Findings Of Fact Application No. 75-00196 is a request by the Standard Sand and Silica Company, for a consumptive water use permit. This application is for an existing use involving withdrawal from one well. The application seeks an average daily withdrawal of 1.6925 million gallons per day and a maximum daily withdrawal of 2.16 million gallons per day. The sought-for withdrawal will not exceed the water crop as defined by the district, with the withdrawal consumptively using only 35 percent of the water crop. The water will be used on site for the washing of sand. Mr. Clifton W. Golden is an adjacent landowner who testified that he was afraid of salt water intrusion and that a sink hole might develop because of the vast quantities of water taken from the aquifer by the applicant. He does not feel that the issuance of a permit would be consistent with the public interest. He presented no hydrological data showing that issuance of the permit would adversely affect his property. Mary Fausteen Thompson is a property owner adjacent to the site from which the water will be taken. She has had problems in the past with Standard Sand and Silica Company apparently discharging excess water on to her property. She thinks those problems may be occurring again, causing some of her property to be flooded. The sought-for consumptive use will not significantly induce salt water intrusion. Except as otherwise noted in the findings of fact, none of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., will be violated. Several letters of objections have been received in addition to the objectors noted above. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: That no off-site runoff be permitted by the applicant. That flowmeters be placed on the well and quarterly reports made to the district.
Recommendation It is hereby RECOMMENDED that Application No. 75-00196 be granted with the conditions set forth in paragraph 7 above. ENTERED this 28th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Eugene W. Harris Standard Sand and Silica Co. P.O. Box 35 Davenport, Florida 33837 Mrs. Mary Fausteen Thompson Box 82-C, Evans Road Polk City, Florida Mr. Clifton W. Golden 800 Oriole Drive Virginia Beach, Florida 23451 Mr. John C. Jones Executive Director Florida Wildlife Federation 4080 North Haverhill Road West Palm Beach, Florida 33407
The Issue The issues are whether the proposed amendment to Rule 40E- 2.041(1), Florida Administrative Code, exceeds the agency's grant of rulemaking authority; enlarges, modifies, or contravenes the specific law implemented; or is vague, fails to establish adequate standards for agency discretion, and vests unbridled discretion in the agency.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Osceola Fish Farmers Association, Inc. (OFFA), is a non-profit corporation whose members consist of tropical fish farmers in Osceola County, Florida. The parties have stipulated that OFFA has standing to bring this action. Respondent, South Florida Water Management District (District or Respondent), is a public corporation operating pursuant to Chapter 373, Florida Statutes, with its principal office in West Palm Beach, Florida. Among other things, the District has the authority to regulate the uses of water within its geographic boundaries, including Osceola County. On an undisclosed date, the District began test drawdowns (a lowering of the elevation of the water through control structures) in the Alligator Chain of Lakes just east of St. Cloud in Osceola County, where OFFA's members are engaged in tropical fish farming. The drawdowns were undertaken for the purpose of allowing the Florida Fish and Wildlife Conservation Commission (FFWCC) to conduct demucking activities in the lakes to enhance aquatic habitat. Prior to beginning work, the FFWCC obtained an Environmental Resource Permit from the Department of Environmental Protection (DEP). However, the District did not require either itself or the FFWCC to obtain a consumptive use permit on the theory that a lake drawdown for demucking activities was not a consumptive use and therefore did not require a permit. In an effort to halt future scheduled drawdowns, OFFA participated in a United States Army Corps of Engineers proceeding which culminated in the preparation of an Economic Impact Statement for FFWCC's drawdowns; filed a complaint with DEP under Section 373.219(2), Florida Statutes, alleging that an unlawful consumptive use (without a permit) was taking place (which complaint was found to be insufficient); filed an action for injunctive relief in circuit court under Section 403.412, Florida Statutes (which was dismissed or dropped for undisclosed reasons); and finally initiated a proceeding against the District under Section 120.56(4), Florida Statutes, alleging that the District had adopted "an incipient non-rule policy of exempting lake 'drawdowns' from water use permitting requirements" (DOAH Case No. 00-3615RU). To avoid the consequences of an adverse ruling in the latter action, the District began rulemaking proceedings to adopt an amendment to Rule 40E-2.041(1), Florida Administrative Code, to codify its policy relative to lake drawdowns. As amended, the rule reads as follows: Unless expressly exempt by law or District rule, a water use permit must be obtained from the District prior to any use or withdrawal of water. The drawdown of lakes for environmental, recreational, or flood control purposes is not regulated by Chapter 40E-2 or 40E-20, F.A.C. (Underscored language represents amended language). Petitioner has challenged only the amendment, and not the existing rule. The effect of the rule is obvious - a lake drawdown for one of the three stated purposes in the rule will not require a permit, while all other lake drawdowns will. As specific authority for the proposed amendment, the District cites Sections 373.044 and 373.113, Florida Statutes. The former statute authorizes the District to "adopt rules pursuant to [Chapter 120] to implement the provisions of this chapter," while the latter statute authorizes it to "adopt rules pursuant to [Chapter 120] to implement the provisions of law conferring powers or duties upon it." The District has cited Sections 373.103(1), 373.219, and 373.244, Florida Statutes, as the specific laws being implemented. The first statute provides that if specifically authorized by DEP, the District has the authority to "administer and enforce all provisions of this chapter, including the permit systems established in parts II, III, and IV of [Chapter 373], consistent with the water implementation rule"; the second statute provides in relevant part that the District may "require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area"; and the third statute provides for the issuance of temporary permits while a permit application is pending. In regulating the uses of water within its boundaries, the District administers a comprehensive consumptive water use permit program under Part II, Chapter 373, Florida Statutes. Both parties agree that under Section 373.219(1), Florida Statutes (2000), all "consumptive uses" of water require a permit, except for the "domestic consumption of water by individual users," which use is specifically exempted by the same statute. The global requirement for permits is also found in Rule 40E-2.041 (the rule being amended), as well as Rule 40E- 1.602(1), which provides in relevant part that unless expressly exempted by statute or rule, "[a] water use individual or general permit pursuant to Chapters 40E-2 or 40E-20, F.A.C., must be obtained prior to use or withdrawal of water " The term "consumptive uses" is not defined by statute, but the District has promulgated a rule defining that term. By Rule 40E-2.091, Florida Administrative Code, the District has adopted by reference a document known as the "Basis for Review for Water Use Permit Applications with the South Florida Water Management District." Section 1.8 of that document contains definitions of various terms used in the permitting program, including "consumptive use," which is defined as "[a]ny use of water which reduces the supply from which it is withdrawn or diverted." The District's policy for lake drawdowns, as proposed in the rule amendment, is inconsistent with this definition. On this disputed issue, Petitioner's evidence is accepted as being the most persuasive, and it is found that a lake drawdown for any purpose is a consumptive use of water. Section 373.219(1), cited as a specific law being implemented, provides that the District "may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure such use is consistent with the overall objectives of the district and department and is not harmful to the water resources of the area." The District construes this language as authorizing it to decide which uses of water are a "consumptive use," and which are not, and to implement a rule which codifies those decisions relative to lake drawdowns. Not surprisingly, Petitioner views the statute in a different manner and argues that the statute simply allows the District to create a permit program that is consistent with Chapter 373; that under the law a permit is required for all consumptive uses, including lake drawdowns; and that the District has no authority to carve out an exception for a lake drawdown from the permitting process, no matter what the purpose. As noted above, the District has identified three instances (for environmental, recreational, and flood control purposes) when a lake drawdown does not require a consumptive use permit. These terms are not so vague that a person of common intelligence would have difficulty understanding them. However, the proposed rule contains no prescribed standards to guide the District in its administration of the rule.
Findings Of Fact Based upon the above testimony and the exhibits received into evidence in this cause, the undersigned Hearing Officer makes the following findings of fact with regard to the issue in dispute: The applicants, as owners and lessees of 3,300 acres of land to be used for sugar cane production, propose to install a surface water management system consisting of levees, ditches, culverts, and pumps for drainage and irrigation purposes. Irrigation will be drawn from and drainage water will be discharged into Canal 51, a project works of the FCD. There is no dispute between the applicant and the FCD staff concerning the permit for water use and connection to C-51. The applicant proposes to discharge, via two 30,000 gallon per minute pumps, one inch per acre per day or 62,239 gallons per minute into C-51. The soils on the applicants' land are primarily muck types which are high in organic nitrogen. A water level of three feet below ground level, as proposed, will probably cause such nitrogen in the muck soil to decompose, resulting in soil subsidence and production of inorganic nitrogen. Nutrients (primarily nitrogen and phosphorus) resulting from muck decomposition and crop fertilization may enter the water in the interior canals and cause such water to have a higher nutrient content. The water in Canal 51 now has low concentrations of nutrients, as compared with the waters in canals appurtenant to other sugar cane producing areas. There appear to be unique hydrological conditions on the land in question which may keep the drainage system flushed and nitrate-free and there is evidence that sawgrass areas act as an effective nutrient filter. There was no evidence that additional nutrients entering C-51 would be environmentally harmful or degrading to the waters in C-51, both parties admitting that further research and scientific data is needed to determine the safe level of nutrients in this area. The applicants and other interested groups have shown that the construction. and operation of a retention or impoundment area would cause an adverse economic impact upon landowners and would have an adverse economic effect upon consumers, the general labor force and the community. The FCD has not adequately demonstrated that the waters of C-51 would be degraded by the applicants' proposed project or that a 140 acre impoundment area would be a reasonable condition to impose upon the issuance of the permits in question. A water quality monitoring system, such as proposed in the original and revised staff reports, will permit the parties to determine whether the water in C-51 is being degraded by the addition of nutrients.
Recommendation Based upon the above cited testimony, evidence, findings of fact and conclusions off law, the following recommendations are made: It is recommended that a water use permit, a Surface water management permit and a right-of-way occupancy permit be issued, all in accordance with the recommendations and conditions set forth in the original Staff Report dated August 5, 1975, attached hereto as Exhibit A. It is recommended that the additional requirement of a 140-acre retention area set forth in the Revised Staff Report be rejected. It is further recommended that an additional condition be attached to the surface water management permit. That condition would be to have such permit expire at the same time as the water use permit; to wit: July 15, 1977, so as to allow the FCD and the applicants sufficient time to collect further data on the effect of nutrients on the waters of C-51 and compare said data with the information derived from the monitoring program required under the permits. If such data and comparisons sufficiently demonstrate that the waters of C-51 will be degraded by the applicants' project, a retention area requirement would then be a reasonable condition to the reissuance of a permit. Respectfully submitted and entered this 20th 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: George H. Bailey, Esquire JONES, PAINE & FOSTER, P.A. 601 Flagler Drive Court Post Office Drawer E West Palm Beach, Florida 33402 John Wheeler, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the District enter a Final Order denying the City's petition for a variance from the established lawn and landscape irrigation restrictions imposed under the District's Governing Board Order 92-12, as amended. RECOMMENDED this 31st day of May, 1994, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7161 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, City of Bradenton 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(7); 2(10); 3(12); 4(11); 6(13); 8-9(3); 12(15a); 16(3); 17(37); 19(38); 23-24(39); 48(40); 49(44); 50,51(42), 53-65(42), 67-70(42); 71(41); 72(42); 76(15a); 77-78(15b); 81- 82(15c); 84(15a); 101(17); 107-119(20-21); 120-126(22-27); 127-131(28); 132- 139(29); 140(25-28); 141(20-24); 142(23-24); 143(47); and 145-146(41). 2. Proposed findings of fact 5, 10, 11, 13-15, 18, 20-22, 25-32, 35-47, 52, 66, 73-75, 79, 80, 83, 85, 87-95, 97, 99, and 102-106 are either immaterial, irrelevant, subordinate or unnecessary. Proposed finding of fact 7 is covered in the Preliminary Statement. Proposed findings of fact 33, 34, 86, 96, 98, and 100 are not supported by competent substantial evidence in the record. Respondent, Southwest Florida Water Management District The following proposed finding(s) of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding of fact: 1(7); 2(9); 3(7,8); 4(10,12); 5(4); 6(15); 7-8(6); 9(18); 10(17); 11-12(19); 13(20); 14(21); 16(22,23); 17(23,24); 18(25); 19(26); 20(27); 21-22(28); 24(47); 25(46); 26(29); 27(29); 28(30,35); 29-31(31); 32(45); 33(32); 34(33); 35(34); 36(36); 37(37,39); 38(40); 39(41); 40(43); 41(42); 42(43); and 43(44). Proposed findings of fact 15, 23 and 44 are not supported by competent substantial evidence in the record. COPIES FURNISHED: Barbara B. Levin, Esquire Davis, Persson, Smith & Darnell 2033 Main Street, Suite 406 Sarasota, Florida 34237 William Lisch, Esquire 519 13th Street West Bradenton, Florida 34205 James A. Robinson, Esquire Mark F. Lapp, Esquire Southwest Florid Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact This application is a request for a consumptive use permit for two wells located in Pasco County, Florida, within the Pithlachascotee Basin. The subject wells are also located in that area wherein the Board of Governors of the Southwest Florida Water Management District declared a water shortage in Order No. 76-3D, Southwest Florida Water Management District. The application seeks an average daily withdrawal of 95,000 gallons with a maximum daily withdrawal of 360,000 gallons. The use of this water is for public supply involving effluent disposal by on-site percolation and ponding. This-use was existing prior to January 1, 1975 with am average daily withdrawal for 1974 of 74,000 gallons. The testimony presented by staff members of the Southwest Florida Water Management District establishes that the consumptive use for which a permit is sought will not violate any of the criteria set forth in Subsections 163- 2.11(2)(3) or (4), Florida Administrative Code, except that the use may significantly induce salt water encroachment. No evidence was presented showing that the sought for consumptive use will, in fact, significantly induce salt water encroachment. In the twelve month period ending October, 1975, applicant's highest average daily withdrawal was 81,000 gallons. This time frame corresponds to that time frame referred to in paragraph 1 of Water Shortage Order No. 76-3D, Southwest Florida Water Management District. In view of Water Shortage Order No. 76-3D, Southwest Florida Water Management District, the staff recommends granting of the permit for an average daily withdrawal of 81,000 gallons and a maximum daily withdrawal of four times that figure or 234,000 gallons. The staff further recommends imposition of the following conditions: That the permittee shall install totalizer flow meters of the propeller driven type on all withdrawal points covered by the permit with the exception of those wells which are currently ganged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter, said pumpage to be read on a monthly basis and submitted quarterly to the District on April 15, July 15, October 15, and January 15 for each preceding calendar quarter. That all individual connections to the system be metered. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15, and January 15 for each preceding calendar year.
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.
Findings Of Fact The Parties. Respondent, Citrus Recreational Marina, Inc. (hereinafter referred to as "Marina"), is a corporation. Marina is the applicant for the permit which is at issue in this proceeding. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with the responsibility for, among other things, wetland resource permitting. The Department also has responsibility, pursuant to an agreement with the Southwest Florida Water Management District (hereinafter referred to as the "Water Management District"), for Management and Storage of Surface Water permitting within the jurisdictional boundaries of the Water Management District. Petitioner, Save the Manatee Club, Inc. (hereinafter referred to as "Save the Manatee"), is a non-profit, Florida corporation. The stated purpose of Save the Manatee includes protection of the manatee and its habitat through the promotion of public awareness, research and lobbying efforts. Petitioner, Friends of the Greenway (hereinafter referred to as "Friends"), is an organization which promotes responsible environmental policy in Citrus County. Save the Manatee and Friends are "citizens" of the State of Florida. They filed a verified petition for hearing in this matter. They alleged in the petition that the proposed facility will injure, harm, or otherwise pollute the state's natural resources. Members of Petitioners observe, study and enjoy manatee in Citrus County, including waters that would be impacted by the proposed facility. Marina's Permit Applications, the Department's Notice of Intent to Issue and the Petitioners' Challenge. On March 28, 1995, Marina applied to the Department for a permit for Management and Storage of Surface Water. On March 10, 1993, Marina applied to the Department for a wetland resources (dredge and fill) permit. The permits sought by Marina are associated with Marina's plan to construct a marina facility. The marina is to be constructed within an existing dolomite mine pit (hereinafter referred to as the "Mine Pit"). On or about February 6, 1996, the Department entered a notice of intent to issue the permit sought by Marina. A copy of the draft permit, permit number 092278259 and MS092681199, was attached to the notice of intent to issue. On or about March 13, 1996, Petitioners filed a Petition for Formal Administrative Hearing challenging the Department's proposed decision to issue the draft permit. Marina's Proposed Facility. Marina's proposed facility is to be located in Citrus County, Florida. Citrus County is located on the west coast of Florida, north of Tampa, Florida, and south of the mouth of the Suwannee River on the Gulf of Mexico. As part of the proposed facility, Marina proposed to construct 256 wet slips (122 of which may be covered) on six floating docks, a boat ramp, a boat lift bay, a 63-boat dry storage facility, a convenience store with fueling and sewage pump-out facilities, a clubhouse, a stormwater facility and a parking area. The proposed facilities will also include a potable water system. The water system will provide drinking water to the clubhouse, bait stand, fueling facility, boat storage area and the marina docks. The proposed facilities will also include an on-site wastewater treatment facility. The treatment facility will consists of an aerobic system with on-site effluent disposal through drainfield lines into the soil. No sewage treatment percolation ponds will be included on the proposed site. The stormwater system for the proposed site will be separate from the wastewater treatment facility. The stormwater system will include the collection and treatment of stormwater in on-site basins prior to discharge into the Mine Pit. The system will be designed to retain the entire rainfall from a 100-year storm combined with wet detention and on-line systems involving percolation. All these systems have been designed to meet the design standards required by Chapter 40D-4, Florida Administrative Code. The post development runoff discharge rate for the proposed site is projected to be less than the current rate of runoff discharge on the proposed site. The proposed facility will not cause any increased flood risks on-site or off-site. No part of the surface water management system will be located within 100 feet of any public supply well. The fish cleaning stations included for the proposed facility will be located over land. Waste associated with fish cleaning will be collected for disposal. Wastewater from the stations will be directed into the wastewater treatment system for the proposed facility. Wastewater from boats at the proposed facility will directed to the wastewater treatment facility through two pumpout stations located near the proposed fueling facility. Solid waste from the proposed facility and boats utilizing it will be disposed of in trash receptacles located throughout the proposed site. They will ultimately be picked up by a solid waste hauler for disposal. Erosion around the Mine Pit will be controlled through the placement of 2,200 feet of rip rap, vegetation planting and other erosion control techniques. The Mine Pit where the proposed marina is to be constructed is located on the south side of the Cross Florida Greenway Waterway (hereinafter referred to as the "Greenway Waterway") (formerly known as the "Cross Florida Barge Canal"), approximately one half mile east of where U.S. Highway 19 crosses the Greenway Waterway. The proposed site is approximately 4.75 miles from where the Greenway Waterway empties into the Gulf of Mexico. The Mine Pit is U-shaped, approximately 31.4 acres in size, and has an average depth of -20 feet, with pockets of -33 feet in depth. Marina proposed to fill the Mine Pit to 13.0 feet NGVD, place 2,285 linear feet of rip rap, and dredge 4.75 acres of the Mine Pit to -13.0 feet NGVD. The waters of the northwestern corner of the Mine Pit are separated from the waters of the Greenway Waterway by a plug of land approximately 100 to 150 feet wide. Marina proposed to remove the plug to create an entrance from the marina to the Greenway Waterway. The removal of the plug will result in a lowering of the level of water in the Mine Pit by approximately 3 to 5 feet to sea level, the level of the water in the Greenway Waterway. Marina also proposed to excavate a flushing canal channel between the Greenway Waterway and the northeast corner of the Mine Pit. The boundary of the property on which the Mine Pit is located is approximately 100 feet from the Mine Pit at its closest location. The Mine Pit was excavated from lime rock and Ona fine sands; Pits and Udorthents (both manmade) soil types exist throughout the project site. Weedy vegetation dominates the historically disturbed upland area surrounding the Mine Pit. Saltbush (Baccharis halimfolia), marsh elder (Iva frutescens), dog fennel (Eupatorium spp.), marsh fleabane (Pluches spp.), and waxmyrtle (Myrica cerifera) exist along the Greenway Waterway. Southern red cedars (Juniperius silcicola) are scattered throughout the area. Cattails (Typha spp.) have invaded the edges of the Mine Pit. Ownership of the Proposed Site Property. Marina has no ownership interest in the property where the Mine Pit is located. Nor has Marina ever held such an interest. The proposed facility site is held in three undivided interests. At the time the permit applications were filed by Marina, Marina had an option contract to purchase the proposed site. At the time of the final hearing of this matter, the option contract was no longer in force. Marina had also been authorized in writing prior to filing the permit applications to act as agent for the owners of the site for purposes of seeking environmental permitting. It was stipulated at the time of the final hearing that two of the three undivided interest owners had authorized Marina to act as their agent for purposes of obtaining the permits at issue in this proceeding. At the time of the final hearing, the third undivided interest owner did not authorize Marina to act as its agent for any purpose. Marina is agreeable to a new condition being added to the draft permit by the Department requiring Marina to submit documentation to the Department before any development of the proposed facility is commenced proving that Marina has acquired interests in the proposed site necessary for it to carry out the permit conditions. It is the Water Management District's policy in implementing Rule 40D- 4.301(g), Florida Administrative Code, which requires applicants to provide reasonable assurances concerning their proposed projects, is to require the land owner to be the permittee. The Greenway Waterway and the Surrounding Area. The Greenway Waterway consists of natural and man-made waters formerly intended to be used as the Cross Florida Barge Canal. The waters of the Greenway Waterway are classified as "Class III" waters. The Cross Florida Barge Canal was deauthorized on January 22, 1991. In its place was created the Cross Florida Greenways State Recreation and Conservation Area. The State of Florida owns the majority of the lands within the Cross Florida Greenways State Recreation and Conservation Area. The state can, therefore, control development along the Greenway Waterway. A portion of the Greenway Waterway was constructed as part of the Cross Florida Barge Canal by digging a canal from a spillway at Lake Rousseau, east-northeast of the proposed site, to the Gulf of Mexico. This portion of the canal (hereinafter referred to as the "Greenway Canal"), is straight and was designed for a depth of 12 feet. The actual depth of the Greenway Canal varies and, in some locations, is 18 feet deep. The Greenway Canal is also approximately 250 feet wide. The Greenway Canal intersects the Withlacoochee River, which is located to the east of the proposed facility. Prior to the construction of the Greenway Canal, the Withlacoochee River ran from a spillway at Lake Rousseau to the Gulf of Mexico. After construction of the Greenway Canal, the portion of the Withlacoochee River which connects with the Gulf of Mexico was, and still is, separated from the Greenway Canal by an earthen berm. The western portion of the Withlacoochee River (hereinafter referred to as the "Upper Withlacoochee"), continues to run from Lake Rousseau for approximately 1.3 miles to the Greenway Canal and then runs to the Gulf of Mexico through the Greenway Canal. The depth of the Upper Withlacoochee varies from river bottom which is exposed at low tide to areas of approximately 20 feet. The depth of water, the speed at which water flows and the amount of aquatic vegetation in the Upper Withlacoochee varies depending on the amount of water released from Lake Rousseau through the spillway. For the past year, the rate of flow in the Upper Withlacoochee has been relatively high. There are currently two public boat ramps, but no marinas, located on the Greenway Canal. One of those boat ramps is in disrepair and the evidence failed to prove that it is in use. There are no marinas on the Upper Withlacoochee or the Greenway Canal. There is a Florida Marine Patrol station located on the Greenway Canal approximately one-half mile east of U.S. Highway 19. Whether the presence of the station will have any impact on the enforcement of speed limits in the Greenway Canal is purely speculative. Approximately 2 miles west of the proposed facility is an existing active mining operation owned by Independent Aggregates. Barges transport mine product along the Greenway Canal from the mine to the Gulf of Mexico. Another organization, known as "Holnam", has been permitted by the Department to construct a barge-loading facility opposite the Independent Aggregates' barge facility and mine. It is unlikely, however, that Holnam will actually begin operating barges on the Greenway Canal. A speed limit of 25 miles per hour has been imposed by the Department throughout the Greenway Canal. The speed limit was imposed to protect West India Manatee that utilize the Greenway Canal. The Upper Withlacoochee has been designated an idle-speed zone by local ordinance. Crab traps are located along the banks of the Greenway Canal for approximately four miles into the Greenway Canal from the Gulf of Mexico. Traps are generally anchored to the bottom by lines and are spaced approximately 100 feet apart, 20 to 15 feet from the bank. A channel extends for approximately 12 to 15 miles into the Gulf of Mexico from the mouth of the Greenway Canal. The channel is marked. There are obstructions and shallow water outside this channel. Prudent boaters will continue in the channel for approximately four to nine miles before turning north or south into the Gulf of Mexico. Operators of smaller boats and those with knowledge of the area are able, however, to navigate north or south closer to shore. Impact on the Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitat. The West India Manatee is an endangered species, which means that it is in danger of extinction. Approximately 3000 manatees are found in Florida waters. Approximately half are located on the east coast and half on the west coast of Florida. There is little interchange between the two groups. The State of Florida is attempting to restore the manatee population to a size which will help to insure its survival as a species. In order for the manatee population to survive, human development and interaction with manatees must be managed. Manatee habitat needs to be preserved from development. Two of the most significant challenges to the survival of the manatee are the number of manatees killed by boats and the increasing number of boats in Florida waters. Collisions with boats is the greatest known cause of manatee deaths (approximately 25 percent). Manatee change locations frequently searching for food, drinking water, resting areas, potential mates and birthing areas. They also return to preferred habitat features. Manatee are attracted to areas that are calm and quiet for birthing areas. Shallow water, accessible from deeper water, is essential for birthing. After giving birth, the mother and calf generally remain in the area for some period of time, sometimes as long as months, until the calf is able to survive elsewhere. They will leave an area, however, if disturbed. Boat traffic, even at slow speeds, can cause disruption to mothers and young calves. Boat traffic can separate a mother and calf. There are approximately 300 manatee in the waters of northwestern Florida (from Tampa Bay to the Suwannee River), which includes the area of the proposed facility and Citrus County. This population has been increasing in recent years. Manatee in the waters of northwestern Florida require a stable source of warm water during the winter. During the winter ambient temperatures drop below the level at which the manatees' metabolism will sustain them. As a result of the need for warmer waters, most of the manatee in northwestern Florida spend the winter in Citrus County. Kings Bay, Crystal River and Homosassa all provide warm water locations for manatee. These sites are located to the south of the proposed facility. Kings Bay is the most important winter manatee habitat on the west coast of Florida. During the rest of the year, when waters are warmer, manatee leave their warm water, winter habitats to forage and investigate other habitat. Manatee that winter in the warm water sites in Citrus County generally migrate to the north. They travel to, and past, the mouth of the Greenway Canal, returning by the same general routes in the winter. Manatee also linger at the mouth of the Greenway Canal at the Gulf of Mexico because that area offers a combination of a relatively deep-water channel with adjacent shallow water and aquatic vegetation. Manatee use the waters of the Greenway Canal and the Upper Withlacoochee. The Greenway Canal is not, however, considered particularly good habitat for manatee. It has relatively deep water, steep banks, little fresh water and little vegetation of interest to manatee. In 1991 Citrus County adopted a Manatee Protection Plan as part of its comprehensive growth management plan. The Manatee Protection Plan does not identify the Greenway Canal as essential manatee habitat. The Manatee Protection Plan was adopted with the assistance of the Department. The Plan was based upon a compilation of manatee studies, marina inventory studies, and a comprehensive view of the county's waterway systems at the time the Plan was adopted. "Essential manatee habitat" is defined in the Manatee Protection Plan as "any land or water area constituting elements necessary to the survival and recovery of the manatee population from endangered status". Whether an area is "essential manatee habitat" is to be considered under the Plan as "a criteria for determining areas where dock facilities should be limited." The definition of "essential manatee habitat" for purposes of the Plan is different from the standard to be applied in by the Department in this case. The definition in the Plan is similar to the federal criteria considered and found to be different from that applicable to Department permitting cases in Metropolitan Dade County v. Coscan Florida, Inc., 609 So.2d 644, 651 (Fla. 3d DCA 1992). The Manatee Protection Plan contemplates that a master plan will be undertaken to establish the capacity of the Greenway Canal for boat and marina facilities. That master plan has not been developed. The fact that the master plan has not been formally undertaken, however, is of little consequence. The Department, due to the State's ownership of the land surrounding the Greenway Canal, has been able to consider possible uses of the Greenway Canal for boating and marinas without a formal master plan. The Manatee Protection Plan does not support a finding that the proposed facility will not have an adverse impact on the manatee. Although the waters of the Greenway Canal do not constitute good manatee habitat, the Upper Withlacoochee is considered good habitat, depending on the amount of water being released from the spillway at Lake Rousseau. Manatee have used the Upper Withlacoochee for feeding, resting and birthing. The Upper Withlacoochee has limited human activity, light boat traffic, sources of fresh water, a warm-water spring and aquatic vegetation. The Upper Withlacoochee has been used for birthing. Infant mortalities reported in the area suggest that the Upper Withlacoochee is used as a preferred birthing area. The rate of mortality suggests a higher rate of successful births. Aerial survey and mortality data also suggests that the Upper Withlacoochee and the Greenway Canal are utilized throughout the year by manatee. Greatest use is seasonal. Aerial survey data underestimates the number of manatee utilizing the Upper Withlacoochee and the Greenway Canal due to the lack of water clarity and due to the meandering course of, and vegetation along, the Upper Withlacoochee. Manatee mortality data concerning the Greenway Canal and the Upper Withlachoochee provides some indication of the fact that the number of manatee that travel through the Greenway Canal and the Upper Withlacoochee is not insignificant. While there was considerable evidence presented concerning whether the number of manatee that utilize the Greenway Canal and the Upper Withlacoochee is accurate or has been underestimated, based upon aerial survey data and manatee mortality comparisons, the critical fact proved by the evidence in this case is that a significant number of manatee do use the Upper Withlacoochee as habitat, including for birthing. The evidence also proved that, in order for manatee to use the Upper Withlacoochee, it is necessary that they travel the length of the Greenway Canal. Another critical fact proved by the evidence is to this matter is that manatee traveling to and from the Upper Withlacoochee must travel the Greenway Canal from the Gulf of Mexico past the proposed facility. The evidence was also unrefuted that increased boat traffic from the proposed facility will have the potential to adversely impact the manatee. That adverse impact will take the form of physical injury due to collisions and stress on manatee from increased human activity. The activity could reduce the use of the Upper Withlacoochee as habitat. What remains to be determined is whether the conditions of the draft permit will provide adequate assurances that the impact will not be contrary to the public interest. The Department's Bureau of Protected Species Management determined that, without the conditions to be added to the draft permit it suggested, the following impacts could be expected as a result of approval of the proposed facility: The probability of manatee/boat collisions increases with increasing boat traffic where boaters and manatees regularly inhabit the same waterways. While the current level of barge/vessel traffic does not appear to be a problem, increasing the amount of recrea- tional and commercial vessel traffic to the proposed levels in this narrow waterway is expected to adversely impact the endangered manatee. Barge trips may become more frequent, and barges traveling down the center of the canal drives manatees toward the edges of the canal. This increases the risk of manatee/recreational boat collisions, and increases the risk of these recreational boats driving manatees underneath, ahead of or behind traveling barges. The probability of lethal and sublethal propeller strikes increases. Also, there is not sufficient space for manatees between the canal bottom and the bottom of a fully loaded barge, with only one foot clearance as typical for loaded barges. The probability of a manatee being crushed will increase, and this impact is difficult to offset with conservation measures other than not allowing the activity. Page 2, Petitioners exhibit 7 and CRMI exhibit 10. The evidence in this case supports the foregoing conclusions. The increased boat traffic from the proposed facility, even if limited to sailboats and even if power boats are allowed at lower speed limits than currently in force in the Greenway Canal, may cause impacts with manatees due to the increased traffic and the use of the Greenway Canal by barges and recreational boats. It is possible that manatees, confronted by oncoming recreational boats and barges, may be forced into the path of barges and be crushed. Barges used by Independent Aggregates are approximately 72 feet wide and 250 feet long and are pulled or pushed by tugboats. The probability of this conflict taking place will be greater if barge use of the Greenway Canal is increased as proposed by Independent Aggregates. The greatest threat to the manatee of the proposed facility is the threat of death or injury as a result of cuts or blunt trauma from collisions of boats with manatees. This threat is primarily associated, however, with faster moving, power boats. Therefore, the extent of possible adverse impact on the manatee will be determined largely by the speed limit imposed in the Greenway Canal. To mitigate against the possible adverse impact on manatee, the Department has included certain conditions in the draft permit. Those conditions are found in Condition 6 of the draft permit and were recommended by the Department's Bureau of Protected Species Management. As a result of the Bureau of Protected Species Management's review of the proposed facility, it was recommended that the proposed facility not be approved if all of the conditions suggested by it were not included in the draft permit. All of the conditions recommended, except one, were included in the draft permit. The condition not included was one that provided that a violation of manatee speed zones would be grounds for revocation of the lease of any slip or dock space at the proposed facility. The lease revocation condition recommended by the Bureau of Protected Species Management was not included in the permit due to concern by the Department as to whether the condition could be legally imposed. The language of the memorandum of review of the proposed facility from the Bureau of Protected Species Management suggesting that the proposed project should not be approved unless all recommended conditions are accepted is standard language used by the Bureau and not intended to be strictly interpreted. The Bureau ultimately concluded that, despite its recommendation, it believes that the conditions of the draft permit are adequate to offset adverse impacts to the manatee. The Bureau's explanation is sufficient to eliminate any inference that otherwise may be drawn from its suggestion that the proposed facility should not be approved due to the exclusion of the permit condition concerning revocation of leases for speed zone violators. Condition 6 requires, among other things, that signs warning of possible manatee activity be displayed during construction, that personnel associated with the project be educated about the manatee, and that other measures designed to protect manatee during construction be followed. Due to the fact that most of the construction will take place in the enclosed Mine Pit, there should be little, if any adverse impact on manatee as as result of construction. Condition 6 also provides that permanent manatee warning signs and information concerning manatee be posted by the marina, and that a manatee awareness education program be established at the proposed facility. Condition 6 also limits the use of the boat ramp of the proposed facility to boats stored "on-site." The ramp will not be open to the general public. Finally, condition 6.l. provides the most important limitation of the use of the proposed facility. Condition 6.1 limits use of the proposed facility to sailboats and, therefore, prohibits the use of power boats: . . . until the applicant has provided documentation to the Department that manatee protection speed zones in the CFBC have been revised, approved by the Bureau of Protected Species Management, and posted in the CFBC. Occupancy of the facility by sailboats shall not be restricted. The limitation of the use of a marina to sailboats should adequately mitigate the adverse impacts to the manatee from the proposed facility. See Coscan, at 651. The effect of condition 6.l. is to allow Marina to obtain a modification of the draft permit after it is issued to allow power boats based upon events which may take place in the future. There are no guarantees that those events will result in reasonable assurances that the adverse impact to the manatee from power boat use at the proposed facility will not be contrary to the public interest. The speed zones which must be established and approved by the Bureau of Protected Species Management will be established, if at all, through rule- making procedures. See Rule 62N-22.011, Florida Administrative Code. The process would allow public input. Additionally, the outcome of the process would be subject to challenge under Chapter 120, Florida Statutes. Because of possible challenges to the efforts to impose speed zones, it is possible that speed zones adequate to reduce the adverse impacts to the manatee which would satisfy the public interest test applicable in this matter will not be adopted. The standards which the Department must adhere to in establishing speed zones are not the same standards applicable in this matter. In this matter, reasonable assurances must be given that there will not be adverse impacts to the manatee, a threatened species, contrary to the public interest. Establishing speed zones pursuant to other provisions of law will not insure that the reasonable assurances required for the issuance of the permit at issue in this case will be given. Although the resulting speed zones may be adequate to protect the manatee, there is no way to determine what kind of speed zones will be established. Without knowing the ultimate speed zones which may be established, or, more importantly, to know that the speed zones will meet the public interest test applicable in this matter, it is not possible to find the reasonable assurances Marina is required to provide at this time or at any time before the proposed facility is actually permitted. If reasonable assurances can be given that the use of power boats in the proposed facility will not be contrary to the public interest once speed zones are established, Marina or the owner of the proposed facility may apply for a permit modification. At that time the requisite reasonable assurances concerning power boat use can be determined. The provision of condition 6.l. allowing Marina to avoid seeking a permit modification at that time is, therefore, at a minimum, unnecessary, and at its worse, an effort to allow Marina to avoid having to provide the necessary reasonable assurances concerning the use of power boats. If only the impact on the manatee were considered in establishing speed zones, it could be concluded slow or idle speed should be imposed throughout the Greenway Canal and for some distance into the Gulf of Mexico in order to adequately reduce the adverse impact from the proposed facility on the manatee. Establishing speed zones, however, requires a consideration of other factors. The evidence in this case failed to address those factors sufficiently to recommend a condition to the draft permit concerning speed zones. Based upon the foregoing, it is concluded that reasonable assurances have not been given that there will not be unreasonable adverse impact to the manatee if the use of power boats at the proposed facility is allowed as provided in condition 6.l. of the draft permit. Other Public Interest Criteria. The evidence failed to prove that the proposed facility will adversely affect the public health, safety or welfare or the property of others. The evidence also failed to prove that the proposed facility will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The docks and other marina facilities will all be restricted to the Mine Pit, which is not now open to navigation. There is adequate width in the Greenway Canal to allow boats to exit the Mine Pit into the Greenway Canal and for boats and barges in the Greenway Canal to pass each other. Rip-rap to be placed along the Mine Pit shore and other shoreline stabilization activities will be adequate to prevent erosion and shoaling. Groundwater flow at the proposed site should not be adversely affected by the proposed facility, except as discussed, infra. The proposed facility should not adversely affect fishing or recreational values or marine productivity in the vicinity of the proposed facility. Recreational values (boating and fishing) should be enhanced as a result of the proposed facility. If condition 6.l. is not eliminated and power boats are allowed in the Greenway Canal, there are no assurances that the recreational value provided by the manatee will not be adversely impacted. The proposed facility is intended to be permanent. The evidence failed to prove that the proposed facility will adversely affect or enhance significant historical or archaeological resources under the provisions of Section 267.061, Florida Statutes. If condition 6.l. is not modified to eliminate the use of power boats automatically upon the establishment of speed zones, there are no reasonable assurances that the current condition and relative value of functions being performed by the Greenway Canal and the Upper Withlacoochee will not be adversely affected by the proposed facility. Otherwise, the proposed facility should not have an adverse impact on current conditions and relative value of current functions of the area. Groundwater Quality Standards. The general geology in the area of the proposed facility and the Greenway Canal is known as karst terrain. Karst terrain is geology formed by the solution of limestone over millions of years. Sequential episodes of exposure of the Floridan aquifer, which underlies the area, occurs in karst terrain as the result of the natural formation of sink holes. These sink holes impact the movement of groundwater. Information exists to reasonably describe the hydrogeology of the area in "regional" terms. There is insufficient information generally available about the specific hydrogeology of the proposed site or the immediately surrounding area. Underlying the entire area and the proposed site in particular is the Floridan aquifer. The properties of the Floridan aquifer in coastal Citrus County, including the proposed site, can vary enormously over relatively short vertical distances. This variability impacts the movement of groundwater. The groundwater under the proposed site is classified as G-II. The terms "potentiometric surface" are used to describe the level to which groundwater will rise above sea level. The higher groundwater rises above sea level, the thicker the layer of underlying drinkable water should be before reaching an interface between drinkable and undrinkable water. In central Citrus County, the potentiometric surface is relatively low and flat at approximately 5 or 6 feet above sea level. The resulting interface between drinkable and nondrinkable water is found at 200 or more feet. Due to natural geological conditions, moving to the northwest of Citrus County, including the Greenway Canal area, potentiometric levels are higher. Therefore, thicker layers of drinkable water should be found around the proposed facility site and the Greenway Canal than in central Citrus County. Because of higher potentiometric surface in the area of the Greenway Canal, the layer of drinkable water would be expected to continue beyond 120 feet below the surface. Construction of the Greenway Canal has resulted in the intrusion of saltwater from the Greenway Canal into the groundwater. It has also resulted in the upconing of mineralized (sulfate) waters from deeper to less deep levels within the Floridan aquifer. These impacts have been significant with regard to the chloride levels (from the saltwater) and sulfate upconing. The impact of the construction of the Greenway Canal on saltwater intrusion and sulfate upconing is the result of the lowering of the surface waters to sea level in the Greenway Canal. The lowering of the level of water in the Greenway Canal has had the effect of decreasing the potentiometric surface and, consequently, reducing the thickness of the layer of drinkable groundwater. Saltwater has intruded along and beneath the Greenway Canal. The extent of this intrusion is represented graphically on Petitioner's exhibits 13 and 14. Saltwater intrusion has occurred primarily as a result of downward leakage of saltwater traveling up the Greenway Canal. The saltwater intrusion has been localized around the Greenway Canal. The wedge of saltwater intrusion has reached to approximately where U.S. Highway 19 crosses the Greenway Canal, approximately one-half mile east of the proposed site. Although it is "theoretically" possible that the saltwater wedge could continue to move along the entire length of the Greenway Canal, the evidence fails to support such a conclusion. Due to freshwater discharges from Lake Rousseau, the evidence supports a conclusion that the saltwater wedge will not move further eastward to any significant extent. The lowering of the waters of the Greenway Canal to sea level has had the effect of bringing sea level elevations to the Floridan aquifer several miles further inland than had been the case before construction of the Greenway Canal. Groundwater adjacent to the Greenway Canal, which is at levels higher than sea level, has discharged into the Greenway Canal. This has caused a lower groundwater level and the movement upward of groundwater. Similar effects have occurred naturally along the Withlacoochee River. As groundwater rises it comes into contact with a geologic unit which contains calcium sulfate. The sulfate mixes with the groundwater causing the "mineralized" groundwater. While the change in surface waters in the Greenway Canal was quick, the change in groundwater quality from saltwater intrusion and sulfate upconing has taken place only as fast as groundwater in the area flows. Generally, groundwaters flow very slowly. The impact of the Greenway Canal on upconing of sulfates will continue over time. Mineralized waters will continue to move upward and, perhaps, laterally away from the Greenway Canal. Pockets of mineralized waters (containing sulfates) can be found naturally occurring around the proposed site. Sulfate enriched groundwater in coastal areas naturally move toward, and discharge into, the surface waters along the coastal boundary. This process occurs along the Gulf of Mexico and the shoreline of Citrus County. The construction of the Greenway Canal has disrupted this natural process. The Mine Pit, when it was in use, was dewatered to different levels at various times. The dewatering took place for varying periods of time. Usually, the Mine Pit would be completely dewatered for a period of approximately three months. On one occasion, the Mine Pit was dewatered for a period of two years (1989 to 1991). It was dewatered to allow the removal of dolomite. The Mine Pit was allowed to fill back up with water after each dewatering. The dewatering of the Mine Pit was regulated by the Water Management District. The permit allowing dewatering of the Mine Pit required that the permit holder mitigate for adverse impacts of dewatering, including the inducement of natural contaminants into the aquifer. The evidence failed to prove, however, the extent of adverse impacts of the dewatering or whether the permit holder actually mitigated against any such adverse impacts. The lowering of the water level in the Mine Pit caused some upconing of sulfates for the same reason that the digging of the Greenway Canal did. Lowering the water level in the Mine Pit lowered the potentiometric level. The evidence, however, failed to prove the extent of the impact or how long the impact lasted. The lowering of the water level of the Mine Pit to sea level by connecting the Mine Pit to the Greenway Canal as proposed by Marina will have the same general impact as the digging of the Greenway Canal on the upconing of sulfates. Unlike the impact of the dewatering of the Mine Pit, the proposed modification will be permanent. Lowering the water level will have the same type impact for the same reasons that the digging of the Greenway Canal caused upconing. The potentiometric level will be permanently lowered; the layer of drinkable water will be permanently decreased. The evidence failed to prove that the lowering of the water level of the Mine Pit to sea level as a result of the proposed project will have the same impact on saltwater intrusion. This impact is less likely because the Mine Pit is four and a half miles inland from the Gulf of Mexico. The upconing of sulfates as a result of the construction of the proposed facility will cause the levels of sulfates found in some portion of the currently drinkable layer of groundwater to exceed water quality standards. The area impacted will consist of groundwater which would otherwise have been expected to be potable. Comments concerning the proposed facility were provided to the Department by the Water Management District. By letter dated August 16, 1995, the Water Management District informed the Department that it was anticipated that the proposed facility would result in saltwater intrusion and upconing of mineralized water and that the area's groundwater could be expected to be degraded inconsistent with Water Management District rules. In response to the Water Management District's comments, Marina agreed to undertake a hydrogeologic study to gather site specific information to address those concerns. As a part of Marina's study, one monitoring well was drilled on the proposed site. The well was drilled to a depth of 450 feet in order to gather data concerning water quality at various depths. In early 1996, the Water Management District concluded that the results of the study undertaken by Marina had resolved its concerns. The test well was drilled to the south of the Mine Pit, approximately 2500 feet from the Greenway Canal. The water quality tests run on water taken from the test well reflected a sharp change in water quality at a depth of approximately 120 feet. The water below that level contained high levels of sulfates: 552 milligrams per liter of sulfate. Immediately above the high sulfate waters, low sulfate levels (12 milligrams per liter) were found. This result is contrary to what would be expected to be found based upon the higher potentiometric surface in this area of Citrus County. Because the potentiometric surface is higher in the area, it would be expected that the layer of drinkable groundwater would be considerably higher than 120 feet. The findings concerning the thickness of the drinkable groundwater found at the test well are consistent with the conclusions concerning the impacts of the digging of the Greenway Canal. As a result of the digging of the Greenway Canal and the lowering of the water level to sea level, the resulting decrease in the potentiometric surface has caused the upconing of mineralized waters and a decrease in the layer of drinkable groundwater. The Department and Marina have not disputed the fact that drinkable groundwater will be impacted by the upconing of mineralized waters (sulfates) as a result of connecting the Mine Pit with the Greenway Canal and lowering the level of water in the Mine Pit to sea level. The Department and Marina, however, have suggested that the extent of the impact of the lowering of the water level in the Mine Pit will not extend more than 100 feet from the Mine Pit and will be limited to the proposed site. The evidence failed to support this position. The unplugging of the Mine Pit will have the effect of increasing the area of water below sea level in the area by 12 percent of the size of the area of the Greenway Canal. Data from test wells around the Greenway Canal and other data has indicated that the upconing of mineralized water as a result of the lowering of the water level in the Greenway Canal has extended considerably more than 100 feet from the Greenway Canal. In light of the fact that the Mine Pit is equal in surface area to 12 percent of the surface area of the Greenway Canal, there is reason to be concerned that the area of impact from the lowering of the water level in the Mine Pit will also be significant. In light of the foregoing, and due to the variability of the geology of the area, the data from a single well on the site is of questionable value. Data from a single well simply does not provide the information necessary for Marina to provide reasonable assurances that the impact on groundwater from its proposed facility will be limited to an area of 100 feet from the Mine Pit. There is simply not enough data concerning the Mine Pit to conclude with any reasonable assurance that the upconing of mineralized waters (containing sulfates) will be limited to an area of 100 feet around the Mine Pit. Because of the size of the Mine Pit in relation to the Greenway Canal and the impact on upconing from the Greenway Canal, it is more likely that the impact of upconing will exceed 100 feet. A log of geologic characteristics of the test well was maintained. A confining unit or layer was found between the high-sulfate and low-sulfate waters at between 110 and 120 feet below the surface. The evidence failed to prove, however, the extent to which the layer may extend horizontally from the well location. In light of the general geology of Citrus County and the region around the proposed site, insufficient data exists to reach any conclusion about the extent of the confining layer. Establishing the extent of the confining layer would require more extensive (and costly) study of the site. The existence of a confining layer would also have no significant impact on the degree of upconing as a result of lowering the water level in the Mine Pit. I. Surface Water Quality Standards. Petitioners stipulated that the proposed facility would not violate surface water quality standards except with regard to the standard for chloride. Because of the flow of fresh water from Lake Rousseau and the flushing canal to be constructed at the proposed site, reasonable assurances have been given by Marina that there will be sufficient flushing of the Mine Pit to preclude a violation of chloride standards for surface waters. The evidence presented by Petitioners concerning the possibility that the salt water wedge resulting from the construction of the Greenway Canal may extend landward and eventually into the Mine Pit was too speculative and "theoretical".
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a Final Order denying Citrus Recreational Marina, Inc.'s application for wetland resource permit (dredge and fill) and the application for Management and Storage of Surface Waters Permit. DONE and ENTERED this 18th day of November, 1996, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative 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 Hearings this 18th day of November, 1996. COPIES FURNISHED: Robert Goodwin, Esquire Save the Manatee Club, Inc. 500 North Maitland Avenue, Suite 210 Maitland, Florida 32751 Peter Belmont, Esquire 511 31st Avenue, North St. Petersburg, Florida 33704 Wayne Hrydziusko Assistant General Counsel Douglas H. MacLaughlin Assistant General Counsel State of Florida, Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard S. Brightman, Esquire Douglas Roberts, Esquire HOPPING, GREEN, SAMS & SMITH, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue to be determined in this case is whether proposed Florida Administrative Code Rule 40E-10.041(3)(d) of the South Florida Water Management District (“the District”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The Conservancy is a non-profit Florida corporation with its offices in Naples, Florida. It has 6,200 members residing in Southwest Florida. The mission of the Conservancy is to protect the environment and natural resources of Southwest Florida. The Caloosahatchee River is an important focus of the Conservancy’s organizational activities and objectives. A substantial number of the members of the Conservancy use the Caloosahatchee River for drinking water, boating, fishing, wildlife observation, and scientific research. The proposed rules create a prospective reservation of water in the not-yet-operational Caloosahatchee River (C-43) West Basin Reservoir “for fish and wildlife.” The Conservancy’s interests would be substantially affected by the proposed reservation. The District is a regional water management agency created, granted powers, and assigned duties under chapter 373, Florida Statutes (2013). It is headquartered in West Palm Beach, Florida. Proposed rule 40E-10.041(3) states: (3) Caloosahatchee River (C-43) West Basin Storage Reservoir: All surface water contained within and released, via operation, from the Caloosahatchee River (C-43) West Basin Storage Reservoir is reserved from allocation. The water reserved under this paragraph will be available for fish and wildlife upon a formal determination of the Governing Board, pursuant to state and federal law, that the Caloosahatchee River (C-43) West Basin Storage Reservoir is operational. The reservation contained within this subsection and the criteria contained in section 3.11.4 of the Applicant’s Handbook for Water Use Permit Applications within the South Florida Water Management District, incorporated by reference in Rule 40E-2.091, F.A.C., shall be revised in light of changed conditions or new information prior to the approval described in paragraph (3)(b) above. Pursuant to subsection 373.223(4), F.S., presently existing legal uses for the duration of a permit existing on [RULE ADOPTION DATE] are not contrary to the public interest. The Conservancy challenges only paragraph (3)(d), contending that it modifies or contravenes the implementing statute, section 373.223(4).
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.
The Issue The issue to be determined in this case is whether 1044PVB, LLC (“Applicant”), is entitled to Environmental Resource Permit (“ERP”) No. IND-109-143282-1 from the St. Johns River Water Management District (“District”), authorizing the construction of a surface water management system to serve a proposed residential development in St. Johns County, Florida.
Findings Of Fact The Parties Petitioner Nancy Condron is a resident and landowner in St. Johns County. Her residence is located across Ponte Vedra Boulevard from the Project. Petitioner uses the nearby Guana River Wildlife Management Area for nature-based recreation, including hiking and bird-watching. Applicant is a foreign limited liability company and the applicant for the ERP at issue in this case. The District is an independent special district granted powers and assigned duties under chapter 373, Florida Statutes, including powers and duties related to the regulation of construction activities in wetlands. The Project is within the boundaries of the District. The Project Site The Project site is 17.13 acres located at 1044 Ponte Vedra Boulevard in St. Johns County, Florida. The site currently consists of forested lands on the east and west and pasture areas in the middle. There is an existing trail road that runs the length of the property and a small residence. The site has four small ponds excavated as watering holes, ranging in size from 0.04 to 0.24 acres. There are 4.41 acres of wetlands and other surface waters on the site. There is a 3.49-acre area of mixed forested wetland on the site that continues offsite to the south and west. There are also three isolated wetlands on the site, each less than a half-acre in size. The wetland system adjacent to the Project site flows to the Guana River. The Guana River is a freshwater, Class III waterbody. It is an Outstanding Florida Water, but has been designated by the Department of Environmental Protection as impaired for nutrients. The site is not used by threatened or endangered species for feeding, nesting, or breeding. The Project The proposed Project is a 22-lot, single-family subdivision. The proposed surface water management system for the Project includes curb and gutter paved roadways, storm inlets, concrete pipes, vegetated natural buffers, treatment swales, and a wet detention stormwater pond. The wet detention stormwater pond would discharge into adjacent wetlands that flow to the Guana River. Wetlands The point of discharge from the Project’s stormwater management system is not in the designated Outstanding Florida Water. Applicant proposes to fill the four ponds and the three isolated wetlands. Applicant also proposes to fill 0.28 acres of the larger wetland. The Project includes a number of upland buffers that are a minimum of 15 feet in width and average of 25 feet in width. These buffers are intended to prevent potential adverse secondary impacts to adjacent wetlands. All wetland impacts and mitigation were assessed using the Uniform Mitigation Assessment Method (UMAM) in Florida Administrative Code Rule 62-345. The UMAM assessment takes into consideration the location and landscape support, water environment, and community structure of the wetlands to be impacted. The District also considers the condition, hydrologic connection, uniqueness, location, and the fish and wildlife utilization of the wetlands and other surface waters. The District did not require mitigation for filling the artificial ponds. The District also did not require mitigation for filling the isolated wetlands because each is less than a half-acre in size. As mitigation for filling 0.28 acres of the larger wetland, Applicant would purchase 0.25 mitigation bank credits from the St. Marks Pond Mitigation Bank. The St. Marks Pond Mitigation Bank is located in the same drainage basin as the wetland area that would be filled. The District determined that purchasing the mitigation bank credits would offset the functional loss associated with filling part of the wetland. Two areas on the site where no upland buffers are proposed were assessed for secondary impacts to wetlands in the UMAM evaluation. The mitigation bank credits proposed for the Project would offset all of the adverse, direct, and secondary impacts to wetlands or surface waters associated with this Project. Because direct and secondary impacts would be fully mitigated, the Project would not cause cumulative impacts. Water Quantity A majority of the Project’s stormwater runoff would be conveyed to the wet detention pond. The wet detention pond provides water quantity protection by attenuating the post- development peak rate of discharge. Applicant modeled the pre-development peak rate of discharge and the post-development peak rate of discharge. The modeling indicated that the post-development peak rate of discharge will not exceed the pre-development peak rate of discharge for the 25-year, 24-hour storm event. Section 3.3 of the Applicant's Handbook, Volume II, prohibits a reduction in the 10-year or 100-year floodplain for projects with an upstream drainage basin of five square miles or greater. The proposed Project has an upstream drainage basin of 4.6 square miles, so this criterion is not applicable. Applicant showed the Project would increase offsite flood elevations by only 0.01 feet, which is negligible. The Project would not cause adverse water quantity impacts to receiving waters or adjacent lands. Water Quality Water quality would be managed in the Project through a combination of wet detention pond, swales, and vegetative natural buffers (“VNBs”). The wet detention pond would treat a majority of the runoff from the Project. Section 8 of the Applicant’s Handbook, Volume II, contains presumptive criteria for the design of a wet detention pond. The proposed wet detention pond meets the presumptive criteria. Therefore, the detention pond is presumed to provide reasonable assurance that the water quality of receiving waters will be protected. Applicant is proposing to construct swales at the back of Lots 20, 21, and 22 to treat runoff by infiltration. Section 9 of the Applicant’s Handbook, Volume II, contains presumptive criteria for swale system design and performance. The Project meets the presumptive criteria for swales. Applicant is proposing VNBs on Lots 1 through 14. The use of VNBs is a commonly-used best management practice accepted by the District for treating stormwater runoff. Like swales, VNBs treat runoff by infiltration. Stormwater runoff from the backyards of Lots 1 through 14 would drain to the VNBs. On some of these lots, stormwater runoff from the front yards, side yards, and rooftops would also drain to the VNBs. The lots would be graded so that runoff would sheet flow to the VNBs to maximize their treatment function. The VNBs would have native soils and plants. The VNBs would have Type A soils, which are well-drained soils that provide the highest rate of infiltration and the most permeability. Petitioner contends that, because soil borings were not taken at the location of the VNBs, reasonable assurance was not provided that the VNBs would function as proposed. However, Petitioner did not show that the soils at the VNB locations were unsuitable soils. In addition, Applicant agreed to use Type A soils in the VNBs. Therefore, reasonable assurance that the VNBs would have suitable soils was provided by Applicant. Petitioner referred to a draft rule to support her contention that the proposed VNBs are not properly designed, but the draft rule has no controlling effect and is hearsay. The Applicant’s Handbook does not contain presumptive criteria for VNBs. Applicant demonstrated that the VNBs would infiltrate 80 percent of the runoff from a three-year, one-hour storm event, which is the same treatment efficiency the District requires when swales are used. Reasonable assurance was provided that the VNBs would function as proposed. Because the Project would discharge to wetlands that flow to the Guana River, a waterbody impaired by nutrients, section 2.2 of the Applicant’s Handbook, Volume II, requires Applicant to demonstrate there would be a net improvement in water quality with respect to nutrients. Applicant performed a pollutant loading analysis using the BMPTRAINS model. The BMPTRAINS model is a generally-accepted tool used by stormwater engineers for this purpose. The BMPTRAINS model incorporates the information about the pre- and post-development conditions associated with land use and impervious area. The model accounts for site-specific conditions, including the elevation of the groundwater table and storage capacity of the soil. The design of the surface water management system is then incorporated into the model to estimate the pollutant removal efficiency and estimate the average annual pollutant load that will leave the site. Applicant’s BMPTRAINS modeling indicated that the average annual post-development loading for total nitrogen and total phosphorus would be substantially less than the pre- development loading for those nutrients. Therefore, Applicant demonstrated the Project would result in a net improvement. Operation & Maintenance The Ponte Vedra Beach Preserve Homeowners Association would be the entity responsible for operation and maintenance of the stormwater management system. The wet detention pond, swales, and VNBs would be located within an easement and maintained by the homeowner’s association. Applicant and the Ponte Vedra Beach Preserve Homeowners Association have the ability to accept responsibility for the operation and maintenance of the Project. Public Interest An applicant for an ERP must demonstrate that a proposed project affecting wetlands and other surface waters would not be contrary to the public interest. This determination is made by balancing seven factors found in section 10.2.3(a) through (g) of the Applicant’s Handbook, Volume I. Public interest factor (a) is whether the regulated activity will adversely affect public health, safety, or welfare, or the property of others. There is no aspect of the Project that would affect public health, safety, or welfare, except the potential for flooding. Reasonable assurance was provided by Applicant that the Project would not cause flooding. Factor (b) is whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. The mitigation bank credits offset all of the potential adverse impacts that the proposed project would have on the conservation of fish and wildlife. Factor (c) is whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The parties stipulated that the Project will not adversely affect navigation or cause harmful erosion or shoaling. The record evidence shows the Project will not adversely affect the flow of water. Factor (d) is whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The Project would not affect fishing or recreational values in the vicinity. The mitigation bank credits offset all of the potential adverse impacts the proposed project would have on marine productivity in the vicinity. Factor (e) is whether the regulated activity will be of a temporary or permanent nature. The activities are of a permanent nature. The mitigation is also permanent. Factor (f) is whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources. The Project will have no effect on historical and archaeological resources. Factor (g) is the current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The relatively small loss of functional value would be offset by the proposed mitigation. Considering and balancing these seven factors, the Project would not be contrary to the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the issuance of Environmental Resource Permit No. IND-109-143282-1 to 1044PVB, LLC, with the conditions set forth in the Technical Staff Report dated April 11, 2016. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2016. COPIES FURNISHED: Karen C. Ferguson, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 (eServed) Jane West, Esquire Josh Smith, Esquire Jane West Law, P.L. 6277 A1A South, Suite 101 St. Augustine, Florida 32080 (eServed) Eric Olsen, Esquire Amelia A. Savage, Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Ann B. Shortelle, Ph.D., Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 (eServed)
