Biscayne Bay Coastal Wetlands (BBCW PMP). Noting that a "major goal of [CERP] is to improve freshwater deliveries to Biscayne Bay," the BBCW PMP identifies the BBCW project as the means by which to restore some of the coastal wetlands and tributaries in south Dade County. The BBCW PMP states that the primary purpose of the BBCW project, which is one of sixty projects contained in CERP, is to "redistribute freshwater runoff from the watershed into Biscayne Bay, away from the canal discharges that exist today and provide a more natural and historic overland flow through existing and or improved coastal wetlands." The Cutler Wetlands subcomponent of the BBCW project encompasses the Project site. One of the objectives of the Cutler Wetlands subcomponent is to divert water from the C-1 Canal upstream of the landfill and water treatment plant to the east of the L-31E levy and canal. In connection with the Cutler Wetlands subcomponent and the possible role of the flowway identified in this case, the District retained Dr. John Meeder, a Biscayne Bay ecologist associated with the Southeast Environmental Resource Center at Florida International University, to perform an abbreviated study and issue a report concerning the conditions required for the restoration of the coastal wetlands in the vicinity of the coastal wetlands to the north of the C-1 canal and east of the Project site (Meeder Report). The Meeder Report studies two feasible freshwater delivery options and prefers a bypass flowway along Southwest 224th Street, across roughly the middle of the Project site and north of most of the proposed mitigation area, to the L-31E levy and canal. The distribution system resulting from the preferred route would use the natural grade of the land to divert the water to the coastal wetlands and tidal creeks to the east and south that are targeted for rehydration. The alternative flowway route would run along Southwest 232nd Street, in the approximate area of the Flowage Easement, but would require pumping to distribute the water north along the L-31E levy and canal for release to the targeted coastal wetlands and tidal creeks. Obviously, the District has chosen the less-preferred route to minimize the impact on the Project. The Meeder Report considers the amount of freshwater required for two rehydration options. In the first option, water diverted from the C-1 Canal and passing through the flowway would rehydrate only the tidal creeks, which then empty into the embayments that lead to Biscayne Bay. In the second option, water diverted from the C-1 Canal and passing through the flowway would rehydrate the tidal creeks and the surrounding coastal wetlands. To maintain an appropriate salinity range and rehydrate only the tidal creeks, the flowway would need to deliver 70 acre/feet per day in the dry season and 95 acre/feet per day in the wet season. To maintain an appropriate salinity range and rehydrate the tidal creeks and surrounding coastal wetlands, the flowway would need to deliver 209 acre/feet per day in the dry season and 1139 acre/feet per day in the wet season. Several factors militate against an attempt to rehydrate the coastal wetlands surrounding the targeted tidal creeks. Potential errors in data and analysis increase in magnitude with the larger freshwater diversions needed to rehydrate the tidal creeks and surrounding coastal wetlands, and Dr. Meeder admitted that the largest value was very approximate. Potentially serious impacts upon salinity and associated vegetative communities increase in likelihood with the larger freshwater diversions needed to rehydrate the tidal creeks and surrounding coastal wetlands. Also, the diversion of larger volumes of water from the C-1 Canal may have adverse impacts on downstream conditions. At the point of the C-1 Canal where it first enters the landfill and wastewater treatment plant (just downstream from the flowway), the average flow of the C-1 Canal is 350 acre/feet per day, but the median flow is only 160 acre/feet per day. (The average flow rate is skewed by occasional, very high daily flows of 4000 acre/feet during large storm events.) The larger volumes diverted to rehydrate the tidal creeks and surrounding coastal wetlands would, at times, withdraw a relatively large portion of the water from the C-1 Canal. For these reasons, the District justifiably elected to seek a flowway that would rehydrate only the tidal creeks, including the vestigial tidal creeks, but not the surrounding coastal wetlands. Petitioners and Lennar Homes have raised numerous other issues about the flowway that the District seeks to obtain. The District requires a 200-acre flowway to rehydrate adequately the vestigial tidal creeks, the presently remaining tidal creeks, the small embayment, and then the subject area of Biscayne Bay, but the mitigation area potentially available on the Project site is limited to about 135 acres, and some uncertainty exists as to whether the District can obtain control of the remaining land necessary to assemble a 200-acre flowway. Even the 200-acre flowway is probably insufficient to accommodate significant water treatment, so water quality issues remain outstanding, notwithstanding the better water quality upstream of the landfill and water treatment plant. Other issues arise from the requirement that the District obtain an ERP from the Florida Department of Environmental Protection, as well as one or more federal agencies, before it could construct the flowway. To the extent that this requirement delays and possibly precludes the construction of the flowway, this requirement militates against the inclusion of the Flowage Easement and new special conditions in the ERP. To the extent that this requirement insures that the flowway will not cause flooding or adverse water quality in the tidal creeks, embayment, and ultimately Biscayne Bay, this requirement militates in favor of the inclusion of the Flowage Easement and new special conditions in the ERP; the absence of detailed specifications for the design and construction of the flowway precludes any assurance that the flowway would not flood or otherwise damage the upland portion of the Project site, so subsequent permit-review is essential to the present inclusion of the Flowage Easement and new special conditions in the ERP. It is impossible to credit the District's evidence that various transition-zone wetland species would survive inundation under unknown flow rates, of variable depths, and of unknown and possibly indefinite duration. Lennar Homes legitimately is concerned that its substantial investment in mitigation, pursuant to the original mitigation plan, would be wasted if the District constructs the flowway. As presently drafted, the Flowage Easement and new special conditions contemplate that Lennar Homes would construct the original mitigation, at a substantial cost, and the District would later construct and inundate the flowway through largely the same area. Marketing of parcels in close proximity to the flowway might be complicated by the uncertainty concerning what will occupy the area beyond a resident's backyard--a benign passive mitigation area or a flowway that may range from a intermittently wet slough or glade to a placid lake to a raging swollen river--and by the probability that the District would not construct the flowway until 2009. The District justifies the Flowage Easement and new special conditions on two grounds. First, the District contends that the ERP without the Flowage Easement and new special conditions is harmful to the District's water resources. Second, the District contends that the ERP without the Flowage Easement and new special conditions is inconsistent with the overall objectives of the District. The first argument misses the mark. A project that is otherwise permittable, except for the fact that it interferes with the establishment of a restoration project, does not harm the water resources of the District; such a Project interferes with the improvement of the water resources of the District. In this case, the parties have stipulated that the Project will not cause adverse impacts due to the original mitigation plan. If adverse impacts means anything, it means harm to the water resources of the District. The second argument requires the identification of the District's objectives. The Florida Legislature has declared at Section 373.1502(2)(a), Florida Statutes, that CERP implementation is "in the public interest and is necessary for restoring, preserving and protecting the South Florida ecosystem . . .." In May 2000, the Florida Legislature enacted the Everglades Restoration Investment Act, which commits Florida to contribute over $2 billion for the implementation of CERP-- Florida's share for the first ten years of implementation. The Florida Legislature has made the implementation of CERP an overall objective of the District. Several factors are important in determining whether the ERP without the Flowage Easement and new special conditions would be inconsistent with the overall objective of the District to implement CERP. These factors require consideration of the purpose of the proposed restoration project; the extent of completion of the project's design, permitting, and construction; if the project has not yet been designed or permitted, the likelihood of construction; when the project would be constructed; the impact of the ERP without the Flowage Easement and new special conditions upon the proposed restoration project; and the existence of feasible alternatives to accomplish the same objectives as those achieved by the proposed restoration project. These factors generally favor the issuance of the ERP, but only with the Flowage Easement and new special conditions. The flowway project would rehydrate a portion of the estuarine waters of southern Biscayne Bay that are sufficiently healthy to respond vigorously to the new freshwater infusions, so the project is important. The C-1 Canal appears to be the only readily available source of sufficient volumes of freshwater to achieve the rehydration of the tidal creeks, and the proposed path through the Lennar Homes mitigation area appears to be the only readily available means by which to divert the freshwater to the targeted tidal creeks. If the flowway project is limited to the tidal creeks and does not extend to the surrounding coastal wetlands, the likely environmental impacts appear to be positive on the receiving areas and the downstream portion of the C-1 Canal. For these reasons, even though the project is at an early conceptual stage and construction would not start for six years, it seems likely to be constructed. The apparent difficulty in securing the necessary additional 65 acres may yet be overcome through property acquisition, and, if not, the District may be able to increase the capacity of the flowway without jeopardizing the adjacent uplands. For the reasons stated in the Conclusions of Law below, other factors in determining whether the ERP without the Flowage Easement and new special conditions would be inconsistent with the overall objective of the District to implement CERP require consideration of the impact upon Lennar Homes in accommodating the Flowage Easement and new special conditions. With two exceptions, the Flowage Easement and new special conditions do not impose an inordinate burden upon Lennar Homes. The flowway would occupy the portion of the Project site that would have been subject to the conservation easement that was part of the original mitigation plan. Lennar Homes' responsibility for maintenance is considerably lessened if the District constructs the flowway, whose special maintenance needs can only be met by the District or its contractors. Although Lennar Homes may experience some sales resistance due to the uncertainty of the use of the mitigation area, the assurances gained from the subsequent permitting process, during which the District will seek an ERP from the Florida Department of Environmental Protection for the construction of the flowway, should allay reasonable concerns about flooding and other damage to the adjacent uplands. In three respects, though, the District has abused its discretion in preparing the Flowage Easement and new special conditions. First, the District abused its discretion in requiring Lennar Homes to perform mitigation work in the mitigation area, pursuant to the original mitigation plan, to the extent that the products of such work will likely be destroyed or substantially harmed by the construction and operation of the flowway. The value of mitigation rests largely in the functions that it can support through longterm viability. The construction and operation of the surface water management system, the posting of a sufficient bond to guarantee future performance under either mitigation scenario, the execution and delivery into escrow of deeds and other legal instruments sufficient to meet the requirements of the Flowage Easement and new special conditions (subject to the two matters discussed in this and the two following paragraphs), and the construction of the portion of the original mitigation that would not be impacted by the flowway sufficiently respond to the need for mitigation, until the District finally determines the need for it to exercise its rights under the Flowage Easement. Second, the District abused its discretion by omitting any timeframe for the District to exercise its rights under the Flowage Easement and new special conditions. The timeframe proposed by Lennar Homes for the District to make this final determination of whether to proceed with the flowway is unreasonable and ignores the substantial period of time required to design, fund, and permit the flowway. But a timeframe may be especially important if Lennar Homes encounters more marketing resistance than might be reasonably anticipated. Therefore, the new conditions should provide that if construction of the flowway is not substantially completed by 2011, then the Flowage Easement shall be released and returned to Lennar Homes, upon its commencement, without delay, of the construction of any of the original mitigation that it did not already complete. Third, the District also abused its discretion in the Flowage Easement and new special conditions in the allocation of liability for the flowway, including apparently its construction, maintenance, and operation. The District would impose this liability upon Lennar Homes, which would have to indemnify the District for construction damage or any malfunctions in the operation of the flowway, such as damage to adjacent uplands by flooding, erosion, or contamination. The District has imposed this restoration project on Lennar Homes and has done so, not to avoid harm to the District's water resources, but to achieve the overall objective of the District to implement CERP. The District and its contractors, not Lennar Homes, will construct, maintain, and operate the flowway. The District, not Lennar Homes, has the expertise in the design, construction, and operation of water-control facilities of this type. This record does not disclose a single legitimate reason to impose upon Lennar Homes the liability for any aspect of the flowway that does not result from the acts or omissions of Lennar Homes or its assignees as owners of the adjacent uplands. Although, as stated in its proposed recommended order, the District does not object to the standing of Petitioners, Respondents did not stipulate to the standing of any Petitioners. Petitioners The Everglades Trust, Inc., and The Everglades Foundation, Inc., offered no witnesses concerning their standing, and no exhibits address the standing of these parties. The record thus fails to demonstrate that Petitioners The Everglades Trust, Inc., and The Everglades Foundation, Inc., are substantially affected by the proposed agency action. Petitioner National Parks Conservation Association, Inc., (National Parks) is a not-for-profit corporation registered in Florida as a foreign corporation. The corporate purpose of National Parks is to protect and enhance America's national parks, including Biscayne National Park, for present and future generations. National Parks seeks the protection and enhancement of the Biscayne National Park through the successful implementation of CERP. National Parks has 350,000 members, including 19,900 in Florida. Members of National Parks use Biscayne National Park for recreational boating, fishing, snorkeling, fish watching, scuba diving, and camping (on the barrier islands). Members of National Parks are actively monitoring the implementation of CERP. Petitioner Florida Audubon Society, Inc. (Florida Audubon), is a Florida not-for-profit corporation that was originally incorporated in Florida in 1900. The corporate purpose of Florida Audubon is to protect, conserve, and restore Florida's heritage through the preservation of the state's natural resources. Florida Audubon has adopted as its highest priority the design and implementation of CERP. Florida Audubon has 32,000 members in Florida, including over 2100 members in Dade County. Numerous of these members engage in bird watching, recreation, and scientific research in Biscayne National Park. Florida Audubon organizes membership trips to Biscayne Bay, conducts its annual Bird-athon and Christmas Bird Count in the vicinity of Biscayne Bay, and conducts various environment educational programs in and concerning Biscayne Bay. The issuance of the ERP without the Flowage Easement and new special conditions would substantially impact the ability of the District to restore this part of Biscayne Bay. Without such restoration, the functions of Biscayne Bay will slowly decline until eventually the overall health of the entire South Florida ecosystem will be substantially deteriorated. Thus, National Parks and Florida Audubon would be substantially affected by the issuance of the ERP without the Flowage Easement and new special conditions.
Recommendation It is RECOMMENDED that the District issue the environmental resource permit with the Flowage Easement and new special conditions, as modified in accordance with the matters presented in paragraphs 39-41. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2003. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Richard Grosso Louise Caro, Certified Legal Intern Environmental & Land Use Law Center, Inc. Shepard Broad Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 Marcy I. LaHart Marcy I. LaHart, P.A. 711 Talladaga Street West Palm Beach, Florida 33405 Erin L. Deady Environmental Counsel 444 Brickell Avenue, Suite 850 Miami, Florida 33131 E. Thom Rumberger Rumberger, Kirk & Caldwell, P.A. 403 East Park Avenue Tallahassee, Florida 32301 Luna Ergas Phillips Douglas H. MacLaughlin Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Frank E. Matthews Gary V. Perko Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Tom Mertens, committed a dredge and fill violation within the jurisdiction of the Department by conducting dredging and filling activities in the landward extent of waters of the State, without an appropriate permit, and whether the amount of the Department's costs and expenses associated with determining and abating the pollution involved are reasonable.
Findings Of Fact The Department is an agency of the State of Florida charged with administering and enforcing the dredge and fill provisions contained in Chapter 403, Florida Statutes, and attendant rules contained in Title 62, Florida Administrative Code. The Respondent, Tom Mertens, is a citizen of the State of Florida, who owned a parcel of real property located in Section 1, Township 1 South, Range 17 West, latitude 30 degrees, 25 minutes, 50 seconds, longitude 85 degrees, 54 minutes, 30 second, in Washington County, Florida, at times pertinent hereto. Linda Mertens is named as a Respondent in this action, but no evidence concerning her involvement in the subject matter has been presented. Based upon reports that it had received of certain construction or mechanical work taking place on the area in question, on the margin of the Choctawhatchee River, the Department identified the Respondent, Tom Mertens, as the owner of the property on which certain activities were allegedly occurring and arranged to meet with him to inspect the property. An inspection of the property revealed that dredging and filling activities had taken place. The inspection occurred on December 9, 1992. The inspection revealed that fill material had been placed covering .36 acres, an area of the property approximately 390 feet x 25 feet ("fill road") and another area approximately 70 feet x 25 feet at the lowland end of the fill road. The fill road appeared to be newly installed based upon the appearance of the clay material used, the instability of the road bed and the lack of vegetative growth in an on the sides and adjacent to the road bed, coupled with the appearance of adjacent felled trees. The clay material used for the fill road is not that normally found in a wetland area, such as the site in question. The property in question is in river-bottom land, bordering the Choctawhatchee River. The Department informed the Respondent that the activities done on the property appeared to violate Chapter 403, Florida Statutes, and pertinent provisions of Title 17, Florida Administrative Code. It so informed the Respondent in a warning letter posted on December 29, 1992. Dredging and filling activities in the landward extent of waters of the State require permits from the Department prior to commencing the activity. The Respondent did not have any permit for the dredging and filling activities observed to have occurred on the property. The Respondent had never applied for a permit for such activities. No permission of any sort had been obtained from the Department authorizing conduct of the dredge and fill activities observed on the property by Department personnel. The Choctawhatchee River is a specifically-named water body of the State of Florida and is classed as an outstanding Florida water. Department employee, James Eric Buckelew, has been an environmental specialist with that agency for some 6-1/2 years. He works in the Division of Submerged Lands and Environmental Resource Permitting, formerly called the Division of Wetlands Management. That Division is in charge of dredge and fill permitting activities for the Northwest District of the Department. The jurisdiction of the Northwest District includes the property in question. Mr. Buckelew routinely makes wetland determinations, including delineating the landward extent of State waters, reviewing dredge and fill applications, and insuring that State water quality standards are maintained throughout the regulatory processes within the scope of his duties. He has a Bachelor of Science degree in Environmental Resource Management and Planning and has completed all of the graduate course work for a Master's degree in Coastal Zone Management Biology. His academic courses included wetlands vegetation and ecology, plant taxonomy, botany, soil science, hydrology, geology, geography, hydrologic indicators, and training in the use of a dichotomous key. He has had additional training from the Department's Jurisdictional Evaluation Team, which provides Department employees with training on identification of vegetation, soil indicators, and hydrology, approximately every six months during his 6-1/2 years of tenure with the Department. The Department routinely relies upon his judgment in making determinations of wetland areas and delineations of the landward extent of State waters. Consequently, adequate proof being presented, Mr. Buckelew was accepted as an expert in making determinations of what areas lie within the landward extent of waters of the State and what areas are wetlands in terms of scientific application of the standards contained in the Department's organic rules, particularly the "vegetative index" to a particular site. During the inspection of the property on December 29, 1992, Mr. Buckelew made a determination concerning whether the property impacted by the dredging and filling activities was within the Department's jurisdiction. He determined that it was within the landward extent of waters of the State, using both hydrological and vegetational indicators. The portions of the property impacted by the dredge and fill activities were dominated by jurisdictional vegetation, including black gum (Nyssa biflora); overcup oak (Quercus lyrata); sweet bay magnolia (Magnolia virginiana); cypress (Taxodium); water oak (Quercus nigra); sweet gum (Liquidambar styraciflua); american holly (Ilex opaca); and ironwood (Capinus caroliniana). The portions of the property impacted by the Respondent's dredge and fill activities were in an area dominated by hydrologic indicators of Department jurisdiction, including staining of leaves, buttressing of tree trunk bases, the low elevation of the portion of the property involved, and its proximity to the Choctawhatchee River. The portions of the property impacted by the activities in question have been periodically inundated with water which covered the fill road. Consequently, Mr. Buckelew established that the portions of the property impacted by the dredge and fill activities, indeed, were within the landward extent of the waters of the State and thus within the Department's dredge and fill jurisdiction. Mr. Buckelew walked the entire length of the connection between the areas impacted by the dredge and fill activities and the waters of the State in making this determination, tracing the vegetational and hydrologic connections from the waters of the State to the impacted areas. He did not use soil sampling or analysis in his determination of the landward extent of waters of the State because it was unnecessary in the formation of his opinion. Under the circumstances, employment of the vegetative index and its application to the site would have been sufficient alone. The Department established that it incurred costs and expenses of $250.10 in tracing and abating this violation and pollution source. Mr. Buckelew, in establishing this expense and cost amount, also established that these were reasonable costs and expenses under the circumstances. Removal of the fill material and re-grading of the impacted areas to their natural grade, as well as allowing them to revegetate with natural species that exist on site, would essentially correct the dredge and fill violations and the pollution problem they engender. The Hearing Officer has considered the demeanor of the Respondent and the other witnesses, his prior sworn statement at deposition and his admissions made to Mr. Buckelew during the investigatory phase of this proceeding. Notwithstanding his testimony at hearing to the contrary, it is found that he placed the fill on the portions of the property at issue. It is, likewise, found that the Respondent or persons under his behest, direction, and control used various pieces of mechanical equipment to haul dirt to the fill sites and to perform the dredging and filling activities, including hauling of the fill to the site and its distribution on the property in the nature of that observed by the Department at the time of its inspection. It is found that the dredge site, or the portion of it referred to as the boat ramp, had straight, square-cut sides, which are inconsistent with that sloping area being caused by a flooding event, as maintained by the Respondent. The shape of the boat ramp was clearly consistent with dredging with mechanical equipment. In summary, based upon Mr. Buckelew's and Mr. Gilmore's testimony, which is accepted, regarding the fresh appearance of the fill road, the road's clay composition which is a soil type uncharacteristic of a river flood plain, as well as the demeanor of the Respondent, including consideration of his prior sworn statement at deposition, it is determined that the Respondent placed the fill material in question within the landward extent of waters of the State. The Respondent, in his opening statement, candidly admitted obtaining permits from the Department in the past for other activities. It is determined that he was reasonably aware that dredging and filling on this property might require a permit from the Department. Finally, based upon the totality of the credible evidence and the circumstances proven in this proceeding, the enforcement action and assessment of costs and expenses advanced by the Department are imminently reasonable. This is especially true in view of the fact that the Department has forborne attempting to fine the Respondent, within its authority, as much as $20,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent perform the following: Within thirty (30) days from the effective date of the Final Order, the Respondent shall make payment of $250.10 to the Department for the expenses incurred by the Department. Payment shall be in the form of a cashier's check or money order payable to the Department. Within sixty (60) days from the effective date of the Final Order, the Respondent must complete re-grading of the areas of the fill road and boat ramp identified in Exhibit 2 to the NOV and re-grade those areas so as to re- establish the original pre-existing contours and elevations existing before the filling, as indicated by the adjacent, undisturbed areas. The Respondent must also stabilize the restored areas as needed to retain sediment on site during the restoration activities. The Respondent shall utilize turbidity control devices throughout the restored areas, including the use of filter cloth in the vegetated wetlands and floating screens in the open waters. The Respondent shall provide written notification to the appropriate Department personnel within ten (10) days of the completion of the above-described restoration work. The Respondent shall immediately, upon the effective date of the Final Order, cease and desist from further dredging or filling within waters of the State prior to receiving the necessary permit from the Department or written notice from the Department that the proposed activity is exempt from the permitting requirements of the Department. DONE AND ENTERED this 1st day of December, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3897 Petitioner's Proposed Findings of Fact 1-41. Accepted. Rejected, as unnecessary and immaterial. Accepted. Respondents' Proposed Findings of Fact 1-3. Accepted, but not materially dispositive. 4. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 5-6. Rejected, as immaterial and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as patently contrary to the preponderant weight of the evidence. COPIES FURNISHED: Michael C. Owens, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mr. Tom Mertens Star Route Box 5B Ebro, Florida 32437 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
