The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
The Issue The issues are whether Respondent Lennar Homes, Inc., is entitled to an environmental resource permit to construct a 516- acre residential development in Miami-Dade County known as Lakes by the Bay South Commons Project and, if so, under what conditions.
Findings Of Fact On May 18, 2001, Respondent Lennar Homes, Inc. (Lennar Homes), filed an application with Respondent South Florida Water Management District (District) for an environmental resource permit (ERP) for a 516-acre residential development in Miami- Dade County known as Lakes By The Bay (Project). On June 12, 2002, Lennar Homes filed a revised ERP application for the Project. The application, as revised, is for an ERP conceptually approving the construction of a surface water management system to serve the Project and authorizing the construction to clear the site, excavate the wet retention areas, and expand an existing lake. Providing 3300 single- family residences, the Project is the last phase of a master planned residential development, which presently contains over 1500 residences north and west of the Project. The Project is bordered by Southwest 97th Avenue to the west, Southwest 87th Avenue to the east, Southwest 216th Street to the north, and Southwest 232nd Street to the south. Immediately south of the Project are a regional wastewater treatment plant and county solid waste landfill. These facilities occupy opposing banks of the C-1 Canal, which runs a short distance from the southwest corner of the Project. The Project site is drained, cleared, and infested with Brazilian pepper and melaleuca. The Project will impact 135 acres of wetlands, but these wetlands are severely degraded due to the construction of roads, berms, and canals. No evidence suggests that the site is presently used by any listed species. At present, drainage across the site is from west to east, where stormwater is intercepted by the L-31E levy and canal running along the west side of Southwest 87th Avenue. At its nearest point (the southeast corner), the Project is about one mile from the southern part of Biscayne Bay. Biscayne Bay is an Outstanding Florida Water. Much of its central and southern parts, including the area closest to the Project site, are within Biscayne National Park. In contrast to the northern part of Biscayne Bay, the central and southern parts contain significant mangrove-lined coastal wetlands. The bay bottom in southern Biscayne Bay hosts dense seagrass beds, and coral reefs within Biscayne National Park support a diverse community of marine life. The L-31E levy and canal redirect stormwater from the Project site south to the C-1 Canal, which runs, in this area, in a northwest-to-southeast direction before emptying into Biscayne Bay. The C-1 Canal drains an extensive area to the north and northwest of the Project. The landfill and water treatment plant are a short distance downstream of the Proposed Project. The parties have stipulated that the Project meets the following ERP criteria (with minor rephrasing from the stipulation): The Project will not adversely affect significant historical and archaeological resources. The Project is not located within an Outstanding Florida Water and will not result in the direct discharge of surface water into an Outstanding Florida Water. Lennar has proposed mitigation to offset the adverse impacts of the Project, and the mitigation is in the same drainage basin as the adverse impacts. Therefore, the Project will not generate unlawful cumulative impacts, in violation of Section 373.414(8)(a)-(b), Florida Statutes. The Project will not cause adverse water quality impacts to receiving waters and adjacent lands, in violation of Rule 40E-4.301(a), Florida Administrative Code. The Project will not cause adverse flooding to onsite or offsite property, in violation of Rule 40E-4.301(b), Florida Administrative Code. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities, in violation of Rule 40E-4.301(c), Florida Administrative Code. The Project will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes, in violation of Rule 40E-4.301(g), Florida Administrative Code. The Project will not cause adverse impacts to a work of the District established pursuant to Section 373.086, Florida Statutes, in violation of Rule 40E-4.301(h), Florida Administrative Code. The Project will be conducted by an entity with sufficient financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, as required by Rule 40E-4.301(j), Florida Administrative Code. No special basin or geographic area criteria established in Chapter 40E-41, Florida Administrative Code, are applicable to the Project. The Project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling, as prohibited by Section 373.414(1)(a)3, Florida Statutes. The Project will be permanent, as addressed by Section 373.414(1)(a)5, Florida Statutes. The District issued its Staff Report on March 13, 2002. The Staff Report approves the proposed mitigation plan, which would enhance or create and preserve 135 acres of onsite wetlands by creating an upland buffer, emergent marsh and transitional herbaceous shrub areas, and tree island areas. Much of the proposed mitigation area will occupy the southern half of the perimeter of the Project site. As proposed in the mitigation plan, Lennar Homes will grant the District a conservation easement over the mitigation area and will be required to meet certain mitigation performance conditions. Shortly prior to the commencement of the final hearing in this case, the District decided to change the proposed permit regarding mitigation. The purpose of the change was to require Lennar Homes to allow the mitigation area to be used as a flowway between the C-1 Canal, upstream of the nutrient loads deposited by the landfill and water treatment plant, and an area to the east of the Project site. The receiving area consists of vestigial tidal creeks leading to presently remaining tidal creeks that empty into small embayments within Biscayne Bay. The general purpose of the change was to remediate the loss of freshwater flows into these tidal creeks, the embayments, and Biscayne Bay that resulted from the construction of drainage canals and levies, such as C-1 and L31-E. Accordingly, the District issued an Addendum to Staff Report on August 9, 2002. The Addendum adds an easement to the original mitigation plan by adding Special Condition #24, which states: No later than 30 days after permit issuance and prior to commencement of construction resulting in wetland impacts, the permittee shall submit two certified copies of the recorded flowage easement for the mitigation area and associated buffers and a GIS disk of the recorded easement area The recorded easement shall be in substantial compliance with Exhibit 41. Any proposed modifications to the approved form must receive prior written consent from the District. The easement must be free of encumbrances or interests in the easement which the District determines are contrary to the intent of the easement. . . . Exhibit 41 (actually Exhibit 41A) is entitled, "Perpetual Flowage, Inundation, Construction, and Access Easement." Representing a grant from Lennar Homes to the District, the easement (Flowage Easement) is for any and all purposes deemed by [the District] to be necessary, convenient, or incident to, or in connection with, the unrestricted right to regularly, or at any time, and for any length of time[,] overflow, flood, inundate, flow water on, across, and through, store water on, and submerge the [encumbered property], together with the unrestricted right at any time to enter upon and access the [encumbered property], with any and all vehicles and equipment, including but not limited to the right to move, transport, store, operate, and stage equipment, materials and supplies, in order to construct, operate, and maintain any and all structures, improvements, equipment, pumps, ditches and berms upon the [encumbered property] deemed by [the District] to be necessary, convenient, incident to or in connection with the implementation of the BBCW Project on the [encumbered property], or in connection with any project in the interest of flood control, water management, conservation, environmental restoration, water storage, or reclamation, and allied purposes, that may be conducted now or in the future by the [District], or to carry out the purposes and intent of the statutory authority of the [District], presently existing or that may be enacted in the future, together with all right, title, and interest in and to the [BBCW] Project Structures. * * * This Easement shall at no time be construed to alleviate or release [Lennar Home's] responsibilities and require [sic] under ERP Permit No. to construct and maintain an on-site mitigation area as described and authorized in the ERP Permit. Other provisions of the Flowage Easement impose all risk of loss in connection with the flowway upon Lennar Homes, which indemnifies the District from all losses, costs, damages, and liability in connection with the flowway. On September 5, 2002, after the hearing, but a few days before the taking of the post-hearing testimony, the District issued a Revised Addendum to Staff Report. The Revised Addendum restates Special Condition #24 with a few relatively minor changes and adds Special Conditions ##25 and 26. Special Condition #25 attempts to harmonize the Flowage Easement with the original mitigation plan contemplated by the Staff Report. Special Condition #25 provides that when the District exercises its rights under the Flowage Easement, other special conditions shall be deleted, so as, for example, to relieve Lennar Homes of its obligations to maintain the mitigation area (except for a 25-foot buffer) and post a mitigation-performance bond. Special Condition #26 changes the language in the conservation easement, which was contemplated by the original Staff Report and mitigation plan, to harmonize this easement with the Flowage Easement. Lennar Homes has submitted a version of the Revised Addendum to Staff Report that would satisfy its concerns. The Lennar Homes version would require the District, within 30 days after issuing the ERP to Lennar Homes, to obtain permits from the U.S. Army Corps of Engineers and the local environmental regulatory agency, although not the Florida Department of Environmental Protection, which, under state law, would have to issue an ERP to the District before it could construct the flowway. The Lennar Homes version would also give the District only 90 days after issuing the ERP to Lennar Homes within which to exercise its right to construct the flowway and would sequence events so that Lennar Homes would not spend the estimated $2 million on wetland enhancement and creation and then lose the investment due to the inundation of the mitigation site with water, as authorized by the Flowage Easement. The Comprehensive Everglades Restoration Plan plays a crucial role in this case. But for this plan, the District would not have attached the additional conditions contained in the Addendum to Staff Report and Revised Addendum to Staff Report--without which conditions, the District now contends that Lennar Homes is not entitled to the ERP. Congress initially authorized the Central and Southern Florida (C&SF) Project in 1948. Objectives of the C&SF Project included flood control, water supply for municipal, industrial, and agricultural uses, prevention of saltwater intrusion, and protection of fish and wildlife. The C&SF Project attained these objectives, in part, through a primary system of 1000 miles each of levees and canals, 150 water-control structures, and 16 major pump stations. Unintended consequences of the C&SF Project have included the irreversible loss of vast areas of wetlands, including half of the original Everglades; the alteration in the water storage, timing, and flow capacities of natural drainage systems; and the degradation of water quality and habitat due to over-drainage or extreme fluctuations in the timing and delivery of freshwater into the coastal wetlands and estuaries. In 1992, Congress authorized the C&SF Project Comprehensive Review Study (Restudy). The objective of the Restudy was to reexamine the C&SF Project to determine the feasibility of modifying the project to restore the South Florida ecosystem and provide for the other water-related needs of the region. Completed in April 1999, the Central and Southern Florida Project Comprehensive Review Study Final Integrated Feasibility Report and Programmatic Environmental Impact Statement (Restudy Report) notes that, among the unintended consequences of the C&SF Project, was "unsuitable freshwater flows to Florida and Biscayne bays and Lake Worth Lagoon [that] adversely impact salinity and physically alter fish and wildlife habitat." The Restudy Report states that, absent comprehensive, new restoration projects, the "overall health of the [South Florida] ecosystem will have substantially deteriorated" by 2050. The Restudy Report recommends a comprehensive plan for the restoration, protection, and preservation of the water resources of Central and South Florida. This plan is known as the Comprehensive Everglades Restoration Plan (CERP). Acknowledging the complex dynamics of the restoration goals identified in CERP, the Restudy Report establishes Project Implementation Reports to tie together CERP and the detailed design necessary for the construction of individual restoration projects and adaptive assessments to monitor the performance of individual components, incorporate new data, and refine future components. The Restudy Report is, among other things, a programmatic environmental impact statement. The Restudy Report states: "Due to the conceptual nature of [CERP] and the associated uncertainties, many subsequent site-specific environmental documents will be required for the individual separable project elements." In May 2002, the District and U.S. Army Corps of Engineers completed a draft of the Project Management Plan for the Biscayne Bay Coastal Wetlands (BBCW PMP). Noting that a "major goal of [CERP] is to improve freshwater deliveries to Biscayne Bay," the BBCW PMP identifies the BBCW project as the means by which to restore some of the coastal wetlands and tributaries in south Dade County. The BBCW PMP states that the primary purpose of the BBCW project, which is one of sixty projects contained in CERP, is to "redistribute freshwater runoff from the watershed into Biscayne Bay, away from the canal discharges that exist today and provide a more natural and historic overland flow through existing and or improved coastal wetlands." The Cutler Wetlands subcomponent of the BBCW project encompasses the Project site. One of the objectives of the Cutler Wetlands subcomponent is to divert water from the C-1 Canal upstream of the landfill and water treatment plant to the east of the L-31E levy and canal. In connection with the Cutler Wetlands subcomponent and the possible role of the flowway identified in this case, the District retained Dr. John Meeder, a Biscayne Bay ecologist associated with the Southeast Environmental Resource Center at Florida International University, to perform an abbreviated study and issue a report concerning the conditions required for the restoration of the coastal wetlands in the vicinity of the coastal wetlands to the north of the C-1 canal and east of the Project site (Meeder Report). The Meeder Report studies two feasible freshwater delivery options and prefers a bypass flowway along Southwest 224th Street, across roughly the middle of the Project site and north of most of the proposed mitigation area, to the L-31E levy and canal. The distribution system resulting from the preferred route would use the natural grade of the land to divert the water to the coastal wetlands and tidal creeks to the east and south that are targeted for rehydration. The alternative flowway route would run along Southwest 232nd Street, in the approximate area of the Flowage Easement, but would require pumping to distribute the water north along the L-31E levy and canal for release to the targeted coastal wetlands and tidal creeks. Obviously, the District has chosen the less-preferred route to minimize the impact on the Project. The Meeder Report considers the amount of freshwater required for two rehydration options. In the first option, water diverted from the C-1 Canal and passing through the flowway would rehydrate only the tidal creeks, which then empty into the embayments that lead to Biscayne Bay. In the second option, water diverted from the C-1 Canal and passing through the flowway would rehydrate the tidal creeks and the surrounding coastal wetlands. To maintain an appropriate salinity range and rehydrate only the tidal creeks, the flowway would need to deliver 70 acre/feet per day in the dry season and 95 acre/feet per day in the wet season. To maintain an appropriate salinity range and rehydrate the tidal creeks and surrounding coastal wetlands, the flowway would need to deliver 209 acre/feet per day in the dry season and 1139 acre/feet per day in the wet season. Several factors militate against an attempt to rehydrate the coastal wetlands surrounding the targeted tidal creeks. Potential errors in data and analysis increase in magnitude with the larger freshwater diversions needed to rehydrate the tidal creeks and surrounding coastal wetlands, and Dr. Meeder admitted that the largest value was very approximate. Potentially serious impacts upon salinity and associated vegetative communities increase in likelihood with the larger freshwater diversions needed to rehydrate the tidal creeks and surrounding coastal wetlands. Also, the diversion of larger volumes of water from the C-1 Canal may have adverse impacts on downstream conditions. At the point of the C-1 Canal where it first enters the landfill and wastewater treatment plant (just downstream from the flowway), the average flow of the C-1 Canal is 350 acre/feet per day, but the median flow is only 160 acre/feet per day. (The average flow rate is skewed by occasional, very high daily flows of 4000 acre/feet during large storm events.) The larger volumes diverted to rehydrate the tidal creeks and surrounding coastal wetlands would, at times, withdraw a relatively large portion of the water from the C-1 Canal. For these reasons, the District justifiably elected to seek a flowway that would rehydrate only the tidal creeks, including the vestigial tidal creeks, but not the surrounding coastal wetlands. Petitioners and Lennar Homes have raised numerous other issues about the flowway that the District seeks to obtain. The District requires a 200-acre flowway to rehydrate adequately the vestigial tidal creeks, the presently remaining tidal creeks, the small embayment, and then the subject area of Biscayne Bay, but the mitigation area potentially available on the Project site is limited to about 135 acres, and some uncertainty exists as to whether the District can obtain control of the remaining land necessary to assemble a 200-acre flowway. Even the 200-acre flowway is probably insufficient to accommodate significant water treatment, so water quality issues remain outstanding, notwithstanding the better water quality upstream of the landfill and water treatment plant. Other issues arise from the requirement that the District obtain an ERP from the Florida Department of Environmental Protection, as well as one or more federal agencies, before it could construct the flowway. To the extent that this requirement delays and possibly precludes the construction of the flowway, this requirement militates against the inclusion of the Flowage Easement and new special conditions in the ERP. To the extent that this requirement insures that the flowway will not cause flooding or adverse water quality in the tidal creeks, embayment, and ultimately Biscayne Bay, this requirement militates in favor of the inclusion of the Flowage Easement and new special conditions in the ERP; the absence of detailed specifications for the design and construction of the flowway precludes any assurance that the flowway would not flood or otherwise damage the upland portion of the Project site, so subsequent permit-review is essential to the present inclusion of the Flowage Easement and new special conditions in the ERP. It is impossible to credit the District's evidence that various transition-zone wetland species would survive inundation under unknown flow rates, of variable depths, and of unknown and possibly indefinite duration. Lennar Homes legitimately is concerned that its substantial investment in mitigation, pursuant to the original mitigation plan, would be wasted if the District constructs the flowway. As presently drafted, the Flowage Easement and new special conditions contemplate that Lennar Homes would construct the original mitigation, at a substantial cost, and the District would later construct and inundate the flowway through largely the same area. Marketing of parcels in close proximity to the flowway might be complicated by the uncertainty concerning what will occupy the area beyond a resident's backyard--a benign passive mitigation area or a flowway that may range from a intermittently wet slough or glade to a placid lake to a raging swollen river--and by the probability that the District would not construct the flowway until 2009. The District justifies the Flowage Easement and new special conditions on two grounds. First, the District contends that the ERP without the Flowage Easement and new special conditions is harmful to the District's water resources. Second, the District contends that the ERP without the Flowage Easement and new special conditions is inconsistent with the overall objectives of the District. The first argument misses the mark. A project that is otherwise permittable, except for the fact that it interferes with the establishment of a restoration project, does not harm the water resources of the District; such a Project interferes with the improvement of the water resources of the District. In this case, the parties have stipulated that the Project will not cause adverse impacts due to the original mitigation plan. If adverse impacts means anything, it means harm to the water resources of the District. The second argument requires the identification of the District's objectives. The Florida Legislature has declared at Section 373.1502(2)(a), Florida Statutes, that CERP implementation is "in the public interest and is necessary for restoring, preserving and protecting the South Florida ecosystem . . .." In May 2000, the Florida Legislature enacted the Everglades Restoration Investment Act, which commits Florida to contribute over $2 billion for the implementation of CERP-- Florida's share for the first ten years of implementation. The Florida Legislature has made the implementation of CERP an overall objective of the District. Several factors are important in determining whether the ERP without the Flowage Easement and new special conditions would be inconsistent with the overall objective of the District to implement CERP. These factors require consideration of the purpose of the proposed restoration project; the extent of completion of the project's design, permitting, and construction; if the project has not yet been designed or permitted, the likelihood of construction; when the project would be constructed; the impact of the ERP without the Flowage Easement and new special conditions upon the proposed restoration project; and the existence of feasible alternatives to accomplish the same objectives as those achieved by the proposed restoration project. These factors generally favor the issuance of the ERP, but only with the Flowage Easement and new special conditions. The flowway project would rehydrate a portion of the estuarine waters of southern Biscayne Bay that are sufficiently healthy to respond vigorously to the new freshwater infusions, so the project is important. The C-1 Canal appears to be the only readily available source of sufficient volumes of freshwater to achieve the rehydration of the tidal creeks, and the proposed path through the Lennar Homes mitigation area appears to be the only readily available means by which to divert the freshwater to the targeted tidal creeks. If the flowway project is limited to the tidal creeks and does not extend to the surrounding coastal wetlands, the likely environmental impacts appear to be positive on the receiving areas and the downstream portion of the C-1 Canal. For these reasons, even though the project is at an early conceptual stage and construction would not start for six years, it seems likely to be constructed. The apparent difficulty in securing the necessary additional 65 acres may yet be overcome through property acquisition, and, if not, the District may be able to increase the capacity of the flowway without jeopardizing the adjacent uplands. For the reasons stated in the Conclusions of Law below, other factors in determining whether the ERP without the Flowage Easement and new special conditions would be inconsistent with the overall objective of the District to implement CERP require consideration of the impact upon Lennar Homes in accommodating the Flowage Easement and new special conditions. With two exceptions, the Flowage Easement and new special conditions do not impose an inordinate burden upon Lennar Homes. The flowway would occupy the portion of the Project site that would have been subject to the conservation easement that was part of the original mitigation plan. Lennar Homes' responsibility for maintenance is considerably lessened if the District constructs the flowway, whose special maintenance needs can only be met by the District or its contractors. Although Lennar Homes may experience some sales resistance due to the uncertainty of the use of the mitigation area, the assurances gained from the subsequent permitting process, during which the District will seek an ERP from the Florida Department of Environmental Protection for the construction of the flowway, should allay reasonable concerns about flooding and other damage to the adjacent uplands. In three respects, though, the District has abused its discretion in preparing the Flowage Easement and new special conditions. First, the District abused its discretion in requiring Lennar Homes to perform mitigation work in the mitigation area, pursuant to the original mitigation plan, to the extent that the products of such work will likely be destroyed or substantially harmed by the construction and operation of the flowway. The value of mitigation rests largely in the functions that it can support through longterm viability. The construction and operation of the surface water management system, the posting of a sufficient bond to guarantee future performance under either mitigation scenario, the execution and delivery into escrow of deeds and other legal instruments sufficient to meet the requirements of the Flowage Easement and new special conditions (subject to the two matters discussed in this and the two following paragraphs), and the construction of the portion of the original mitigation that would not be impacted by the flowway sufficiently respond to the need for mitigation, until the District finally determines the need for it to exercise its rights under the Flowage Easement. Second, the District abused its discretion by omitting any timeframe for the District to exercise its rights under the Flowage Easement and new special conditions. The timeframe proposed by Lennar Homes for the District to make this final determination of whether to proceed with the flowway is unreasonable and ignores the substantial period of time required to design, fund, and permit the flowway. But a timeframe may be especially important if Lennar Homes encounters more marketing resistance than might be reasonably anticipated. Therefore, the new conditions should provide that if construction of the flowway is not substantially completed by 2011, then the Flowage Easement shall be released and returned to Lennar Homes, upon its commencement, without delay, of the construction of any of the original mitigation that it did not already complete. Third, the District also abused its discretion in the Flowage Easement and new special conditions in the allocation of liability for the flowway, including apparently its construction, maintenance, and operation. The District would impose this liability upon Lennar Homes, which would have to indemnify the District for construction damage or any malfunctions in the operation of the flowway, such as damage to adjacent uplands by flooding, erosion, or contamination. The District has imposed this restoration project on Lennar Homes and has done so, not to avoid harm to the District's water resources, but to achieve the overall objective of the District to implement CERP. The District and its contractors, not Lennar Homes, will construct, maintain, and operate the flowway. The District, not Lennar Homes, has the expertise in the design, construction, and operation of water-control facilities of this type. This record does not disclose a single legitimate reason to impose upon Lennar Homes the liability for any aspect of the flowway that does not result from the acts or omissions of Lennar Homes or its assignees as owners of the adjacent uplands. Although, as stated in its proposed recommended order, the District does not object to the standing of Petitioners, Respondents did not stipulate to the standing of any Petitioners. Petitioners The Everglades Trust, Inc., and The Everglades Foundation, Inc., offered no witnesses concerning their standing, and no exhibits address the standing of these parties. The record thus fails to demonstrate that Petitioners The Everglades Trust, Inc., and The Everglades Foundation, Inc., are substantially affected by the proposed agency action. Petitioner National Parks Conservation Association, Inc., (National Parks) is a not-for-profit corporation registered in Florida as a foreign corporation. The corporate purpose of National Parks is to protect and enhance America's national parks, including Biscayne National Park, for present and future generations. National Parks seeks the protection and enhancement of the Biscayne National Park through the successful implementation of CERP. National Parks has 350,000 members, including 19,900 in Florida. Members of National Parks use Biscayne National Park for recreational boating, fishing, snorkeling, fish watching, scuba diving, and camping (on the barrier islands). Members of National Parks are actively monitoring the implementation of CERP. Petitioner Florida Audubon Society, Inc. (Florida Audubon), is a Florida not-for-profit corporation that was originally incorporated in Florida in 1900. The corporate purpose of Florida Audubon is to protect, conserve, and restore Florida's heritage through the preservation of the state's natural resources. Florida Audubon has adopted as its highest priority the design and implementation of CERP. Florida Audubon has 32,000 members in Florida, including over 2100 members in Dade County. Numerous of these members engage in bird watching, recreation, and scientific research in Biscayne National Park. Florida Audubon organizes membership trips to Biscayne Bay, conducts its annual Bird-athon and Christmas Bird Count in the vicinity of Biscayne Bay, and conducts various environment educational programs in and concerning Biscayne Bay. The issuance of the ERP without the Flowage Easement and new special conditions would substantially impact the ability of the District to restore this part of Biscayne Bay. Without such restoration, the functions of Biscayne Bay will slowly decline until eventually the overall health of the entire South Florida ecosystem will be substantially deteriorated. Thus, National Parks and Florida Audubon would be substantially affected by the issuance of the ERP without the Flowage Easement and new special conditions.
Recommendation It is RECOMMENDED that the District issue the environmental resource permit with the Flowage Easement and new special conditions, as modified in accordance with the matters presented in paragraphs 39-41. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2003. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Richard Grosso Louise Caro, Certified Legal Intern Environmental & Land Use Law Center, Inc. Shepard Broad Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 Marcy I. LaHart Marcy I. LaHart, P.A. 711 Talladaga Street West Palm Beach, Florida 33405 Erin L. Deady Environmental Counsel 444 Brickell Avenue, Suite 850 Miami, Florida 33131 E. Thom Rumberger Rumberger, Kirk & Caldwell, P.A. 403 East Park Avenue Tallahassee, Florida 32301 Luna Ergas Phillips Douglas H. MacLaughlin Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Frank E. Matthews Gary V. Perko Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
Findings Of Fact Application No. 76-00450 is for a consumptive use permit from 10 wells located in Hillsborough County, to be used for public water supply for the City of Temple Terrace. The permit seeks to withdraw 2.028 million gallons a day average annual withdrawal and 4.564 million gallons per day maximum daily withdrawal. The sought for withdrawal may affect other wells by drawdown of an average of 1" in a surrounding well. Such a drawdown will not seriously and adversely affect the surrounding wells. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flowmeters of a type acceptable to the district on all withdrawal points covered by the permit. That the applicant shall record the pumpage on a weekly basis and shall submit a record of that pumpage to the district quarterly beginning January 15, 1977. All individual connections supplied by withdrawals permitted will be metered. Records of meter readings will be made available to the district upon request. That the permit shall expire on December 31, 1980.
The Issue Whether a consumptive-use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant, by Application No. 7500025, applied for a consumptive-use permit for an average daily withdrawal of 138,000 gallons of water from one (1) well penetrating the Florida Acquifer. This is an existing use. Exhibits were entered without objection, as follows: Original application with attachments, marked "Exhibit 1". Proof of Publication, marked "Exhibit 2". There were no written objections. The witness for permittee, George Szell, Hydrologist, was questioned at length by the staff attorney on issues to be resolved under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated thereunder by the Southwest Florida Water Management District, and particularly Rule 16J-2.11, Conditions for a Consumptive-Use Permit. A typed transcript of the testimony has been examined and made a part of the record for this hearing. The witness for the Board, Mr. Szell, objected to the granting of the permit on the grounds that the water crop was exceeded by 3.24 percent. Upon request of the Hearing Officer, the parties agreed to consider their differences and file a joint stipulation enumerating conditions upon which the parties agree. A joint stipulation signed by both parties was filed with the Division is marked "Supplement to the Record" and made a part of this recommended order. Mr. Szell recommended that the permit be granted consistent with the conditions in six (6) above.
The Issue The ultimate legal and factual issue in this matter is whether Engle Homes, Inc., and Lake Bernadette, Inc. (Permittees), have provided the Southwest Florida Water Management District (District) with reasonable assurances that the activities they propose to conduct pursuant to Management and Storage of Surface Water (MSSW) General Construction Permit No. 49005837.017 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, 40D-4.302, and 40D- 40.302, Florida Administrative Code. In particular, the issues of fact to be litigated are whether the Project will cause adverse water quality impacts to receiving waters and adjacent lands; whether the Project will cause adverse flooding of on-site or off-site property; whether the Project will cause impacts to existing surface water storage and conveyance capabilities; and whether the Project will adversely affect the property of others.
Findings Of Fact The Parties Engle Homes, Inc., and Lake Bernadette, Inc., are corporations licensed to operate in the State of Florida. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. Driscoll resides at 35716 Welby Court, Zephyrhills, Florida 33541, Lot 14, within the Timber Creek 2 Subdivision (Subdivision). Driscoll requested this hearing to show the District that there is a drainage problem on Lots 13 and 14, and the adjacent Geiger property to the south, which should be fixed at this time and as part of the Project. Driscoll wants "Engle Homes to propose a new solution to fix the entire Welby Court Geiger property problem," i.e., from Lots 4 through 14, and not a piecemeal solution as proposed in the Permit modification. The Subdivision Engle Homes, Inc., and Lake Bernadette, Inc., developed the Timber Creek 2 Subdivision. Lots 15 through 25 run east to west and are north of Welby Court. Lots 15 and 16 are located north of the cul-de-sac, on the eastern portion of Welby Court. Lots 3 through 14 run west to east, south of Welby Court. Lots 13 and 14 are south of the cul-de-sac on the eastern portion of Welby Court and are across the street and the cul-de-sac from Lots 16 and 15, respectively. Residences exist on Lots 5, and 7 through 14. Driscoll owns Lot 14, a corner lot, which is the southeastern most lot of the Subdivision. Don Geiger (Geiger) owns the land (approximately five acres) south of the property lines of Subdivision Lots 5 through Geiger's northern driveway, essentially a dirt road, runs parallel to Lots 5 through 14. Subsequent to the original construction activity involving the Subdivision, the developer realized that there was an "existing depression" (referenced on Engle Exhibit number 1), south of Lots 7 and 8, and on Geiger's property. Geiger complained to the District about standing water in this area. This depression area is approximately 90 feet long and 30 feet wide which needed to be "drained off" according to Geiger. The depressed area on Geiger's property was most likely caused when Lots 7 through 14 were graded and sodded, which raised the "lots up a few inches" above Geiger's driveway/property. Water is trapped during a storm event between the back yards and the depressed area. As a result, the southern end of the back yards, particularly Lots 7 and 8, and the driveway remain constantly wet. The Project On January 16, 2001, Engle Homes, Inc., and Lake Bernadette, Inc., filed MSSW Permit Application No. 49005837.017 with the District, to address the problems with the rear lot grading and the adjacent property. The actual Project area for the permit modification1 includes the southern portions of Lots 4 through 9 and south of the property lot line including Geiger's property. See Finding of Fact 5. The modified permit does not address the drainage area including the back yards of Lot 13 and Driscoll's Lot 14, and the other portion of Geiger's property/driveway to the south. On April 5, 2001, the District issued MSSW Permit No. 49005837.017 to Engle Homes, Inc., and Lake Bernadette, Inc., under the provisions of Chapter 373, Florida Statutes, and Chapter 40D-40, Florida Administrative Code, for the modification of a surface water management system to serve the Project area. The proposed Project will involve the construction of a concrete inlet box with a safety grate, storm sewers, and grass swales. Specifically, the project is intended to solve the drainage problems associated with the "existing depression" south of the boundary line for Lots 7 and 8 on Geiger's property (although Lots 4 through 9 ("area 1") are included within the Project area), and the back yards of Lots 7 and 8. A catch basin is proposed to be located south and on the lot line between Lots 8 and 9, which is expected to drain off the water in the depression area to the modified surface water management system. The inlet box will be placed in the corner between Lots 8 and 9. The collected water in the inlet box will be routed underground through a series of 18-inch storm sewer pipe straight north through a drainage easement between Lots 8 and 9 to Welby Court. The underground pipe ties into an existing pipe in front of Lot 9 on the street, then runs east along the Welby Court right-of-way and then north between Lots 19 and 20, and eventually north into a large permitted retention pond, located to the north of the Subdivision which will handle the stormwater. Driscoll's Alleged Drainage Problem There is another distinct drainage area, i.e., "area 2," which includes Geiger's property and the southern portions of Lots 13 and 14, where water drains from south to north into a roadside ditch to Geiger Cemetery Road ("area 3"), which runs south to north and east of Lots 14 and 15. During a September 2001 tropical storm, there was standing water on Geiger's driveway, directly south of Lots 13 and 14, which was present for more than 3 days. This was referred to by Mr. Barrett as a "small drainage problem that could easily be corrected." On the other hand, Geiger says that there is standing water on his driveway, south of Lots 13 and 14, "all the time." This caused Geiger to move his driveway "50 or 60 feet" south. According to Geiger, the berm, which runs across Lots 10 through 14, should be lowered and the backyards reconfigured. But this would be quite disturbing to the neighbors. Therefore, Geiger recommends the placement of drains south of Lots 13 and 14, which would direct the water out to the ditch at Geiger Cemetery Road and away from Driscoll's Lot 14. The modified Permit is not intended to solve this problem, although Driscoll wants this problem fixed. It is not necessary to resolve Driscoll's issue regarding whether there is a drainage problem in and around Driscoll's lot. The two drainage areas 1 and 2 discussed herein are not connected, although they are close in proximity. The solution to the first problem has no impact on the second, and there is no cited statutory or rule requirement that both issues must be addressed in this Permit application. This is Driscoll's quandary. Compliance with Rules 40D-4.301 and 40D-4.302, Florida Administrative Code The Project will not impact wetlands or surface waters. The Project will not adversely impact the value of functions provided to fish and wildlife, and listed species, including aquatic and wetland-dependent species, by wetlands or other surface waters and other water-related resources. The Project will not adversely impact the quality of receiving waters such that the water quality standards will be violated. The Project will not cause adverse secondary impacts to the water resources. The Project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The Project will not cause adverse impacts to a work of the District. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The Project will be conducted by an entity with financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. The Project will comply with any applicable special basin or geographic area criteria established pursuant to Chapter 40D, Florida Administrative Code, by the District. The Project will not adversely affect the public health, safety, or welfare. The Project will not adversely impact the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The Project will not adversely affect navigation. The Project will not cause harmful erosion or shoaling. The Project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the Project. The Project will not adversely affect significant historical and archeological resources. The Project will not cause unacceptable cumulative impacts upon wetlands and other surface waters. The Project area is less than 100 acres. The Project does not require dredging or filling of wetlands, or construction of boat slips. The Project is not contrary to the public interest. The Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and will not adversely affect or impact the property of others, including Driscoll's property, Lot 14. "Area 1," between Lots 4 and 9, is a separate drainage area, and the water from this area does not drain to Lot 14. Driscoll's property is not within the Project area, and the Project was not intended to resolve his alleged drainage problem. The Project will not cause adverse flooding to on-site or off-site property. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Rather, the project is expected to improve the conveyance of water and drainage for "area 1" and the Project area.
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 issuing Management and Storage of Surface Water General Construction Permit No. 49005837.017. DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2001.
The Issue The central issue in this case is whether the Department of Environmental Regulation (Department) should grant a dredge and fill permit which has been requested by the Respondent, William R. Cullen (Applicant). That proposed permit has been opposed by the Petitioners (who will be referred to collectively as Petitioners for convenience sake).
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Department is the state agency authorized to issue permits pursuant to Chapter 403, Florida Statutes. The Respondent, William R. Cullen, filed an application for a dredge and fill permit to construct a slip marina on June 4, 1985. The original request was subsequently amended to seek approval for a forty-two slip commercial marina. The project site for the Applicant's marina is located at Key Largo, Monroe County, Florida. The site is within Buttonwood Sound, Florida Bay. The property is owned by Mr. Cullen and his family. All of the proposed improvements will be constructed on submerged lands or uplands owned or controlled by the Cullen family. The project site is located within a commercial area of Key Largo and contains frontage on both the water, Buttonwood Sound, and the highway, U.S. Highway 1. The project site has a basin which was created by the excavation of materials used for road construction from the shoreline and the installation of an L-shaped rock jetty which runs roughly perpendicular and then parallel to the shoreline. This jetty was installed during the late 1960s. The water depths within the basin range from 3 feet to approximately 14 feet. The water within the basin is subject to the same tidal considerations as the waters within Buttonwood Sound. There is no interruption of the flow of water in and out of the basin from those waters of the Sound. The water within this basin is within an Outstanding Florida Water as defined in Rule 17-3.041, Florida Administrative Code. The Applicant's plan calls for the excavation of appproximately 30,170 square feet of upland area and the dredging of the existing basin for approximately 18,460 dredged square feet. During the construction phases, the Applicant proposes to install turbidity curtains to limit the adverse effects expected during that time. The improvements are intended to be a permanent alteration to the basin design and will permanently modify the marine life habitat within that basin. The Applicant proposes to remove portions of the existing jetty to allow additional water to flow through the basin unimpeded by the jetty walls. The removal of the jetty walls will expedite the dilution and flushing of potential pollutants from the basin on a tidal frequency. That flushing is purported to assure that the water quality within the basin will not be diminished. However, such pollutants will be flushed into Buttonwood Sound. Stormwater accumulating on the upland project is to flow toward a lower upland area and should not to be dumped into the basin. The proposed marina is to have fueling facilities and the Applicant has agreed to design that system to limit inadvertent spillage. Further, as a condition of the permit, the Applicant has agreed to abide by the Department of Natural Resources' spill contingency plan requirements. The proposed marina is designed to provide portable sewage pumpout facilities for each slip. A permanent pumpout facilities will also be available. The Applicant seeks to attract boats in the range of 30 to 50 feet in length at this facility. While there are a number of other marinas in other areas of Key Largo which might accomodate that size boat, the marinas in the immediate vicinity of this project site are designed for smaller craft. The area within the basin consists of unvegetated bottom, submerged rip-rap, sea grasses, and hardbottom/algae communities--the predominant classifications being the latter two. The deeper hardbottom areas are to be filled and portions of the sea grasses will be dredged in order to configure the proposed docks. Additionally, other sea grass areas will be shaded, and thereby disturbed, by the construction of the docks. There are no historical or archaeological features relevant to the proposed site. The area has not been designated as a critical manatee area, however, manatees do frequent the project vicinity and have been observed feeding immediately adjacent to the basin. The permit proposed for this project requires a water quality monitoring plan. In addition to sampling for coliform, diesel by-products, oils, greases, detergents, oxygen, copper, lead and zinc, the plan requires sampling for aluminum, cadmium, and chromium. The monitoring stations are to be located both within the basin (2 stations) and outside the basin (2 stations). Liveaboards or others continuously docked at the marina will create additional shading which will disrupt and adversely affect the sea grass system. In order to provide access to the marina, the Applicant intends to dredge a channel in an area containing sea grass which is undisputedly within the Outstanding Florida Waters. The Department deemed the subject application was complete on February 23, 1988. The Department did not apply the Keys Rule found in Rule 17-312.400, Florida Administrative Code, to this project. The Department also did not apply the Mitigation Rule found in Rule 17-312.300, Florida Administrative Code, to this project. Michael Dentzau has personally reviewed and processed 250-300 dredge and fill permits during his tenure with the Department. Of those projects he has reviewed, he has not recommended that dense sea grass beds of the type located within this project site be dredged in order to construct a commercial marina. Phillip Edwards was responsible for executing the Intent to Issue in this case. In determining that this project had provided reasonable assurances that water quality standards will not be violated, Mr. Edwards weighed the public interests criteria set forth in Section 403.918, Florida Statutes. Because he received letters purportedly from elected officials, Mr. Edwards presumed that the project was in the public interest. That assumption of fact has not been established by this record. According to Mr. Edwards, the adverse effects expected by this project could be adequately addressed by the permit conditions when weighed against the public interest in favor of the project. Since Mr. Edwards' assumptions as to the public interest in this project have not been established, his conclusion regarding the weight that interest should receive can be given little consideration. The project as proposed by the Applicant will not adversely affect navigation or cause harmful erosion or shoaling. The project as proposed by the Applicant will adversely affect fishing or marine productivity within the basin since it will permanently alter the basin biologically by destroying sea grass. The increased boat traffic within the Sound will also detract from the present recreational uses enjoyed by area residents. According to Mr. Edwards, it is very unusual for the Department to issue a permit when sea grasses will be adversely affected. In the 17 years in which he has reviewed permits, only two occasions merited approval when the destruction of sea grasses to the extent in this case would result. Neither of those cases were factually similar to the case at issue. In those cases, however, elected officials advised Mr. Edwards, as he presumed they had here, that there was a public need for the permit. Increased boat traffic will result in increased manatee mortality due to collisions. In order to assure water quality will not be degraded within a marina, the project should have a short flushing time comparable to healthy natural embayments. In this case, the flushing proposed by the Applicant is dependent, in part, on winds which may be inconsistent or relatively minimal during the summer months.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying the permit requested by the Applicant. DONE and ENTERED this 22nd day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990. APPENDIX TO CASE NOS. 89-3779 et seq. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONERS: The first three sentences of paragraph 1 are accepted; the remainder is rejected as argument or irrelevant. Paragraph 2 is accepted. Paragraph 3 is accepted. With regard to paragraph 4, it is accepted that the Department deemed the application complete on February 23, 1988; otherwise, the paragraph is rejected as argument. With regard to paragraph 5, it is accepted that the habitat within the basin is the same as the habitat throughout Florida Bay and that the basin is not "enclosed" hydrologically; otherwise, the paragraph is rejected as argument or comment. Paragraphs 6, 7, 8, 9, 10, 11, and 12 are rejected as argument, conclusions of law, or comment. The paragraphs do not recite facts pertinent to this case. Paragraphs 13, 14, and the first two sentences of paragraph 15 are accepted. The remainder of paragraph IS is rejected as argument. The first two sentences of paragraph 16 are accepted. The remainder of the paragraph is rejected as comment or argument. Paragraph 17 is accepted. Paragraph 18 is rejected as argument. To the extent that paragraph 19 accurately describes Van de Kreeke's assessment of the report it is accepted; otherwise rejected as irrelevant, comment, argument, recitation of testimony or unsupported by the record. The report upon which comment is directed was not offered in this cause to prove its truth/accuracy. Paragraphs 20 through 22 are rejected as comment, argument, recitation of testimony or unsupported by the record-- see comment to paragraph 19 above. Paragraphs 23 through 26 are accepted. Paragraphs 27 and 28 are rejected as argument, comment, or contrary to the weight of the evidence. Paragraphs 29 and 30 are accepted. Paragraph 31 is rejected as argument or contrary to the weight of the evidence. Paragraphs 32 and 33 are accepted. Paragraph 34 is rejected as hearsay, irrelevant, or argument. Paragraph 35 is rejected as comment or argument. Paragraph 36 is accepted. Paragraphs 37 through 40 are rejected as argument or contrary to the weight of the evidence. Paragraphs 41 through 43 are accepted. Paragraph 44 is rejected as contrary to the record. Paragraph 45 is rejected as argument. Paragraph 46 is rejected as argument or contrary to the weight of the evidence. Paragraph 47 is accepted but is comment. Paragraphs 48 and 49 are accepted. Paragraph 50 is rejected as repetitive. Paragraph 51 is rejected as argument or conclusions of law. The first three sentences of paragraph 52 are accepted. The remainder of the paragraph is rejected as argument. The first sentence and that portion of the second sentence of paragraph 53 that ends with the word "authenticity" is accepted. The remainder of the paragraph is rejected as argument or conclusions of law. Paragraphs 54 and 55 are accepted. Paragraph 56 is rejected as irrelevant or hearsay. Paragraph 57 is rejected as hearsay. Paragraph 58 is rejected as argument, comment, or irrelevant. Paragraphs 59 through 66 are accepted. Paragraph 67 is rejected as contrary to the weight of the evidence. Paragraph 68 is rejected as contrary to the weight of the evidence. Paragraphs 69 and 70 are accepted. Paragraph 71 is rejected as repetitive. Paragraph 72 is rejected as argument. The first sentence of paragraph 73 is accepted; the remainder is rejected as contrary to the weight of the evidence. Paragraph 74 is accepted. Paragraphs 75 through 77 are rejected as contrary to the weight of the evidence. Paragraphs 78 and 79 are accepted. Paragraph 80 is rejected as repetitive. With the inclusion of the words "and hardbottom and algae" paragraph 81 is accepted. Paragraph 82 is accepted. Paragraph 83 is accepted. Paragraph 84 is rejected as contrary to the weight of the evidence. 5l. Paragraphs 85 through 89 are accepted. With the substitution of the word "not" for the word "ever" in the last sentence of paragraph 90, it is accepted. Paragraphs 91 through 94 are accepted. Paragraph 95 is rejected as not supported by the record or contrary to the weight of the evidence. Paragraphs 96 through 100 are accepted. Paragraph 101 is rejected as repetitive. Paragraphs 102 through 106 are rejected as argument, comment, or irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraph 1 is accepted. Paragraph 2 is rejected as contrary to the weight of the credible evidence. The waters within the basin are of the same origin as they were prior to the creation of the jetty; no artificial body of water was created. With regard to paragraph 3 it is accepted that the jetty was constructed in the late 1960s. Paragraph 4 is accepted. With regard to paragraph 5 it is accepted that that is the applicants proposal no conclusion as to the likelihood of that is reached. Paragraph 5 is accepted. Paragraph 6 is accepted. Inevitably, however, spills will occur and must be considered as an adverse affect of the project. Paragraph 7 is accepted. Paragraph 8 is rejected as unsupported by competent evidence or contrary to the weight of the evidence presented. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is accepted. Paragraph 11 is accepted but is inadequate to offset the adverse affects to manatees. Paragraph 12 is accepted but is inadequate to limit the adverse affects to sea grass. Paragraph 13 is rejected as contrary to the weight of the evidence. Paragraph 14 is rejected as contrary to the weight of the evidence. Paragraph 15 is accepted. Paragraph 16 is accepted. Paragraphs 17 and 18 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT: Paragraphs 1 through the first sentence of paragraph 6 are accepted. The second sentence of paragraph 6 is rejected as contrary to the weight of the evidence. Paragraphs 7 through Il are accepted. Paragraph 12 is rejected as irrelevant. Paragraphs 13 through the first sentence of paragraph 17 are accepted. The remainder of paragraph 17 is rejected as contrary to the weight of the evidence. Paragraph 18 is accepted. Paragraph 19 is rejected as unsupported by the record or contrary to the weight of the evidence. Paragraph 20 is accepted. Paragraphs 21 through 26 are rejected as contrary to the weight of the evidence. Paragraph 27 is rejected as contrary to the weight of the evidence or unsupported by competent evidence. The first sentence of paragraph 28 is accepted, the remainder rejected as speculative, comment, or unsupported by the record. The first sentence of paragraph 29 is accepted, the remainder rejected as contrary to the weight of the evidence. Paragraph 30 is accepted. Paragraph 31 is rejected as contrary to the weight of the evidence. Paragraph 32 is rejected as contrary to the weight of the evidence. Paragraph 33 is accepted but is irrelevant. Paragraph 34 is rejected as contrary to the weight of the evidence. Paragraph 35 is accepted; however, sea grasses not disturbed by dredging will still suffer adverse affects from shading and silting. Paragraph 36 is accepted but see comment to paragraph 35 above. Paragraph 37 is accepted. Paragraph 38 is accepted. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is accepted. Paragraph 41 is accepted. Paragraph 42 is accepted. Paragraph 43 is rejected as irrelevant. Paragraph 44 is rejected as contrary to the weight of the evidence. Paragraph 45 is accepted but it should be noted that is not the extent of the proposal. Paragraph 46 is rejected as contrary to the weight of the evidence. Paragraph 47 is accepted. Paragraph 48 is rejected as contrary to the weight of the evidence. Paragraph 49 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Pamela Presnell Garvin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles Lee Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Robert Routa P.O. Box 6506 Tallahassee, Florida 32314-6506 Linda McMullen McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue The issue at this stage of the proceeding is whether jurisdiction should be relinquished to the Southwest Florida Water Management District based upon the withdrawal of Petitions filed herein on behalf of the Petitioners, and the filing of a stipulation and settlement agreement executed on behalf of the Petitioners and Respondents.
Findings Of Fact By Notices of Referral dated June 7, 1989, and filed June 1 6, 1989, the Southwest Florida Water Management District (District) transmitted to the Division of Administrative Hearings (DOAH) certain Petitions filed on behalf of Petitioners which opposed the issuance of a consumptive use permit numbered 208426 by the District to the West Coast Regional Water Supply Authority (Authority). These Petitions were assigned Case Numbers 89-3187 through 89-3189 by DOAH, and were consolidated for all further proceedings. On August 18, 1989, Chilpub, Inc. (Chilpub), filed a Petition to Intervene, which was granted by Order entered on September 6, 1989. On October 20, 1989, Wiregrass Ranch, Inc. (Wiregrass), filed a Petition to Intervene, which was granted by Order entered on October 31, 1989. The Petitions filed on behalf of Chilpub and Wiregrass were filed at DOAH, and specifically sought leave to intervene in Cases Numbered 89-3187 through 89-3189 in order to oppose the issuance of permit number 208426 to the Authority. Following the granting of these Petitions, Chilpub and Wiregrass have participated in this proceeding as Intervenors On or about November 8, 1989, the Authority provided Wiregrass with a copy of the Notice of Proposed Agency Action which is the subject of this proceeding, pursuant to Rule 40D-2.101, Florida Administrative Code. However, subsequent to receiving this Notice of Proposed Agency Action, Wiregrass failed to file with the District any Petition in its own right seeking to initiate a proceeding under Section 120.57(1), Florida Statutes, to challenge the issuance of permit number 208426 to the Authority. Notices of Withdrawal of Petitions for Formal Hearing were filed on behalf of the Petitioners in Cases Numbered 89-3187 through 89-3189 on April 4, 1990, and on that same date, the Petitioners and Respondents filed their Joint Motion to Relinquish Jurisdiction. A copy of the Stipulation and Settlement Agreement executed by the Petitioners and Respondents was filed on April 9, 1990.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order dismissing the Petitions filed herein, and issuing permit number 208426 to the Authority. DONE AND ENTERED this 19 day of April, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 120 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 19 day of April, 1990. COPIES FURNISHED: David L. Smith, Esquire Jeffrey A. Aman, Esquire 712 South Oregon Avenue Tampa, FL 33606 Edward P. de la Parte, Jr., Esquire Barbara B. Levin, Esquire 705 East Kennedy Blvd. Tampa, FL 33602 Bram Canter, Esquire 306 North Monroe Street Tallahassee, FL 32302 Enola T. Brown, Esquire P. O. Box 3350 Tampa, FL 33601-3350 James S. Moody, Jr., Esquire P. O. Box TT Plant City, FL 33564-9040 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, FL 34609-6899
