The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Applicant applied for a permit for a public supply of water from two (2) wells to accommodate 3,100 family units in Hillsborough County, Florida. Each well to be 500 feet deep and designated as "new use", i.e., a use not existing prior to January 1, 1975. Well "No. 1" would draw 72,000 gallons per day and well "No. 2", 682,000 gallons per day. The center of withdrawal is located at latitude 28 degrees 6' 18" North, longitude 82 degrees 29' 48" West in Hillsborough County, Florida. The applicant lists 802.2 acres as being owned, leased or otherwise controlled by it. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on April 28 and May 5, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were sent by certified mail to Lorenzo Lakes, A Joint Venture, Route 2, Box 737A, Lutz, Florida, and Hillsborough Dairy, Route 1, Box 115, Tampa, Florida A letter was received although it was not designated a letter of objection. The author of said letter is present at this hearing. His name is Mr. John Logan, Water Resources Director, Hillsborough County, Florida. The letter suggests that action on the subject application would be inappropriate at this time inasmuch as a part of the development is to be deeded to Hillsborough County for public roadways. A specific area does not appear to be established but it may exceed 50 acres. Additional acreage may be needed for flood easements for the extension of channel "F", a proposed part of the upper Tampa Bay Watershed Project. No formal letters of objection were received. The following exhibits were introduced without objection: Application for permit Proof of publication Letter from Mr. John Logan The witnesses were duly sworn and agreement by the parties reached on each point to be considered under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated pursuant thereto, particularly Rule 16J-2.11, with the exception that certain conditions were recommended by Mr. George Szell, Hydrologist for the Permittee, and said conditions were agreed to by the Permittee. Mrs. Sally Casper appeared as a member of the public questioning the need for new housing and objecting in essence to Rule 16J-2.11(2)(e) which restricts consideration of lake stages or vegetation to those not controlled by the applicant. Upon the request of the Hearing Officer the parties agreed to enter into a joint order of stipulation and submit said order to the Hearing Officer. Said stipulation was received by the Hearing Officer on July 7, 1975, and is attached hereto and made a part hereof and marked "Supplement to Record".
The Issue The issue is whether Hernando County's application for an environmental resource permit authorizing the construction of a new surface water management system to serve a 7.85 acre drainage system improvement three miles southeast of Brooksville, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners, Richard J. Silvani, Dick W. Thompson, James E. and Marilyn Bates, Joyce Menzie, James M. Gibson, Claudia C. Munsell, Mr. and Mrs. Phillip E. Durst, Donald R. Sosnoski, Mr. and Mrs. Robert L. Nelson, and Mr. and Mrs. Richard Ladow (Petitioners), are property owners in central Hernando County, Florida. Respondent, Southwest Florida Water Managment District (District), is the state agency charged with the responsibility of issuing Environmental Resource Permits (ERP) within its jurisdictional boundaries. Respondent, Hernando County (County), is a local government seeking the issuance of a permit for the purpose of alleviating drainage and flooding problems in a subdivision known as High Point Gardens in the central part of the County. On June 11, 1997, the County filed an application with the District seeking authorization to construct a low earthen berm to help control flooding in High Point Gardens, an eighty- five unit residential subdivision. On September 29, 1997, the District gave notice of its intention to issue ERP No. 449342.01 authorizing the "construction of a new surface water management system to serve a 7.85 acre drainage system improvement known as the Hernando County - High Point Gardens Drainage Improvements." The project is located off Sun Hill Lane, three miles southeast of Brooksville, Florida, in central Hernando County. On an undisclosed date, but in a timely fashion, Petitioners filed their Petition for Informal Hearing challenging the issuance of the permit. As grounds, Petitioners alleged that the permit application contained "possible miscalculations of design" which would "alter the natural water flow route"; "adversely affect several acres of natural wetlands by changing hydrology of surface area"; "adversely affect adjacent uplands by innundating forest areas never before flooded by heavy rainfall"; "not guarantee 100% flood protection to the few affected homes"; and "create flood problems to adjacent homes and property by diverting stormwater from natural flow (north) to area east of 'proposed' retention area." The petition further alleged that the "'proposed' area should not be normal recepient [sic] of excess water from Cedar Falls subdivision" and that "all affected properties are not owned or easements acquired by Hernando County for surface water storage." The filing of the petition prompted the initiation of this proceeding. The Permit The High Point Gardens subdivision, which lies within the Bystre Lake Basin, is a "relatively old subdivision," having been built around the 1970's. There is a low area in the middle of the subdivision, and it has "[s]everal sinks with a natural drainage within the area." Because the thirty-square-mile basin is a closed drainage basin, with no natural outflows, "significant" flooding problems have been present throughout the basin since at least the 1980's. In an effort to resolve flooding problems within the basin, the County and District jointly sanctioned a study by a consulting firm, Dames and Moore, to provide suggested alternative actions to correct the problem. The firm's first interim report was rendered on August 5, 1988, and a final report known as the Bystre Lake Stormwater Management Master Plan was rendered in August 1989. Among other things, the consultant's report recommended that a berm be constructed to relieve the flooding in the High Point Gardens' area. Acting on the report, the County obtained a construction permit from the District in August 1991 in accordance with the consultant's recommendation, but construction on the project was not commenced prior to the permit expiring in 1994. Although the consultant's report was the genesis for the first permit, the plans and specifications for the new berm have been modified by engineers after further study and review. It is noted that the total land area of the project will be less than 100 acres. The High Point Gardens subdivision lies within sub-basin 304 of the basin. Under the new proposal, water which now comes into sub-basins 304 and 406 from sub-basins 305 and 306 will be stored in those latter sub-basins. The requested permit would authorize the County to construct a low earthen berm along the western side of sub-basin 406 and the southern boundary of sub- basin 304 to help control flooding in the subdivision. The proposed berm will range from one to five feet in height and extend some 3,250 feet, or approximately six-tenths of a mile. It will range from eight to ten feet in width with a side slope of 4 to 1. The berm will impound water upstream of the berm to an elevation of 90.5 NGVD, which is 1.5 feet higher than the water would rise in the area under natural conditions. The water will be stored in two natural ponds which are now located in the project area. Once the water reaches an elevation of 90.5 NGVD, which will occur only during an event exceeding a 25-year storm event, three overflow structures will become operative and are designed to mimic the natural water flows of the area. After the berm is constructed, all basins "downstream" of the berm, including sub-basins 304, 405, and 406, will have "significantly lower flood elevations than the 10, 25 and 100- year storm event." That is to say, existing flooding to the north and east of the proposed berm will be lessened. To the extent that additional impoundment of water behind the berm will occur, or flooding beyond the berm may occur during a 100-year storm event, the County will acquire easements from local property owners to store the additional water. Until the aquisition of land occurs, construction cannot begin. There is one already disturbed wetland area near the proposed construction area. No mitigation is required, however, since the impact will be temporary and the area is expected to naturally revegetate itself. There will be no adverse impacts to fish, wildlife, or adjacent wetlands. Neither will the project create any other environmental concerns. While there will be some impact to upland trees caused by the impounded water, under existing District rules, that impact cannot be used as a basis to deny the permit. Based on generally accepted engineering principles, the project is capable of being effectively performed and can function as proposed. Also, the project can be effectively operated and maintained. The County has the resources to undertake the project in accordance with the terms and conditions of the permit. The greater weight of credible and persuasive evidence supports a finding that the County has given reasonable assurances that all applicable criteria for the issuance of a permit have been met. Petitioners' Objections At hearing, Petitioners contended that the overflow structures for the berm would alter the natural flow of water, and increase the flow of water to the east of the proposed project, where several Petitioners reside. As previously noted, however, the more credible evidence shows that the project will not increase the natural flow of water to the east of the berm. More specifically, expert testimony demonstrated that the regular flow through each weir in the post-development condition will not be adversely greater than what occurred during the pre- development condition. Petitioners also contended that the wetlands will be negatively impacted by the project. Contrary expert testimony by witness Defoe established, however, that there will be no permanent adverse impacts to wetlands, fish, or wildlife if the permit is approved. Petitioners next contended that the process was flawed because very few on-site inspections of the project area were made by District and County personnel, especially during the rainy season, before the application was preliminarily approved. There were, however, on-site inspections by District and County staff and consultants, and it was not shown that the lack of additional inspections affected the validity of their studies. A further contention was made at hearing that the information supporting the application was insufficient and that more study, including soil boring tests, should have been made. As to additional soil boring tests, the evidence shows that it is not a common engineering practice to perform soil testing throughout the entire area that will be submerged. Therefore, the existing tests were adequate to support the engineering assumptions. Further, even if there were some infirmities in the data and assumptions used and made in the 1989 Dames and Moore report, as alleged by Petitioners, the errors or omissions were minor, they were subject to later refinement by professional engineers, and they did not materially affect the overall validity of the current application. Finally, the application file contains uncontradicted technical information supporting the issuance of the permit. Petitioners' other concerns, while sincere and well- intended, are not relevant to the permitting process. For example, a concern that the construction of a berm will decrease nearby property values, even if true, is not a consideration in the permitting process. Similarly, Petitioners' valid concern that some nearby upland trees will be damaged if water levels rise for a prolonged period of time is not a basis under existing District rules to deny the permit. At the same time, whether the project is cost-effective and the best alternative for alleviating flooding conditions in the area are political decisions for the County, and thus they are not in issue in this proceeding. Finally, Petitioners have pointed out that the County has not completed acquisition of the necessary easements for the project, and that until this is done, a permit should not issue. However, the District has specifically provided as a condition precedent to any construction work that the County finalize ownership or control for all property where water levels will be raised by the project.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order granting Hernando County's application for Standard General Environmental Resource Permit No. 449342.01. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Chester Bradshaw 18520 Bradshaw Road Dade City, Florida 33523 Richard L. Silvani 24419 Lanark Road Brooksville, Florida 34601 Margaret M. Lytle, Esquire 2379 Broad Street Brooksville, Florida 34609-6899 Robert Bruce Snow, Esquire 20 North Main Street, Room 462 Brooksville, Florida 34601
The Issue Petitioners challenge the South Florida Water Management District’s (the District) proposed action to issue Individual Environmental Resource Permit (ERP) 50-06558-P to authorize conceptual approval of a surface water management (SWM) system to serve 1,919 acres of a phased, multiple-use development referred to as the Palm Beach County Biotechnolgy Research Park (BRP) and to authorize construction and operation of Phase 1A of that proposed project. The ultimate issue is whether the Applicants provided reasonable assurances that the proposed activities will not be harmful to the water resources of the District; will not be inconsistent with the overall objectives of the District; and will comply with the water quantity, environmental, and water quality criteria of the District’s ERP regulations, which are set forth in Part IV of Chapter 373, Florida Statutes, Florida Administrative Code Chapter 40E-4, et. seq.; and the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District – September 2003 (BOR).1
Findings Of Fact THE PARTIES The Florida Wildlife Federation, Audubon Society of the Everglades, and Jupiter Farms Environmental Council, Inc. (d/b/a Loxahatchee River Coalition) are not-for-profit corporations in existence prior to 2003 with more than 25 members in Palm Beach County. Palm Beach County Environmental Coalition was formed in 1997 and is a private, county-wide, non-profit citizen’s organization. Ms. Ketter, Mr. Bell, Ms. Larson, and Mr. Christensen are individuals affected by the proposed BRP. The Respondents stipulated that the parties who remained Petitioners after Mr. Silver’s withdrawal as a Petitioner have standing to bring this proceeding. The District, a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, operates pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district with its principal office in West Palm Beach, Florida. The County is a duly-constituted governmental entity. THE PROJECT SITE AND ADJACENT LANDS The site of the project is generally referred to as the Mecca Farms, which is a contiguous tract of 1,919 acres of land. At present, the Mecca Farms is used for farming and mining operations. There presently exists a permitted, SWM system on the Mecca Farms that was first permitted in 1979, and has been modified from time to time since then. The existing SWM system includes 73 acres of ditches and a 272-acre above-ground impoundment area. The Mecca Farms site is located within the C-18 Basin. There are no jurisdictional wetlands or delineated surface waters on the Mecca Farms. The following, which is taken from the Staff Report (SFWMD Ex. 1), accurately describes the project site and its adjacent lands: The project site consists of 1,919 acres presently supporting an active orange grove with approximately 73 acres of associated drainage and irrigation ditches/canals and a 30-acre active sand mining operation. The ditches/canals are presently maintained at an elevation of approximately 17 feet NGVD.[3] These ditches/canals provide drainage conveyance to a 272-acre above- ground impoundment located in the northeast corner of the site utilizing four (4) 22,000 gpm pumps. The above-ground impoundment discharges to the west leg of the C-18 Canal via gravity discharge. Project site ditches and canals also connect directly to the C-18 Canal through an 18,000 gpm pump. An additional 224-acre agricultural area east of the 1,919 acres of orange groves is connected to and drains into the canal/ditch system on the project site. This adjacent area was leased from the adjacent land owner by the grove owner for use as row crops and was connected to the grove canal/ditch system for better control of drainage and irrigation. The area is no longer used for row crops. There is also a small area on the site that contains caretaker housing and an equipment maintenance building for the orange groves. These facilities were originally permitted in 1979 under Surface Water Management Permit No. 50-00689-S and subsequent modifications. The citrus grove and primary drainage facilities have been in existence since the 1960s. The Hungryland Slough is located north of the project site, separated from the project site by the C-18 Canal. This area is comprised primarily of publicly-owned natural areas, including an area referred to as Unit 11, which is owned in the majority by Palm Beach County. To the west is the J.W. Corbett Wildlife Management Area (CWMA) owned and managed by the Florida Fish and Wildlife Conservation Commission (FFWCC). To the east, a large area of low-intensity agricultural land exists under the ownership of Charles Vavrus and within the City of Palm Beach Gardens. These lands contain extensive wetlands that are adjacent to the Loxahatchee Slough to the east. The Acreage, a low-density residential area, is located directly to the south of the project site. The only access to the site at this time is an unpaved extension of Seminole Pratt-Whitney Road (SPW), connecting the site at its southwestern corner to the Acreage. THE PROPOSED PROJECT The subject application is for conceptual approval of the SWM system for the BRP and for construction and operation of Phase 1A of the project. All of the proposed Phase 1A construction will occur on the Mecca Farms site. The following, taken from the Staff Report, accurately describes the proposed project: The [BRP] is a phased multiple use development planned for approximately 1,919 acres and will consist of land uses related to science and technology, biotechnology, biomedical, and other related research and development industries and manufacturing. Additionally, proposed support and complementary land uses include educational, institutional, residential, commercial, and recreational facilities, along with utilities and a large created natural area. THE PROPOSED SWM SYSTEM The proposed SWM system will consist of several interconnected lakes that will provide wet detention for storm water runoff from the property site and from 39 acres of off- site flows from SPW Road and a proposed Florida Power and Light (FPL) Substation. The lakes will collect, store, and treat the runoff. The storm water will pass through the lakes, through a 247-acre area referred to as the “Natural Area” (which will be created as part of the mitigation plan), and discharged to the C-18 Canal. To provide additional water quality treatment, these lakes will include planted littoral zones and the southern lake will include a filter marsh. The Natural Area will, in subsequent construction phases, be constructed on the western boundary of the Mecca site with discharge to the C-18 canal, which is adjacent to the northern boundary of the Mecca Farms. The southern boundary of the Natural Area will be the north boundary of the lake that is to be constructed on the southern end of the property. This is the area that is available for use as a flow-way (which will be discussed in greater detail in a subsequent section of this Recommended Order). The Natural Area will be a wetland type system that will move water slowly through that system providing additional storage and water quality benefits prior to discharging through a gravity control structure into the C-18 Canal. The C-18 Canal discharges to either the Northwest or Southwest Fork of the Loxahatchee River, depending on how structures are operated downstream. Discharges travel in the C-18 Canal for approximately nine miles before reaching the Loxahatchee River. The existing SWM system for the Mecca Farms currently discharges to the C-18 Canal, as will the proposed SWM system. The proposed project will not discharge to the CWMA or the Hungryland Slough. The Grassy Waters Preserve and the Loxahatchee Slough are several miles from the project site and will not be affected by the project’s proposed activities. The following, which is taken from the Staff Report, accurately describes the proposed SWM system. The proposed conceptual surface water management system which will serve the 1,919-acre site will consist of site grading, storm water inlets and culverts which will direct all runoff to a series of interconnected lakes for water quality treatment and attenuation of the peak runoff rate. Pumps will control the runoff rate from the developed site into the adjacent onsite BRP natural area. The BRP natural area will discharge into the C-18 canal via a gravity control structure. The system has been designed to accommodate 39 acres of off-site flows from SPW [Road] and a proposed Florida Power and Light (FPL) Substation. The existing control elevation of the citrus grove is 17.0’ NGVD. The proposed control elevations are 18.0’ NGVD for the developed area and 19.0’ NGVD for the natural area. The control elevations are being raised to provide a “step down” of water elevations from wetlands to the north, west and east of the site (20.5’ to 21.0’) to lower elevations to the south (17.0’). PHASE 1A CONSTRUCTION The following, which is taken from the Staff Report, accurately describes the proposed Phase 1A construction: The Phase 1A construction activities will allow the applicant to proceed with lake excavation, clearing and site grading of 536 acres in the southern portion of the site. No permanent buildings or parking areas are proposed at this time. Stormwater from Phase 1A and the remainder of the site, to remain in agricultural use, will be treated in the Phase 1A lakes and then pumped into the existing impoundment for additional water quality treatment and attenuation prior to discharging to the west leg of the C-18 Canal via the existing weir structures. The existing 18,000 gpm pump that connects the on-site ditches and canals directly to the C-18 Canal will remain, but will only be used if the impoundment is full. (See Special Condition No. 21). Approval of Phase 1A authorizes the use of the existing, previously permitted surface water management facilities, therefore, the previous permit no. 50-00689-S is superceded by this permit. The 224 acre agricultural area east of the existing grove that is connected to the grove canal/ditch system will be severed as part of Phase 1A. The pipe connecting this area will be removed and portions of the berm around this area will be regraded so the area will sheetflow into the adjacent pasture land’s canal/ditch system as it did previously [sic] to being connected to the grove system. Of the 536 acres involved in the Phase 1A construction, 87 acres will become lake bottom and 449 acres will remain pervious area, subject only to grading. CONCEPTUAL APPROVAL Pertinent to this proceeding, Florida Administrative Code Rule 40E-4.021(5) defines the term “conceptual approval” to mean an ERP issued by the District which approves a conceptual master plan for a surface water management system or a mitigation bank. Florida Administrative Code Rule 40E-4.305, pertains to conceptual approvals and provides, in relevant part, as follows: Conceptual approvals constitute final District action and are binding to the extent that adequate data has been submitted for review by the applicant during the review process. A conceptual approval does not authorize construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system or the establishment and operation of a mitigation bank. * * * For phased projects, the approval process must begin with an application for a conceptual approval which shall be the first permit issued for the project. An application for construction authorization of the first phase(s) may also be included as a part of the initial application. As the permittee desires to construct additional phases, new applications shall be processed as individual or standard general environmental resource permit applications pursuant to the conceptual approval. The conceptual approval, individual and standard general permits shall be modified in accordance with conditions contained in Chapters 40E-4 and 40E-40, F.A.C. Issuance of a conceptual approval permit pursuant to Chapter 40E-4, F.A.C., shall not relieve the applicant of any requirements for obtaining a permit to construct, alter, operate, maintain, remove, or abandon a surface water management system or establish or operate a mitigation bank, nor shall the conceptual approval permit applicant be relieved of the District’s informational requirements or the need to meet the standards of issuance of permits pursuant to Chapters 40E-4 or 40E-40, F.A.C. . . . PERMITTING CRITERIA In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. The conditions for issuance focus on water quantity criteria, environmental criteria, and water quality criteria. Florida Administrative Code Rule 40E-4.301 contains the following permitting conditions applicable to this proceeding: In order to obtain a standard general, individual, or conceptual approval permit ... an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters ...; will not cause adverse secondary impacts to the water resources; will not adversely impact the maintenance of surface or ground water levels or surface water flows ...; will not cause adverse impacts to a work of the District ...; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and will comply with any applicable special basin or geographic area criteria established in Chapter 40E-41 F.A.C. Florida Administrative Code Rule 40E-4.302 provides the following Additional Conditions for Issuance of Permits applicable to this proceeding: In addition to the conditions set forth in section 40E-4.301, F.A.C., in order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system: Located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 4.2.3 through 4.2.3.7 of the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District: Whether the activity will adversely affect the public health, safety or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the Basis of Review. . . . THE BASIS OF REVIEW The District has adopted the BOR and incorporated it by reference by Florida Administrative Code Rule 40E- 4.091(1)(a). The standards and criteria found in the BOR are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Section 1.3 of the BOR provides, in part, as follows: . . . Compliance with the criteria established herein [the BOR] constitutes a presumption that the project proposal is in conformance with the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302, F.A.C. WATER QUANTITY The term “control elevation” describes the level of freshwater water bodies established by a SWM system. The existing SWM system has a control elevation of 17’ NGVD. The control elevation for the proposed lake system will be raised to 18’ NGVD, and the control elevation for the proposed Natural Area will be raised to 19’ NGVD. Raising the control elevations will permit more treatment of storm water prior to discharge and will permit a more controlled discharge. In addition, raising the control elevation will lessen seepage onto the project site from adjacent wetlands. The Applicants provided reasonable assurances that the proposed project will not cause adverse water quantity impacts to receiving waters and adjacent lands, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E- 4.301(a). The Applicants provided reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E-4.301(b). The Applicants provided reasonable assurances that the proposed project will not cause adverse impacts to existing surface water storage and conveyance capabilities, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E-4.301(c). VALUE OF FUNCTIONS OF WETLANDS AND SURFACE WATERS Florida Administrative Code Rule 40E-4.301(d), requires the Applicants to establish that “. . . the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system . . .” “. . . will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters.” The District established that the term “value of functions,” as used in the rule, refers to habitat and life support functions. Because there are no wetlands or delineated surface waters on the Mecca Farms site, there are no direct adverse impacts to the functions that wetlands provide to fish and wildlife. The Applicants have provided reasonable assurances to demonstrate that the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters will not be adversely affected. The existing project site does not contain nesting areas for wetland-dependent endangered or threatened wildlife species or species of special concern. The potential for use of the existing project site for nesting by such species is minimal. The existing project site does contain habitat for the American Alligator and foraging habitat for wading birds and birds of prey. The primary foraging habitat on the existing site is around the perimeter of the existing 272-acre impoundment area in the northeast portion of the site. The existing impoundment will be replaced by on-site storm water treatment lakes and the BRP Natural Area that will have shallow banks planted with wetland plant species common to the area. Wildlife is opportunistic; and wading birds commonly feed in areas where there is water, wetland vegetation and wetland plants. The end result will be that the proposed project will have more and better foraging habitat acreage than the existing site. The Natural Area will provide a wetland buffer between the developed area and CWMA that will prevent any adverse impacts both to the wetlands and other surface waters in CWMA and to the value of the functions those wetlands and other surface waters provide to fish, wildlife, and listed species. The Natural Area will provide a wetland buffer between the developed area and Unit 11 that will prevent any adverse impacts both to the wetlands and other surface waters in Unit 11 and to the value of the functions those wetlands and other surface waters provide to fish, wildlife, and listed species. There was no competent evidence that the proposed project would impact the ability of the Florida Fish and Wildlife Conservation Commission to manage the CWMA through control burns or otherwise, thereby adversely affecting the diversity or abundance of fish and wildlife (including endangered species and their habitats). Petitioners attempted to raise the issue of mosquito control in their Petitions and at the Final Hearing. The allegations pertaining to mosquito control were struck by the District and Special Condition Number 26 was added before the Petitions were referred to DOAH. Petitioners made no attempt to amend their Petitions and have not challenged Special Condition 26. The Addendum to Staff Report (SFWMD Ex. 2) contains the following Special Condition Number 26: “Upon submittal of an application for construction of any buildings, the permittee shall submit a mosquito control plan for review and approval by District Staff.” Since there will be no buildings containing people or other facilities which would encourage the use of mosquito spraying, it is appropriate for the mosquito control condition to apply to only future phases of construction. There was no competent evidence of impacts attributable to pesticides associated with the application for the SWM system or for Phase 1A construction and operation that would adversely affect the diversity or abundance of fish and wildlife including endangered species and their habitats. The Applicants have satisfied the criteria set forth in Florida Administrative Code Rule 40E-4.301(d). WATER QUALITY The primary concern during Phase 1A construction will be erosion control. Best Management Practices (“BMPs”) are operational and design elements used to either eliminate or reduce the amount of pollutants at the source so they do not get into a SWM system or move downstream. To contain erosion in Phase 1A, the Applicants will use the following BMPs: Silt screens and turbidity barriers within existing ditches and around the perimeter of property. Planned construction sequencing to reduce movement and stock piling of material; Slope stabilization and seeding or sodding of graded areas; and Containment of construction materials with berms. All erosion and turbidity control measures will remain in place until the completion of the on-site construction and approval by the District’s post-permit compliance staff. The Applicants provided reasonable assurances that the proposed Phase 1A construction activities will not adversely impact the quality of receiving waters and that those activities will not violate State water quality standards. Section 5.2.1, BOR, requires that a SWM system provide wet detention for the first one inch of runoff. The proposed SWM system will provide wet detention for one and one-half inches of runoff. The Applicants provided reasonable assurances to demonstrate that the technical criteria in the BOR will be met. Under Section 1.3 of the BOR, compliance with the criteria in the BOR constitutes a presumption that the Proposed Project is in conformance with the conditions for issuance. This presumption was not rebutted by the Petitioners. The lake system will include planted littoral zones to provide additional uptake of pollutants. A filter marsh is also included in the southern lake. All of the storm water runoff from the lakes will pass through the filter marsh, which will be planted with wetland plants. The filter marsh will provide additional polishing of pollutants, uptake, and filtering through the plants. The discharge will then go into the BRP, which will provide the discharge additional uptake and filtering. BMPs utilized during the Operations and Maintenance phase will include regular maintenance inspections and cleaning of the SWM system, street-sweeping, litter control programs, roadway maintenance inspections and repair schedule, municipal waste collection, pollution prevention education programs, pesticides, herbicides and fertilizer storage, and application training and education. The littoral zones, filter marsh, BRP natural area, and BMPs were not included in the water quality calculations and are over and above rule requirements. The Applicants provided reasonable assurances to demonstrate that the proposed project will not adversely affect the quality of receiving waters. Therefore, Rule 40E- 4.301(1)(e), F.A.C., will be satisfied and water quality standards will not be violated. HAZARDOUS SUBSTANCES Pursuant to Section 5.5.5 of the BOR, commercial or industrial zoned projects shall provide at least one-half inch of dry detention or retention pretreatment as part of the required retention/detention, unless reasonable assurances can be offered that hazardous materials will not enter the project's SWM system. The Addendum to Staff Report reflects the following Special Condition 25 pertaining to hazardous materials: Upon submittal of an application for construction of commercial or industrial uses the permittee shall submit a plan that provides reasonable assurances that hazardous materials will not enter the surface water management system pursuant to the requirements of section 5.2.2(a) of the Basis of Review. Applicable permitting criteria does not require the Applicants to present a hazardous substances plan at this point because no facilities that will contain hazardous materials are part of the Phase 1A construction. SECONDARY IMPACTS Florida Administrative Code Rule 40E-4.301(1)(f) and Section 4.1.1(f) of the BOR, require an applicant to provide reasonable assurances that the proposed activities will not cause adverse secondary impacts to the water resources. A secondary impact is an indirect effect of a project resulting in adverse effects to wetlands or other surface waters. The District considers those adverse effects that would not occur "but for" the activities that are closely linked and causally related to the activity under review. This standard is discussed further in the Conclusions of Law section of this Recommended Order. The County’s Exhibit 3 is a secondary impact analysis identifying the secondary impacts that may potentially result from the proposed project. These impacts are: 1) the widening of SPW Road; 2) the construction of an FPL substation; 3) the extension of PGA Boulevard; and 4) the potential relocation of a runway at North County Airport. The secondary impact analysis performed pursuant to the Uniform Mitigation Assessment Method (UMAM) contained in Florida Administrative Code Chapter 62-345 reflects that up to 153.3 acres of wetlands may be partially or completely impacted by these secondary impacts, resulting in approximately 71.21 units of functional loss. Where future activities are expected to directly impact wetlands, secondary impacts were assessed based on the loss of all current functional value within the direct footprint of that activity. Additionally, an assessment was conducted to determine the degree of partial functional loss where impacts beyond the footprint of these activities are anticipated. SPW Road is an existing dirt road which is in the County's five-year road plan to widen as a four-lane paved road. Because the widening of the existing dirt road to a four-lane paved road is part of the five-year road plan, the impacts of that widening are not attributable to the subject project. However, as part of the proposed project, it is proposed to widen SPW Road to a six-lane paved road. The additional impacts associated with the widening from four to six lanes will be caused by, and are linked to, the proposed project. These impacts amount to approximately 2.2 acres. The FPL substation, which is proposed to service the proposed project, may result in 1.6 acres of potential direct impacts to wetlands. In addition, 1.0 acre of potential indirect secondary impacts may occur to wetlands that are not going to be dredged and filled. Those indirect secondary impacts may have some adverse impact on the functional value to those wetlands for wildlife utilization. The extension of PGA Boulevard to the Mecca Farms site has the potential to result in 45.6 acres of direct impacts to wetlands and 56.6 acres of indirect secondary wetland impacts which will not be dredged or filled, but will be in close proximity to the road. The secondary impact assessment for PGA Boulevard assumed the incorporation of wildlife crossings to minimize habitat fragmentation. If the airport runway needs to be shifted, potential direct wetland impacts to an additional 22.7 acres may occur. Indirect impacts to 23.6 acres of wetlands in close proximity could also occur. Runway relocation may or may not be necessary due to the PGA Boulevard extension; however, the analysis assumed the need for the relocation. Each of the projects listed above as potential secondary impacts will require a separate construction and operation permit from the District. The issuance of this permit does not in any way guarantee the issuance of permits for any of these identified potential secondary impacts. MITIGATION PLAN The Applicants provided a conceptual mitigation plan using UMAM to demonstrate how potential secondary impacts could be offset. Mitigation options have the potential to provide more than twice the functional gain than the functional loss from the identified secondary impacts. The conceptual mitigation options include: 194 acres of the land that had been acquired for future mitigation needs in Unit 11. 227 acres of the BRP natural area. 32.6 acres in the southern lake wetland along with proposed upland habitat. Sufficient mitigation is available in these options to offset the potential secondary impacts. The mitigation for the four potential secondary impacts is not required to be implemented now because the impacts are not occurring now. Section 4.2.7 of the BOR requires that the District consider those future impacts now and that a conceptual mitigation plan be provided to demonstrate and provide reasonable assurances that those impacts, in fact, can be offset in the future. The Governor and Cabinet sitting as the Board of Trustees considered and approved a request for public easement of approximately 30 acres to use a portion of CWMA for SPW Road, an FPL substation, and the land area that may be needed by District in the future for the connection to the flow-way. As consideration in exchange for the public easement over 30 acres, the County will transfer fee simple title of 60 acres to the State. This public easement also provides a benefit for CERP as it includes the small portion that the District is going to need for its future CERP project to connect to the flow-way on the proposed project site. The Applicants provided reasonable assurances that mitigation will offset secondary impacts to wetlands and other surface waters. UNIDENTIFIED SECONDARY IMPACTS Testimony at the final hearing raised a question as to whether there is nesting or roosting by listed wading bird species in adjacent off-site wetlands outside the eastern boundary of the project site. Evidence was inconclusive on nesting or roosting in these areas. Because the status of adjacent listed wading bird nesting or roosting is uncertain, the District suggested in its Proposed Recommended Order that a special condition requiring a wildlife survey prior to construction near the eastern project boundary be added to the permit as follows: Prior to application for construction within 1000 feet of the eastern boundary of the above-ground impoundment, the applicant shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. The District represented in its Proposed Recommended Order that the County has no objection to adding the foregoing condition. CUMULATIVE IMPACTS Pursuant to Section 373.414(8), Florida Statutes, the District is required to consider cumulative impacts upon wetlands and other surface waters delineated in Section 373.421(1), Florida Statutes, within the same drainage basin. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. The cumulative impact analysis is geographically based upon the drainage basins described in Figure 4.2.8-1 of the BOR. Cumulative impacts are unacceptable when they would result in unacceptable adverse impacts to the functions of wetlands and surface waters within a drainage basin. There are no wetlands or other surface waters delineated pursuant to Section 373.421(1), Florida Statutes, on the Mecca Farms site. Therefore, no cumulative impacts are created by the direct impacts of the project. Cumulative impacts may be created by a project's secondary impacts. If a wetland impact has been appropriately mitigated on-site within the drainage basin, there is no residual impact, and therefore no cumulative impact. The PGA Boulevard extension, a portion of the SPW Road widening, and the airport runway relocation are located within the C-18 Basin. The proposed mitigation options are all located in the C-18 Basin and will offset those impacts. Those potential secondary impacts are considered to meet the cumulative impact requirements of Section 373.414(8), Florida Statutes. The Applicants provided reasonable assurances that the proposed project will not result in cumulative impacts to the C-18 Basin. The FPL substation is located within the L-8 Drainage Basin. The majority of the SPW Road expansion is located within the C-18 Basin, but a portion is located on the basin line between the C-18 Basin and the L-8 Basin. Because the mitigation for the L-8 impacts are proposed in a different basin, the Applicants were required to conduct a cumulative impact analysis for the L-8 Basin impacts. Based on the Florida Land Use Cover Classification System, there are 43,457 acres of freshwater wetlands within the L-8 Basin. Approximately 41,000 acres of the wetlands in L-8 Basin are in public ownership. This total constitutes approximately 95 percent of all the wetlands in the L-8 Basin. Public ownership of these wetlands provide a high level of assurance that these lands will be protected in perpetuity. The Respondents established that proposed mitigation can fully offset the potential impacts from the SPW Road expansion and the FPL substation and the approximately four acres of impacted wetlands in the L-8 Basin. The Applicants provided reasonable assurances that there are no unacceptable adverse cumulative impacts on the L-8 Basin.4 GROUND WATER FLOWS, SURFACE WATER FLOWS, AND MINIMUM FLOWS AND LEVELS Florida Administrative Code Rule 40E-4.301(1)(g) requires an applicant to provide reasonable assurances that the proposed activity will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The term "maintenance of surface and groundwater levels or surface water flows" in Florida Administrative Code Rule 40E-4.301(1)(g) means that a project will not adversely impact the maintenance of surface water flows that contribute to meeting the minimum flow for the water body. An adverse impact to the maintenance of surface or groundwater levels or surface water flows may occur when a project discharging to a water body with a designated minimum flow level is proposed to be diverted. An analysis was done to compare the peak discharge rate from the existing SWM system on the Mecca Farms site with the projected peak discharge rate from the proposed SWM system. The analysis showed that the peak discharge rate under the proposed system will be less than that of the existing system. That result was expected since the proposed system will have higher control elevations, which, as noted above, will provide better treatment and permit a better control of the discharge into the C-18 Canal. Under the existing SWM system, storm event water in a dry period is frequently stored in the existing impoundment for future irrigation purposes. Under the proposed SWM system such storm event water will be discharged downstream, which will benefit those downstream areas during dry periods. The proposed system will also provide better control over pulse discharges during heavy storm events. The Applicants provided reasonable assurances that the proposed activities will not adversely impact the maintenance of surface or ground levels or surface water flows as required by Florida Administrative Code Rule 40E-4.301(1)(g). THE DISTRICT’S OBJECTIVES Sections 373.414 and 373.416, Florida Statutes, require an applicant to provide reasonable assurances that a regulated activity will not be harmful to the water resources and will not be inconsistent with the overall objectives of the District. Congress initially authorized the Central and Southern Florida (“C&SF”) Project in 1948. Thereafter extensive work was undertaken pertaining to flood control; water supply for municipal, industrial, and agricultural uses; prevention of saltwater intrusion; and protection of fish and wildlife. The work included construction of a primary system of 1000 miles each of levees and canals, 150 water-control structures, and 16 major pump stations. Unintended consequences of the C&SF Project have included the irreversible loss of vast areas of wetlands, including half of the original Everglades; the alteration in the water storage, timing, and flow capacities of natural drainage systems; and the degradation of water quality and habitat due to over-drainage or extreme fluctuations in the timing and delivery of fresh water into the coastal wetlands and estuaries. In 1992, Congress authorized the C&SF Project Comprehensive Review Study, which is generally referred to as the “Restudy.” The objective of the Restudy was to reexamine the C&SF Project to determine the feasibility of modifying the project to restore the South Florida ecosystem and provide for the other water-related needs of the region, such as water supply and flood protection. In April 1999, the U.S. Army Corps of Engineers issued the Central and Southern Florida Project Comprehensive Review Study Final Integrated Feasibility Report and Programmatic Environmental Impact Statement (“Restudy Report”). The Restudy Report recommends a comprehensive plan for the restoration, protection, and preservation of the water resources of Central and South Florida. The resulting plan is known as CERP. The North Palm Beach County Part I project, which includes restoration of the Northwest Fork of the Loxahatchee River (“NWFLR”), is a component of CERP. The successful completion of CERP and the successful restoration of the NWFLR are high-priority objectives of the District. The Loxahatchee River is an important feature of the South Florida ecosystem, nationally and internationally unique, and an important natural and economic resource. Rules pertaining to MFL for the NWFLR and for the recovery of the NWFLR are found at Florida Administrative Code Rule 40E-8.011; 40E-8.221(4); and 40E-8.421. Recovery goals, which are not presently being met, have been established; and strategies to meet those goals have been identified. The Mecca Farms site is located within the boundaries of the CERP North Palm Beach County Part I project and has the potential to affect CERP and the restoration of the NWFLR. Projects that potentially would affect or would be within or adjacent to a CERP project are evaluated on a case-by- case basis to determine whether a proposed project would not be inconsistent with CERP and other District objectives. There was a dispute between Respondents and Petitioners as to whether the proposed project was inconsistent with the District’s objectives, including CERP and its goals pertaining to the restoration of the NWFLR. Petitioners contend that the District has insufficient evidence that the Mecca Farms will not be needed for the construction of a reservoir. That contention is rejected. The greater weight of the credible evidence established that sufficient storage is available at a superior site known as the Palm Beach Aggregates (PBA) site in the L-8 Basin, which is a unique geological site that will provide in-ground storage of water.5 Water from the PBA storage site can be conveyed to the NWFLR to increase dry season flows. Water can be stored at the PBA site in the wet season to prevent potentially damaging high flows. The L-8 Basin, which is adjacent to the C-18 Basin, receives more water during the wet season than it uses. This means that at present a significant amount of water must be discharged to tide (lost) during the wet season to provide for flood protection in this area. As envisioned, the water currently lost to tide could be stored at the PBA site for use during the dry season. By combining the water storage in the L-8 Basin with connective flow-ways to the C-18 Canal, water demands within the C-18 Basin, including the NWFLR, can also be met by the PBA storage site.6 An increase in freshwater flows to the NWFLR will further the District’s restoration goals for the NWFLR. Storage at PBA has regional benefits for other significant natural areas because it will provide additional flows to the Loxahatchee Slough and Grassy Waters Preserve. Those additional flows will further the District’s CERP goals. Since October of 2003, County staff and the District’s ERP staff have coordinated review of the subject project with the District’s CERP Planning and Federal Projects Division and other District staff working on projects in this region. The County asked the District to determine if the Mecca Farms’ site could in some way accommodate CERP objectives, and three alternatives were considered: 1) no action; 2) a reservoir; and 3) a flow-way. As opposed to a reservoir, the more valuable and the more practical, use of the Mecca Farms site would be as part of the system to convey the stored water to the areas that would most benefit from its discharge. The proposed flow-way in the BRP Natural Area would be an integral part of that conveyance system and would provide the District with greater flexibility in managing and directing the discharge of the water stored at the PBA site. Prior to the development of the flow-way concept as part of the proposed development, CERP identified a single route to take water from PBA to the NWFLR. The flow-way will provide an additional route from PBA to the NWFLR. That additional route will provide the District with greater operational flexibility. The flow-way will complement the L-8 Basin flow- way and help reduce peak flows to the NWFLR and the Estuary. The flow-way also provides a potential route allowing excess water to be brought back from the C-18 Basin to the PBA site for storage. There are no other potential routes that allow water to be directed from the C-18 Basin in the wet season to the PBA site. The flow-way provides a feature that was not part of the CERP original plan and is therefore an unanticipated benefit for CERP. The Applicants provided reasonable assurances that the proposed project is not inconsistent with the District’s objectives.7
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the District issue the subject ERP for the conceptual approval of the SWM system for the BRP and the Phase 1A construction and operation subject to the general and special conditions set forth in the Staff Report and the Amended Staff Report. It is further RECOMMENDED that the District add the following special condition: Prior to application for construction within 1000 feet of the eastern boundary of the above-ground impoundment, the applicants shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. DONE AND ENTERED this 3rd day of December, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2004.
The Issue The issue for determination is whether Petitioner's revocation of Respondent's modified permit, authorizing a cross- fence on Petitioner's fee owned right-of-way, should be approved.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida, existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multi-purpose water management district. The District's principal office is West Palm Beach, Florida. In executing its multi-purpose, the District, as local sponsor for the US Army Corps of Engineers' Central and Southern Florida Flood Control Project, acquired canal rights-of-way. The District's rights-of-way were acquired to enable the Corps of Engineers to construct the flood control project and to maintain the system after its construction. The District operates a proprietary-based right-of-way program to manage the various property interests of the canal rights-of-way. The purpose of the District's right-of-way program is, to the extent possible, to allow uses of the rights- of-way that do not conflict with the flood control project. The rights-of way are used by both public and private concerns, including adjacent property owners, governmental entities, and utility companies. Jesus G. Quevedo is a private individual. His address is 2615 North Federal Highway, Lake Worth, Florida. The property at this address was vacant when Mr. Quevedo purchased it, and he has owned the property for approximately ten (10) years. The District has fee simple title to a strip of land on the south side of the District's C-51 Canal, immediately west of the Federal Highway/Olive Avenue bridge (C-51 Right-of-Way). Mr. Quevedo's property is located at the side of and adjacent to the C-51 Right-of-Way. The C-51 Right-of-Way is also located within the boundaries of Spillway Park as established in the agreement between the District and the City of Lake Worth. Generally described, Spillway Park includes the District's fee simple owned right-of-way on the south side of the District's C-51 Canal, beginning at the west side of the Federal Highway/Olive Avenue bridge and continuing to the east side of the Dixie Highway bridge. Mr. Quevedo has no real property interest in the C-51 Right-of-Way. Prior to purchasing his property, Mr. Quevedo was aware that the District owned the C-51 Right-of-Way. Historically, portions of Spillway Park and the C-51 Right-of-Way, in particular, have been a unique and popular location for excellent snook fishing by the public. These areas continue to be considered as such. On February 11, 1993, Mr. Quevedo was issued SFWMD Permit No. 9801 (Permit), a right-of-way occupancy permit, by the District’s Governing Board. The Permit authorized him to make use of the District’s lands and works as follows: 20’ X 50’ BOAT DOCK WITH WALKWAY, BURIED WATER AND ELECTRICAL SERVICE, POP-UP SPRINKLERS, AND SODDING WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED IMMEDIATELY WEST OF THE OLIVE AVENUE/FEDERAL HIGHWAY BRIDGE. During the permit application process, but prior to the issuance of the Permit, Mr. Quevedo had discussed with the District's staff the erection of a cross-fence based on allegations of improper or criminal activities by members of the public. Subsequently, in November 1995, Mr. Quevedo again discussed with the District's staff erection of a cross-fence based on the same allegations but he also included a new allegation of public safety as to the C-51 seawall. Based on the concern for public safety, the District's staff recommended that Mr. Quevedo be granted a modification to the Permit for a cross-fence. On November 14, 1996, the District's Governing Board approved, as part of its consent agenda, and issued SFWMD Permit MOD No. 9801 (MOD Permit)3 authorizing the following: CHAIN LINK CROSS FENCE WITH 16’ VEHICULAR GATE ALONG THE WEST PROPERTY LINE WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED AT 2615 NORTH FEDERAL HIGHWAY. The MOD Permit, as did the Permit, provides in pertinent part on its face the following: The permittee, by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . This permit is issued by the District as a license to use or occupy District works or lands. . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risk of loss as a result of revocation of this permit. The MOD Permit, as did the Permit, contained standard limiting conditions, as provided in Rule 40E-6.381, Florida Administrative Code, and special conditions. The limiting conditions provide in pertinent part as follows: Permittee agrees to abide by all of the terms and conditions of this permit, including any representations made on the permit application and related documents. . . . This permit does not create any vested rights, and except for governmental entities and public or private utilities, is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. This permit does not convey any property rights nor any rights or privileges other than those specified herein. . . . Having been granted the MOD Permit, Mr. Quevedo erected the cross-fence within and onto the C-51 Right-of-Way. The C-51 Right-of-Way is located adjacent to Mr. Quevedo’s property, as indicated earlier, and continues westerly to the permitted cross-fence. The C-51 Right-of-Way is enclosed by the cross-fence, preventing access by the public, and is located easterly of the cross-fence. As the C-51 Right-of-Way is located within the boundaries of the Spillway Park, the cross- fence is also located within the boundaries of the Spillway Park. During the time that Mr. Quevedo has owned his home, including prior to and after erection of the cross-fence, he, his family members and/or guests have frequently fished from the C-51 seawall and used the C-51 Right-of-Way enclosed by the cross- fence. Prior to and after the erection of the cross-fence, Mr. Quevedo and his family members have selectively controlled access by the public to the C-51 Right-of-Way at the C-51 seawall. Prior to the erection of the cross-fence, Mr. Quevedo chased members of the public off the C-51 Right-of-Way. Mr. Quevedo and members of his family also called law enforcement officers to remove members of the public who were located on the C-51 Right-of-Way, even if the members of the public were fishing from the C-51 seawall. After the erection of the cross-fence, Mr. Quevedo and his family members continued to engage in this conduct of selective access. Subsequent to the erection of the cross-fence, Mr. Quevedo had a member of the public arrested for trespassing. The person allegedly jumped over or went around the cross-fence to fish from the C-51 seawall in the C-51 Right-of-Way. With the existence of the cross-fence, Mr. Quevedo has prevented the general public from using the C-51 Right-of-Way, including the C-51 seawall. As a result, he has acquired the exclusive, private use of the C-51 Right-of-Way at the C-51 seawall, which is publicly owned land, and has, almost doubled the size of his adjacent property without the obligations and expense of acquisition, assuming he could acquire the property through acquisition. The District's policy is that public land should be open to the public. Contrary to this policy, Mr. Quevedo's cross-fence precludes access to the District's right-of-way (C-51 Right-of-Way), including the seawall, for passive recreational use. Similar cross-fencing, although not within the boundaries of Spillway Park, have been erected behind residences on the northeast, northwest, and southeast sides of Federal Highway, along the District’s C-51 Canal bank. The cross-fencing prevents public use of the District’s C-51 Canal bank at these locations. The City of Lake Worth made improvements within the boundaries of Spillway Park; however, it made no improvements, and does not intend to make any improvements in the future, at the C-51 Right-of-Way where Mr. Quevedo’s cross-fence is located or at the other private lots west of Mr. Quevedo's property. All of the improvements made at Mr. Quevedo’s cross-fence at the C-51 Right-of-Way have been made by him even though the C-51 Right-of- Way is located within Spillway Park. The original public safety rationale for authorizing Mr. Quevedo to erect the cross-fence blocking public access was revisited by the District. Additional investigation by safety experts (Risk Management staff) revealed that no unreasonable danger existed by allowing public access to the C-51 seawall at the C-51 Right-of-Way. In the absence of the public safety basis for closure of the C-51 Right-of-Way, such closure was contrary to District policy. As a consequence, the District’s staff recommended to the District’s Governing Board that the MOD Permit, authorizing Mr. Quevedo’s cross-fence, be revoked. After conducting two public meetings and receiving comments from Mr. Quevedo, members of the public, and the District’s staff as to the policy issue of pubic access to the C- 51 Right-of-Way, the District’s Governing Board determined that the C-51 Right-of-Way should be open to the public. Consequently, the Governing Board decided to revoke Mr. Quevedo's MOD Permit. Allegations of criminal activity within the general boundaries of Spillway Park and, specifically, in the C-51 Right- of-Way at the cross-fence area, were made by Mr. Quevedo as a basis to not revoke the MOD Permit and allow the cross-fence to remain. Such allegations have no bearing on the revocation of the MOD Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order revoking SFWMD Permit No. MOD 981 issued to Jesus G. Quevedo. DONE AND ENTERED this 8th day of March, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 8th day of March, 1999.
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
Findings Of Fact The subject application requests a water use permit from the Central and South Florida Flood Control District (FCD) for use as a public water supply for an area consisting of 12,000 acres. Received into evidence without objection were the notice of public hearing appearing in The Palm Beach Post, West Palm Beach, Florida; Supplementary Report - Water Treatment Plant and Raw Water and Transfer Mains - September, 1970; Water and Sewer Rate Study, July, 1971; Water and Sewer Rate Study, January, 1972; Summary Report, Water and Wastewater Program, October, 1972; Comprehensive Report, Water Works Improvements, January, 1965; pages 20, 21 and 24 of Addendum to supplementary report filed with application; letter to J.B. Jackson from James C. Williams dated July 17, 1975; letter to Abe Krietman from John H. Klinch, dated July 31, 1975; letter to J.B. Jackson from J. Eldon Mariott dated July 22, 1975; and the Staff Report of the FCD. The application was a part of the hearing officer's file. The application requested a diversion (by way of 18 existing and 4 proposed new wells) of 12,293.2 million gallons of ground water a year and a maximum daily diversion of 33.68 million gallons for a fifty year period. The Staff Report, which is attached hereto, recommends the issuance of a five year permit for an annual allocation of 4,668 million gallons, a maximum daily diversion of 25.45 million gallons and a maximum installed field capacity of 20,000 gallons per minute, with certain conditions attached thereto. Mr. John Klinch, a consulting engineer, testified as to the contents of the application, as revised, which he prepared. It was explained that the projected number of proposed new wells did not include the possibility of failure of some of the existing wells, which do show indications of deterioration at this time. He further compared the water consumption projections for 1976 with the actual demand of the first half of 1975. Said comparison indicates that the projection was underestimated. Projected for 1976 were 9,000 meters. For the first six months of 1975, there were 8,342 meters. The projected average daily use for 1976 was million gallons. As of June of 1975, it has exceeded that at million gallons. The average per capita daily consumption in Delray Beach is approximately 240 gallons. The water consumption projection for the year 1980 is estimated at approximately 25 million gallons per day. Mr. Klinch testified that there had been no problems with salt water or chloride levels in the existing wells. The next witness called by the applicant was Louis Martin, Director of Public Utilities for the City of Delray Beach. He has never, since October of 1973, had to restrict water use, a fact which he attributes to good water management. In December of 1972 the City Council adopted a bond resolution authorizing the validation of issuance of water and sewer revenue bonds in the amount of $5,000,000.00 to expand the water treatment plant to 24 million gallons per day and to construct four new wells. The bonds were approved by the citizens of Delray Beach. Other long range plans include the engineering for the enlargement of the sewage treatment plant from 12 to 24 million gallons a day. This, together with the addition of 4 extra wells, is part of a plan whereby the City of Delray Beach would become a regional water center. Mr. Gerry Winter, a hydrogeologist with the FCD, testified that he evaluated the subject application and prepared the Staff Report in this case, and testified as to its contents. As criteria in evaluating the application, Mr. Winter looked at whether the use was a reasonable and beneficial one and whether the use would present damage to resources or other users. The limiting factor in this particular application was the danger of salt water intrusion. It was recommended that the applicant be required to replace monitoring wells, so that the FCD could obtain valid salt water interface data. It was determined by Mr. Winter that the diversion requested by the applicant would not be a reasonable use of the water with regard to the resource since the current estimate of recharge will equal discharge by the year 1980. Therefore, it was recommended that a five year permit be issued for a maximum annual diversion of 4,668 billion gallons (such amount being equal to the estimated 1980 demand - an average day demand of 12.79 million gallons - times 365); a maximum daily diversion of 25.45 million gallons; and a total maximum installed field capacity of 20,000 gallons per minute, with certain conditions attached thereto pertaining to reports to the FCD and salinity monitoring wells. Finally, Mr. Winter testified that, although his report was prepared prior to receipt of the letter from the Palm Beach County Health Department (Exhibit No. 7), the letter was reviewed by the FCD staff and it was considered insignificant to the impact of this application. Mr. Saberson expressed agreement with the Staff Report.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permit requested be granted in accordance with the recommendations and conditions set forth in the Staff Report. Respectfully submitted this 8th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen A. Walker, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida Roger Saberson, Esquire City Attorney City of Delray Beach 100 North West 1st Avenue Delray Beach, Florida 33444 =================================================================
The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue The issue is whether an Environmental Resource Permit should be issued to Conquest Developments USA, L.C., authorizing the modification of an existing stormwater management system serving a residential development known as Silver Lakes in Collier County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Respondent, South Florida Water Management District (District), proposes to issue an Environmental Resource Permit (ERP) to Respondent, Conquest Developments USA, L.C. (Applicant), authorizing the modification of an existing stormwater management system serving a private, gated residential community known as Silver Lakes RV and Golf Club, Inc. (Silver Lakes) in unincorporated Collier County, Florida. As the agency responsible for the administration of the ERP program, the District has the authority to grant or deny the requested permit. Preliminary action approving the application was taken by the District on August 15, 2001. Silver Lakes is a 146-acre residential development located adjacent to, and on the east side of, County Road 951 approximately 1.5 miles south of the intersection of U.S. Highway 41 and County Road 951 in southwestern Collier County, Florida. The project site is a part of the larger development and consists of approximately forty undeveloped acres (40-acre site) just north of, and adjacent to, the residential community. If the application is approved, the Applicant would be allowed to construct an open storage facility on a 7.02-acre tract of land in the western part of the 40-acre site on which trailers, boats, motor homes, tow dollies, and similar items will be stored. It would also allow the Applicant to relocate previously permitted lots along the southeastern boundary of the 40-acre site which border the Silver Lakes development. Petitioners, Jerome and Susan Strauss, own Lots 14, 15, and 16 within Silver Lakes. Petitioners, Joseph H. and Patricia Belanger, own Lot 26 within Silver Lakes, which is adjacent to the proposed storage facility. For obvious reasons, the Belangers do not wish to have a storage facility next to their property. Rather, they and the other Petitioners have suggested that the storage facility be reduced in size and moved to a 3.0-acre site in the northeastern portion of the 40-acre site. The parties have stipulated that Petitioners have standing to bring this action. As reflected in the parties' Prehearing Stipulation, Petitioners contend that the proposed construction of the storage area will cause flooding, adverse secondary impacts, and adverse water quantity impacts; that the proposed activity will result in a violation of state water quality standards; that the proposed system will cause adverse impacts to surface water storage and conveyance capabilities, the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, and the conservation of fish and wildlife; that the Applicant has failed to minimize or avoid impact to jurisdictional wetlands to the greatest extent practicable; that the proposed site provides a wildlife corridor connected to protected lands directly to the west; that the proposed site is jurisdictional wetlands; that the Applicant has engaged in District activities without a permit; and that the proposed site is subject to a Declaration of Covenants, Conditions, and Restrictions. These objections, where relevant, have been grouped into five categories - wetlands, wildlife, secondary and cumulative impacts, water quality and quantity, and prior enforcement activities - and they are addressed separately below. Wetlands The District has adopted and incorporated by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a document known as the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (Basis of Review). The standards and criteria found in the Basis of Review are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Compliance with the criteria in the Basis of Review creates a presumption that the standard and additional conditions for issuance of an ERP in Rules 40E-4.301 and 40E- 4.302, Florida Administrative Code, respectively, have been met. See Section 1.3, Basis of Review. Section 4.2.1 of the Basis of Review generally requires that an applicant provide reasonable assurances that wetland impacts be eliminated or reduced to the greatest extent practicable. This can be done through the implementation of "practicable design modifications" to the project, or where adverse impacts still remain after such modifications, through mitigation. There are 36.82 acres of wetlands throughout the 40- acre site. If the application is approved, there will be adverse impacts to 9.9 acres of wetlands in the western portion of the site (where the storage facility will be located) and to 3.37 acres in the southeastern portion of the site. To avoid and minimize wetland impacts, the Applicant has been required to reduce the number of acres impacted from its original proposal, and to place the storage area on the western part of the 40-acre site near County Road 951. In the original application, the Applicant proposed to place the storage area in the eastern part of the site and to create a larger storage area. Although the western part of the 40-acre site contains higher quality wetlands than the central or eastern parts, the western area is not pristine, and it is substantially impacted by exotic species, such as wax myrtle and Brazilian pepper. In addition, the western area is adjacent to County Road 951, which reduces wetland functions and values, reduces habitat values because of increased light and noise encroachment, and increases risk to wildlife because of passing vehicles. Further, the central and eastern areas are adjacent to other undeveloped lands, and this creates the potential for larger tracts of preserved and enhanced wetlands and maximizes wetland functions and values. Impacts to wetlands will be adequately mitigated by the Applicant preserving and enhancing 26.92 acres within the 40-acre site in a recorded conservation easement; by monitoring and reporting on the on-site mitigation (easement) for a five-year period and by maintaining the property in perpetuity; by purchasing 3.66 mitigation credits of similar wetland habitat from the Panther Island Mitigation Bank; and by adhering to a remediation plan (found in the Special Conditions in the permit) to address any future deficiencies in the mitigation. Given these considerations, it is found that the Applicant has provided reasonable assurances that the wetland impacts from the proposed activities will be eliminated or reduced as required by Section 4.2.1 of the Basis of Review. Impact on Wildlife Section 4.2.2 of the Basis of Review requires an applicant to provide reasonable assurances that the activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, or habitat of fish, wildlife, and listed species. The primary agency responsible for the protection of wildlife is the Florida Fish and Wildlife Conservation Commission (Commission), and not the District. Therefore, Section 4.2.2 of the Basis of Review requires that the District provide the Commission with a copy of all ERP applications for its review and comment as to wildlife issues. In this case, the Commission offered no comments or objections regarding wildlife on the property in question. The evidence shows that listed and endangered species such as Florida panthers, wood storks, and Big Cypress fox squirrels have been spotted on infrequent occasions on the 40-acre site by residents of Silver Lake. However, the parties stipulated that there was no evidence of any nesting, denning, or breeding activity on the same site. Based on the evidence of record, including the Applicant's Protected Species Survey, it is fair to infer that there is limited or no use of the property by protected wildlife species. Indeed, Petitioners' own expert found no evidence of endangered or threatened species on the 40-acre site during his two inspections. Two Special Conditions have been incorporated into the permit to protect endangered, threatened, or other listed species. First, in the event that Big Cypress fox squirrels are observed on or near the property, Special Condition 24 requires that the Applicant prepare a habitat management plan, in consultation with the Commission, to address issues related to nesting habitat. Second, if any endangered or threatened species are ever found on the property, Special Condition 25 requires that the Applicant coordinate with the Commission or the U.S. Fish and Wildlife Commission for guidance or recommendations. Given the above, the evidence supports a finding that the Applicant has given reasonable assurances that the requirements of Section 4.2.2 of the Basis of Review have been satisfied. Secondary and Cumulative Impacts Section 4.2.7 of the Basis of Review requires that an applicant provide reasonable assurances that the proposed activity will not cause adverse secondary impacts to the water resources. At the same time, Section 4.2.8 requires that an applicant provide reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. In providing the necessary reasonable assurances regarding cumulative impacts, Section 4.2.8.2 authorizes an applicant to use preservation and mitigation measures to prevent cumulative impacts. The more persuasive evidence shows that the project will not cause secondary impacts to wetlands. This is because a water quality berm system surrounds the wetlands, isolating the wetland system from the surface water management system; a 50-foot preserved area lies between the storage area and the adjacent property boundary to the north; the storage area is being placed in an area already secondarily impacted by County Road 951; and the wetland preservation area will be placed in the conservation easement. Further, the project will not cause secondary impacts to wildlife. This is because structural buffers will prevent future encroachment into the wetlands and distance any wildlife away from the more dense residential functions. These buffers include a 50-foot wide natural preserve on the north side of the storage area (Special Condition 26), an already-erected structural buffer to the south of the storage area (Special Condition 26), and a 17 to 21-foot structural buffer (planted with native vegetation or vegetated buffers) on the eastern side of the 40-acre site where the new lots are proposed. Except for two conclusionary opinion statements by Petitioners' expert, without further facts or explanation, no other evidence on secondary impacts was offered. The project will not cause cumulative impacts to the wetlands. This is because the proposed mitigation for the project adequately offsets the impacts of the 40-acre site, and the impacts from other permitted projects in the basin area have been sufficiently offset. In addition, very little property in the area remains to be developed, and there are no new applications before the District involving the same basin. In the event a new application may be filed, however, the District will require the applicant to offset any impacts associated with its project with buffers and conservation easements, like the Applicant in the instant case. Water Quantity and Quality Section 5.0 et. seq. of the Basis of Review contains water quality criteria that must be satisfied in order for an ERP to be issued, while Section 6.0 et. seq. addresses water quantity criteria for an ERP. Given the limited nature of changes to the existing system and the lack of a hydrologic connection to the wetlands, and for the following additional reasons, the Applicant has given reasonable assurances that the project complies with the water quality and quantity criteria. The project as designed includes a grass swale near the storage area on the western part of the 40-acre site. The rainfall and run-off from the storage area flows into an internal road, through the grass swale, into a storm drain, and then into the pre-existing water management system associated with the original permit for Silver Lake. The project also allows rainfall and run-off from the proposed lots on the southeastern border of the 40-acre site to sheetflow onto an internal road, where waters are collected in existing catch basins and conveyed into the previously permitted water management system associated with the original permit. Since the rainfall and run-off from the storage area and lots drain into the existing lakes (Lakes 1 and 2) that are part of the Silver Lakes water management system, those waters will be treated for water quality through wet detention before their eventual discharge to McIlvane Bay, which lies to the southwest of Silver Lake. The basin discharge rates, minimum floor elevations, road designs, parking lot designs, structure control elevations, and structure sizes are specified in the the District's Staff Report, and were set at or above the calculated design limitations to meet water quality and quantity requirements. Section 5.2.1(a)1. of the Basis of Review specifies that wet detention volume shall be provided for the first inch of runoff from the developed project. The evidence shows that the proposed system captures one inch of run-off over the entire site, which drains into the existing lake system to provide water quality treatment. The system is also designed to meet the relevant discharge rate requirements for a 25-year, 3-day storm event, and the minimum floor elevations were based on a 100-year, 3- day storm event. The wetland preserve area is outside the area served by the surface water management system, is not hydrologically connected to that system, and will not be affected by run-off from the storage area or lots. Just prior to the final hearing, the District added Special Condition 23 to create a 50-foot buffer zone along the southern boundary of the storage area for aesthetic purposes and to reduce secondary impacts. Implementation of that buffer must be in accordance with the staff report, will not change the surface water management system, will have no impact on water quality or flood control, and will be implemented after additional consultation with the District. Past Enforcement Rule 40E-4.302(2), Florida Administrative Code, requires that the District take into consideration past violations of various rules adopted by the District. No enforcement action relating to the property has ever been taken by the District against the Applicant for any violation of ERP requirements. Although Petitioners suggested that unpermitted fill activities have taken place on the southeastern part of the 40-acre site, an inspection by District personnel revealed that unpermitted activities were "not significant." Further, Special Condition 23 requires that the Applicant restore "that portion of the disturbed wetland area located in the southeast corner of the site which is to be included in the wetland preserve area." Therefore, any impacts to the 40-acre site resulting from past unpermitted activities have been considered and remedied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Permit Application No. 010223-5 of Conquest Developments USA, L.C., for an Environmental Resource Permit. DONE AND ENTERED this 24th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2002. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Anthony P. Pires, Jr., Esquire Woodward, Pires & Lombardo, P.A. 3200 Tamiami Trail North, Suite 200 Naples, Florida 34103-4105 Robert E. Murrell, Esquire Samouce, Murrell & Francoeur, P.A. 800 Laurel Oak Drive, Suite 300 Naples, Florida 34108-2713 Keith W. Rizzardi, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Kenneth B. Cuyler, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103-3556
The Issue Whether FDOT has provided reasonable assurances that the activities it proposes to conduct pursuant to proposed District SWM Permit Application No. 940606-10, WRM Permit Application No. 940606-2-D and modification to ROW Permit No. 2584 will comply with the relevant permit criteria set forth in Chapters 373 and 403, F.S., and applicable rules and criteria promulgated thereunder.
Findings Of Fact THE PARTIES Petitioner, 1000 Friends of Florida (1000 Friends), is a not-for-profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. The principal office of 1000 Friends is 926 East Park Avenue, Tallahassee, Florida 32314 and it also maintains an office at 3305 College Avenue, Ft. Lauderdale, Florida 33314. Petitioner, Florida Bay Initiative, Inc. (FBII), is an entity incorporated under the laws of Florida with its principal office located at 250 Australian Avenue South, Suite 500, West Palm Beach, Florida 33401. Petitioner, the Florida Keys Fishing Guides Association, is an association of sport fishing guides who live in the Florida Keys and is headquartered at 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Michael Collins, is a private individual. His address is 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Charles W. Causey, is a private individual. His address is Post Office Box 448, Islamorada, Florida 33036. Petitioner, the Florida Keys Concerned Citizens Coalition (FKCC), is a not-for-profit Florida corporation whose address is West Shore Drive, Big Pine Key, Florida 33043. Petitioner, AG Intus, Inc., filed a Notice of Voluntary Dismissal on August 9, 1996. DOAH Case 95-5524, the proceeding filed by Intus, was previously consolidated with the other cases to this proceeding. On August 12, 1996, the Intus case was severed from this proceeding and the Intus hearing cancelled. Respondent, the South Florida Water Management District (the District or SFWMD), is a public corporation in the State of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, F.S., and Title 40E, F.A.C., as a multi-purpose water management district, with its principle office in West Palm Beach, Florida. Respondent, the Florida Department of Transportation (FDOT), is an agency of the State of Florida. Its District Six address is 1000 N.W. 111th Avenue, Miami, Florida 33172. Intervenor, Monroe County, is a political subdivision of the State of Florida. For the purposes of this proceeding the address for Monroe County is c/o Apgar and Pelham, 909 East Park Avenue, Tallahassee, Florida 32301. The District, FDOT and Monroe County did not object to the standing of the Petitioners at the formal hearing and represented that they will not object to the standing in the event of an appeal. Based on the representations of the Respondents, the Petitioners were not required to put on a case as to their standing. THE THREE PERMIT APPLICATIONS FDOT has applied to the District for a Wetland Resource Management (WRM) permit, a Surface Water Management (SWM) permit, and a Right of Way (ROW) occupancy permit. On June 6, 1994, the Applicant submitted applications for surface water management and wetland resource management permits for the purpose of widening and modifying this 20.4 mile stretch of U.S. 1. The surface water management permit application is identified as Application No. 940606-10. The wetland resource management permit application is identified as Application No. 940606-2-D. On October 24, 1995, the District issued Staff Reports on Permit Application No. 960606-10 and Permit Application No. 94060-2-D. These Staff Reports recommended issuance of the permits subject to general and special conditions as specified therein. An addendum to the staff report was issued November 3, 1995. On September 27, 1994, the Applicant submitted a request to modify its existing ROW Occupancy Permit to enable it to replace the bridge where U.S. 1 crosses the C-111 Canal. The land encompassed by the ROW occupancy permit challenged in this proceeding is located in Section 16 and 17, Township 59 South, Range 39 East, Dade County, Florida. A draft right-of-way occupancy permit with standard limiting and special conditions was produced as part of a package that went to the Governing Board and others. The proposed authorization for use of the ROW is for the following: REMOVAL OF EXISTING U.S. HIGHWAY 1 BRIDGE AND REPLACEMENT WITH A NEW FIXED BRIDGE. PROJECT INCLUDES CONSTRUCTION OF A NEW SERVICE/ACCESS ROAD, 2 DETENTION PONDS, 2 CATCH BASINS, 2-15" R.C.P. OUTFALLS, BOAT RAMP WITH LOADING DOCK, PARKING AREA, PEDESTRIAN GATE AT S-197, FENCING AND WILDLIFE CROSSING ALL WITHIN THE NORTH AND SOUTH RIGHT OF WAY OF C-111 (STATION 938+00 - 955+00). The draft right-of-way occupancy permit modification, identified as “SFWMD PERMIT NO. MOD 2548," should correctly be identified at “SFWMD PERMIT NO. MOD 2584.” The numbers “8” and “4” were inadvertently transposed. STIPULATIONS AS TO APPLICABLE LAW The parties have accurately set forth the applicable permitting criteria and the appropriate Basis of Review in their prehearing stipulation. CRITERIA FOR ROW PERMIT Rule 40E-6.301, Florida Administrative Code, provides, in pertinent part, as follows: In determining whether an occupancy permit should be issued, the District shall consider whether the proposed activity: interferes with the present or future construction, alteration, operation or maintenance of the works of the District; is consistent with the policy and objectives of Chapter 373 F.S., the legislative declaration of policy contained in Section 373.016, F.S. and the state water policy, Chapter 17-40, F.A.C.; has an actual or potential negative impact upon environmentally sensitive areas, which include: wetlands; endangered or threatened species habitat; aquatic preserves; outstanding Florida waters; federal, state and privately owned parks and wildlife management areas; designated areas of critical state concern; lands purchased by federal, state and local governments for the purpose of environmental protection, water resource protection and esthetics; and lands which contain native terrestrial plant species in significant amounts. Environmentally sensitive areas include areas on and off- site that are affected by activities which occur on, or are initiated from, the District’s works; degrades water quality within the receiving water body or fails to meet the provisions of Ch. 373, F.S., the state water policy, and Ch. 40E, F.A.C.; involves a discharge of wastewater from a new wastewater source or an increased discharge from an existing wastewater source; will discharge debris or aquatic weeds into District lands or works or cause erosion or shoaling within the works of the District; is supported by financial assurances, which will ensure that the proposed activity will be conducted in accordance with Chapter 373, F.S., and Chapter 40E-6, F.A.C.; presents an increased liability risk to the District; meets the general and specific criteria in the Basis of Review which is incorporated by reference in Rule 40E- 6.091, F.A.C.; interferes with actual or potential public use of the District’s works or public, recreational or other facilities not within the District’s works; is consistent with local zoning and other private land uses in the area; interferes with the quality or quantity of a public or private water supply; meets applicable criteria in Chapters 40E-61 and 40E-62, F.A.C.; ROW occupancy permits typically have standard limiting conditions which are incorporated as part of the permit. The permit may also have special limiting conditions. CRITERIA FOR PERMITTING THE SWM SYSTEM Rule 40E-4.301(1), Florida Administrative Code, contains the following criteria that, at the times pertinent to this proceeding, were used by SFWMD in determining whether to permit a surface water management system: In order to obtain or modify a permit under this chapter, an applicant must give reasonable assurances that the surface water system: provides adequate flood protection and drainage, without causing over- drainage, will not cause adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, F.S., will not cause discharges which result in any violations, in surface waters of the state, of the standards and criteria of chapter 17-302, F.A.C., will not cause adverse on-site or off-site impacts on surface and groundwater levels and flows, including impacts to sources of water supply and wetland hydrology, will not cause adverse environmental impacts, can be effectively operated and maintained, will not adversely affect public health and safety, is consistent with the State Water Policy, chapter 17-40, F.A.C., for a DRI with a signed Preliminary Development Agreement with the Florida Department of Community Affairs, pursuant to section 380.06(8), F.S., provides a surface water management system for that portion of the site approval for development which is able to operate separately from the surface water management system for the balance of the project site and still meet applicable District criteria. meets any applicable basin criteria in chapter 40E-41, F.A.C., will not otherwise be harmful to the water resources of the District, will not interfere with the legal rights of others as defined in subsection 17-40.401(8), F.A.C., is not against public policy, will meet general and specific criteria in the document described in subsection 40E-4.091(1)(a), F.A.C., (0) will meet criteria for isolated wetlands, which are found in Appendix 7 of the document described in rule 40E- 4.091(1)(a), F.A.C., (p) will meet the criteria for above ground impoundments, which are found in Appendix 6 of the document described in rule 40E-4.091(1)(a), F.A.C. The SFWMD has adopted certain procedures and criteria contained in a document, referred to as “Basis of Review for Surface Water Management Permit Applications Within The South Florida Water Management District” (BOR). Subsection 40E-4.091(1)(a), F.A.C. incorporates this document by reference into Chapter 40E-4, F.A.C. The BOR is a document that is “described in subsection 40E-4.091(1)(a), F.A.C.,” within the meaning of Rule 40E-4.301(1), F.A.C. The BOR establishes a rebuttable presumption that water quality criteria are met through specified volumetric retention and detention requirements. These performance based criteria are designed to be flexible. CRITERIA FOR THE WRM PERMIT In 1992 DEP entered into an Operating Agreement with the District, which delegated to the District responsibility for issuing wetland resource management (WRM) permits, which are required for dredge and fill activities in wetlands. Both DEP and the District implement the same wetland resource permit and MSSW permit rules. The District agrees with DEP's interpretation and application of the WRM permitting rules and non-rule policy, and applies the same when issuing such permits. Section 403.918, Florida Statutes (1991), provides the pertinent criteria that must be applied by the District in determining whether to grant or deny the WRM permit. That criteria requires the applicant to provide reasonable assurance that water quality standards will not be violated. In addition, for projects in OFW, the applicant must provide reasonable assurance that the project is clearly in the public interest. THE PUBLIC INTEREST TEST The District is required to balance the following criteria, found at Section 403.918(2)(a), Florida Statutes (1991), in determining whether a project is clearly within the public interest: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. MITIGATION If the applicant is unable to otherwise meet the public interest test, the District shall, pursuant to Section 403.918(2)(b), Florida Statutes, “consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project . . .” The District thereafter re-evaluates the project to determine whether the project, as mitigated, meets the public interest test. The criteria for mitigation is found in Chapters 373 and 403, Florida Statutes, Title 40 E (including the Basis of Review) and Rule 62-312, Florida Administrative Code. Rule 62-312.330, Florida Administrative Code, states the general criteria for evaluating mitigation proposals as follows: The goal of the mitigation proposal shall be to offset the expected adverse impact of the project that have resulted in the project being deemed unpermittable such that the resulting project with mitigation is not contrary to the public interest or, in the case of Outstanding Florida Waters, is clearly in the public interest. Each project must be separately evaluated to determine whether the proposed mitigation is sufficient. Rule 62-312.340, Florida Administrative Code, provides guidelines that are to be used in evaluating proposed mitigation projects. GENERAL DESCRIPTION OF THE PROJECT AREA FDOT proposes to widen a 20.4 mile portion of U.S. 1 in southern Dade County and northern Monroe County. Approximately seven miles of the project area is in Monroe County and approximately thirteen miles is in Dade County. The northern terminus of the project is the intersection of U.S. 1 and Card Sound Road, which is located in Dade County south of Florida City. The southern terminus of the project is the intersection of U.S. 1 and Abaco Road on Key Largo in Monroe County. The corridor of the proposed project passes through Sections 6, 7, 16, 18, 21, 27, 28, Township 59 South, Range 39 East; Sections 24, 25, 36, Township 58 South, Range 38 East; Sections 16, 19, 30, 31, Township 58 South, Range 39 East, Sections 16, 30, 31, Township 60 South, Range 40 East; Sections 25, 26, Township 60 South, Ranges 39 East, Dade and Monroe Counties, Florida. U.S. 1 is the main highway between northern Monroe County and southern Dade County. The only other road between Monroe County and Dade County is Card Sound Road. The Florida Keys is designated as an Area of Critical State Concern, pursuant to Section 380.0552, Florida Statutes. The Dade County portion of the road, north of the C- 111 canal, lies within typical Everglades habitat, which is classified as environmentally protected lands of Dade County. Most of the project corridor in Dade County is part of or adjacent to the Everglades National Park. Valuable wetlands exist throughout the project corridor. The following bodies of water will receive discharges if the surface water management system is permitted: C-111 Canal, Jewfish Creek, Lake Surprise, Blackwater Sound, Barnes Sound, Little Blackwater Sound, Long Sound, Manatee Bay, Sarge Lake, andManatee Creek. The receiving bodies of water are Outstanding Florida Waters (OFWs) or are connected to OFWs. THE EXISTING ROADWAY As it presently exists in the project area, U.S. 1 is a two lane undivided highway with two passing zones that are each one mile in length. Each travel lane on the existing facility is twelve feet wide. The existing shoulder on either side of the road consists of four feet of pavement and six feet of grassed area. FDOT Exhibit 7 accurately depicts the existing roadway typical section. Exotic vegetation, generally limited to the areas immediately adjacent to the highway, exist throughout the project corridor. These exotic species are present because FDOT has failed to properly maintain its right of way. A clear zone is an unobstructed area that includes the shoulder of the roadway and typically extends beyond the shoulder. The purpose of the clear zone is to provide a driver who has lost control of his or her vehicle a sufficient clear recovery area to regain control of the vehicle so that it can be maneuvered back onto the road. The clear zone for the existing road is inadequate to provide a safe recovery area. There is at present a two lane bridge over Manatee Creek, a two-lane bridge crossing the C-111 Canal, a bascule bridge, which is a drawbridge, over Jewfish Creek, and a two lane causeway through Lake Surprise. The two existing passing zones are located in Dade County. The first is south of U.S. 1’s intersection with the C-111 canal between mile markers 113-115. The second passing lane is approximately four miles south of the northern terminus of the project between mile markers 120-122. Each existing passing zone is undivided and consists of two northbound lanes and two southbound lanes, with each travel lane being twelve feet in width. The shoulders in the passing zones are the same as for the typical section. A surface water management (SWM) system is defined by Rule 40E-4.021(5), Florida Administrative Code , as being "the collection of devices, improvements or natural systems whereby surface waters are controlled, impounded, or obstructed.". There is no surface water management system presently associated with the road. The roadbed is elevated approximately five feet above mean sea level according to the National Geodetic Vertical Datum and was constructed on the old railroad bed of the Florida East Coast Railroad. No hydrologic culverts have been placed within the roadbed. Consequently, surface water flow between the eastern and western sides of the road north of the C-111 Canal has been cut off. C-109 AND C-111 CANALS In the 1960's, the C-109 and C-111 canals were constructed as part of an overall water management system in the area. As a result of the roadbed and the canals, water has been impounded on the western side of U.S. 1 at a level higher than on the eastern side. Due to cutoff of waterflow by the roadbed embankment, historic freshwater flow between the eastern and western sides of the project area has been restricted, which has resulted in an adverse impact on the Everglades ecosystem north of the C-111 Canal. The restricted water flow has resulted in less fresh water being available for shorter periods of time. Consequently, aquatic life has had reduced opportunities to develop. The restricted flow also has impeded the ability of aquatic life to reach freshwater areas during times of drought. On the east side of the road marine conditions have displaced what naturally should be freshwater conditions. PROJECT HISTORY While FDOT has been aware of traffic safety and hurricane evacuations concerns on the roadway for a long time, the current project originated in 1986 when Monroe County identified this project as a need in its 1986 Comprehensive Plan. Pursuant to agency practice, the proposed project was incorporated into FDOT's five year work program and a study was performed pursuant to FDOT’s Project Development and Environment (PD&E) Manual. FDOT's PD&E manual describes the process by which FDOT determines whether to construct or improve a road. The PD&E process includes an Environmental Impact Statement (EIS) to analyze existing conditions, assess the need for improvement, and develop alternatives. A Draft EIS is performed and circulated for comment to governmental agencies and the public. Based upon comments and further review a Final EIS is prepared. Metric Engineering ("Metric") began the PD&E study of the project in 1988 pursuant to a contract with FDOT. Metric identified seven factors which it concluded supported the need for the project. First, the improved corridor would improve the linkage between the four lane road at the northern terminus and the four lane road at the southern terminus. Second, the project would improve navigation by replacing the existing bascule bridge at Jewfish Creek. Third, the project would improve the level of service for the road. Fourth, the project would improve the safety of the road. Fifth, the project would improve the clearance time for hurricane evacuation. Sixth, the project was consistent with the long range transportation plans adopted by Monroe County. Seventh, the project would accommodate increased traffic, which can be expected with or without the project. Based on the needs evaluation, Metric performed a corridor analysis to determine the best way to get from Florida City to Key Largo, including improving only Card Sound Road, improving only U.S. 1, or improving a combination of the two. Metric concluded that the best resolution was to improve the project corridor. Metric also analyzed various alternatives in an effort to reduce the size of the typical section of the roadway in the U.S. 1 corridor and thereby minimize environmental impacts of the project. Because of concerns from Everglades National Park that no aspects of the project construction occur within its boundaries, FDOT agreed to conduct all construction east of FDOT's existing right of way line. The conclusions of the Metric studies were memorialized in a Final EIS and Final Engineering Report published in 1992. Conclusions regarding alternatives and project needs were then incorporated into the permit application and have continued to be updated. The 1992 version of the project was for a four lane roadway with four lane bridges throughout the project corridor. Subsequent to its June 6, 1994, permit applications to the District for a four lane roadway, FDOT went through an extensive process of providing the District with additional information in an effort to provide the District with the necessary reasonable assurance that the proposed project would comply with the permit criteria. The final series of modifications contained the three lane alternative, which will be described in detail below and is now the subject of this proceeding. The three lane proposal is a compromise that FDOT agreed to in an effort to minimize the direct, secondary, and cumulative impacts of the project. Monroe County passed Resolution No. 315-1995 on September 7, 1995, asking FDOT to build a three-lane road on a four-lane embankment. This resolution provided, in part, that “. . . Monroe County finds that the '3-lane alternative' as described in the Statement of Agency Commitments is the most viable proposal of those considered, because it balances the needs for a widened highway with safeguards designed to address secondary impacts.” The secondary impacts referred to in the resolution included concerns that two southbound lanes would result in more growth. The rationale behind the resolution was that more growth would result from two southbound lanes than from one southbound lane with the proposed passing zones. In response to the request of Monroe County and in response to a similar request made by the District, FDOT notified the District by letter dated September 5, 1996 of FDOT's decision to redesign the project to change the roadway from four to three lanes. FDOT HAS MINIMIZED THE IMPACTS OF THE PROJECT During the PD&E process prior to permit application FDOT studied project needs and alternative alignments, and conducted corridor analyses. FDOT originally considered a proposal that included approximately 250 acres of wetlands impacts. At the District's suggestion, FDOT revised its proposal prior to the permit application to reduce the wetland impacts and project footprint. The application submitted contained approximately 165 acres of impact. FDOT changed the typical section of the proposed roadway again after substantial interagency coordination in an effort to reduce wetlands impacts even further. FDOT agreed to reduce the footprint by changing the design of the median from 22 feet and a Jersey barrier (which is a minimum barrier) to 20 feet with a tri-beam rail barrier. The more substantial barrier was added because the median was narrowed. Additionally, instead of ten-foot paved shoulders on each side of the median, FDOT would use two-foot paved shoulders with sixteen feet of grass in the middle. These minimization efforts resulted in a wetland impacts decrease from 164 acres to 149.07 acres, the current impact of the project. Avoidance, or choosing alternate routes to avoid impacts to wetlands, was not a possible option because only wetlands and open waters exist between the northern and southern terminus of the project. FDOT explored all reasonable alternatives to the proposed project, including a two lane alternative proposed by a consultant for FBII. As discussed below, FDOT did not adopt the two-lane alternative, because the alternative did not address all of FDOT's identified needs for the project. FBII prepared a report with a two-lane alternative to the proposed project. FBII's original proposal included one 12-foot northbound lane with a 10-foot paved shoulder covered with thermoplastic rumble strips to deter vehicular use of the shoulder. In the southbound direction, FBII proposed a 12-foot travel lane with a 4-foot paved shoulder, essentially the same as currently exists. That proposal was analyzed by Metric Engineering on behalf of FDOT. FDOT rejected the FBII alternative for several reasons. First, though the 10-foot northbound shoulder theoretically may be used by cars during hurricane evacuation, removal of the rumble strips would be impractical due to lack of time to do so under threat of a hurricane, and due to the costs involved. It would be unrealistic to require people to otherwise drive over the rumble strips, without removal, because they are designed to prevent such access. Using the 10-foot shoulder during an evacuation would result in there being no shoulder area to remove accident vehicles from the roadway which would otherwise threaten to restrict the flow of traffic or cease it altogether. The reduced width of the shoulder lane below the standard 12-foot lane would also decrease the flow of evacuees. FBII's proposal for a two-lane fixed-height bridge at Jewfish Creek would not completely eliminate rear-end collisions at the bridge. The two-lane alternative proposed by FBII is not a signed and sealed cross section. The proposal by FBII does not include the area necessary for a SWM system or for clear zones. FBII did not do an analysis to determine whether its proposal complies with pertinent FDOT roadway and traffic design standards or with pertinent highway safety and improvement standards. The FBII proposal does not account for removal of the Lake Surprise causeway or construction related impacts from barge traffic. FBII did not do a wetlands survey to determine the impact of its two-lane proposal. At the Final Hearing, Petitioners presented for the first time a new proposal to use "flexible diverters" to pave a third northbound lane and to block that lane from travel traffic with poles. However, no research was conducted into the feasibility of such a proposal, nor was it adequately thought out. Such a use of "flexible diverters" is unprecedented in FDOT's history, is impractical to implement, and would violate FDOT's design standards contained in its Manual on Uniform Traffic Control Devices. Petitioners also presented for the first time at the Final Hearing a proposal to add an 8 to 10 foot paved northbound shoulder which could be converted to a travel lane with traffic control cones in the event of an evacuation. This plan is also not feasible, because the resulting lanes would not be wide enough to safely accommodate evacuating traffic, and because the contradiction between existing road striping and the placement of cones would likely cause accidents, which would halt evacuation. The proposals submitted by FBII do not sufficiently improve hurricane evacuation or traffic safety and, consequently, are not acceptable alternatives to the project. FDOT can do nothing else to minimize the impacts of the project and still address the needs for the project. Minimization of wetlands impacts was accomplished to the greatest extent possible. FDOT has proposed mitigation to offset the impacts that could not be avoided. THE PROPOSED PROJECT - IN GENERAL STIPULATION AS TO DESIGN AND CONSTRUCTION Petitioners stipulated that the design and construction specifications of the roadway proposed to be permitted in this case comply with all applicable design and construction standards for structural integrity, and adequately describe the three-lane divided roadway proposed to be constructed on a four-lane roadbed/embankment. PROPOSED LANES, SHOULDERS, AND MEDIAN FDOT proposes to widen the roadway in the project area to a three lane divided roadway with two northbound lanes and one southbound lane, plus three passing zones. The proposed project will be constructed on a four lane roadbed embankment. FDOT does not presently have plans to add the fourth lane to this roadway. FDOT Exhibit 8 contains an accurate description of the proposed typical section of the roadway. The typical section will consist of two twelve-foot northbound lanes with a six-foot paved shoulder and a four foot stabilized area adjacent to the paved shoulder; a twenty-foot median consisting of a two-foot paved shoulder, sixteen feet of grass and a tri-beam guardrail in the middle as a separator; and one twelve-foot southbound lane with an eight-foot paved shoulder. The proposed typical section also includes a storm water management system that will be described in more detail below. The proposed typical section includes a clear zone thirty feet in width, which is adequate. THE THREE PASSING ZONES The existing passing zone located in Dade County between mile markers 113 and 115 is one mile in length. FDOT proposes to alter this passing zone to 1.44 miles in length. The existing passing zone located in Dade County between mile markers 120 and 122 is also one mile in length. FDOT proposes to alter this passing zone to 2 miles in length. In addition, FDOT proposes to construct a 1.5 mile long passing zone between mile markers 110 and 112 in Monroe County. If permitted, the proposed project will include 2 passing zones in Dade County and 1 passing zone in Monroe County, for a total of 3 passing zones. The total length of the passing zones will equal 4.94 miles. ELEVATION There are no plans to change the elevation of the existing roadway. HYDROLOGIC CULVERTS The project contemplates the construction of 25 hydrologic culverts north of the C-111 Canal. These culverts will remain capped until further hydrological studies are completed and input from all concerned regulatory agencies can be obtained. It has not yet been determined how these culverts will be utilized to maximize the improvement to the ecosystem north of the C-111 Canal. WILDLIFE CROSSINGS INCLUDING THE C-111 BRIDGE The project contemplates the construction of three wildlife crossings north of the C-111 Canal in Dade County with fencing designed to funnel wildlife through the crossing. These crossing, sometimes referred to in the record as “panther crossings” are located between mile markers 118-119, 122-123, and 126-127 and will be constructed as overland bridges. In addition, the replacement bridge over the C-111 Canal (located between mile markers 116-117 in Dade County) is intended to serve as a wildlife crossing and will also employ fencing to funnel wildlife through the crossing. All four of these structures will be constructed as four-lane bridges, but will be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular traffic in that lane. There will be an eight foot outside shoulder. FDOT proposes to construct 18 culverts south of the C-111 Canal for crossings by crocodiles, alligators, manatees, and other wildlife. These crossings will consist of 15 box culverts and 3 bridges. MANATEE CREEK BRIDGE The proposed bridge at Manatee Creek would be constructed as a four lane bridge, but would be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular travel in that lane. There would be an eight foot outside shoulder. BRIDGING JEWFISH CREEK AND LAKE SURPRISE Jewfish Creek, which is part of the Intracoastal Waterway, and Lake Surprise would be bridged by a continuous structure. The Jewfish Creek bascule bridge would be replaced by a high-level four-lane fixed bridge. The Lake Surprise causeway would be replaced by a low-level four-lane bridge. The total distance for this bridging is approximately 2.35 miles. AREA OF PROJECT THAT WILL BE OPERATED WITH FOUR-LANES The three passing lanes (4.94 miles) and the bridge over Jewfish Creek and Lake Surprise (2.35 miles) would be operated with four lanes. Those areas total 7.29 miles of the 20.4 mile project corridor. Approximately 43 percent of the proposed roadway would have four lanes of pavement. Excluding the areas where the fourth lane will be blocked from travel with rumble strips, only 35 percent of the completed project will contain four travel lanes. This area consists of the three passing zones and the bridges over Jewfish Creek and Lake Surprise. THE PROPOSED SWM SYSTEM The proposed project would provide for a SWM system consisting of inlets, culverts, swales, berms and dry/wet retention areas. For the typical roadway section, runoff from the paved roadway surfaces will be directed to roadside swales designed to provide retention for 50 percent of 2.5 inches times the impervious area. The SWM system for the bridges will collect runoff in inlets and culverts and direct it to either swales or dry or wet retention ponds. The berms of the SWM system provide additional protection by restricting spills of pollutants, such as petroleum from overturned tankers or other vehicle accidents, from running into the surrounding waters. The berms and swales of the SWM are designed to catch pollutants and prevent their discharge into the surrounding waters. FDOT Exhibit 18 consists of four separate drainage reports submitted to the District in 1995 in connection with the project, one report for each section of the project. The reports accurately document the drainage calculations, the drainage design, the rationale behind the drainage design, and compliance of the design with the laws and regulations of the permitting agencies for the original four-lane proposal. On or about September 5, 1995, FDOT submitted revised drainage calculations to the District, determining the amount of stormwater treatment for the three-lane project. The revised calculations established that at least 95% percent of all stormwater runoff from the project would be captured in the proposed SWM system. Because the swale design was based on the originally proposed four-lane road, retention will be in excess of the required volume for most sections of the roadway. The required retention volume for this project is approximately 166 percent of what is required by the BOR. The surface and subsurface geology of the roadway consists of Miami oolite limestone overlain with Perrine maral. Underlying this is Thompson formation, anastasia and Key Largo limestone. Based on these constituencies, the swales proposed by the SWM system would be effective in rapidly removing heavy metals and phosphorous. The revised calculations established that approximately five percent of the project area will not have a SWM system. These areas will not have a SWM system because properly-sized retention systems in those areas can not be constructed without causing a disproportionate, adverse impact to surrounding wetlands. FDOT has provided reasonable assurances that the proposed SWM system’s total water quality treatment exceeds the District's permitting requirements and provides sufficient treatment to exceed the BOR requirements. The water discharged from the proposed system would be of higher quality than that currently discharged, which is not treated. FDOT has provided reasonable assurances that the proposed SWM system complies with the permitting criteria found in Rule 40E.301(1)(a)-(p), Florida Administrative Code. The following findings are made as to that criteria. Rule 40E-4.301(1)(a), F.A.C. The parties stipulated that Rule 40E-4.301(1)(a), F.A.C., pertaining to flood protection and the adequacy of drainage, is not at issue in this proceeding. Rule 40E-4.301(1)(b), F.A.C. The quality of water being discharged from the SWM system will be of substantially higher quality than the existing discharges. Consequently, it is concluded that the system will not cause adverse water quality impacts within the meaning of Rule 40E-4.301(1)(b), F.A.C. In addition, the evidence established that there will likely be less water discharged from the roadway if the project is constructed because of the amounts of water that will likely be retained in the swales that are a part of the SWM systems. Rule 40E-4.301(1)(c), F.A.C. Because the receiving bodies of water are designated Outstanding Florida Waters, the District is required to apply the DEP's most stringent water quality requirements -- the antidegredation requirements for discharge to OFWs, to this project. Those standards will be discussed in more detail below. The evidence established that the proposed project will not violate those requirements. Rule 40E-4.301(1)(d), F.A.C. Impacts to sources of water are not at issue. The District reviewed the potential effect of the SWM system upon on-site and off-site impacts to surface or groundwater levels and flows. The evidence supports the District's conclusion that no adverse impacts will be caused. Petitioners failed to present any evidence on groundwater levels and flows. Consequently, it is found that the criteria found at Rule 40E-4.301(1)(d), F.A.C., has been satisfied. The 25 hydrologic culverts north of C-111 have the potential to re-establish historic surface water flow in the area. They were sized, based on rainstorm events, to help equalize water levels from one side of the road to the other. The culverts are capable of transferring water from west to east to assist in the historic restoration of flows. In order to assure the proper usage of the culverts, they will remain gated until the District develops a management plan in conjunction with other agencies. The District will determine the maintenance entity. The FKAA water main runs beneath this section of the road. As a result, there is no other more hydrologically efficient alternative for the placement of the culverts. The culverts would also provide a means for overwash from storm events, over the U.S. 1 roadbed, to flow back to its point of origin, stabilizing the roadbed and allowing release of the accumulated salt water. Rule 40E-4.301(1)(e), F.A.C. In addition to providing for a net improvement in water quality, the project will offset any adverse impacts through mitigation and other environmental enhancements for which no mitigation credits are being assigned, as described below. Rule 40E-4.301(1)(f), F.A.C. FDOT has a history of adequate maintenance of SWM systems, and has provided reasonable assurance that it has the staff and budget to comply with District operation and maintenance requirements. FDOT will also be able to comply with the District's requirements to control exotic plants and other foliage along project corridor. Rule 40E-4.301(1)(g), F.A.C. The SWM system will not adversely affect public health and safety. The dispute as to the public interest test focused more on the WRM permitting requirements. Findings as to the public interest test are discussed in more detail below. Rule 40E-4.301(1)(h), F.A.C. The evidence established that the SFM system is consistent with State Water Policy. Rule 40E-4.301(1)(i), F.A.C. This project does not pertain to a DRI and, consequently, this criteria is not applicable. Rule 40E-4.301(1)(j), F.A.C. There are no basin criteria applicable to this project. Rule 40E-4.301(1)(k), F.A.C. The evidence established that the SWM system will not be harmful to the water resources of the District. While there will be adverse environmental impacts caused by the project, those adverse impacts have, as will be discussed in more detail below, adequately offset by mitigation. Rule 40E-4.301(1)(l), F.A.C. This issue was not at issue in this proceeding. Rule 40E-4.301(1)(m), F.A.C. As will be discussed in greater detail in a subsequent section of this Recommended Order, the project is not against public policy. For the reasons set forth in that subsequent section, it is found that the project is clearly in the public interest. Rule 40E-4.301(1)(n), F.A.C. Rule 40E-4.091(1)(a), F.A.C., constitutes the BOR. As discussed in detail above, the SWM system complies with the BOR. Rule 40E-4.301(1)(o), F.A.C. There are no isolated wetlands pertaining to this project. Rule 40E-4.301(1)(p), F.A.C. There are no above ground impoundments, as described in Appendix 6 of the BOR, pertaining to this project. WATER QUALITY - DISCHARGES INTO OFW Because the project will involve discharges into Outstanding Florida Waters, it was necessary for FDOT to establish that the discharges from the SFW system will not degrade those OFWs. The evidence established that FDOT's proposed project complies with and exceeds applicable water quality standards and permitting criteria. There will be no significant degradation of ambient water quality as a result of the project. It is expected that there will be a net improvement in ambient water quality resulting from the proposed project, as opposed to the continued degradation if nothing is done to treat stormwater runoff. In FDOT Exhibit 46, FDOT provided baseline water quality data in the form of STORET data for waters adjacent to the project area. STORET is a centralized repository and database for water quality data throughout Florida. It is Florida's principal source of water quality data. STORET contains the best scientific database on water quality in Florida. The STORET data set forth in FDOT Exhibit 46 provided sufficient evidence on ambient water quality for the waters adjacent to the proposed project. In addition to providing the water quality data in FDOT Exhibit 46, FDOT is required by Special Permit Condition 37 to submit appropriate water quality data in the surrounding waters prior to any construction activities. SFWMD Exhibits 5 and 6 contain amendments to Proposed Agency Action made after the beginning of the formal hearing. These amendments include a requirement that an appropriate water quality monitoring plan be submitted within 30 days of the permit issuance. FDOT has provided reasonable assurances that water quality standards will be met and that there will be appropriate water quality monitoring during construction. DIRECT IMPACTS OF THE PROJECT The proposed roadway design will result in the following direct impacts to wetlands adjacent to the roadway corridor: 1) the dredging of 11,028 cubic yards of material from 2.1 acres, 2) the placement of 1,689,553 cubic yards over 147.0 acres of wetlands, and 3) 6.9 acres of (potential) permanent impact due to shading and 4.1 acres (potential) of temporary impacts from the Jewfish Creek Bridge construction activities to seagrass habitat. In order to determine the project's direct impacts, the area surrounding the project was surveyed to determine the number of affected acres. This was done by using a computer aided design ("CAD") system, and by categorizing the various forms of wetlands and associated flora and fauna into the following communities: mangrove, emergent freshwater, open water, and tidal, consisting of seagrass and non-vegetated bottoms. Using these categories and the CAD system, every square foot of direct impacts were accounted for. The adverse direct wetland and surface water impacts of this project are as follows: 1) 27.83 acres Non- Vegetated Tidal Bottom; 2) 11.27 acres Seagrasses; 3) 46.85 acres Mangroves; 4) 42.35 acres Sawgrass/Cattail/Spikerush; 5) 14.31 acres Shrub Wetlands; and 6) 6.46 acres Open Fresh Water; totaling 149.07 acres. Though some wetlands to be impacted may be of lesser quality, FDOT stipulated that all wetlands to be directly impacted by the project should be considered to be high quality wetlands for the purpose of mitigating the impacts. The impacted wetlands are part of larger wetland systems. Petitioners assert that the District should have required studies as to impacts as to the larger wetland systems. The evidence established that the District appropriately considered the type and location of the wetlands involved so that additional study suggested by Petitioners was unnecessary. Petitioners also assert that impacts to isolated wetlands should have been studied. The evidence established that there will be no such impacts. SECONDARY AND CUMULATIVE IMPACTS RECOGNIZED BY SFWMD In addition to the direct impacts of the project, the District is required to analyze secondary and cumulative impacts. A project's secondary impacts are those that, though outside of the project footprint, are very closely linked and causally related to the project. This is a "but for" test. Secondary impacts are those impacts which, if not for the proposed project, would not occur. Both positive and negative secondary impacts are considered. When there are both positive and negative secondary impacts caused by a project, the permitting agency must consider the severity of the impacts and balance these together with the other factors in the public interest test to determine whether or not the project is clearly in the public interest. WRM statutes, and DEP rules and policies pertaining to those statutes do not regulate growth or traffic increases, per se. Only if such increases are very closely linked and causally related to the project will they be considered. The District identified several secondary impacts that would be temporary in nature since they would occur while the project is being constructed. One is the use of a barge facility, primarily at Jewfish Creek, where the anchoring of the barge may result in temporary impacts to seagrass during construction. This impact is addressed by a component of the seagrass mitigation at Boca Chica, discussed below. Another impact is turbidity associated with the dredge and fill and the barge activities. That issue is appropriately addressed by permit conditions, through the use of turbidity control screens and other techniques. The District also identified secondary impacts directly associated with the project footprint that would be permanent in nature. The removal of the exotic vegetation potentially opens up the areas adjacent to the road north of the C-111 canal to off-road vehicles or four-wheel driving and the potential impacts caused by those vehicles. That impact is appropriately addressed by fencing north of the C-111 canal. When a road is widened, animals have a greater distance to travel back and forth from one side of the road to the other. A wider road exposes such animals to greater risk of being hit by a motor vehicle while crossing the road. That impact is addressed in this project by the fencing, the wildlife crossings, and the wildlife box culverts. The crossings are designed for large mammals and some species, such as the Indigo snake, will likely not use these crossings. The wildlife crossings will not entirely mimic the crossing patterns of all wildlife that need to cross U.S. 1 and will result in some wildlife habitat fragmentation. The fencing that will be erected to funnel wildlife through the crossings will fragment the habitat of some species by altering wildlife crossing patterns and blocking access of some species to certain areas of habitat. The greater weight of the evidence established that any habitat fragmentation should, when compared to existing conditions, be minimal. The District appropriately evaluated the advantages and disadvantages of using wildlife crossing and hydrological culverts and appropriately concluded that there would be a net benefit to wildlife as a result of their construction. The District properly concluded that the culverts, bridges and fencing located south of the C-111 canal, construction of wildlife crossings and fencing north of the C- 111 canal, construction of the hydrologic culverts, and removal of the Lake Surprise Causeway are positive secondary benefits of the project. These benefits should be considered when applying the public interest test. THE FKAA PIPELINE RELOCATION The project requires the relocation of two segments of the existing pipe owned by the Florida Keys Aqueduct Authority (FKAA) around Jewfish Creek Bridge. The segments total approximately 1.5 miles. The District inspected the area where the pipeline will be relocated to assist in determining its impact. The pipeline relocation is a temporary disturbance during construction. It is a small linear facility, which will not generate pollution in and of itself. The pipeline relocation is not expected to result in a violation of State water quality standards. The FKAA is responsible for obtaining the necessary permits for the relocation. Direct impacts to wetlands will occur in a 4 to 5 foot wide strip along the length of the relocated aqueduct. The FKAA has submitted a permit application to the DEP for a permit to relocate the aqueduct. DEP believes that adequate mitigation can be achieved to make the project permittable. Once the FKAA submits an adequate mitigation plan, then relocation of the aqueduct will not be an adverse secondary impact caused by the U.S. 1 project. The permit for the subject project should contain a condition that the FKAA obtain a permit for the relocation of these two segments of its pipeline. THE C-111 BOAT RAMP There is an existing boat ramp designed for small boats to access District canals that is located on the north side of the C-111 canal. As a result of the proposed project, it will be relocated to the southern side of the project. This relocation is a relatively minor project requiring a cut in the canal bank and a fourteen-foot wide slab for the boat ramp. When the District considered the potential impacts associated with this relocation in conjunction with the impact of the proposed project, it was determined to be a relatively insignificant impact in terms of the project as a whole. Relocation of the boat ramp is not expected to result in a violation of state water quality standards. All direct, cumulative, and secondary impacts, whether positive or negative, should be considered in balancing the public interest test. ARE THERE ADDITIONAL SECONDARY AND CUMULATIVE IMPACTS Petitioners assert that there are additional cumulative and secondary impacts that the District failed to consider. Petitioners argue that the project cannot meet permitting criteria if those additional impacts are considered. The additional impacts pertain to additional development throughout Monroe County because of the “rate of growth ordinance” (ROGO), additional development along the project corridor, impacts to the coral reefs of the Keys, impacts to Key Deer, generalized impacts, and impacts from increased number of “day trippers." For the reasons discussed below, it is found that the District has considered all appropriate direct, secondary, and cumulative impacts of the project. The additional impacts that Petitioners assert should have been considered are not causally connected or directly linked to the project. THE RATE OF GROWTH ORDINANCE Monroe County adopted its Year 2010 Comprehensive Plan (the "Plan") to meet the requirements of Chapter 163, F.S. The Plan, adopted May 15, 1993, is unusual in that the County limits future growth based on a carrying capacity analysis of its hurricane evacuation clearance time. No other jurisdiction in Florida, and few others in the United States, have used a carrying capacity planning approach. To implement the carrying capacity limitation, Monroe County determined the total number of dwelling units that could be permitted while maintaining an acceptable hurricane evacuation clearance time of 24 hours. This number of dwelling units, less an allowance for vested development and development in municipalities, was the basis for a ROGO that was adopted by the County in 1992. The ROGO allocates the available units at a uniform annual rate of growth (currently, 255 units per year). The ROGO regulates all proposed new residential buildings, including hotels, motels, and other transient tourist accommodations as well as permanent residences. The number of building permits that Monroe County can issue is, at present, directly related to how rapidly the County can be evacuated in the event of a hurricane. The lower the clearance time, the greater the number of permits that can be issued. The Comprehensive Plan requires that the County be able to evacuate within a 24-hour period. As of March 7, 1995, the hurricane evacuation time for Monroe County was determined to be 21.25 hours.1 The project is expected to reduce by six or seven hours the modeled hurricane evacuation capacity for Monroe County, regardless of whether it consists of three or four lanes. This is because both the three lane and four lane plans provide for two northbound lanes. Because of the rate of growth provisions in county law, this reduction of clearance times results directly in an increase in the number of building permits that the county can issue annually. Under ROGO, Monroe County can, with this project, issue 255 permits each year through the year 2026. Without this project, Monroe County can issue 255 permits each year only through the year 2001. Alternatively, without this project, the county can issue 88 permits each year through the year 2010 if it chooses to issue permits over a longer period of time. Following extensive litigation before the Division of Administrative Hearings in an unrelated proceeding2, the Administration Commission entered a final order on December 12, 1995, that approved approximately 97 percent of the Plan. In addition, the Administration Commission has published a proposed rule to bring the remainder of the Plan into compliance and assure its financial feasibility. The central feature of the proposed rule is a five- year work program, with annual reviews by the Administration Commission. It is likely that the proposed rule will eventually result in the complete revision of the ROGO. The proposed rule provides that Monroe County's annual rate of growth be revised within five years, no later than December 31, 2001, "to establish a rate of growth and a set of development standards that ensure that any and all new development does not exceed the capacity of the county's environment and marine systems." A carrying capacity study will comprehensively assess water quality, habitat protection, and public facility issues to determine the capacity of the Keys to sustain further development. The proposed project is but one of many factors that will be considered in future rate of growth regulations. If the expected revisions occur, it would be speculative to predict what development would be allowed. While the studies are underway the rate of growth will remain at 255 units per year. The rate of growth will be reviewed annually, and may be reduced a minimum of 20% if the goals of the studies are not being met. The DCA has determined that Monroe County’s Comprehensive Plan and its land development regulations are sufficient to prevent or mitigate any potential adverse secondary impacts of the project caused by development. The DCA has consistently supported the proposed project, even in its earlier four-lane configuration, because it was consistent with Monroe County's 1986 Comprehensive Plan, and because the project would improve hurricane evacuation clearance times and improve water quality in the vicinity of the roadway. The 1986 plan supported widening of the roadway to four lanes based on projected travel demand. The DCA prefers the current, three-lane proposal to the earlier four-lane. On September 7, 1995, the Monroe County Commission adopted Resolution 315-1995 in support of the proposed project because "it balances the needs for a widened highway with safeguards designed to address secondary impacts." Lorenzo Aghemo, an expert in comprehensive planning, served as Monroe County Planning Director during the development of the Plan and ROGO. In Mr. Aghemo's opinion, the widening of the roadway to either three or four lanes would generate minimal growth pressure in Monroe County, particularly because the Plan limits the rate of growth. Because the Keys are designated by Section 380.0552, F.S., as an area of critical state concern, the DCA is charged with oversight of Monroe County's Comprehensive Plan, its LDRs, and all development that takes place in Monroe County. Additionally, the Administration Commission may amend Monroe County's plan or regulations by rule (See Section 380.0552(9), F.S.). There is virtually no action that Monroe County can take related to the use of land without review and approval of a state agency. The Administration Commission’s proposed rule demonstrates its intent to revise comprehensively Monroe County's ROGO within five years to ensure that future development does not exceed the capacity of the Keys' environmental resources. It also demonstrates the Administration Commission's intention to closely monitor growth and development in the Keys during the five-year study period. Some of the studies required by the proposed rule are already underway: 1) the DCA has entered into a contract with the ACOE to complete the environmental carrying capacity study; 2) the HRS study of advanced on-site waste water treatment systems is underway; 3) Monroe County is developing the required Marathon central sewer facilities plan; and 4) Monroe County and HRS have begun the cesspit identification and elimination process. Caution should be exercised in relying on this or on any other proposed rule. Likewise, caution should be exercised in relying on changes to ROGO that may or may not occur. It is likely that the present status of the law will be changed in the near future so that future development will be based on environmental carrying capacity as opposed to hurricane evacuation clearance times. However, for the purposes of this proceeding the District should accept the fact that the issuance of future building permits is closely linked and causally related to the project. Consequently, it is found that under the present status of the law, the issuance of additional building permits in Monroe County is closely linked or causally related to the project. MONROE COUNTY LDRS AND DCA OVERSIGHT Although Petitioners established that there is a causal relation between the project and the existing status of the law governing the number of building permits that can issued in the future, the evidence was insufficient to establish at a level above speculation that adverse environmental impacts will result because of the issuance of those building permits. The Monroe County Comprehensive Plan contains land development regulations that govern all development in Monroe County. These regulations are among the most stringent in the State and are designed to avoid or minimize adverse environmental impacts caused by development. All development orders in Monroe County are closely scrutinized by the Department of Community Affairs to ensure compliance with applicable permitting criteria. Those regulations and the DCA’s close scrutiny are intervening factors that break any causal relation between the project and the speculative adverse environmental impacts that the Petitioners assert will be caused by future issuance of building permits by Monroe County. Petitioners failed to establish that the impacts of future development are very closely linked or causally related to the project. Consequently, it is found that such impacts are not secondary or cumulative impacts of the project. DEVELOPMENT ALONG THE PROJECT CORRIDOR A major portion of the area next to the road has little or no development potential because it is either water, land in public ownership, or land slated for public ownership. The areas east of the road are mostly in private ownership, but are primarily submerged lands and mangrove areas. The Crocodile Lakes National Wildlife Refuge is federally owned and is managed by the U.S. Fish and Wildlife Service (USFWS). The Southern Glades lands, located immediately west of the project and Everglades National Park (ENP) in Dade County, have been acquired by the District and are managed by the Florida Game and Freshwater fish Commission (FGFWFC). The Model Lands Basin in Dade County is in private ownership but proposed for public acquisition in the future. The land adjoining the roadway in Dade County is designated as open area or environmentally sensitive. Almost half of the land along Monroe County's portion of the roadway is in public ownership. At least 90% of the land in private ownership is mangroves or wetlands that cannot be developed. The small area of uplands is currently being used by a resort marina which will not be allowed to develop further under the new comprehensive plan. There is very little potential for future development in the project area. The comprehensive plan designation for areas in Dade County are open space, and the ones in Monroe County have the conservation designation. The District's regulatory programs consider areas adjacent to the project as sensitive wetland habitats. Based on the District's regulatory authority and comprehensive plan designation for those lands, which would have to be obtained prior to obtaining a permit for development, it is very unlikely that those lands could be developed. Florida Rock and Sand Co. (FRS) has a permit to mine approximately 1,100 acres of wetlands. As part of its mitigation program, FRS will donate this land to the District once its mining and mitigation projects are complete. The FRS mitigation lands are preserved as a permit condition and will ultimately be transferred to the District. This land will not be developed. In addition, the District established that the U.S. 1 project and the FRS project do not constitute a cumulative impact that the District failed to consider. The evidence established that development along the project corridor will not be a secondary or cumulative impact of the project. IMPACTS ON CORAL REEF SYSTEM The evidence was insufficient to establish a close link or causal connection between the project and the coral reef system. As reflected elsewhere, it is found that there will be no degradation of ambient water quality as a result of the project. Therefore, there is no need to resolve the conflicting testimony as to the present status of the coral reef system. IMPACT ON KEY DEER There are no key deer in the project area. The nearest key deer habitat, Big Pine Key, is approximately 70 miles from the southern terminus of the project. The evidence is insufficient to establish that there is a very closely linked and causally related connection between the project and key deer mortality on Big Pine Key. GENERALIZED IMPACTS The Petitioners presented certain opinion testimony that the Keys cannot be developed in an environmentally sensitive manner because of potential adverse impacts of new development in Monroe County, or new boats operating in the waters of the Florida Keys. The credibility of that testimony need not be evaluated because the evidence was not sufficient to tie those generalized concerns into the specific regulatory criteria of the permitting agency. There was insufficient evidence to establish that those alleged impacts would be very closely linked or causally related to the proposed project. DAY TRIPPERS Induced demand is new travel that occurs solely because additional capacity is added to a highway. Petitioners' transportation experts, Michael Replogle and Robert Morris, testified that FDOT's traffic studies, and FDOT's projected rate of traffic growth of approximately 3 percent annually, are incorrect because the studies do not predict the amount of "induced demand" that would result from the proposed project. Petitioners assert that induced demand would generate an unknown number of people who drive to the Keys for the day from south Dade County, referred to as “day trippers,” will have an impact on the Keys that has not been evaluated. The assertion that this potential impact has not been analyzed is rejected as being contrary to the greater weight of the evidence. Induced demand is accounted for in Monroe County's Long Range Transportation Plan, which was never evaluated by Mr. Replogle or Mr. Morris. The Long Range Transportation Plan was prepared by an experienced traffic engineering consulting firm, Barton-Aschman, using an FDOT- approved traffic demand model, the FSUTMS model, that includes all traffic generators and attractors, and all travel on U.S. 1 on weekdays and weekends. The FSUTMS model does not restrict demand based on the existing road capacity. The model uses an "unrestrained assignment" that incorporates the total predicted trip generation on recreational facilities, hotels, and all other attractors. The Long Range Traffic Plan was used to develop the Monroe County Comprehensive Plan, which takes into consideration the projected increases in traffic and makes appropriate provisions for those increases. FDOT has provided reasonable assurances that it has properly projected the amount of traffic for the project corridor after the project is completed and that the projected increases have been appropriately addressed by Monroe County's Comprehensive Plan. MITIGATION - IN GENERAL For the reasons discussed above, it is found that there are no secondary or cumulative impacts that the District failed to consider. Petitioners also contend that the mitigation proposal is insufficient to offset the direct and secondary impacts recognized by the District. This is a large dredge and fill project that will permanently fill 149 acres of wetlands. The wetlands that will be adversely impacted by the project include OFWs that provide a great variety of functions and serve as habitat for fish and wildlife, including threatened and endangered species. The wetlands are unique and of high quality. Mitigation for direct, secondary and cumulative impacts was considered as part of the permit evaluation. In- kind mitigation is considered to be most effective, but out- of-kind mitigation may be offered by the applicant where it is impractical to conduct in-kind mitigation due to historic changes in the project area or sensitivity of the habitat type for which mitigation is offered. Such mitigation is also appropriate to address regional alteration of an ecosystem, such as the Everglades ecosystem alteration caused by the original roadway embankment. FDOT developed a conceptual mitigation plan that took into account project impacts on the freshwater, marine and estuarine components of the ecosystems involved, as well as the impacts on threatened and endangered species of wildlife which may be affected by the project. FDOT coordinated the plan's development with the National Parks Service, U.S. Fish and Wildlife Service, the Army Corps of Engineers, the National Marine Fisheries Service, the U.S. Environmental Protection Agency, the Dade County Department of Environmental Resources Management, the Florida Game and Fresh Water Fish Commission, and the Florida Department of Environmental Protection. The conceptual mitigation plan evolved as a result of project modifications and agency comments into what is now proposed as mitigation for the project. The current proposal is summarized in FDOT Exhibit 26, consisting of Attachment H to FDOT's SWM and WRM permit applications. The timing of their construction falls into two general categories: mitigation previously permitted and concurrent mitigation. UPFRONT MITIGATION Typically, mitigation is done concurrently with project construction rather than prior to permit issuance. Mitigation is often done afterwards because of construction timing constraints. Here, FDOT applied for and, in May 1994 received, permits to conduct mitigation prior to applying for the permits at issue, with the understanding that performance of these activities does not require the District to issue permits for the proposed projects. A total of 385.22 acres of mitigation has already been completed. The applicant received 203.02 mitigation credits from the District on May 12, 1994, for several mitigation projects that the applicant proposes to apply to the proposed U.S. 1 widening project provided it is approved. Table 2 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the up- front portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. The four mitigation activities already authorized are: enhancement of the wetland habitat in the Harrison Tract located adjacent to Barnes Sound within the Crocodile Lakes National Wildlife Refuge on the north end of Key Largo (70.37 acres credit for 252.6 acres of restoration); removal of the spoil mounds on the eastern bank of the C-111 canal east of U.S. 1 located on the District’s ROW (10.65 acres credit); the back filling of the C-109 canal levee located on the District ROW within the Southern Glades Save Our River project (112.7 acres credit); and the removal of the roadside spoil mounds on the west side of U.S. 1 located between C-111 and the Dade Work Camp Road within the District’s Southern Glades Save Our Rivers Project (9.30 acres credit). The mitigation projects pertaining to the roadside spoil removal along U.S. 1, the backfill of the C-109 Canal, and the removal of spoil along the C-111 Canal are similar projects because they each involve existing deep ditches cut through wetlands. When these deep ditches were cut, the spoil material from the ditch was deposited alongside the ditch. This resulted in areas that were previously Everglades wetlands becoming spoil, supporting the growth of exotic species and, for the most part, not exhibiting wetland functions. FDOT is proceeding with the backfilling the C-109 canal located between mile markers 122.5 and 117, and removal of the corresponding spoil mounds created during construction of the C-109 canal. In connection with this mitigation, marsh areas, tree islands and deep water aquatic refugia have been restored. In this area, there has been considerable attraction of wildlife subsequent to restoration, including otters, alligators, and turtles, which could not previously use the habitat because the canal was too deep. Upon completion waterflow between the east and the west will be restored, and the area will be restored to a wetland habitat from its current uplands habitat type. Backfilling of the C-109 canal is part of an interagency effort with the ACOE to restore as closely as possible to natural conditions the flow of water in the C-111 watershed area. C-111 mitigation includes removal of roadside spoil along the C-111 canal to restore the natural condition of the area. The mitigation was devised in coordination with the National Maine Fisheries Service (NMFS), which required mitigation for non-vegetated habitat types. Restoration also includes preserving some spoil areas as islands to maintain habitat for endangered species of plants. When the C-111 spoil mounds are scraped down, the fill will not fill the whole ditch. The ditch will, therefore, be a bit more valuable but will not be completely restored to its former elevation. FDOT will also remove roadside spoil along the west side of U.S. 1, upon which exotic species of plants had grown, and returning the area to its original grade. The Harrison Tract is a known habitat and nesting area for American crocodiles. Its wetlands functions were altered or eliminated by prior development of the land by its original owners. Restoration includes regrading the area to restore its original wetlands functions, including habitat for young and adult crocodiles. FDOT's mitigation of the Harrison Tract also includes restoration of tidal flushing to increase contributions of nutrients and food sources to the surrounding tidal bay system. Crocodiles have been observed using the restored areas. FDOT has installed additional nesting berm habitat, basking habitat and shallow lagoon habitat to promote juvenile crocodile development. The District established that the credit awarded for this mitigation and the conversion ratios utilized for determining this credit were consistent with agency practice and its pertinent rules. FDOT was given a 1:1 credit ratio for areas involving full restoration of wetlands. In other portions of the Harrison Tract mitigation involving restoration of flushing to existing wetlands, FDOT was given not full credit, but credit based on the severity of limitation of the existing wetland functions. Based on this evaluation, mitigation credits were given in a range of a 3:1 ratio for restoration of severely disrupted or non-existent wetlands to a 20:1 ration for restoration of higher quality but not fully functional wetlands. FDOT is being awarded 70 mitigation credits for the 252 acres in the Harrison Tract that are being restored or enhanced. CONCURRENT MITIGATION Based on the mitigation ratios developed by the District, additional mitigation credits were required. Consequently, the project contemplates mitigation that will be undertaken concurrently with the construction of the project in addition to the upfront mitigation. FDOT proposes to earn these additional credits by projects involving creation and/or restoration of emergent vegetation, mangrove and seagrass habitats. FDOT’s proposal to mitigate mangrove impacts with "out of kind" mitigation of emergent vegetation habitats was viewed by the District as being necessary and appropriate because there were no sufficiently large areas of mangrove habitat suitable for restoration. Table 7 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the concurrent portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. In addition, the table references certain credit for the placement of the hydrological culverts. As will be discussed later, that credit was withdrawn at the formal hearing. The four mitigation activities that will constitute the concurrent portion of the mitigation plan are: the removal of the Lake Surprise causeway (2.90 acres credit); the scrape down of the Jewfish Bridge approaches (0.67 acres credit); the restoration of the FGFWFC road (10.34 acres credit); and the Boca Chica project (27.17 acres credit) The Lake Surprise Causeway removal mitigation involves 5.26 acres of on-site seagrass restoration and 0.54 acres of unvegetated bottom mitigation through the excavation of 52,220 cubic yards of material. Lake Surprise historically was a shallow tidal lake supporting seagrasses before a causeway was built across the lake over the seagrasses. FDOT proposes to remove the causeway and restore the previous elevation, after which it is anticipated that seagrasses that grow on the east side of the causeway will fully recruit naturally to the excavated area. Removing the Lake Surprise Causeway will establish 5.26 acres of seagrass, for which FDOT received 2.63 acres of on-site mitigation credit based on a 2:1 ratio. Through natural recruitment after removal of the causeway, there is a high likelihood that the entire 5.26 acres will recolonize with seagrass. FDOT minimized the seagrass impacts to the greatest extent possible. The mitigation credit pertaining to Lake Surprise does not include credit for the removal of the causeway itself. This awarded credit is for the restoration of seagrass areas. The mitigation pertaining to the Jewfish Creek Bridge approaches proposes the scrape down of 1.33 acres of existing fill to allow the area to become recolonized with mangroves. Boca Chica is located in southern Monroe County over one hundred miles from the southern terminus of the project. This site was chosen by FDOT as a site for seagrass mitigation project after FDOT reviewed several other potential sites. Two other sites were rejected. The area around the C- 111 canal was rejected because the land proposed for use was in private ownership. Several defunct marinas in Port Bougainville were rejected due to poor conditions not conducive to seagrass growth. Boca Chica was finally chosen as the site because it was a large enough area with light and hydrological flow conditions conducive to seagrass growth. The evidence establishes that the Boca Chica site is the most viable for seagrass mitigation. The seagrasses to be impacted at Lake Surprise are healthy and productive turtle grass, manatee grass and cuban shoalgrass. Turtle grass is considered an extremely valuable “climax community” of seagrasses which hold sediments in place, cleanse water quality, and forms the base of the food chain. It is valuable to sea turtles, manatees and recreationally important fish and shellfish. The cuban shoalgrass that will colonize at Boca Chica is a pioneer colonizer species that grows in disturbed areas. It is not as valuable to the marine system as turtle grass. The Boca Chica seagrass mitigation permit condition proposed to offset impacts to 11.27 acres of seagrass. This will involve the removal of 306 cubic yards of sediment and hydraulically dredging approximately 1,175 cubic yards of spoil material. The proposed permit conditions state that FDOT shall provide future maintenance of the culvert areas to maintain adequate flushing. FDOT will plant 25.92 acres of seagrasses to mitigate for the remaining 8.64 acres of impacts, for a mitigation ratio of 3:1. In addition, 8.46 acres of seagrass will be planted to mitigate for the barren bottom area that will be affected, and 1.62 additional acres will be planted to compensate for any unexpected impacts to Boca Chica based on the necessary improvements. Overall, there will be of 36 acres of seagrass mitigation by FDOT, for which FDOT is receiving 27.17 acres credit. FDOT will also increase the water flow between the east and west lagoons of Boca Chica, and maintain the culverts connecting the two sides, in order to further promote growth of seagrass therein. FDOT is responsible for 80% survival of each acre of seagrass mitigation, as well as monitoring once a year for five years. Based on historical data obtained from Boca Chica during past mitigation efforts, there is a high likelihood that the entire 36 acres of mitigation will survive, and that the remaining 74 acres of the Boca Chica lagoons will experience natural recruitment of seagrass as a result of FDOT's efforts. The FGFWFC access area was built by excavating a ditch, and putting fill on the wetlands and creating a dirt road bed. After the C-109 canal is backfilled, the access road will no longer be needed. The mitigation project will excavate the existing road bed, back fill it into the ditch, thereby recreating the wetlands that were there previously. FDOT will receive 10.34 mitigation credits based on a 1:1 ratio of acres restored. EVALUATION OF MITIGATION There is no mitigation in this permit for any wetland impact beyond the direct loss of the specific 149 acres that will be dredged or filled. Mitigation was provided only for the direct, footprint impacts of the project. None of the up front mitigation involves the creation of wetlands, which entails converting areas that were not previously wetlands or open water and turning them into wetlands. It will likely take between 20 and 50 years for the mitigation areas to achieve full functional value required by the South Florida Water Management District mitigation permit. In the interim, there will be a net loss of wetland functional value. With time, the proposed mitigation has a high likelihood of success. Based on FDOT's past successes in mitigation of construction-related impacts, FDOT is able to comply with permit conditions relating to best management practices associated with the construction of bridges and pilings and turbidity screens around road construction, as well as restoration of seagrasses and mangroves. Petitioners assert that the District erred in determining the credit to be given for the up-front portion of the mitigation. While it is true that the SFWMD Rules do not mention "up-front" mitigation, the District has the authority to consider all aspects of a mitigation project in weighing its relative value. Consulting engineering inspectors have been retained by FDOT to insure that all permitting requirements are met during mitigation and construction, and that the technical special provisions for protection of threatened and endangered species are complied with by FDOT. The proposed permits contain appropriate conditions that require FDOT to monitor and maintain the mitigation areas. FDOT will be responsible in perpetuity for maintaining the tidal flushing connection at the Boca Chica mitigation site. Special permit condition 6 to the SWM and WRM staff reports require wetland and upland monitoring. If wetland and upland monitoring or other information demonstrate that additional adverse impacts have occurred due to this project, FDOT would be required to offset the loss of any additional wetland impacts. MITIGATION IS APPROPRIATE The evidence established that the mitigation projects were fairly and appropriately reviewed by SFWMD and that the mitigation credits were fairly and appropriately awarded. The evidence also established that there is appropriate mitigation for the direct, secondary, and cumulative impacts of this project. ACTIVITIES NOT RECEIVING MITIGATION CREDIT Mitigation credits for the 25 hydrologic culverts north of C-111 were originally included in the permit staff reports. Those mitigation credits were removed in an addendum to the staff reports, introduced as District's Exhibits 5 and 6. These credits were not necessary to offset project impacts. After the staff report was issued, they became a point of contention by the Petitioners because they will not be utilized until a management plan is developed. Since they were not necessary to meet mitigation requirements, the credits were removed from this project. These credits were never included in the mitigation ratios for these permit applications. The addendum removed the 9.6 credits initially contemplated for the culverts. No credit has been awarded for the relocation of threatened and endangered species of plants, such as Joewood and Bay Cedar by FDOT from the C-111, C-109 and roadside spoil mitigation areas. These species have been relocated to tree islands constructed by FDOT on the mitigation sites, or to other areas that would not be impacted by the project. FDOT also was not given mitigation credits for: (1) the wildlife crossings and the fencing that will funnel wildlife through these crossings; (2) installation of pipe culverts north of the C-111 canal and bridges and box culverts south of C-111; and which, in addition to providing a corridor for aquatic species, will increase the tidal flushing of the area; (3) the removal of the Lake Surprise Causeway, which will restore historical hydrological flow between the eastern and western sides of Lake Surprise; (4) FDOT's commitment to improve and maintain the flushing of the west lagoon culverts in Boca Chica (mitigation is in the east lagoon); and (5) FDOT's contribution of $300,000 to assist Monroe County in performing a carrying capacity study for the County. Additionally, FDOT will preserve the Jewfish Creek Bridge abutment, which will be preserved for local historical purposes. FDOT will prepare the Jewfish Creek Bridge pilings for an artificial reef at Long Key during construction. THE PUBLIC INTEREST TEST It is appropriate for the SWFMD to consider, in balancing the public interest test, to consider traffic safety and hurricane evacuation.3 Because of FDOT's expertise in those areas, it is appropriate for the permitting agency to give great weight to highway safety concerns, including hurricane evacuation, presented by FDOT. The application of the public interest test does not involve consideration of non-environmental factors other than those expressly set forth in the statutes such as navigation or preservation of historical or archaeological resources. Specifically, aesthetics, quality of life, the potential for a project to cause increased crime, and school overcrowding are not properly considered within any of the seven factors contained in Section 403.918(2)(a), Florida Statutes (1991). The District concluded that the project is clearly in the public interest based upon consideration and balancing of the following factors: hurricane evacuation improvements, public safety improvements, a SWM system where no SWM system currently exists; wildlife crossings and fencing north of the C-111 canal where no such crossings or fencing currently exist; wildlife box culverts to accommodate crocodiles, alligators, manatees and marine life where no such culverts currently exist; and hydrologic culverts, which have the potential to assist in the restoration of hydrologic flows, and the mitigation projects, both upfront and concurrent. SECTION 403.918(2)(a), FLORIDA STATUTES Section 403.918(2)(a), Florida Statutes, requires the permitting agency to determine “[w]hether the project will adversely affect the public health, safety, or welfare or the property of others." The property of others is not at issue. As discussed below, the evidence clearly established that the project will greatly enhance the safety of the road during normal operations and facilitate evacuation in the event of a hurricane. There will be clear benefits to the public safety as a result of this project. As part of the PD&E process, FDOT, through Metric, prepared "A Safety Evaluation" of the existing roadway. The safety analysis was based on FDOT accident statistics for the years 1983-1988, as well as engineering review of the conditions causing the accidents. Specifically, FDOT based their safety analysis on the following: 1) calculation of the abnormally high accident rate on the roadway based on the rate quality control formula set forth in the FDOT Highway Safety Improvement Guidelines, and approved by the Federal Highway Administration; 2) copies of the actual crash reports filed with the Florida Division of Highway Safety and Motor Vehicles, which provided detail greater than that generally available through FDOT's own accident data reports, and which formed the basis of the collision diagram in the Safety Evaluation (FDOT Exhibits 36; and 3) and its August 1996 update thereto (FDOT Exhibit 41), on-site evaluation and review of the roadway to determine geometrics of the roadway, locations of driveway accesses and side roadways and the degrees at which roadways intersected. Metric prepared an update of the Safety Evaluation for the years 1989-1994, to determine the continuing validity of the Safety Evaluation, as well as to review alternative proposals to the original proposed roadway configuration. In preparing the update, the recent accident data (FDOT Exhibit 37) and the underlying research in the Safety Evaluation were used by Metric Engineering in reaching its conclusions. The Safety Evaluation performed by Metric in 1989 established high accident rates on the roadway based on a detailed segmental analysis of the roadway. In August of 1996, the Safety Evaluation was updated by Metric, which update confirmed the findings of the Safety Evaluation, and further stated that accident frequency on the Monroe County portion of the roadway exceeded the state average accident rate and the abnormally high accident rate for the years 1990 through 1994 (notwithstanding the rear-end accidents occurring at Jewfish Creek). Fatal accidents on the Dade County portion exceed the state average on the same stretch by 37 percent for the same years. The most severe accidents occur on the Dade County portion. The Monroe County portion of the roadway exceeds the statewide average in the abnormally high accident rate four out of the last five years that FDOT studied. The Dade County portion does not exceed the accident frequency or the number of accidents, but the fatality rate in Dade County is much higher than the state average. Presently an abnormally high accident rate exists in three locations along the project corridor, two of which are in the vicinity of the Jewfish Creek bridge. The third location is north of the bridge on Cross Key. Replacing the Jewfish Creek Bridge with the fixed-height bridge proposed by FDOT will substantially increase the safety on the project corridor. The District considered this to be an important positive element in the public interest balancing test. The existing 2:1 slopes of the roadway make it difficult for drivers to recover from running off the roadway, resulting in a greater frequency of this type of accident. Moreover, the existing clear zone is not large enough to overcome the 2:1 slope to allow safe recovery of errant vehicles. As a result, catastrophic crashes occur rather than safe recoveries. Also, as with hurricane evacuation discussed in the following section, actual accidents on the roadway prevent traffic from accessing or leaving the Keys, and also prevent emergency vehicles from rapidly accessing the Keys and a crash site. This occurs because there is little or no shoulder or clear zone along the sides of the road to allow emergency vehicles to efficiently access an accident site, and in the event of a severe, head-on type collision, the roadway is blocked off. U.S. 1 through the project corridor is regarded as so unsafe for travel that Monroe County law enforcement officials call it "death alley." There are many head-on collisions due to the two-lane, no-median alignment. Law enforcement is difficult and dangerous along the roadway, because it has very few areas wide enough to allow law enforcement officials to detain driving violators. It is also very dangerous, for the same reasons, for a driver to pull off the roadway with a broken-down vehicle. High rates of speed and impaired drivers contribute to the accident rates along the project corridor. The efforts of law enforcement to control speeders and drunk drivers is impeded since it is practically impossible for enforcement officers to turn their vehicles around to pursue violators without running a high risk of causing an accident on their own. The project would significantly improve safety on the roadway by reversing the problems identified in the this section, as well as the previous sections of this Recommended Order. The project would virtually eliminate head-on collisions which largely contribute to serious injuries and fatalities along the roadway. The project would also help eliminate problems with emergency vehicle access to accident sites and restoration of service in the event of accidents, and would increase the roadway's level of service as discussed below. Improved level of service was an additional need considered by FDOT during the PD&E process. While the District did not consider the traffic level of service by itself to be weighted as part of the positive public interest criteria in this project, the impacts of resulting congestion are relevant to the public interest consideration of traffic safety as discussed in the foregoing sections. Lower quality level of service, as presently exists on the roadway through level of service F, adversely affects the safety of the roadway. When traffic levels rise, driver frustration increases leading to drivers passing in no-passing zones and potentially resulting in head-on collisions and high-severity accidents. Additionally, due to the narrow shoulders of the existing roadway, accident vehicles pose a threat to and impede normal traffic flow on the roadway. The Highway Capacity Manual set the standards for traffic engineering and is used in all fifty states. The manual classifies the existing roadway as a two-lane arterial rural road. Applying the standards for measuring level of service for two-lane rural roads set forth in the Highway Capacity Manual, FDOT determined that the existing level of service on the roadway is E, which is a very poor level of service that does not meet the established standard of level of service C required by the Highway Capacity Manual. Monroe County uses a speed based method of calculating level of service. Using that method, the level of service for U.S. 1 is at an acceptable level. The parties disagree as to which method of calculating the level of service is appropriate. That conflict is resolved by finding that the method used by FDOT is the appropriate method because of its wide acceptance and long-term use. Traffic volume in the area of the southern terminus of the project is growing at a rate average annual rate of 3.07 percent. In the present condition of the roadway, level of service will degrade to F, or forced-flow conditions, by the year 2006. Even with the improvements proposed by FDOT, the level of service in the northbound direction would improve to level of service B, but the level of service in the southbound direction would remain at level of service D or E due to the single southbound land configuration. Hurricanes pose a serious threat to the safety and welfare of residents and visitors of the Keys. Monroe County is the most vulnerable hurricane-prone area in the United States because it is surrounded by tropical waters, land elevation is low throughout the islands, and the evacuation routes are limited to U.S. 1, an extended route that starts in Key West and runs to the mainland, and Card Sound Road. The greatest potential for loss of life during a hurricane in the Keys is from storm surge. Storm surge is a dome of water near the center of a hurricane which is created by the winds on the water's surface. In a category 3, 4 or 5 storm, the entire land mass in the path of the storm will be inundated. Because of the wind and storm surge associated with hurricanes, the best response to a hurricane warning in the Keys is to evacuate people to the mainland away from the water and the storm surge threat. Accordingly, Monroe County orders a mandatory evacuation in a category 3, 4, or 5 hurricane, and no shelters are opened. There is little or no disagreement as to the vulnerability of the Keys to hurricanes or as to the danger posed by a hurricane. There is disagreement as to whether the proposed project is needed for improved hurricane evacuation. The conflicting evidence in this regard is resolved by the following findings, which are based on the more credible, substantial evidence. The existing road does not have sufficient hurricane evacuation capacity to meet the present and projected future needs of Monroe County residents and visitors. In current hurricane evacuations, the two northbound lanes on U.S. 1 between mile marker 90 and 106 are split at Key Largo. Sixty percent of the traffic is directed up the northbound lane of U.S. 1; forty percent of the traffic is diverted onto the northbound lane of Card Sound Road. One southbound lane of U.S. 1 and Card Sound Road must remain open for emergency vehicles to reach an accident or a disabled vehicle, or to bring emergency supplies into the Keys. Improving the roadway is critical to the success of Monroe County's hurricane evacuation plan. FDOT relied on hurricane evacuation and needs modeling performed by Monroe County and the ACOE to confirm the need for improvements. All of the models used indicated that the project corridor is the controlling roadway segment for improving hurricane evacuation of the Keys. Additionally, FDOT relied on the Lewis Report of January 15, 1993, a study commissioned by the Governor of Florida. Recommendation No. 17 of the Lewis report recommends that FDOT expedite the design and construction of the project, which is viewed as being critical for increasing the rate of emergency evacuation. Dr. Robert Sheets, former director of the National Hurricane Center, testified that the failure to make improvements to the roadway would be "unconscionable." Dr. Sheets and Billy Wagner, the Director of Emergency Management for Monroe County, presented very compelling and very persuasive testimony that this project is essential for hurricane evacuation purposes. The proposed project is the minimum transportation improvement that will achieve a significant improvement in evacuation safety and clearance time. With the present two- lane configuration and narrow shoulders, evacuating traffic would be halted completely by a vehicle breakdown or an accident blocking one lane. Replacement of the Jewfish Creek Bridge will also facilitate the hurricane evacuation need for the project. In addition to improving the rate of evacuation, the project will make an evacuation safer. Emergency personnel cannot reach accidents on the roadway during an evacuation because, in certain segments, no roadbed exists adjacent to the northbound lane. A second northbound lane and wider road shoulders would enable disabled vehicles to be serviced and removed from the highway. The proposed changes to the road would improve emergency vehicles' access to an accident scene. The elevation of the roadway at Lake Surprise is so low that it can be flooded easily by a storm. The proposed project would replace the existing muck bed of the roadway with more stable material. The existing roadway is subject to settling and washout during storm events, which reduce the safety of the roadway itself and reduce the evacuation capacity of the roadway. If washout occurs, moving equipment to the islands for recovery efforts following a hurricane will be difficult or impossible. The proposed project will prevent erosion and reduce the effects of storm surge and wave action on the road during a hurricane. When the project has been completed, three lanes of evacuating traffic, two lanes from U. S. 1 and a third from Card Sound Road, will converge at Florida City. Representatives of FDOT, the Monroe County Sheriff's Department, the Florida Department of Law Enforcement and Monroe County Emergency Management have planned to manage the northbound traffic when it reaches Florida City during an evacuation. Several feasible alternatives exist, but additional planning is needed to prevent a monumental bottleneck at the northern terminus of the project. While it is clear that this project will not resolve all problems that exist as to hurricane evacuation, it is also clear that this project is essential to improve hurricane evacuation. SECTION 403.918(2)(a)2, FLORIDA STATUTES Section 403.918(2)(a)2, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats.” The District considered the effect of the direct loss of dredging and filling 149.07 acres of wetland. As set forth in previous sections, it is found that this loss will be offset by the mitigation. For use during construction of the project, FDOT will adhere to technical special provisions and special permit conditions 9 through 13 to protect manatees, crocodiles, alligators, indigo snakes, marine turtles, and valuable trees, palms and other wildlife, to minimize or preclude any impacts to those species. Additionally, any osprey nests around the Jewfish Creek Bridge area at the time of construction will be relocated by FDOT if necessary. As part of the development of the FEIS, as required by the Federal Highway Administration under the National Environmental Protection Act, FDOT obtained official letters of concurrence from the USFWS and NMFS that the project would cause no adverse impacts to endangered species under section 7 of the Endangered Species Act. That process also established the project's consistency with Florida Coastal Zone Management Program, as determined by the State Clearinghouse within the Office of the Governor, in coordination with DEP, the Department of National Resources and FGFWFC. The project also contains provisions to impact positively or enhance the conservation of fish and wildlife, including threatened or endangered species and their habitat, as described below. These were positive factors that further helped neutralize and offset the 149.07 acres of direct impacts. In addition, FDOT is required to evaluate the effectiveness of the fencing along the entire project corridor, discussed below, and report to the District on that effectiveness. If the District determines that the fencing could be more effective, it may require FDOT to implement those suggestions. South of the C-111 canal, construction of box culverts and bridges addresses impacts to the American crocodile, a listed endangered species. Problems were identified with placement of existing culverts, which did not provide enough clear space and which caused the crocodile to cross over the roadway rather than through the culvert. To address this problem, 15 larger box culverts and three bridges will be placed within the roadway. These provide the necessary clear space to allow the crocodile to safely pass under rather than over the road. The location of the box culverts was chosen by reviewing crocodile mortalities associated with road crossings. Placement of these box culverts and bridges will also improve the hydrological flow of water within the project area, provide a crossing area for manatees, and allow greater dispersal of the crocodile population throughout Florida Bay. Species expected to use these box culverts include aquatic and aquatic water dependent species in the area. They were primarily targeted for crocodiles, alligators, and manatees, but certain fishes, turtles, frogs and other species in the wetlands along the project corridor will utilize the culverts. The box culverts will have 100 feet of wingback fencing extending north and south of each culvert. The intent of the wingback fencing is to funnel wildlife into the box culverts. Intermittent or wingback fencing is appropriate south of the C-111 canal for two primary reasons. First, the animals which will be guided into the box culverts are aquatic dependent. The area south of the C-111 canal is primarily water, washed mangrove areas and tidal creeks. Crocodiles tend to move in tidal creeks. Second, it was not possible to ensure continuous fencing along all portions of the project south of the C-111 canal because there are existing businesses. It could not be assured that these businesses would keep a gate closed. The project originally proposed continuous fencing alongside the road where it abuts ENP. Continuous fencing was initially proposed because the initial application included a solid concrete barrier down the median of the road. If a crocodile did enter the road from the side with discontinuous fencing, after crossing one lane the crocodile would hit the barrier, but then easily find its way back to the area it came from. However, the project was later modified to include a tri-beam barrier because it lessens the footprint of the project and thereby lessens the wetland impact. Since the current application does not include a continuous barrier down the middle of the road, if a crocodile enters the road it would cross the tri-beam barrier, go across another lane of roadway before hitting a continuous fence. The animal would then run up and down that fence with nowhere to go except back across the road again. This would increase their exposure to a road kill. With the installation of bridges and culverts along the southern portions of the project corridor, there is no need for continuous fencing because aquatic wildlife, such as the American crocodile, will tend to follow the flow of water through the culverts rather than climb over the roadway. The FGFWFC and ENP oppose continuous fencing and prefer intermittent fencing south of C-111 canal since the project now includes a tri-beam barrier. Positive benefits also include construction of panther crossings at four locations north of the C-111 canal to account for impacts to the Florida panther, a listed endangered species, in the vicinity of the project, along with continuous fencing on both sides of the road north of the C- 111 canal. The crossings will be placed at locations that show historical use by wildlife, including areas at the Dade County Correctional Institute access roadway, the water control structure on the C-109 canal, and the berm of the C- 111 canal. The wildlife crossings are indicated by blue dots on FDOT's Exhibit 1. FDOT underwent years of extensive coordination with the environmental regulatory and resource agencies to design a project that would accommodate their ecosystem management plans. The location of the wildlife crossings was based upon radio telemetry data, collected from radio-collared panthers, and their typical corridor movement. The location was further chosen based on input from the USFWS and the FGFWFC. The continuous fencing north of the C-111 canal will prevent wildlife from crossing the road, and instead force them to use the wildlife crossings. The crossings were designed for panther use, the panthers being the shyest animal in the area. If panthers can be accommodated, then other threatened and endangered species and other wildlife are expected to use them. DOT studies of the effectiveness of wildlife crossings, with fencing, including crossings installed on Alligator Alley, establish that wildlife will use the crossings, both singly and in groups, and that the crossings substantially reduce, if not eliminate, automobile- related mortality of wildlife. Documented wildlife include panthers, wild turkeys, wading birds, alligators, deer, bobcats, black bears and raccoons. SECTION 403.918(2)(a)3, FLORIDA STATUES Section 403.918(2)(a)3, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling.” The replacement of the bascule bridge at Jewfish Creek with a 65-foot high fixed-height bridge will be a benefit to navigation. Because Jewfish Creek is part of the intracoastal waterway, the existing bridge has to be frequently raised or lowered to accommodate marine traffic. Because of the age of the existing structure, frequent breakdowns have been experienced. Marine traffic is stopped or delayed if the bridge cannot be raised or if there is a delay in raising the bridge. Vehicular traffic is stopped while the bridge is raised. Regarding the flow of water, the project incorporates wildlife box culverts and bridges, which will improve tidal flushing and the flow of water south of the C- 111 canal. The District considered this to be a positive consideration under the public interest test. The 25 hydrologic culverts north of the C-111 canal were also a positive factor in the test because the culverts provide future water management capability. Erosion and shoaling are neutral factors in the public interest test because the permit conditions contain a plan to control erosion and shoaling during construction and to provide for road stabilization after construction. In addition, there is a positive factor regarding shoaling in that the roadway area now has a lot of storm action, causing problems with erosion on the side of the road. The project provides for road stabilization, which is a neutral to positive factor in the public interest test. SECTION 403.918(2)(a)4, FLORIDA STATUTES Section 403.918(2)(a)4, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the fishing or recreational values or marine productivity of the project.” A positive factor pertaining to marine productivity is the box culverts and bridges south of C-111, which will allow marine species to travel beneath the road to access the water on both sides of the road. Removal of the causeway along Lake Surprise opens that water body back up to one contiguous system, which is also a positive factor. The seagrass mitigation addressed in previous sections will also improve marine productivity and provide habitat for fish. SECTION 403.918(2)(a)5, FLORIDA STATUTES Section 403.918(2)(a)5, Florida Statutes, requires the permitting agency to consider “[w]hether the project will be of a temporary or permanent nature.” The project is permanent, though some construction impacts are temporary in nature. Once temporary impacts have ended and the project is complete, the project will be a positive benefit, because of the construction of the SWM system, culverts, animal underpasses and other benefits as set forth above. SECTION 403.918(2)(a)6, FLORIDA STATUTES Section 403.918(2)(a)6, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061.” This factor is not at issue. SECTION 403.918(2)(a)7, FLORIDA STATUTES Section 403.918(2)(a)7, Florida Statutes, requires the permitting agency to consider “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity.” A percentage of wetlands immediately adjacent to the road are impacted by exotic vegetation. Areas further out are part of a significant wetland ecosystem and are considered high quality. This project contains an exotic control program within FDOT's right of way, which is a positive consideration in the public interest test. Wetlands are currently receiving untreated storm water, which runs off the road immediately into the adjacent wetlands and water bodies without treatment. The project will include a SWM system where none currently exists as is detailed in the previous sections. This is a positive factor in the public interest test. The direct impacts of the project on 149 acres of wetlands alongside the roadway is not as large or significant as the impact caused by placement of the original embankment and resulting cut off of the eastern and western portions of the Everglades north of the C-111 canal. Overall, the concurrent and upfront mitigation efforts of FDOT are of regional significance and benefit to Everglades ecosystem by helping to repair the damage caused by the original embankment. THE PROJECT IS CLEARLY IN THE PUBLIC INTEREST The District appropriately weighed all considerations in determining that the project is clearly in the public interest. The greater weight of the competent, credible evidence established that the project is clearly in the public interest. RIGHT OF WAY PERMIT APPLICATION The land encompassed by the ROW permit has been properly adopted as a "work" of the District, requiring District authorization via a ROW Permit Modification to FDOT. The District's real property interest in the C-111 ROW applicable to the ROW permit modification consists of both fee simple and easement interests. The evidence is clear that DOT's application for the permit modification was thoroughly reviewed by the District, consistent with the District's established ROW permit review process. The District presented uncontroverted evidence and expert testimony to establish by a preponderance of the evidence that issuance of the permit modification to FDOT is consistent with all applicable District statutes, rules and other criteria, including the District's conditions for issuance of ROW Permits set forth in Rule 40E-6.301, F.A.C. FBII offered no evidence or testimony to the contrary. FUTURE MODIFICATIONS Modifying the project at a later date to pave a second southbound lane would require a District ERP permit. The addition of impervious surface triggers the District's SWM jurisdiction in this regard. However, FDOT established that that it had no current plans for further widening. The permit conditions require secondary and cumulative impacts associated with the increased capacity be addressed in accordance with the rules and criteria in effect at the time of any application for future widening. In addition, the permits require that FDOT must comply with any more stringent water quality criteria in effect at the time of any future widening. MODIFICATIONS AT THE FINAL HEARING At the Final Hearing, the District issued an Addendum to Staff Report for each of the SWM and WRM permits. The amendments made non-substantive changes to the District's staff reports regarding fencing along the roadway, performance of a study of fencing on the roadway by FDOT, water quality sampling along the roadway, assignment of mitigation credits, and other technical changes in wording for purposes of clarification. The changes set forth in the District's Exhibits 5 and 6 do not create impacts to the environment beyond those addressed elsewhere herein.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order that issues the three permits challenged in this proceeding (SWM Permit No. 940606-10, WRM Permit No. 9460606-2-D, and ROW Permit No. 2584) subject to the conditions contained in the staff reports on the SWM permit application and the WRM permit application and subject to the additional permit conditions reflected by District Exhibits 5 and 6 and by the Findings of Fact pertaining to the permit for the relocation of the FKAA pipe. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Leon County, Florida. ___________________________________ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 11th day of April, 1997.
