The Issue As to Case 92-1751DRI whether Building Permit No. 9110002865 issued by Monroe County, Florida, to Ronald and Patricia LaCroix as owners and Pierce Construction and Builders as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations. As to Case 92-3949DRI whether Building Permit No. 9110003422 issued by Monroe County, Florida, to David Goodridge as owner and Pierce Construction and Builders as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations. As to Case 92-5582DRI whether Building Permit No. 9210004503 issued by Monroe County, Florida, to Dick and Jean Madson as owners and Mark W. Milnes Construction as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Each appeal in this consolidated proceeding was timely and each involved a development within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development orders that are the subject of this appeal. Respondents, Ronald and Patricia LaCroix, are the owners of real property known as Lot 43 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On December 12, 1991, Monroe County issued building permit 9110002865 to Mr. and Mrs. LaCroix as owners and to Pierce Construction and Builders as general contractors, to build a boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park. Respondent, David Goodridge is the owner of real property known as Lots 38 and 39 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On March 20, 1992, Monroe County issued building permit 9110003422 to Mr. Goodridge as owner and to Pierce Construction and Builders as general contractors, to build a seawall and boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park. Respondents, Dick and Jean Madson are the owners of real property known as Lot 38, Section D, Sugarloaf Shores subdivision, Sugarloaf Key in unincorporated Monroe County. On May 13, 1992, Monroe County issued building permit 9210004503 to Mr. and Mrs. Madson as owners and to Mark W. Milnes Construction as general contractors, to build a dock and davits on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout Sugarloaf Shores subdivision. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Benthic communities exist in the waters between the two canals and deep water, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. Neither the canal system for Saddlebunch RV Park nor the canal system for Sugarloaf Shores subdivision has access to deep water without crossing areas of water in Sugarloaf Sound with depths of less than four feet at mean low water. Many of these shallow areas contain sea grass beds. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging if boats were to attempt to cross these shallow areas. Although there is evidence of prop dredging in parts of these shallow waters, it was not shown that the damage was done by boats traveling from these canal systems and deep water. Whether boats that may be docked at these sites if these permits are granted will cause damage at some future time to some portion of the shallow waters of Sugarloaf Sound between the canal systems and deep water is speculation. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of each of the subject projects. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if the proposed structure would terminate in a channel more than 20 feet wide with water more than four feet deep at mean low tide. The structures that are the subject of this proceeding meet that permitting criteria. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County's interpretation of its rules is that the type development at issue in this proceeding, constructed on an individual family home-site, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject applications to meet all of its permitting criteria. Respondents presented evidence that several similar projects were permitted at approximately the same time as the subject permits were issued without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permits, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeals for an inappropriate purpose.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9110002865, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case 92-1751DRI. It is further recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9110003422, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case No. 92-3949DRI. It is further recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9210004503, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case No. 92-5582DRI. DONE AND ORDERED this 26th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 26th day of January, 1993. APPENDIX TO RECOMMENDED ORDER TO CASE NO. 92-1751DRI, CASE NO. 92-3949DRI, AND CASE NO. 92-5582DRI The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 8, 10, 11, and 14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first two sentences of paragraph 9 are adopted in material part by the Recommended Order. The proposed findings of fact in the last sentence of Paragraph 9 are rejected as being unsupported by the evidence. While the evidence established that damage may result, the evidence did not establish that damage would result. The proposed findings of fact in the first sentence of paragraph 12 are rejected as being unsubstantiated by the evidence since the water in the canals is deeper than four feet. The proposed findings in the second sentence of paragraph 12 are subordinate to the findings made. The proposed findings of fact in the last sentence of Paragraph 12 are rejected as being unsupported by the evidence. While the evidence established that damage may result, the evidence did not establish that damage would result. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 15 are rejected since the evidence established that Monroe County's interpretation of the four foot rule dates to 1986. The proposed findings of fact in the second sentence of paragraph 15 are rejected as being unnecessary to the conclusions reached. The remaining proposed findings of fact in paragraph 15 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 16 are subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 16 are rejected as being argument. The proposed findings of fact in the final sentence of paragraph 17 (there are two paragraphs 16, the second of which is being referred to as paragraph 17) are adopted in material part by the Recommended Order. The remaining proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondents. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 16, and 17 are rejected as being the recitation of testimony that is subordinate to the findings made. The proposed findings of fact in paragraph 12 are rejected as being contrary to the record of the proceedings. The proposed findings of fact in paragraph 13 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Randy Ludacer, Esquire Monroe County Attorney 310 Fleming Street Key West, Florida 33040 James T. Hendrick, Esquire Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040 William R. Kynoch, Deputy Director Florida Land and Water Adjudicatory Commission Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 Robert Herman Monroe County Growth Management Division Public Service Building, Wing III 5825 Jr. College Road Stock Island Key West, Florida 33040 Charles M. Milligan, Esquire Post Office Box 1367 Key West, Florida 33041 David and Florence Clark 4606 Wayne Road Corona Del Mar, California 92625 Edward Warren Werling Post Office Box 1042 Summerland Key, Florida 33042 Theodore W. Herzog, Esquire 209 Duval Street Key West, Florida 33040 Pierce Construction & Builders Route 4, Box 319 Summerland Key, Florida 33042 Dick and Jean Madson Post Office Box 276 Summerland Key, Florida 33402 Mark W. Milnes Route 5, Box 775-G Big Pine Key, Florida 33043 David M. Maloney, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
Findings Of Fact By application (Exhibit 1) dated September 15, 1978, WCMI requested a permit to dredge approximately 740 cubic yards of sovereign bottom lands in Snook Bay adjacent to upland property owned by applicant. At the same time applicant requested a lease of some 0.98 acres of submerged sovereign land, containing the area to be dredged, for the purpose of constructing a marina with docking facilities over the leased property. Following receipt of all requested information from applicant, plus objections from adjacent land owners, DNR, as the state agency acting on behalf of the Trustees Internal Improvement Trust Fund (TIITF) , held a public hearing in Naples, Florida on April 25, 1979. The Hearing Officer submitted a report following this hearing in which he recommended the lease be granted (Exhibit 4). After review DNR staff recommended granting the lease and before the Trustees took action, Petitioner requested this hearing. In the interim DER reviewed the application for a dredge and fill permit and, following a preliminary investigation, advised WCMI of its intent to deny the permit (Exhibit 8). At informal conferences with DER, WCMI revised its application to commence the dredging 25 feet from the existing seawall, reduce the amount of material to be dredged to 349 cubic yards and to move the floating dock sections further from the seawall. This revised application (Exhibit 10) was submitted to DER and, after review, DER on November 13, 1979 (Exhibit 11) issued its notice of intent to grant the requested permit. Petitioner then requested this hearing to contest the granting of this permit. The Isles of Capri was developed into a waterfront homesite project by bulkheading, dredging and filling a pristine mangrove area to provide the homesites now occupied by members of Petitioner. This project destroyed the ecosystem as it existed before the development. The area which is here proposed for lease and for a permit to dredge some 349 cubic yards therefrom is located in the originally disturbed area. Most of the homes on the Isles of Capri are built on waterfront lots and most homeowners have docks and boats. Fishing is generally considered good off the docks and in surrounding waters. The proposed marina is located in Snook Bay, a relatively small cul-de-sac-like area. On the dead end of Snook Bay, which is adjacent to the proposed marina, mangroves have been planted and the area designated as a park. Since these mangroves are rat infested, the park concept has not received general acceptance. However, the proposed marina will not adversely affect this park. Apart from the ecological problems that will allegedly be created by the leasing of the property and the dredging thereon, petitioner alleges the project will interfere with other "rights" of the homeowners of the Isles of Capri. Although this Hearing Officer has considerable doubts as to the validity of these alleged rights, the facts presented relating thereto will be first considered. WCMI owns the uplands adjacent to this submerged land and this land is zoned General Retail Commercial, which includes use as a proposed marina. Use as a marina would create less additional vehicular traffic than would any of the other 12 uses considered most likely for this land. (Testimony of Barr) The proposed marina will provide wet dock space for 32 boats and dry storage for 116 boats in sheds with the boats stacked three-high. No ramps will be provided and boats will be launched and picked up by use of a forklift at the concrete seawall. Parking space for 54 vehicles will be provided. This parking space complies with local requirements, as does WCMI's proposed construction. Collier County and the area of Collier County in the vicinity of Isles of Capri is an area of rapidly increasing population. A need for some six additional marinas has been recognized by Collier County authorities. Numerous witnesses opposed the use of WCMI property as a marina because: They do not think the site is suitable for a marina, and a much smaller marina would be preferred. Installation of a marina would increase boat traffic, thereby increasing the risk of boat collisions, increase wake action which might damage seawalls, disrupt the peace and quiet now enjoyed by these residents, and increase the possibility of boats striking manatees. Property values in the vicinity of the proposed marina and elsewhere in the Isles of Capri might decline. Operation of a marina would increase the noise level, thereby disturbing occupants of residences closest to the proposed marina. Vehicular traffic would be greatly increased on the Isles of Capri once the marina commences operation. Most of these objections are beyond the jurisdiction of this tribunal. This property has been zoned for the use proposed and if this use is inappropriate, the proper recourse is with the local zoning authorities. The credible evidence submitted is that the operation of the marina would increase boat traffic in and out of Snook Bay some 20 round-trips per day and this increase will create and insignificant additional risk of collision with other boats or with the occasional manatee that is sighted. While most of this traffic will use the deeper channel that follows the seawalls and boat docks of residents, an alternate channel is available for use by boaters with local knowledge of its characteristics. Even if all traffic used the deeper channel, no serious hazard to navigation would thereby result. No credible evidence was presented that the increased boat traffic caused by the marina would increase the damage to a properly constructed seawall. Navigation of these waters is a right to be jealously guarded. If wave damage results, local authorities have jurisdiction to establish speed or wake restrictions. Furthermore, the more credible evidence presented was that at the Isles of Capri more subsidence of soil behind the seawalls is caused by tidal action than by wake action. No credible evidence was presented that the operation of the proposed marina would decrease property values. Even if this could be shown, such a use would be consistent with the usage for which this property is zoned. There are two marinas across the street from WCMI's proposed marina and no evidence was presented that the operation of ties smaller marinas affected property values. The uncontradicted evidence that was submitted was that property values on the Isles of Capri have increased at a rate as great as, if not greater than, land values elsewhere in Collier County. The roads on Isles of Capri are presently operating far below capacity and the additional traffic expected to be generated by the proposed marina will have no significant impact on these roads, nor will the construction of the marina create any vehicular safety problems. Petitioner's contention that the construction and operation of the marina will create additional pollution because of septic tank, oils and greases, and water runoff from impervious surfaces is not well-placed. It is not well-placed in the first instance because this is not the proper forum in which to air these complaints. Local health and safety ordinances regulate the installation of septic tanks, installation of fueling facilities and retention of water falling on the property. Secondly, the evidence presented here is that WCMI will comply with all regulations regarding septic tanks, no live-aboard boats will be moored at the marina other than temporarily for fuel or supplies, fuel tanks will be underground on the upland area, provided with proper protection and insulation, and the fuel will be dispensed by hose from the fueling dock by experienced personnel. WCMI will provide containment booms and retrieving material to take care of the accidental spill that might occur. Collier County Ordinance requires the first 1-inch of rainfall be retained on the property and WCMI will comply with this requirement. From the testimony of the numerous residents who testified, the primary concern of most of those who object to the proposed installation is that "their" waters will become more available to people living elsewhere and this will somehow detract from the use and enjoyment of those waters by these residents. If access to the Isles of Capri is facilitated for people living elsewhere by the installation of this marina, these waters will become more crowded, resulting in less fish per resident, and this aquatic preserve will become less private and more available to the general public. These residents purchased their homesites because of the waterfront characteristics and the quietness and solitude of the area. Facilitating access by nonresidents will necessitate sharing these waters with these nonresidents, thereby detracting from the enjoyment residents hoped to retain undiminished forever. The allegations of Petitioner that merit the most serious consideration in both of these applications of WCMI involves those relating to the ecosystem. Petitioner contends that the proposed dredging will adversely affect the ecosystem and this requires denial of the dredge-and-fill permit. Without the permit the lease would be useless. Petitioner also contends the granting of the lease would be contrary to the public interest. WCMI's original application was to dredge from the seawall seaward some 60 feet until the desired depth contour was reached. Also, floating concrete docks would be adjacent to the seawall for berthing sites. When an inspection of the area disclosed the bottom grasses were heaviest from the seawall out to about 30 feet, the applicant was issued the Notice of Intent to Deny by DER because of these bottom grasses and the shading that would be caused by the floating docks. WCMI then proposed to do no dredging for the first 25 feet from the seawall, except for two areas 30 feet and 36 feet wide needed to launch boats, and also to move the floating docks 25 feet from the seawall so as not to shade the grassy areas. As noted above, the site under consideration was severely disturbed by the initial dredging which destroyed the original grassbeds at this site. Some of these grasses have now returned but the coverage is sparse and patchy. From the seawall out to about 30 feet the grass is Cuban shoalweed and manatee grass. Respondent's investigations and studies revealed only these two grasses. Petitioner's biologist who performed studies similar to those done by Respondent found halophila in the deeper waters (up to five feet) extending out as far as 60 feet from the seawall. Halophila is a more ephemeral grass that grows in deeper depths than Cuban shoalweed and manatee grass and is often found in previously dredged areas. The area proposed for dredging comprises some 1200 square meters, and seagrasses cover about one-fourth of the dredge area. Sample cores taken by Petitioner's expert in October while the more luxuriant summer growth predominated showed some 1600 blades of grass per square meter, while the winter sample taken by WCMI expert showed 467 blades per meter. In the 320 square meters of seagrasses in the area a total biomass of invertebrates was found to be 17 pounds. Using generally accepted conversion rates and invertebrate reproduction cycles to convert this biomass to fish, this weight of invertebrate biomass could be converted into between 2 and 10 pounds of fish annually. Removal of the seagrasses will remove feeding grounds and hiding areas for some types of aquatic animals and also take away the type of fish that inhabit such areas. On the other hand, the piling and other docking structures that will be installed will attract sessile organisms such as oysters, barnacles, etc. which currently attach themselves to rocks and mangrove roots in the vicinity. The biomass or weight of these organisms is likely to equal or exceed those to be lost by dredging away the seagrasses. The different types of fish will be attracted to the area where the shellfish and other attaching animals congregate than will be attracted to grassy bottoms, the change is not significant from a quality or quantity of fish point of view. The area to be dredged is an area that has partially recovered from its earlier destruction and there is no reason to believe a similar recovery will not recur after the dredging here proposed is completed. No evidence was presented that a collision between a boat and a manatee has ever occurred in the waters in the vicinity of the Isles of Capri. Any conclusion that such an incident is likely to occur because of increased boat traffic when the proposed marina is in operation would be sheer speculation. Furthermore, Collier County does not contain any of those designated waters wherein special manatee protection rules are to be set up. Nor is Snook Bay one of those areas where a concentration of manatees is likely to occur.
The Issue The issue is whether Respondent, Daniel A. Reynolds, should take corrective action and pay investigative costs for allegedly controlling, eradicating, removing, or otherwise altering aquatic vegetation on eighty-seven feet of shoreline adjacent to his property on Lake June-in-Winter (Lake June) in Highlands County, Florida, without an aquatic plant management permit.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is the riparian owner of the property located at 260 Lake June Road, Lake Placid, Highlands County (County), Florida. He has owned the property since 2001 and resides there with his wife and two young children. The parcel is identified as Parcel ID Number C-25-36-29-A00-0171-0000. The southern boundary of his property, which extends around eighty-seven feet, abuts Lake June. Respondent has constructed a partially covered dock extending into the waters of Lake June, on which jet skis, a canoe, and other recreational equipment are stored. The Department is the administrative agency charged with protecting the State's water resources and administering and enforcing the provisions of Part I, Chapter 369, Florida Statutes, and the rules promulgated under Title 62 of the Florida Administrative Code. The parties have stipulated that Lake June is not wholly-owned by one person; that it was not artificially created to be used exclusively for agricultural purposes; that it is not an electrical power plant cooling pond, reservoir, or canal; and that it has a surface area greater than ten acres. As such, the parties agree that Lake June constitutes "waters" or "waters of the state" within the meaning of Florida Administrative Code Rule 62C-20.0015(23), and is not exempt from the Department's aquatic plant management permitting program under Florida Administrative Code Rule 62C-20.0035. Unless expressly exempted, a riparian owner who wishes to control, eradicate, remove, or otherwise alter any aquatic plants in waters of the state must obtain an aquatic plant management permit from the Department. See § 369.20(7), Fla. Stat.; Fla. Admin. Code R. 62C-20.002(1). An aquatic plant is defined as "any plant, including a floating plant, emersed, submersed, or ditchbank species, growing in, or closely associated with, an aquatic environment, and includes any part or seed of such plant." See Fla. Admin. Code R. 62C-20.0015(1). These plants are found not only in the water, but also along the shoreline when the water recedes below the high water mark. They provide important habitat for fish, insects, birds, frogs, and other animals. Torpedo Grass and Maidencane are two common species of aquatic plants or weeds. Applications for a permit are filed with one of the Department's regional offices. After a site inspection is made, a permit is issued as a matter of right without charge or the need for a hearing, and it is effective for a period of three years. A Department witness indicated that there are approximately 1,300 active permits at the present time, including an undisclosed number of permits for property owners on Lake June.3 It is undisputed that Respondent has never obtained a permit. A statutory exemption provides that "a riparian owner may physically or mechanically remove herbaceous aquatic plants . . . within an area delimited by up to 50 percent of the property owner's frontage or 50 feet, whichever is less, and by a sufficient length waterward from, and perpendicular to, the riparian owner's shoreline to create a corridor to allow access for a boat or swimmer to reach open water." § 369.20(8), Fla. Stat. The exemption was established so that riparian owners could create a vegetation-free access corridor to the waterbody adjacent to their upland property. The statute makes clear that "physical or mechanical removal does not include the use of any chemicals . . . ." Id. If chemicals are used, the exemption does not apply. Under the foregoing exemption, Respondent could remove up to 43.5 feet of aquatic vegetation in front of his property on Lake June, or one-half of his eighty-seven foot shoreline. By way of background, since purchasing his property in 2001, Respondent has had a long and acrimonious relationship with his two next door neighbors, Mr. Slevins (to the west) and Mr. Krips (to the east).4 Neither neighbor uses Lake June for recreational purposes. After purchasing the property, Respondent says that Mr. Slevin began to verbally harass and threaten his family, particularly his wife. When Respondent observed the two neighbors repeatedly trespassing on his property, including the placing of an irrigation system and a garden over the boundary lines, Respondent built a fence around his lot, which engendered a circuit court action by the neighbors over the correct boundary line of the adjoining properties. Respondent says the action was resolved in his favor. According to Respondent, Mr. Slevins and Mr. Krips have filed "probably 100 to 200 different complaints on everything from barking dogs, to weeding the yard to calling DEP." Respondent also indicated that Mr. Slevins is a personal friend of the Highlands County Lakes Manager, Mr. Ford. As his title implies, Mr. Ford has the responsibility of inspecting the lakes in the County. If he believes that aquatic vegetation has been unlawfully removed or altered, he notifies the Department's South Central Field Office (Field Office) in Bartow since the County has no enforcement authority. Mr. Reynolds says that a personal and social relationship exists between Mr. Slevins and Mr. Ford, and through that relationship, Mr. Slevins encouraged Mr. Ford to file at least two complaints with the Field Office alleging that Respondent removed aquatic vegetation in Lake June without a permit. In 2002, the Department received a complaint about "aquatic plant management activity" on Respondent's property. There is no indication in the record of who filed the complaint, although Respondent suspects it was generated by Mr. Slevins. In any event, after an inspection of the property was made by the then Regional Biologist, and improper removal of vegetation noted, Respondent was sent a "standard warning letter" that asked him "to let it regrow" naturally. According to the Department's Chief of the Bureau of Invasive Plant Management, Mr. William Caton, Respondent "did not" follow this advice. In 2004, another complaint was filed, this time by the Highlands County Lakes Manager. After an inspection was made, another letter was sent to Respondent asking him to "let it regrow," to implement a revegetation plan, and to contact the Department's Regional Biologist. After receiving the letter, Respondent's wife telephoned Mr. Caton, whose office is in Tallahassee, and advised him that the complaint was the result of "a neighbor feud." Among other things, Mr. Caton advised her that the Department would not "get in the middle" of a neighbor squabble. At hearing, he disputed Mrs. Reynolds' claim that he told her to disregard the warning letter. He added that Respondent did not "follow through with" the corrective actions. As a result of another complaint being filed by the Highlands County Lakes Manager in 2006, a field inspection was conducted on July 12, 2006, by a Department Regional Biologist, Erica C. Van Horn. When she arrived, she noticed that the property was fenced and locked with a "Beware of Dog" sign. Ms. Van Horn then went to the home of Mr. Slevins, who lives next door, and was granted permission to access his property to get to the shoreline. The first thing Ms. Van Horn noticed was that the "lake abutting 260 Lake June Road was completely devoid of vegetation." She further noted that "on either side of that property [there was] lush green Torpedo Grass." Ms. Van Horn found it "very unusual" for the vegetation to stop right at the riparian line. Although she observed that there was "a small percentage of Maidencane" on the site, approximately ninety to ninety-five percent of the frontage "was free of aquatic vegetation." Finally, she noted that the dead Torpedo Grass on the east and west sides of the property was in an "[arc] shape pattern," which is very typical when someone uses a herbicide sprayer. During the course of her inspection, Ms. Van Horn took four photographs to memorialize her observations. The pictures were taken from the east and west sides of Respondent's property while standing on the Slevins and Krips' properties and have been received in evidence as Department's Exhibits 1-4. They reflect a sandy white beach with virtually no vegetation on Respondent's shoreline or in the lake, brown or dead vegetation around the property lines on each side, and thick green vegetation beginning on both the Slevins and Krips' properties. The dead grass to the east had been chopped into small pieces. During her inspection, Ms. Van Horn did not take any samples or perform field testing to determine if herbicides had been actually used since such testing is not a part of the Department's inspection protocol. This is because herbicides have a "very short half life," and they would have broken down by the time the vegetation turns brown leaving no trace of the chemicals in the water. Ms. Van Horn left her business card at the gate when she departed and assumed that Respondent would contact her. On a later undisclosed date, Respondent telephoned Ms. Van Horn, who advised him that he was out of compliance with regulations and explained a number of ways in which he could "come into compliance with these rules," such as revegetation. She says he was not interested. After her inspection was completed, Ms. Van Horn filed a report and sent the photographs to Mr. Caton for his review. Mr. Caton has twenty-seven years of experience in this area and has reviewed thousands of sites during his tenure with the Department. Based on the coloration of the vegetation right next to the green healthy vegetation on the adjoining properties, Mr. Caton concluded that the vegetation on Respondent's property had "classic herbicide impact symptoms." He further concluded that the vegetation had been chemically sprayed up to the boundary lines on each side of Respondent's property before it was cut with a device such as a weedeater. Based on the history of the property involving two earlier complaints, Respondent's failure to take corrective action, and the results of the most recent inspection, Mr. Caton recommended that an enforcement action be initiated. On August 11, 2006, Ms. Van Horn sent Respondent a letter advising him that a violation of Department rules may have occurred based upon the findings of her inspection. The letter described the unlawful activities as being "removal of aquatic vegetation from the span of the total adjacent shore line and significant over spray on to aquatic vegetation of neighboring properties on either side of [his] property." Respondent was advised to contact Ms. Van Horn "to discuss this matter." On May 15, 2007, the Department filed its Notice alleging that Respondent had "chemically controlled" the aquatic vegetation on eighty-seven feet of his shoreline in violation of Section 369.20(7), Florida Statutes, and Florida Administrative Code Rule 62C-20.002(1). The Notice sought the imposition of an administrative penalty in the amount of $3,000.00, recovery of reasonable investigative costs and expenses, and prescribed certain corrective action. On April 28, 2008, the Department filed an Amended Notice alleging that, rather than chemically removing the vegetation, Respondent had controlled, eradicated, removed, or otherwise altered the aquatic vegetation on his shoreline. The Amended Notice deleted the provision requesting the imposition of an administrative penalty, expressly sought the recovery of investigative costs and expenses of not less than $179.00, and modified the corrective action. After her initial inspection, Ms. Van Horn rode by the property in a Department boat on several occasions while conducting other inspections on Lake June and observed that the property "was still mostly devoid of vegetation." At the direction of a supervisor, on June 15, 2007, she returned to Respondent's property for the purpose of assessing whether any changes had occurred since her inspection eleven months earlier. This inspection was performed lakeside from a Department boat without actually going on the property, although she spoke with Respondent's wife who was standing on the dock. Ms. Van Horn observed that the area was still "devoid of vegetation but there was some Torpedo Grass growing back on the [eastern] side." She estimated that "much more" than fifty percent of the shoreline was free of vegetation. Photographs depicting the area on that date have been received in evidence as Department's Exhibits 5-7. Both Respondent and his wife have denied that they use any chemicals on their property, especially since their children regularly swim in the lake in front of their home. Respondent attributes the loss of vegetation mainly to constant use of the back yard, dock area, and shoreline for water-related activities, such as swimming, using jet skis, fishing, and launching and paddling a canoe. In addition, the Reynolds frequently host parties for their children and their friends, who are constantly tramping down the vegetation on the shoreline and in the water. He further pointed out that beginning with the house just beyond Mr. Krip's home, the next five houses have "no vegetation" because there are some areas on the lake that "naturally do not have any vegetation across them." Finally, he noted that Lake Juno suffered the impacts of three hurricanes in 2004, which caused a devastating effect on its vegetation. Respondent presented the testimony of Brian Proctor, a former Department aquatic preserve manager, who now performs environmental restoration as a consultant. Mr. Proctor visited the site in June 2007 and observed "full and thick" Torpedo Grass "growing in the east and west of the property lines." Based on that inspection, Mr. Proctor said he was "comfortable stating that at the time [he] did the site visit in June of '07 there was nothing that appeared to be chemical treatment on Mr. Reynold's property." He agreed, however, that the "shoreline vegetation was poor," and he acknowledged that it was unusual that Lake Juno was lush with aquatic vegetation in front of the neighboring properties to the east and west but stopped at Respondent's riparian lines. When shown the June 2006 photographs taken by Ms. Van Horn, he acknowledged that it "appeared" the property had been chemically treated. He was able to make this determination even though a soil test had not been performed. Photographs introduced into evidence as Respondent's Exhibits 1-4 reflect that on June 27, 2007, there was thick green vegetation on both sides of his property, although one photograph (Respondent's Exhibit 1) shows only limited vegetation along the shoreline and in the lake in the middle part of the property. The photographs are corroborated by a DVD recorded by Respondent on the day that Ms. Van Horn returned for a follow-up inspection. While these photographs and DVD may impact the amount of corrective action now required to restore the property to its original state, they do not contradict the findings made by Ms. Van Horn during her inspection on July 12, 2006. Finally, photographs taken in 2003 to depict what appears to be chemical spraying of vegetation and the construction of a bulkhead without a permit by Mr. Slevins have no probative value in proving or disproving the allegations at issue here. The greater weight of evidence supports a finding that it is very unlikely that heavy usage of the shoreline and adjacent waters in the lake by Respondent's family and their guests alone would cause ninety-five percent of the shoreline and lake waters to be devoid of vegetation when the inspection was made in July 2006. Assuming arguendo that this is true, Respondent was still required to get a permit since the amount of vegetation altered or removed through these activities exceeded more than fifty percent of the vegetation on the shoreline. More than likely, the vegetation was removed by a combination of factors, including recreational usage, mechanical or physical means, and the application of chemical herbicides on each riparian boundary line, as alleged in the Amended Notice. The fact that the Department did not perform any testing of the water or soil for chemicals does not invalidate its findings. Finally, the acrimonious relationship that exists between Respondent and his neighbors has no bearing on the legitimacy of the charges. Therefore, the allegations in the Amended Notice have been sustained. The parties have stipulated that if the charges are sustained, Respondent is entitled to recover reasonable costs and expenses associated with this investigation in the amount of $179.00. As corrective action, the Amended Notice requires that Respondent obtain a permit to remove Torpedo Grass from his property and to replant "126 well-rooted, nursery grown Pontederia cordata ("pickerelweed") at the locations depicted on the map" attached to the Amended Notice. Because the evidence suggests that some of the area in which vegetation was removed in 2006 had regrown by July 2007, the proposed corrective action may be subject to modification, depending on the current state of the property.
The Issue The issue is whether the Department should issue Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 43-0197751-003 to Reily.
Findings Of Fact Parties The Department is the agency that approved the permit at issue in this proceeding. The Department is responsible for protecting the water resources of the state in conjunction with the water management districts, and it is also responsible for authorizing the use of sovereignty submerged lands pursuant to a delegation of authority from the Board of Trustees of the Internal Improvement Trust Fund. The activities authorized by the permit are as follows: The purpose of the project is to install a 395 linear foot upland retaining wall, with one 10 linear foot return, located at least 5-feet landward of the Mean High Water Line, and an 85 linear foot seawall, with one 10 linear foot return, located at the Mean High Water Line. Riprap shall be installed at a 2:1 (Horizontal:Vertical) slope along the 85 linear foot seawall, and will extend out a maximum of 4-feet waterward of the toe of the new seawall. [3] Reily is the applicant for the permit. Reily owns approximately 17.74 acres of property along Indian River Drive in Jensen Beach, just north of the Jensen Beach Causeway. The Reily property extends from the Indian River on the east to Skyline Drive on the west. Indian River Drive runs north and south through the east side of the property. The Reily property to the east of Indian River Drive is undeveloped except for an existing restaurant, Dena’s, which is on the southern end of the property. There is an existing “RV park” on the Reily property to the west of Indian River Drive. The project will be located to the east of Indian River Drive. That portion of the Reily property is approximately one acre in size, and is only 149 feet wide at its widest point. The property is 24 feet wide at its narrowest point, and more than half of the property is less than 68 feet wide. Petitioners live in single-family homes to the west of the Reily property. Each of their homes is within 300 feet of the Reily property to the west of Indian River Drive, but more than a quarter of a mile from the property on which the permitted activities will be located. Petitioner Anthony Parkinson sometimes drives by the property where the permitted activities will be located when he takes his daughter to school; he has had breakfast at Dena’s several times; he looks at the property from the causeway; and, on at least one occasion, he and his daughter looked at vegetation in the water adjacent to the Reily property for a school project. Mr. Parkinson testified that the project will negatively affect his quality of life because he “came to Jensen Beach because of the natural shoreline and the protection that it afforded to residents in terms of natural beauty” and that, in his view, the project “just adds to the incredible bulk that we have here in the property in terms of building in our natural shoreline.” Petitioner Michael Cilurso drives by the property where the permitted activities will be located on a fairly regular basis. He goes onto the property “occasionally” to “look around.” He has waded in the water adjacent to the property and has seen blue crabs, small fish, and underwater vegetation. Mr. Cilurso testified that the project will affect him in two ways: first, he will no longer be able to “go from the road and just walk down and wade around in [the river] and enjoy the natural resources;” and second, the proposed development of the overall Reily property will affect his “quality of life” because “the density [is] going to be more than what we thought would be a fit for our community.” Petitioner Thomas Fullman can see the Indian River from his house across the Reily property. He and his family have “spent time down at the causeway,” and they have “enjoyed the river immensely with all of its amenities” over the years. He is concerned that the project will affect his “quality of life” and “have effects on the environment and aquatic preserve [that he and his family] have learned to appreciate.” The Permit (1) Generally The permit authorizes the construction of an 85-foot- long seawall and a 395-foot-long retaining wall on the Reily property and the placement of riprap on the sovereignty submerged lands adjacent to the seawall. The seawall will be located on the mean high water line (MHWL). The riprap will be placed adjacent to the seawall, below the MHWL, and will consist of unconsolidated boulders, rocks, or clean concrete rubble with a diameter of 12 to 36 inches. The retaining wall will be located five feet landward of the MHWL, except in areas where there are mangroves landward of the MHWL. In those areas, the retaining wall will be located "landward of the mangroves". The permit does not require the retaining wall to be any particular distance landward of the mangroves or even outside of the mangrove canopy. The drawings attached to the permit show the retaining wall located under the mangrove canopy. The permit does not authorize any mangrove trimming. The areas landward of the seawall and retaining wall will be backfilled to the level of Indian River Drive. There will be swales and/or dry retention areas in the backfilled areas to capture storm water and/or direct it away from the river. The retaining wall will connect to an existing seawall on the Conchy Joe property immediately to the north of the Reily property. The seawall will connect to the approved, but not yet built seawall on the Dutcher property immediately to the south of the Reily property. The permit requires the use of erosion control devices and turbidity curtains during the construction of the walls in order to prevent violations of state water quality standards. (2) Permit Application and Review by the Department On or about June 23, 2005, Reily sought a determination from the Department that the seawall and retaining wall were not subject to the Department’s permitting jurisdiction. The project, as initially proposed, did not include the placement of riprap along the seawall. The Department informed Respondent in a letter dated October 11, 2005, that “the proposed seawall is within the Department’s jurisdiction.” The letter further stated that the Department was going to “begin processing [the] application as a standard general permit,” and it requested additional information from Reily regarding the project. The Department’s request for additional information (RAI) asked Reily to “justify the need for a seawall” and to “provide a detailed explanation” as to why the “use of vegetation and/or riprap is not feasible at the site” for shoreline stabilization. Reily responded as follows: Recent hurricanes have destroyed any vegetation that existed within the area of the proposed seawall. Shoreline has been lost and the DOT has had to backfill nearby upland areas and repair the roads due to significant erosion. The application is proposing to place riprap along the foot of the proposed seawall. There is no reason to believe that there will not be more storms in the near future and it is the applicants’ [sic] position that the seawall for this area is the only way to assure permanent shoreline stabilization and would be in the public’s best interest. The RAI also asked Reily to provide “a detailed statement describing the existing and proposed upland uses and activities.” (Emphasis in original). In response, Reily stated: “The existing upland use is an R.V. resort complex. The proposed use will remain the same.” The RAI also asked Reily to “provide details on the current condition of the shoreline at the site, including the location of mangroves and other wetland vegetation" and to "indicate if any impacts to these resources are proposed.” (Emphasis supplied). In response, Reily stated: “Please see plan view drawing sheet 2 of 4 that clearly shows that the proposed retaining wall will be located landward of the existing mangroves.” The sheet referenced in the response to the RAI does not show the location of wetland vegetation as requested by the Department. The referenced sheet is also inconsistent with other drawings submitted by Reily (e.g., sheet 3 of 4), which show that the proposed retaining wall will be located under the mangrove canopy, not landward of the existing mangroves. Reily’s response to the RAI was submitted on or about February 23, 2006. The Department gave notice of its intent to issue the permit on April 19, 2006. The permit included a number of general and specific conditions imposed by the Department. The permit states a petition challenging the issuance of the permit must be filed “within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first.” Notice of the Department’s intent to issue the permit was not published, and the record does not establish when Petitioners received written notice of the permit and the “notice of rights” contained therein. Mr. Cilurso acknowledged that he “found out about the DEP permit to Mr. Reily [approximately] six or eight months before [his] deposition in October [2006]” and then discussed it with the other Petitioners, but that testimony does not establish when the Petitioners received actual written notice of the permit. Petitioners’ challenge to the permit was filed with the Department on or about July 3, 2006. (3) The Related Pitchford’s Landing Project Contrary to the representation made by Reily to the Department during the permitting process, the evidence presented at the final hearing establishes that Reily is proposing to change the use of the upland property from an RV park to a residential development known as Pitchford’s Landing. A master site plan for the Pitchford’s Landing development was submitted to Martin County for approval in April 2006. The site plan (Pet. Ex. 10) shows extensive residential development to the west of Indian River Drive, including single- family lots and multi-story condominium buildings; construction of a sidewalk, bike path, pool, cabana, public pier, and riverwalk to the east of Indian River Drive; the refurbishment of Dena’s restaurant; and the "proposed seawall." Petitioners were aware that the plans for Pitchford’s Landing included a seawall by April 2006, but the evidence was not persuasive that they had received written notice of the Department’s intent to issue the permit at that time. The Pitchford’s Landing development will require changes to the land use designation of the Reily property in the Martin County Comprehensive Plan as well as zoning changes. Those local approvals had not been obtained as of the date of the final hearing. The plans for the Pitchford’s Landing development are being revised based, at least in part, on opposition from Petitioners and others involved in an “association” known as The Jensen Beach Group. Petitioners Cilurso and Fuller are active members of the group, and Petitioner Parkinson has also participated in the group’s activities. Bruce Jerner, one of Reily’s consultants, testified to his understanding that the pool, cabana, and riverwalk shown on the master site plan are being removed from the Pitchford’s Landing development. However, there is no evidence to suggest that the Reily property to the east of Indian River Drive and/or the other improvements on that property (including the hardened shoreline authorized by the permit) are being removed from the Pichford’s Landing develoment. The more persuasive evidence establishes that the proposed seawall, retaining wall, and riprap are part of the larger Pitchford’s Landing development. The walls were referred to on the master site plan for the development; they were depicted and discussed in an advertising brochure as an amenity of the development; and signs advertising Pitchford’s Landing are located on the Reily property to the east of Indian River Drive on which the seawall and retaining wall will be located. There is no evidence that the Pitchford’s Landing development has received a permit from SFWMD under Part IV of Chapter 373, Florida Statutes. The master site plan for Pitchford’s Landing shows several “dry retention areas” to the west of Indian River Drive, and as noted above, there will be swales and/or dry retention areas in the backfilled areas behind the retaining wall and seawall to capture storm water and/or direct it away from the river. It cannot be inferred from that evidence alone, however, that the Pitchford’s Landing development will require permits from SFWMD under Part IV of Chapter 373, Florida Statutes. Merits of the Project The Indian River in the vicinity of the Reily property is a Class III waterbody, an outstanding Florida water (OFW), and part of the Jensen Beach to Jupiter Inlet Aquatic Preserve. The Jensen Beach to Jupiter Inlet Aquatic Preserve is one of three aquatic preserves that encompass the Indian River Lagoon system that extends from Vero Beach to Jupiter Inlet. The Jensen Beach to Jupiter Inlet Aquatic Preserve is 37 miles long and encompasses approximately 22,000 acres of surface water area. The entire Indian River Lagoon system is 49 miles long, with approximately 33,000 acres of surface water area. The Management Plan that was adopted for the Jensen Beach to Jupiter Inlet Aquatic Preserve in January 1985 described the Indian River Lagoon system, and explained its ecological importance as follows: The Indian River Lagoon area is a long, shallow lagoonal estuary important in this region for its value to recreational and commercial fishing, boating and prime residential development. The preserve is in a rapidly growing urban area affected by agriculture and residential drainage. The majority of the shoreline is mangrove fringed, with scattered development in single family residences and a few condominiums. The lagoon is bounded on the west by the Florida mainland and on the east by barrier islands. The Intracoastal Waterway runs the length of the lagoon, which is designated as a wilderness preserve. The estuary is an important home and nursery area for an extensive array of fish and wildlife. The major problems in the continued health of this area include the construction of major drainage networks that have increased the fresh water flow into the estuary, and the loss of wetland areas and water quality degradation associated with agricultural drainage and urban runoff. Additionally, the Intracoastal Waterway and the maintained inlets have changed the historical flushing and circulation within the lagoon system. The Management Plan explained that the “major objectives of the aquatic preserve management program are to manage the preserve to ensure the maintenance of an essentially natural condition, and to restore and enhance those conditions which are not in a natural condition.” The Management Plan recognizes “the rightful traditional uses of those near-shore sovereignty lands lying adjacent to upland properties,” and with respect to bulkheads, the Management Plan states: Bulkheads should be placed, when allowed, in such a way as to be the least destructive and disruptive to the vegetation and other resource factors in each area. Approved uses which do destruct or destroy resources on state-owned lands will require mitigation. The mitigation will include restoration by the applicant or other remedy which will compensate for the loss of the affected resource to the aquatic preserve. Most of the shoreline along the Reily property is a gently sloping sandy beach that has been previously disturbed, and is largely barren of vegetation. There are, however, areas along the shoreline where dense vegetation exists, including wetland vegetation and three stands of mature red and black mangroves. Birds, fish, and wildlife have been observed on and around the Reily property. However, there is no credible evidence that any listed species use the uplands or near-shore waters where the project will be located. The sovereignty submerged lands immediately adjacent to the Reily property on which the riprap will be placed are barren, sandy, and silty. There are seagrasses in the vicinity of the Reily property, but they are 30 to 50 feet from the shoreline. The seagrasses include Johnson’s seagrass, which is a listed species. There are no significant historical or archeological resources in the vicinity of the Reily property, according to the Department of State, Division of Historical Resources. In 2004, Hurricanes Frances and Jean made landfall in Martin County in the vicinity of the Reily property. The hurricanes washed out portions of Indian River Drive, including a portion of the road approximately one-half mile north of the Reily property. After the hurricanes, Martin County considered placing bulkhead along the entire length of Indian River Drive to provide shoreline stabilization and to prevent further damage to the road in major storm events. The county did not pursue the plan because it determined that it was not financially feasible. The portion of Indian River Drive along the Reily property did not wash out during the 2004 hurricanes. Nevertheless, on November 4, 2004, because of concerns for the stability of the shoreline along the Reily property, the Department issued an Emergency Field Authorization to the prior owner of the property allowing the installation of 160 linear feet of riprap along the shoreline. The riprip authorized by the Emergency Field Authorization was to be placed considerably further landward than the structures authorized by the permit at issue in this case. The record does not reflect why the riprap was not installed. The evidence was not persuasive that the Reily property has experienced significant erosion or that the project is necessary to protect Indian River Drive or the upland property from erosion. The project will, however, have those beneficial effects. No formal wetland delineation was done in the areas landward of the MHWL or the areas that will be backfilled behind the proposed seawall and retaining wall and, as noted above, Reily did not identify the location of wetland vegetation and any impacts to such vegetation in response to the RAI. Mr. Jerner testified that, in his opinion, there are no wetlands landward of the MHWL in the area of the seawall, and that any wetlands in the area of the retaining wall are waterward of that wall, which will be at least five feet landward of the MHWL. The Department’s witness, Jennifer Smith, testified that it was her understanding that the wetlands did not extend into the areas behind the seawall or retaining walls, but she acknowledged that she did not ground-truth the wetland boundaries and that wetland vegetation appeared to extend into areas that will be backfilled. Petitioners’ expert, James Egan, testified that the wetlands likely extended into areas that will be backfilled based upon the topography of the shoreline and the wetland vegetation that he observed, but he made no effort to delineate the extent of the wetlands in those areas and he testified that he would defer to the Department's wetland delineation if one had been done. The Department’s wetland delineation rules in Florida Administrative Code Rule Chapter 62-340 contain a detailed quantitative methodology to be used in making formal wetland boundary delineations. That methodology is to be used only where the wetland boundaries cannot be delineated through a visual on-site inspection (with particular attention to the vegetative communities and soil conditions) or aerial photointerpretation in combination with ground truthing. Thus, the Department’s failure to do a formal wetland delineation (with soil sampling, etc.) in the project area was not per se inappropriate, as Mr. Egan seemed to suggest. That said, the more persuasive evidence fails to establish that Reily made an appropriate effort to delineate the landward extent of the wetlands in the project area. No delineation of the wetland areas was provided in response to the RAI, and Ms. Smith’s testimony raises more questions than it answers regarding the correctness of Mr. Jerner’s conclusory opinion that the wetland boundary is waterward of the retaining wall. Without an appropriate delineation of the wetland boundaries, it cannot be determined with certainty whether or not there are wetlands in the areas that will be backfilled. The evidence establishes there may be wetlands in those areas; and if there are, the impacts to those wetlands have not been assessed or mitigated. Riprap is a better method of shoreline stabilization than a vertical seawall without riprap. The riprap helps to prevent shoaling by absorbing wave energy, and it also provides habitat for benthic organisms, crustaceans, and small fish. Native vegetation provides these same benefits, and all of the experts agreed that it is the best method of shoreline stabilization from an environmental standpoint. The use of native vegetation to provide shoreline stabilization along the Reily property is not a reasonable alternative under the circumstances. First, the shoreline has not experienced any significant vegetative recruitment since the 2004 hurricanes. Second, the property is not wide enough to accommodate the amount of vegetation that would be needed to stabilize the shoreline. Third, the properties immediately to the north and south of the Reily property are already (or soon will be) protected by seawalls and/or riprap, rather than native vegetation. The project will not adversely affect the property of others. The evidence was not persuasive that the project will cause erosion or other impacts to the adjacent properties, particularly since the adjacent properties have, or soon will have hardened shorelines. The project will not adversely affect the conservation of fish and wildlife and, to the contrary, the riprap will provide a benefit to fish and wildlife by providing shelter and habitat for benthic organisms, crustaceans, and small fish. The project will not adversely affect endangered or threatened species or their habitat. The only listed species shown to exist in the vicinity of the project, Johnson’s seagrass, is 30 to 50 feet from the shoreline, which is too far away from the project to be affected even if, as suggested by Petitioners' experts, the impact of wave energy on the walls will cause increased turbidity and sedimentation. The project will not adversely impact the fishing or recreational values or marine productivity in the area. The waters in the vicinity of the project are not shellfish harvesting areas, and the riprap will provide beneficial habitat for small marine life. The project will not adversely affect navigation. The riprap will extend only four feet into the Indian River in an area of shallow water far from the channel of the river. The project will not cause harmful erosion or shoaling or adversely affect water quality in the area. The evidence was not persuasive that wave energy will routinely impact the retaining wall to an extent that will cause increased turbidity or sedimentation in the surrounding waters, and all of the experts agreed that the riprap will help to prevent this from occurring along the seawall. Moreover, the swales and/or dry retention areas behind the seawall and retaining wall will help to filter storm water runoff from Indian River Drive and the adjacent upland properties, which may enhance the water quality in the vicinity of the project. The project will not result in any adverse secondary or cumulative impacts to the water resources. The adjacent properties already have hardened shorelines. The permit conditions include adequate safeguards (e.g., turbidity curtains and erosion control devices) to protect the water resources in the aquatic preserve during construction of the project. Any impact (either positive or negative) of the project on the aquatic preserve and the Indian River Lagoon system as a whole will be de minimus in light of size of the system in comparison to the small size of the project and its location between two hardened shorelines near a man-made causeway.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing Petitioners’ challenge to the permit/authorization for a lack of standing, but if the Department determines that Petitioners have standing, it should issue a final order denying permit/authorization No. 43-017751-003 absent an additional condition requiring an appropriate wetland delineation to show that the upland aspects of the project will occur outside of the mangrove canopy and any other wetland areas landward of the MHWL. DONE AND ENTERED this 12th day of February, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 12th day of February, 2007.
The Issue Whether Petitioner should be granted the relief requested in his petition challenging the Department of Environmental Protection's Consolidated Notice of Denial [of] Environmental Resource Permit and Consent of Use to Use Sovereign Submerged Lands.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a collector and wholesaler of various "saltwater products," as defined in Chapter 370, Florida Statutes.1 He possess a saltwater products license (issued pursuant to the provisions of Chapter 370, Florida Statutes, and Chapter 46-42, Florida Administrative Code), with a restricted species and marine life endorsement, which allows him to engage in these activities. Petitioner collects and sells, among other things, what is referred to as "live sand," a calcium carbonate sediment used in public and home aquaria as a decorative detoxifying agent. "Live sand" is found on offshore water bottoms in the Florida Keys (where Petitioner engages in his collection activities) and other areas in Florida. "Live sand" consists primarily of the calcified (dead) remains of Halimeda plants. Halimeda plants (generally on a seasonal basis) produce plates, which they ultimately shed. These plates, through various physical and biological processes, are broken down over time into smaller and smaller granules. Halimeda plants are very productive (in terms of the number of plates they produce), but they are found only in certain (not all) offshore areas in the Florida Keys. While the granules that make up the "live sand" Petitioner collects and sells consist of dead plant matter, thousands of micro and macroorganisms (in a cubic foot area), representing numerous species, live amongst these granules and therefore are also removed from the water as a result of Petitioner's collection activities. The microorganisms living in "live sand" include nitrosomous bacteria. The presence of nitrosomous bacteria enables "live sand" to neutralize the ammonia waste products of fish in public and home aquaria. Among the macroorganisms living in "live sand" are mollusks, worms, arthropods, and echinoderms. These organisms are an important part of the diet of other species, including protected species such as the spiny lobster (Panulirus argus), which itself is part of the food supply for fish in the area. Petitioner collects "live sand" by diving underwater and using his hands to scoop up and place in buckets the top layers of the bottom ("live sand") substrate. Such collection activities have negative environmental consequences that are not insignificant. They adversely impact water quality in the waters in which they occur and in adjacent waters inasmuch as they increase turbidity and reduce biological diversity. Excavation of the top layer of bottom substrate exposes the siltier sediment below, which, when disturbed, reduces water clarity and therefore also the amount of sunlight that penetrates the water. Furthermore, this newly exposed substrate, because of its anaerobic nature, is unable to attract a significant benthic community comparable to that found in the "live sand" that previously covered it. In addition, because these collection activities result in the removal of organisms that are important components of the aquatic food chain and in loss of their habitats, these activities have an adverse effect on marine productivity and, resultantly, on fishing and recreational values. The "live sand" that is the subject of the instant controversy is located in Monroe County within the boundaries of the Florida Keys National Marine Sanctuary in state waters designated Class III, Outstanding Florida Waters (OFW).2 Petitioner first contacted the Department in writing regarding the removal of this "live sand" in May of 1997, when he sent the Department a letter which read, in pertinent part, as follows: REF: Collection of Sand for Use in Aquari[a] Pursuant to our recent telephone conversation, I respectfully request that I receive a letter of de minimis for the aforementioned activity. The sand is collected by hand using five gallon buckets. The collection occurs under water [at] a depth of approximately 20 feet. The sand occurs in an area devoid of marine grasses, plants and corals. No sand is taken from or near shorelines and no sedimentary resultant is produced. I intend to collect four five gallon buckets each of which contains 50 pounds of sand. This collection is to occur once a month. . . . By letter dated June 2, 1997, the Department acknowledged receipt of Petitioner's letter and requested that he provide "additional information" to enable the Department to determine whether it should grant him "an exemption from the need for an Environmental Resource Permit pursuant to Part IV, Chapter 373, Florida Statutes (F.S.), and an authorization to use state- owned submerged lands, pursuant to Chapters 253 and 258, F.S., to collect sand, by hand, from underwater." On August 28, 1997, Petitioner supplied the Department with an "addendum to [his] original request for consideration" in which he specified the location of his "proposed collection" of "live sand" as "Lat. N 24.31.29 - Lon. W 081.34.40. The Department deemed Petitioner's "addendum" insufficient to render his paperwork "complete." By letter dated September 23, 1997, the Department so advised Petitioner. Along with letter, the Department provided Petitioner with the following "revised request for additional information identifying the remaining items necessary to complete [his] application": Part I REVISED COMPLETENESS SUMMARY FOR SAND COLLECTION The proposed project will require an Environmental Resource Permit. The correct processing fee for this project is $500.00. Provide a $500 processing fee payable to the Department of Environmental Protection. In your letter received May 6, 1997, requesting a De Minimis exemption you state you intend to collect four (4), five (5) gallon buckets of sand each of which contains fifty (50) pounds of sand per month. A letter you submitted to the Department from the Army Corps of Engineers (dated May 9, 1997) states you will collect four (4) or five (5), five (5) gallon buckets three (3) times per month. Please indicate the quantity of sand you propose[] to collect per month. Part II CONSENT OF USE (Chapters 18-18, 18-20 and 18-21, Florida Administrative Code) For your information If the project develops to the point where proposed dredging will be recommended for authorization, payment for the removal of sovereign submerged land will be required at $3.25 per cubic yard, or a minimum payment of $50.00 prior to issuance of the authorization. Do not provide payment until requested by Department staff. [See 18- 21.011(3)(a), F.A.C.] Petitioner timely responded to the Department's "revised request for additional information" by letter dated October 10, 1997, to which he attached the requested "processing fee." In his letter, Petitioner advised the Department that it was his "intent to collect approximately 600 (six hundred) pounds of material each month." Following its receipt of Petitioner's letter and accompanying "processing fee," the Department sent letters to potentially affected parties advising them of Petitioner's "proposed [sand collection] activit[ies]" and soliciting their comments concerning these activities. The Florida Department of Community Affairs responded to the Department's request by indicating, in written correspondence it sent to the Department, that it had "no objection to the proposed project." The National Oceanic and Atmospheric Administration (NOAA) also provided written comments to the Department. It did so by letter dated November 21, 1997, which read as follows: The following are comments from the Florida Keys National Marine Sanctuary (FKNMS) concerning the application from Jeff Frankel to collect live sand, File No 44-0128760-001. These comments reflect the consensus of both NOAA and FDEP Sanctuary staff. The harvest of live sand is viewed by the Sanctuary as dredging. This activity is considered neither fishing nor traditional fishing activity. Therefore, "harvesting of live sand" is within the prohibition against dredging, or otherwise altering the seabed of the Sanctuary and does not fall within the exception for "traditional fishing activities" as Mr. Frankel asserts. As such this activity should not be conducted in the Sanctuary without a Federal or State permit. The Sanctuary is opposed to permitting this activity in Federal or State waters for the following reasons: As stated above, it is a dredging activity which is prohibited.3 The Sanctuary exists because of the unique and nationally significant resources found here. These resources exist due to the dynamic ecosystem of which sand, and the meiofaunal communities found therein, is a major component. The Sanctuary is opposed to unnecessary alteration of the ecosystem particularly when viable alternatives exist such as harvesting outside the FKNMS in Gulf waters and aquaculture. Sixty-five percent of the Sanctuary seabottom is State sovereign lands. Removal of the quantities of substrate for commercial purposes does not appear to be in the public interest. Pursuant to the intragency compact agreement between the State of Florida and the National Oceanic and Atmospheric Administration dated May 19, 1997, NOAA will not permit a prohibited activity in federal waters in the Sanctuary that is not allowed in the State waters of the Sanctuary. We appreciate the opportunity to comment on this application. On January 8, 1998, the Department issued its Consolidated Notice of Denial [of] Environmental Resource Permit and Consent of Use to Use Sovereign Submerged Lands. In its Consolidated Notice, the Department gave the following reasons for its action: The Department hereby denies the permit for the following reason: The proposed project will directly impact water quality by removal of approximately 660 pounds of "live sand" from state-owned sovereign submerged land each month. The material collected consists of dead calcareous green algae (Halimeda spp.) and calcium carbonate grains. This substrate is important habitat for grazers and detritivores and it contains an extensive and diverse invertebrate community. . . . The project as proposed does not comply with the specific criteria within; Chapter 373, F.S., F.A.C. Rule 62-300, and Section 4.2 of the Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District. The above impacts are expected to adversely affect marine productivity, fisheries, wildlife habitat, and water quality. The applicant has not provided reasonable assurance that the immediate and long-term impacts of the project will not result in the violation of water quality standards pursuant to F.A.C. Rule 62-312.150(3) and 62-312.070. Specific State Water Quality Standards in F.A.C. Rules 62-302.500, 62-302.510, 62- 302.560 and 62-4.242 that will be affected by the completion of the project include the following: Biological Integrity- . . . . This project will also result in the following matter which are not clearly in the public interest pursuant to Section 373.414(1)(a), F.S.: adversely affect the conservation of fish and wildlife, including endangered species, or their habitats; diminish the current condition and relative value of functions being performed by areas affected by the proposed activity; adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; the activity will be permanent in nature; adversely affect the functions and relative value of the habitat within the area of the proposed project. Therefore, the Applicant has not provided reasonable assurance that the project is clearly in the public interest pursuant to Section 373.414(1)(a), F.S. The request for authorization to use sovereign submerged lands is denied because the Applicant has not met all applicable requirements for proprietary authorizations to use sovereign submerged lands, pursuant to Article X, Section 11 of the Florida Constitution, Chapter 253 F,S., associated Chapter 18-21, F.A.C., and the policies of the Board of Trustees. Specifically, operation of the activity is inconsistent with management policies, standards and criteria of F.A.C. Rule 18- 21.00401(2) and 18-21.004. The Applicant has not provided reasonable assurance that the activity will be clearly "in the public interest," will maintain essentially natural conditions, will not cause adverse impacts to fish and wildlife resources or public recreation or navigation, and will not interfere with the riparian rights of adjacent property owners. In addition, the project is inconsistent with the goals and objectives of the "Conceptual State Lands Management Plan," adopted by the Board of Trustees on March 17, 1981. The . . . activity is inconsistent with Section 18-21.00401(2), F.A.C., the authorization to use sovereign submerged lands cannot be approved, in accordance with Sections 18-21.00401 and 62-343.075, F.A.C., because the activity does not meet the conditions for issuance of a standard general of individual permit under Part IV of Chapter 373, F.S., as described above. The Consolidated Notice accurately describes the adverse impacts of the "project" which is subject of the instant case (Project). Petitioner has not proposed any measures to mitigate these adverse impacts. If the Department authorizes the Project, it is reasonable to anticipate that other collectors of "live sand" would seek the Department's approval to engage in similar activity in the area. If these other projects were also approved, there would be additional adverse environmental consequences. As the Consolidated Notice alleges, Petitioner has failed to provide reasonable assurance that the Project would not degrade the ambient water quality of the OFW in which the Project would be undertaken, nor has he provided reasonable assurance that the Project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioners' application for an environmental resource permit and for a lease to use sovereign submerged lands. DONE AND ENTERED this 12th day of January, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 12th day of January, 1999.
Findings Of Fact Petitioner SFWMD is a public corporation of Florida. It is charged with the responsibility of issuing permits and enforcing orders relating to surface water management within its jurisdictional boundaries. Respondents Hubschman, as trustees, have full rights of ownership in 1,280 contiguous acres located in Sections 17 and 20, Township 47 South, Range 26 East, Lee County, Florida. These lands are known as Bonita Farms I and II. They are located within the jurisdictional boundaries of SFWMD. In their pre- developed state, these lands could generally be categorized as marsh and wetlands with cypress forest and some uplands in the northern half of the project area. After deciding to develop the acreage for use as pasture and farmland for small vegetable crops, Respondents Hubschman applied for a surface water management permit from SFWMD. The purpose of the permit was to allow the construction and operation of a water management system that would serve both farms. A system was designed to drain water off both parcels through a 62-acre retention area into a natural slough system which runs water into Kehl Canal. In order to create the system, the Respondents Hubschman had the following facilities designed for the site: internal ditches, dikes, pumps, a retention area and control structures. On April 15, 1982, SFWMD issued Surface Water Management Permit No. 36- 00315-S, and Respondents Hubschman were allowed to proceed with their proposed construction plan. A modification to the permit was issued on April 14, 1983. The retention area was enlarged from 62 acres to 88 acres by relocating the perimeter dike. The outfall structure was revised in that the two pumps and the weir were to be replaced by three 18" CMP culverts that would discharge the drained water by gravity flow from the retention area through the slough into Kehl Canal. The duration of the construction phase of its permit was a three-year period, unless the construction of the permitted project discharge structure or equivalent had been completed prior to that date. After the close of the three-year period, there was a dispute between the Respondents and SFWMD as to whether the permit had expired. The controversy was resolved through a compromise agreement. An application for the reissuance of Permit No. 36-00315-S was filed on October 13, 1986. Instead of reissuing Permit No. 36-00315-S, as requested by Respondents Hubschman, SFWMD decided to issue a new permit on May 14, 1987. As part of the processing procedures, SFWMD again reviewed and approved the entire surface water management system designed to serve the 1,280 acres of land proposed by Respondents. Because the additional work proposed for Section 17, the northern section was limited at this stage of development to the selective clearing of additional upland areas to create more improved pasture, the new permit directed attention to Section 20, the southern section of the land. The new permit advised the Respondents that if they wanted to propose additional development to Section 17, they were required to seek a modification of this new permit, Surface Water Management Permit No. 36-00764-S, to include those changes. The Respondents applied for a modification of Permit No. 36-00764-S on July 30, 1987. The proposed modification sought to change the status of the development of Section 17 from improved pasture to small vegetable farmland on 639 acres. The surface water management system plan was modified to drain water in Section 17 to the reservoir on Section 20. The water would be directed via a series of lateral ditches and swales. A six foot high dike and one 27,000 GPM pump were also required. Two additional 18" CMP culverts were required at the discharge facilities to accommodate the increased outflow. The Modification of Permit No. 36-00764-S was approved and issued on June 16, 1988. The original Permit NO. 36-00764-S and its modification are similar to a contract novation because the new permits substituted new obligations between the parties for the old ones under Permit No. 36-00315-S. Based upon this approach to the situation, SFWMD allowed the construction work completed under Permit No. 36-00315-S prior to the Stop Work Order of August 27, 1986, to vest. The completion of the berm around the reservoir in Section 20, as set forth in the letter from Elizabeth D. Ross, attorney for SFWMD, on September 19, 1986, was also allowed to vest. However, if the vested matters were changed in the subsequent permits, they became revisions. The revisions take precedence over the vested matters. Otherwise, completed construction under Permit No. 36- 00764-S as modified, and post Stop Work Order construction remains in effect perpetually for the operation portion of the permit. In order to determine with certainty what was permitted when the Notice of Violation was issued on December 20, 1988, the parties would have to look to the project work actually completed on August 27, 1986, the specific construction approved by SFWMD after that date, the subsequent Surface Water Management Permit No. 36-00764-S issued May 14, 1987, and its Modification issued June 16, 1988. The substantial compliance determination issued by Richard A. Rogers, P.E., Resource Control Department dated September 24, 1987, should also be considered as authorized activity. The Notice of Violation dated December 20, 1988, was issued to Respondent Samuel Hubschman, Trustee. He was advised that recent routine inspections indicate that current on-site activity was in violation of Special Conditions 2,3,4,7,14, 17 & 23 of Permit No. 36-00764-S (issued 5/14/87) and Special Conditions 5,16 & 22 of 36-00315-S (modified 6/16/88). A meeting to resolve these issued was suggested by SFWMD. Respondent Hubschman agreed to attend the meeting through his consultants. Both parties elected to attempt resolution of the Notice of Violation controversy through negotiations in a meeting scheduled for January 5, 1989. To demonstrate their sincerity, the parties agreed not to bring attorneys to the meeting. During the meeting, the parties resolved the controversy by agreeing to the following: SFWMD would no longer consider the project to be in violation of Florida law if the Respondents submitted certain items that would cause SFWMD to issue certain permits and modify others. The Respondents would promptly file an application for a dewatering permit so that the governing board could issue the permit at its March 9, 1989 meeting. The Respondent's contractor would make no field changes in the mitigation or excavation areas without first obtaining appropriate permit modification from SFWMD. Small jockey pumps were to be installed to pump water from the internal water management system into certain cypress and/or mitigation areas for the sole purpose of establishing wetland vegetation within the areas. Respondents were to apply for a modification of Permit No. 36-00764-S, as currently modified, to allow a single phase of mining for the entire affected area. The perimeter dike was to be made structurally adequate. Respondents were to submit an alternative proposal for the disposal of cap rock within ninety days. In the meantime, the contractor could continue to bury the cap rock within the mitigation areas. Both parties demonstrated their reliance on the settlement reached in the meeting by their subsequent actions towards completing and processing the applications for permit modifications and additional permits. Although the noted violations were not cured by these actions, the parties intended to reach a cure or to mitigate for present permit violations through new permit conditions. The preliminary staff review of the Respondents' application for modification of Permit No. 36-00764-S, as currently modified, was completed by March 31, 1989. The following information was requested by SFWMD staff: Revised engineering calculations which reflect that the permitted discharge structure is five 18" CMP culverts. An explanation as to why the 6.3 acre maidencane/juncus marsh designated as a preserve area and the adjacent western preserve area were excavated and otherwise disturbed by project activities. The scrapedown methodology for the replanting of mitigation areas. The Respondents' plans for the area delineated on the plans as pine, which is currently permitted as part of a cypress preservation area. Dike certification and reservoir certification. The above-listed information was required to be returned to the SFWMD within ninety days from the date of the written request. At the close of the ninety days, the information was not received. A second request for a response within thirty days was submitted by SFWMD on August 4, 1989. In September 1989, the Respondents attempted to comply with SFWMD's second request for information. Communications continued in regard to the filed application for modification of Permit No. 36-00764-S, as currently modified, into December 1989. After the thirty days expired for the response to the second request for information dated August 4, 1989, SFWMD filed the Administrative Complaint in these proceedings. After the second request for information, a partial response was received from Respondent Hubschman's consultants. The application continues to go through the review process. It has not yet been deemed complete by SFWMD. As part of the resolution of the Notice of Violation dated December 20, 1988, SFWMD issued permit No. 36-01023-W to Respondent Hubschman for construction dewatering, excavation of an irrigation pond, and water storage at the site. The permit was issued on March 9, 1989. Special condition No. 20 of this permit requires a 200-feet setback from the cypress mitigation area and the irrigation pond being dewatered. The setback is shown on Exhibit 10 of the Bonita Farms Dewatering Application which was made part of the permit. A copy of the permit was attached to the Administrative Complaint. No evidence was submitted by SFWMD regarding alleged violations of Special condition No. 20 which were allegedly observed and documented after the permit was issued, before the filing of the Administrative Complaint Respondent Bob Cadenhead is the contractor hired by Respondents Hubschman to construct the surface water management system. There was no evidence presented to show the connection of another party, Respondent, Cadenhead & Sons Construction, to the project.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Surface Water Management Permit No. 36-00315-S be deemed to have vested as to all construction activity completed under the permit which was not addressed in the subsequent permit issued by SFWMD. The completion of the berm, as set forth in Attorney Ross' September 19, 1986 letter, should also be allowed to vest. That Permit No. 36-00764-S and its later modification be ordered to supercede the prior permit in all matters specifically addressed. That the parties be held to their prior agreements to resolve pending permit violations through the permit modification process. That the alleged dewatering violation in paragraph 19 of the Administrative Complaint be dismissed for lack of evidence. That a specific deadline be set to reasonably complete pending application modifications. That all future enforcement action specifically comply with Rule 40E- 1.612, Florida Administrative Code, and remain separate from any permit or permit modification applications. That the parties create a new, active permit file with current drawings and a specific construction schedule. That the Administrative Complaint and Order filed in these proceedings be dismissed. That future agreements be reduced to writing and signed by the proper parties before they are relied upon by either party. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5737 Petitioner's Proposed Findings of Fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO number 4. Accepted. See HO number 3. Accepted. Rejected. Improper summary. Accepted. See HO number 6. Rejected. Improper opinion testimony. Rejected. Irrelevant. Argumentative. Rejected. Legal argument. Accepted. See HO number 5. Rejected. Legal argument. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. See HO number 15. The argument presented in this paragraph is overly punctilious. It ignores the detrimental reliance of opposing parties to the agreement. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Legal argument and improper opinion. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Matters presented were either not ripe for these proceedings or not proved at hearing. See HO number 16-number 20 and HO number 23. Rejected. Contrary to fact and law. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings as separate from the Notice of Violation. Irrelevant. Accepted as fact, resolved by agreement. Rejected. Improper opinion testimony. Rejected. Improper opinion testimony. Rejected. Irrelevant. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. Accepted. Rejected. See HO number 15. Rejected. Cumulative. Rejected. See HO number 11-number 12. Contrary to fact. Accepted. See HO number 9. Accepted. Accepted. See HO number 16-number 20. Rejected. Matter is still pending. See HO number 16-number 20. Rejected. Resolved through agreement. See HO number 15. Rejected. Matter is still pending. See HO number 16- number 20. Rejected. Legal argument. Rejected. Not in pleadings. Irrelevant. Rejected. Irrelevant. Accepted. See HO number 21. Accepted. Accepted. Rejected. Speculative. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO number 13. Rejected. See HO number 23. Contrary to fact and pleadings. Accepted. See HO number 14. Accepted. See HO number 15. Accepted. See HO number 15. Accepted. See HO number 20. Accepted. Rejected. Argumentative. See HO number 20. Accepted. See HO number 4-number 7. Rejected. Contrary to fact. The permit modifica- tion specifically required replacement of a pump with 3 culverts. See HO number 5. Accepted. See HO number 5. Accepted. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. Rejected. Contrary to fact. See HO number 7 and number 11. Rejected. Contrary to fact. See HO number 11. Accepted. Accepted. Rejected. See HO number 15. Additional matters were agreed upon which were not reflected in the letter. This is an incomplete summary. Rejected. Irrelevant. Rejected. Irrelevant to these proceedings. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Contrary to fact. See HO number 8 and number 9. Rejected. See HO number 8 and number 9. Contrary to fact. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 23. Rejected. Contrary to fact. Accepted. COPIES FURNISHED: John J. Fumero, Esquire Office of General Counsel South Florida Water Management District Post Office Box 24680 West Palm Beach, FL 33416-4680 Kenneth G. Oertel, Esquire OERTEL HOFFMAN FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Russell Schropp, Esquire HENDERSON FRANKLIN STARNES & HOLT, P.A. 1715 Monroe Street Fort Myers, Florida 33902 John R. Wodraska, Executive Director South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 26th day of April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact On November 13, 1990, the St. Johns River Water Management District (SJRWMD) Governing Board voted to issue to the University of North Florida (UNF), a Management and Storage of Surface Waters (MSSW) permit #4-031-0359GM for the construction and operation of a surface water management system associated with road and parking lot construction on the UNF campus in Jacksonville. On the same day, the board also voted to issue water resource management permit #12-031-0007G authorizing dredging and filling in waters of the state related to said road and parking lot construction. Petitioners timely petitioned for hearing, challenging the SJRWMD decision to award the permits. Neither the standing of the Petitioners nor the Intervenor is at issue in this proceeding. The UNF campus contains approximately 1000 acres in Duval County, Florida, and lies completely within the jurisdiction of the SJRWMD. The UNF is an agency of the State of Florida, and has the apparent authority to make application for the referenced permits. The UNF campus is designated as a wildlife sanctuary. Of the 1,000 acres, wetlands constitute approximately 450 acres. Prior to development of the UNF campus, the property was utilized for silviculture, with pine trees farmed and harvested on the land. The property was and continues to be crossed by numerous logging roads and trails. During the 1970's extensive alterations occurred in the property related to local development activity. Swamps and stream flows were disrupted. Wetlands headwaters were altered by the construction of lakes. Adjacent highways and office developments were constructed, borrow pits were utilized, and wetlands were filled. There is some planted pine forest, generally no more than 40 years old, remaining on the UNF campus. Much of the UNF property remains undeveloped and consists of a variety of common habitat, including pine flatwoods, oak hammocks, and various wetlands. The existing UNF campus is crossed by a series of wetlands located generally north to south through the property. The wetlands include Sawmill Slough, Buckhead Branch, Boggy Branch, and Ryals Swamp. The water in the area flows to the southeast. Previous construction of UNF Drive required the crossing of Buckhead Branch and the filling of portions of Boggy Branch. The UNF now proposes to construct approximately .66 miles of three lane roadway across the southern portion of the campus to connect the existing UNF access drive into a loop (the "loop" road), approximately .34 miles of two lane roadway from a point on the loop into an upland area in the southeastern part of the campus (the "eastern connector"), pave an existing parking lot near UNF nature trails, and construct related surface and stormwater management facilities. The purpose of the loop road project is to enhance access around the UNF campus. The eastern connector will provide access to an undeveloped upland area of the campus. The expansion is related to and required by the anticipated continued growth of the University. The on-campus silviculture logging roads and trails, which remain from the pre-development period, have long been utilized by the UNF community as nature trails. The trails bisect a substantial part of the remaining undeveloped campus. In 1978, approximately 12 miles of trails were listed by the UNF with the United States Department of the Interior as National Recreational Trails, a national collected listing of recreational trails. These named trails, (the "maintained trails" as identified below, and the White Violet, Switchcane, and Turkey Trace trails) were marked by means of paint blazing and signs. In some locations, such markings, and at least one sign remain visible, even though the paint markings have not been repainted since the original blazing occurred. The UNF is fiscally unable to maintain all twelve miles of trail for general public use. The UNF concentrates maintenance and education efforts on three of the trails, the Blueberry, the Red Maple and the Goldenrod (hereinafter referred to as the "maintained trails"). The maintained trails, approximately 6 miles in total length, are signed and marked to provide clear and safe direction through the area. For public use, the UNF provides educational materials related to the maintained trails. Approximately 17,000 persons use the maintained trails annually. Two rangers are employed to supervise the maintained trails. In the most recent two year fiscal period, about $21,000 has been spent rebuilding and upgrading parts of the maintained trails. The UNF provides no security for the logging trails (hereinafter the "unmaintained trails") which are not part of the maintained trail system, and does not encourage the use of the old logging roads as trails. The proposed road construction project will adversely affect the use of the unmaintained trails because the road projects will intersect and overlap several of the trails. The evidence fails to establish that the UNF is without authority to amend, alter, relocate or abandon trails listed with the United States Department of the Interior as National Recreational Trails, or that notice need be provided to the Department prior to such action. There are additional recreational facilities available on the UNF campus, including two jogging trails, as well as a multi-sport facility in the north part of the campus. Approximately 10 total miles of trails exist (including the maintained trails and excluding the unmaintained logging trails). Persons who travel to the maintained trails by automobile currently park in an unpaved lot. The proposed roadway construction for which permits are being sought includes expansion and paving of the nature trail parking lot. This improvement will provide for better access to, and increased utilization of, the maintained trails and eliminate maintenance problems experienced in relation to the unpaved parking area. Notwithstanding the adverse impact on current use of the unmaintained logging trails, the project will enhance recreational development. Operation of the stormwater system, which will result in improved water quality discharged into the receiving waters, will not adversely affect recreational development. Although the recreational values of the impacted unmaintained trails will be adversely affected, on balance the additional access to the maintained trails and the recreational opportunities presented elsewhere on the UNF campus negate the impact on the unmaintained trails. Construction of the roadway will adversely impact portions of the Boggy and Buckhead Branches, which contains wetlands (as defined by, and under the jurisdiction of, the SJRWMD) and waters of the State of Florida (as defined by, and under the jurisdiction of, the Florida Department of Environmental Regulation, which has authorized the SJRWMD to review projects on the DER's behalf). The extent of the wetland impact was determined by the UNF and corroborated by the SJRWMD in an reliable manner. The wetlands impact areas are identified as follows: Area 1, at the upper margin of Boggy Branch, includes slash pine canopy and mixed bay trees; Area 2 is primarily second growth loblolly bay canopy, dense undergrowth, swamp. The loblolly is approximately 20 years old; Area 3 is a west flowing connection between Boggy and Buckhead Branches; Area 4, (the Buckhead Branch crossing), is bay canopy and bottomland hardwood. Areas 1, 2 and 4 will require filling for the construction of the loop road. Area 3 requires filling for the construction of the eastern connector. A total of approximately 2.3 total acres of forested wetlands are included within the impacted area. Of the 2.3 acres identified as wetlands for MSSW permitting purposes, 1.5 acres are classed as waters of the state for purposes of dredge and fill permitting. The wetlands are generally classified as fair to poor quality, although there is a limited wetland area classified as fair to good quality. The wetlands impact of the project on wetland dependent and off-site aquatic species would, without mitigation, be unpermittable. The loop road project includes three drainage areas. Accordingly to plans, drainage area #1 is served by curbs and gutters into storm sewers and discharging into wet detention pond E, drainage area #2 is served by curbs and gutters into storm sewers and discharging into wet detention pond F, and drainage area #3 is served by curbs and gutters discharging into a dry retention swale located adjacent to the road. Stormwater management and treatment for the eastern connector will be provided by a swale system located adjacent to the eastern connector. The western portion of the loop road and the newly paved nature trail parking lot will be separately served by a dry swale system and two retention ponds at the newly paved nature trail parking lot. Wet detention ponds retain the "first flush" stormwater runoff and discharge the water at a reduced rate through a "bleed down" structure. Pollutant removal occurs when first flush runoff is retained and mixed with additional water. Pond and soil organisms and littoral plants provide additional treatment. Such ponds are effective and require minimal maintenance, generally involving removal of nuisance species and cleaning of the "bleed down" structure. Oil skimmers will prevent the discharge of oils and greases from the site. The wet detention ponds have side slopes no steeper than a 4 to 1 horizontal to vertical angle and will be mulched or vegetated to prevent erosion. Dry retention facilities retain the "first flush" runoff and attenuate peak stormwater discharge. The water within the dry swale is filtered as it percolates down through the soil. Maintenance of dry swale systems requires mowing and removal of silt buildup. The design of the system provides that the post development peak rate of discharge will not exceed the pre-development peak rate of discharge for a 24 hour duration storm with a 25 year return frequency. The project will not cause a reduction in the flood conveyance capabilities provided by a floodway. The project will not result in flows and levels of adjacent streams, impoundments or other water courses being decreased so as to cause adverse impacts. The projects detention basins will provide the capacity for the specified treatment volume of stormwater within 72 hours following a storm event. The project is not located in and does not discharge directly to Class I or Class II waters, to Class III waters approved for shellfish harvesting, or to Outstanding Florida Waters. The receiving waters for the system are Boggy and Buckhead Branches, both Class III surface waters. Operation of the system will not cause or result in violation of state water quality standards for the receiving waters. The discharge from the system will meet Class III water standards. There is no evidence that operation of the system will induce pollution intrusion. The design and sequence of construction includes appropriate Best Management Practice provisions for erosion and sediment control, including silt barriers and hay bales. Such provisions are required by the SJRWMD permit conditions. Silt barriers will completely enclose the dredging locations. The bottoms of silt curtains will be buried and will extend 3.5 to 4 feet above the land surface. Slopes will be stabilized by sodding or seeding. The locations of the wet ponds and dry swales, nearby the roadways, will facilitate maintenance activities. Maintenance requirements are included within the SJRWMD permit conditions and are sufficient to ensure the proper operation of the facilities. Although the Petitioners asserted that prior violations of SJRWMD rules related to water quality discharge by the UNF indicate that the UNF is not capable of effectively and adequately operating and maintaining the system, the evidence establishes that the permit conditions are sufficient to provide for such operation and maintenance. The project also includes replacement of an existing culvert at a connection between Boggy and Buckhead Branches. The existing culvert is impounding water during the wet season. The replacement culvert will be installed at the connection floor elevation and will serve to restore the natural hydrology. The new culvert will also be substantially larger than the existing pipe, and can allow fish and wildlife passage under the road. In order to mitigate the impact of the project on wetland dependent and off-site aquatic species, the UNF has proposed to create a 6.3 acre freshwater forested wetland at a site contiguous to Buckhead Branch. The wetlands creation project includes 2.9 acres of submerged wetlands and 3.4 acres of transitional wetlands. Of the 6.3 acres, 4.1 acres of the created wetlands are designated to mitigate the adverse impacts related to the dredge and fill activities. The mitigation proposal constitutes a ratio of 2.7 acres of wetlands creation for every acre of wetland impact. The mitigation site is a low upland pine flatwood and mesic flatwood area surrounded on three sides by wetlands related to Buckhead Branch. The mitigation area will be scraped down to a suitable level and over-excavated by six inches. The elevation of the proposed wetland creation area is based upon water table data and surveying of the Buckhead Branch, located adjacent to the proposed mitigation area, which serves as the wetlands reference area. The UNF monitors surface and ground water elevation in the proposed mitigation area and in Buckhead Branch, and records rainfall amounts. The hydrology of the proposed wetland creation area is based upon the connections of the created wetlands with Buckhead Branch and is sufficient to assure an appropriate hydroperiod. The six inch over-excavation will receive muck soils removed from the impacted wetland areas. The subsurface soils in the wetland creation area are, because of the existing water table level, compatible with the wetland creation. The muck soil will naturally contain seeds and tubers of appropriate vegetation. Additionally, wetland trees, based upon trees in adjacent wetland areas, will be planted in the wetland creation. Prior to planting, the UNF will be required to submit an as-built survey demonstrating that the hydrology and elevation newly- created wetland is proper. The UNF proposal to monitor and maintain the created wetland includes physical and aerial examination of the site, which will be protected by a deeded conservation easement. The monitoring and maintenance plan will continue for three years. The mitigation effort must achieve a ground cover of not less than 80% to be considered successful. Nuisance species will comprise less than 10% of the site's vegetation, and excessive nuisance species will be removed. The UNF is required to periodically report the status of the site to the SJRWMD. The mitigation proposal is adequately detailed and sufficient to offset adverse impacts to wetlands resulting from construction and operation of the system and the dredge and fill project. The wetland creation permit conditions indicate that the wetlands will function as designed and approved by the SJRWMD. The wetland creation is greater in size than the impacted wetlands, will replace the habitat and function of the impacted wetlands and will offset the adverse impacts of the loss of existing wetlands. There will be no impact on any threatened or endangered animal species. The evidence that such species utilize impacted sites is limited. Existing utilization of the impacted site will be accommodated by the remaining wetlands and the created wetland mitigation area. There is no evidence that fish will be adversely affected by the project. Construction and operation of the system will not cause adverse changes in the habitat, abundance, diversity or food sources of threatened and endangered species or off-site aquatic and wetland dependent species. More than five years ago, a bald eagle, listed as endangered by the State of Florida, was observed perched on an upland tree in an area where a retention pond will be constructed. The eagle was not nesting or feeding at the time of observation. The closest known eagle's nest is more than four miles away from the site. None of the impacted area provides appropriate feeding ground for a bald eagle. Colonies of red-cockaded woodpeckers exist between one and one half to ten miles away from the UNF campus. Red- cockaded woodpeckers have been observed on the UNF campus but not in the vicinity of the areas to be impacted by the project. Red- cockaded woodpeckers habitat pine trees at least 50 years old. While the existing pine may provide red-cockaded woodpecker habitat in the future, the pine trees to be impacted by this project are not suitable habitat for red-cockaded woodpeckers at this time. There are no pines on the UNF campus which would currently provide suitable red-cockaded woodpecker habitat. Woodstorks have been sighted on the UNF campus, but not in the impacted area or the mitigation area. Woodstorks feed in areas dissimilar to the impacted areas, therefore there should be no impact on the species. Gopher tortoises have been observed on the UNF campus, but not in the impacted wetland areas or in the mitigation areas. There is no evidence that gopher tortoises would be impacted by this project. A number of animal species identified as wetland dependent have been observed on the campus. However, the evidence of actual utilization of impacted areas by such species is unclear as to frequency and manner of utilization. Such wetland-dependent species are capable of utilizing proximal habitat and will be absorbed by the unimpacted wetland acreage on the UNF campus. Further, the impact on potential habitat caused by the project will be effectively mitigated through the created wetland area. Five hooded pitcher plants are located within the wetland impact area and will be destroyed by construction activities. The hooded pitcher plant is listed by the State of Florida as a threatened species, however, the plant is common in wet areas throughout Duval, Clay, St. Johns and Nassau Counties. Because the muck soils removed from the area will contain seeds, roots and rhizomes from existing vegetation, the plants will likely reproduce in the created wetland area which will contain the muck soil removed during the permitted construction activity. There is no evidence that the dredge and fill project will adversely affect public health, safety and welfare. There are no significant secondary impacts resulting from the proposed project. The SJRWMD considered the environmental impacts expected to occur related to the construction of the roadways for which the permits are sought. In this case, the anticipated secondary impact of the project relates to the effect of automobiles on existing wildlife. The evidence does not establish that there will be such an impact. The road poses no obstacle to wildlife migration. The replacement of the existing culvert with a new culvert at the proper ground elevation may provide enhanced access for some wildlife. The cumulative impacts of the project include the potential expansion of the eastern connector which would require the crossing of Boggy Branch, and future building construction in the southeast portion of the UNF campus. There is no evidence that such impacts, which would require additional permitting, could not be offset with additional mitigation at such time as the permitting is sought.
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 11-12, 1991, in Jacksonville, Florida.
Findings Of Fact Introduction Respondent, South Florida Water Management District (SFWMD or District), is a creature of the legislature having been created under Chapter 373, Florida Statutes (1985). It has jurisdiction over and administers all "waters in the District", including the regulation of the management and storage of surface waters. According to the map depicted in Rule 40E-1.103, Florida Administrative Code, the SFWMD's jurisdiction appears to extend over all of Monroe, Dade, Broward, Collier, Palm Beach, Martin, Lee, Hendry and Glades Counties and portions of St. Lucie, Okeechobee, Osceola, Charlotte and Orange Counties, Florida. A precise legal description of its boundaries is found in Subsection 373.069(2)(e), Florida Statutes (1985). Under the District's surface water management permitting authority, a permit is required for the construction of any works that impound, impede, obstruct or otherwise impact the flow of water, irrespective of whether the property contains a wetland of any nature. To implement the above jurisdiction, the District has adopted by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a technical manual entitled "Basis of Review for Surface Water Management Permit Application within the South Florida Water Management District" (Basis for Review). The manual was first adopted in 1977 and has been readopted with various modifications since that time. The most recent version became effective in July 1986. The manual contains criteria to be used by the District when reviewing permit applications for the construction and operation of surface water management systems within its jurisdictional boundaries. These criteria specify the manner in which an applicant must provide reasonable assurance that a project meets SFWMD objectives, and include both water quantity and quality considerations as well as environmental standards designed to protect fish and wildlife. One feature of the Basis of Review is a provision allowing an applicant to submit and implement innovative project designs as long as they meet District objectives. Many of the principles embodied in the Basis of Review have been carried forward into the challenged rules. An applicant may apply for a conceptual approval or a construction and operation (C&O) permit. The conceptual approval is a permit for a master plan when the applicant is not ready to submit all detailed drawings necessary to obtain a C&O permit. It is especially appropriate for large projects developed in phases. A conceptual approval does not authorize construction of a surface water management system, but rather authorizes a master plan with which subsequent construction and operation must be consistent. Once a conceptual permit has been issued, the individual C&O permits are then applied for and issued consistent with the terms of the conceptual permit. In 1986 the Legislature enacted Section 373.414, Florida Statutes (Supp. 1986). That section requires the District, not later than March 31, 1987, to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department (of environmental regulation) for purposes of regulation of dredging and filling." The statute goes on to require that the rule include the following: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. The statute further provides that until the District adopts specific isolated wetland rules, its review of fish and wildlife impacts in small isolated wetlands is limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. In response to the foregoing legislation, and after a series of meetings and workshops, on November 7, 1986 the District proposed to amend existing Rules 40E-4.091 and 40E- 4.301, Florida Administrative Code. The text of the amended portion of Rule 40E-4.301 reads as follows: 40E-4.301 Conditions for Issuance of Permits. (1)(m) is not against public policy, and will meet the general and specific criteria in the document described in Rule 40E-4.091(1)(a), and will meet the criteria for isolated wetlands, which are found in Appendix 7 of the document described in Rule 40E-4.091(1)(a) (Underscored words represent the proposed amendment.) In conjunction with the foregoing, the District prepared an economic impact statement (EIS) which read as follows: SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULE: 1. COST TO THE AGENCY: The proposed rule largely reflects existing policy and procedure but enunciates the specific guidelines the District applies in permitting decisions. The rule strikes a balance between specific quantitative guidelines and administrative flexibility with regard to permitting decisions. While there may be some initial implementation costs to the District, a minimal total cost increase to the agency is expected. The specific quantitative guidelines provided in the Appendix are expected to facilitate agency decisions regarding required mitigation- compensation, so that in the long run costs may actually decline as a result of implementation of the new criteria. There are no plans to change the size of District regulatory staff as a result of implementation of the standards in Appendix To the extend that additional staff is required in the future to address the impacts of permitting decisions on wetland habitat on threatened and endangered species, this impact can more correctly be attributed to the adoption of Section 373.414, F.S., by the Florida Legislature than to this rule. COSTS AND BENEFITS TO THOSE DIRECTLY AFFECTED: Appendix 7 provides the applicant with the choice of either meeting specific quantitative project design criteria or proposing a unique project design which will be reviewed by a qualitative standard to ensure that the proposed project complies with the District's objective of protecting isolated wetlands and their associated fish and wildlife functions and values. The requirements that project applications which proposed to impact wetlands provide reasonable assurances, such as mitigation/compensation, maintenance plans, monitoring and a guarantee of performance, is expected to result in some cost increases to permittees. Such require- ments are likely to improve the effectiveness of District protecting the water and related land resources of the District. IMPACT ON COMPETITION AND THE OPEN MARKET FOR EMPLOYMENT: No significant impact on competition and the open market for employment is expected. IMPACTS ON SMALL BUSINESS: The quantitative criteria in the Appendix set differential standards on the basis of isolated wetland size rather than firm size. Large projects are expected to have slightly greater flexibility in meeting the reasonable assurance requirements than small projects; however, the differential impact on small business, as defined in Section 288.703, Florida Statutes, is not expected to be significant. DATA AND METHODS USED: Data from the computer files of the District's Resource Control Department were the primary source of data used. Appendix 7 adopted by reference in amended Rule 40E- 4.301(1)(o) is a document entitled "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District - Appendix 7 - Isolated Wetlands" (Appendix 7). As originally proposed for adoption, the Appendix contained sections 1.0 through 6.0 covering the following subjects: introduction (1.0), glossary (numbered as 2.0 and containing sections 2.1, 2.2, 2.3, 2.4, 2.7., 2.9 and 2.10), size threshold (3.0), review procedures for projects which propose to impact isolated wetlands (numbered as 4.0 and containing sections 4.1-4.5), review criteria (5.0), quantitative design criteria (5.1.1., 5.1.2., 5.1.3, 5.1.4, 5.1.5, 5.1.7 and 5.1.8), qualitative criteria (5.2-5.2.3) and project guarantee criteria (numbered as 6.0 and containing sections 6.1-6.3). For purposes of surface water management permitting, Appendix 7 applies only to activities in isolated wetlands while all other activities are subject to the criteria embodied in the Basis of Review. On November 26, 1986 petitioners, Orlando Central Park, Inc. (OCP), Real Estate Corporation of Florida, N.V. (REC), and National Association of Industrial and Office Parks, Region IV (NAIOP), filed a Petition for Administrative Determination of Invalidity of Proposed Rules wherein they sought to have declared invalid proposed rules 40E-4.091(1) and 40E-4.301(1)(o). In their petition, petitioners generally challenged all or portions of sections 2.0, 3.0, 4.0, 5.0, 5.1., 5.2 and 6.0-6.4 in Appendix 7 as well as the sufficiency of the EIS. In light of the above petition having been filed, the District again considered its proposed rules on January 8, 1987 and amended Appendix 7 in a number of respects. The revised Appendix has been received in evidence as joint exhibit number 2. As a result of those revisions, and as reflected in their post- hearing pleadings, petitioners have limited their attack to sections 2.2, 4.2b, 4.3, 4.4, 5.1.1a, 5.1.1b, 5.1.1d, 5.1.2, 5.1.3 and 5.1.7 in Appendix 7 and the adequacy of the EIS. On January 15, 1987 intervenor/respondent, The Florida Audubon Society (intervenor or FAS), filed a petition to intervene. This petition was granted conditioned upon intervenor proving up at final hearing its standing in the proceeding. Standing In order to challenge a proposed rule, a party must generally demonstrate that its substantial interests will be affected by the challenged rule. To do so, petitioners presented evidence on this issue at final hearing. In the same vein, the standing of intervenor was also questioned, and it too presented evidence to demonstrate its right to have access to this proceeding. REC - REC is the owner and developer of a residential and commercial development consisting of approximately 2,400 acres known as the Buenaventura Lakes Planned Unit Development between Kissimmee and St. Cloud in Osceola County. The project has been subdivided into what is known as Basins 1, 2 and 3, of which the undeveloped acreage lies within the latter Basin. The corporation has plans to develop the remaining acreage into single family and multi-family residential and commercial developments but has not yet obtained the necessary environmental permits for the undeveloped tract. Through the testimony of an REC representative, the undeveloped acreage was described as having open grasslands, wooded areas and low, marshy areas. Some portions of the land were also described as a "wet, marshy, boggy area." However, their specific size was not disclosed, and there was only conjecture on the part of petitioners' expert that the areas were in fact isolated wetlands as defined in the proposed rule. The representative fears that if jurisdictional isolated wetlands are located within Basin 3, and the rules are adopted, it will impact upon REC in that more restrictive permits will be required prior to any further development of the land. The District has previously issued construction and operation permits for Basins 1 and 2 and necessary Department of Environmental Regulation (DER) permits have also been obtained. None have been sought or issued for Basin 3, and there was no evidence that a letter of conceptual approval covering drainage in Basin 3 has been issued by the District. Had one been issued, the project might be grandfathered and exempt from the pending rules. Even so, the record does not support a finding that isolated wetlands as defined in the proposed rule are definitely located within Basin 3 so as to make REC's substantial interest affected by this proceeding. NAIOP - The NAIOP is a national non-profit organization of developers, consisting of some 6,000 members nationwide. In Florida, it has four chapters (Jacksonville, Fort Lauderdale, Orlando and Tampa) and "several hundred" members. As developers of office, industrial and commercial real estate, it is necessary that its members obtain permits from the District on certain projects within the District's jurisdiction. The association monitors all rulemaking proceedings affecting its members, and has actively lobbied the legislature on environmental matters. It has appeared before the District and DER concerning rules and policy, especially those that affect the permitting process. According to an NAIOP representative, Eric B. Eicher, approximately 30 percent of its state members do business in SFWMD jurisdictional territory. However, Eicher had no first-hand knowledge as to how many members owned property within the District, or whether any members are intending to develop isolated wetlands which would be subject to the proposed rule. Indeed, he admitted that only two members had even talked to him about the proposed rules. As such, the NAIOP has not demonstrated any immediate and discernible impact that the proposed rule would have on its members. OCP - The OCP is a wholly-owned subsidiary of Martin-Marietta Corporation, a large corporation with offices in the Orlando area. However, Martin-Marietta is not a party in this proceeding. OCP itself is the owner and developer of an office, industrial and commercial park known as Orlando Center Park in Orange County, Florida. In addition, OCP acts as the developer of certain properties owned by Martin-Marietta. At the present time, OCP has approximately 2,400 acres in its own name which it intends to develop. They are generally located in an area west of the Florida Turnpike, south of Sand Lake Road, north of the Beeline Expressway and east of 1-4. Various aerial photographs and maps of the area were received in evidence as petitioners' exhibits 5, 8 and 9. It is undisputed that this property lies within the territorial jurisdiction of the SFWMD. On November 17, 1977 the District issued a permit granting conceptual approval of a master plan for the development of certain properties owned by OCP. However, the permit itself (petitioners' exhibit 15) did not include a review of impacts on wetlands for OCP's property. Therefore, the project is not grandfathered under proposed rule 4.1, and is subject to the new rules. If the proposed rules are adopted, OCP would have to modify its master plan and reduce the amount of its sellable or developable property. In two jurisdictional determinations performed by DER in 1983 and 1984, DER identified various isolated wetlands on OCP's property not subject to DER jurisdiction. These are located on what are identified as phases 8-B and 9 of the undeveloped tract of land (petitioners' exhibits 8 and 13). Since it is undisputed that OCP intends to develop this land, OCP is substantially affected by the proposed rules. FAS - Intervenor, which supports the rule amendments, is a non-profit association with principal headquarters in Maitland, Florida. Its membership numbers some 30,000, of which a large part live in Southeastern Florida and within the territorial jurisdiction of SFWMD. Although only one member (its president) testified at final hearing, it was the president's contention that "most" of its members support the proposed rules and the perpetuation of the isolated wetland as a function for wildlife. Through documentation offered in evidence as intervenor/respondent's exhibit 1, it was established that FAS owns various tracts of undeveloped land in Lee, St. Lucie and Collier Counties, which lie within SFWMD's boundaries. A part of these lands are isolated wetlands, and other parts are adjacent to wetlands areas. Although FAS expressed a fear that adjacent wetlands may be developed if the proposed rules are invalidated, it offered no proof of impending developments on isolated wetlands, or that such development would occur on properties adjacent to its own. Therefore, any adverse impact is remote and speculative, and has no immediacy or reality. The FAS has entered into a contract with the Game and Fresh Water Fish Commission to administer the Florida Breeding Bird Atlas Program. Under the program, FAS has contracted to establish a baseline of the numbers and types of breeding birds in the State. The FAS fears that if the rule amendments are not adopted, the destruction of wetlands will occur, thereby interfering with its ability to carry out the contract. Again, however, it offered no proof of impending developments on adjacent isolated wetlands, or otherwise established that its substantial interests under the contract would be affected. Economic Impact Statement Other than the introduction of the EIS into evidence as joint exhibit 4, there was no relevant factual evidence presented by the parties concerning the insufficiency or inaccuracy of the EIS. It is noted, however, that the District merely estimated that the proposed rules would "result in some cost increases to the permittees", and did not attempt to precisely identify the economic impact. Respondent offered into evidence various documents upon which it relied in preparing the EIS. However, such documents are hearsay, and it was not shown what competent evidence, if any, they were intended to supplement and explain. The Challenged Rules Petitioners' real concern lies with portions of Appendix 7 which has been adopted and incorporated by reference by Rule 40E-4.301(1)(o), Florida Administrative Code. That document spells out in detail the criteria that will apply to applications for surface water management permits where the proposed activity affects isolated wetlands. As noted earlier, the Appendix is divided into a number of sections, which for ease of discussion will be referred to as "rules." Each challenged "rule" will be dealt with separately. Rule 2.2 - This rule defines an "isolated wetland" as follows: Any wetland not under the jurisdiction of the Department of Environmental Regulation (DER) for the purposes of regulation of dredging and filling. Multiple individual wetlands normally connected by surface flow during a wet season with average rainfall shall be presumed to be an isolated wetland. The first sentence of the rule simply provides that any wetland not subject to DER dredge and fill jurisdiction is to be considered an isolated wetland and subject to Appendix 7 criteria. Conversely, if a wetland is subject to DER jurisdiction, any District regulated activity affecting that land must be considered under the existing Basis of Review criteria. Petitioners' concern is with the second sentence of the rule and is that whenever multiple isolated wetlands are connected by surface flow during the wet season, they believe the rule would confer jurisdiction in SFWMD not only over the isolated wetlands themselves, but also the uplands that lie adjacent to and between the individual wetlands. But, through credible and persuasive testimony, it was established that this is not the intent or result of the proposed amendment. Indeed, it was established that jurisdiction is intended to lie only over the wetlands themselves, and not the connecting uplands. Petitioners also object to the District aggregating small isolated wetlands into a single larger isolated wetland for jurisdictional purposes. However, such aggregation is necessary because of the biological interaction between the small wetlands. Petitioners further voiced some criticism of the provision in the rule that connected wetlands shall be presumed to be an isolated wetland. Even so, the rule allows an applicant to present evidence to contradict this presumption. Finally, despite suggestions to the contrary, there was no evidence of any conflicting DER policy or concept regarding isolated wetlands, how such wetlands are defined by DER, or that DER prefers the District to follow such policy or definition. Rule 4.2b. - This rule prescribes certain information that must be filed by an applicant for a permit whenever the project impacts isolated wetlands. As is pertinent here, Section b. requires the following to be filed with the application: b. A list of all plant and animal species listed as endangered, threatened or of special concern pursuant to 50 Code of Federal Regulations, Section 17.12, and Rules 39-27.03, 39-27.04 and 39-27.05, Florida Administrative Code, which are incorporated by reference and made a part of this rule which utilize the area and an evaluation of the probable significance of the area to the listed species. Petitioners object to the requirement that an applicant submit a list of all plant species of special concern as defined by Rule 39-27.05, Florida Administrative Code. This rule was promulgated by the Game and Fresh Water Fish Commission and designates some forty-three plant "species of special concern". Petitioners' objection is based on the premise that the term "species" does not include plants, and that plant species are accordingly outside the purview of the District's permitting authority. However, they presented no evidence to support this construction of the term. In contrast, through testimony from a National Audubon Society employee, it was established that the term "species" not only includes animals, but plants as well. Mitigation/Compensation Rules - A number of rules within Appendix 7 make reference to mitigation and compensation proposals to be submitted by applicants whose projects impact isolated wetlands. As is relevant here, they include rules 4.3, 4.4, 5.1.1a., b. and d., 5.1.2, 5.1.3 and 5.1.7, all challenged by petitioners. These rules generally require or provide for mitigation when an applicant intends to impact or destroy all non-exempt isolated wetlands 0.5 acre to 5.0 acres in size. It is petitioners' contention that the District has no authority to require or otherwise provide for mitigation or compensation as a permit criterion. Mitigation is defined in rule 2.8 as "remedying isolated wetland impacts by restoring or enhancing affected habitat, or by creating similar habitat of equal or greater function". Compensation is defined in rule 2.9 as the "replacement of isolated wetlands with a mixture of wetland/upland habitat, unique upland habitat, or otherwise provide overall benefits to the natural system". Mitigation is a common practice in environmental permitting and has been routinely used by the District in its existing Basis for Review. Indeed, at the present time ``most'' applicants include a mitigation plan with their applications for permits. Even petitioners' expert conceded that the use of mitigation is "a reasonable practice" and has resulted in "better projects", and "better" protection of the water resources. Rules 4.3 and 4.4 require applicants who propose mitigation or compensation to submit certain information with their applications. This information is necessary to insure that the mitigation/compensation plan will be successful. It is also noted that mitigation is not used or required for every project, and can be avoided where a project has other built-in compensation features. The new rules simply continue existing agency policy. Rules 5.1.1a. and b. provide the following presumptions concerning mitigation and compensation: Mitigation or compensation for elimination of isolated wetlands between 0.5 and 5.0 acres in size, pursuant to Section 5.1.2 below, shall be presumed to maintain wetland functions. There is no presumption that the function of isolated wetlands over 5.0 acres in size can be maintained by measures other than protection as defined in Section 2.4 above. Protection of isolated wetlands over 5.0 acres in size shall be the preferred method of providing the required reasonable assurance, however, other reasonable alternatives proposed by the applicant will be considered. Section a. creates a presumption in favor of the applicant that mitigation or compensation, in ratios specified within the rules, shall be presumed to maintain the functions of isolated wetlands between .5 and 5 acres in size. Section b. eliminates this presumption for isolated wetlands over five acres in size since the District's experience has been that applicants have not generally been successful in mitigating larger wetlands, and that it is more difficult to mitigate and compensate for larger projects. Even so, the rule allows an applicant to present "other reasonable alternatives" to mitigation. Petitioners object to the presumption in Section b. since they contend it reposes in the District the authority to preserve isolated wetlands over 5.0 acres in size. However, this "authority" comes into play only when the criteria cannot be met, and the applicant fails to present "other reasonable alternatives". Rule 5.1.1d. provides as follows: (d) Protection of isolated wetlands or incorporation of isolated wetlands into surface water management systems in favored over isolated wetland destruction and mitigation or compensation. Wetland destruction and mitigation or compensation shall be considered only when there are no feasible project design alternatives for the particular site. Reasonable project design alternatives to isolated wetland impacts shall be considered. This rule essentially favors the protection of isolated wetlands as opposed to their destruction. It goes on to permit destruction and mitigation/compensation whenever there are no "feasible project design alternatives". In other words, the District has established a first priority of preserving wetlands whenever possible, and allowing destruction only when no "reasonable project design alternatives" are available. Under the latter situation, mitigation/compensation will then be required. Petitioners assert the term "feasible project design alternative" is not readily understood, or comprehensible to the average person. However, even their engineer stated he could "apply it", and that he "normally" goes about designing projects consistent with the terms of the rule. It was further established that the District construes the terms "feasible" and "reasonable" to be synonymous, and that the rule would not require an applicant to present a proposal that was prohibitively expensive, or technically unfeasible. Rule 5.1.2 also deals with mitigation/compensation and addresses mitigation ratios to be used by applicants. It reads as follows: Isolated wetland mitigation shall be implemented based upon ratios of acres wet- lands created, or restored to acres of wet- lands destroyed which provide reasonable assurance that the mitigation will be successful. The following ratios shall be presumed to provide such reasonable assurance for type-for-type mitigation: Forested swamp, non-cypress dominated-2. 5:1 Forested swamp, cypress dominated---2.0:1 Freshwater marshes 1.5:1 Ratios for mitigation with unlike habitat, including expanded littoral zones, or compen- sation shall be determined on a case-by-case basis. When type-for-type mitigation is provided as defined in Section 2.8 and accepted by the District prior to isolated wetland impacts, a one-to-one ratio shall be presumed to provide such reasonable assurance. The rule explains that the prescribed mitigation ratios provide reasonable assurance that the creation or restoration will be successful. It is a natural corollary to the District's mitigation/compensation policy. Testimony established that these ratios were reasonable, favor an applicant, and are consistent with the different natural communities to which they apply. Higher ratios of wetlands created to wetlands destroyed are necessary because of the time required for an artificially created replacement system to provide all of the previous native functions. Finally, the use of a one-to-one ratio when type-for- type mitigation is used reduces the amount of land required by an applicant for mitigation, and provides flexibility from the otherwise specified ratios. Rule 5.1.3 prescribes the use of mitigation/compen-sation where disturbed wetlands are impacted by a project. It reads as follows: Disturbed isolated wetlands may be developed and their loss compensated for by: Mitigation at ratios less than those required in 5.1.2, based on the degree of disturbance and the remaining functional qualities. Mitigation through restoration or other disturbed wetlands is preferred over wetland creation. Preservation of unique uplands or in- clusion of developable uplands within an up- land/wetland protected system. Mitigation or compensation shall not be required for isolated wetlands which do not provide fun- ctions and values as expressed above in Sections 1.0 and 5.0. Unlike rule 5.1.2., this rule provides for mitigation ratios based upon the degree of disturbance and the remaining functional qualities of the wetland. It is too is a natural corollary of the District's stated policy. It recognizes that some wetlands have been disturbed, and that the ratios prescribed in rule 5.1.2. are inappropriate and too rigid for a previously disturbed wetland. Rule 5.1.7 - The final rule challenged by petitioners provides for the establishment of "buffer zones" under certain conditions. It is petitioners' contention that, like many of the other cited rules, the District has no authority to adopt the rule because buffer zones in upland areas are not a part of the surface water management system. A buffer zone is defined in rule 2.7 as "an area adjacent to the isolated wetland which protects wetland function and minimizes adverse impacts of upland development on wetland function". The challenged rule reads as follows: Buffer zones may be required around all isolated wetlands that are to be protected or incorporated into a surface water management system to protect wetland function and mini- mize adverse impacts of upland development on wetland function. Actual delineation of the buffer zone may vary according to site specific conditions. Buffer zones which extends (sic) at least fifteen feet landward from the edge of the wetland in all places and averages twenty-five feet from the landward edge of the wetland will be presumed to be adequate. Prior to issuance of Construction and Operation permits, buffer zones shall be field verified and delineated in the field. Buffer zones may consist of undisturbed uplands, open water bodies, wildlife corr- idors or other natural or structural features which serve the purpose stated in Section 2.7 as appropriate for the particular site. Upland areas or wildlife corridors adja- cent to buffer zones may be incorporated as compensation areas, provided they are in excess of the minimum buffer zone and meet all other requirements for compen- sation areas. Under current District policy, buffer zones are required around wetlands whenever they are necessary to maintain the integrity of the wetland. They are a reasonable tool in the District's arsenal to protect water, fish and wildlife resources. Testimony established that they are particularly essential when an applicant proposes to build a project immediately adjacent to a wetland so that erosion or destruction of the wetland may be avoided. The rule merely extends the District's existing policy to isolated wetlands.
