The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a Management and Storage of Surface Waters (MSSW) permit for a surface management system to serve its proposed development in Marion County, Florida.
Findings Of Fact PROPOSED PROJECT Celebrity is seeking a District MSSW permit to construct a surface water management system to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The entire site is within the geographic boundaries of the District. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Parts of Marion County and Alachua county have been designated as Sensitive Karst Area Basin by the District. The project site is located in the designated area. The existing land use is open pasture. The property was previously used for citrus groves. STANDING Concerned Citizens of Orange Lake Area is an unincorporated group of approximately 76 individuals who want to prevent pollution of Orange Lake. Of the 76 members, three members were present and testified at the hearing. The members attending the hearing were an artist (Riley), a photographer (Suto), and a bass guide (Solomon). Ms. Suto testified that she lives about 1 to 1 1/2 miles from the site. Ms. Riley testified that she lives next door to Ms. Suto and determined that to be over two miles away from the site. Mr. Solomon testified that he lives on the southeast side of Orange Lake approximately 1 to 1 1/2 miles from the project site. No witness testified that any member has a property interest in the subject property. Of the members who testified, none use the subject property. There was no testimony that other members use the property. Twenty-six members wrote letters of concern to the District. Ms. Suto testified to the existence of high levels of lead in her well water. WATER QUANTITY The existing land use, pasture, was used to determine the pre- development peak rate and volume of discharge. The existing surface drainage of the 75-acre project site is divided into two basins. On the north side of the property, the surface water flows toward Orange Lake. This basin is designated on the plans, sheet 3 of 16, by a "2." The south portion of the property is contained within the landlocked drainage basin which is designated on the plans, sheet 3 of 16, by a "1." The post-development flow of surface water will be in the same direction as the pre-development flow. There are no proposed development plans or encroachments into the 100- year floodplain. Therefore, there is no increase in potential for damages to off-site property or persons caused by floodplain development or encroachment, retardance, acceleration, displacement, or diversion of surface waters. There is no reduction in natural storage areas and, in fact, the proposed project increases the natural storage on site. Drainage Basin 2 The District's criterion for systems discharging to basins with an outlet is that the post-development peak rate of discharge for the 25-year, 24- hour storm event shall not exceed the pre-development peak rate of discharge for the 25-year, 24-hour storm event. The District's criteria also require that the post-development volume of discharge not exceed the pre-development volume of discharge. The retention system which ultimately discharges to Orange Lake is designed to retain the entire 25-year, 24-hour storm event through the series of basins on site. The pre-development peak rate of discharge for the drainage basin which flows to the lake is 55 cubic feet per second (cfs) during the 25-year, 24-hour storm event. The post-development peak rate of discharge from drainage basin 2 is 4 cfs. The post-development peak rate of discharge is less than the pre- development peak rate of discharge. Runoff from each RV site will be collected in an individual, ten-inch- deep retention basin. Runoff from the road will be collected in roadside swales. Runoff from the clubhouse, country store, and associated parking lots will be conveyed to drainage retention area (DRA) No. 8. The individual retention basins have the capacity to retain the 25- year, 24-hour storm event without discharging. Any surface water discharges from the individual retention basins in Basins 2A, 2B, and 2C as designated on sheet 3 of 16 will flow to DRA Nos. 4, 5, and 7, respectively. In Basin 2D, runoff from the road and RV park model sites will flow to DRA No. 6. The discharge from DRA No. 6 in the 25-year, 24-hour storm will be zero (0) cfs. In larger storms, any discharge from DRA No. 6 will flow to DRA No. 7. In the event DRA No. 7 overflows, the runoff will flow to DRA No. 5. Basins 2G and 2F are located around two existing sinkholes which currently collect stormwater runoff. In the proposed project, Basins 2G and 2F continue to drain the same area as pre-development. However, additional impervious surfaces will be placed in the drainage area. For this reason, an additional three to five feet of clean fill will be placed in the bottom of each sinkhole for filtration purposes. Basins 2H and 2I are less than one acre and currently drain off site. Berms are proposed around the property line at the basin to keep the stormwater on site. Basins 2H and 2I retain 3/4 inch of runoff over the individual basin. The runoff from Basins 2E1 and 2E flows to DRA No. 8 via a drainage swale. DRA No. 8 will retain 3/4 inch of runoff from the drainage area and is an off-line retention basin. The DRA No. 8 is equipped with a diversion box which allows the 3/4 inch of runoff to enter the DRA and then diverts the runoff from larger storms around the DRA so that the treatment volume of runoff (3/4 inch) continues to be treated in DRA No. 8 and does not mix with and discharge from DRA No. 8 during larger storms. Drainage Basin 1 Drainage Basin 1 as designated on plan sheet 3 of 16 is a landlocked basin which does not discharge to Orange Lake. In Drainage Basin 1, as in Basin 2, the runoff from the RV sites flows to the individual retention basins which retain the 25-year, 96-hour storm event. The runoff from the road flows to swales. Overflow from the basins and swales flow to the DRAs. Drainage Basin 1 does not discharge during the 100- year, 24-hour or the 25-year, 24-hour storm event, pre-development or post- development Drainage Basin 1 is designed to retain the 100-year, 24-hour storm, which is an 11 inch storm event. Drainage Basin 1 is also designed to retain the 25-year, 96-hour storm event. The 25-year, 96-hour storm event is 143% of the 25-year, 24-hour storm event. WATER QUALITY Design Criteria The District's design criteria for water quality are set out in Section 40C-42.025, Florida Administrative Code. The District's retention criteria require that a proposed system have a treatment/pollution abatement volume of 1/2 inch of runoff from the site. For discharges to an OFW, the pollution abatement volume is increased by fifty percent. Therefore, the system must have the volume to retain 3/4 inch of runoff from the site. Each retention basin retains a minimum of 3/4 inch of runoff from the site. The District's criteria regarding quantity of water discharged require a larger volume of runoff to be retained than the District's criteria regarding quality. Therefore, the retention system exceeds the District's criteria regarding quality in order to meet the criteria regarding quantity. The District's retention criteria require that the basin recover the treatment volume within 72 hours. Most of the retention basins retain more than the required treatment volume of 3/4 inch, and most will also recover, or become dry, within 72 hours. The retention basins are capable of being effectively maintained in that the side slopes and bottom of the basins can easily accommodate mowing equipment. For erosion control, staked hay bales and silt screens will be utilized on site during construction to prevent the off-site transport of soil material. Following construction, the retention basins will be vegetated with sod to prevent erosion. The District's criteria require that facilities which receive stormwater runoff from areas with greater than fifty percent of impervious surface shall include a baffle or other device for preventing oil and grease from leaving the system. DRA Nos. 1, 4, 5, and 8 are equipped with an oil and grease removal device called a baffle. The baffle is an acceptable engineering design for the removal of oil and grease from stormwater in a retention basin. The facility operation is uncomplicated. If the individual basins did fill due to a storm event greater than the 25-year, 24-hour or the 25-year, 96- hour in the landlocked basin, they would simply overflow into a DRA. No structures are involved to prevent flooding in large storm events. Water Quality Impacts The individual retention basin at each RV site is considered off-line because it does not discharge in the 25-year, 24-hour storm event. DRA Nos. 1, 2, 3, 4, 5, 6, and 7 are considered off-line because they do not discharge during the design storm. DRA No. 8 is considered off-line because of the diversion box which provides for the retention of the treatment volume and diversion of the larger storms. Off-line retention systems generally show greater pollutant treatment efficiencies than other types of stormwater treatment. The first 1/2 inch of runoff or the "first flush" of rainfall contains ninety percent of the pollutants from the site. SURFACE WATER Utilizing information and methodologies generally accepted by experts in the field of water quality, the District analyzed and projected the average surface water and groundwater quality of the discharge from the surface water management system for the proposed project. No data on runoff concentrations currently exists for RV parks. This analysis was based on a review of existing data on untreated runoff concentrations from three multifamily developments and one highway study. Because data from studies of multifamily residential and highway projects was used, the District's estimates of the untreated runoff concentrations for this project are conservative in that the actual concentrations are probably less than estimated. The District's analysis of the average quality of the discharge from the proposed system was also based on projecting the treatment efficiencies associated with the system. This analysis was done by reviewing data from documented studies previously conducted to ascertain the treatment efficiency of retention methods of stormwater treatment. Generally, retention of the first 1/2 inch of runoff removes eighty percent of the pollutants. On this project, a treatment efficiency of ninety-five percent was assumed based on the fact that the system is off-line treatment and a minimum of 3/4 inch of runoff from the site will be retained in the basins prior to discharge. The expected average untreated runoff concentrations were then educed by the expected treatment efficiencies to project post-treatment water quality of the discharge from the proposed system. These numbers were then compared to Chapter 17-302, Florida Administrative Code, water quality standards for Class III water bodies, and ambient water quality in Orange Lake. Orange Lake is classified as an OFW. Therefore, the proposed project cannot be permitted if it will cause degradation of that water body. The background data or ambient water quality data for phosphorous and nitrogen was taken from the Orange Lake Biological Report by the Florida Game and Freshwater Fish Commission in 1986. The ambient water quality for the other parameters in Table 2 of District Exhibit 2 was computed using eight years of data from a District monitoring station on Orange Lake. The projected average concentration for each constituent in the discharge from the system is less than the ambient water quality of Orange Lake. Therefore, the proposed surface water discharge will not violate state water quality standards in waters of the state. The post-development pollutant loading rates should be equal to or better than the pollutant loading rates from the use of the property as citrus or pastureland because the runoff is being retained on site and treated before being discharged. GROUNDWATER Groundwater discharges were reviewed by assessing the type of soil below the retention basin and the distance to the water table. The soil on the site contains some organic matter which is beneficial for treatment purposes. Based on the borings submitted by Celebrity, the water table, if any, is five feet or more below the bottom of any proposed retention basin. Runoff in the basin will percolate through the soil. Nutrients such as nitrogen and phosphorus will be taken up by the vegetation in the bottom of the basins. Metals will bind to the soil material below the basin. Oils and greases will be broken down through microbial degradation into nontoxic material. Groundwater discharges from the proposed system will not violate any applicable state groundwater quality standards. These standards will be met within the first three feet below the treatment basins. The standards will also be met by the time the groundwater discharge moves to the edge of the zone of discharge which is at the property boundary. The discharge from the proposed Celebrity project will not cause or contribute to a violation of state water quality standards in the receiving waters. SINKHOLES Sinkholes may form on the site. Sinkholes that form will probably be "cover subsidence" sinkholes. Cover subsidence sinkholes are those in which a void below the surface fills with the soil from above, causing a depression in the ground surface. There are four relict sinkholes on site. They are cover subsidence sinkholes. The sinkhole nearest the lake has water in the bottom. Stormwater runoff is directed away from the sinkhole. Any water which enters the sinkhole from the land surface or above will enter from the sky. The District has proposed criteria for stormwater systems in designated Sensitive Karst Area Basins. Those criteria are that 1) the water in the basins shall be no deeper than ten feet deep; 2) there should be at least three feet of unconsolidated material between the bottom of the basin and the top of the water table; and 3) the basins should be fully vegetated. The District currently applies these criteria as policy. In this project, the basins are shallow, ranging from ten inches deep at the RV sites to 2 1/2 feet in the DRAs. The basins have at least three feet of unconsolidated material between the bottom of the basin and the top of the water table. In the soil borings performed by Celebrity, the water table was shown to exist between five and fifty feet below land surface. The proposed project design meets or exceeds the proposed criteria for Sensitive Karst Area Basins. The basins will be fully vegetated or sodded with grass. Lineations or lineaments are solution features which may indicate a fracture of the underlying limestone. There may be a lineament on the site. There are other sinkholes in the area. If a cover subsidence sinkhole develops in an individual retention basin or DRA, stormwater, if any, will seep or percolate through the several feet of soil prior to reaching an aquifer. Most of the pollutants in the retention basin will meet groundwater quality standards prior to percolation and further treatment in the soil. OPERATION AND MAINTENANCE Special conditions Nos. 13, 14, and 15 on the permit will require Celebrity to inspect the system monthly for sinkhole development. If a sinkhole develops, Celebrity must notify the District within 48 hours of its discovery. Celebrity must submit a detailed repair plan within 30 days for written approval by the District. Celebrity proposes to repair any sinkholes that develop by a District- approved method. Celebrity Resorts, Inc., is a legally established corporation registered in Delaware and owns the subject property. Celebrity does not intend to subdivide the property but to sell memberships to use the property on a time-share basis. Celebrity will administratively operate the site by employing a park manager who will remain on the property 24 hours a day. If any problems occur with the basins, either he or his designee will be on site to respond quickly to the situation. The park manager will have a full-time maintenance staff which will operate the park. Celebrity will financially operate and maintain the proposed system using funds currently raised and in the future by membership fees. Celebrity is a publicly held corporation. Funds raised from the sale of stock, approximately $3,500,000, have paid for legal and administrative fees as well as the land purchase. Approximately $400,000 has been reserved to operate the facility. It will cost approximately $15,000 per month to run the park. Memberships will be sold for $300 per year. Part of the membership fees will go toward the general maintenance of the site. Maintenance of the proposed system will include regular mowing and monthly inspection for sinkholes and repair if necessary. WETLANDS IMPACTS OF THE PROJECT The property contains waters of the state wetlands and isolated wetlands. The waters of the state wetlands are those along the shore of Orange Lake. One isolated wetland exists on site in the sinkhole which is closest to the lake. The sinkhole has standing water in which lemna, or duckweed, is growing. Duckweed is a listed plant species in Section 16.1.1(2) of the Handbook. No construction is proposed in either the waters of the state wetlands or the isolated wetland. The District criteria require the review of impacts to off-site aquatic and wetland dependent species relative to the functions currently provided by the wetlands to these types of fish and wildlife. Since there will be no construction in the wetlands, there will be no impacts to the habitat, abundance and diversity, or food sources of off-site aquatic and wetland dependent species from this proposed project. No threatened or endangered aquatic and wetland dependent species were observed on site. The proposed permit application will not adversely affect natural resources, fish, or wildlife in a manner which is inconsistent with the District criteria. The proposed permit application will not adversely affect hydrologically-related environmental functions in a manner which is inconsistent with the District criteria.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petition filed by Concerned Citizens of Orange Lake Area be dismissed for lack of standing and that Celebrity Resorts, Inc., be issued a MSSW permit for its system as designed and proposed. DONE and ENTERED this 19th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Concerned Citizens of Orange Lake Area 1. Proposed findings of fact 1-6 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. 1. Proposed findings of fact 1-38 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, St. Johns River Water Management District 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1&2(1); 3-7(4-7); 8-20(8- 20); 21(2); 22-31(21-30); 32(16); and 33-107(31-105). COPIES FURNISHED: Crawford Solomon Qualified Representative Concerned Citizens of Orange Lake Post Office Box 481 Citra, FL 32681 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Nancy B. Barnard Attorney at Law St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429
The Issue Whether the activities conducted on respondent's property required a dredge/fill permit and whether respondent violated the conditions of the permit issued on February 15, 1985.
Findings Of Fact Respondent is the record holder of a parcel of land located within Section 35, Township 45, South, Range 21 East, in Lee County, Florida. Respondent's property is contiguous to Pine Island Sound, a Class II, Outstanding Florida Water. Maureen Powers, an Environmental Specialist with the Department initially inspected respondent's property on May 23, 1984, after the Department received an anonymous complaint that someone was clearing away mangroves on the property. Ms. Powers-discovered that an earthen-fill road had been constructed on the property, and a portion of the road, 24' x 43'; was located within the landward extent of the state's waters. The determination that the portion of the road was within the Department's jurisdiction was based on the dominance of black and white mangroves. There had been recent mangrove cutting in the area, and a pile of vegetative debris, the result of the cutting, had been placed in the jurisdictional wetlands contiguous to Pine Island Sound. On June 1, 1984, Ms. Powers met with respondent in Langley Adair's office to discuss the violations observed on May 23, 1984, and to discuss the resolution of these violations. Respondent agreed to remove all of the earthen fill and vegetative debris that he had deposited within the jurisdictional wetlands. He agreed to refrain from any further work within the jurisdictional area prior to receiving a permit from the department. He also agreed to open up a flow channel in the berm along Pine Island Sound to restore circulation to the area. On July 11, 1984, Ms. Powers conducted an on-site inspection and discovered that the vegetative debris and the fill material had not been removed. Further, it was apparent that respondent's proposed home site, outlined by string and stakes, was submerged and directly connected by water to Pine Island Sound. The water standing on the property covered a portion of the fill area. On August 8, 1984, another inspection was performed, and it was discovered that respondent still had not removed the fill materials. The condition of the property was essentially the same as it had been on July 11, 1984. By letter dated August 20, 1984, respondent was again notified of the violations and reminded that he had agreed on June 1, 1984, to remove the vegetative and earthen fill. Respondent was informed that he needed to remove the fill materials within 30 days of receipt of the letter in order to avoid further enforcement action. On September 5, 1984, Ms. Powers again inspected the property and found that the proposed homesite and a portion of the fill were still submerged, that the water connected directly with Pine Island Sound and the fill materials had not been removed. Also apparent was a flume of milky white water which originated at the toe of the fill and continued into Pine Island Sound. Water samples were taken which revealed that the erosion of the unauthorized fill was resulting in a violation of state surface water quality criteria, specifically, turbidity1 greater than 29 Nephelometric Turbidity Units above natural background. The background sample, taken upstream from the site of the discharge, had a value of 5.2 turbidity units. The water sample taken two feet from the toe of the fill had a value of 69 turbidity units, and the sample from Pine Island Sound waterward of the mangrove fringe had a value of 46 turbidity units. On October 9, 1984, a letter was sent to respondent which pointed out that the earthen and vegetative fill had not been removed and notifying respondent that erosion of the earthen fill into the waters of Pine Island Sound had resulted in violation of surface water quality criteria. Respondent was requested to immediately cease and desist from all unauthorized. activity under the Department's jurisdiction. To clarify the situation, original photos of the site were sent with the letter which showed the earthen fill, the vegetative debris, and the turbid water leaving the site. A diagram of the site was also included to show the location fill materials that were to have been removed. On October 25, 1984, Ms. Powers met with Mr. Decker at the site. Ms. Powers showed respondent the earthen fill and vegetative debris that should have been removed. Ms. Powers noted that the waterward 23' x 24' section of the earthen fill had become heavily colonized by black mangrove seedings and, therefore, excepted that portion of the fill from the removal requirement so that the seedlings would not be disturbed. Mr. Decker stated that he would remove the unauthorized fill within two weeks. Meanwhile, apparently in September, respondent had submitted a permit application. Mr. Beaver was the field inspector assigned by DER to evaluate the application and make a recommendation on the feasibility of the project to the dredge and fill supervisor. On October 8, 1984, Mr. Beaver performed the field inspection at the site, and on October 23, 1984, issued his permit application appraisal recommending that the application be denied. Mr. Beaver recommended that the project be reconsidered for a permit if, among other things, the house site were removed from the landward extent of the state waters and located in the uplands, the septic tank were removed from the low lying portions of the site, and previously cut areas were allowed to regrow in native vegetation. On November 15, 1984, Mr. Beaver met with Mr. Decker and Mr. Cantrell, the district supervisor of dredge and fill, to discuss the project. Mr. Cantrell asked how the project could be modified so that Mr. Decker could have his house in the location where he wanted it. Mr. Beaver suggested a stilt, elevated house with a small fill pad that would allow access to the entrance of the house. The house would have to be elevated -enough so that revegetation of wetland plants could occur underneath the house structure and water flow could be maintained. On November 19, 1984, Ms. Powers and Mr. Beaver met Mr. Decker at the property. Ms. Powers and Mr. Beaver staked the DER jurisdiction line and marked the proposed location of Mr. Decker's boardwalk. Mr. Decker asked about placing wood chip mulch on the wetlands on his property in order to beautify the area. Mr. Decker was informed that wood chip mulch was considered vegetative fill and would require modification of his permit application. Subsequent to the meeting of November 15 and the on- site inspection of November 19, Mr. Decker modified his project. However, wood chip mulch was not mentioned. On December 7, 1984, Mr. Beaver recommended that the application be approved subject to specified conditions, which were ultimately incorporated into the permit. On December 11, 1984, Ms. Powers inspected the site and discovered that a large pile of wood chips had been placed on the northeast end of the fill road waterward of the jurisdiction line. The vegetative debris and earthen fill that had previously been on the project had not been removed. Respondent was notified of the violations by a Cease and Desist letter dated January 4, 1985. The letter pointed out that respondent had been told specifically that wood chip mulch was considered vegetative fill and that dredge/fill permit would be required prior to the placement of any fill material. On February 5, 1984, respondent met with DER, officials to discuss the violations. Mr. Decker stated that the fill had been removed as requested. The Department informed Mr. Decker that an inspection would be performed and, if the fill had not been removed, the Department would pursue formal enforcement action. On February 7, 1985, the site was inspected none of the fill material had been removed. A subsequent inspection on February 20, 1985, revealed that the wood chips had been spread throughout the jurisdictional wetlands. On February 15, 1985, respondent received a permit to fill and to construct a dock and boardwalk. The specific conditions of the permit include the following: 2. A 20' x 16' - 4" fill pad shall be the only fill placed waterward of the jurisdictional line. This fill pad will be composed of clean sand and have the banks stabilized by a riprap revetment with a slope not greater than 2H:1V. * * * The house and all associated structures shall be built upon stilts with concrete footings and/or wooden pilings. On-site turbidity control devices shall be installed and properly maintained to localize turbidity impacts to the construction area. * * * All vegetative debris, trash and spoil material resulting from concrete footing placement shall be removed from the landward extent of State Waters as defined by the jurisdiction line staked by the DER. Upon completion of construction, non- filled areas beneath the stilt house and associated structures shall be returned to original grade if they were altered by construction. Wetland vegetation shall be planted in the previously cleared area and mangroves removed by construction activities shall be replaced on a 2 for 1 basis with 80% survival over a three year period. * * * 11. The project shall comply with applicable State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria 17-3.111 - Criteria - Class II Waters Shellfish Propagation or Harvesting, Surface Waters General Conditions 2 and 5 of the permit provide: 2. This permit is valid only for the specific processes and operation applied for and indicated in the approved drawings or exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for 81' filled area was located within the landward extent of the state waters. 19. Respondent has violated several conditions of the permit issued February 15, 1985. Specific Condition #2 provided that the 20' x 16' fill pad would be "the only fill placed waterward of the jurisdictional line." Instead, respondent filled an area approximately 78' x 81' to an average height of about 2\', totaling approximately 585 cubic yards of fill. The fill was non-native fill brought onto the site. The permit did not authorize fill for a septic tank in the revocation and enforcement action by the department. 5. This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant or aquatic life or property and penalties therefor caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, unless specifically authorized by an order from the department. On March 19, 1985, an inspection of the property revealed that Mr. Decker had totally ignored the conditions of his permit. Rather than a fill pad of 20' x 16', respondent had filled an area approximately 78' x 81'.2 The fill was unstabilized, and no turbidity control devices were in place. Fill material had been used to construct a earthen berm across a natural flow channel, blocking the flow of water onto the property. Further, the vegetative debris resulting from the construction of the boardwalk had been deposited in the mangrove wetlands. On March 22, 1985, a Notice of Violation and. Orders for Corrective Action was sent to the respondent. Respondent received the notice on or about March 26, 1985. The landward extent of the state waters on respondent's property, the area in which a DER permit is required for dredging and filing, was determined by the presence of red mangroves (Rhizophora mangle), black mangroves (Avicennia germinans), and saltwort (Basis maritime) as the dominant species. The jurisdiction line was originally staked on November 19, 1984, and was reestablished on April 23, 1985, from remaining landmarks, due to the original markers being removed. The 78' x81' filled area was located within the landward extent of the state waters. Respondent has violated several conditions of the permit issued February 15, 1985. Specific Condition #2 provided that the 20' x 16' fill pad would be "the only fill placed waterward of the jurisdictional line." Instead, respondent filled an area approximately 78' x 81' to an average height of about 21/2', totaling approximately 585 cubic yards of fill. The fill was non-native fill brought onto the site. The permit did not authorize fill for a septic tank in the jurisdictional wetlands, but respondent placed a septic tank and drainfield in that area.3 By filling an area several times the size of the area authorized, respondent has seriously violated the conditions of the permit. A fill area of the size that now exists eliminates the habitat and water quality functions that the area historically performed. Respondent has violated Specific Condition #4, which required that the house and associated structures be built on stilts. The purpose of such a requirement is to preserve undisturbed the existing substrate, which constitutes the base of the food chain, and to allow for a free flow of water across the site, which is essential to the health of the mangrove system. Respondent not only filled an area larger than his proposed house, he poured a solid, continuous, concrete foundation on top of the fill, which would prevent the flow of water should the water rise high enough to come onto the filled area.4 By filling the area, destroying the substrate, and preventing the flow of water into the area, respondent has violated Specific Condition #4 of the permit. Respondent violated Specific Condition #5 of his permit in that respondent failed to install any turbidity control devices. Turbidity control devices of some sort are necessary in a fill area such as the one in this case. Turbidity screens or staked hay bales could have been used. Respondent also violated Specific Condition #8. Construction debris and vegetative debris were located throughout the area. Although respondent technically has not violated Specific Condition #9, in that it requires acts to be performed "upon completion of construction", respondent has made compliance with that provision an impossibility because he has filled the "non- filled areas beneath the stilt house" and therefore there are no "non-filled areas" to return to original grade. Respondent has never requested that his permit conditions and requirements be modified. By his actions, respondent has repeatedly shown a complete disregard for the requirements of the law, and he has totally ignored the conditions set forth in the permit. Mr. Decker was not qualified as an expert and I did not find him to be a credible witness. The reasonable costs and expenses incurred by the Department in relation to the enforcement aspects of this action are $866.17. These costs and expenses were incurred by the Department in its effort to control and abate pollutants and to restore the waters and property of the state to their former condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the respondent's permit, number 360902245, be revoked that the respondent be ordered to make payment to the Department in the amount of $866.17 for costs and expenses incurred by the state and that the following corrective action be ordered: Respondent shall within thirty (30) days, remove all unauthorized fill material placed within the area of Department jurisdiction. Prior to initiating the fill removal respondent shall arrange for Department personnel to stake the area to be restored. All areas shall be restored to the elevation and soil conditions which existed prior to the placement of fill material. Respondent shall take all necessary precautions to ensure that state water quality standards are not violated during the restoration work. Respondent shall not disturb adjacent areas within the jurisdiction of the Department unless approved by the Department in writing. DONE and ENTERED this a 24th day of January, 1986, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of January, 1986.
The Issue The issues to be determined in these consolidated cases are whether All Aboard Florida – Operations, LLC (“the Applicant”), and Florida East Coast Railway, LLC (“FECR”), are entitled to an Environmental Resource Permit Modification authorizing the construction of a stormwater management system and related activities to serve railway facilities, and a verification of exemption for work to be done at 23 roadway crossings (collectively referred to as “the project”).
Findings Of Fact The Parties Petitioners Martin County and St. Lucie County are political subdivisions of the State of Florida. Petitioners have substantial interests that could be affected by the District’s proposed authorizations. Intervenor Town of St. Lucie Village is a political subdivision of the State of Florida. Intervenor has substantial interests that could be affected by the District’s proposed authorizations. The Applicant, All Aboard Florida – Operations, LLC, is a Delaware limited liability company based in Miami. All Aboard Florida is part of a group of corporate entities formed for the principal purpose of developing and operating express passenger train service in Florida. Co-applicant Florida East Coast Railway, LLC, is a Florida limited liability company based in Jacksonville. FECR owns the existing railway corridor the passenger train service will use between Miami and Cocoa. South Florida Water Management District is a regional agency granted powers and assigned duties under chapter 373, part IV, Florida Statutes, including powers and duties related to the regulation of construction activities in wetlands. The proposed activities are within the boundaries of the District. Background The objective of the All Aboard Florida Project is to establish express passenger train service connecting four large urban areas: Miami, Fort Lauderdale, West Palm Beach, and Orlando. Most of the passenger service route, including the portion which will pass through Martin County and St. Lucie County, will use an existing railroad right-of-way used since the late 1800s. The FECR rail corridor runs along Florida’s east coast from Miami to Jacksonville. It supported passenger and freight operations on shared double mainline tracks from 1895 to 1968. The passenger service was terminated in 1968 and portions of the double track and certain bridge structures were removed. The freight service continued and remains in operation today. The passenger service will use the FECR right-of-way from Miami to Cocoa and then turn west on a new segment to be constructed from Cocoa to Orlando. The railway corridor will be operated as a joint facility, with passenger and freight trains sharing the double mainline tracks. The Applicant is upgrading the portion of the corridor between Miami and Cocoa by, among other things, replacing existing railroad ties and tracks, reinstalling double mainline tracks, and improving grade crossings. The Applicant is also installing Positive Train Control systems which provide integrated command and control of passenger and freight train movements and allow the trains to be directed and stopped remotely or automatically in the event of operator error or disability, or an obstruction on the track. The All Aboard Florida Project is being developed in two phases, Phase I extends from Miami to West Palm Beach, and Phase II from West Palm Beach to Orlando. This proceeding involves a segment within Phase II, known as Segment D09, which runs from just north of West Palm Beach to the northern boundary of St. Lucie County. The railway corridor in Segment D09 passes through Jonathan Dickinson State Park in Martin County and the Savannas Preserve State Park, parts of which are in both Martin County and St. Lucie County. Surface waters within these state parks are Outstanding Florida Waters (“OFWs”). The railway in Segment D09 also passes over the St. Lucie River using a bridge that can be opened to allow boats to pass. The Applicant plans to run 16 round trips per day between Miami and Orlando, which is about one train an hour in each direction, starting early in the morning and continuing to mid-evening. In 2013, the District issued the Applicant an exemption under section 373.406(6), which exempts activities having only minimal or insignificant adverse impacts on water resources. The 2013 exemption covers proposed work in approximately 48 of the 65 miles which make up Segment D09, and includes replacement of existing tracks and re-establishment of a second set of mainline tracks where they were historically located. The 2013 exemption covers all but 24 of the roadway crossings within Segment D09 where work is to be done in connection with the All Aboard Florida Project. In 2015, the District issued the Applicant a general permit under rule 62-330.401, which authorizes activities that are expected to cause minimal adverse impacts to water resources, for the installation of fiber optic cable along the rail bed within Segment D09. The 2013 exemption and 2015 general permit were not challenged and became final agency action. The Proposed Agency Actions The ERP Modification covers work to be done in approximately 17 of the 65 miles which make up Segment D09. The work will consist primarily of replacing existing tracks, installing new tracks, making curve modifications in some locations to accommodate faster trains, culvert modifications, and work on some fixed bridge crossings over non-navigable waters. The 2017 Exemption at issue in this proceeding covers improvements to 23 of the 24 roadway crossings that were not covered by the 2013 exemption. Proposed improvements at Southeast Florida Street in Stuart will be permitted separately. The improvements covered by the 2017 Exemption include upgrading existing safety gates and signals; installing curbs, guardrails, and sidewalks; resurfacing some existing paved surfaces; and adding some new paving. Petitioners argue that, because the District’s staff report for the ERP Modification states that the ERP does not cover work at roadway crossings, track work at roadway crossings has not been authorized. However, the staff report was referring to the roadway improvements that are described in the 2017 Exemption. The proposed track work at the roadway crossings was described in the ERP application and was reviewed and authorized by the District in the ERP Modification. “Segmentation” Petitioners claim it was improper for the District to separately review and authorize the proposed activities covered by the 2013 exemption, the 2015 general permit, the ERP Modification, and the 2017 Exemption. Petitioners contend that, as a consequence of this “segmentation” of the project, the District approved “roads to nowhere,” by which Petitioners mean that these activities do not have independent functionality. Petitioners’ argument is based on section 1.5.2 of the Applicant’s Handbook, Volume 1,1/ which states that applications to construct phases of a project can only be considered when each phase can be constructed, operated, and maintained totally independent of future phases. However, the activities authorized by the four agency actions are not phases of a project. They are all parts of Phase II of the All Aboard Florida Project, which is the passenger railway from West Palm Beach to Orlando. Section 1.5.2 is not interpreted or applied by the District as a prohibition against separate review and approval of related activities when they qualify under the District’s rules for exemptions, general permits, and ERPs. Much of Phase II is outside the District’s geographic boundaries and, therefore, beyond its regulatory jurisdiction. The District can only review and regulate a portion of Phase II. The District is unable to review this portion as a stand-alone railway project that can function independently from other project parts. The Proposed Stormwater Management System Where the Applicant is replacing existing tracks or re- establishing a second set of tracks, it will be laying new ties, ballast, and rail on previously-compacted earth. In those areas, no stormwater management modifications were required by the District. The Applicant’s new proposed stormwater management system will be located in a five-mile area of the corridor where an existing siding will be shifted outward and used as a third track. In this area, swales with hardened weir discharge structures and skimmers will be installed to provide stormwater treatment beyond what currently exists. The weir discharge structures will serve to prevent erosion at discharge points. The skimmers will serve to capture any floating oils or refuse. Because the FECR right-of-way is not wide enough in some three-track areas to also accommodate swales, the proposed stormwater management system was oversized in other locations to provide compensating volume. The District determined that this solution was an accepted engineering practice for linear systems such as railroads. Petitioners argue that the Applicant’s proposed stormwater management system is deficient because some of the proposed swales do not meet the definition of “swale” in section 403.803(14) as having side slopes equal to or greater than three feet horizontal to one foot vertical (3:1). The statute first defines a swale to include a manmade trench which has “a top width-to-depth ratio of the cross-section equal to or greater than 6:1.” The swales used in the proposed stormwater management system meet this description. Petitioners showed that the plans for one of the 46 proposed swales included some construction outside the FECR right-of-way. In response, the Applicant submitted revised plan sheets to remove the swale at issue. The Emergency Access Way The ERP application includes proposed modifications to portions of an existing unpaved emergency access way which runs along the tracks in some areas. The access way is a private dirt road for railroad-related vehicles and is sometimes used for maintenance activities. At the final hearing, Petitioners identified an inconsistency between an application document which summarizes the extent of proposed new access way construction and the individual plan sheets that depict the construction. The Applicant resolved the inconsistency by correcting the construction summary document. Petitioners also identified an individual plan sheet showing proposed access way modifications to occur outside of the FECR right-of-way. This second issue was resolved by eliminating any proposed work outside the right-of-way. Petitioners believe the proposed work on the access way was not fully described and reviewed because Petitioners believe the access way will be made continuous. However, the access way is not continuous currently and the Applicant is not proposing to make it continuous. No District rule requires the access way segments to be connected as a condition for approval of the ERP. Water Quantity Impacts An applicant for an ERP must provide reasonable assurance that the construction, operation, and maintenance of a proposed project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. The District’s design criterion to meet this requirement for water quantity management is a demonstration that the proposed stormwater system will capture the additional runoff caused during a 25-year/3-day storm event. The Applicant’s proposed stormwater system meets or exceeds this requirement. Petitioners argue that the Applicant failed to provide reasonable assurance because the ERP application materials did not include a calculation of the discharge rates and velocities for water discharging from the swales during the design storm. The ERP application contains the information required to calculate the discharge rates and velocities and the Applicant’s stormwater expert, Bruce McArthur, performed the calculations and testified at the final hearing that in the areas where there will be discharges, the discharge rates and velocities would be “minor” and would not cause adverse impacts. The District’s stormwater expert, Jesse Markle, shared this opinion. Petitioners argue that this information should have been provided to the District in the permit application, but this is a de novo proceeding where new evidence to establish reasonable assurances can be presented. Petitioners did not show that Mr. McArthur is wrong. Petitioners failed to prove that the proposed project will cause adverse water quantity impacts, flooding, or adverse impacts to surface water storage and conveyance capabilities. Water Quality Impacts To obtain an ERP, an applicant must provide reasonable assurance that the construction, operation, and maintenance of a regulated project will not adversely affect the quality of receiving waters, such that state water quality standards would be violated. The District’s design criteria for water quality required the Applicant to show that its proposed stormwater system will capture at least 0.5 inches of runoff over the developed area. To be conservative, the Applicant designed its proposed system to capture 1.0 inch of runoff in most areas. Under District rules, if a stormwater system will directly discharge to impaired waters or OFWs, an additional 50 percent of water quality treatment volume is required. The proposed stormwater system will not directly discharge to either impaired waters or OFWs. In some locations, there is the potential for stormwater discharged from the proposed stormwater system to reach OFWs by overland flow, after the stormwater has been treated for water quality purposes. The Applicant designed its proposed stormwater system to provide at least an additional 50 percent of water quality treatment volume in areas where this potential exists. To ensure that the proposed construction activities do not degrade adjacent wetlands, other surface waters, or off-site areas due to erosion and sedimentation, the Applicant prepared an Erosion and Sediment Control Plan. Temporary silt fences and turbidity barriers will be installed and maintained around the limits of the construction. The District’s design criteria for water quality do not require an analysis of individual contaminants that can be contained in stormwater, except in circumstances that do not apply to this project. Compliance with the design criteria creates a presumption that water quality standards for all potential contaminants are met. See Applicant’s Handbook, V. II, § 4.1.1. Although not required, the Applicant provided a loading analysis for the proposed swales which could potentially discharge overland to impaired waters or OFWs. The analysis compared pre- and post-development conditions and showed there would be a net reduction in pollutant loading. Petitioners believe the pollutant loading analysis was inadequate because it did not specifically test for arsenic and petroleum hydrocarbons. However, the analysis was not required and adequate treatment is presumed. Petitioners did not conduct their own analysis to show that water quality standards would be violated. Petitioners’ expert, Patrick Dayan, believes the compaction of previously undisturbed soils in the emergency access way would increase stormwater runoff. However, he did not calculate the difference between pre- and post-construction infiltration rates at any particular location. His opinion on this point was not persuasive. Petitioners failed to prove that the proposed project will generate stormwater that will adversely affect the quality of receiving waters such that state water quality standards would be violated. The preponderance of the evidence shows the project complies with District design criteria and will not cause water quality violations. Soil and Sediment Contamination Petitioners argue that the ERP Modification does not account for the disturbance of existing contaminants in soils and sediments that could be carried outside of the right-of-way and into OFWs. Petitioners’ argument is based on investigations by their geologist, Janet Peterson, who collected soil, sediment, and surface water samples at 13 sites along the FECR rail corridor in the vicinity of OFWs, or surface waters that eventually flow into OFWs. During her sampling visits, Ms. Peterson saw no visual evidence of an oil spill, fluid leak, or other release of hazardous materials. Ms. Peterson compared her soil sample results to the Residential Direct Exposure Soil Cleanup Target Levels (“SCTLs”) established in rule 62-777. The SCTLs are the levels at which toxicity becomes a human health concern and the residential SCTLs assume soil ingestion of 200 mg/day for children, and 100 mg/day for adults, 350 days a year, for 30 years. Some of the soil sampling results showed exceedances of SCTLs, but the SCTLs are not applicable here because none of the sample sites are locations where children or adults would be expected to ingest soil at such levels for such lengths of time. Petitioners did not show that the contaminants are likely to migrate to locations where such exposure would occur. Ms. Peterson compared her soil sample results to the Marine Surface Water Leachability SCTLs, but she did not develop site-specific leachability-based SCTLs using DEP’s approved methodology. Nor did she show that the proposed project will cause the soils to leach the contaminants. Ms. Peterson collected sediment samples from shorelines, but not where construction activities are proposed. She compared her sediment sample results to the Florida Department of Environmental Protection’s (“DEP”) Sediment Quality Assessment Guidelines (“SQAGs”). These guidelines are not water quality standards. Any exceedance of these guidelines requires further analysis to determine potential water quality impacts. Ms. Peterson did not conduct the analysis. Ms. Peterson acknowledged that there are numerous sources for these pollutants at or near her sample sites, such as high-traffic roads, vehicular bridges, commercial and industrial facilities, boatyards, and golf courses. She did not establish baselines or controls. Ms. Peterson collected surface water samples at seven sites, some of which were located outside the FECR right-of-way. The results showed levels of phosphorous and nitrogen above the criteria for nutrients at some locations. Phosphorous, nitrogen, and the other nutrients are prevalent in the waters of Martin County and St. Lucie County and come from many sources. Petitioners’ evidence focused on existing conditions and not expected impacts of the proposed project. The evidence was insufficient to prove the proposed project will cause or contribute to water quality violations. Functions Provided by Wetlands and Other Surface Waters An applicant for an ERP must provide reasonable assurance that a proposed project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Petitioners claim the Applicant and District should not have relied on Florida Land Use Cover and Forms Classification System (“FLUCCS”) maps to identify and characterize wetlands and other habitat areas because the maps are too general and inaccurate. However, the FLUCCS maps were not used by the Applicant or District to evaluate impacts to wetlands or other habitats. The Applicant began its evaluation of impacts to wetlands and other habitat areas by field-flagging and surveying the wetland and surface water boundaries in the project area using a GPS device with sub-meter accuracy. It then digitized the GPS delineations and overlaid them with the limits of construction to evaluate anticipated direct impacts to wetlands and other surface waters. The District then verified the delineations and assessments in the field. The Applicant and District determined that there are a total of 4.71 acres of wetlands within the FECR right-of-way, including tidal mangroves, freshwater marsh, and wet prairie. They also determined the proposed project will directly impact 0.35 acres of wetlands, consisting of 0.09 acres of freshwater marsh and 0.26 acres of mangroves. Petitioners contend that the Applicant failed to account for all of the project’s wetland impacts, based on the wetland delineations made by their wetland expert, Andrew Woodruff. Most of the impacts that Mr. Woodruff believes were not accounted for are small, between 0.01 and 0.05 acres. The largest one is acres. The Applicant’s delineations are more reliable than Mr. Woodruff’s because the methodology employed by the Applicant had greater precision. It is more likely to be accurate. Petitioners argue that the 2013 exemption and the 2015 general permit did not authorize work in wetlands and, therefore, the impacts they cause must be evaluated in this ERP Modification. However, Petitioners did not prove that there are unaccounted-for wetland impacts associated with those authorizations. Any impacts associated with best management practices for erosion control, such as the installation of silt fences, would be temporary. The District does not include such temporary minor impacts in its direct, secondary, or cumulative impacts analyses. Most of the wetlands that would be directly impacted by the ERP Modification are degraded due to past hydrologic alterations and soil disturbances from the original construction and historical use of the FECR railway corridor, and infestation by exotic plant species. Most of these wetlands are also adjacent to disturbed uplands within or near the rail corridor. The functional values of most of the wetlands that would be affected have been reduced by these disturbances. The Applicant provided reasonable assurance that the project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Secondary Impacts Section 10.2.7 of the Applicant’s Handbook requires an applicant to provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonably expected uses of a proposed activity (a) will not cause or contribute to violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters; (b) will not adversely impact the ecological value of uplands for bald eagles, and aquatic or wetland-dependent listed animal species for nesting or denning by these species; (c) will not cause impacts to significant historical or archaeological resources; and (d) additional phases for which plans have been submitted, and closely linked projects regulated under chapter 373, part IV, will not cause water quality violations or adverse impacts to the functions of wetlands or other surface waters. The proposed work will be entirely within the limits of the existing railway corridor where secondary impacts to wetlands and other surface waters caused by noise, vibration, fragmentation of habitats, and barriers to wildlife have existed for decades. The preponderance of the evidence shows that any increase in these kinds of impacts would be insignificant and would not reduce the current functions being provided. Because the affected wetlands are not preferred habitat for wetland-dependent, endangered, or threatened wildlife species, or species of special concern, and no such species were observed in the area, no adverse impacts to these species are expected to occur. Petitioners contend that adverse impacts will occur to the gopher tortoise, scrub jay, and prickly apple cactus. These are not aquatic or wetland-dependent species. However, the preponderance of the evidence shows any increase in impacts to these species would be insignificant. When the train bridges are closed, boats with masts or other components that make them too tall to pass under the train bridges must wait for the bridge to open before continuing. Petitioners contend that the current “stacking” of boats waiting for the bridges to open would worsen and would adversely impact seagrass beds and the West Indian Manatee. However, it was not shown that seagrass beds are in the areas where the boats are stacking. The available manatee mortality data does not show a link between boat stacking and boat collisions with manatees. Mr. Woodruff’s opinion about increased injuries to manatees caused by increased boat stacking was speculative and unpersuasive. The preponderance of the evidence shows that the adverse effects on both listed and non-listed wildlife species, caused by faster and more numerous trains would be insignificant. The activities associated with the 2013 exemption and the 2015 general permit for fiber optic cable were based on determinations that the activities would have minimal or insignificant adverse impacts on water resources. These determinations are not subject to challenge in this proceeding. The Applicant provided reasonable assurance that the secondary impacts of the project will not cause or contribute to violations of water quality standards, adversely impact the functions of wetlands or other surface waters, adversely impact the ecological value of uplands for use by listed animal species, or cause impacts to significant historical or archaeological resources. Elimination and Reduction of Impacts Under section 10.2.1.1 of the Applicant’s Handbook, if a proposed activity will result in adverse impacts to wetlands and other surface waters, the applicant for an ERP must implement practicable design modifications to eliminate or reduce the impacts, subject to certain exceptions that will be discussed below. Petitioners argue that this rule requires the Applicant and District to evaluate the practicability of alternative routes through the region, routes other than the existing railway corridor in Segment D09. As explained in the Conclusions of Law, that argument is rejected. The evaluation of project modifications to avoid impacts was appropriately confined to the railway corridor in Segment D09. The Applicant implemented practicable design modifications in the project area to reduce or eliminate impacts to wetlands and other surface waters. Those modifications included the shifting of track alignments, the elimination of certain third-track segments, and the elimination of some proposed access way modifications. However, the project qualified under both “opt out” criteria in section 10.2.1.2 of the Applicant’s Handbook so that design modifications to reduce or eliminate impacts were not required: (1) The ecological value of the functions provided by the area of wetland or surface water to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value; and (2) the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and provides greater long-term ecological value. Mitigation The Applicant proposes to mitigate for impacts to wetlands by purchasing mitigation credits from four District- approved mitigation banks: the Bluefield Ranch, Bear Point, Loxahatchee, and F.P.L. Everglades Mitigation Banks. Each is a regional off-site mitigation area which implements a detailed management plan and provides regional long-term ecological value. The number of mitigation credits needed to offset loss of function from impacts to wetlands was calculated using the Modified Wetland Rapid Assessment Procedure (“MWRAP”) or Wetland Assessment Technique for Environmental Review (“WATER”), as prescribed in the state permit for each mitigation bank. Applying these methods, the Applicant is required to purchase mitigation credits. The Applicant proposed to mitigate the adverse impacts to freshwater marsh wetlands by purchasing 0.01 freshwater herbaceous credits from the Bluefield Ranch Mitigation Bank, and 0.06 freshwater herbaceous credits from the Loxahatchee Mitigation Bank. The adverse impacts to tidal mangrove wetlands would be mitigated by purchasing 0.12 saltwater credits from the Bear Point Mitigation Bank, and 0.02 saltwater credits from the F.P.L. Everglades Mitigation Bank. The Applicant committed to purchase an additional 0.29 freshwater herbaceous credits from the Bluefield Ranch Mitigation Bank, for a total of 0.50 mitigation credits. The proposed mitigation implements a plan that will provide greater long-term ecological value than is provided by the wetlands that will be impacted. The Applicant proved by a preponderance of the evidence that the project complies with the District’s mitigation requirements. Cumulative Impacts To obtain an ERP, an applicant must provide reasonable assurance that a regulated activity will not result in unacceptable cumulative impacts to water resources. This assurance can be provided by proposing to fully mitigate the impacts within the same basin. However, when an applicant proposes mitigation in another drainage basin, the applicant must demonstrate that the regulated activity will not cause unacceptable cumulative impacts. The proposed project will adversely impact 0.02 acres of freshwater marsh wetlands and 0.21 acres of tidal mangrove wetlands in the St. Lucie River basin. The impacts to the freshwater marshes must be mitigated out-of-basin because there are no mitigation banks in the basin which offer freshwater herbaceous mitigation credits. The proposed project will adversely impact 0.07 acres of the freshwater marshes and 0.05 acres of the mangrove wetlands in the Loxahatchee River basin. Those impacts must also be mitigated out-of-basin because there are no mitigation banks in the Loxahatchee River basin. Because some of the Applicant’s proposed mitigation must be provided out-of-basin, the ERP application included a cumulative impact analysis. The analysis evaluated whether the proposed project, when considered in conjunction with other possible development within the St. Lucie River and Loxahatchee River drainage basins, would result in unacceptable cumulative impacts considering each basin as a whole. There are approximately 10,068 acres of freshwater marshes within the St. Lucie basin, of which an estimated 4,929 acres are not preserved and would be at risk of potential future development. The proposed project will adversely impact 0.02 of those acres, which is only 0.0004 percent of the total at-risk acreage. There are about 34,000 acres of freshwater marshes within the Loxahatchee River basin, of which an estimated 7,463 acres are at risk of future development, and approximately 564 acres of tidal mangrove wetlands, of which an estimated 75 acres are at risk of future development. The project will adversely impact 0.07 acres of the freshwater marshes (0.0009 percent), and 0.05 acres of the tidal mangrove wetlands (0.0667 percent). Petitioners contend the Applicant’s analysis did not account for impacts from proposed activities authorized in the 2013 and 2015 general permit. However, Petitioners failed to prove there are unaccounted-for wetland impacts. The preponderance of the evidence supports the District’s determination that the proposed project will not cause unacceptable cumulative impacts to wetlands and other surface waters. Public Interest When an applicant seeks authorization for a regulated activity in, on, or over wetlands or surface waters, it must provide reasonable assurance that the activity will not be contrary to the public interest, or if the activity is within or significantly degrades an OFW, is clearly in the public interest, as determined by balancing the following criteria set forth in section 373.414(1)(a): Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources; and The current condition and relative value of functions being performed by areas affected by the proposed activities. The proposed work is not within an OFW, but entirely within the FECR corridor. The potential for overland flow and indirect impacts to OFWs is addressed by additional treatment of the stormwater prior to discharge. The proposed project would not significantly degrade an OFW. Therefore, the applicable inquiry is whether the project is contrary to the public interest. Factor 1: Public Safety, Safety, and Welfare Petitioners contend that the proposed project will adversely affect public health, safety, and welfare by impacting water quantity, water quality, and certain non-environmental matters such as emergency response times, traffic congestion, and potential train collisions with pedestrians and vehicles. Potential environmental impacts have been addressed above and, by a preponderance of the evidence, the District and the Applicant showed that such impacts would be insignificant or would be mitigated. As to the potential for non-environmental impacts associated with train operations, it is explained in the Conclusions of Law that the public interest test does not include consideration of non-environmental factors other than those expressly articulated in the statute, such as navigation and preservation of historical or archaeological resources. However, because evidence of non-environmental impacts was admitted at the final hearing, the issues raised by Petitioners will be briefly addressed below. The regulatory agency with specific responsibility for railroad safety is the Federal Railroad Administration (“FRA”). The FRA reviewed the safety features associated with the proposed passenger train operations, and approved them. Public safety will be enhanced at roadway crossings because of the proposed improvements and the use of modern technology in monitoring and managing the movement of trains. Petitioners contend that the addition of the passenger rail service will impede emergency response times in Martin County and St. Lucie County due to more frequent roadway closures. However, freight trains currently impede emergency response times due to their length and slow speed. The passenger trains will be much shorter in length and faster so that roadway crossing closures for passing passenger trains will be much shorter than for freight trains. The ERP Modification and 2017 Exemption do not affect freight train operations. The preponderance of the evidence shows that passenger rail service is unlikely to cause a material increase in the occurrence of circumstances where an emergency responder is impeded by a train. The current problem must be addressed through changes in freight train operations. Petitioners also contend that the passenger rail service will interfere with hurricane evacuation. The persuasive evidence does not support that contention. Train service would cease when a hurricane is approaching. Petitioners contend the trains will have to be “staged” on either side of the two moveable bridges while other trains cross, thereby blocking road intersections. However, this was a matter of speculation. The Applicant does not propose or want to stage trains at the bridges. Petitioners contend that the project will cause hazards to boaters on the St. Lucie River because there will be more times when the train bridge will be closed to allow the passage of passenger trains. Although there were many statistics presented about the number of boats affected, the evidence was largely anecdotal with respect to the current hazard associated with boaters waiting for the passage of freight trains and speculative as to the expected increase in the hazard if shorter and faster passenger trains are added. Factor 2: Conservation of Fish and Wildlife As previously found, the proposed activities will not adversely affect the conservation of fish and wildlife, including threatened or endangered species. The preponderance of the evidence shows the project will have only insignificant adverse impacts on water resources and wildlife. Factor 3: Navigation of the Flow of Water Petitioners claim the project will hinder navigation on the St. Lucie and Loxahatchee Rivers because of the increase in bridge closures if passenger trains are added. The U.S. Coast Guard is the agency with clear authority to regulate the opening and closing of moveable train bridges over navigable waters in the interests of navigation. Petitioners’ insistence that the District address the bridge openings is novel. No instance was identified by the parties where this District, any other water management district, or DEP has attempted through an ERP to dictate how frequently a railroad bridge must open to accommodate boat traffic. The Coast Guard is currently reviewing the project’s potential impacts on navigation and will make a determination about the operation of the moveable bridges. It has already made such a determination for the moveable bridge which crosses the New River in Ft. Lauderdale. Petitioners point to section 10.2.3.3 of the Applicant’s Handbook, which states that the District can consider an applicant’s Coast Guard permit, and suggest that this shows the District is not limited to what the Coast Guard has required. However, Section 10.2.3.3 explains the navigation criterion in terms of preventing encroachments into channels and improving channel markings, neither of which encompasses the regulation of train bridges. The preponderance of the evidence shows the project would not cause harmful erosion or shoaling or adversely affect the flow of water. Factor 4: Fishing, Recreational Values, and Marine Productivity The preponderance of the evidence shows that there would be no adverse impacts or only insignificant impacts to fishing or recreational values and marine productivity. Factor 5: Permanent Impact The proposed project will have both temporary and permanent impacts. The temporary impacts include the installation of silt fences and turbidity barriers designed to reduce water quality impacts and impacts to functions provided by wetlands and surface waters. The impacts due to track installation, construction and rehabilitation of the non-moveable bridges, at-grade crossing improvements, and stormwater system improvements are permanent in nature. The permanent impacts have been minimized and mitigated. Factor 6: Historical or Archaeological Resources Petitioners do not contend that the project will adversely affect significant historical or archaeological resources. Factor 7: Wetland Functions in Areas Affected Because the proposed work is within the limits of an existing railway corridor where impacts have been occurring for decades, and the majority of the wetlands to be affected are of a low to moderate quality, there would be only a small loss of functional values and that loss would be fully mitigated. Public Interest Summary When the seven public interest factors are considered and balanced, the proposed project is not contrary to the public interest. Even if Petitioners’ non-environmental issues are included, the project is not contrary to the public interest. Compliance With Other Permit Conditions The project is capable, based on accepted engineering and scientific principles, of performing and functioning as proposed. The Applicant demonstrated sufficient real property interests over the lands upon which project activities will be conducted. It obtained the required consent for proposed activities relating to bridge crossings over state-owned submerged lands. The Applicant provided reasonable assurance of compliance with all other applicable permit criteria. Exemption Verification for Roadway Crossings The Applicant’s ERP application included a mixture of activities which required an individual permit, as well as activities in roadway crossings which the Applicant claimed were exempt from permitting. Pursuant to section 5.5.3.4 of the Applicant’s Handbook, the Applicant requested a verification of exemption as to certain work to be done within 23 of those 24 roadway crossings. The District determined that the improvements for which an exemption was sought were exempt from permitting under rule 62-330.051(4)(c) for minor roadway safety construction, rule 62-330.051(4)(d) resurfacing of paved roads, and rule 62-330.051(10) for “construction, alteration, maintenance, removal or abandonment of recreational paths for pedestrians, bicycles, and golf carts.” The preponderance of the evidence shows the proposed work qualifies for exemption under these rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order that: approves Environmental Resource Permit Modification No. 13-05321-P on the terms and conditions set forth in the District’s Corrected Proposed Amended Staff Report of May 11, 2017; and approves the Verification of Exemption dated March 31, 2017. DONE AND ENTERED this 29th day of September, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2017.
The Issue The issue in this case is whether the Southwest Florida Water Management District (the District) should grant the application of the Misty Creek Country Club, Inc. (the Club), to modify MSSW Permit No. 400037.
Findings Of Fact Background Petitioners are owners of property adjacent to Lake No. 7 of the Misty Creek Country Club in a development called The Preserves at Misty Creek-- specifically, lot 113 (Robert and Lee Werner), lot 114 (Charles and Rosemary Biondolillo), lots 115 and 115A (Ignatius and Judith Bertola), lots 117 and 117A (Don and Halina Bogdanske), lots 118 and 118A (Louis and Betty Mitchell), lots 119 and 119A (George and Dorothy Holly), lots 120 and 120A (John and Maureen Higgins), and lot 121 (William and June Spence). Respondent, the Misty Creek Country Club (the Club), operates a golf course and country club located at The Preserves at Misty Creek under a 99-year lease with Gator Creek Lands, the developer of The Preserves at Misty Creek. Existing System Design and Application for Permit Modification In 1985, Respondent Southwest Florida Water Management District, issued a surface water management permit for development of a 730-acre residential development and golf course. The District subsequently issued to the Club operation phase authorization for the surface water management system associated with the golf course portion of the development in March of 1992. Under the original permit, Lake No. 7 was part of the overall stormwater management system for the golf course. The lake is approximately seven and half to eight acres in size and is part of a total drainage basin of approximately twenty-eight acres. As originally designed, Lake No. 7 is a detention with filtration system. An underdrain in the side of the bank provides water quality treatment, filtering out oils and greases, fertilizers and other contaminants. A control elevation of 31.02 was established for Lake No. 7 through construction of a weir. Between elevation 31.00 and 31.02, water discharges through the underdrain system providing water quality treatment. Above elevation 31.02, water flows over the control structure into Lake No. 6, and ultimately discharges to Cow Pen Slough, which is Class III waters of the state. The Club presently has a water use permit from the District which allows withdrawal of groundwater for irrigation of the golf course. Groundwater is stored in Lake No. 7 prior to use for irrigation when needed to augment water in the lake. Special Condition Number 2 of the water use permit required the Club to investigate the feasibility of using reclaimed or reuse water in lieu of groundwater for irrigation purposes at the golf course. As a result of the investigation required by Special Condition Number 2 of the water use permit, the Club filed an application with the District to modify its surface water management permit to allow for the introduction of reuse water into Lake No. 7. Under that application, there would have been no significant modifications to the stormwater management system. Reuse water would have replaced groundwater as a source for augmenting water in the lake when needed for irrigation. An eight-inch service line would convey the reuse water to Lake 7, and a float valve would control the introduction of reuse water into Lake No. 7. When water levels in the lake fell below elevation 30.5', the float valve would open the effluent line to allow introduction of reuse water into the lake; when the water elevation in the lake reached 31.0', the float valve would shut off the flow of water. There would be gate valves on either side of the structure that could be manually closed, if necessary, to stop the flow of reuse water into the lake if the float valve malfunctioned. Club personnel would have access to the gate valves and could manually stop the flow of reuse water into the lake if necessary. On August 9, 1995, just days prior to the final hearing in this matter, the Club proposed to modify its application to make certain structural changes in the design of the surface water management system. Specifically, the Club proposed to plug the window in the weir, raise the elevation of the weir or control structure to elevation 33.6, raise the elevation of the berm along the north end of Lake No. 7 adjacent to the weir to elevation 33.6, and plug the underdrain. The purpose of the proposed modifications to the design of the system was to assure that no discharge from Lake No. 7 would occur up to and including the 100-year storm event. A 100-year storm event is equal to 10 inches of rainfall in a 24-hour period. Source and Quality of Reuse Water The Club also entered into an agreement with Sarasota County to accept reuse water from the county's new Bee Ridge wastewater treatment facility. That agreement specifies the terms under which the Club will accept reuse water from the County. The County's Bee Ridge facility is presently under construction and is not yet operating. As permitted by the Department of Environmental Protection, the Bee Ridge wastewater treatment facility will use a Bardenpho waste treatment system which is a licensed process to provide advanced waste treatment. The construction permit establishes effluent limits for the facility that are comparable to a level of treatment known as advanced secondary treatment, but the County Commission for Sarasota County has instructed the County staff to operate the Bee Ridge facility as an advanced waste treatment plant. Advanced waste treatment is defined by the quality of the effluent produced. For advanced waste treatment, the effluent may not exceed 5 milligrams/Liter of biochemical oxygen demand (BOD) or total suspended solids (TSS), 3 milligrams/Liter of total nitrogen, or 1 milligram/Liter of total phosphorus. It also requires high level disinfection. Advanced secondary treatment requires the same level of treatment for TSS but the limit for nitrates is 10 milligrams/Liter. High level disinfection is also required for advanced secondary treatment. In Florida, reuse systems require a minimum of advanced secondary treatment. High level disinfection is the level of treatment that generally is accepted as being a reasonable level of treatment. The Bee Ridge permit issued to Sarasota County identifies the Club as one of the recipients of reuse water for irrigation. Condition Number 21 of that permit provides that the use of golf course ponds to store reuse water is not authorized under the County's permit until issuance of a separate permit or modification of the County's permit. Although the District did not require Misty Creek to submit any information about the modification of the County's permit, there was no basis for assuming that the County permit could not be modified. To the contrary, the permit provides that authorization may be obtained by permit modification. Under the late modification to the Club's application, the reuse water transmission line and float valve system, with backup manual gate valve system, is unchanged. So are the water elevations at which the float valve system will automatically introduce reuse water into Lake 7 and shut off. Sarasota County already has constructed the water transmission system that would deliver reuse water to the Club. At the request of the District, the Club provided copies of the drawings of the float valve structure as permitted by the Department of Environmental Protection. The District did not require certified drawings of that structure. But the District will require the Club to provide as-built drawings following completion of construction prior to the introduction of reuse water into Lake No. 7. Property Ownership Each of the Petitioners owns a residential lot adjacent to Lake No. 7. At the time of the Petitioners' purchase of the individual residential lots, the Club leased certain property immediately west of Lake No. 7 from the developer of The Preserve at Misty Creek. The leased premises included a piece of land extending into the lake known as the 19th green. As a result of negotiations between the Club and the developer, it was determined that the 19th green would be removed and the land between the approximate top of bank of Lake No. 7 and the private residential lots would be released from the Club's lease. The developer subsequently conveyed the property that had been released from the Club's lease to the individual lot owners (the "A" parcels listed in Finding 1). At the time of the conveyance of the additional parcels, the attorney for the developer prepared deeds for each individual parcel with a metes and bounds description off the rear of the residential lots to which they were being added. While the Club's application for modification of its surface water management permit was being processed by the District, counsel for Petitioners provided the District with copies of the individual deeds and questioned whether the Club had ownership or control of the land which was the subject of the application sufficient to meet the District's permitting requirements. In response to a request for information regarding the ownership of the property that was the subject of the application, the Club submitted to the District a topographical survey prepared by Mr. Steven Burkholder, a registered professional land surveyor with AM Engineering. The topographical survey depicted: the elevation of the water in the Lake No. 7 on the day that the survey was conducted, labeled "approximate water's edge"; the elevation of the "top of bank"; and the easternmost line of private ownership by Petitioners. Mr. Burkholder determined the line of private property ownership by reproducing a boundary survey attached to the individual deeds conveying the additional parcels to the Petitioners. He testified that he was confident that the topographical survey he prepared accurately represented the most easterly boundary of the Petitioners' ownership. The elevation of the line of private ownership as depicted on the survey prepared by Mr. Burkholder ranges from a low of approximately 34.5 to 35.2. The elevation of the line labeled "top of bank" ranges from a high of 35.6 to a low of 34.4. The elevation of the water in Lake No. 7 would be controlled by the elevation of the modified control structure which is proposed to be set at elevation 33.6. After modification of the surface water management system to retain the 100-year storm event, at no time would water levels in the lake rise above the existing elevation of the "top of bank." The Petitioners testified that they believed that they owned to the water's edge or edge of the lake, but Mr. Burkholder testified that a property boundary could not be determined based on an elevation depicting the water's edge because that line would change as the level of the water rose and fell. The Petitioners also presented evidence that the developer's attorney made representations to them that their ownership extended to the "approximate high water line." But there appears to be no such thing as an "approximate high water line" in surveying terms. Where the boundary of a lake is depicted on a survey it generally is depicted from top of bank to top of bank. In any event, the legal descriptions of the parcels conveyed to the Petitioners were not based on a reference to either a water line or the water's edge or the lake at all. Instead, the legal descriptions were based solely on a metes and bounds description off the rear of the residential lots. Notwithstanding some contrary evidence, if the Petitioners owned to the water's edge, such ownership would require the Petitioners to consent to or join in the amended application for the modification of the Club's surface water management permit. Information regarding the ownership or control and the legal availability of the receiving water system is required as part of the contents of an application under Rule 40D-4.101(2)(d)6. and 7., Florida Administrative Code. The amended application requires the ability to "spread" Lake 7 in the direction of the Petitioners' property. If the Petitioners own the property on which the Club intends to "spread" Lake 7 in order to make the amended application work, the Petitioners must consent or join. The issue of the legal ownership and control of the Petitioners and the Club currently is in litigation in state circuit court. If the state circuit court determines that the easterly boundary of the "A" parcels lies to the east of the "top of bank," consideration would have to be given to modifying any permit issued to the Club to insure that the designed "spread" of Lake 7 in a storm event up to and including a 100-year storm event does not encroach on the Petitioners' property. District Permit Requirements The District has never before processed an application for a surface water management permit allowing commingling of storm water and reuse water. The District applied Chapter 40D-4, Florida Administrative Code, in reviewing the Club's permit application. There are no specific provisions in Rule 40D-4 or the District's Basis of Review for Surface Water Management Permit Applications that address the commingling of stormwater and reuse water; on the other hand, no rules of the District prohibit the introduction of other types of water into a stormwater treatment pond so long as the requirements of Rule 40D-4 are met. The District has the authority to allow stormwater and reuse water to be commingled. Section 40D-4.301, Florida Administrative Code, contains the conditions for issuance of a surface water management permit. Permitting Criteria In order to obtain a surface water management permit to commingle stormwater and reuse water in Lake 7, the Club must provide reasonable assurances that the proposed modifications to its existing system will provide adequate flood control and drainage; not cause adverse water quality and quantity impacts on receiving waters and adjacent lands; not result in a violation of surface water quality standards; not cause adverse impacts on surface and groundwater levels and flows; not diminish the capability of the lake to fluctuate through the full range established for it in Chapter 40D-8, Florida Administrative Code; not cause adverse environmental impacts to wetlands, fish and wildlife or other natural resources; be effectively operated and maintained; not adversely affect public health and safety; be consistent with other public agency's requirements; not otherwise be harmful to water resources of the District; and not be against public policy. No surface or groundwater levels or flows have been set for this area of the District, so that permit criterion is not applicable to the Club's application. The Club's application will not impact wetlands or fish and wildlife associated with wetlands as described in F.A.C. Rule 40D-4.301(1)(f). There are no wetlands regulated by the District in the project site. The Club has submitted to the District an operation and maintenance plan for the modified surface water management system. The operation and maintenance plan is in compliance with the District's permitting criteria contained in Rule 40D-4.301(1)(g). The District's regulation with respect to the requirement that a project not adversely affect the public health and safety is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with this criterion. The permitting criterion that a project must be consistent with the requirements of other public agencies was met by inclusion in the permit of Special Conditions Nos. 5 and 6, Limiting Condition No. 3 and Standard Condition No. 3, which require that the surface water management permit be modified if necessary to comply with modifications imposed by other public agencies. The District's regulation with respect to the requirement that a project not otherwise be harmful to the water resources within the District is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with this criterion. The District's regulation with respect to the requirement that a project may not be against public policy is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with that criterion. The project will not have an adverse impact on water quality or quantity in receiving waters or adjacent lands. Under the District's regulations, the project would not be permittable if it caused flooding on property owned by other persons. Two concerns regarding off-site flooding were raised by Petitioners: first, the potential for flooding of the Petitioners' property; and, second, the potential for flooding of secondary systems connecting to Lake No. 7 such as private roads in the development. The project would violate the requirements of Section 40D-4.301(1)(a), Florida Administrative Code, which requires that a proposed project provide adequate flood protection and drainage, if raising the weir and berm elevation to 33.6 would cause the level of water in Lake No. 7 to move laterally up the bank and encroach on property owned by Petitioners. However, the Club has given reasonable assurances that the Petitioners own only to the "top of bank" and that raising the weir elevation to 33.6 would not cause water levels to rise above the "top of bank" of the lake. If it is determined in pending state circuit court proceedings that the Petitioners own beyond the "top of bank," any permit for the Club's project might have to be modified to avoid flooding the Petitioners' property. With respect to potential flooding of secondary systems, such as adjacent roadways, raising the elevation of water in Lake No. 7 would decrease the capacity of the storm sewers draining into the Lake. However, the proposed modifications would not increase the area of impervious surface in the drainage basin or decrease the size of the lake, and water levels in the roadways probably would not rise much higher than under present circumstances. The existing storm sewer system is only designed for a 10-year storm event, so the supplemental effect on roadway flooding from retaining a 100-year storm event in Lake No. 7 probably would be negligible. The Club gave reasonable assurances that any increase in water levels on the roadways from the proposed modifications would not be considered a significant adverse effect because it still would not affect public access. Sarasota County's land development regulations allow flooding in streets of up to 12 inches for a 100-year storm event, nine inches for a 25-year storm event, and six inches for a 10-year storm event. No portion of the proposed project area is within the 100-year floodplain. The project will not have an adverse effect on water quantity attenuation or cause flooding of the Petitioners' property or secondary systems, such as adjacent roadways. Petitioners have protested the effect that this project will have on water quality within Lake No. 7, itself. Surface water quality standards do not apply within a stormwater pond. Stormwater ponds are essentially pollution sinks intended to receive polluted runoff. Where there is no discharge from a pond, water quality treatment is irrelevant. Lake 7 is not a "water resource within the District" pursuant to Section 40D-4.301(1)(j), Florida Administrative Code, and potential impact on water quality in Lake No. 7 should not be considered. Section 40D-4.301(1)(j) limits the issues to be considered by the District to downstream water quality, water quantity, floodplain impacts, and wetlands impacts. The commingling of wastewater effluent treated to a level of advanced secondary or advanced waste treatment (reuse water) would improve water quality within a stormwater treatment pond at least 90 to 95 percent of the time. Stormwater is very low quality compared to reuse water. In most respects, reuse water also will be better quality than the well water presently being used to augment the pond. It is expected to be better quality than unimpacted water in the receiving waterbody with respect to nitrogen content and only slightly worse with respect to phosphorus content. The addition of reuse water should not promote more algal growth; rather, it should reduce the likelihood of algal growth. It also should not increase the incidences of fish kills in Lake 7. Nor should it alter the nutrient concentrations in Lake 7 so as to result in an imbalance of the natural population of aquatic flora and fauna. In the draft permit originally proposed to be issued to the Club, permit conditions required that water quality be monitored at the point of discharge to waters of the state. This requirement was eliminated from the revised permit as the District determined that it was not necessary in light of the modification of the system to retain the 100-year storm event. The subject design does not account for recovery of the water quality treatment volume within a specified period of time. However, there is no such requirement in District rules when a pond entirely retains the 100-year storm event, as is the case with this project. Even if there were a discharge from the surface water management system in a storm event up to and including a 100-year storm event, the Club gave reasonable assurances that water quality standards in the receiving waterbody would not be violated because of the effects of dilution. This project will not cause discharges which result in any violations of applicable state water quality standards for surface waters of the state. Based on a number of factors, including the peak rate factor, the curve number and the seasonal high water elevation, the water level in Lake 7 would reach an elevation of 33.57 if a 100-year storm event occurs. This results in the retention of the 100-year storm in Lake 7. The District only considers the 100-year storm event, by itself. It does not consider other rainfall events before or after it. However, the District does presume that ponds are at their seasonal high water level when the 100-year storm event occurs and that the ground is saturated. With respect to the seasonal high water level, there was substantial conflicting testimony. The Club's consultant used a seasonal high water level of 31.0' for Lake No. 7 in his calculations. This was based on a geotechnical engineering report prepared by Ardaman & Associates. A seasonal high water elevation of 31.0' was also used in the original permit application in 1985. In concluding that the seasonal high water level should be 31.0, the Ardaman report relied on several assumptions, including plugging of the underdrain and overflow weir and no discharges into or pumping out of the lake. These assumptions were made to establish an historical water level. The Petitioners' consultant disputed the determination in the Ardaman report that the seasonal high for Lake No. 7 was 31 on the grounds that the report indicated groundwater levels of 32.8 on three sides of the lake. He also felt that water levels would rise in the lake over time as a result of it being, allegedly, a closed system. While he did not have an opinion as to what the appropriate seasonal high should be, he felt it would be higher than 31 but lower than 32.8. However, he did no modeling with respect to calculating a seasonal high water level and would normally rely on a geotechnical engineer, such as Ardaman & Associates, to calculate seasonal high water levels. The District generally does not receive information as extensive and detailed as that included in the Ardaman report when it reviews permit applications. Among other things, the Ardaman report indicates a gradient across Lake No. 7 which makes the determination of the seasonal high for the lake difficult. The groundwater flow gradient results from the fact that the elevation of Lake No. 6 is approximately three feet lower than the elevation in Lake No. 7. The elevation determined by Ardaman may well be conservative in that the seasonal high of 31 is above the midpoint of the gradient. Although Lake 7 will be designed as an essentially closed system, it will have inflow from rainfall, surface runoff, introduction of reuse water and groundwater inflow, and outflows by way of evapotranspiration, withdrawal for irrigation purposes, and groundwater outflows. To alleviate any concerns about the validity of the seasonal high, it would be reasonable to include a permit condition requiring the Club to monitor the water level in Lake 7 on a daily basis, using staff gauges, after modification of the control structure. If such monitoring indicated that the seasonal high water level exceeds 31.0, the District could consider options to address that situation, including reducing the level at which reuse water is introduced into the lake or requiring water quality monitoring at the point of discharge to receiving waters. Groundwater quality is regulated by the Department of Environmental Protection, not by the District. The DEP permit issued to Sarasota County for disposal of reuse water at the Club golf course requires the installation of two groundwater monitoring wells, one in fairly close proximity to Lake No. 7. The Overlooked Pond There is a small retention pond northwest of Lake 7, near lot 113. Neither the Club nor the District considered the effect of the Club's late modification of its application on the retention pond northwest of Lake 7 and adjacent properties. Lake 7 and the retention pond to its northwest are connected by an equalizer pipe. As a result, water levels in the pond will be affected by water levels in Lake 7. There was no evidence as to the elevations of the banks of the retention pond. There was no evidence as to whether the modifications to the Club's application will result in flooding of properties adjacent to the pond. There was no evidence that the Club owns or controls the retention pond or the properties adjacent to it that might be affected by flooding that might result from the modifications to the Club's application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order denying the Club's amended application. RECOMMENDED this 19th day of October, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 19th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2196 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioners' Proposed Findings of Fact. 1.-2. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. However, there was other evidence from which it can be determined that Lake 7 is part of the Club's lease. Accepted and incorporated. However, there was other evidence from which it can be determined that Lake 7 is part of the Club's lease and from which the western extent of the Club's leasehold interests in Lake 7 can be determined. Accepted and incorporated. But the topographic survey, together with other evidence, does show the eastern extent of the Petitioners' property in relation to the "top of bank" of Lake 7 and the western extent of the Club's leasehold interests in Lake 7. Rejected as contrary to the greater weight of the evidence that uses must be "specifically authorized" in that the lease authorizes the use of the premises for a "golf course," which is presumed to include uses inherent to the operation of a golf course that may not be further specified in the lease, such as drainage facilities, like Lake 7, and facilities for irrigation of the golf course. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that the Club does not pay for the maintenance of Lake 7, at least as between the Club and its lessor, which is the subject of the pertinent lease provision. (There was evidence as to a dispute between the Club and the Petitioners, or at least some of them, as to who is responsible for maintenance of land in the vicinity of the western extent of Lake 7 and the eastern extent of the Petitioners' property. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence to the extent that there are "A" parcels between lots 115 through 120 and Lake 7. Otherwise, accepted and incorporated. Accepted and incorporated. Not clear whether all of the activities listed in the second sentence are done in the entire area up to the water's edge but, otherwise, accepted and incorporated. Accepted, but subordinate to facts contrary to those found, and unnecessary. Accepted; subordinate to facts found. Rejected. The intent of the parties is not clear and is the subject of litigation in state circuit court. 17.-18. Accepted that some probably used the words "to the water's edge"; others may have said "to the lake" or "to the approximate high water line." Regardless of what they said, the legal consequences are being litigated in state circuit court. Subordinate to facts contrary to those found, and unnecessary. 19.-20. Accepted and incorporated to the extent not subordinate or unnecessary.. Last sentence, accepted but subordinate and unnecessary. The rest is rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. The evidence was sufficient to place on Exhibit M-16 the boundary lines of the "A" parcels, as depicted on the Alberti boundary survey that was attached to the individual deeds to all of the "A" parcels, in relation to the "top of bank" of Lake 7 and other topographical features depicted on Exhibit M-16. The 0.679 acre total for the "A" parcels was merely transcribed from the Alberti boundary survey (probably incorrectly, as the boundary survey seems to indicate the acreage to be 0.674, plus or minus.) Rejected as contrary to the greater weight of the evidence. The modification itself would not cause the water level to rise. If, due to the combined influence of all the pertinent factors, the water level in Lake 7 rises, it will spread more than before the modifications, up to a maximum spread of approximately ten feet. Rejected as contrary to the greater weight of the evidence. The Club gave reasonable assurances that the spread would be contained within its leasehold interest. However, consideration would have to be given to modifying the permit if the state circuit court determines in the pending litigation that the easterly boundary of the "A" parcels lies to the east of the "top of bank." Accepted and incorporated to the extent not conclusion of law. Accepted. Self-evident and unnecessary. Accepted and incorporated. Accepted, but subordinate, and unnecessary. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence. It does not prohibit it; it just does not authorize it. It provides that authorization may be obtained by permit modification. Accepted and incorporated to the extent not subordinate or unnecessary. 32.-36. Accepted but subordinate and unnecessary. (Evidence was presented at final hearing.) 37. Rejected as contrary to the greater weight of the evidence that discharges will be "likely." (Accepted and incorporated that no discharges are expected as a result of storm events up to and including a 100-year storm event unless preceding conditions predispose the system to discharge during a 100-year storm event.) 38.-39. Accepted but subordinate and unnecessary. (As for 39., very little construction will be required for the proposed project.) Rejected as contrary to the greater weight of the evidence. First, Lake 7 will not be "maintained" at 31'; rather, when it falls below 30.5', a half inch will be added. Second, it is not clear that the Ardaman report established an "artificially low seasonal high water level." (There is a hydraulic gradient across Lake 7 from east to west, approximately. The Ardaman report assumed no flow into or out of Lake 7; it also assumed no pumpage into or out of the lake.) Rejected as contrary to the greater weight of the evidence that it is based "solely" on that assumption. Accepted and incorporated that it is based on that and on other assumptions. Accepted and incorporated. Accepted but subordinate and unnecessary. (Evidence was presented at final hearing.) Rejected as not supported by evidence. Rejected as contrary to the greater weight of the evidence to the extent that the impact is obvious--the water level in the pond will be approximately equal to the water level in Lake 7. Rejected as contrary to the greater weight of the evidence. The modification itself would not cause the water level to rise. If, due to the combined influence of all the pertinent factors, the water level in Lake 7 rises, so will the water level in the pond. 47.-48. Accepted and incorporated. 49.-50. Accepted but subordinate and unnecessary. 51.-52. Accepted and incorporated. Respondents' Proposed Findings of Fact. 1.-7. Accepted and incorporated. 8. Rejected as contrary to the greater weight of the evidence in that there was more to the application than just substitution of reuse for well water. 9.-10. Accepted and incorporated. 11. Accepted and incorporated to the extent not subordinate or unnecessary. 12.-22. Accepted and incorporated. Rejected as not proven. (The two District witnesses disagreed.) Even if true, subordinate to facts contrary to those found. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not conclusion of law. 28.-29. Accepted; subordinate to facts found, and in part conclusion of law. 30. Accepted. First sentence, incorporated; second sentence, subordinate to facts found, and in part conclusion of law. 31.-35. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted but subordinate to facts contrary to those found. 39.-40. Accepted and incorporated to the extent not subordinate or unnecessary. 41.-43. Accepted and incorporated. Accepted and incorporated to the extent not conclusion of law. Last sentence, accepted and incorporated to the extent not conclusion of law; rest, accepted but subordinate to facts contrary to those found, and in part conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted, but subordinate, and unnecessary. Accepted and incorporated. First sentence, accepted but subordinate to facts contrary to those found; second sentence, accepted and incorporated to the extent not conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. 51.-52. Accepted and incorporated. 53.-55. Accepted, but subordinate to facts found, and unnecessary. 56. Accepted and incorporated. 57.-62. Accepted and incorporated to the extent not subordinate or unnecessary. 63. Accepted and incorporated to the extent not conclusion of law. COPIES FURNISHED: Patricia A. Petruff, Esquire D. Robert Hoyle, Esquire Dye & Scott, P.A. 1111 Third Avenue West Bradenton, Flroida 34206 Mary F. Smallwood, Esquire Ruden, Barnett, McClosky, Smith, Schuser & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Mark F. Lapp, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston,Esq. General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue There are two main issues in this case. The first is whether Respondent, NNP-Bexley, Ltd. (NNP-Bexley), has provided Respondent, Southwest Florida Water Management District (the District), with reasonable assurances that the activities NNP- Bexley proposes to conduct pursuant to Environmental Resource Permit (ERP) Application No. 43013740.004 (the Permit) meet the conditions for issuance of permits established in Sections 373.413 and 373.414, Florida Statutes (2007), Florida Administrative Code Rules 40D-4.301 and 40D-4.302, and the Environmental Resource Permit Information Manual, Part B, Basis of Review (BOR).1 The second is whether Petitioner, Dr. Octavio Blanco (Blanco), participated in this proceeding for an improper purpose so as to warrant the imposition of sanctions under Section 120.595(1), Florida Statutes.2
Findings Of Fact Blanco is a resident of Pasco County, Florida. Blanco is a trustee and beneficiary of an unrecorded Land Trust Agreement, dated December 19, 1996, known as Trust Number 99. The Trust holds title to real property (the Blanco Property) located to the south of the NNP-Bexley property. The Blanco property is approximately 100 acres and primarily agricultural. It has a narrow frontage along State Road (SR) 54, and is directly east of the Suncoast Parkway. A wetland known as Wetland A3 is partially located on the northern portion of the Blanco property. NNP-Bexley is a Florida limited partnership between the Bexley family and NNP-Tampa, LLC, and is the applicant for the ERP at issue in this case. Newland Communities, LLC, is the project manager for NNP-Bexley under a project management agreement. The ERP at issue in this case would authorize construction of a new surface water management system to serve Phase I of the Bexley Ranch Development of Regional Impact (DRI), which is a 6,900-acre mixed use, residential community. Phase one consists of a 1,717-acre residential subdivision in Sections 7, 8, and 16-20, Township 26 South, Range 18 East, Pasco County, Florida (the Subject Property), with 735 residential units, both single and multi-family, and associated improvements, including widening SR 54 and constructing Sun Lake Boulevard and Tower Road (collectively, the Project). The Subject Property is located North of the Blanco property. Like the rest of the land subject to the Bexley Ranch DRI, the Subject Property is predominantly agricultural land used for raising cattle, sod farming, and tree farming. There is little native vegetation and limited habitat value for wildlife in the uplands. The Subject Property is composed of approximately 654 acres of wetlands and 1063 acres of uplands. Most of the wetlands will be preserved, including many as part of a wildlife corridor along the Anclote River that is proposed to be dedicated to Pasco county. The Bexley Ranch DRI has been extensively reviewed. Including the DRI approval, it has received 23 separate development approvals to date. A Site Conditions Assessment Permit (SCAP) issued by the District established existing conditions on the NNP-Bexley Property for ERP permitting purposes, including wetland delineations, wetland hydroperiods, pre-development flows, drainage flow patterns, and the pre- development flood plain. The SCAP was not challenged and is not subject to challenge in this proceeding. Surface Water Management System The Subject Property accepts off-site drainage flows from the east and from the south. All drainage exits the Subject Property to the west, into property owned by the District. There is a culvert under an abandoned railroad crossing between the Subject Property and the Blanco property that directs surface water flows into the Subject Property. That culvert controls water elevations on the Blanco property. The surface water management system consists of a series of wet detention facilities, wetland creation areas, and floodplain mitigation designed to control water quality, quantity, and floodplain elevations. The design of the surface water management system was optimized and environmental impacts were reduced by using created wetlands for floodplain attenuation. Information from the SCAP was used to create pre- development and post-development Inter-connected Pond Routing (ICPR) computer models of drainage relevant to the Subject Property. The ICPR models were used to design a surface water management system that will avoid adverse on-site or off-site impacts and provide required water quality treatment. The ICPR models showed that the in-flows and out-flows to and from the Project site will not be adversely impacted by the proposed activities. The proposed surface water management system will not cause adverse water quantity impacts to receiving waters or to adjacent land, including Dr. Blanco's property. The Phase I project will not cause adverse impacts to existing surface water storage and conveyance capabilities and will not adversely affect the quality of receiving waters such that state water quality standards will be violated. The proposed water quality treatment system utilizes ponds for treatment and attenuation. Flow will be controlled by outlet structures. During construction, best management practices will be used to control sediment run-off. The surface water management system provides adequate water quantity and quality treatment and is designed to meet the criteria in Section 5.2 and BOR Section 6. Wetlands and Associated Impacts The wetlands within the Subject Property consist primarily of moderate-quality forested wetlands that have been selectively logged in the past. Previously isolated wetlands have been connected by surface water ditches. Through multiple iterations of design, direct wetland impacts from the Project were reduced from 86 to approximately of the 654 acres of wetlands on the Subject Property. Of those 24 acres, almost half are man-made surface water ditches. There will be direct impacts to 13.6 acres of wetlands that will require mitigation, which is approximately two percent of the total wetlands on the Subject Property. Most of the direct wetland impacts are the result of required transportation improvements such as roadway crossings. Secondary impacts also were considered. However, the proposed ERP requires a minimum of 15 feet and an average of 65 feet of buffer around wetlands on the Subject Property. The uplands have been converted into improved pasture or silviculture that lack native vegetation and have limited habitat value. According to the evidence, given buffers that exceed the District's criteria of a minimum 15 feet and average feet, no "additional measures are needed for protection of wetlands used by listed species for nesting, denning, or critically important feeding habitat"; and any secondary impacts from the expected residential development on a large percentage of the uplands on the Subject Property and subsequent phases of the Bexley DRI are not considered to be adverse. See BOR Section 3.2.7. Extensive wildlife surveys were conducted throughout the breeding season at all relevant times for sand hill cranes, wading birds, and all listed species. No colonies of listed bird species, such as wood storks, herons, egrets, or ibises, were found on the Project site; and no listed species was found to utilize the site for nesting. Mitigation Under the proposed ERP for the Project, approximately 80 acres of wetlands are to be created for floodplain attenuation and mitigation to offset unavoidable wetland impacts. The proposed mitigation areas are to be excavated to relatively shallow depths and planted. All the mitigation is on the Subject Property. The State's mandated Uniform Mitigation Assessment Method (UMAM) was used in this case to determine the amount of mitigation "needed to offset adverse impacts to wetlands and other surface waters." Fla. Admin. Code R. 62-345.100(1). Generally, UMAM compares functional loss to wetlands and other surface waters to functional gains through mitigation. In applying UMAM in this case, it does not appear that NNP-Bexley considered any functional loss to wetlands and other surface waters from the use of a large percentage of the uplands on the Subject Property and subsequent phases of the Bexley DRI for residential development. Apparently, impacts resulting in any such functional loss to wetlands and other surface waters were treated as secondary impacts that were not considered to be adverse because they were adequately buffered. See Finding 17, supra. In addition, "the amount and type of mitigation required to offset . . . [s]econdary impacts to aquatic or wetland dependent listed animal species caused by impacts to uplands used by such species for nesting or denning" are evaluated and determined by means other than "implementation of Rules 62- 345.400 through 62-345.600, F.A.C." Fla. Admin. Code R. 62- 345.100(5)(b). In any event, the undisputed evidence was that the uplands have been converted into improved pasture or silviculture that lack native vegetation and have limited habitat value, and there was ample evidence that UMAM was used properly in this case to determine the amount of mitigation "needed to offset adverse impacts to wetlands and other surface waters." Id. Without any evidence to the contrary, the evidence in the record is accepted. Based on the accepted UMAM evidence, wetland impacts resulted in 6.36 units of functional loss. The functional gain of the proposed mitigation calculated using UMAM is 18.19 units, more than offsetting Project impacts to wetlands on the Subject Property. Proposed Excavations for Ponds and Wetland Creation Blanco's expressed concerns focus on a 30-acre wetland to be created in the southwest corner of the Subject Property for mitigation with a secondary benefit of floodplain compensation credit. Referred to as M-10, this wetland is proposed to be created by excavating uplands to a depth of approximately two and one half feet, which is approximately half a foot below the seasonal high water line (SHWL). Because it is controlled by the railroad culvert near the property boundary, Wetland A3 will not be negatively impacted by M-10. It will not lose water to M-10 or any of the proposed excavations except in periods of relatively high rainfall, when those outflows would benefit Wetland A3. In addition, the existing Tampa Bay Water pipeline and the proposed Tower Road, located between the Blanco Property and the Subject Property, would restrict any drawdown effects from impacting Wetland A3. Mr. Marty Sullivan, a geotechnical engineer, performed an integrated ground and surface water modeling study to evaluate the potential for impacts to Wetland A3 from the excavation of a large-sized pond on the adjacent Ashley Glen property as part of a project that also was the subject of an ERP administrative challenge by Petitioner. Petitioner's challenge concerned impacts to Wetland A3 from excavation of an adjacent pond, known as P11. Mr. Sullivan's modeling demonstrated that there would be no adverse impacts to the hydrology of Wetland A3 from the Ashley Glen excavation although P-11 was larger and deeper than M-10, and much closer to Wetland A3. The bottom of P-11 came within 2 feet of limerock, in contrast to the minimum 10 foot separation in M-10. The Bexley and Ashley Glen sites are substantially similar in other respects, and the Ashley Glen modeling is strong evidence that M-10 would not adversely impact Wetland A3 or the wetlands on the Subject Property. Approximately 50 test borings were conducted throughout the 6,900-acre DRI site. The borings were done after considering the locations of wetlands and proposed activities. Test borings in Phase I were performed on the west side of the Subject Property. The findings from the test borings indicate that there is an inconsistent semi-confining layer that overlies the DRI site. Limestone varies in depth from 15 feet to 50 feet below the surface. Based upon the findings from the test borings, excavations for stormwater ponds are a minimum of 10 feet above the top of the limestone layer, meaning the semi-confining unit materials that cover the limestone will not be encountered or breached. Given the excavation depths of the various ponds, no adverse draw-downs are expected that would cause the groundwater table to be lowered due to downward leakance. While initially water would be expected to flow or move through the ground from existing wetlands on the Subject Property to the new M-10 wetland, water levels will stabilize, and there will be enough water for the existing wetlands and for M-10. There will be more water in the southwestern corner of the Subject Property for a longer period of time than in pre- development conditions. NNP-Bexley provided reasonable assurance that there will be no adverse impacts to Wetland A3 or the existing wetlands on the Subject Property from M-10 or any of the proposed excavations. Other Conditions for Permit Issuance The Project was evaluated under the public interest test found in Rule 40D-4.302. The evidence was that the public interest criteria have been satisfied. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The applicant has provided reasonable assurance that the construction, operation, and maintenance of the system will meet the conditions for permit issuance in Rule 40D-4.301 and 40D4.302. Improper Purpose Blanco has a history of opposing projects near his property, with mixed results. In this case, after Blanco learned of NNP-Bexley's application for an ERP, he met with Ms. Brewer on April 20, 2006, to discuss it. At the time, specifics were not discussed, but Blanco let Ms. Brewer know that his successful opposition to an earlier project by Westfield Homes resulted in significant expenditures by the developer and eventually the abandonment of the project by that developer. Blanco warned Ms. Brewer that, if NNP-Bexley did not deal with him to his satisfaction, and he challenged NNP-Bexley's application, NNP-Bexley would risk a similar fate. In August 2006, Blanco arranged a meeting at the University of South Florida (USF) with Ms. Brewer, NNP-Bexley's consultants, Blanco, and USF hydrologists, Drs. Mark Stewart and Mark Rains. At the time, Blanco's expressed concern was the impact of the NNP-Bexley project on Wetland A3. As a result of the meeting, it was agreed that there would be no impact on Wetland A3, primarily because it was upstream and its water elevations were controlled by the downstream culvert to the south of the Bexley property. Nonetheless, Ms. Brewer agreed to limit excavations in the southwest corner near the Blanco property and Wetland A3 to a depth of no more than two and a half feet, instead of the 12 feet being proposed at the time. NNP-Bexley made the agreed changes to the application and proceeded towards obtaining approval by the District. When Blanco learned that the NNP-Bexley project was on the agenda for approval by the District Board at its meeting in March 2008, Blanco took the position that NNP-Bexley had reneged on an agreement to keep him informed and insisted on an urgent meeting. At this third meeting with Ms. Brewer and some of her consultants, Blanco was told that the only change to the application was the one agreed to at the meeting at USF in August 2006. Not satisfied, Blanco asked that the application documentation be forwarded to Dr. Stewart for his evaluation. He mentioned for the first time that he was concerned about an increased risk to the Blanco property and Wetland A3 from wildfires starting on the Bexley property, spreading south, and utilizing dry muck resulting from the dewatering of wetlands in the southwest corner of the Bexley property as fuel. Blanco requested that the approval item be removed from the Board's agenda to give Dr. Stewart time to evaluate the documentation and advise Blanco. Blanco stated that, if forced to challenge Board approval, he would raise numerous issues arising from the entirety of the application, not just the muck fire issue and not just issues arising from activities in the southwest corner of the Bexley property. Ms. Brewer refused to delay Board approval for the reasons given by Blanco. When told that the item would not be removed from the agenda, Blanco stated that he would not challenge an approval that limited the excavations to the SHWL. NNP-Bexley refused because it was necessary to dig the pond to a half foot below the SHWL in order to create a mitigation wetland. At that point, Blanco proposed that he would not challenge a Board approval if: vegetation was removed from the mitigation areas to reduce the risk of wildfires; a fire break was constructed along Tower Road and mowed periodically; NNP-Bexley agreed in writing to never deepen the mitigation pond M-1 in the southwest corner of the Bexley property; and NNP-Bexley paid Blanco $50,000 for him to install a well for use in fighting any wildfire that might approach the Blanco property and Wetland A3 from the north. Ms. Brewer agreed to all of Blanco's demands except for the $50,000 payment. Instead, she offered to pay for construction of the well, which she believed would cost significantly less than $50,000. At that point, the negotiations broke down, and Blanco filed a request for a hearing. The District denied Blanco's first request for a hearing and gave him leave to amend. In the interim, the Board voted to approve NNP-Bexley's application, and Blanco timely- filed an amended request for a hearing. The amended request for a hearing did not mention fire risk. Instead, it resurrected the issue of dewatering Wetland A3, as well as wetlands on the Bexley property, caused by the excavation in the southwest corner of the Bexley property, which would "result in destruction of functions provided by those wetlands that are not accounted for by the District." The amended request for a hearing also raised numerous other issues. After Blanco's former attorney-of-record withdrew without objection, Blanco's present counsel-of-record appeared on his behalf and requested a continuance to give Blanco time to determine whether either Dr. Stewart or Dr. Rains would be willing to testify for him if the hearing were re-scheduled. That request was denied. During a telephonic prehearing conference on September 8, 2008, Blanco asked to add Mr. Patrick Tara, a professional engineer, to his witness list. This request was denied as untimely. Mr. Tara was available but was not permitted to testify at the final hearing; instead, Blanco was allowed to file an affidavit of Mr. Tara as a proffer. Blanco's request to present expert evidence on fire hazards from muck fires in dry conditions was denied as irrelevant under the District's ERP conditions of issuance. Essentially, Blanco presented no evidence to support any of the allegations in his amended request for a hearing. Blanco maintained in his testimony that he filed and persisted in this challenge on the advice of his experts, Drs. Stewart and Rains, and after September 8, 2008, also on the opinions of Mr. Tara. For that reason, Blanco was given the opportunity to file affidavits from Drs. Stewart and Rains, in addition to the affidavit of Mr. Tara, in support of his expressed basis for litigating this case. Respondents were given the opportunity to depose Drs. Stewart and Rains if desired. Drs. Stewart and Rains, as well as Mr. Tara, all told Blanco essentially that the excavation proposed in NNP-Bexley's plans for development probably would have adverse impacts on the surrounding wetlands. However, none of them told Blanco that there would be adverse impacts on Wetland A3; Drs. Stewart and Rains clearly told Blanco that there would be no adverse impacts on Wetland A3. It does not appear from his affidavit that Mr. Tara focused on Wetland A3, and there is no reason to believe that he disagreed with Drs. Stewart and Rains with regard to Wetland A3. As to the wetlands on the Bexley property surrounding the excavation in the southwest corner of the property, any potential impacts from excavation that Drs. Stewart and Rains might have discussed with Blanco prior to the USF meeting in August 2006 were reduced after NNP-Bexley agreed to limit the depth of the excavation to two and a half feet. When asked about the revised excavations again in February or March of 2008, Dr. Stewart essentially told Blanco that even the shallower excavations would make the surrounding wetlands on the Subject Property drier during dry conditions and that any such impacts could be eliminated or minimized by either limiting the excavation to the SHWL or by maintaining a buffer of undisturbed land around the excavation. Dr. Rains agreed with Dr. Stewart's assessment. Contrary to Blanco's testimony at the final hearing, there is no evidence that Dr. Stewart, Dr. Rains, or Mr. Tara ever advised Blanco to file and persist in this challenge. In their depositions, Drs. Stewart and Rains specifically denied ever giving Dr. Blanco such advice. Likewise, there is no evidence that any of them had any opinions to give Blanco about risk of fire hazards. In their depositions, Drs. Stewart and Rains specifically denied ever giving Blanco such opinions. There are additional discrepancies between Blanco's testimony and the deposition testimony of Drs. Stewart and Rains. Blanco swore that Dr. Stewart was unable for health reasons to testify for him. In his deposition, Dr. Stewart denied that his health entered into his decision. He told Blanco from the outset that he would not be willing to testify as Blanco's expert. Dr. Stewart only cursorily examined the materials Blanco had delivered to him and only responded to Blanco's questions in generalities. Most of their conversations consisted of Blanco bringing Dr. Stewart up-to-date on what was happening in the case. Blanco swore that Dr. Rains planned to testify for him at the scheduled final hearing until unexpected events made it impossible. In his deposition, Dr. Rains testified that he never agreed to testify as Dr. Blanco's expert and that his unavailability to testify at the final hearing was made known to Blanco when he was first asked to testify at the scheduled final hearing. He never even opened the box of materials Blanco had delivered to him and barely spoke to Blanco at all about hydrology. Most of Dr. Rains' communications with Blanco had to do with Dr. Rains' unavailability to participate. Based on all of the evidence, it is found that Blanco's participation in this proceeding was for an improper purpose--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." His more recent dealings with Drs. Stewart and Rains and Mr. Tara seem more designed to obtain or infer statements for Blanco to use to avoid sanctions than to obtain actual evidence to support a valid administrative challenge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order issuing ERP No. 43013740.004 to NNP-Bexley. Jurisdiction is reserved to determine the appropriate amount of attorney's fees and costs to be awarded under Section 120.595(1), Florida Statutes, in further proceedings consolidated with NNP-Bexley's requests for Sections 57.105 and 120.569(2)(e), Florida Statutes. DONE AND ENTERED this 17th day of November, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2008.
Findings Of Fact The land here involved is located at the southern end of the Acme Improvement District. The northeastern portion of the tract is owned by Petitioner Leonard H. Tolley, and comprises some 15 percent of the total acreage of the tract. The remainder of the tract is owned by Petitioner Strazulla Brothers. The entire tract includes Sections 3 and 4, Township 455 Range 41E and a parcel of land in The Township 44 1/2 S Range 41E adjacent to Sections 3 and 4 and comprises some 1400 acres. The Strazulla property was acquired by Warranty Deed from the Trustees, Internal Improvement Trust Fund, by Philip Strazulla and subsequently conveyed to Petitioner. In 1978 real property taxes on the Strazulla property here involved was $17,453.42. The tract is bounded on the west by the L-40 levee and canal, on the north by Acme Improvement District Dike and C-27 Canal; on the east by property owned by Miller American Industries and on the south by property owned by the South Florida Water Management District. By this application Petitioner proposes to place levees with their borrow canals on the east and south sides of the tract and to construct a 240 acre reservoir adjacent to the L-40 levee by erecting a reservoir retention levee some 1400 feet eastward of the L-40 levee. By installing a 100,000 gallon per minute pump station at the southeast corner of the proposed reservoir, the water presently standing on the property could be drained allowing the eastern portion of the tract to be converted to agricultural use and the remainder converted into 2.5 acre residential sites. The 1972 Palm Beach County land use plan recommended the area here involved be zoned Preservation/Conservation, which effectively precluded development of the property. At that time, Strazulla attempted to sell the property or trade it to a governmental agency for property that could be developed, but without success. In 1978, the Palm Beach County Land Use Advisory Board changed the 1972 land use recommendation to Residential Estate to allow a reasonable use of the property. (Exhibit 7). The property abutting Petitioners' property to the north has been drained and thereon is located an orange grove and, west of the orange grove, 5- acre residential homesites. The property to the east is being developed as residential homesites. The property west of the C-40 canal comprises the Loxahatchee National Wildlife Refuge consisting of some 221 square miles of traditional Everglades wetlands. The property to the south is owned by the South Florida Water Management District and is of a character similar to Petitioners' property. Some two to three miles south of Petitioners' property is an east-west canal. In 1900 the property here involved was located in the eastern part of the Florida Everglades and received the sheet flow that characterized the natural Everglades. This historic hydroperiod has been disrupted by levees at Lake Okeechobee and by various drainage and irrigation canals constructed to render the large tracts of land thereby drained suitable for agriculture. In the immediate vicinity of the property, the L-40 levee and canal, which enclose the Loxahatchee National Wildlife Refuge (hereafter referred to as the conservation area) form a barrier to any sheet flow from this property onto the conservation area. This levee and canal bars practically all interchange of waters between Petitioners' property and the conservation area and is in the process of destroying part of the historical eastern boundary of the Everglades. Erection of the proposed levee on the east and south boundaries of the property would effectively stop the drainage now coming to this property from the east and the drainage from this property to the southeast. The South Florida Water Management District (SFWMD) owns a right-of- way to the east of the L-40 levee which is located in the area proposed by Petitioner for its reservoir. Petitioners' application to encroach on this right-of-way with the proposed reservoir was denied by SFWMD. This denial was based on the environmental impact, county zoning regulations (since changed) and the as yet undetermined effect of back pumping into the conservation areas. (Exhibit 17). Specifically, SFWMD Staff Report (Exhibit 17) found the environmental impact of the project will be: This proposed truck farming operation and residential development will destroy approximately 1100 acres of valuable wetland habitat by drainage. The impact on the 240 acres (60 acres of SFWMD right-of-way) of emergent marsh within the proposed reservoir will be determined by the water level management of the impoundment. A drastic change in water depth or inundation period could result in severe alterations of the present wetlands. An additional 50 acres of marsh will be lost due to dredge and fill operations for levee construction. The entire tract is poorly drained and is under water for considerable portions of the year, with the westernmost portion containing the longest periods and greatest depths of standing water. The soil in the eastern portion of the property is predominantly sandy, with a gray sandy loam layer at depths of 20 to 40 inches. The soil in the central portion of the tract is predominantly sandy, with a gray sandy loam layer at depths greater than 40 inches. The soil in the western portion of the tract is sandy, with a black organic surface layer (muck) 8 to 15 inches thick, underlain by gray sandy layers. Vegetation in the property goes from some pine and cypress in the eastern portion to sawgrass marshes in the western portion, with numerous varieties of plants associated with wet soil and marshy areas. During the proposed construction adequate safeguards can be imposed to prevent excess turbidity from entering State waters. This property comprises a large tract of pristine Everglades habitat for both plants and animals, and is of great value to the ecology of the state. In its undeveloped state it provides a buffer zone of up to two miles eastward for the conservation area. Water presently on the property is predominantly rainwater and of better quality than the water in the C-40 or C-27 canals adjacent to the property. Use of the land for agricultural purposes would increase the risk of water quality degradation caused by water runoff carrying fertilizers, herbicides and pesticides into the proposed reservoir and/or perimeter canals. If excess water on the property is pumped into the C-40 or C-27 canals, degradation of those waters could occur. The proposed development was opposed by the Florida Game and Fresh Water Fish Commission, not only because it would remove these fresh water marshes from the ecosystem and take away an essential habitat for birds and aquatic life, but also would remove a surface water retention basin and vegetation filtration of runoff from adjacent uplands. (Exhibit 16). The Permit Application Appraisal Report (Exhibit 15) which recommended denial of the application found the property acts as a buffer between the agricultural lands to the east and the conservation area and development as proposed would remove this buffer; and that water quality standards may be degraded due to agriculture runoff from the developed property being pumped into C-40 canal. Specifics of how runoff from property would be controlled were not obtained by the Environmental Specialist who prepared Exhibit 15. Pumping the surface waters on the property into a reservoir would reduce the diurnal variation in dissolved oxygen levels in the water and thereby improve water quality from that aspect. Water in the reservoir would be of greater depth than presently exists, thereby reducing photosynthesis and its concomitant benefits to the water quality. On the other hand, the greater depths could result in fewer grasses and more open surface water, thereby allowing more aeration of the water by wind action. Herbicides degrade fairly rapidly, and holding them in a reservoir would allow time to degrade. Many pesticides are water insoluble and would settle to the bottom of the reservoir.
The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
Findings Of Fact Mr. Mills owns a 105 acre tract of land on which he raises cattle. This land is directly east of South Bull Pond in Putnam County, Florida. The land which he proposes to fill lies within the landward extent of South Bull Pond. The pond is a natural lake of approximately 350 acres which does not become dry each year. The lake has a maximum average depth of greater than 2 feet throughout the year. Its shoreline is owned by more than one person. South Bull Pond is a Class III water of the State of Florida. Petitioner's proposed project involves the excavation of approximately 5,000 cubic yards of sand and muck from the lake bottom. He plans to place the fill in an area adjacent to the dredge site but within the landward extent of the lake. The area to be excavated is 200 feet long and 50 feet wide. The area to be filled with spoil material is the same size immediately to the east of the dredge area. The excavation will be approximately three feet deep into the lake bottom. Mr. Mills' application indicates that the purpose of the proposed work is to keep his cows out of the bog and also to increase the value of his property. The proposed dredging and filling will result in the permanent elimination of approximately one-half acre of natural vegetation along the lake. This area consists of a natural berm formed by alluvial deposits and a wet bog landward of the berm. There is an opening through the berm which allows the free exchange of waters between the main body of the lake and the bog area. The top elevation of the berm is such that the berm area is submerged for long periods of time. Ordinary high water inundates the berm and passes over it into the bog which is at a lower elevation than the berm. The field appraisal of the proposed site was conducted by Mr. John Hendrix, a Department biologist, on May 5, 1981. The site consists of three areas: the lakeshore, the berm, and the bog. The dominate species along the lakeshore are Saw grass (Cladium jamaicensis), Water Lily (Nymphaea spp.), Pickerelweed (Pontederia lanceolata), and Spatter dock (Nuphar spp.). The dominant fresh water species on the berm are: Saw grass (Cladium jamaicensis), and Arrowhead (Sagittaria spp.). Two transitional fresh water species also grow on the berm: St. John's wort (Hypericum fasciculatum) and Button bush (Cephalanthus occidentalis). The dominant species of the bog, which is landward of the berm, are Water Lily (nymphaea spp.), Water shield (Brasenia schreberi), Royal fern (Osmunda regalis), and Arrowhead (Sagittaria spp.). The lake is presently mesotrophic. It has a large productive vegetative structure primarily along the shoreline. The nutrients are "tied up" or stored in the marshes and peaty sediments of this shoreline and are not freely circulating in the main water body. The shoreline vegetation provides filtration for the main water body. The plants physically entrap sediments and biochemically assimilate them. They also store nutrients which otherwise degrade the water in the lake. The proposed dredging and filling will degrade water quality in two ways: 1) The equipment used for dredging will disrupt the sediments. They will then discharge freely into the water column of the lake and release their stored nutrients. 2) The berm and bog areas will be destroyed so that they can no longer stabilize the shoreline or provide the filtration function. Adverse water quality impacts from the project will be both short and long term. The short terms impacts include expected violations of the following water quality criteria found in Chapter 17-3, Florida Administrative Code: BOD; dissolved oxygen; transparency; biological integrity; turbidity; pH; nuisance species; and both nutrients criteria. The long term impacts will include stimulation of shifting of the natural balance of the lake towards a more eutrophic state and violation of the water quality criteria for nutrients, dissolved oxygen, BOD and transparency. Petitioner wants to fill the bog to prevent injury to his cows. A workable alternative to filling the bog is to erect a fence across the property to exclude the cows from that area. The drawings submitted by Petitioner as part of his application show that the operation of the dredging machinery would be from the berm. During the hearing Petitioner indicated that such machinery would be operating from the lakeshore. This modification would create fewer short term violations of water quality criteria. However, the following criteria would still be violated: BOD, turbidity, nuisance species, biological integrity, dissolved oxygen, transparency and nutrients.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying Petitioner's permit application. DONE AND ENTERED this 14th day of October 1981 in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1981. COPIES FURNISHED: Jimmie L. Mills Route 2, Box 244 Hawthorne, Florida 32640 Silvia Morell Alderman, Esquire Cynthia K. Christen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue This case involves a challenge to St. Johns River Water Management District’s (District or SJRWMD) intended issuance of an Environmental Resource Permit (ERP) granting the City's Application No. 4-127-97380-1, for the construction and operation of a surface water management system for a retrofit flood-relief project known as Drysdale Drive/Chapel Drive Drainage Improvements consisting of: excavation of the Drysdale Drive pond (Pond 1); improvement to the outfall at Sterling Lake; and the interconnection of Pond 1 and four existing drainage retention areas through a combination of pump stations and gravity outfalls (project or system). The issue is whether the applicant, the City of Deltona (City or Deltona), has provided reasonable assurance the system complies with the water quantity, environmental, and water quality criteria of the District’s ERP regulations set forth in Chapter 40C-4, Florida Administrative Code,1 and the Applicant’s Handbook: Management and Storage of Surface Waters (2005) (A.H.).2
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to the City of Deltona an ERP granting the City's Application No. 4-127-97380-1, subject to the conditions set forth in the Technical Staff Report. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006.
The Issue The issue to be determined in this case is whether the Respondents, Florida Department of Transportation (“FDOT”) and Palm Beach County (also referred to as “the Applicants”), are entitled to the issuance of an Environmental Resource Permit (“ERP”) to construct an extension of State Road 7 (“SR 7”) and its associated surface water management system in Palm Beach County.
Findings Of Fact The Parties The City is a municipality incorporated under Florida law. The District is a regional agency with the authority to regulate the construction, operation, and maintenance of any surface water management system pursuant to chapter 373, Part IV, Florida Statutes, and Florida Administrative Code Titles 40E and 62. FDOT is an agency of the state of Florida charged with the establishment, maintenance, and regulation of public transportation. It is a co-applicant for the ERP permit. Palm Beach County is a political subdivision of the State of Florida, and is a co-applicant for the ERP permit. Background State Road 7 Extension The ERP was issued by the District for an 8.5-mile extension of SR 7 between Okeechobee Boulevard and Northlake Boulevard in Palm Beach County. The purpose of the proposed roadway is to relieve traffic now moving through rural residential areas and two large residential developments known as The Acreage and Jupiter Farms. The proposed roadway would also improve hurricane evacuation by providing additional capacity and connectivity, and reduce emergency response time in the rural residential areas. The proposed roadway alignment was selected by FDOT after a multiyear corridor study under a National Environmental Protection Policy Act process. Four corridors were considered using federal selection criteria that addressed social, environmental, property, physical, and financial impacts. There are two segments of the proposed roadway covered by the ERP. The southern segment would add two more lanes to the existing two-lanes of SR 7 from Okeechobee Boulevard North to 60th Street North, just south of the M-Canal. This segment is 4.4 miles long. The southern segment is not at issue in this case. The northern segment would extend four lanes of SR 7 east from 60th Street North about one mile, and then north 3.1 miles to Northlake Boulevard. This is the roadway segment challenged by Petitioner. Hereafter, all references to “the Project” are to the northern segment. The Project includes a raised roadway, median, sidewalks, bike lanes, and stormwater swales. It also includes a bridge over the M-Canal and a bridge over a water control outfall. The Project would be constructed in an existing right- of-way (“ROW”). FDOT owns a ROW that is approximately 200 feet wide. The County owns an adjacent 120-foot-wide ROW, so that the total width of the Project ROW is 320 feet. Running north/south within the ROW is a dirt service road, a ditch, and a fence. Much of the vegetation in the ROW is dominated by invasive and exotic plant species, including Melaleuca, Carolina Willow, Brazilian Pepper, and Australian Pine. The Ibis Development West of the Project ROW is the 1,958-acre Ibis Golf and Country Club residential development (“Ibis”). In 1989, an ERP was issued for Ibis’ surface water management system (“the Ibis system”). The Ibis system includes almost 300 acres of interconnected lakes that provide water management and water quality treatment for Ibis. The 1989 permit required the Ibis system to be sized to receive and treat runoff from a segment of Northlake Boulevard and from an existing two-lane road off of Northlake Boulevard that serves the commercial area of Ibis, which is directly north of the Ibis residential area. The Ibis system was also required to receive and provide water treatment and storage for the stormwater runoff from 46.8 acres of the ROW for SR 7. The parties introduced evidence about modifications to the 1989 permit, which the City contends reduced the treatment capabilities of the system. It is found from the preponderance of the evidence that the original system and its modifications continued to meet design requirements to store and treat future runoff from 46.8 acres of the SR 7 ROW.1/ When the water in the Ibis lakes reaches elevation 17.5 feet NGVD (National Geodetic Vertical Datum), pumps at two pump stations at the south end of Ibis begin pumping water over a berm into Ibis Preserve, a 366-acre natural area directly south of Ibis. Water is retained in Ibis Preserve unles it exceeds an elevation of 18.5 feet, when it then passes over an outfall structure into the Grassy Waters Everglades Preserve (“Grassy Waters”) to the east. Ibis Preserve provides additional water quality treatment for the water pumped from Ibis, but this additional treatment was not part of the calculation of water quality management for Ibis. The Ibis system was required to meet District permitting criteria before discharge to Ibis Preserve. The North Palm Beach County Improvement District (“Improvement District”) owns and has operational and maintenance responsibility for the Ibis system. It also owned and managed Ibis Preserve, but transferred ownership and management of Ibis Preserve to the City in 2004. Grassy Waters/Water Catchment Area To the east of the Project is the City-owned “Water Catchment Area,” which covers about 14,700 acres or 23 square miles. The Water Catchment Area is owned by the City and is part of its public drinking water supply system. Water in the Water Catchment Area flows to Lake Mangonia where it is withdrawn, treated, and then delivered to residents and businesses in the City, the Town of Palm Beach, and the Town of South Palm Beach. There is a statement in the Project application that Grassy Waters refers only to the open water marsh within the Water Catchment Area. The Water Catchment Area includes other habitat types besides open marsh. Most of the information in the record indicates that Grassy Waters and the Water Catchment Area have the same boundaries. Therefore, in this Recommended Order, Grassy Waters and the Water Catchment Area are treated as being two names for the same area. Grassy Waters was once connected to the Everglades and large portions of it have the same characteristics, being an open water marsh with an extended hydroperiod. It is oligotrophic, meaning it is low in nutrients and has an ecosystem adapted to low nutrient conditions. It was undisputed that most areas of Grassy Waters are of high or even pristine environmental quality. Grassy Waters has periphyton, an assemblage of algae that only survive in phosphorous levels of less than 10 parts per billion (“ppb”). Periphyton is the base of the food chain in the open water marsh area of Grassy Waters and is consumed by apple snails and many invertebrates and fish. Grassy Waters has a visitor and nature center and provides recreational opportunities, such as canoeing, hiking, and bird watching. There appeared to be disagreement about whether the Project ROW is located in Grassy Waters or adjacent to it. The ROW is not within Grassy Waters, it is adjacent. However, the wetlands and other surface waters within the ROW are hydrologically connected to Grassy Waters. In the western part of Grassy Waters, which ends at the Project ROW, there are hammock islands and hydric pine flatwoods. The City contends these areas and the rest of the ROW were historically open water marsh, but were changed by human activities. The more persuasive evidence is that this western area was not all open marsh, historically. It was an area of natural transition from open water marsh to other habitat types. Ibis Impacts to Grassy Waters The parties disputed whether the Ibis system is a “failed system.” This is not a technical or defined term. The relevant issue is whether the Ibis system is operating in conformance with the requirements of its permit. The City contends the Ibis lakes are eutrophic and that sediment accumulation in the lakes is releasing phosphorus back into the water, which ends up in Grassy Waters. However, the City’s expert witness, Dr. Harper, admitted that the phosphorus concentration being discharged from the Ibis system, about 40 ppb, is typical for surface water management systems serving large residential developments, although that concentration is at the high end of the range. The phosphorus concentration is closer to 30 ppb in discharges from Ibis Preserve into Grassy Waters, showing that Ibis Preserve provides additional treatment to the waters coming out of Ibis. The characterization of the nutrient loading from the Ibis system as “typical” did not address the additional nutrients in the drainage that the Ibis system is required to accept from the SR 7 ROW. The record does not show that the nutrient concentrations from the Ibis system would still be typical if all of the ROW drainage were added without pre-treatment, as was contemplated by the 1989 Ibis permit. Because Grassy Waters is an oligotrophic ecosystem, it can be adversely affected by phosphorus levels above 10 ppb. When phosphorus is introduced into an oligotrophic system in concentrations over 10 ppb, the system begins to change to denser wetland vegetation, which can include invasive and nuisance species, such as cattail. There is denser vegetation and cattails in Grassy Waters near the Ibis Preserve outfall. There is also more phosphorus in sediments near the outfall. These effects decrease with distance from the outfall, but some effects were detected as far as a half mile from the outfall. The City’s expert witness, Dr. Gaiser, testified that periphyton is dissolved by high nutrient levels and replaced by weedy algae. She found adverse effects on periphyton near the outfall. Dr. Gaiser also found microcystis near the outfall. Microcystis is a toxic algae caused by high elevations of phosphorous. Microcystis comprised over 10 percent of the cell density of the algal community near the outfall. The District’s witness, Mr. Waterhouse, conceded that there is a problem with nuisance vegetation at the discharge point into Grassy Waters. He said the District was not aware of the problem before information was developed for this case. No evidence was presented about what consideration the District gave in 1989, when Ibis was permitted, to the potential adverse impacts of discharging phosphorus into the oligotrophic ecosystem of Grassy Waters. Based on the evidence that a phosphorus concentration of 30 ppb is expected for this kind of surface water management system, it must be concluded that the Ibis system was not designed to prevent harm to oligotrophic receiving waters. Respondents presented evidence to show that phosphorus loadings from the M-Canal could be the cause of the adverse impacts found near the Ibis Preserve outfall. The M-Canal was constructed by the City for the primary purpose of delivering water from Lake Okeechobee, via connection to the L-8 Canal, to the Water Catchment Area for public water supply. For most of its length, the M-Canal runs through Grassy Waters. The City generally maintains the water level in the M-Canal below the elevation of Grassy Waters so water in the canal will not flow into Grassy Waters. However, on some occasions, water flows from the M-Canal into Grassy Waters. High phosphorus concentrations have been recorded in the M-Canal; as high as 300 ppb. Nuisance vegetation is growing in the area where the M-Canal connects to the Water Catchment Area. The preponderance of the evidence establishes that the adverse impacts described by the City’s experts in the area of the Ibis Preserve outfall are caused primarily by discharges from Ibis Preserve. There are three other developments adjacent to Grassy Waters that occasionally discharge to Grassy Waters. These discharges are likely to contain some nutrients, but the amount of nutrients and their effects, if any, on Grassy Waters were not described in the record. The Water Catchment Area is a Class I waterbody because it is used for public water supply. The water quality standard for phosphorus and other nutrients in a Class I waterbody is set forth in Florida Administrative Code Rule 62-302.530(48)(b): In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna. Grassy Waters was designated by the Department of Environmental Protection (“DEP”) as a stream. Rule 62-302.531(2)(c) states that the narrative criterion “shall be interpreted as being achieved in a stream segment where information on chlorophyll a levels, algal mats or blooms, nuisance macrophyte growth, and changes in algal species composition indicates there are no imbalances in flora or fauna.” The City presented some evidence regarding nuisance macrophyte growth and changes in algal species composition in Grassy Waters near the Ibis Preserve outfall. Little evidence was presented regarding the practice of DEP or the District in the application of the narrative nutrient standard, but the preponderance of the evidence indicates the agency practice is to consider a stream segment as a whole to determine whether it exhibits an imbalance in natural populations of aquatic flora and fauna.2/ During the course of this proceeding, the District issued administrative complaints against the Improvement District and the City, which include Orders for Corrective Action. The complaints were issued pursuant to section 373.119, Florida Statutes, which authorizes such action when a water management district believes that a violation of any provision of chapter 373 or district rule has occurred. However, at the final hearing, the District was reluctant to say the Improvement District had violated any law or permit condition. The Improvement District did not challenge the enforcement action against it and, therefore, the District’s enforcement order became final. The Improvement District is required to address the accumulation of sediment in the Ibis Lakes, develop a nutrient source control plan, eliminate and reduce the use of herbicides containing copper sulfate, and reassess pumping schedules. There is no target nutrient limit specified in the District’s Orders for Corrective Action. The District’s enforcement action against the City seeks to require the City to increase secondary treatment and retention in Ibis Preserve, provide a plan to remove the exotic/invasive vegetation at the outfall, provide a vegetation monitoring plan, and develop source control measures for residential developments that discharge into Grassy Waters. The City challenged the enforcement action and it remains pending. Snail Kites The Everglades snail kite gets its name from its primary food, the apple snail. In the Everglades, snail kites also feed on an exotic island snail, which occurs there in about equal numbers as apple snails. There was no evidence presented that there are exotic island snails in Grassy Waters. Snail kite habitat is dependent on conditions conducive to apple snails, which are the open marsh and oligotrophic conditions where periphyton flourish. If a sufficient number of apple snails are present, snail kites will find suitable nesting nearby. Dense wetland vegetation is not good forage for snail kites because, even if apple snails are present, the apple snails will be difficult or impossible for the snail kites to see. Dr. Welch, who was the state snail kite conservation coordinator at the Florida Fish and Wildlife Conservation Commission and wrote the snail kite management plan for Florida, testified for the District, where he is now employed as a senior scientist. He said field surveys of snail kite nests in Grassy Waters indicate their numbers are relatively low compared to other areas where snail kites are found. There were only ten successful nests (eggs laid) observed from 2000 to 2016. The City’s Everglades expert, Dr. Lodge, speculated that the low nest counts could be due to difficulty in seeing the nests, but he was not familiar with the survey techniques used and, therefore, his opinion that the numbers could be materially underestimated is not credited. Snail kites nest throughout the Water Catchment Area, but primarily in the open marsh areas of the central and eastern portions of the Water Catchment Area. Over 90 percent of snail kite nests are more than a mile from the Project ROW. Dr. Lodge said there are four snail kite nests within 800 feet of the Project, but he was not more specific about their locations. Most nests are closer to Northlake Boulevard, State Road 710, and the Florida Turnpike. The major factor that adversely affects successful nesting by snail kites and production of offspring is predation, usually by raccoons and rat snakes. “Cold snaps” and drought are also factors. Impacts of The Proposed Project Water Quantity Impacts Water storage for the Project, which was going to be handled in the Ibis system under the 1989 Ibis permit, would be provided in the roadside swales. The Project is designed to retain water volumes greater than typically required for roadways. Stormwater would not flow out of the Project into the Ibis system except in unusually large storm events, in excess of six inches of rainfall. The City did not dispute the Project’s compliance with the applicable water quantity criteria in the District rules. Water Quality Impacts To address the City’s concerns about adverse impacts caused by the Ibis system, the Applicants expanded the roadside swales by ten feet and raised the outfall elevation by 0.05 feet. With these modifications, the Project would provide water quality treatment for its stormwater and no longer rely on the Ibis system for treatment. The swales would provide treatment in excess of the treatment required by District rules. Respondents contend that, when the treatment provided by the Ibis system is added, the total treatment provided for the Project stormwater is more than twice as much as required by District rules. The City, on the other hand, claims that no additional water quality treatment can be provided by the Ibis system because the Ibis Lakes are eutrophic. The preponderance of the evidence supports a finding that Project runoff to the Ibis system would receive additional water quality treatment in the Ibis system and in Ibis Preserve before flowing to Grassy Waters. The effect of the Project’s on-site treatment of its stormwater is that the amount of nutrients that would otherwise flow into the Ibis system from SR 7 would be reduced. Therefore, the effect of the Project is to reduce the nutrient load that the Improvement District was permitted to discharge to Ibis Preserve and Grassy Waters. The City did not dispute the Applicants’ evidence that the Project exceeds the District’s design criteria for water quality. The City focused instead on its contention that, despite its compliance with water quality design criteria, the Project would result in additional nutrient loading to Grassy Waters, which would cause additional adverse impacts to its flora and fauna. The Applicants and the City performed nutrient loading analyses even though such analyses are only required by the District when the receiving waters have been designated by the Department as “impaired” by nutrients or in the case of certain other specially designated waters. Grassy Waters does not have any of these special designations. The Applicants’ nutrient loading analysis concluded that the post-development loading of phosphorus and nitrogen from the Ibis system would be less than the pre-development condition, so there would be a net decrease in nutrients discharged into Grassy Waters. Petitioner’s expert witness, Dr. Harper, believes the Project would increase nutrient loading to Grassy Waters, even if stormwater from the Project did not carry additional nutrients, because the increased volume of water moving through the Ibis system would entrain more nutrients from sediments in the Ibis lakes. Dr. Harper believes the Project would also cause nutrient loading via groundwater seepage through the roadway swales into Grassy Waters. The preponderance of the evidence does not support his opinion that groundwater seepage would cause additional nutrient loading.3/ Dr. Harper believes another source of nutrient loading from the Project would be from surface flow down the roadway embankments. On the eastern embankment, this flow would enter the mitigation area 150 feet from Grassy Waters. Dr. Harper’s estimated total loading from all sources is not persuasive. The estimate gives a false sense of precision. It is based on a number of variable assumptions, some of which are not widely known or in use by experts in the field. In addition, Dr. Harper’s opinion did not appear to appropriately account for the modifications to the Project’s storage capacity. Dr. Harper’s estimated loading was not translated into physical effects in Grassy Waters. The Applicants’ estimate of total nutrient loading also gives a false sense of precision, but it is based on a well-known and widely used methodology. The City failed to prove that the Project would result in more nutrient loading to Grassy Waters than is currently contributed by the ROW. Because the Project would not rely on the Ibis system for stormwater treatment, the Project would reduce the loading that the Improvement District was permitted to discharge to Grassy Waters. To address potential vehicular spills into Grassy Waters, FDOT produced a Spill Response Plan. The swales would capture and contain any material spilled on the roadway or swale. The curb and gutter, a guardrail, gravity wall, and fence also provide protection against spills. The bridge over the M-Canal would use a 54-inch traffic barrier, which is higher than FDOT specifications for the design speed for the bridge. The City did not present evidence to show that the protective measures proposed by the Applicants are less than what is usually considered adequate under similar circumstances, or fails to meet a relevant safety standard. Wetland Impacts Direct Impacts The Project would directly impact 52.37 acres of wetlands and 7.86 acres of surface waters. The impacted wetlands are fresh water marsh, mixed shrubs, and hydric pine flatwoods. The surface waters affected consist of vegetated ditches and un- vegetated channels or canals. The impacted wetlands include 11.77 acres of freshwater marsh. The impacted surface waters are ditches. Most of these wetlands are disturbed and their functional values have been reduced. Secondary Impacts District rules require an applicant to account for the secondary impacts caused by a project that could adversely affect the functions of adjacent wetlands or other surface waters. The Applicant’s Handbook defines secondary impacts to include impacts on wetland functions, water quality, and endangered species, including impacts on areas needed by endangered species for foraging. Part of the Applicants’ assessment of secondary impacts of the Project was made by reviewing the effects of the Acreage Reliever Road on Pond Cypress Preserve, a 1,737-acre conservation area managed by the County that is immediately south of the proposed Project. The County has been monitoring the effect of the Acreage Reliever Road on hydrology, vegetation, and species compensation ever since the road was built. The County found no adverse secondary impacts caused by the road. The species that use the wetlands near the road, including wading birds, appear to be unaffected by the road. The scoring of secondary impacts for the Projects, using the Uniform Mitigation Assessment Methodology (“UMAM”), was conservative, meaning that assumptions were made at the high side of the potential range of impacts. This resulted in more mitigation being required. The Applicants claim the Project would “maintain a 300-foot buffer between the project’s construction boundary and [Grassy Waters].” This appears to be a misstatement. The Applicants’ combined ROW is only 320 feet wide. Going east from the limits of construction, it is 160 feet to Grassy Waters. The Project’s buffer is 160 feet wide. The District accounted for secondary impacts to wetland dependent species, including snail kites, from noise and lights that might discourage use of the area. The Project would provide a tree buffer that will reduce noise and light impacts to Grassy Waters. The roadway lighting plan is also intended to reduce light penetration into Grassy Waters. Most of the threatened and endangered bird species are tolerant of roadways for foraging and roosting, but not for nesting. Section 10.2.7 requires the Applicants to provide reasonable assurances that any future phase of a project or project-related activities will not result in adverse impacts to the functions of wetlands or water quality violations. The Applicants satisfied this requirement by releasing of FDOT ROW north and south of the Project. Cumulative Impacts An applicant must provide reasonable assurance that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which a permit is sought. Some of the proposed mitigation for the Project is out- of-basin. If an applicant proposes to mitigate impacts in another drainage basin, District rules require consideration of factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” to determine whether there are unacceptable cumulative impacts. The Project is located in the eastern Palm Beach County Basin, which has approximately 21,000 acres of wetlands. About 89 percent of the wetlands in the basin are publicly-owned conservation lands, which means their wetland functions will continue into the future. The cumulative impact analysis was conservative, meaning that the actual impacts are likely to be fewer. Petitioner contends that Respondents’ cumulative impact analysis did not account for the unique nature of the Grassy Waters ecosystem as the only remaining low nutrient oligotrophic wetland in the region. The preponderance of the evidence shows that the historical wetland types in the Project area were not all like the open marsh found in the central and eastern portion of Grassy Waters. Respondents accounted for the loss of open water marsh that would be caused by the Project. On-Site Mitigation There would be 52.4 acres of on-site mitigation within a 160-foot-wide strip of land along the eastern limits of proposed construction. This area of the ROW would be managed by removing or treating the exotic vegetation, such as Brazilian Pepper and Maleleuca. Removing the exotic vegetation seed source would prevent further spread of these nuisance species into Grassy Waters. Where native habitats have been altered with ditches and berms, the land would be graded to create a slope from the limits of construction eastward to the edge of the ROW. The eastern elevation would be similar to the adjacent marsh or hydric pine areas of Grassy Waters. Then, native vegetation would be planted. The habitats enhanced, restored, or created would include freshwater marsh, hydric pine flatwoods and mixed forested wetlands, including cypress. The planting of mixed, forested species would provide sound and light buffering for snail kites and other species in Grassy Waters. Two wildlife passages would be created underneath the Project with fencing designed to direct wildlife to use the wildlife passages. Slats would be placed in the roadway fencing to prevent small animals from going through the fence and onto the roadway. The on-site mitigation was scored using UMAM and determined to result in functional gain. The UMAM analysis was conservative, meaning that the actual functional gain is likely to be greater. The City did not contest the UMAM scoring. Off-site Mitigation FDOT is applying mitigation credits from 210 acres at the Pine Glades Natural Area (“Pine Glades”) to offset impacts to 15.7 acres of herbaceous marsh and 26.78 acres of forested wetland impacts. Pine Glades is a regional off-site mitigation area located in the Loxahatchee River Basin and is owned and operated by Palm Beach County. Pine Glades consists of a mix of wet prairie, depression marshes, hydric pine flatwoods, and mesic flatwoods. The restoration work in Pine Glades has already been completed. Pines Glades implements a detailed management plan that provides regional ecological value. Robbins testified that Pine Glades has similar habitats to Grassy Waters. Pine Glades has periphyton, apple snails, snail kites, wood storks, and sand hill cranes. Pine Glades has some areas with oligotrophic conditions. Additional off-site mitigation to offset 52 acres of wetland impacts caused by the Project would be provided at the DuPuis Reserve (“DuPuis”). DuPuis is a regional off-site mitigation area located between the L-8 Canal and the C-44 Canal in western Palm Beach and Martin Counties, and is owned and operated by the District. DuPuis would provide mitigation with 34.71 acres of herbaceous wetlands and 43.8 acres of forested wetlands. DuPuis is appropriate to offset the impacts associated with the Project because it provides similar habitats with similar values of functions for similar wildlife. DuPuis implements a detailed management plan that provides regional ecological value. The City argues that there is little similarity between the Grassy Waters ecosystem and Pine Glades or DuPuis, so the mitigation there cannot offset the unique assemblage of plants and animals that would be lost in Grassy Waters. It is unnecessary for Pine Glades and DuPuis to be dominated by open water marshes like Grassy Waters. It is only necessary that they have some of these areas to offset Project impacts to open water marsh. Proposed snail kite mitigation would provide 52.5 more acres of snail kite habitat than would be directly impacted by the Project. The mitigation for snail kites will be located in FDOT ROW adjacent to the Project, south of the M-Canal, and north of Northlake Blvd. Erwin expressed concern about fragmentation of the ecosystems that would be caused by the Project. The areas that would be affected by the Project have already been fragmented by berms, ditches, and fences. Grassy Waters is surrounded by berms, a canal, and highways. The Project would cause fragmentation, like all roads. However, the fragmentation was reduced where practicable, and the City did not show that the roadway would cause the loss of any significant “greenway” now used by wildlife. Snail Kite Impacts Section 10.2.2(a) requires an applicant to provide reasonable assurances that a proposed activity would not impact wetlands and other surface waters so as to reduce the abundance and diversity of listed species. Snail kites, wood storks, sandhill cranes, white ibises, and little blue herons are listed species that have been observed within the Project corridor. As explained in the Conclusions of Law, the UMAM process is designed to mitigate for wetland functional losses, not snail kite functional losses. However, the potential impact to any listed species warrants close attention to the issue of whether function-for-function wetland mitigation would be provided. There will be 11.5 acres of direct impacts to snail kite habitat within the footprint of the Project area. Dr. Welch believes secondary impacts to wetland functions associated with snail kites could extend 800 feet east of the ROW. Mitigation for snail kites would be located in the Rangeline corridor south of the M-Canal and north of Northlake Boulevard. Dr. Welch estimated there were about 64 acres of snail kite habitat in the Rangeline corridor similar to the 11.5 acres of habitat located in the Project footprint. Dr. Welch conceded that he has no evidence that snail kites currently use the Rangeline, but he believes the habitat is suitable and is appropriate mitigation. Petitioner claims there are studies of “similar birds” indicating that snail kites avoid highways due to noise. However, the studies were not of similar birds. More weight is given to Dr. Welch’s testimony that snail kites are not particularly sensitive to roadway noise. Dr. Welch stated that Pine Glades would likely have value for snail kites because it is near the Hungryland Wildlife Management Area, which has the same number of successful snail kite nests as Grassy Waters. The City contends that Pine Glades is too far away from Grassy Waters to mitigate Project impacts to snail kites. However, snail kites range long distances to forage; several hundred miles in a few days. Satellite telemetry of snail kites shows snail kites from Grassy Waters are using Pine Glades for feeding. Dr. Welch reviewed snail kite nesting data to determine whether roads deterred nesting and found that snail kites frequently nested within 500 feet of major roadways. Dr. Welch refuted the idea that Grassy Waters provided snail kite refuge during drought conditions, because Grassy Waters is also subject to drought conditions that adversely affect snail kites. There are conditions in the permit to limit potential impacts to snail kites during construction of the Project. If snail kite nesting is observed within 1,640 feet of construction, all Project construction must cease. Thereafter, monitoring of the nest and notification of the U.S. Fish and Wildlife Service is required. Construction cannot resume until that nest has been considered finished. FDOT would place a conservation easement over 82.6 acres in the FDOT ROW between Okeechobee Boulevard and the M-Canal, south of the Project area that is the subject of this proceeding. The conservation easement would maintain connectivity between the Pond Cypress Natural Area and Grassy Waters and ensure that no future southern extension of the roadway will be constructed. A conservation easement would be placed on the FDOT ROW between Northlake Boulevard and SR 710, an area of approximately 43.5 acres. Preserving this area protects a hydrologic connection between Loxahatchee Slough Natural Area and Grassy Waters. It also ensures no future northern extension of the roadway. A conservation easement would be placed on a portion of the FDOT ROW between SR 710 and Jupiter Farms, an area of 44.5 acres. This section of ROW is in the Loxahatchee Slough and the release of the ROW would be a direct benefit to Loxahatchee Slough. The preservation of these areas would benefit fishing and recreational values in the Pond Cypress Natural Area, Grassy Waters, and the Loxahatchee Slough Natural Area. These conservation areas did not receive UMAM credits to reduce the wetland acreage needed to offset wetland functional losses, but they were included in the mitigation credit for benefits to snail kites and other wildlife. Summary The preponderance of the evidence established that the proposed mitigation offsets the impacts to wetlands and other surface waters that would be caused by the Project and exceeds the requirements of District rules. Practicable Design Modifications District rules require an applicant to consider alternatives that would avoid or reduce wetland impacts. The City claims the Applicants failed to comply with this rule because FDOT selected a roadway corridor that was expected to have greater environmental impacts than some of the other three corridors that were being considered. As explained in the Conclusions of Law, this argument is misplaced. The District’s review of the Applicants’ measures to avoid or minimize wetland impacts was appropriately confined to Corridor 3, the corridor selected by FDOT where the Project is proposed. The Applicants reduced and eliminated impacts of the Project in several ways. For example, the footprint of the road was narrowed from six lanes to four lanes, wildlife underpasses were provided, retaining walls were used to narrow stormwater features, the median was reduced in size, and the design speed limit was reduced for the bridge at the M-Canal crossing. Under two circumstances, District rules allow an applicant to avoid the requirement to implement practicable design modifications to reduce or eliminate wetland impacts, which are referred to as the “opt-out” provisions. Section 10.2.1.2, Volume I, of the Applicant’s Handbook (“A.H.”) provides: The ecological value of the functions provided by the area of wetland or other surface water to be adversely affected is low, based on a site specific analysis using the factors in section 10.2.2.3, below, and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected, or The applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. The District determined that the Applicants meet both tests. The preponderance of the evidence supports the District’s determination. The ecological value of the functions provided by the affected wetlands and surface is low and the proposed mitigation would provide greater long-term ecological value than the area being impacted. Pine Glades and DuPuis are part of a plan to restore the ecological value of Northern Palm Beach County and create an “ocean to lake” system of preserves and natural areas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order approving Permit Number 50-05422-P on the terms and conditions set forth in the amended Staff Report, and the complete application for the Permit. DONE AND ENTERED this 31st day of March, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2017.
