Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondents, David and Florence Clark, are the owners of real property known as Lot 90, Holly Lane, Section F, Sugarloaf Shores, Florida (Lot 90). Sugarloaf Shores is a legally platted subdivision. The Clarks were, at the time of the formal hearing, constructing a single family dwelling on that property. The building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. There is an extensive man-made canal system throughout Sugarloaf Shores subdivision that is several miles in length, is between six and ten feet in depth, and is approximately sixty feet in width. The subject permit is for construction where Lot 90 fronts this canal system and involves construction beyond the mean high water mark onto submerged lands. On January 17, 1992, Monroe County issued the subject building permit, Permit Number 9210003952, to David and Florence Clark as owners and Edward Warren Werling as contractor. The subject permit authorizes the construction of a vertical bulkhead designed to limit erosion together with a docking facility with davits and access to the canal system. Most of the neighboring lots in the vicinity of the project have vertical bulkheads with docking facilities. The bulkhead is desirable to prevent erosion of the canal bank at Lot 90 and pollution of the canal waters. The requested development would give the Clarks safe access to the canal and provide private boating facilities. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles of Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), requires Monroe County's land development regulations to comply with certain Principles For Guiding Development, including the following: (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat. * * * (e) To limit the adverse impacts of development on the quality of water throughout the Florida Keys. ... Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Benthic communities exist in Sugarloaf Sound, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. The canal system for Sugarloaf Shores subdivision does not have access to deep water without crossing shallow sea grass beds with depths of less than four feet at mean low water. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging. Although there is evidence of prop dredging in parts of Sugarloaf Sound in these shallow areas, it was not shown that the damage was done by boats traveling from the Sugarloaf Shores canal system and deep water. Whether a boat that may be docked at some future time if the permit is granted will cause damage to some portion of Sugarloaf Sound is speculation. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The dock that is the subject of this proceeding would, if permitted, terminate in water of at least six feet in depth at mean low tide. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County's interpretation of its rules is that a vertical bulkhead and dock built on an individual family home-site, where a dwelling was already built or under construction, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject application by the Clarks to meet all of its permitting criteria. The subject project has received an exemption from permitting from the Florida Department of Environmental Regulation and from the Florida Department of Natural Resources. The Army Corps of Engineers has agreed to issue a permit for the project with no special conditions. There is no definition of "docking facility" contained within the Monroe County Land Development Regulations or the Monroe County Comprehensive Plan. It was not established that a bulkhead is a docking facility or that the construction of a bulkhead on Lot 90 should be prohibited under any of the theories advanced by Petitioner. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Clarks's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.
Conclusions The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. The subject appeal was timely taken by Petitioner pursuant to Section 380.07(2), Florida Statutes, from a development order of Monroe County granting the Clark's request for a building permit to construct a vertical bulkhead and dock on their residential lot on Sugarloaf Shores subdivision. Pursuant to the provisions of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983). The ultimate burden of persuasion rested on the Clarks to establish their entitlement to the permit authorizing their proposed development. Young v. Department of Community Affairs, 567 So.2d 2 (Fla. 1st DCA 1990), and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Dispositive of whether the subject construction is consistent with the Monroe County land development regulations is the interpretation to be accorded Section 9.5-345(m)(2), Monroe County Code. Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums, and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984); and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). The same deference has been accorded to rules which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983), and State Department of Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Pan American World Airways, Inc. v. Florida Public Service Commission, supra, and Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). Here, no less deference should be accorded Monroe County's interpretation of its land development regulations where, as here, such interpretation is reasonable, evidences due consideration for private rights of ownership, and is not contrary to its comprehensive plan. See e.g. Thomson v. Village of Tequesta Board of Adjustment, 546 So.2d 457 (Fla. 4th DCA 1989). It is concluded that Monroe County's interpretation of Section 9.5- 345(m)(2), Monroe County Code, is a permissible interpretation and that the subject development is consistent with the Monroe County comprehensive plan and land development regulations. The Clarks have satisfied their burden of proof by demonstrating that the proposed construction is consistent with the Monroe County comprehensive plan and land development regulations and that they are entitled to the subject permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's decision to issue building permit number 9210003952, and dismissing the appeal filed by the Department of Community Affairs. DONE AND ORDERED this 30th day of December, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1992.
Findings Of Fact The Utility's water plants are operating satisfactorily and are under no citations or corrective orders promulgated by the Department of Environmental Regulation. One customer service problem exists with regard to frequency of service outages and low pressure. The Utility had not previously been informed of the particular customer's problem and gave assurances that it would be corrected immediately. As demonstrated by a report of the Department of Environmental Regulation incorporated in Exhibit 1, the Utility provides good quality water that meets all pertinent standards of the Florida Safe Drinking Water Act of 1977, and in every way the quality of water service provided by the Utility was shown to be satisfactory. Rate Base In order to present a truer picture of the Utility's average rate base, and taking into account the factor of recent growth of the system, Commission expert engineering and accounting witnesses recalculated the Utility's figures for plant in service based upon a thirteen-month average as opposed to the twelve-month test year employed by the Utility. Thus equipment accounts and equipment retirement accounts were recalculated on a thirteen-month average in arriving at a total plant in service figure, based upon which the actual rate base was calculated. These calculations as well as adjustments to reclassify certain expenses which should have been capitalized in the plant accounts and then based on a thirteen-month average, demonstrated a total plant in service adjustment figure of $7,770. These, together with an adjustment for additional total accumulated depreciation of $2,807 and other relatively minor adjustments to the Utility's capital accounts, none of which were contested by the Utility, result in a rate base, or net investment figure, of $90,173. The adjustments and calculations supportive of this figure, all of which were uncontroverted by the Petitioner, appear attached hereto and are incorporated by reference herein as Schedule 1, Attachments 1 and 2. Operating Statement The Utility seeks to increase its revenues to the above- stated amount. Determination of an appropriate revenue figure necessitate re-allocations and adjustments to operation and maintenance expenses to add in necessary employee salaries and to reclassify and delete certain operation and maintenance expenses properly attributable to water systems not involved in this rate case. Additional, depreciation expense on contributed property must be disallowed and an adjustment for increased revenues necessary to result in an agreed upon 12.45 percent rate of return on rate base with concomitant adjustments to allow for increased gross receipts tax and income tax, established an appropriate revenue requirement of $35,922 per year. The Respondent's accounting witness established that the 12.45 percent rate of return on the Utility's rate base is the minimum necessary to insure a reasonable, compensatory rate of return to the Utility and to assure the company's financial viability in order that the quality of service to customers does not deteriorate. These adjustments to the initial operating statement accounts depicted in Exhibit 2, were not refuted by the Utility. The adjustments and calculations supportive of this revenue figure are set forth in greater detail in Schedule 2 of Exhibits 2 and 2A attached hereto and incorporated by reference herein. There was no dispute regarding the appropriate cost of capital for the company. The weighted cost of capital was shown to be 12.45 percent, based upon the Utility's undisputed cost of equity at 14 percent, as well as its imbedded debt cost of 9.47 percent. The rate structure should be predicated upon a base facility charge rate design. The base facility charge type of rate structure will insure that each customer, even seasonal residents who do not use a minimum amount of water per month sufficient to defray their portions of the cost of service, actually pay the minimum necessary for the Utility to meet its fixed costs which are attributable to their connections. In the case of the systems involved in this proceeding, a base facility charge of $3.35 for a 5/8" x 3/4" meter and a gallonage charge of 88 cents per 1,000 gallons will produce the revenue requirement of $35,922. Both the Petitioner and the Respondent agree to the feasibility and appropriateness of this base facility charge rate design and these amounts.
Recommendation Having considered the competent, substantial evidence of record, the foregoing findings of fact and conclusions of law, it is RECOMMENDED that John V. Smith Water Company should be authorized to receive gross annual revenues for its water service to customers in Walton County, Florida of $35,922 and that the Utility be authorized to file revised tariff pages containing rates designed to produce annual water revenues in that amount. It is further RECOMMENDED that the $4,000 letter of credit previously required to be filed by the Public Service Commission be returned to the Utility for cancellation. DONE and ENTERED this 20th day of November, 1980, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1980. COPIES FURNISHED: John V. Smith 234 Deer Avenue Niceville, Florida William H. Harrold, Esquire 101 E. Gaines Street Tallahassee, Florida 32301 Robert T. Mann Chairman Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Steven C. Tribble Commission Clerk Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
The Issue Petitioners and Intervenors challenge the Department of Environmental Protection's (Department) Notice of Intent to Issue Environmental Resource Permit (ERP) No. 0142476-003 to IMC Phosphates Company (IMC) for proposed mining of phosphate at the Manson Jenkins Property (Property) located in Manatee County, Florida. The ultimate issue is whether IMC has provided reasonable assurance that the applicable requirements of Chapters 373 and 403, Florida Statutes, and relevant rules promulgated thereunder, have been satisfied justifying entitlement to an ERP.
Findings Of Fact The Parties Respondent, IMC, is a general partnership authorized to do business in the State of Florida and is the applicant in these proceedings. IMC has applied for an ERP to mine, reclaim, and conduct associated activities on the Property in Manatee County, Florida. These activities shall be referred to as the "Manson Jenkins Project." The Department administers the ERP program for various activities including phosphate mining and reviewed the ERP application for the Manson Jenkins Project. Petitioner, DCAP, is a not-for-profit corporation. Alan Behrens and Joe Fernandez reside in DeSoto County and joined in the DCAP Petition. Petitioner, Charlotte County, and Intervenors, Sarasota County and Lee County, are political subdivisions of the State of Florida. Intervenor, the Authority, is a regional water supply authority established under Section 373.196, Florida Statutes, and created by interlocal agreement to supply wholesale drinking water to its member governments and to approximately 100,000 residents of Charlotte, DeSoto, and Sarasota counties, most of whom reside in Charlotte County. Intervenors, ECOSWF and Manasota-88, are not-for-profit environmental organizations. IMC and the Department agreed to the standing of the Petitioners and Intervenors to participate in these proceedings. Environmental Resource Application General In 1993, the Legislature directed the Department and the water management districts to combine the Management and Storage of Surface Water (MSSW) program, administered by the water management districts pursuant to Chapter 373, Florida Statutes, and the Dredge and Fill Program, administered by the Department pursuant to Chapter 403, Florida Statutes, into a single permitting program, the ERP Program. The Department and the water management districts worked jointly to merge the two programs. The process was completed in 1995, when the rules implementing the ERP Program took effect. The MSSW permits were issued by the water management districts for construction activities that would significantly alter surface water flow or otherwise affect surface water management systems. The dredge and fill permits were issued by the Department for activities proposed in surface waters and wetlands. The ERPs are now issued by the Department pursuant to Chapter 373, Florida Statutes, which requires the issuance of an ERP for any construction activities in or seeking to alter certain waters and wetlands. ERP applications for phosphate mining are submitted to, processed and evaluated by, the Department's Bureau of Mine Reclamation (Bureau) pursuant to Chapter 373, Florida Statutes, and specific rules. By law and interagency agreement, the Department issues ERPs for proposed phosphate mining operations. The Bureau conducts an initial review and may request additional information. Upon review of the initial application and responses, the Bureau determines whether the application is complete. Unless waived by the applicant, the Bureau has 90 days within which to take agency action, i.e., either grant or deny the application. ERPs are divided into the construction and operation phases. During the construction phase of a phosphate mining operation, an applicant conducts the mining and related activities, including the actual preparation and mining of the land. After mining, an applicant pumps sand tailings back into the mine cuts, re-contours the land and plants the appropriate vegetation, also known as the reclamation process. After reclamation, the Department inspects the site and determines whether on-site wetlands can be properly reconnected to waters of the state. Reconnection typically occurs when the Department determines that the site functions as a self-sustaining natural system, and water quality standards are met. Following reconnection, the operational stage of the ERP begins because the property is then a natural site and self-sustained. Throughout the construction and operation phases, the Department continually inspects the property. A site will not be released from permit requirements until all permit conditions have been met. For ERP permits issued within the Southwest Florida Water Management District (SWFWMD), the Department incorporated by reference certain sections of Chapters 40D-1, 40D-4, 40D-40, and 40D-45, Florida Administrative Code, and specific provisions of the Basis of Review for Environmental Resource Permit Applications (1995) (ERP BOR), as its permitting criteria. See Rule 62-330.200(3)(a)-(e), Florida Administrative Code. The main permitting criteria followed by the Department in issuing ERP permits for activities within the SWFWMD are contained in Rule 40D-4.301, Florida Administrative Code (Conditions for Issuance of Permits), and Rule 40D-4.302, Florida Administrative Code (Additional Conditions for Issuance of Permits). Both rules became effective in 1995. Prior to the merger of the Department and the water management districts' functions under the Department's regulatory umbrella, the various districts had slightly different conditions for the issuance of permits. The Department and all of the districts developed one version of these rules, which were then adopted by the four districts (without the Northwest Water Management District, which does not implement the program) to promote uniformity. In turn, the Department incorporated the above-mentioned rules by reference. Thus, for example, Rules 40D-4.301 and 40D-4.302 are a blending of the previous MSSW rules with the previous dredge and fill rules. In evaluating ERP permit applications, the Department considers the SWFWMD's (as well as other water management districts) historical interpretation of the rules which have been adopted by the Department, although the Department is not bound to adopt former SWFWMD interpretations nor does the Department defer to the SWFWMD's interpretation of these rules. Until this proceeding, the Bureau evaluated adverse water quantity and flow impacts based on a standard that limited post-mining flows and mass volume to 105 percent and 85 percent of the pre-mining flows and volumes, respectively. As a direct result of the filing of a challenge to this policy, the Department will not rely on this policy as a basis for decision in this proceeding. See Charlotte County, Florida, and Peace River/Manasota Regional Water Supply Authority v. Department of Environmental Protection and IMC Phosphates Company, DOAH Case Nos. 01-2399RU and 01-2412RU (Settlement Agreement July 6, 2001). In this de novo proceeding, IMC has the burden to establish reasonable assurances in a variety of contexts. See, e.g., Rules 40D-4.301 and 40D-4.302, Florida Administrative Code. 2. The Manson Jenkins ERP Application Review Process On October 1, 1999, IMC submitted to the Department an application for an ERP for authorization to mine phosphate, reclaim, and conduct associated activities on the Property. The Manson Jenkins Project is an extension of the existing Fort Green Mine, which is contiguous to the Property. The Department reviewed the information contained in the initial application and issued a series of requests for additional information. IMC provided responses to these requests on February 7, June 5, July 15, September 6, and October 11, 2000. Thereafter, the Department determined that the application was complete and issued a Notice of Intent to Issue (NOI) an ERP to IMC on February 8, 2001. This NOI was published in the Bradenton Herald on February 12, 2001. The parties stipulated that "Chapters 373 and 403, Florida Statutes, and the rules promulgated pursuant thereto are the applicable law in this proceeding." However, the parties disagree regarding which specific statutes and rules apply here. 3. Draft Environmental Resource Permit The Department's NOI includes a draft ERP. This permit is issued under the authority of Part IV of Chapter 373, Florida Statutes, and Chapter 62, Florida Administrative Code. The draft ERP authorizes IMC, in part, "to mine or disturb approximately 361 acres of wetlands for phosphate mining and associated activities . . . . The mitigation/reclamation will consist of approximately 537.8 acres of wetlands . . . . The project will also disturb 1988.1 acres of uplands for phosphate mining and associated activities [and t]he reclamation will consist of 1811.3 acres of uplands . . ." in a variety of land formations. IMC voluntarily agreed to provide a two-phased Conservation Easement consisting of not less than 521 acres, consisting "of [during phase one] not less than 182 acres associated with the no-mine area of the West Fork of Horse Creek, which shall be preserved from mining associated disturbance" and, during phase two, "an additional 339 acres of created wetlands and encompassed stream associated with the West Fork of Horse" Creek. The Conservation Easement is not considered part of the mitigation offered by IMC. The Conservation Easement authorizes the Property owners to use these areas after reclamation and release of the Property. The draft ERP contains general conditions, and specific conditions requiring, in part, monitoring to assure that the proposed mitigation of waters and wetlands is completed in accordance with success criteria contained in the draft ERP; monitoring to assure that groundwater levels are maintained at appropriate levels in areas undisturbed by mining or mining related activities; and numerous other legally enforceable conditions of approval. Phosphate Mining Geological Background and Phosphate Mining Process Millions of years ago, the oceans were rich in phosphorous. At that time, central Florida was under water. Over geological time, certain organisms decayed and settled to the bottom of the ocean. After the waters receded, deposits of phosphate were covered by land. Essentially, phosphate is the product of marine deposits. Although deposits are located in other states, such as Idaho and North Carolina, the largest phosphate rock deposit in the United States is in Central Florida, including the Manson Jenkins Property. The deposits of phosphate-bearing material are referred to as the "matrix," which consists of one-third phosphate, one-third sand, and one-third clay. On the Manson Jenkins Property, the entire matrix or ore body is approximately 15 to 18 feet thick. This phosphate matrix layer is buried under a layer of soils, rocks, sand, and clay, known as the "overburden," which is up to approximately 33 feet thick. There is a layer beneath the matrix which is 150 to 200 feet thick which is a confining layer of dense clay and separates the surficial aquifer from the intermediate aquifer. The phosphate to be mined on the Property is above the bed clay and the top of the intermediate aquifer system. Because the matrix is overlain by the overburden, the only way that it can be accessed and removed is through a surface mining operation. The first step prior to any land disturbance associated with phosphate mining is the installation of a "ditch and berm" system around the proposed mining area. The ditch and berm system is referred to by the Department and the United States Environmental Protection Agency (EPA) as a "best management practice" (BMP). The ditch and berm system for the Property will be designed and installed pursuant to specific criteria. This system is designed to preclude a direct release of impacted water from the mining area to adjacent land, and wetlands or waters, such as streams. The ditch and berm system can be expected to operate appropriately and efficiently if it is constructed, operated, and inspected in accordance with the design criteria described by IMC engineers. A properly designed, constructed, and operated ditch and berm recharge system will effectively maintain water levels outside of the mine areas. A berm is a small embankment which has an inspection roadway on top which is typically 12 to 15 feet wide and has a fairly flat downstream slope. The berm is designed to be flat and stable. The primary purpose of the berm is to prevent water that is collected in the ditch from overflowing into the preserved areas and other undisturbed areas and creating, among other things, potential water quality problems. This system is also designed to prevent water that may be associated with the mining activity from moving off-site to adjacent, undisturbed areas, including wetlands or waters and to protect the ecology of the area outside of the berm. Another function of the system, including the recharge ditches, is to maintain groundwater along the boundaries of the property line so that undisturbed areas outside the mining area will remain at pre-mining conditions. Water levels are actively maintained in the ditches surrounding mining areas to assure that the mining excavations do not drain groundwater from adjacent areas. Preserved areas are also surrounded by ditch and berm and recharge systems that hydrate the area so that, for example, existing wetlands are not degraded. Prior to mining a to-be-disturbed area, the ditch portion of the ditch and berm system acts to collect water and carry it to an area where it is pumped into a recirculation system. The ditch and berm system also typically acts as a recharge system. IMC will design, construct, and operate a recharge system that will maintain the water level in the area immediately adjacent to the mine cuts. The water that is in the recirculation system consists of rainfall, water from the deeper aquifer systems, water from the surficial aquifer system that drains into the mine cuts, and runoff that is captured behind the ditch and berm systems. Prior to mining, IMC will install monitor wells at regular intervals along the recharge ditches, which will be located adjacent to either preserved areas or adjacent to property owned by someone else other than IMC, who would be concerned about drawing the water level down beneath his property. The monitor well gauges will give an indication as to the baseline water levels, the fluctuations of the water level, and the high water levels along the preserved areas. The monitor well gauges can also be read to ensure that the water in the recharge ditch is getting into the ground and maintaining the water table at the same level it was prior to mining. Water can also be drawn from nearby wells which can be used to make up the water that seeps out of the recharge system. IMC currently operates approximately 75 miles of perimeter ditches and berms at various mining operations. IMC has resolved compliance issues relating to recharge ditches (because of dewatering concerns) on the Fort Green Mine. Compliance issues, including the Four Corners Mine, have been reported by IMC to the SWFWMD. Also, IMC has had other unpermitted discharges related to its ditches and berms, which have been resolved by consent orders. Compliance issues regarding the East Fork of the Manatee River have not been resolved completely, as the SWFWMD has not closed its enforcement files. IMC will continue to act to resolve these issues until reclamation is completed around the East Fork. Notwithstanding these compliance issues and the related problems, the weight of the evidence indicates that IMC is capable of designing, constructing, and maintaining the proposed ditch and berm system, including the recharge ditches, on the Property in order to avoid past problems which resulted in, for example, dewatering of property. These problems can be significant and, if left undetected and unremedied, can cause serious consequences. Careful and timely monitoring, and continued self-reporting of non-compliance by IMC is imperative. The SWFWMD has issued a consolidated water use permit for the Property. Under this permit, IMC has reduced its daily permitted pumping by an average of over 50 percent. Prior to mining, an alternate flow way (AFW) will also be constructed to carry water that was previously flowing from the northwestern portion (boundary) of the Property to the preserved area to the south of the Property. The AFW will temporarily replace the conveyance and storage of the portions of the West Fork of Horse Creek that will be mined. The AFW is likely to be removed in years 5 to 6 of mining. See Findings of Fact 87-94. Once the ditch and berm system is in place, the land is cleared to prepare for mining. The area is mined in strips or rows. After clearing, large electrically powered draglines remove the overburden layer to expose the phosphate-bearing matrix. The overburden is cast into an open adjacent mine cut, exposing the matrix for mining. These same draglines then extract the matrix and place it in depressions created at the mine which are called "slurry wells" or "pits." The matrix is then mixed with water in the pits to form a slurry which is conveyed hydraulically through a series of pipes and pumps to a "beneficiation" plant to remove the phosphate rock product from the matrix. The recovered phosphate matrix contains phosphate rock, clay, and sand. At the beneficiation plant, the phosphate rock, sand, and clay are physically separated. The phosphate rock is stored prior to additional processing required to convert it to fertilizer at off-site facilities. The sand is hydraulically transported back to the mining areas for use in land reclamation. The clays are generated from the beneficiation process and hydraulically transported to a clay settling area (CSA) where they are dewatered prior to reclamation. IMC plans to construct and operate two CSAs on the Property. However, the weight of the evidence indicates that approval of the ERP application at issue here, does not approve these CSAs because they have to be permitted and operated under separate Department regulations. See Findings of Fact 244-247 and 268. CSAs are a repository for the clay material. They are generally built in mined-out areas and built with the overburden material that is dragline cast in the mine cut. CSAs are necessary because, unlike sand which readily drains through water, clay materials are very light; and it takes time for the clays to settle out of the water, so the water can be reused in the re-circulation system. IMC expects that the two CSAs on the Property will ultimately be designed to handle the equivalent amounts of clays that will be mined from the Manson Jenkins Project. There will also be two CSAs immediately to the east of the Property on the Fort Green Mine, which will be operating as a result of the mining on the Property. Specifically, the CSAs proposed for the Property are expected to be constructed in mined-out areas (the northeast portion of the Property) and are expected to be surrounded by engineered dams approximately 40 feet above the surrounding land surface grade. One of the CSAs will encompass approximately 540 acres and the other 520 acres. After the clay is initially settled, specialized equipment will be used to dig drainage ditches and take other steps to expedite the settling process. This will allow a "crust" to form on the top of the clay surface. Thereafter, the dams surrounding the CSA (which are composed of overburden material) will be pushed in to cover a portion of the settled clays. The area will then be primarily uplands with relatively small wetland systems present. Years ago, settling areas would be reclaimed in 10 to 15 years. Today, with special mobile equipment, CSAs can be reclaimed within 3 to 5 years. Reclamation of the CSAs on the Property is expected to be completed within the 15 year timeframe contemplated for mining and reclamation activities. Once the matrix has been removed from a mining area segment, land reclamation commences. IMC expects to use four, different land reclamation techniques, including but not limited to, crustal development reclamation and land and lakes reclamation. These methods were described in detail during the hearing. Manson Jenkins Project Pre-Mining Conditions (Historical and Current Conditions of the Property) The Property encompasses approximately 2,808 acres in northeast Manatee County, Florida, which is largely owned by FP- 1 and FP-2 Corporations. IMC has a lease to mine the Property, having obtained these rights in 1993 when IMC entered into a partnership with Agrico Chemical Company, who, in turn, acquired the mining lease in 1986. The lease prohibits the owners from using the Property during mining, until it is released from reclamation. The owners have the right to use the Property prior to mining and after reclamation. The Parties stipulated that there are no archeological or historical resources located at the Property. The Peace River starts in Polk County, north of Bartow, and flows through Wauchula and Arcadia, and southwesterly to Charlotte Harbor. Horse Creek begins in the southern portion of Polk and Hillsborough Counties and flows south through Hardee County, approximately 40 miles to the confluence of Horse Creek and the Peace River in DeSoto County. The eastern boundary of the Property is the Manatee County-Hardee County boundary line. The Property abuts land to the east that is being mined and reclaimed by IMC as part of its Fort Green Mine, and the Manson Jenkins Project is an extension of that mining operation. According to a 1940 composite aerial, as interpreted, the Property contained wetlands that had not been ditched or drained. At the time, the West Fork of Horse Creek had not been channelized. The aerial indicates that there was a line of wetlands and a series of elongated marshes strung together, like a string of sausages, running south along the West Fork, and a distinct, yet not continuous, channel running southeast toward the southern boundary of the Property. The 1940 aerial, as interpreted, also indicates that the upland areas of pines had been cut. Cattle grazing is also apparent. The upland, however, consisted of very dense and rich undergrowth of range grasses, palmettos, low shrubs, and other assorted species. As of 1950, herbaceous wetlands existed at the north end of the Property and a vegetative cover existed between that wetland and the forested portion of the Property at the southern end. At that time, there was no channelization. As of 1965, the West Fork of Horse Creek, in or around the middle of the Property, had been channelized and heavily ditched. The area in the northeastern portion of the Property had been impacted by agriculture and row crops. The wetlands had been drained and tied into these ditches. The native range had been removed. IMC and its predecessors did not participate in the drainage of the Property for agricultural purposes. The present condition of the Property is very similar to the condition as of 1965. There is an approximately 3-square-mile area north of the Property which drains through a marsh, down to the West Fork of Horse Creek. The West Fork of Horse Creek, which enters the northwest portion of the Property, bisects the entire length of the Property in a north-south direction, and is channelized. The West Fork of Horse Creek is a first order stream because of its location in the watershed. See Findings of Fact 234-236. There is a headwater marsh area which leads into the northwestern portion of the Property and is part of West Fork of Horse Creek. The uppermost portion of the West Fork on the Property, which will be mined, has been referred to as "a channelized or ditch portion" or a "wide ditch." This includes the headwater marsh area. There is a "complex of wetlands" in the northwest corner of the Property which contribute water flow down the West Fork. There is a large ditch in the middle of the headwater marsh which conveys most of the water through the system and down the center of the Property. This portion of the West Fork of Horse Creek does not have the upland vegetation that is usually associated with a stream bank. Its ecological value is less than what is generally found in other first order stream or headwater systems. While the experts diverge on this issue, the weight of the evidence indicates that while the headwater marsh area to the north of the Property and in the northern portion of the Property has hydrological importance, the West Fork of Horse Creek is not a regionally significant stream. The weight of the evidence indicates that the West Fork of Horse Creek is a tributary of Horse Creek which, in turn, is a tributary of the Peace River. However, it is unclear whether the West Fork of Horse Creek is a work of SWFWMD. Assuming that it is, reasonable assurances have been provided that this project will not cause adverse impacts to the West Fork of Horse Creek in light of the mitigation offered by IMC and the proposed reclamation of the area and the reasonable expectation that this area will be improved from its current state. See Finding of Fact 257. There is also an area on the West Fork of Horse Creek and to the southeast of the Property (Section 13) which will be preserved and not mined, which is a combination of a channel system and forested uplands and wetlands. Walker Road runs north and south and is located in the middle and west of the West Fork of Horse Creek on the Property. Walker Road follows the proposed AFW. There is also a dirt or shell road which runs west to east across the West Fork of Horse Creek on the Property and a spillway structure at this location. The spillway structure was used by the landowner in agricultural practices to control the flow of water to irrigate the crops in the northeastern portion of the Property. The Property is located in the West Fork of Horse Creek, Manatee River, and Myakka River Basins, and in the far western part of the Peace River Basin. IMC's ERP Application contains approximately 300 acres, west of Walker Road (part of Sections 2 and 11) and in the northwestern portion of the Property in the Manatee River Basin. (Approximately 17 acres of wetlands in this area will be mined and will be replaced with approximately 51 acres of wetlands. See Findings of Fact 95-96 and 211.) This area is not part of the Development of Regional Impact approved by Manatee County, although IMC plans to request permission from Manatee County to mine this area, and if approved, IMC would mine less than 200 acres. This portion essentially drains into the Manatee River. Further, IMC has included the southwest triangle of these 300 acres as a preservation area. This area contains, among other land covers, mixed wetland hardwoods and freshwater marshes. There is another portion of the Property in the Myakka River Basin, approximately 32 acres, located in the southwest corner of the site. (There is also a small wetland in this area consisting of approximately 4 acres of wetlands which will be replaced with approximately 12 acres of wetlands. See Findings of Fact 95-96.) This portion drains through a drainage ditch and eventually enters Wingate Creek and the Myakka River. The balance, and by far the largest portion of the Property, is located in the Peace River Basin. After leaving the Property boundary to the south, the West Fork of Horse Creek joins the main branch of Horse Creek approximately 3 to 3.5 miles south of the Property line. Horse Creek then joins the Peace River approximately 30 miles from the Property boundary. The Peace River then empties into Charlotte Harbor approximately 40 miles from the Property. Today, the predominant land use on the Property are improved pasture and agricultural ditches. In order to achieve this cover and use, an extensive surface drainage system was constructed to drain isolated marshes into the West Fork of Horse Creek and to reduce the flood stage elevations within the creek itself. In areas with less extensive ditching, the existing vegetative communities more closely approximate natural systems. The improved pasture has been planted with bahia grass and other exotic pasture grasses. In recent years, a large portion of the pasture area has been converted into a sod farm and the sod has been stripped from that area leaving a large area of bare semi-vegetative soil. The Property is not pristine or close to its original condition, although, as argued by Charlotte County and others, portions of the Property do provide ecological functions. The wetlands on the Property have been subjected to extensive agricultural ditching. The main ditch is quite wide and deep, and there are many side ditches that proceed into smaller wetlands. There are also some lands that have not experienced conversion to improved pasture which, for the most part, are scheduled for preservation. IMC plans to mine, in part, the channelized portion of the West Fork of Horse Creek from north to south to the preserved area where the more heavily vegetated and forested portion of the natural stream channel of the West Fork of Horse Creek is located. This area will be blocked off during mining by a ditch and berm system. IMC will construct an AFW to carry the water that was previously flowing from the northern area (that is not part of this project and is not owned by IMC) around the area to be mined in the stream channel, which will be reconnected into the preserved area to the south. See Findings of Fact 87-94. From a hydrological standpoint, the to-be-mined marsh and channelized stream segment will be replaced with a flow- through marsh and recreated stream segment that connects the area to the north with the preserved portion of the West Fork of Horse Creek. The uplands will be placed back to the same elevations existing pre-mining and additional wetlands added. The marsh and the vegetative part of the stream will be slightly bigger. Proposed Mining Activities (Mine Sequence for the Property) IMC proposes to mine 2,348 acres of the 2,808 acres on the Property in approximately 6 to 9 years. The mining activities at the Property will follow the general sequence outlined above. Reclamation is expected to begin within 3 to 4 years after the commencement of mining operations, except for the CSAs. The mining and reclamation activities are expected to completed within 15 years. IMC will construct an AFW in year one (and prior to mining) of the mining activities. The AFW should be tied into the preserved area in the southern portion of the Property as soon as feasible in order to minimize the impacts to this area and downstream. The AFW is necessary because IMC intends to mine approximately 1.6 miles of the channelized or ditched marsh and stream portion of the West Fork of Horse Creek located in the northwest to middle portion of the Property. The AFW is designed to temporarily replace the conveyance and storage of the portions of the West Fork of Horse Creek that will be mined north of the preserved area. The AFW will carry water that was previously flowing from the northwestern boundary of the Property to the preserved areas to the southern portion of the Property. In this manner, if constructed and operated properly, it is expected that the proposed mining and related activities at the project area will not cause adverse flooding to on-site or off-site property and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Further, the AFW and downstream areas will not be expected to suffer from erosion as a result of the installation of the AFW. The slopes and bottom of the AFW will be a vegetated channel designed to receive surface water runoff from the area north of the Property and convey it southward and then eastward back into that portion of the West Fork of Horse Creek on the Property which is part of the area being preserved in the southern portion of the Property. The bottom of the AFW will be vegetated with wetland type vegetation and will provide a habitat for fish and other wildlife. The AFW will not be used until the vegetation has become established. Vegetation is an effective method for minimizing erosion in a flow way or stream as described here. The design recommendations also require that the ends of the access corridor be stabilized so if they are subjected to overflow during the 25-year or 100-year storm event, they will be protected from erosion. Any sharp bends in the AFW will be stabilized prior to being put into service. The size of the AFW (50 feet wide) was revised and adjusted so it could carry the expected flows without backing the water up and causing water elevation to be above that which existed historically. The actual design of the AFW has been modified in accordance with the ERP conditions. The Draft ERP, "Specific Condition 4. c." provides: An alternate flow way shall replace the headwater marsh and wetlands of the West Fork of Horse Creek during site preparation, mining, and until the reclamation is re- connected. The alternate flowway will begin south of the north project boundary and end at the north end of the preserved wetlands, as shown on Figure IV F. The alternate flowway will convey water from areas north of the north project boundary south into the unmined portions of the West Fork of Horse Creek. The AFW shall be constructed as a trapezoidal channel with a minimum bottom of with [sic] of 50 feet and side slopes no steeper than 3 ft horizontal to 1 foot vertical, (3H to 1V). A recharge ditch and associated berms shall be placed along the entire east side and portions of the west side of the alternate flowway as noted in Figures IV F and IV F(a). To ensure maximum water quality treatment, the flowway will be planted with a variety of herbaceous wetland species such as pickerel weed Peak level recording devices will be placed at the north end, south end, and just north of the half Section line of Section 11. The top of the recording tube and the cross section elevations of the alternate flowway will be surveyed at the time of installation. This data will be submitted with the first monitoring report. Stream flows will be measured in conjunction with the quarterly mine inspection at each peak level station until the reclamation is reconnected to the West Fork unmined area. IMC-Phosphates shall submit monthly flow data and rainfall data to the bureau for review and approval. IMC-Phosphates shall not conduct any activities that result in a violation of Class III water quality standards within the West Fork [of] Horse Creek flowway. If at any time the water quality fails to meet [C]lass III standards, the bureau shall be immediately notified and corrective measures implemented. The reconstructed stream channel, like the AFW, will be vegetated and not placed into service until the vegetation is established. IMC proposes to disturb 361 acres of jurisdictional wetlands on the Property. This acreage comprises approximately 4, 17, and 330 (approximately 351 acres according to Dr. Durbin) acres in the Myakka, Manatee, and Peace River Basins, respectively. The balance of the Property will be reclaimed as uplands. See Findings of Fact 218-219. IMC will reclaim 538 acres of wetlands for the 361 acres of disturbed wetlands, consisting of approximately 12, 51, 475 acres of wetland mitigation in the Myakka, Manatee, and Peace River Basins, respectively. IMC proposes to preserve approximately 316 acres (approximately 45 percent of the wetlands on-site) of jurisdictional wetlands on the Property, including over 70 percent of the forested wetlands on-site. By eliminating existing agricultural ditching and providing appropriate mitigation, and by providing upland buffers around the wetlands, the post-reclamation condition of the Property is expected to be better than the current condition of the Property. Conditions for Issuance Water Quantity Impacts Surface Water General During the final hearing, substantial evidence was presented concerning the potential impact of mining on surface water flows across the Property and downstream. Pursuant to Rule 40D-4.301(1)(a) and (b), Florida Administrative Code, an ERP applicant must provide reasonable assurance that its proposed activities will not cause adverse water quantity impacts to receiving waters and adjacent lands and will not cause adverse flooding to on-site or off-site property. Dr. Garlanger is an expert in hydrology and hydrologic modeling with special expertise in surface and ground water systems associated with phosphate mining operations and reclaimed mined lands. IMC requested Dr. Garlanger to assess the potential impacts of the proposed mining and reclamation on the hydrology of the Property, and also to assess the potential hydrological or hydrogeological impacts downstream from the site to wetlands or waters of the state. Dr. Garlanger used models to assist him in assessing the nature, scope, and the extent of any future impacts resulting from the phosphate mining. Modeling requires the making of calculations relating one variable to another. Scientists, such as Dr. Garlanger and others who testified during this final hearing, who run comparative water balance models to calculate the differences in daily stream flow leaving a project site at the project boundary, must take into account several factors associated with the hydrological cycle, including the following: 1) the typography of the site; 2) the hydraulic conductivity or permeability of different soil levels; 3) the transmissivity of the different aquifer systems; 4) the geometry of the stream channel; 5) the amount and timing of rainfall on-site; 6) the amount of surface runoff; 7) the amount of evapotranspiration (ET); 8) the amount of deep recharge to the Floridan aquifer system; 9) the amount of groundwater outflow, including that portion of which makes it to the stream and becomes base flow; and 10) the temperature, wind speed, and amount of solar radiation, because they control ET. Each of these issues was reasonably evaluated by Dr. Garlanger. The weight of the evidence supports the accuracy, completeness, and conclusions of Dr. Garlanger's modeling work. Dr. Garlanger has been reviewing hydrological aspects of mining projects since 1974 for phosphate mining projects that require hydrological and hydrogeological analysis reflecting the unique aspects of mining operations. Dr. Garlanger explained how professional judgment was applied in his engineering calculations and how his model input data are reasonable. He also explained that he used reasonable information estimates to conduct this particular modeling work, which are consistent with measured data. Surface water flows are dependent on two sources: rainfall runoff from adjacent areas and groundwater that enters surface water streams and is sometimes referred to as "base flow." The weight of the evidence demonstrated that during mining activities the act of confining mining areas by the ditch and berm system would capture the rainfall runoff on these areas and thus reduce that rainfall runoff contribution to the ditched segment of the West Fork of Horse Creek (prior to the time that it is mined), the AFW during its operation, and the reclaimed West Fork of Horse Creek (during the time that mining continues to occur in the vicinity). During the active mining and reclamation activities, the ditch and berm system operates to maintain groundwater levels in areas undisturbed by mining at pre-mining conditions. Water levels are actively maintained in the ditches surrounding mining areas to assure that the mining excavations do not drain groundwater from adjacent areas. Thus, during the active mining and reclamation activities, the base flow component of surface water is not likely to be affected. The weight of the evidence demonstrates that the base flow contribution to surface water flows through the AFW, when operational, will be somewhat higher than is present in the West Fork of Horse Creek during pre- mining conditions. After mining and reclamation are complete, the ditch and berm systems will no longer be needed and present at the Property, and thus rainfall runoff is not expected to be captured thereby. More wetlands, however, will be present at the Property after reclamation is completed than are now present. These wetlands tend to "use," through ET, more water than a comparably sized upland area. Thus, after reclamation is completed, there will be a reduction in the amount of water contributed from the Property to the flow of water in the reclaimed and preserved portions of the West Fork of Horse Creek. The weight of the evidence indicates that the proposed mining and reclamation activities at the Property will not cause any adverse impacts on surface water quantity at the Property during active mining and reclamation or thereafter, and that there will be no adverse impacts at downstream locations. 2. Rainfall Predictive modeling was carried out by Dr. Garlanger to assess the potential significance of rainfall runoff capture and base flow reductions anticipated during mining and after reclamation of the Property. The model efforts simulated stream flow conditions on a daily basis, assuming that the Property experienced rainfall of the same frequency and duration as had occurred during a 19-year period from 1980 to 1998 at the Wauchula rainfall gauge. The amount of rainfall drives the hydrological model because it determines the amount of groundwater outflow, the amount of surface water runoff, and basically determines the amount of stream flow. The volume and timing of rainfall are important factors to consider; information regarding the variability of rainfall is a critical input into any model. In mining operations, discharge volumes correspond directly to rainfall. When rainfall volumes increase, mining operations' discharges increase. When rainfall volumes decrease, mining operations' discharges decrease. Thus, rainfall is the primary controlling factor in the volume of water discharge from a phosphate mine. The Property is located in the Peace River Basin. See Finding of Fact 75. Information is available from the National Climatic Data Center (Center), the government archive for climatic data, which indicates the occurrences of annual rainfall in the Peace River Basin between 1933 and 2000. The Center is a reasonable source of rainfall data. From 1933 through 2000, the arithmetic average of the rainfall in the Peace River Basin was 52.3 inches. (The average rainfall was collected from five stations throughout the Peace River Basin and then averaged.) However, within this period, there is significant variation in rainfall between the high and low rainfalls. There have only been four occurrences when the rainfall has been between 51 and 54 inches during this time frame. The record low rainfall of 35.9 inches occurred in 2000 in a significant drought year. The highest rainfalls have been in the 72 to 75-inch range and near 75 inches on two occasions; thus, a model must be based on more than one year of data. Dr. Garlanger examined the daily rainfall for a 19- year period between January 1980 and December 1998. This rainfall was measured at Wauchula, which is a town in the Peace River Basin almost due east of the Property and located on the Peace River. The weather station collects daily rainfall data and the Center is the source of this information. The average rainfall at Wauchula for this 19-year period is 52.17 inches, similar to the 1933 through 2000 period mentioned above, and also indicates that there is significant daily variability of rainfall. The claim that the accuracy of Dr. Garlanger's modeling is questionable because IMC's modeling "only uses rainfall information from the Wauchula rain gauge" is not persuasive. Dr. Garlanger reasonably chose this particular period of time, 1980 to 1998, and the location for several reasons. First, the data was available from the Center and is reliable. Second, the average rainfall that he used in the Peace River Basin is the average from five stations in the Basin, not just from one station. Third, Dr. Garlanger also considered the data from a rain gauging station approximately 3 miles downstream from the Property where Horse Creek crosses State Road 64, and the average rainfall was about 52.2 inches, which is similar to the 19-year period of data for the Peace River Basin. It is also argued that Dr. Garlanger "fabricated certain rainfall data." In rebuttal, Dr. Garlanger agreed that a data gap of approximately 7 months existed in the rainfall record at the Wauchula station, which he used. He described the efforts made by his assistant in supplying data for the missing period of record, which included an examination of the average rainfall for the other 18 years, for a particular day which was missing from the original data set. The weight of the evidence shows the calculations for these missing months out of the entire 19-year record did not adversely affect the overall conclusions of Dr. Garlanger's modeling work, including the predicted impacts. It is also suggested that Dr. Garlanger's modeling work improperly "omits a 3 square mile of the West Fork of Horse Creek watershed . . . that is critical to judging environmental impacts and changes in flow on the Manson Jenkins Property." While the entire Horse Creek watershed exceeds 200 square miles, an area of approximately 10 square miles composes the Horse Creek watershed upstream of the Property. A portion of IMC's Fort Green Mine is located in the West Fork of Horse Creek watershed. This portion of the Fort Green Mine includes approximately 3 square miles of catchment area. While IMC's Fort Green Mine is not currently contributing surface runoff to the West Fork of Horse Creek, the 3 square miles lying in the Fort Green Mine catchment area still comprise part of the overall Horse Creek Basin. In order to properly evaluate any impact on existing flow expected from Manson Jenkins activities, Dr. Garlanger reasonably did not select the 10-square mile historic basin, which would include the 3 square miles of Fort Green Mine catchment area and which, if included in the modeling assumptions as part of the watershed, would produce more favorable, higher flows. Rather, Dr. Garlanger reasonably used the current condition or baseline condition, which is the approximately 10 square miles of the historic basin minus the 3- square mile catchment area of the Fort Green Mine, approximately 6.2 square miles, in order for a valid comparison to be made of the potential effects that Manson Jenkins activities would have on existing flow. Dr. Garlanger's exclusion of this 3-square mile area in his modeling for the project was prudent to predicting what, if any, flow impacts would occur on a daily basis and under existing conditions. Dr. Garlanger's modeling work reasonably predicted both (1) the runoff that would occur on a daily basis over the next twenty years if no mining were to occur and (2) the runoff that would occur given the same rainfall record during mining and post-reclamation conditions at the Property. It was reasonable to use the same rainfall record in comparing these two scenarios in order to get a model comparison that accounted for pre-mining, during-mining, and post-reclamation conditions. 3. Evapotranspiration The reasonableness of Dr. Garlanger's modeling work is illustrated by the predictive accuracy of Dr. Garlanger's ET data as compared to measured data. Dr. Garlanger's model estimated ET on a daily basis, and the same ET values were used by Dr. Garlanger for the same types of vegetation cover. Dr. Garlanger compared the predicted daily ET with the ET calculated on actual, measured stream flow data along with the estimate of the rainfall in the Horse Creek Basin for the period from 1980 through 1998. Dr. Garlanger's predicted ET for the Property was 39.2 inches per year. The ET data from Horse Creek at State Road 64 is 40.3 and at State Road 72 is 39.9. Thus, Dr. Garlanger's predicted ET was within 2 percent or 3 percent of the data from these stations where the stream flow was measured. 4. Flow Impacts Using the reasonable meteorological data assumptions noted above and applying accepted hydrological and other physical laws, Dr. Garlanger used the model to predict anticipated flow conditions at the Property and downstream. The modeling results demonstrate that flow in stream segments which receive rainfall runoff and base flow contribution from the Property would be reduced only during the relatively small percentage of time that the streams would normally exhibit high flow conditions. For example, at the southern Property boundary line, the flow in the West Fork of Horse Creek during active mining and reclamation activities is predicted to be reduced only during the higher flow periods which exist for 10-20 percent of the time during the year. For the remaining 80-90 percent of the year flow reductions are not anticipated. After reclamation is completed, flow in the West Fork of Horse Creek at the Property line is predicted to be reduced only during approximately 5 percent of the time during the year when high flows are experienced in the stream. The only impact of the anticipated flow reductions during high flow periods at the Property boundary will be to reduce the depth of the water within the channel of the stream at that point. At the southern boundary of the West Fork of Horse Creek as it leaves the Property boundary, during the operation of the AFW, there should be no decrease in average stream flow, and there may even be a net increase in stream flow. During years 6 through 13 of the mining/reclamation sequence, or the mine life, Dr. Garlanger calculated there would be a decreased stream flow leaving the Property boundary of approximately 1.4 cubic feet per second (cfs) on an annual average basis as a result of mining activity, assuming the average rainfall during that period is 52 inches and the area has the same rainfall distribution as in Wauchula from 1980-1998. (The 1.4 cfs decrease applies downstream as well, but reflects Dr. Garlanger's worst case assumption.) Dr. Garlanger further testified that the slight decrease in flow in the Horse Creek, corresponding to a decrease in flow depth of a few inches when the flow depth in the Horse Creek is between 7.5 feet and 12.8 feet, will not cause adverse water quantity impacts. Dr. Garlanger compared on a daily basis the predicted reduction in stream flow resulting from mining to the baseline pre-mining condition. This allowed Dr. Garlanger to predict the effect on the depth of water in the stream channel at various points in time during both high flows and low flows. Significantly, Dr. Garlanger's modeling work indicates that during higher rainfall events, that is, high flows, when most of the runoff would occur, the greatest effect as a result of mining occurs. Predictably, during the period when there are no rain events or small rain events, that is, when there is low flow, Dr. Garlanger's calculations show the Manson Jenkins activities have virtually no impact on flow. Consequently, the effects of IMC's proposed mining and reclamation activities are consistent with the permitting rules because IMC's mining activities will reduce rather than cause adverse flooding. Water leaving the Property travels downstream to Horse Creek and the Peace River and ultimately to Charlotte Harbor, about 40 miles downstream from the Property's southern boundary. Dr. Garlanger also assessed the timing and magnitude of flow reduction impacts at several points in these downstream locations. Once again, slight flow reductions during high flow conditions were predicted for downstream segments of Horse Creek and the Peace River with the magnitude of the flow reductions decreasing significantly as one moves farther downstream from the Property. It is expected that such reductions in depth will have no ecological significance. During low flow periods, no flow reduction impacts were predicted at these downstream locations. The flow in the Peace River at Arcadia and at Charlotte Harbor over the next 19-year period is not expected to be lower than the measured flow existing during the previous, historic 19-year period, such that any change will have an adverse water quantity impact. Water flowing from the Property ultimately enters the Peace River at a point downstream from the Arcadia gauging station where measurements are taken to control the ability of the Authority to withdraw water for municipal water supply purposes. Accordingly, the predicted reduction in flow during high flow conditions resulting from the permitted activities at the Property cannot be reasonably expected to adversely affect the Authority's legal rights to withdraw such water. See Findings of Fact 248-249. The Authority's water intake structure is located upstream (on the Peace River) of the confluence of Horse Creek and the Peace River. The predicted small reduction in flow during high flow conditions attributed to activities at the property, will have little or no impact on the Authority's capacity to withdraw water at that point. Furthermore, the freshwater-saltwater interface in the Peace River will be well downstream of the intake structure and cannot be expected to be impacted by any reasonably predicted reduction in freshwater flow caused by activities at the Property. The persuasive evidence in the record indicates that the predicted impacts calculated by permit opponents on the Peace River flow resulting from mining were not accurate. For example, pre-mining flow from both the wet season and the dry season is not identical and the calculation of average annual flow does not properly match wet and dry season flows. Additionally, the water quantity calculation errors included using the wrong number of days for both wet and dry season average flows, which overestimated the impact by 50 percent for the dry season and 100 percent for the wet season. Certain assumptions made by permit opponents concerning flow reductions due to industry-wide mining are not reliable. The assumptions concerning the amount of land that would be mined after 2025 exceeded actual available land to be mined by a significant percentage. It was assumed the area to be mined after 2025 is approximately 161,000 acres, when the amount of land that could be added to mining is less than 20,000 acres. (A high-side number might result in another 40,000 acres mined after 2025, which is approximately 25 percent of the estimates.) The overestimate of these assumptions resulted in a 100 percent higher reduction in flow in the Peace River at the Authority's water withdrawal point than would modeling estimates using reasonable assumptions. 5. "No-Flow Days" Analysis The record does not support the claim of an increase in the number of no-flow days in West Fork of Horse Creek at the Property boundary. The record shows there was no accounting (by party opponents) for the fact that flow from direct runoff is actually distributed over a period of time. The model incorrectly had runoff from a storm occur all on the day of the storm, rather than over a period of days. Contributing stream flow from the undisturbed area located upstream of the Property was also not considered. Dr. Garlanger's modeling data was not accurately transferred, and there is evidence that had the correct flow data from Dr. Garlanger's work been used, the increase in no-flow days would not have been calculated as they were and relied upon. Further, in rebuttal, and contrary to permit opponent's suggestion that Dr. Garlanger did not estimate no-flow days, Dr. Garlanger reevaluated his calculations and reconfirmed that, while there is an expected reduction in the flow, there is no increase expected in the number of no-flow days. Dr. Garlanger's modeling work is both professionally competent and reasonable in predicting Manson Jenkins activity flow impacts. 6. Model Calibration It is also argued that Dr. Garlanger's modeling work was "not calibrated." However, this argument is rejected based on the weight of the evidence. Dr. Garlanger explained that the model used for the Manson Jenkins Project was calibrated by the models used at another phosphate mine (the Ona Mine tract) located a few miles east of the Property. He also used the same input parameters for the Farmland-Hydro Mine in Hardee County. In this light, the model provided Dr. Garlanger with a reasonable estimate of both pre-mining or baseline condition and the post-reclamation condition, and also furnished him with a basis to estimate impacts during mining. In Dr. Garlanger's professional judgment, every input parameter used for the project's modeling work was reasonable and is accepted. Additionally, Dr. Garlanger compared the project groundwater outflow for the different sub-basins and found the outflow averaged 7.5 to 7.8 inches per year for all basins. Dr. Garlanger testified the measured groundwater outflows reported by W. Llewellyn, United States Geological Survey, averaged 7.7 to 8.9 inches per year in the Horse Creek Basin. Thus, Dr. Garlanger's modeling work, as to the groundwater component, was reasonably good predictive work. Furthermore, as discussed herein, the ET rate is one of the most important factors in determining the amount of water available to be discharged through the stream system. There is persuasive evidence that Dr. Garlanger calibrated the IMC model for ET. When referring to calibration, Dr. Garlanger referred to estimated ET from the different vegetative types on the Property. In this manner, Dr. Garlanger used the estimate of the average annual ET for the upland and for the upland wetlands. ET cannot be directly measured. Rather, it must be determined indirectly. Thus, estimates of the average annual ET are made by the modeler exercising professional judgment. The average daily ET value used in the modeling was determined based on total ET from the entire 218-square mile Horse Creek Basin down to the gauging site at Arcadia. Dr. Garlanger then determined what portion of the basin was upland, wetlands, or riverine wetlands, and what the ET values were for each of those systems. In disagreeing with Dr. Garlanger's model, permit opponents imply that Dr. Garlanger's ET numbers are unreliable as they "came from information . . . that indirectly measured ET for wetlands in the Everglades." Dr. Garlanger's initial ET used 50 inches per year for both riverine and upland wetlands. However, Dr. Garlanger knew that total ET rates for the system-types on the Property range between 36 and 39 inches per year. Thus, he had discussions with other hydrologic experts about his concern of using 50 inches of ET per year for both riverine and upland wetlands. In order to evaluate the appropriate ET rate for the Property, Dr. Garlanger also reviewed data from a study containing indirectly measured ET for wetlands in the Everglades, which systems can be compared to the wetlands at the Property. The Everglades data was contained in a scientific paper concerning a study performed in the Everglades by ecologists, limnologists, and physicists where they indirectly measured ET under various conditions. The Everglades professional study assisted Dr. Garlanger and other experts in determining, based on their professional judgment, what would be the appropriate and reasonable ET rate to use in the IMC model. 7. The Department's Review of the Models The Department, by and through the Bureau, reviewed the ERP Application for, among other things, comparison of pre- mining with post-mining conditions, the use of the AFW, and the best management practices of IMC, and concluded that reasonable assurances to issue the permit were provided under the permitting rules. Furthermore, the Department will continually evaluate the project's effects by the ongoing monitoring for impacts to site conditions, and the Department will perform quarterly inspections. It is typical for the Department to rely on the models and permit information that is submitted by the permit applicant's professional engineer. While Mr. Partney did not necessarily agree with portions of Dr. Garlanger's model analysis, he stated that "this approach is fine for planning and checking the feasibility of a plan." Mr. Partney maintained that, in his professional opinion, because the reclamation activity would result in a net improvement of the environment on the Property, an approximate 5 percent annual average decline in flow was not a concern. (Dr. Garlanger stated that a 5 percent or greater reduction of annual average flow is significant. However, for the reasons stated herein, Dr. Garlanger felt that the impacts would not be adverse.) Groundwater In the vicinity of the Property, groundwater is present in the unconfined surficial aquifer within the overburden and matrix and in the underlying confined intermediate and Floridan aquifer systems. Surficial groundwater levels in areas not disturbed by mining will be maintained by use of the ditch and berm system. Dr. Garlanger presented credible evidence that after reclamation, groundwater levels return to pre-mining elevations. Credible evidence was presented that in some cases, slightly more groundwater outflow to the streams and preserved areas is expected than to the same areas prior to mining. During active mining operations, there will be a short-term reduction in recharge of groundwater to the deeper aquifer systems in the immediate area of mining. This short- term reduction has no adverse impact upon water supply availability in the underlying aquifer systems and is largely offset by the increase referred to above. Underlying the CSAs, deep groundwater recharge will be increased over that experienced normally during the timeframe that the clays are settling. Once the clays are fully settled, deep recharge in these areas will be within the range that occurs naturally in the vicinity of the Property. Flooding 1. General Modeling submitted by IMC as part of the ERP application demonstrated that off-site flows after mining and reclamation would be in compliance with design requirements set forth in the 1995 SWFWMD Basis of Review adopted by reference by the Department. The AFW is specifically designed to assure that during its operation it had the capacity to carry anticipated flows from the drainage area north of the Property during high peak flow conditions without causing water to back up and flood that area or to cause flooding at downstream locations. After mining and reclamation, the reclaimed West Fork of Horse Creek will have sufficient capacity to handle anticipated storm events without causing flooding. The increased wetland acreage after reclamation will provide additional storage and attenuation of flood flows and, therefore, may actually reduce the possibility of flooding. It is asserted that IMC "did not evaluate the impact of long-duration flooding events." But, the ERP permitting criteria did not require long-duration flooding analysis of the natural systems as a condition for issuance of the permit. Even if IMC were obligated under the rules to specifically address long-duration flooding, the record shows there are no predicted adverse impacts from Manson Jenkins activities concerning long- duration flooding because the modeling shows any "event flooding" is likely to drain off before an adverse impact to a natural system would occur. 2. Recharge Ditches There is no substantial evidence to support permit opponents' claim that the flood analysis needs to be "redone" because of IMC's failure to account for the effects of seepage from the recharge ditches on the AFW. Dr. Garlanger predicted that the recharge ditches would result in an additional 3.26 cfs of flow in the AFW. Opponents' expert Mr. Zarbock testified that this additional increase was a reasonable calculation. Adding 3.2 cfs to the peak flow in the AFW predicted by the HEC-RAS model for the 100-year storm event results in a relatively small percent increase in the peak flow. This small increase in peak flow is an insignificant increase with no meaningful effect on the flood analysis and on actual water levels either upstream or downstream of the Property. Adding an additional 3.2 cfs of groundwater outflow to the West Fork of Horse Creek’s average annual flow of 5.5 cfs resulted in a 59 percent increase (not 99 percent as asserted by opponents) in the average annual flow, and is not expected to have a detrimental effect on the average flow in West Fork of Horse Creek, Horse Creek, Peace River, or Charlotte Harbor. 3. Integrity of Clay Settling Areas The weight of the evidence indicates that this ERP permit is not intended to address dam construction or to evaluate the sufficiency of dam design, both of which will be considered under other permitting processes. However, the record shows the proposed Manson Jenkins CSAs must be engineered dams designed, built, and operated to achieve full compliance with the stringent requirements of Rule 62-672, Florida Administrative Code, according to exacting standards concerning site investigation, soil testing, cross-section design work, stability analysis, and design safety factors. After construction, the dam will be inspected weekly. The Department does not require flood inundation studies for the type of dam proposed by IMC, although it is characterized by Mr. Partney as a significant hazard dam. These studies are only required by the Department for high-hazard dams, which the IMC dams are not. Additionally, Mr. Partney, Florida’s Dam Safety Engineer, advised that the Department has made recent changes that ensure that construction of the CSAs is improving. See Findings of Fact 244-247. Dr. Dunn admitted that "the probability of failure is low" for a CSA. IMC has been issued its Federal Clean Water Act NPDES Permit which authorizes IMC to conduct its operations, involving the use of water. The NPDES Permit also regulates the discharge of waters to the surface and ground. The NPDES permit has specific conditions to assure the safety of dams that IMC must comply with related to the construction and operation of the CSAs. Surface Water Storage and Conveyance Capabilities General Rule 40D-4.301(1)(c), Florida Administrative Code, requires the applicant to provide reasonable assurance that the project will not cause adverse impacts to existing surface water storage and conveyance capabilities. These issues are addressed in the prior section. However, additional issues are addressed below. 2. Depressional Storage Dr. Garlanger provided a reasonable explanation regarding whether an increase in depressional storage can be expected. Dr. Garlanger performed calculations based on the average thickness of phosphate matrix being mined. The removal of the phosphate rock from the matrix generally reduces the depth of the soil profile components by 1.7 feet. The overburden that is removed in order to access the phosphate matrix is "cast" back into the adjacent mine cuts and occupies a greater volume after it is removed for mining than it will prior to mining. In other words, the overburden "swells" after it is removed to expose the phosphate matrix. This "swelling" results in an increase in volume of the overburden somewhere between 10 percent and 15 percent. Thus, based on the measurements of the density of spoil piles performed by Dr. Garlanger, the overburden actually increases in thickness by about 3.3 feet, which would more than make up for the 1.7 feet reduction in thickness of the soil profile components resulting from the removal of the phosphate rock. Additionally, the sand and clay components of the matrix also increase in thickness after having been mined, processed at the beneficiation plant, and through the reclamation processes, which further increase the average thickness of the soil profile components. If there is an increase in the average thickness of the soil profile components, even though most of the increase is associated with the reclaimed clay areas, there cannot be an increase in depressional storage. 3. Reclaimed Land Forms and Reestablishing Hydrologic Regimes The storage and conveyance capabilities provided by the flow-through marsh and the stream segment that are proposed to replace the existing ditched segment will greatly enhance the surface water conveyance and storage capabilities on the Property. Specifically as to the AFW, IMC's engineers and consultants from Ardaman & Associates reasonably designed the AFW to adequately replace the conveyance and storage capabilities of the portion of the West Fork of Horse Creek that will be mined. Also, a Storm Water Management Plan, which is a required document by the Bureau, analyzed surface water discharges under both historic conditions and under post- reclamation conditions and determined sufficient storage and conveyance capabilities will exist during mining and post- reclamation. A primary purpose of the reclamation plan developed by IMC is to create a land use topography on the Property that will allow runoff to occur as it did under the pre-mining condition prior to the ditching that was completed decades ago. Even though land surface on average is higher due to the "swelling" of the materials used in reclamation, the reclamation is contoured so that there is no storage except for the storage that is purposefully left in the recreated wetlands. Party opponents claim that a review of other mine permit applications shows a hydrologic characteristic of "reduced runoff from storm events by approximately 15 percent of the pre-mining condition." However, Mr. Zarbock, in reviewing approved phosphate mine applications, did not see any such phosphate mine applications that showed a 15 percent (not higher than 12 percent) reduction in flow, nor could he identify any mine that experienced the percentage reduction in flow that he assumed in performing his calculations. Water Quality Impacts Surface Water Rule 40D-4.301(1)(e), Florida Administrative Code, requires reasonable assurance that the project will not adversely affect the quality of receiving waters such that enumerated water quality standards will be violated. The waters and associated wetlands of the West Fork of Horse Creek located on or downstream from the Property are Class III waters. Downstream from the Property, the West Fork meets Horse Creek and both Creeks continue as Class III waters until Horse Creek becomes Class I waters in DeSoto County. The Myakka River is Class III waters through Manatee County. (Approximately 4 acres of wetlands will be mined on the Property located in the Myakka River Basin, to be replaced with approximately 12 acres of wetlands. See Finding of Fact 77.) The Manatee River to the west of the Property, including the North and East Forks of the Manatee River, are Class I waters. See Rule 62-302.400(12)41, Florida Administrative Code (The Manatee River is a Class I river from "[f]rom Rye Ridge Road to the sources thereof ") The far northwestern portion of the Property is in the Manatee River Basin. (Approximately 17 acres of wetlands in this area are proposed for mining and will be replaced with approximately 51 acres of wetlands. See Findings of Fact 76 and 211.) These wetlands have a ditched connection between the these wetlands and other wetlands, which ultimately lead to the East Fork of the Manatee River. As a limnologist, Dr. Durbin agreed that these existing wetlands, even after reclamation, are part of the water source for the Manatee River watershed. Dr. Dunn stated that if the "[BMPs] operate as designed [he assumed], that there will not be water quality impacts" to the East Fork of the Manatee River during actual mining. Rather, he was concerned about (after mining and reclamation and before release) "potential water quality problems for those areas that contribute flow to the East Fork of the Manatee River," as Class I waters. Dr. Durbin reasonably explained that after mining and reclamation, the existing wetlands will be severed from the Manatee River because the agricultural ditching will be removed, which leads to the reasonable conclusion that the replaced wetlands will not have a surface water discharge into other wetlands which are ultimately tributaries to the East Fork of the Manatee River. Thus, the wetlands will not flow to surface waters that then enter Class I waters. Further, there are no expected measurable decreases in depth of flow to the Manatee and Myakka Rivers resulting from mining and reclamation activity on the Property, which might reasonably be expected to adversely impact the water quality of these rivers. There are no measurable impacts to any Outstanding Florida Waters (OFW)(no OFWs are located on the Property), including aquatic preserves, or to Class I or II waters, which are likely to result from this project. See Findings of Fact 193-195. The ditch and berm system around active mining and reclamation areas will preclude the direct release of waters impacted by mining to surface water bodies on the Property. The system is designed to isolate the unmined areas from surface water runoff that may be present in the mine area and to maintain water levels in undisturbed wetlands. See Findings of Fact 31-42. Waters collected in the ditch and berm system will be reused and recycled by IMC in the mining operations. Some portion of that water will be discharged through permitted discharge outfalls not located on the Property in accordance with IMC's currently valid Department NPDES Permit. Such discharges must comply with discharge water quality criteria set forth in the NPDES Permit. Permitted water discharges from these outfalls is necessary because IMC will need the ability to release water from the mine into nearby waters and streams. The activities on the Property are regulated pursuant to the Fort Green Mine NPDES Permit, and, in particular, outfalls 3 and 4 which discharge water into Horse Creek. (Outfalls number 1 and 2 discharge water into Payne Creek.) Over the past 5 years, in measuring the water quality of the water leaving the permitted outfalls, IMC is unaware of any violations of permit limits, including surface water quality standards at the Fort Green Mine site based on samples taken at the outfalls. In the event there is a concern regarding water quality at an outfall, a gate constructed at the outfall can be quickly closed to stop off-site flows. Water quality data from Payne Creek, where over two- thirds of the watershed has been mined and a good portion reclaimed, demonstrate that phosphate mining has not adversely impacted dissolved oxygen (DO) levels in the receiving stream, i.e., the concentrations are comparable to other streams. Payne Creek has had lower nitrogen concentrations in most years than other measured streams, such as Joshua Creek, which has had no mining. Water used to recharge the ditch and berm system and maintain groundwater levels will be of high quality and is not expected to cause or contribute to adverse water quality impacts should they reach area surface waters as a part of base flow. The predicted reductions in stream flow, either during active mining and reclamation or after reclamation is complete, are not expected to have an adverse impact on the water quality of surface waters flowing through the Property or at any point downstream. Freshwater flows have a major role in determining the salinity in an estuary. The small reduction in fresh water flow during high-flow conditions predicted during mining and after reclamation of the Property is not expected to cause adverse impacts to salinity levels in the Charlotte Harbor Estuary. The small predicted impact is of insufficient magnitude to be measurable and, therefore, to warrant a reasonable concern. During active mining and reclamation activities at the Property, off-site drainage entering the Property will be unaffected by mining operations. Augmented base flow will be of high quality and runoff from undisturbed areas that reach surface waters on the Property will be the same as prior to the time mining commenced. Evidence presented at the final hearing demonstrated that, once mining and reclamation activities have been completed and the West Fork of Horse Creek has been reclaimed, surface water bodies on the Property or downstream in the Horse Creek and Myakka River are expected to achieve all applicable Class III surface water quality criteria. The proposed mining and reclamation activities at the Property are not expected to cause or contribute to a violation of Class I standards in the Manatee River. Charlotte County's expert witness, Dr. Janicki, opined that the proposed mining and reclamation project will not cause a violation of any currently applicable numerical water quality standards. Water quality sampling at the Property indicates that DO levels lower than the Class III standards currently occur in the West Fork of Horse Creek and in wetland systems at the Property. This is not an uncommon occurrence in natural systems. The DO levels in reclaimed wetlands at the Property will essentially mimic conditions in naturally occurring wetlands, and it is not anticipated that DO levels in the reclaimed wetlands will be depressed any more than occurs in a natural system. With regard to the reclaimed West Fork of Horse Creek, the reclaimed stream will be at least equivalent to the current ditched segment with regard to DO levels, and it is likely that DO levels will be improved overall since the design of the system will provide for a meandering channel and for the placement of logs or other obstructions in the channel which should increase aeration and thus potentially elevate DO. Opponents' expert Dr. Dunn agreed the existing water quality in the West Fork of Horse Creek is not as good as it is in the main channel of Horse Creek. Water quality monitoring carried out by IMC on reclaimed areas demonstrates that water leaving the reclaimed areas and entering surface water bodies meets applicable water quality standards. IMC will be required to monitor the quality of water in the reclaimed wetlands areas on the Property and will not be authorized by the Department to connect the reclaimed areas to the surface water system unless monitoring data demonstrate that water quality criteria are met. Under IMC's ERP Application, prior to any reclaimed wetland being reconnected to the off-site surface waters, there is one full year of water quality sampling required in order to demonstrate that water quality standards are met before the wetland is connected to the natural system, which is an extra safeguard not required in non-mining ERP applications. Moreover, there is credible evidence in the record of IMC's historical and successful use of AFWs and their effect on water quality. A study done by the Department in 1994 stated that the water quality indicators in an operational AFW were better than those same indicators at a natural site that did not have alternate flow-way characteristics. The weight of the evidence indicated that the water quality and biological integrity of the AFW will be in full compliance with the permitting requirements and with the state water quality standards. The weight of the evidence in the record does not indicate that the mining and restoration of the West Fork of Horse Creek will result in violations of water quality standards, as the water quality leaving the site during mining and after reclamation will be similar to the water quality that currently exists on-site. There are several reasons why water quality will not be adversely impacted: (1) a substantial portion of the watershed for the West Fork of Horse Creek lies north of the Property, and the water coming from this area will still move through the Property into the preserve area and off- site; (2) IMC will use best management practice berms to keep any runoff from active mine areas or cleared areas from entering the wetlands and streams associated with the flow way over the reclaimed wetlands precluding degradation of the water quality from those areas; and (3) IMC will use clean water in the recharge ditch system which will be seeping into the surrounding wetlands and the stream that is essentially feeding the wetlands with clean water augmenting the flow downstream. Groundwater Groundwater quality monitoring in the vicinity of the phosphate mining operations has demonstrated that such operations will not adversely impact the quality of groundwater in the vertical aquifer adjacent to mining operations or in the deeper intermediate or Florida aquifer systems. Impacts to Wetlands and Other Surface Waters Functions Provided to Fish and Wildlife Pursuant to Rule 40D-4.301(1)(d), Florida Administrative Code, an ERP applicant must provide reasonable assurance that its proposed activities will not adversely affect the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface water, and other water-related resources of SWFWMD. Prior to mining, pedestrian-type surveys of the Property will be conducted of the Property to determine the listed wildlife in order to avoid impacting particular species. Some species, including gopher tortoises, would be relocated to an unmined area. The weight of the evidence shows that IMC will minimize impacts to fish and wildlife through (a) a Conservation Easement, which preserves those areas with an abundance of habitat diversity, (b) through best management practice berms, which protect water quality of adjacent systems, and (c) through the AFW, which will allow continuous movement of fish and wildlife from areas north and south of the Property as well as creation of additional habitats. IMC's efforts to avoid and minimize the potential for impacts to fish and wildlife during mining and reclamation satisfy permitting rule requirements. Fish and wildlife functions in areas to be mined or disturbed at the Manson Jenkins Project will be temporarily impacted. The areas to be impacted typically are of lower ecological value while IMC has agreed to preserve a substantial amount of the higher quality wetlands on the Property together with, in some cases, important adjacent upland habitats. The impacts that do occur will be mitigated by the replacement of the impacted systems by more and higher quality systems than existed prior to mining. This includes the enhancement of the project with the wildlife corridor through the middle of the Property and improvements to the stream system. The Conservation Easement can be expected to protect the "habitat mosaic of the corridor." (The Conservation Easement on the Property includes approximately 521 acres.) Credible evidence also shows that IMC will satisfy permitting rule requirements after mining. Under the reclamation plan there will be diverse, connected habitats instead of the existing pre-mining single ditch and, primarily, agricultural land cover. There is also empirical data in the record concerning reclamation indicating that reclaimed areas were equal to or better for fish and invertebrate use when compared to natural systems, and similar results are also expected for IMC's reclamation. Both state and federal agencies approved the work plan of IMC used to survey wildlife at the Property. IMC's wildlife surveys are reasonable, which enabled the preparation of a comprehensive wildlife management plan. Avoidance and Mitigation Avoidance Phosphate ore underlies the land surface beneath waters and wetlands. Thus, it is not possible to avoid disturbance of these systems and still mine the valuable resource. See generally Section 378.201, Florida Statutes. IMC and the Department evaluated the quality of the waters and wetlands proposed for disturbance at the Property as part of the permit application process. Most of the wetlands systems deemed to be of higher quality through the application of the WRAP (Wetland Rapid Assessment Procedure) analysis are being preserved. (The WRAP Procedure is an accepted procedure to evaluate wetland functions and assign a value based on several criteria. The first WRAP was developed by South Florida Water Management District. WRAP scores generally are numerical values that can be assigned on a per-unit-acre basis to wetlands that are an index of their functional value.) For all areas that are not avoided, IMC is required to take steps as part of its land reclamation process to mitigate the unavoidable impacts associated with mining the Property. It was suggested that IMC did not avoid impacts due to IMC's determination to mine approximately 17 acres of wetlands in the Manatee River Basin. This suggestion is not persuasive because over 316 acres of wetlands will be left unmined on the entire Property, which equates to approximately 45 percent of the wetlands on the Property, including over 70 percent of the forested wetlands on the Property. The weight of the evidence shows that IMC was prudent in balancing between avoidance of appropriate environmentally significant areas, such as some wetland systems, and the operational needs to reach the phosphate matrix that is underlying the Property. Also, approximately 3.7 tons of phosphate rock reserves underlie the preserved areas with a projected loss of total income of over $55 million. 2. Mitigation In the ERP Program, the term "mitigation ratio" refers to the wetlands or other surface waters and areas the applicant is proposing to, for example, create, restore, enhance, donate in kind, or preserve, versus the impacted wetlands. For example, a mitigation ratio of two to one means the applicant is proposing to mitigate or recreate two acres of wetlands for every acre that is being disturbed or impacted. Section 373.414(6)(b), Florida Statutes, provides that wetlands reclamation activities for, in part, phosphate mining undertaken "pursuant to chapter 378 shall be considered appropriate mitigation for [Part IV of Chapter 373] if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities." See also Section 3.3.1.6., Basis of Review. Mining, reclamation, and revegetation on the Property is expected to be completed within 15 years, including reclamation of the CSAs. The conceptual reclamation plan, which includes the Property, was approved by Department final agency action on March 20, 2001, pursuant to Chapter 378, Part III, Florida Statutes, and Chapter 62C-16, Florida Administrative Code. However, this approval does not mean that IMC is not required to prove reasonable assurances regarding its mitigation plan, which is discussed herein. Rule 62C-16.0051(4), Florida Administrative Code, requires the restoration of impacted wetlands on at least an acre-for-acre and type-for-type basis. Compliance with this provision is mandatory for phosphate mines. IMC's mitigation plan satisfies this acre-for-acre, type-for-type mitigation requirement. In addition to satisfying the mitigation guidelines contained in the permitting requirements, other factors such as (a) the low quality of the wetlands that are being disturbed due to historical ditching and draining to accommodate historical agricultural land uses, (b) the significant on-site preservation effort, and (c) the Integrated Habitat Network (IHN) that provides a regional benefit to wildlife and their habitats and to water quality and which represents mitigation beyond applicable requirements, all taken together demonstrate the appropriateness of IMC's mitigation plan. The total cost to IMC for wetlands mitigation at the Property is approximately $3.6 million. The number of acres of wetlands affected by the Manson Jenkins activities in the Myakka, Manatee, and Peace River Basins total approximately 361 acres. See Findings of Fact 76-77 and 95-96. IMC will reclaim 538 acres of wetlands as mitigation for the 361 acres of generally low quality wetlands that will be disturbed at the Property. The reclamation area wetlands will be designed to provide a diversity of habitat and function that does not presently exist at the Property. IMC's reclamation plan adequately mitigates for any impacts by creating approximately 538 total wetland acres distributed among these three basins. Additionally, those wetlands that are created will have associated upland buffers, which the existing wetlands do not, and these newly created buffers will provide additional, enhanced wildlife and water quality benefits at each created wetland. In the reclaimed landscape, a forested buffer is expected which will provide some wildlife and water quality benefits to each wetland. The created wetlands will be hydrated by the groundwater outflow from the recharge system. IMC has had experience in the reclamation of wetland systems in Florida. Since 1975, IMC and its predecessor company, Agrico Chemical Company, have reclaimed approximately 6,850 acres of wetlands. Biologists and reclamation experts Dr. Durbin and Dr. Clewell presented persuasive evidence that IMC is capable of successfully completing the proposed reclamation activity and that the ultimately reclaimed wetlands systems will restore long-term ecological value to the Property and adjacent areas. Nevertheless, restoration and reclamation of wetlands is not a perfect science; mistakes have been made, e.g., Dog Leg Branch, and are documented in this record. To his credit, Dr. Clewell agreed. However, several studies, including Charlotte Exhibits 29 and 31 and others, do not persuasively indicate that IMC's proposed reclamation and restoration proposal for the Manson Jenkins Project will not be successful or that IMC does not have the wherewithal and overall professional expertise to accomplish the desired result. The weight of the evidence demonstrates that IMC can effectively carry out the proposed reclamation plan as set forth in the ERP and that, with regard to waters and wetlands impacted by mining operations at the Property, it will effectively mitigate the unavoidable ecological losses associated with mining those areas. The ERP contains detailed success criteria for the required wetlands reclamation. Extensive monitoring is required and Department personnel carry out regular inspections of reclamation sites. Only after reclamation success criteria are achieved, including attainment of necessary water quality criteria, will the reclaimed wetlands be approved by the Department and reconnected to the natural system. Stated differently, the project will only be deemed to be officially successful after release by the Department. This does not mean, however, that reclaimed wetlands, including wetlands reclaimed by IMC, have not been or are not functional before release. This includes the Big Marsh. (It appears that the existence of nuisance species currently precludes the release of Big Marsh. Dr. Clewell advised that Big Marsh is very close to meeting all criteria for release right now. See Findings of Fact 231 and 265.) 3. Acre-for-Acre/Type-for-Type As noted above, Chapter 378, Florida Statutes, contains an acre-for-acre, type-for-type mitigation strategy for phosphate mining reclamation, and IMC's reclamation plan exceeds the one-to-one mitigation ratio contained in the mine reclamation rules of Chapter 378, Florida Statutes. Substantial evidence in the record exists to support the claim that the ecological value of the wetlands proposed to be reclaimed will be higher than the current ecological value of the wetlands that will be disturbed and are currently existing at the Property. There are two types of reclamation: herbaceous and forested reclamation. IMC has reclamation experience, and based on IMC's experts' evaluation of many reclaimed sites, the average WRAP value assigned to herbaceous systems is .64 and for forested systems is .73. The wetlands proposed to be disturbed at the Property have an average pre-mining score for herbaceous systems of .54 and for forested systems of .51. Once reclamation occurs, the reclaimed herbaceous systems at the Property will score 1.19 times the existing the value, or an approximate 20 percent improvement from the existing wetland systems at the Property. Significant ecological improvement is also evidenced for the Property's reclaimed forested wetlands that will have an improved value of approximately 43 percent. The evidence shows IMC used the WRAP procedure to value wetlands and the functions wetlands provide to fish and wildlife as well as the accompanying water quality and quantity issues at the Property. WRAP was used for the Manson Jenkins Project because it was required by similar permitting under the Clean Water Act for the United States Army Corps of Engineers. The Department participated in the evaluation of the methodology used, including auditing the results in the field and on paper. But the Department did not accept or reject the methodology per se. On the other hand, the "King Formula" used by permit opponents' expert Dr. Dunn to critique IMC's reclamation proposal is a "completely different approach" from the regulatory requirement of acre-for-acre, type-for-type that is applicable to this ERP application. Further, the "King Formula" has not been accepted by the Department as an appropriate methodology for ERP evaluations, nor has Dr. Dunn ever before relied on the "King Formula" to support any ERP permit that he assisted in obtaining. There is credible evidence that even if the permit opponents' mitigation calculation (or "King's Formula") is applied, IMC would need 1.15 to 1 replacement for herbaceous systems and 1.27 to 1 replacement for forested systems. The record reflects IMC is required under the proposed ERP permit to have 1.38 to 1 replacement for herbaceous systems and 2.28 to 1 replacement for forested systems. Thus, IMC is committed to a more functionally equivalent mitigation objective than is calculated using the opponents' method for evaluating mitigation ratios. 4. Restoration of the West Fork of Horse Creek and Headwater Marsh The record shows that IMC has a successful history of restoration generally and, specifically, reclaiming headwater marshes as part of their overall mitigation experience. IMC's reclamation efforts have been recognized with both state and federal awards. Two examples of reclamation projects which appear to be functionally successful, although not yet released by the Department, are Big Marsh, which is a 229-acre headwater marsh flowing into Horse Creek, and the approximately 200-acre, P-20 Marsh, which is a headwater of Horse Creek, and next to Big Marsh. Both Big Marsh and P-20 Marsh show comparable features, placement, and functions when compared to their pre-mining condition and their current post-reclamation condition. The restoration efforts at the P-20 Marsh are relevant because it is similar to the Property in that it too was cleared of vegetation and ditched. Testimony shows that the benthic macroinvertebrate organisms, which are important to the successful functioning of a headwater marsh, are reasonably expected to be recolonized in the reclaimed system at the Property in a variety of permit- required habitats, which habitats are ecologically better than the existing habitat conditions on the Property. Further, the benthic invertebrate populations existing in the area north of the Property will be connected to the reclaimed Property enabling recolonization of the reclaimed marsh. IMC presented credible evidence that the excavated portions of the West Fork of Horse Creek will have ongoing, functional value and the reclaimed headwater marsh and stream system will at least maintain, but likely improve the water quality and function of the excavated portions of the West Fork of Horse Creek. IMC's reclamation plan is to recreate West Fork of Horse Creek to more resemble a natural Florida stream with a meandering flow-away with trees that shade the stream and provide improved habitats for fish and wildlife. Moreover, the existing West Fork of Horse Creek, though properly identified as a "first order stream," is a very small system with intermittent flow. The stream ordering system is a method of classifying the size of streams in terms of watershed basins and sub-basins. A "first order stream" is the smallest of the set of streams making up an entire drainage basin and is more a landscape or hydrologic indicator and does not necessarily indicate a stream's ecological value. The West Fork of Horse Creek is not a regionally- significant stream because the existing conditions at the West Fork of Horse Creek are degraded as a result of agricultural ditching, the ecologically poor uplands surrounding the area, and the overall presence of agricultural land. More specifically, the area proposed for mining in the West Fork of Horse Creek is of "very low ecological value, relative to what another first-order or headwater system might be." 5. Temporal Lag It has been asserted that there will be some temporal lag of ecological function at the Property because certain reclaimed systems will take some time to become mature. (Temporal lag is the phrase given to a lag time between the impact to a wetland system and the replacement of the functions once offered by the wetland system. Chapter 62C, Florida Administrative Code, does not require consideration of temporal lag in determining reclamation requirements. The weight of the evidence presented, however, shows that more acres of wetlands will be reclaimed than are being disturbed and the reclaimed systems will be of higher ecological value than the stressed systems proposed for mining. Furthermore, the evidence at hearing demonstrated that the total amount of wetland acreage at the Property is not significantly reduced. Also, fairly early in the mining and reclamation sequence, the total number of wetland acres on the Property are reasonably expected to exceed pre-mining conditions. Even using the worst-case scenario as proposed by opponents to the permit application with longer temporal lag (6 years instead of 3 years for herbaceous systems and 40 years instead of 20 years for forested systems), the resulting calculated required herbaceous system ratio of 1.21 to 1 is still less than the permit's requirement of 1.38 to 1. Similarly, the forested system's worst-case calculated ratio using permit opponents' unwarranted temporal lag assumptions is 1.74 to 1, which is still less than the 2.28 to 1 permit requirement. Further, the evidence shows that doubling the time between the removal of the systems and mitigation, from 4 to 8 years, results in a herbaceous ratio of 1.39 to 1 and a forested ratio of 2.04 to 1, which indicates that even if the time between impacts and mitigation were doubled, IMC's reclamation plan would still be adequately mitigating for any impacts. 6. Iron and Manganese IMC's expert explained the scientific research performed on behalf of the Florida Institute of Phosphate Research involving 11 phosphate mines and more than 40 exploratory wells and borings to evaluate the water quality of mined lands. There were no exceedances of standards with the exception of iron and manganese, which were expected to exceed standards because Florida has high background concentrations of iron manganese oxide in the soil. There is no reason to believe Manson Jenkins’ activities will cause adverse impacts to wetlands due to "groundwater perturbations." 7. "Flocculation" (Iron Bacteria) There is credible evidence that iron bacteria is a naturally-occurring substance and is common in Florida soils. Dr. Durbin testified that iron bacteria is not a reasonable concern for the Manson Jenkins Project. A benefit provided by the proposed reclaimed streams, wetlands, and lakes is that these are natural treatment systems that, in the case of iron bacteria, will remove iron from the water and will not cause any off-site concerns. Secondary Impacts 1. General Rule 40D-4.301(1)(f), Florida Administrative Code, requires an applicant to provide reasonable assurance that the project will not cause adverse secondary impacts to the water resources. IMC presented credible evidence that the proposed mining and reclamation activities at the Project will not cause any adverse secondary impacts to the water resources. 2. Stability of CSA's and Associated Dams Mr. Partney, the Department's dam safety engineer, has been involved with the state of Florida's current dam safety program since its inception approximately six years ago, and has been in charge of the dam safety program since its inception. He testified that no inundation studies are necessary for the clay-settling ponds and their associated dams in this project because these are not high hazard dams. The record does not support permit opponents' statement that the proposed Manson Jenkins CSAs are considered high hazard dams. As a result, inundation studies are not required to be performed to determine the risk and consequences of a discharge. The Department's dam safety program rules are contained in Rule 62-672, Florida Administrative Code, and regulate the construction of the dams surrounding CSAs by specifically requiring soil testing, cross-section design work, and stability analysis, among other design safety factors that incorporate engineering practices employed by the United States Army Corps of Engineers under their dam construction rules. The dam failures that have occurred in the past were dams constructed prior to the implementation of this rule except for one, IMC's Hopewell Mine dam. This dam failure was investigated by a "blue ribbon panel," including Mr. Partney. The cause of the failure was determined, and the problem with that failure corrected in the current version of the rule. The weight of the evidence also supports IMC's commitment to dam safety as evidenced by IMC's response to this dam failure. IMC voluntarily agreed to remove all pre-rule, non-engineered dams from operations, and within one and a-half years, IMC had categorized, inventoried, and taken out of service all non-engineered structures. Also, IMC has a Site Preparedness Plan, otherwise called an emergency plan, that prescribes actions should the signs of a potential failure be detected. Weekly inspections are required and documented. The testimony of permit opponents' expert Dr. Dunn supports the fact that the probability of a failure of a CSA and its associated dam is low. Mr. Partney shares this view, i.e., CSAs are "extremely safe" and there is about a "one in two million chance or so of one of them failing." 3. Authority's Withdrawals from the Peace River The weight of the evidence indicates that the Manson Jenkins Project will not adversely affect the Authority's permitted limits on the withdrawal of water from the Peace River because the activities at the Property will not physically affect the flow of the Peace River, upstream of its confluence with Horse Creek at the Arcadia gauge station, which is the station that determines the Authority's permitted allowance to withdraw water. IMC's expert in environmental hydrodynamics and estuarine physics, credibly testified that the slight potential reduction in freshwater flow due to Manson Jenkins’ activities has little or no potential to negatively impact salinity concerns in downstream water bodies. 4. Ditch and Berm Protection of Wetlands There was credible testimony that the ditch and berm system is a best management practice to ensure the protection of the hydrologic systems adjoining the Property. See Findings of Fact 31-42. IMC's expert, Dr. Garlanger, is one of the co-authors of the criteria used by IMC to engineer these BMPs ditch and berm systems, and the weight of the evidence indicates that the proposed ditch and berm system will protect the water quality of the surrounding wetlands systems as well as maintain the hydrologic regime of the off-site systems. Minimum Flows and Levels Pursuant to Rule 40D-4.301(1)(g), Florida Administrative Code, an ERP applicant must provide reasonable assurance that its proposed activities will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes. This subsection references minimum flows and levels. The Department has not established minimum flows and levels. The water management districts establish minimum levels for aquifers and surface waters and minimum flows for surface water courses pursuant to Section 373.042, Florida Statutes. The Department is "very involved with the districts in developing those minimum flows and levels as part of [the Department's] supervisory authority." In the case of ERP applications filed with the Department for facilities located within SWFWMD's jurisdiction, it is the minimum flows and levels established by SWFWMD that are protected from adverse impact pursuant to Subsection 40D-4.301(1)(g). However, the weight of the evidence, especially the testimony of Department witnesses, indicates that minimum flow and levels adopted pursuant to Section 373.042, Florida Statutes, must be established by rule, and not a permit condition that only applies to one permittee, such as the Authority. SWFWMD has not established, by rule, a minimum flow or level pursuant to Section 373.042, Florida Statutes, for any water body impacted or potentially impacted by the proposed mining or reclamation at the Property, including the Peace River. The proposed mining and reclamation activity, therefore, will not adversely impact the maintenance of any minimum flows and levels established by law. Works of the District Rule 40D-4.301(1)(h), Florida Administrative Code, provides that reasonable assurance be given that a project will not cause adverse impacts to a work of the district, here SWFWMD, established pursuant to Section 373.086, Florida Statues. The weight of the evidence indicates there will be no adverse impact to any surface water body on or downstream of the Property either from a water quality standpoint or from a water quantity standpoint. Accordingly, there will be no adverse impacts to a "work of the district" established pursuant to Section 373.086, Florida Statutes. See also Finding of Fact 72. This proceeding is to determine IMC's entitlement to an ERP, not a "work of the district" permit. It has been the practice of the Department, that if an ERP is issued by the Department, the permittee does not need to also obtain a separate "work of the district" permit. However, SWFWMD's "work of the district" rule has not been adopted by the Department. Effective Performance and Function Engineering and Scientific Capability The mining and reclamation activities proposed for the Property are capable, based upon generally acceptable scientific principals, of being effectively performed and functioning as proposed, including the AFW, ditch and berm systems, the reclaimed wetland areas, and the reclaimed West Fork of Horse Creek Stream Channel. See Rule 40D-4.301(1)(i), Florida Administrative Code. Financial, Legal and Administrative Capability IMC has all necessary legal property rights to mine and reclaim the Property as lessee under a mining lease issued by the Property owners. IMC has demonstrated by the weight of the evidence that it is an entity with financial, legal and administrative capability of ensuring that the activities proposed at the Property will be undertaken in accordance with the terms and conditions of the ultimately issued ERP, including the additional agreed permit condition referenced below. See Rule 40D-4.301(1)(j), Florida Administrative Code. IMC is a large business with assets in excess of $1.6 billion. IMC also presented credible evidence that it has provided Manatee County with a reclamation bond in the amount of $17 million to cover all reclamation liability existing in Manatee County at that time, including the upcoming year that IMC plans to mine. IMC has agreed to provide Manatee County with a general surety bond of $1 million and an environmental risk insurance policy in the amount of $10 million. At hearing, the Department requested and IMC agreed to have the following permit condition added to the ERP upon issuance: At least thirty (30) days prior to the initiation of mining operations, the final version of the financial responsibility mechanism required by Section 3.3.7.6 of the Basis of Review shall be provided to and approved by the Department as required by Rule 40D-4.301(1)(j), Florida Administrative Code (October 1995) and Rule 62-330.200(3), Florida Administrative Code. After reclamation of the Property, IMC has in place a Conservation Easement that places restrictions, such as requiring all regulatory approvals to be obtained, and imposes required management practices in the event that agricultural operations are initiated by a third party. Credible evidence in the record supports IMC's historical efforts in reclaiming wetland systems such as Big Marsh despite suggestions that IMC has not demonstrated the capability to restore marsh systems because, e.g., Big Marsh has not been "released" by the Department. Although this system has not been "released," this system is ecologically valuable. See Findings of Fact 225 and 231. Public Interest Test Several statutory and rule criteria must be considered and balanced to determine whether IMC's proposed activity's on the Property are not contrary to the public interest. See Section 373.414(1), Florida Statutes; Rule 40D- 4.302(1)(a)1-5, and 7, Florida Administrative Code. Public Health Safety or Welfare or the Property of Others As noted elsewhere in this Recommended Order, the proposed project will not cause adverse water quality, water quantity or flooding on the Property or at any point off the Property. The mining and reclamation activities will be carried out within private property subject to security and control by IMC. The CSAs proposed to be constructed at the Property will be designed and constructed in accordance with strict regulatory requirements. A separate Department permit must be applied for and issued before construction of a CSA may commence. The weight of the evidence indicates that the chance of failure of any dam designed and constructed in accordance with current rule provisions is remote, e.g., one in two million according to Mr. Partney. See Findings of Fact 50-57, 161-165, and 244-247. 2. Conservation of Fish and Wildlife The proposed activity at the Property will not cause adverse impacts to natural systems that are not directly subject to disturbance. The ditch and berm system will protect adjacent areas from direct surface water impacts and will maintain groundwater conditions so that preserved wetland systems will continue to function during mining activities. The mining activities will be conducted in a sequence designed to minimize impacts on mobile wildlife species. By mining in the area farthest away from the preserved wetlands in the south and moving in that direction, these wildlife will be able to relocate into the preserved areas. During active mining operations, the mining areas provide value to wildlife. Many bird species use CSAs and active mine cuts during mine activities. Other animals, including raccoons, deer, possums, armadillos, snakes, and frogs use the mine areas while mining is being conducted. IMC has surveyed the Property to identify plant and animal species present at the site and developed a wildlife management plan which was included as part of the application with the ERP. This plan addresses potentially listed threatened or endangered species that could be found on the Property now or in the future and prescribes measures for protecting those listed species. The wildlife management plan comports with good scientific practice. The proposed reclamation will enhance conservation of fish and wildlife values over that currently present at the Property. Currently the site contains several small wetland systems spread out over the site connected by ditches. These wetlands are generally surrounded by pasture. The proposed reclamation plan will consolidate the wetlands into a larger contiguous mass along the West Fork of Horse Creek and will provide for an adjacent upland corridor. The upland corridor will provide additional habitats for species that may use it as a transitional zone between a wetland and an upland. IMC's voluntary establishment of a Conservation Easement over the preserved wetlands in the south portion of the Property and the reclaimed wetland system within and adjacent to the West Fork of Horse Creek in the north provide reasonable assurance that the fish and wildlife values inherent in these areas will be protected. (The Conservation Easement covers approximately 521 acres of wetlands on-site.) In addition, this system upon completion will act as a wildlife corridor of approximately 2.5 miles in length along the West Fork of Horse Creek and will connect to a larger network of habitat corridors known as the IHN. See Finding of Fact 216. IHN is a regional conceptual plan developed by the Department in 1992 for the entire Southern Phosphate District of Florida (1.3 million acres in Polk, Hardee, Hillsborough, Manatee, and DeSoto Counties) and is intended to link existing wildlife habitats, thereby allowing wildlife populations the ability to travel throughout reclaimed areas and publicly owned lands. 3. Navigation, Flow or Harmful Erosion or Shoaling The West Fork of Horse Creek on the Property is not a navigable waterway. The AFW will be vegetated before it is put into operation. It is specifically designed to handle high flow stream events, including the 100-year flood event, and will not erode or cause downstream erosion. Any sharp bends in the AFW way will be stabilized prior to use. The reclaimed West Fork of Horse Creek will be reclaimed as a natural system and will be able to manage high flows without experiencing erosion in the reclaimed stream channel or causing erosion downstream. 4. Fishing, Recreational Values or Marine Productivity The Property is privately owned and does not support public recreation or fishing activities. Following completion of mining reclamation activities, fish and wildlife values in the reclaimed wetlands and waters will be enhanced. 5. Temporary or Permanent Nature Phosphate mining, by its very nature, strips and deprives the land of existing resources, and its effects cannot be underestimated. Dr. Dunn characterizes phosphate mining as destroying the land. Nevertheless, phosphate mining is considered a temporary disturbance of the land, see Section 378.201, Florida Statutes, when compared to other types of activities. Unlike other types of activities, such as commercial or residential development, mining is completed within a finite period of time, and land reclamation follows thereafter resulting in the return of the land to other valuable land forms. 6. Current Conditions and Relative Value of Functions Performed by Affected Areas The proposed activity on the Property will not have an adverse effect on the condition and relative value of functions currently being performed at the Property in areas that will not be disturbed by mining. The areas to be disturbed by mining reflect man-induced changes over the years and provide relatively limited ecological value on the whole. Cumulative Impacts General The Department's method for evaluating the potential impacts from individual ERPs satisfies regulatory consideration of cumulative impacts of a project because so long as phosphate mines mitigate in the same drainage basin as the impacts of the proposed activity and meet the statutory and rule requirements, there will be no cumulative impacts. See Section 373.414(8)(b), Florida Statutes. The Department's evaluation includes the conceptual reclamation plan, which is mandated by Chapter 378, Florida Statutes, that describes the complete mining plan and activities for a site as well as the site's reclamation plans and the Integrated Habitat Network plan. Further, the Department's policy of analyzing similar projects (in the case of IMC's permit application that means other phosphate mines) is reasonable because phosphate mining is a temporary activity that reclaims the land to an enhanced natural system. Other types of development, such as residential and industrial, are not temporary in nature. Additionally, the Manson Jenkins Project received regional review and approval as part of IMC's Development of Regional Impact process from the Tampa Bay Regional Planning Council, which distributed information concerning the Manson Jenkins Project to the Central Florida Regional Planning Council and Manatee County. The weight of the evidence indicates that there will be no adverse water quality impacts on undisturbed areas at the Property or at any downstream location. There are no adverse water quantity impacts on or off the Property. Implementation of the reclamation plan approved by the Department pursuant to Chapter 378, Florida Statutes, and the mitigation which will be provided, as proven in this proceeding, will maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities and thus constitute appropriate mitigation. Such mitigation will occur on the Property and will be in the same drainage basins where the activities are proposed. 2. IMC's Cumulative Impact Calculations Although the Department does not require the type of cumulative impact analysis permit opponents suggest is needed, Dr. Garlanger testified that IMC performed an analysis on the Horse Creek Watershed Basin involving the existing Ft. Green and Four Corners Mines and the future Ona Mine. IMC assessed the impact of past, current, and future mining activities in the Peace River Basin on the flow in the Peace River Basin and on Horse Creek on a cumulative basis. The predictive cumulative impact assessment modeling performed by Dr. Garlanger analyzed the future long-term potential impacts on stream flow by determining the capture during previous mining activities as a baseline period and the resulting impact from the reclamation activities for that baseline. This was then compared with the potential decreases in runoff due to the capture in the areas that are planned to be mined and reclaimed in the future. The cumulative impact analysis performed by IMC made a predictive assessment through the year 2020, which includes mining at the Property as well as mining proposed for three new mines (Ona Mine, Pine Level Mine, and Farmland-Hydro Hardee County Mine) that are in the Horse Creek Basin and existing mines that would be mining at times up to the year 2020. In order to ensure a worst-case prediction, Dr. Garlanger in his analysis assumed that all the direct surface runoff from all of the mining areas would be captured within the mine recirculation systems and consumed in the process and not available to contribute to stream flow in the area. The analysis then assumed that to the extent an area was captured, it would reduce stream flow by that amount in the areas that normally would have flowed to the natural surface water systems. A cumulative impact analysis performed by IMC concluded that for approximately 70 to 80 percent of the time there is essentially no impact on the flow in Horse Creek. Further, reduction in flow during high-flow periods, which is approximately 10 percent of the time, would reduce the flow depth from 7.46 feet to approximately 7.18 feet or less than .3 of a foot and for one percent of the time the reduction in the flow would be from 12.8 to 12.6 feet. These are the predicted impacts if all the potential capture for Horse Creek occurred. The changes in the depths of these waters, during high-flow periods, will likely have a positive impact on decreasing the amount of flooding during a high-flow period. During other times there is no adverse impact from decreasing water by just a few inches out of several feet of water. The same type of cumulative analysis was performed for the entire Peace River Basin. The areas mined and the areas reclaimed were determined using the same maximum potential capture and decreased runoff due to reclamation. Calculations were performed as to the potential decreased stream flow in the Peace River above Arcadia and at Charlotte Harbor due to past, current, and future mining activities. Similar to the Horse Creek Basin analysis, Dr. Garlanger used the maximum potential capture and maximum decrease in the stream flow resulting from reclamation and calculated the maximum expected decrease in stream flow in the Peace River Basin above Arcadia and at Charlotte Harbor for both the baseline condition and the future mining period through the year 2020. This analysis determined that for approximately 80 percent of the time there will be no impact on the Peace River. The only impact is a small increase in flows during high-flow periods at the Arcadia station. Similarly, at the point where the Peace River empties into Charlotte Harbor, the differences in stream flow are practically immeasurable and, if anything, there is predicted a slight increase in flow. The flow will increase slightly because the average area that was captured during the baseline period decreases over time, meaning there is less area for rainfall capture within mining recirculation systems. Though the cumulative impact analysis performed by IMC does show a slight reduction in flow in the Horse Creek, the impact will be a decrease in the stream flow depth of less than 3 or 4 inches in water that is already 7.5 feet and 12.8 feet deep, respectively, which few inches will not cause any adverse impact. Further, the analysis showed that for the same rainfall the overall flow in the Peace River at Arcadia and at Charlotte Harbor through the period 2020 will actually be greater than during the past 19-year period. Furthermore, phosphate mining operations do pump water from the Floridan aquifer system to use in their operations. Deep groundwater pumping can contribute to reduced flow in the Peace River, but phosphate mine operators have substantially reduced their withdrawal of deep well groundwater over the last decade, and it is not anticipated that any substantial increase in use will occur in the future. IMC's withdrawals of groundwater for mining activities conducted at the company's mines, including the Property, have been authorized by the issuance of Water Use Permit No. 20114000 by SWFWMD. 3. Flow Impacts There is significant testimony concerning an analysis of the impacts of phosphate mining and reclamation on a watershed. IMC's expert Peter Schreuder performed an analysis involving the Peace River, Alafia, and Withlacoochee River Basins. Phosphate mining activities take place in the Peace River and Alafia River Basins and no phosphate mining activities taken place in the Withlacoochee River Basin. Each of these watersheds has a gauging station (a place where flows are electronically measured on a continual basis going out of a watershed) maintained by the United States Geological Survey. The analysis performed by IMC's expert compared the pattern of flow in watersheds where no phosphate mining was taking place with flow patterns in watersheds where phosphate mining was occurring. IMC's expert gathered data from the farthest downstream gauging station at each of these three watersheds; the data dated back to nearly 1935. This data provided actual measured flow data, with rainfall as the driving variable. The purpose of the analysis was to determine if phosphate mining was having an influence on flow. It is alleged that phosphate mining reduces flow. If the allegation is correct, the trend would be downward because less flow in the river would be expected. However, the weight of the evidence showed that under normal flow conditions, mined basins have more flow than unmined basins and in storm events the mined basins moderate the runoff to some minor degree by attenuating runoff and allowing for a slower and later release as beneficial, normal, base flow instead of flood flows. 4. Non-Mining Impacts There is convincing evidence in the record that other types of developments expected in the Peace River Basin, which include commercial and residential development as well as agricultural development, do not have the potential to capture surface runoff to the extent of mining activities. Additionally, residential and commercial development, because they result in lower evaporation due to the abundant impervious areas, result in an increased runoff in the basin. Thus, if these types of developments were included in the impact analysis, there would be an additional increase in runoff. G. Specific Conditions The draft ERP sets forth numerous general and specific conditions. Petitioners and Intervenors question the sufficiency of several specific conditions. In particular, Specific Condition 4.c. requires IMC to collect and report flow data from the AFW, but does not identify a reference stream or indicate what the Department is do with the data and how the data is to be evaluated. Mr. Partney convincingly suggested that these issues should be included in Specific Condition 4.c. On this record, it is difficult to conclusively determine which stream should be used as a reference stream. Pursuant to its special expertise, the Department should consider adding supplemental language to clarify these issues. See generally Reedy Creek Improvement District v. State, Department of Environmental Regulation, 486 So. 2d 642 (Fla. 1st DCA 1986). Specific Condition 12.b.i. requires that "[t]he created replacement stream for the West Fork of Horse Creek shall have a similar hydroperiod to the upper reaches of the preserved area of Horse Creek." Mr. Partney suggested that while "there may be some impacts going on," "they're not as significant in terms of the ratio of the impact to the ratio of the project area at that point. There would be--certain to be significant area of watershed that was not experiencing impacts. And a substantial portion of the Horse Creek in this area is preserved. So there is some assurance at that point that there will be sufficient natural conditions to give [the Department] the data [the Department] needs." Nevertheless, the monitoring of flow patterns is critical to the success of this project. In this light, the Department should endeavor to assure itself that the portion of the Horse Creek to be used for comparison is suitable for the purposes reflected in Specific Condition 12.b.i.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: Petitioners and Intervenors have standing to challenge the issuance of ERP No. FL 0142476-003; IMC provided reasonable assurance that it has the ability to comply with the conditions of draft ERP No. FL 0142476-003; IMC has complied with all conditions for final issuance of draft ERP No. FL 0142476-003; ERP No. FL 0142476-003 be issued with the following additional permit condition: At least thirty (30) days prior to the initiation of mining operations, the final version of the financial responsibility mechanism required by Section 3.3.7.6 of the Basis of Review shall be provided to and approved by the Department as required by Rule 40D-4.301(l)(j), Florida Administrative Code (October 1995), and Rule 62-330.200(3), Florida Administrative Code. DONE AND ENTERED this 8th day of March, 2002, 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 8th day of March, 2002. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Aliki Moncrief, Esquire Earthjustice Legal Defense Fund Post Office Box 1329 Tallahassee, Florida 32303 Edward P. de la Parte, Jr., Esquire Vivian Arenas, Esquire De la Parte & Gilbert, P.A. Post Office Box 2350 Tampa, Florida 33601-2350 Martha Y. Burton, Esquire Charlotte County Attorney's Office 18500 Murdock Circle Port Charlotte, Florida 33948-1094 Alan Behrens 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Douglas Manson, Esquire David M. Pearce, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606 John R. Thomas, Esquire Thomas & Associates, P.A. 233 3rd Street, North, Suite 302 St. Petersburg, Florida 33701 Thomas L. Wright, Esquire Lee County Attorney's Office 2115 Second Street Post Office Box 398 Ft. Myers, Florida 33902 Alan W. Roddy, Esquire Sarasota County Attorney's Office 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Roger W. Sims, Esquire Rory C. Ryan, Esquire Jeff Donner, Esquire Holland & Knight LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 Robert L. Rhodes, Esquire Holland & Knight LLP 2099 Pennsylvania Avenue, Northwest Washington, DC 20006 Susan L. Stephens, Esquire Holland & Knight LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 Patricia A. Petruff, Esquire Dye, Deitrich, Prather, Petruff & St. Paul, P.L. 1111 Third Avenue, Suite 300 Bradenton, Florida 34205 Craig D. Varn, Esquire Doreen Jane Irwin, Esquire 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application. The surface water management plan given conceptual approval by SFWMD provides: The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied) Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny Coquina's application for construction permit. DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed. Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application. Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant. Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact. Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven. COPIES FURNISHED: John Henry Wheeler, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Robert Birenbaum, President Viking Communities Corporation (Coquina Water Management District) 123 Northeast 70 Street Miami, Florida 33138 Kyle S. Van Landingham, Esquire County Attorney Okeechobee County Courthouse Okeechobee, Florida 33472 Andrew B. Jackson, Esquire J.C. Bass & Bass Ranch, Inc. Post Office Box 488 Lake Placid, Florida 33852 Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316 Mr. Bob Wittenberg Division of Florida Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. George Stansbury Central Florida Regional Planning Council Post Office Box 2089 Bartow, Florida 33830
The Issue The issues are whether the Department of Environmental Protection (DEP) should: grant the application filed by IMC Phosphates Company (IMC) for modification of the approved Conceptual Reclamation Plan (CRP) for the Four Corners/Lonesome Mine, IMC-FCL-CPD; and issue a Consolidated Environmental Resource/Wetland Resource Permit No. 0155875-004 (Draft Permit) to mine phosphate and reclaim land on the Altman Tract in the northeastern corner of Manatee County.
Findings Of Fact The Parties Charlotte County is a political subdivision of the State of Florida pursuant to Article VIII, Section 1 of the Florida Constitution. Charlotte County's central dominating feature is the Charlotte Harbor Estuary. The Harbor is its major tourist attraction and is essential for its economy and quality of life. The Harbor has a recreational value of $1.8 billion and a total value of $6 billion to the local economy. The County has taken steps to protect Charlotte Harbor. Its comprehensive plan contains policies protecting the Harbor. It has spent $4 million to purchase lands along the Harbor for environmental preservation and passive recreation, and plans to spend another $79 million for the same purpose. The County has enacted septic tank regulations to protect the Harbor, which are stricter than state regulations, and is in the process of replacing septic tanks with a central sewer system. The County spent $100 million in the early 1990s to acquire a private water and sewer utility serving its citizens, and tens of millions of dollars expanding the sewer system, and has budgeted about $60 million to further expand its sewer system. The County has also taken legal action to protect the quantity and timing of flow and water quality in the Peace River and Charlotte Harbor, and was found to have standing and prevailed in those legal proceedings. The County owns and operates a water utility system and is a founding member of the Authority, a regional water provider. The County's water system supplies potable water to 109,000 persons, and is expected to supply 140,000 persons within the next 20 years. Now and for the foreseeable future, the County obtains all of its potable water from the Authority, and its sole source of water is the Peace River. DEP is an executive agency of the State of Florida under Article IV, Section 6, of the Florida Constitution. DEP administers the Environmental Resource Permit program pursuant to Chapter 373, Florida Statutes, for various activities, including phosphate mining. DEP also administers the Phosphate Land Reclamation Program pursuant to Chapter 378, Florida Statutes, and Chapter 62C-16, Florida Administrative Code. IMC is a general partnership authorized to do business in the State of Florida and is the applicant in these proceedings. Intervenors, George W. Mullins, Jr., Georgene Mullins Henderson, and Michael Graham Mullins, are the owners of a fractional mineral interest underlying portions of Sections 13, 14 and 24, Township 33 South, Range 22 East, Manatee County, Florida, that make up approximately the southern half the Altman Tract. Their mineral rights extend from the ground surface down, subject to IMC's right to mine phosphate and other sedimentary materials in the first 150 feet below the ground surface. This legal interest entitles the Mullins Family to access those lands at any time for purposes of mineral exploration and mining. The Mullins Family has not consented to IMC's proposed mining and reclamation. Required DEP Permits/Approvals, IMC Applications, Notices, and DEP Review Chapter 373, Florida Statutes, requires that persons seeking to carry out construction activities in or seeking to alter certain waters or wetlands must obtain an ERP. By law and interagency agreement, ERPs for proposed phosphate mining operations are issued by DEP and are processed and evaluated by that agency's Bureau of Mine Reclamation. Chapter 378, Florida Statutes, requires that persons mining phosphate rock reclaim the land pursuant to a CRP approved by DEP. Under Section 373.414(15), Florida Statutes, activities associated with phosphate mining operations included in a CRP application submitted prior to July 1, 1996, "shall continue to be reviewed under" the previous statutory scheme and rules governing wetland resource permits (WRPs), instead of current ERP statutes and rules. IMC filed an application for an ERP for the entire Altman Tract on October 5, 2000. (IMC Ex. 3). The application complied with the information requirements contained in Section 373.413(2), Florida Statutes, and Rule 40D-4.101(1). The portion of the Altman Tract lying in Section 1, Township 33 South, Range 22 East, was included in IMC's previous CRP for the Four Corners Mine (IMC-FCL-CPC), application for which was submitted prior to July 1, 1996. For that reason, it "shall continue to be reviewed under" the statutory scheme and rules governing WRPs. No separate WRP application form was submitted for the Section 1 area because the entire Tract was addressed in the ERP application filed by IMC; and no separate WRP application filing fee was demanded. IMC and DEP take the position that this procedure was authorized by Section 373.1131, Florida Statutes. There was no evidence that either IMC or DEP published notice that DEP had received the ERP application. DEP reviewed the ERP application and issued a series of requests for additional information to which IMC responded on October 19, 2000, December 29, 2000, February 11 and 15, 2001, and March 6, 2001. Thereafter, minor revisions to the application suggested by DEP were submitted by IMC. On April 9, 2002, IMC filed an application to modify the existing CRP for the Four Corners/Lonesome Mine to apply to the entire Altman Tract, not just Section 1. (IMC Ex. 14). Notice of DEP's receipt of this application was published in the Bradenton Herald, a newspaper of general circulation in Manatee County, on April 19, 2002. (IMC Ex. 15). On May 30, 2002, DEP filed its Notice of Intent to Issue a Consolidated ERP/WRP (the Draft Permit) and also gave notice of its intent to approve the application to modify the Four Corners CRP. On June 4, 2002, IMC published notice of both of these actions in the Bradenton Herald. (IMC Ex. 17). DEP's Notice of Intent ("NOI") was accompanied by the Draft Permit. (IMC Ex. 12). The Draft Permit would authorize IMC to mine or disturb 683.6 acres of wetlands and water bodies for phosphate mining and associated activities. Approximately 1,534.9 acres of uplands would also be mined or disturbed by phosphate mining activities. After reclamation, the Tract would contain approximately 788.4 acres of wetlands provided as mitigation for impacted DEP jurisdictional wetlands, 78.4 acres of wetlands preserved throughout mining, and 1,410.1 acres of uplands. An additional 90 acres of wetlands would be reclaimed as required by the Corps of Engineers for additional mitigation. The Draft Permit also contains numerous specific conditions requiring special mitigation efforts, defining mitigation success criteria, and providing monitoring and reporting requirements. Overview of the Peace River Basin and Phosphate Mining The Peace River Basin is nearly 2,500 square miles in size, stretching from the high sandy ridges in central Florida to Charlotte Harbor. The basin is dominated by the Polk Upland to the north and the DeSoto Plain to the south. The Peace River flows from its source in Polk County south and southwesterly through Hardee, DeSoto, and Charlotte Counties to Charlotte Harbor. The Peace River is fed by six primary tributaries, one of which is Horse Creek. Phosphate rock has been mined in the Peace River Basin for decades. In west central Florida, phosphate is mined from a "matrix" consisting of one-third phosphate rock, one-third sand, and one-third clay. (The average thickness of the matrix on the Altman Tract is approximately 16 feet.) The matrix layer is buried under a layer of sandy soils referred to as the "overburden." (The overburden thickness on the Altman Tract is approximately twenty-seven feet.) Topsoil and vegetation cover the overburden. Mining the phosphate rock requires removal of the overlying vegetation, topsoil, and overburden. As a result, phosphate mining in this area is accomplished through utter destruction of the local natural environment from ground surface down to a depth of approximately 50 feet. Other mining activities include transportation of the matrix to a "beneficiation plant," where the phosphate rock, sand, and clay are physically separated. The phosphate rock is temporarily stored and then transported for additional processing at facilities required to convert it to fertilizer. Byproducts of the mining process included large quantities of sand and clay. Early mining practices, like most early industrial, commercial, residential and other development activities of man, were insensitive to environmental impacts. Water quality was adversely affected, water flow declined, and wildlife and fish and their habitat was lost. Other human activities in the Peace River over the years added to the harm caused to the environment by early phosphate mining. In the past 30 years, Florida has implemented various environmental regulations, and mining practices have changed. These changes have reduced, but have not eliminated, the impacts of phosphate mining on the environment. Modern mining still has a devastating impact on the local natural environment. Large electrically-powered draglines are used to remove the overburden, topsoil, and vegetation to expose the phosphate-bearing matrix. These same draglines then extract the matrix and place it in depressions created at the mine sites, which are called "wells" or "pits." The matrix is mixed with water in the depressions to form a slurry, which is conveyed, hydraulically to the beneficiation plant. But efforts have been made to reduce water quantity and water quality impacts downstream during mining, primarily through use of ditch and berm recharge systems. See Findings 65, 80-86, supra. Activities at the beneficiation plant also were regulated to reduce environmental impacts. In addition, since July 1, 1975, phosphate mining companies have been required to reclaim all lands mined. Mandatory reclamation attempted to further reduce the long-term impacts of modern phosphate mining on water quantity, water quality, and wildlife and fish and their habitat. As environmental regulations became stricter, it became increasingly difficult to mine for phosphate in Florida, even using modern mining techniques and mandatory reclamation, as it was being implemented. In 1986, the Florida Legislature enacted the "Phosphate Land Reclamation Act." In it, the Legislature found: Florida is endowed with varied natural resources that provide recreational, environmental, and economic benefit to the people of this state. The extraction of phosphate is important to the continued economic well-being of the state and to the needs of society. While it is not possible to extract minerals without disturbing the surface areas and producing waste materials, mining is a temporary land use. Therefore, it is the intent of the Legislature that mined lands be reclaimed to a beneficial use in a timely manner and in a manner which recognizes the diversity among mines, mining operations, and types of lands which are mined. Section 378.202(1), Florida Statutes. Based on this legislative finding and policy decision, phosphate mining was permitted, so long as it complied with applicable statutes and rules. DEP was directed to develop rules "to simplify and coordinate regulation" and to enter into memoranda of understanding "to eliminate duplication, to simplify the processing of reclamation applications, and to maximize the effectiveness of the regulatory process." Section 378.202(2), Florida Statutes. Among other things, reclamation rules were to "require the return of the natural function of wetlands or a particular habitat or condition to that in existence prior to mining." Section 378.207(1), Florida Statutes. Restoration was defined by statute to mean "the recontouring and revegetation of lands in a manner, consistent with the criteria and standards established under this part, which will maintain or improve the water quality and function of the biological systems present at the site prior to mining." Section 378.203(10), Florida Statutes. Since 1962 long-term average rainfall in the Peace River Basin has declined. Based on data recorded at stations in Bartow, Wauchula, and Arcadia, the annual average rainfall was 55.48 inches from 1933 to 1962. From 1963 to 2001, the annual average rainfall was 50.61 inches, or a 4.87-inch decline in annual average rainfall between the two periods. Lower rainfall, together with phosphate mining and other anthropogenic factors, has resulted in a decline in stream flow in the Peace River since 1962. From 1963 to 2001, stream flow at the Arcadia Gauging Station has declined by 458 cubic feet per second (cfs), or approximately 300 million gallons per day (mgd). This decline is approximately the amount of water consumed by 1.5 to 2 million people. There has been a decline in the number and distribution of fish species in the Peace River in the last 50 years or so. Dr. Fraser, Charlotte County's expert ichthyologist, noticed that the number and distribution of fish species in the modern Peace River is similar to the Alafia River and the Everglades. This was surprising to him. The Alafia River is a small watershed that would not be expected to have as many fish species as the much larger Peace River and the Everglades, which is a flat, low flowing system, and cannot be expected to have the abundance of fish habitat provided by the 105-mile long Peace River. Dr. Fraser would have expected the number and distribution of fish species in the Peace River to be more like the Kissimmee and Withlacoochee Rivers. This prompted him to research the number and distribution of fish species in the historical Peace River for comparison with the modern Peace River. He found that the historical Peace River had 45-48 fish species in the Upper Basin and 32-35 fish species in the Lower Basin (similar to the Kissimmee and Withlacoochee Rivers); in comparison, the modern Peace River has 23-27 fish species in the Upper Basin and 32-39 fish species in the Lower Basin. In other words, Dr. Fraser found that the modern Peace River lacks approximately 20 fish species that had once been abundant in the river system 50 or so years ago. In 1969, Ware and Fish produced a report documenting a 25-mile segment of the Upper Peace River as having riffles, and deep pools, relatively fast moving water and significant beds of submerged aquatic vegetation called tape grass. However, a 2002 report published by Southwest Florida Water Management District (SWFWMD) staff in connection with proposed minimum flows did not find any tape grass in the system and documented that flow in this portion of the river is sluggish, with parts drying out seasonally. Dr. Fraser believes that the decline in freshwater flow is the primary cause of the reduction in the number of fish species found in the Peace River. Charlotte Harbor is the estuary formed by the confluence of the Peace and Myakka Rivers. It provides critical habitat for a wide variety of wildlife, including endangered and threatened species and species of special concern. It has been designated an Outstanding Florida Water and an Aquatic Preserve by the State of Florida. See Florida Administrative Code Rules 18-20.004 and 62-302.700. In 1995, it became the sixth estuary to be selected an Estuary of National Significance by the U.S. Environmental Protection Agency ("EPA"). The major freshwater input to Charlotte Harbor is the Peace River. The salinity dynamics of the Lower Peace River and Charlotte Harbor are affected by flow in the Peace River. According to Dr. Ahsan, who was called by IMC and accepted as an expert in the fields of environmental hydrodynamics and estuarine physics, a reduction of 20 percent or more in the flow of the Peace River will cause a shift upstream of the salinity distribution in Charlotte Harbor. Since flow in the Peace River has declined by more than 20 percent since 1963, it would follow that salinity has shifted upstream since 1963. It is not clear exactly how much of the decline in stream flow in the Peace River is from anthropogenic factors, including phosphate mining. Anthropogenic factors probably do not account for as much as 75 percent of the decline, as suggested by Charlotte County's expert hydrologist, Mr. Phil Davis. Several studies would support the testimony of IMC's expert hydrologist, Dr. John Garlanger, who believes that more like 11-12 percent of the decline should be attributed to anthropogenic factors and that 10-20 percent of the decline from those factors can be attributed to phosphate mining. The County presented evidence that DEP thinks more study is needed to better quantify the impact of individual anthropogenic factors, including phosphate mining, on the decline in stream flow in the Peace River. But DEP called no witnesses to give opinion testimony during the hearing in this case on this or any other issue in the case. In comparison to the Peace River, Horse Creek is relatively unimpacted. It not only has good water quality, it also has fast-flowing water, and it provides a refuge for fish species that are no longer found in abundant numbers in the Peace River. It has an extensive drainage system that is almost 45 miles long. From the Altman Tract, Horse Creek flows south until it joins the Peace River approximately 41 miles downstream from the Altman Tract boundary. The Peace River then empties into Charlotte Harbor approximately 51 miles from the Tract. Historic and Current Conditions at Altman Tract Location The Altman Tract is in the northeastern corner of Manatee County. It encompasses a total of approximately 2,367 acres, all in Township 33 South, Range 22 East. The bulk of the Tract is in the shape of a triangle; a small "tab" is attached to the southeast corner of the "triangle" and extends south. The eastern boundary of the Tract is the Manatee-Hardee county line; the Fort Green Mine is adjacent to the eastern boundary. The property is bounded on the north and west by State Road (SR) 37. IMC's Four Corners Mine is across SR 37 from the Tract. All of the lands to the north, east, and west of the Tract have been mined and are being reclaimed. The southern boundary of the "tab" attached at the southeast corner of the "triangle" is SR 62. Otherwise, the land to the south of the Tract is owned by Manatee County. Manatee County acquired this land from IMC in a swap for some land the County owned on the Altman Tract so as to eliminate IMC ownership of land in the watershed of the Manatee River and to consolidate the County's land holdings in the area. The northern point of the Tract consists of the southeast half of Section 1. Directly to the south is Section 12, which is included in its entirety in the Tract. To the west of Section 12 is the southeast half of Section 11; to the south of it is Section 13, almost all of which is included in the Tract. To the west of Section 13, the Tract includes roughly the northeast half of Section 14. The "tab" attached at the southeast corner of Tract is part of Section 24. Horse Creek on the Tract The Altman Tract contains what is left of the headwaters of Horse Creek. Historically, the headwaters of Horse Creek consisted of a series of wetlands connected by natural swales and sloughs that extended north of the Altman Tract. When conditions were wet enough, water flowed through these headwater wetlands, sloughs, and swales and onto Section 1 of the Altman Tract from the north, then flowed southwest out of Section 1 and onto what is now the Four Corners Mine. It then flowed through another series of wetlands to the south before re-entering the Altman Tract at the location where box culverts now cross under SR 37 in Section 11. From there, water flowed south on the Altman Tract and meandered through an area of shallow sloughs to a large marsh, now known as the Central Marsh on the Altman Tract. Water flowed slowly through the Central Marsh towards the east and through a series of braided channels which continue east and form a deeper channel of the Horse Creek to the east of the Central Marsh. Near the eastern boundary of the Altman Tract, Horse Creek turns towards the south, where it exits the Tract near its southeast corner. Just before Horse Creek exited the Tract, another stream leading from wetlands to the south and west on the Tract joined the main Horse Creek stream. Man's activities have altered the historic Horse Creek headwaters. By 1940, a straight, shallow ditch was scraped between the box culverts and the Central Marsh, apparently to speed the drainage of water away from SR 37 and into the Central Marsh. This ditch coincided in some but not all places with the natural, meandering watercourse; as a result, water flows through both the ditch and the natural meandering watercourse. More recently, the natural headwaters to the north and west of the Altman Tract were eliminated as a result of phosphate mining on the Four Corners Mine, which significantly reduced the size of the watershed upgradient of the Altman Tract. However, water still flows onto the Altman Tract from the location of the box culverts under SR 37. To the east of the Altman Tract, the Fort Green Mine interrupted the flow from the wetlands on the Tract to the south and west of where Horse Creek now exits the Tract through seven culverts underneath an access road on the Fort Green Mine. IMC and DEP take the position that Horse Creek itself does not include the Central Marsh or anything upgradient of the Central Marsh. But the greater weight of the evidence is to the contrary. Notwithstanding the Four Corners Mine, water still flows into the Altman Tract from off-site through the box culverts under SR 37, continues to and through the Central Marsh, and exits at the southeast corner of the Altman Tract. Central Marsh The Central Marsh is a large, varied marsh system. The interior of the system is shrub marsh. Freshwater marshes surround the shrub marsh, and wet prairie surrounds the freshwater marshes. The Central Marsh overall is a very high- quality, diverse wetland system. The shrub marsh portion of the Central Marsh also is of high quality. IMC's botanist, Dr. Andre Clewell, testified that the Central Marsh was a large, mixed shrub marsh that was getting very woody and, citing the presence of red maple, was converting into a forested swamp. At one point, he went so far as to characterize it as an "impenetrable thicket" and a "vegetated desert" serving no wetland functions. This was a mischaracterization. Dr. Clewell's testimony was countered in this and several other respects by the testimony of the County's witness, Kevin Erwin. Retained in January 2003 after illness limited the effectiveness of the County's intended witness, Jeremy Craft, Mr. Erwin was able to inspect the Altman Tract for three days in February 2003 as part of discovery in this case. During that time, Mr. Erwin was able to gather information demonstrating that the Central Marsh is not one, large "vegetated desert." IMC's other expert wetlands biologist, Dr. Douglas Durbin, also declined to concur with Dr. Clewell's assessment, rating the Central Marsh as a medium-to high-quality wetland. Other Wetlands and Uplands: Zonation In addition to Horse Creek and the Central Marsh, the Altman Tract consists of a mosaic of other high-quality, interrelated wetlands and uplands, all with high-quality native vegetation and only minor man-made impacts. There are deep marshes with extended hydroperiods, shallow marshes with moderate hydroperiods, and wet prairies with very short hydroperiods. There are bay swamps and mixed forested wetlands. There are expansive areas of palmetto prairie. There are herbaceous and grassy uplands prairies. There are some scrub and live oak. There are very few nuisance, exotic, or problematic species on the Altman Tract. All the wetlands on the property exhibit "zonation," a concept introduced to the hearing through Mr. Erwin's testimony. "Zonation" describes essentially subtle changes that result as topography gradually and continuously changes, i.e., "changes in micro-topography." As a result of "zonation," many of the high- quality deep freshwater marshes on the Altman Tract give way to high-quality shallower marshes around the perimeter of the deep marshes, which in turn give way to high-quality wet prairie bordering the shallow marshes. Each of the different wetlands making up this mosaic has its own distinct hydroperiods. Adding to the diversity, adjacent uplands generally are diverse, high- quality native grasslands and other high-quality native upland habitats, including palmetto prairie. The result is a mosaic of a variety of slightly different, but interrelated high-quality native habitats on the Tract. Agricultural Ditches IMC emphasized the existence of agricultural ditches and the impacts of cattle grazing on the Altman Tract. In fact, while there are some agricultural ditches on the property, they are not extensive. In addition, the ditches on-site are mostly shallow, scraped ditches connecting existing wetlands. They are not designed to and do not lower the water table on-site. In addition, they do not appear to have been maintained, much less improved, in the 50 or more years of their existence. Cattle grazing has occurred on the Tract, but it has not been intensive. Included among the ditches on the Altman Tract are some 4.8 miles of first-order streams. A first-order stream is the channel that continues from the headwater to the first confluence. First-order streams are important because they produce the biological energy for the system. Additionally, they reduce downstream nutrient loading by sequestering and reducing the movement of nutrients. IMC's Use of FLUCFCS As part of its applications, IMC used the Florida Land Use Cover Forms Classification System (FLUCFCS) to characterize and map the Altman Tract. Mr. Erwin disagreed with IMC's mapping in many respects. It appears that many of Mr. Erwin's disagreements simply reflected a preference for more precision, both in terms of the level of classification used and in terms of the mapping detail. But some of IMC's mapping could lead to significant misunderstandings as to the nature of existing conditions on the Altman Tract. According to IMC's mapping, approximately 236 acres of shrub marsh are on the Tract. Mr. Erwin thought about half that amount of acreage actually was shrub marsh. Much of the difference was in the mapping of the Central Marsh--IMC's mapping made the shrub marsh seem much larger than it is by failing to distinguish the freshwater marsh surrounding it. According to IMC's mapping, approximately 85 acres of wetlands on the Altman Tract are "improved pasture." Actually, there is no improved pasture on the Altman Tract. What IMC mapped as "improved pasture" actually is mostly high-quality wet prairie. IMC also mapped 869 acres--about 30 percent of the site--as mixed rangeland. Actually, there is no mixed rangeland on the Altman site. Instead, there are separate and discrete areas of mostly high-quality native grasslands and palmetto prairies. IMC's WRAP Assessments of the Tract IMC evaluated the wetlands on the Altman Tract using a modification of the South Florida Water Management District (SFWMD) Wetland Rapid Assessment Procedure (WRAP) developed for use in SWFWMD. While the WRAP scores confirmed that the wetlands on the Altman Tract were not seriously degraded, they substantially and improperly understated the quality of the on- site wetlands. One of several factors in IMC's understatement of the Tract's WRAP scores was the inaccurate FLUCFCS mapping. In addition, it does not appear that enough credit was given for the high quality of adjacent uplands and other wetlands. There also were questions as to the level of training of those conducting the WRAP scoring for IMC, and whether they spent enough time on the Tract and viewed enough of the Tract to give proper and accurate scores. Water Quality Water quality on the Altman Tract appears to be very good. However, IMC has not sampled the water quality there. Instead, it provided DEP with water quality samples from a point in Horse Creek downstream from the property. Based on those samples, IMC represented to DEP that water quality on the Altman Tract was typical for a rural stream in this region of the State in a sub-basin impacted by agricultural use. Wildlife and Fish Habitat The Altman Tract provides good wildlife habitat. Various portions of the Tract are utilized by listed species, including: bald eagle (a nesting pair), Florida scrub jay (1-2 families); gopher tortoise, eastern indigo snake, Florida sandhill crane, Florida mouse, and Southeastern American kestrel. Other animals using the Tract include numerous wading birds; round-tail muskrats (one of few wetland-dependent small mammals); otters; and alligators (a species of special concern). There are red-cockaded woodpecker cavities on the Tract. IMC characterized the cavities as abandoned, but it is possible that they were inactive at the time. There also was other suitable red-cockaded woodpecker habitat on the Tract. During three days spent on the Altman Tract in February 2003, the County's consultants noted the presence of approximately 70 species of birds, 8-10 species of reptiles, and 5-6 species of amphibians. The County's consultants did not have the time to conduct an adequate, comprehensive wildlife survey. IMC instituted a wildlife survey of the Tract prior to initiating the formal permit application process. IMC's survey was more extensive than the County's, but the time spent on the Tract by IMC's consultants was inadequate for the survey to be considered truly comprehensive. It does not appear that any dawn-to-dusk surveying was conducted; and none of the surveying was done at night, when surveys for some species one might expect to be found on the Tract should be conducted (such as amphibians). More abundance and diversity of wildlife probably use the Tract than suggested by the surveys in evidence. Common species of generally small fish can currently occupy the wetlands, streams, and ditches on the Altman Tract that are sufficiently inundated and sufficiently connected to permanent waters to allow fish to exist. IMC reported to DEP that no listed or otherwise unusual or unique fish species exist in this region of Florida and that there were none on the Altman Tract. However, no fish sampling data was collected from the Altman Tract for submission to DEP. In the three-day period of time they had to inspect the Altman Tract, Charlotte County's witnesses observed 402 acres of fish habitat, including 27 acres exhibiting flow. Potentially, there may be another 281 acres of marsh and swamp that provide habitat for fish on the property. This additional acreage seemed like suitable fish habitat to Dr. Fraser, but he either did not see any fish or did not look there. It is possible for fish using habitat on the Altman Tract to swim down Horse Creek into the Peace River. Some fish species do not seem to be found in the Peace River any longer, but are or may still be found in the better fish habitat of the more swiftly-flowing Horse Creek. In addition, some fish species are predisposed to now rarer headwaters like those found on the Altman. IMC's Proposal to Mine and Reclaim the Altman Tract As previously found, the mining of the Altman Tract would be an extension of the IMC Four Corners Mine mining operation to the west of the Tract. Beneficiation, including clay settling ponds, and other processing activities will occur off-site at facilities already approved and operating or under construction. No approvals are needed or requested for those activities. IMC seeks to mine and otherwise disturb 683.6 acres of DEP jurisdictional wetlands and water bodies for phosphate mining and associated activities on the Altman Tract. Approximately 1,534.9 acres of uplands also would be mined and otherwise disturbed by phosphate mining activities. IMC is proposing to preserve 61.1 acres of flow-way area of Horse Creek to the east of the Central Marsh, together with two connected forested bay swamp wetlands in that area. IMC also will not carry out any mining-related activities within a 750-foot radius of an eagle nest on uplands on the western portion of the Tract near the Central Marsh. In addition, no mining-related activity will take place within 1,500 feet of the nest during the nesting season (approximately May 15 through October 1), in compliance with United States Fish and Wildlife Service (USFWS) regulations. Mining is planned to occur over a period of 12 years in accordance with a detailed annual mining and reclamation sequence set forth in the Draft Permit. Generally, mining will begin in the north and proceed to the south. After mining is concluded in a mining block, reclamation will begin in that block while active mining continues elsewhere on the site. At the outset, IMC proposes to construct a ditch and berm recharge system around the perimeter of the site and along the northern boundary of the areas to be preserved and the Central Marsh to protect these areas from the impacts of active mining occurring to the north during the early years of the mining sequence. Before mining begins in the southern half of the Tract later in mining and reclamation sequence, a ditch and berm recharge system will be constructed to the south of the preserved areas and along the southern boundary of the Tract. IMC also proposes to construct and operate an alternate flow-way ("AFW") at the Altman Tract. The AFW will be constructed at the outset and will divert water from where it enters the Tract through the box culverts under SR 37 and convey it along the western edge of the property boundary back to the existing Central Marsh. After the AFW is in operation, IMC plans to mine the area containing the existing watercourse conveying water between SR 37 in Years 3 and 4, while maintaining off-site flow to the existing Central Marsh and the preserved area down-gradient. The AFW will continue to provide off-site flow to those areas during Years 4-6, while IMC reclaims a Replacement Central Marsh (also known as Mitigation Marsh 561) to the north of the existing Central Marsh. The Replacement Central Marsh is to be connected to the preserved area during Year 7. During Years 6-8, the AFW will be providing off-site flow to both the existing Central Marsh and the Replacement Central Marsh to the north. In Year 9 of the sequence, off-site flow to the existing Central Marsh is to be discontinued, and mining would begin in that area. However, under Specific Condition 10 of the Draft Permit, this will only occur if "all of the success criteria for the West Fork of Horse Creek headwater marsh, identified in Permit No. 0142476-003 (Manson Jenkins) have been met within nine years, with a minimum of two years without intervention, from issuance of this permit unless another date has been approved in writing by the Bureau. In addition, the up-front mitigation of Mitigation Marsh 561 shall be completed according to Specific Condition 11 before the severance and mining of the existing marsh." If the date is extended, mining in the existing Central Marsh will not be allowed to proceed, and the AFW would have to continue to have to provide off-site water to both the existing Central Marsh and the Replacement Central Marsh. When the existing Central Marsh is mined, the AFW will not be needed any longer, and its location will be mined and then reclaimed. At that time, water from off-site will enter the Tract through the same box culvert and be routed directly into and through the Replacement Central Marsh. Other areas of the Tract will be mined and reclaimed in accordance with the detailed annual mining and reclamation sequence. Mining is planned to occur over a period of 12 years, and reclamation is projected to be fully completed within the projected overall 17-year life of the project. Proposed reclamation will be accomplished using two techniques--one for areas to be reclaimed as uplands and one for areas to be reclaimed as wetlands. In both cases, the voids created by the mining operations will be filled with sand generated in the beneficiation process. For uplands reclamation, the sands will be covered with the overburden that has been cast aside during the mining operation, which will then be carefully contoured to achieve the desired upland topography. Revegetation will follow using three techniques: direct seeding (using native seed sources as well as commercial seeds); placement of salvaged topsoil; and planting with available nursery stock. IMC witnesses testified to IMC's intent to promote successful revegetation of the upland areas by engaging in an aggressive effort to control potential invasions by nuisance or exotic species. IMC witnesses also testified to IMC's agreement to an aggressive uplands nuisance species control program and to special techniques for upland revegetation to improve long-term function. However, the Draft Permit does not appear to include such an agreement as a permit condition. IMC characterized control of nuisance and exotic species in the uplands as being not required by rule. But the weight of the evidence was that nuisance and exotic species will not only invade the uplands but from there will also invade wetlands during dry conditions. For that reason, wetland reclamation will not succeed if nuisance and exotic species are not controlled in the uplands. With regard to wetlands reclamation, following sand placement, IMC will establish precise contours and elevations to assure that wetland contours are built as designed. The land surface will then be prepared for planting by "muck inoculation" in which surface soils taken from a natural wetland system are imported to provide a fertile layer for vegetative growth and to "jump start" the plant community with the seed sources and different types of root stock that are contained in the muck. (For this to be effective, the muck should not contain seed and root stock of nuisance and exotic species, which are limited to 10 percent of wetland coverage under the monitoring and maintenance program required by Special Condition 13 of the Draft Permit.) Post-reclamation, the Tract would contain approximately 788.4 acres of wetlands (749 acres of herbaceous and 39.5 acres of forested) provided as mitigation for impacted DEP jurisdictional wetlands, 78.4 acres of wetlands preserved throughout mining, and 1,410.1 acres of uplands. An additional 90 acres of herbaceous wetlands would be reclaimed to meet requirements of the Corps of Engineers for additional mitigation for loss of isolated wetlands. Of the total wetland acreage post-reclamation, 721 acres will be freshwater marsh (code 641), of which 658 will be DEP jurisdictional. These will be relatively deep marshes with long hydroperiods. Only 52 acres will be shrub marsh (code 646) post-reclamation, of which only 11 will be DEP jurisdictional. According to IMC's FLUCFCS mapping, only 360 acres of freshwater marsh currently exist on the Altman Tract (of which 328 acres is DEP jurisdictional); Mr. Erwin generally concurred with this acreage total (while noting that more surrounds the Central Marsh than IMC mapped there). According to IMC's FLUCFCS mapping, 278 acres of shrub marsh currently exist on the Altman Tract (of which 236 is DEP jurisdictional); Mr. Erwin believes there actually is approximately half that amount currently on the Tract, but still much more than IMC intends post- reclamation. According to IMC's FLUCFCS mapping, 58 acres of wet prairie (code 643) are on the Tract (almost all of which is DEP jurisdictional). Mr. Erwin thinks there actually are fewer acres of wet prairie on the Tract. Post-reclamation, IMC plans for there to be 92 acres of wet prairie (of which 80 will be DEP jurisdictional). As previously found, IMC mapped existing herbaceous, palmetto prairie (code 329), and other shrubs and brush (code 321) as mixed rangeland (code 330). Post-reclamation, IMC proposes to increase the mixed rangeland from 852 to 1,147 acres, while also eliminating 136 acres of herbaceous, almost all 98 acres of palmetto prairie, and almost 276 acres of other shrubs and brush mapped on the Tract. IMC does not propose any improved pasture (code 210) post-reclamation, and claims credit for eliminating 85 acres of improved pasture presently on the Tract. But actually there is no improved pasture on the Tract. Most of what IMC mapped as improved pasture actually is native palmetto prairie, herbaceous, and wet prairie cover. The 4.3 acres of streams and waterways on the Altman Tract have a Level II FLUCFCS code of 510. IMC's reclamation will not restore any streams or waterways during the reclamation process. IMC and DEP take the position that the streams actually are agricultural ditches of lower ecological value than the marshes IMC plans to recreate. However, many of the so- called agricultural ditches have relatively high ecological value because they are shallow and have existed without maintenance or improvement for decades. IMC has offered to provide a conservation easement in favor of the State of Florida consisting of not less than 230.8 acres. The conservation easement will consist of 169.7 acres of reclaimed Mitigation Marsh 561 ("Reclaimed Central Marsh") and the 61.1-acre preserved flow way area of Horse Creek. The Mullins Family's mineral interests underlie a portion of the preserved flow-way. Impacts During Mining/Reclamation As previously indicated, mining obviously will have a devastating impact on the natural environment of the Altman Tract. IMC proposes measures to attempt to minimize or reduce those impacts, both on the Tract and on adjacent lands. Ditch and Berm Recharge System IMC proposes to construct a perimeter ditch and berm system to preclude a direct release of potentially muddy water from mining areas to adjacent land, wetlands, or waters. This is recognized as a "best management practice" (BMP) by DEP and the United States Environmental Protection Agency. Water retained within the boundaries of the ditch and berm system is recycled and reused in the mining operation. IMC reuses approximately 95 percent of its water. The water in the ditch element of the ditch and berm system serves to maintain the ground water level on adjacent property owned by others and in waters and wetlands that are to be preserved from mining. Otherwise, groundwater will flow into dewatered mine cuts from adjacent lands, lowering the water table significantly in areas outside the mine cut. IMC proposes to construct two recharge ditch systems on the Altman Tract to protect the Central Marsh and the preserved area. Both ditch systems will originate in the vicinity of SR 37 and continue across the property to the eastern boundary. The northernmost ditch system will run north of the Central Marsh and the preserved area; another section of this ditch system will be constructed to the south and west of the preserved area. The southernmost ditch will run along the southern property boundary. Certain geological conditions at the Tract could inhibit the effectiveness of the ditch and berm system to maintain adjacent groundwater levels. But if such circumstances are encountered, an alternative recharge well system could be installed in those locations. The recharge system would be charged with clean water in order to be effective. Under a worst-case scenario, approximately two million gallons a day of water could be "lost" from the recharge ditches through seepage. But if seepage occurs, most of the water would reenter the mine recirculation system where it would be available for reuse and recycle. Generally, reasonable assurances were given that the ditch and berm systems can and will be constructed, maintained, and operated so as to be effective in protecting adjacent lands and the proposed preserved areas. However, it is questionable whether the ditch and berm system will be effective in the vicinity of the preserved forested bay swamp wetlands. In order to maximize mining in the area, IMC intends for the northernmost recharge ditch system to track closely the northern edge of those two mushroom-shaped features as they jut out north from the portion of the Horse Creek flow-way to be preserved. As a result, while the direct linear distance from the eastern boundary of the Tract to the western end of the westernmost of the two forested bay swamp wetlands proposed for preservation is approximately 2,600 to 3,000 feet, approximately 8,000 feet of recharge ditch must be constructed in that section of the recharge ditch. Mining the area between the two bay swamp wetlands will be like digging a big, deep trench with smaller, shallower recharge ditches on either side, making it harder to keep the recharge ditches filled with sufficient water to protect the bay swamp wetlands. In addition, while the bay swamp wetlands will be connected to the existing Central Marsh and receive some water from the AFW through the Central Marsh to the south, they will receive absolutely no runoff from the north. For these reasons, IMC did not give reasonable assurances that the two forested bay swamp wetlands will be preserved, as planned, during mining. They may be seriously adversely affected. If this happens, they will not be as useful as IMC plans as a refuge for mobile wildlife on the Tract during mining. In addition, as Dr. Clewell testified in IMC's case-in- chief, bay swamps are difficult and take a long time to restore. Mining and Reclamation Sequence IMC proposes a mining and reclamation sequence in part to minimize the duration of impacts of active mining. However, the benefits of this proposal are less than might be supposed at first blush because no additional recharge ditches are planned between mining blocks within the mine. Except where mining blocks are bordered by a perimeter or preserved area recharge ditch, groundwater will flow into dewatered mine cuts from adjacent mining blocks, lowering the water table significantly in areas outside the mine cut and up to a distance of approximately several hundred to a thousand feet. This will adversely impact the hydrology of wetlands within those adjoining areas--both wetlands not yet mined and wetlands that are supposed to be in the process of being revegetated as part of the reclamation sequence. Some existing wetlands will be impacted in this way one to two years before they are mined; some areas being revegetated during the reclamation sequence will be impacted in this way for three to four years. The requirement of "up-front mitigation" through the Replacement Central Marsh also would help reduce impacts during mining. However, as indicated, it is possible that this could extend the time during which the AFW would be required to provide off-site water to both the existing Central Marsh and the Replacement Central Marsh. Central Marsh Hydroperiods During Mining Reasonable assurances were not given that flows through the AFW from off-site will be sufficient to sustain required hydroperiods of both marshes for the length of time this is planned to be required, much less for a longer period of time. This issue was not addressed in IMC's case-in-chief. After the County's expert hydrologist, Mr. Davis, in the County's case-in-chief, Dr. Garlanger addressed it in rebuttal testimony by stating: "Based on my analysis, there is sufficient water -- with proper operation and maintenance of the recharge system, there is sufficient water for both the existing Central Marsh and the Replacement Central Marsh to have a very long hydroperiod." The only evidence of any analysis of wetland hydroperiods on the Altman Tract performed by Dr. Garlanger was designed to compare pre-mining and post-reclamation wetland hydroperiods. It did not address wetland hydroperiods during mining. In addition, this analysis was based on his suspect modification of the HELP model. See Findings 157-163, infra. For these reasons, Dr. Garlanger's "analysis" did not provide reasonable assurances that "there is sufficient water for both the existing Central Marsh and the Replacement Central Marsh to have a very long hydroperiod." The only other evidence of wetland hydroperiods on the Tract was an analysis submitted by Florida Engineering and Environmental Services (FEES). This analysis only modeled post- reclamation wetland hydroperiods. It also had several other deficiencies. It used a model with a groundwater component (Mine Hydrology Program) designed to simulate flow of groundwater into a mine cut, not into a wetlands. FEES also did not account for the effect of changed soil conditions on groundwater flow post-reclamation, and added an inappropriate "safety factor" by cutting the results in half. Errors with the surface water model component included the inappropriate use of a single event-based model for a multi-year simulation, the failure to account for changes in soil conditions, the use of the same curve number throughout the entire simulation, and numerous mathematical errors in the set-up and conceptualization of the surface water model. Errors in the spreadsheet combining the two components included the incorrect calculation of the stage-storage-discharge relationship, use of an ET value that is unrepresentative of actual conditions, and a major error in the calculation of wetland water levels. IMC did not rely on the FEES model in its case-in- chief. In fact, IMC's main hydrologic witness, Dr. Garlanger criticized the modeling performed by FEES. He testified that he would not have done the analysis in the same way, disagreed with some of FEES' assumptions, and would not have used the same model. Dr. Garlanger added to his rebuttal that "IMC has committed to augment or supplement the replacement marsh with water from the recirculation system or from surficial aquifer dewatering wells" or even "irrigate it, if they have to." Even if those extraordinary measures are taken by IMC with respect to the Replacement Central Marsh, they would not address the needs of the existing Central Marsh. Fish and Wildlife Mining clearly will have adverse impacts on all fish and wildlife on the Altman Tract except the bald eagle. Measures to protect the bald eagle nest site on the Tract should be adequate to avoid adverse impacts on that species. The proposed mining sequence and preserved area will be of some benefit to some mobile wildlife species, but it will not be enough to avoid adverse impacts. All fish on-site will be destroyed, less mobile species will not survive; some more mobile species probably will not survive. Loss of habitat on the Tract will adversely affect all of these species (again, except the bald eagle pair). The limited amount of preserved area will not be enough to avoid adverse impacts (even if the ditch and berm recharge system is effective in preserving the forested wetland bay swamps). The existing scrub jay habitat on the Altman Tract is not good quality. There are 30-40 acres of Type I (optimal) scrub jay habitat on the Tract, but the oaks are too high (more than three meters high. There are over 100 acres of Type II jay habitat on the Tract. The jay habitat on the Tract could be improved through active management. In 1998, there were two scrub jay family groups on the Tract. By 2002, only one family group remained, which was predictable due to habitat quality. Without active management, the scrub jay habitat at the Tract is not conducive to long-term survival and propagation. As part of a mine-wide Scrub-Jay Habitat Management Plan, IMC assessed several options for the scrub jay pair residing on the Altman Tract (including on-site habitat preservation) using sound scientific methodology, including population viability analysis models. It was decided that relocation to suitable habitat closer to other scrub jay families in accordance with the approved Scrub-Jay Habitat Management Plan has the highest probability of maintaining and recovering the scrub jay population in this area. As a result, IMC plans to capture and relocate the remaining scrub jay pair before mining on the Altman Tract. IMC will implement eastern indigo snake protection measures approved by the USFWS and FFWCC and incorporated into the Biological Opinion that applies to the Tract. These measures essentially consist of training land clearing crews in identification and appropriate response. If encountered during land clearing, work will cease and a trained biologist will be notified. The biologist will assess the work area and determine whether the snake should be captured and removed to a safe area. IMC regularly relocates gopher tortoises in advance of mining operations. According to IMC's ERP, surveys will be conducted prior to land clearing, and any gopher tortoises and their commensals (including the eastern indigo snake, the gopher frog, and the Florida mouse) will be relocated using appropriate permits and in coordination with the Florida Wildlife Conservation Commission (FWCC). According to IMC's ERP application, if active sandhill crane nests are found during mining, all land clearing in the vicinity of the nest and all mining in the vicinity of the nest will stop until the nesting cycle is complete. A 225-meter protection zone will be established per state guidelines around all active sandhill crane nests found during pre-clearing surveys. The FFWCC deems protection zones of this size to be a best management practice. Benefits of Reclamation As found, the wetlands and uplands on the Altman Tract are of very high quality--higher than claimed by IMC. IMC did not give reasonable assurances that the wetlands and uplands it would reclaim would maintain or improve the functions provided by the existing conditions. IMC's plan is to recreate a "natural landscape" on the Altman Tract. By this, IMC means a combination or mixture of natural wetland and upland habitat. Previous reclamation projects have not attempted to do this. The 1,410 acres of uplands IMC proposes to recreate will be dominated by 1,147 acres of "mixed rangeland" (FLUCFCS code 330). The 788 acres of wetlands IMC proposes to recreate will be dominated by 658 acres of freshwater marsh. Essentially, IMC plans to recreate a wetland system dominated by a large, relatively deep freshwater marsh. Freshwater marsh acreage will be more than double present conditions. There will be fewer shallow freshwater marshes. IMC plans to increase the amount of wet prairie, but there will be hardly any shrub marsh post-reclamation. Generally, there will be less "zonation" and less diversity. To increase on-site wetlands, uplands will be made correspondingly smaller. In addition, the quality of the uplands will decrease, as will the manner in which they interact with nearby wetlands. The diverse range of herbaceous, palmetto prairie, and other shrub and brush upland cover types presently found on the Tract will be largely replaced by 1,147 acres of mixed rangeland and 99 acres of unimproved pasture, out of a total of 1,410 acres of upland, post-reclamation. Eight acres of live oak and 33 acres of mixed hardwood-conifer will be gone. Pine flatwoods will more than double. As a result, the diversity and variety presently on the Tract will be missing under IMC's plan. The interactions among the diverse kinds of high- quality wetlands and uplands give the Altman Tract its valuable fish and wildlife functions. The evidence did not demonstrate that these functions will be restored through reclamation except perhaps the functions served by deep marshes. Wading bird populations nest in areas that provide a safe environment to raise their young. The existing Central Marsh does not provide optimal habitat for wading birds because the shrubby vegetation harbors predators. The proposed Replacement Central Marsh probably would provide better nesting and roosting habitat for wading birds such as egrets, herons, ibises, sand hill cranes, and wood storks than the existing Central Marsh. However, reasonable assurances were not given that the reclaimed Tract as a whole would provide wading bird habitat that is as good or better than the diverse mosaic of habitat types currently existing on the Tract. IMC justifies its plan to "simplify" the Altman Tract through reclamation by stating it will restore 1940 conditions that are better than those existing on the Tract. But the more persuasive evidence was that, with relatively minor differences, conditions today probably are quite similar to conditions in 1940. It was not proven that IMC's proposed reclamation project would return the Tract to conditions in 1940. One difference between current conditions and 1940 is the agricultural ditches. But as indicated, these ditches have not had serious adverse impacts on the Altman Tract. In addition, they have provided a kind of fish habitat on the site that would not be replaced by the Replacement Central Marsh. Any improvements from their elimination would have to be weighed against this habitat loss. Another difference is some transitioning to shrubbier conditions in parts of the Central Marsh. IMC attributes this change to fire suppression. It may also result at least in part from reduction of the up-gradient watershed as a result of mining on the Four Corners Mine. To the extent that there have been some changes due to fire suppression, the Draft Permit does not mandate fire management. Without fire management, it would be hard to sustain and maintain conditions that require periodic cool, surface fires, even if IMC were to recreate them. To the extent that there have been some changes due to drier conditions, IMC's strategy seems to be to essentially eliminate shrub marshes from the Tract and recreate more and deeper freshwater marshes. As indicated, assuming enough off- site flow for the strategy to succeed, this would alter the Tract and reduce the benefits of diversity and zonation. Evidence presented by IMC demonstrates a certain ability to reclaim the basic cover types proposed for the Altman Tract. IMC relied on 15 restoration sites as examples of successful restorations of the kinds proposed in IMC's reclamation plan. Mr. Erwin had the opportunity to spend five to six days inspecting this sites to test IMC's assertions. Based on his limited review, he was able to demonstrate that none of the restoration sites were of higher quality than comparable cover types on the Altman Tract, that most were lower quality, and that many had problems with nuisance and exotic species. Nine of IMC's examples were to demonstrate successfully recreated freshwater marshes and wet prairie. But Mr. Erwin pointed out that they primarily demonstrated an ability to recreate quality deep marshes. There were few shallow marshes. There were no wet prairies with native grasses in evidence; and there was no demonstrated ability to recreate them. Instead, the demonstration sites showed examples of wet pasture. The wet pasture usually was vegetated with some form of pasture grass, such as Bermuda and bahia grass, not with native grasses. In addition, an especially troublesome exotic and nuisance species called cogon grass dominated in many of the wet pastures and was invading some shallow marshes. There was no demonstrated ability to consistently control cogon grass for long in the shallow marshes and wet pasture areas. Three of the sites were supposed to demonstrate successfully recreated shrub marshes. While some were fairly successful, others were dominated by exotic and nuisance species, such as primrose willow. In some of the shallower shrub marshes, cogon grass also was invading from the upland transition area. It appeared that, at least without active management, these exotics and nuisance species tended to invade the recreated shrub marshes (especially the shallower ones) from the transition areas. There was no demonstrated ability to consistently control these species for long in the shallower recreated shrub marshes. Three of the sites were supposed to demonstrate successful recreated mixed wetland forest. One, called Morrow Swamp, was an early, experimental attempt by Mr. Erwin. It was released in 1983, and Mr. Erwin had not seen it since the early 1990's. On inspection in February 2003, he found that the hardwoods planted there no longer exist. All that remains essentially are large cypress trees in deep water. A second site, called "8.4 Acre," was becoming mixed forest in part, but much of the site was shrub marsh dominated by Carolina willow (a native plant, but one that does not fit the mixed forested wetland target), pasture (Bahia) grass, and cogon grass. Lack of continued management of this site probably has contributed to its failure to develop better. It was designed to have water levels and fluctuations controlled, but the designed flow way system is not being maintained. The third site, called "84(5)," also has some mixed forested wetland, but there also are large areas of shrub marsh and cogon grass. It is possible the site has not been more successful because an outfall has not been maintained, leading to higher water levels than planned, which can lead to invasion of undesired exotic species and perhaps retard natural re-seeding. Two sites were supposed to demonstrate successfully recreated mixed wetland hardwoods (similar to mixed forested but with fewer pine trees and more cypress). The first was "Dogleg Branch," which IMC did at its Lonesome Mine. Part of this site was a good example of successfully recreated mixed hardwoods wetland, which Dr. Clewell emphasized in his testimony. However, Mr. Erwin pointed out several other pertinent factors. First, "Dogleg Branch" has been in existence for 25 years. Second, the recreated stream where the most successful mixed hardwood wetland was located was noticeably more steeply banked than the preserved area downstream from the mine. Third, adjacent uplands (mostly planted pines) suffered from significant invasions of cogon grass. The second site was another part of "8.4 Acre," but the evidence was not persuasive that it contains a good example of wetland hardwoods mixed. As previously indicated, IMC developed WRAP scores for existing wetlands on the Altman Tract that substantially and improperly understated their quality. IMC also developed WRAP scores for 80 reclaimed wetlands. Generally, those scores were as high or higher than the scores IMC gave to the wetlands on the Altman Tract. Mr. Erwin was only able to inspect 15 of the 80 recreated wetlands for which IMC had WRAP scores--namely, those used by IMC as examples of the kinds of wetlands IMC would reclaim on the Altman Tract under the CRP. Mr. Erwin did not have time to develop his own WRAP scores for all of those recreated sites. But he saw enough to be convinced that the wetlands on the Altman Tract, overall, were higher quality than the 15 recreated wetlands. Mr. Erwin's testimony was persuasive in this regard, and there is no reason to believe that the other 65 recreated wetlands are as good or better than the Altman Tract wetlands. As indicated, the Altman Tract also is characterized by high-quality native uplands adjacent to its wetlands. The evidence was that, once the uplands are disturbed for mining, they will be susceptible to invasion by exotic and nuisance species, which would then be poised to invade wetlands during dry spells. As a result, control of exotic and nuisance species on the uplands is necessary for the long-term success of recreated wetlands; and IMC's "offer" to use native species for uplands recreation and to control nuisance and exotic species on uplands proactively through herbicides, removal, and fire and to limit them to ten percent of the upland cover is not superfluous. Rather, control of nuisance and exotic species on uplands is necessary for any hope of long-term success of recreated wetlands on the site. It is not clear from the evidence whether the "offer" to limit them to 10 percent will be enough; it also is not clear whether the 10 percent limit can be met. In rebuttal, IMC recalled Dr. Durbin to counter evidence in Charlotte County's case that the type and nature of the Altman Tract would not be restored through the proposed reclaimed wetlands. Dr. Durbin noted that, according to their field notes, Charlotte County consultants who evaluated the prevalence of plants and wildlife on IMC reclamation areas during discovery found that a very high number of plants species are also found in healthy natural systems. Similarly, wildlife species observed on the reclaimed areas matched well with those on undisturbed areas. But this evidence did not address Mr. Erwin's position that presence of plant and wildlife species does not necessarily indicate their prevalence and distribution. In addition, as to his comparison of wildlife species on reclaimed wetlands versus existing wetlands on the Altman Tract, Dr. Durbin did not correlate the size and type of wetlands he was comparing. IMC's reclamation plans are complicated by the mineral interests of the Mullins Family. Reclamation necessitates control over the site, as reflected in Draft Permit provisions to limit activity on the site during the reclamation process. IMC must restrict access to its property and manage it to ensure that there is no incidental encroachment or secondary activities that might compromise mitigation success. Reclaimed wetlands must be protected from mowing and grazing activities during the establishment phase of the reclamation for five years. But IMC cannot prevent the Mullins Family from accessing its portion of the Tract to explore and mine for minerals. Depending on how the Mullins Family might choose to exercise those rights, it could interfere with IMC's plans for reclamation on the southern part of the Tract. For that reason alone, reasonable assurances have not been given that reclamation will be successful. (The rights of the Mullins Family also reduce the value of the conservation easement offered by IMC over part of the portion of Horse Creek on the Tract proposed for preservation.) In summary, even assuming that the Mullins Family does not interfere with reclamation plans, IMC only has demonstrated the consistent ability to recreate deep marshes and some ability to recreate shrub marshes. There was no demonstration of IMC's ability to recreate shallower marshes or wet prairie. There also was no demonstration of an ability to recreate the kind of diversity through "zonation" and adjacent high-quality uplands found on the Altman Tract. Recreated wetlands can serve some of the wetland functions and values present on the Altman Tract today, but reasonable assurances were not given that they can serve all of those functions and values. As Mr. Erwin put it, given the hydroperiods planned for the reclamation wetlands, reclamation will not come close to replacing the type, nature, and functions presently on the Tract. To the extent that they can, the evidence was that long- term management would be required to maintain them and prevent them from becoming invaded and in time dominated by exotic and nuisance species. Other Mitigation IMC proposes certain measures for the protection of certain listed species. These include mine-wide Scrub-Jay Habitat Management Plan to improve and protect habitat for scrub jays in the vicinity of the Altman Tract and record a conservation easement on property designated by the USFWS. This plan was included in the modified CRP covering the Altman Tract. There was no evidence of any other habitat management plans for any other fish or wildlife species, listed or unlisted, wetland- dependent or not. IMC's ERP application includes reference to plans for protection of certain listed species by relocation to safe sites, but did not include any habitat management plans other than the those for the bald eagle pair on the Tract and for scrub jays. IMC is in the process of developing a habitat management plan for the gopher tortoises and their burrow commensals (such as the eastern indigo snake, the gopher frog, and the Florida mouse) for all property owned by IMC in Hillsborough, Manatee, Polk, and Hardee Counties. A draft of the plan has been submitted to the FWCC for review. The draft plan proposes to use a model to estimate how many gopher tortoise will have to be relocated due to mining activities and determine suitable habitat on land owned by IMC for relocating them. Monitoring The Draft Permit contains extensive monitoring requirements. Through the evidence it presented, primarily through the testimony of Dr. Anthony Janicki, Charlotte County criticized several aspects of the monitoring scheme in the Draft Permit. Dr. Janicki proposed what he viewed to be an ideal monitoring system. To some extent, Dr. Janicki's views reflect more of an academic than a permitting perspective, i.e., that more data is always better. In addition, since Dr. Janicki's monitoring goals are different from DEP's in the context of permitting, the standards, extent of monitoring, and indicators of environmental health he suggests are different from those identified in the Draft Permit. But these differences generally do not invalidate the monitoring system in the Draft Permit. One basic criticism made by Dr. Janicki is that the Draft Permit does not require a baseline water quality study defined both spatially and temporally. However, such a study would require at least a year of study and possibly three years or more, depending on rainfall, to obtain enough data under different flow conditions to have confidence in the baseline. While this might be necessary to determine whether an activity will degrade water quality, e.g., in an Outstanding Florida Water, it is not necessary to determine whether Class III water quality standards are being met. Another reason given by the County for requiring such a study was to monitor nutrient loading in anticipation of Horse Creek being named an "impaired water" with specific total maximum daily loads (TMDLs). But those requirements need not be anticipated in this proceeding. If TMDLs are imposed in the future, the necessary monitoring can be imposed at that time. One of Dr. Janicki's criticisms is valid. Specific Condition 15 states that mitigation wetlands can only be released when Specific Conditions 11 and 14 are met (T. 3133- 3134). However, Specific Condition 15.d. states that DEP "may release the mitigation wetlands based on a visual evaluation, notwithstanding that all the requirements of Specific Condition 11 have not been met." Since Specific Condition 11 incorporates Specific Condition 14, this provision may also allow mitigation wetlands to be released based on a visual evaluation, even if criteria in Specific Condition 14 are not met. Release by visual evaluation would not allow a reasonable person to determine whether the recreated wetlands have met all the success criteria. The more objective standards contained in Specific Conditions 11 and 14 should not be discarded in favor of subjective visual evaluations. ERP Conditions of Approval1 ERP conditions of approval are set forth in Chapter 373, Florida Statutes, and in Rule 62-330, which incorporates certain SWFWMD Rules in effect in 1995, including Rules 40D-4.301 and 40D–4.302, and the 1995 SWFWMD BOR. To demonstrate entitlement to the Draft Permit, IMC is required to provide reasonable assurance to DEP that it will meet these conditions of approval. As to Section 1 of the Altman Tract, different conditions apply for WRP review. These conditions are less stringent than ERP conditions of approval. IMC also is required to demonstrate compliance with Chapter 378, Florida Statutes, and the implementing provisions of Rule 62C-16 to receive approval of the Modified CRP. Rule 40D-1.6105 -- Legal Control Rule 40D-1.6105(1) states that all ERPs issued under these rules "are contingent upon continued ownership, lease, or other legal control of property rights in underlying, overlying or adjacent lands." Rule 40D-1.6105(3) states that "if the ownership, lease, or other legal control is divided, such permit shall immediately terminate unless the terms of the permit are modified by the Board or the permit is transferred pursuant to District rules." As previously found, the Mullins Family has fractional mineral rights to lands underlying most of the southern half of Altman Tract, including part of the portion of Horse Creek on the Tract proposed for preservation; and they have not consented to IMC's proposed mining and reclamation. The legal interest of the Mullins Family could interfere with IMC's plans for mining and reclamation on the southern part of the Tract. The rights of the Mullins Family also adversely affect part of the conservation easement offered by IMC over part of the portion of Horse Creek on the Tract proposed for preservation. Under these circumstances, IMC does not have the necessary legal control of property rights underlying the Altman Tract for purposes of Rule 40D-1.6105. IMC's application and other submittals to DEP during the review process did not disclose the interests of the Mullins Family in the Altman Tract although IMC was well aware of those interests. There is no indication that DEP was aware of the interests of the Mullins Family before deciding to give notice of its intent to issue the Draft Permit. There was no testimony or evidence from DEP concerning the significance of the mineral interests of the Mullins Family. BOR 3.2.1 -- Elimination or Reduction of Impacts BOR 3.2.1 requires that applicants explore practicable design modifications to reduce or eliminate adverse impacts to wetlands and other surface water functions. With respect to phosphate mining, there are no practicable design modifications that would completely eliminate impacts to wetlands and still allow the underlying resource to be mined. The most severe design modification, in the context of phosphate mining, essentially amounts to a "mine or no mine" decision. As a result of pre-application conferences, IMC proposed not to mine in a portion of the flow-way of Horse Creek and the adjacent forested wetland systems. IMC and DEP take the position that the economic value of the phosphate rock resource underlying the wetlands on the Altman Tract is a factor to be considered in deciding whether additional wetlands should be avoided. Actually, BOR 3.2.1.1 states that a proposed modification will not be considered "practicable" if it "is not economically viable" and "need not remove all economic value of the property in order to be considered not 'practicable'" but that "[c]onversely, a modification need not provide the highest and best use of the property to be 'practicable.'" There was no persuasive evidence that expanding the preserved area would not be "economically viable" or that it would "remove all economic value of the property." It is clear from the evidence that IMC had no reasonable expectation that it would be allowed to mine the areas it is proposing for preservation. The evidence also was persuasive that IMC also did not initially have reason to expect that it would be allowed to mine the Central Marsh. IMC and DEP cite other so-called design modifications to reduce the impacts of phosphate mining on the Altman Tract: the proposed mining and reclamation sequence to reduce the number of wetlands that would be disturbed and not reclaimed at any point in time; the requirements that the mitigation marsh at the Manson Jenkins Project in the headwaters of the West Fork of the Horse Creek, as well as the Replacement Central Marsh on the Altman Tract, must be successfully reclaimed as "up front mitigation" before mining is allowed to occur in the existing Central Marsh on the Altman Tract; and a requirement that IMC construct the AFW so that, until mining of the Central Marsh is allowed to occur, mining elsewhere on the Tract will not adversely impact flow to the Central Marsh. While clearly beneficial, the proposed mining and reclamation sequence is limited because no recharge ditches are planned for the individual mine blocks. As previously found, this will adversely affect wetlands in adjoining areas, resulting in adverse impacts to wetlands one to two years before they are mined. It also will have an impact on wetland reclamation. The requirements for "up-front mitigation" also are beneficial--i.e., it is better than not requiring "up-front mitigation." But if success of the required "up-front mitigation" is delayed, the AFW will have to supply water for both the existing Central Marsh and the proposed Replacement Central Marsh for a correspondingly extended length of time. Reasonable assurances were not given that enough water can be supplied to both marshes to sustain required hydroperiods without adverse impacts even for the length of time contemplated by the proposed mining and reclamation sequence, much less for an extended period of undetermined length. The "up-front mitigation" is required to meet the success criteria specified in Special Condition 11 of the Draft Permit. However, full function is not restored at this point in the reclamation process. Under Special Condition 12 of the Draft Permit, IMC is required to report data on physical and biological development to DEP for at least another five years. Under Special Condition 13, development of the Replacement Central Marsh is to be monitored and maintained "to promote survivorship and growth of desirable species." Under Special Condition 14, reclaimed wetlands are not to be "released" by DEP until constructed in accordance with permit requirements, more stringent "release criteria" (summarized in Table MR-2 of the Draft Permit) are met, and no intervention in the form of irrigation, de-watering, or replanting of desirable vegetation has occurred for a period of two consecutive years. The evidence was that this often takes longer than originally envisioned. The reclaimed wetlands identified by IMC as successful examples of the reclamation proposed at the Altman Tract do not provide full wetland function despite the fact that most of them have been existence for more than 15 years. The median date of release from DEP oversight for the 15 reclaimed wetlands was 10 years. IMC also cites the AFW as a design modification under BOR 3.2.1. But clearly no mining of the Central Marsh and watercourse between it and the box culverts under SR 37 would be allowed without the AFW, and the very need for the AFW begs whether IMC should be permitted to mine those areas. Based on the facts of this case, mining the existing Central Marsh and the watercourse between the Central Marsh and SR 37 should not be allowed or, if allowed, should be delayed until the mitigation headwater marsh on the Manson Jenkins Project is released by DEP. In addition, no mining should be allowed in the area between the two forested wetland bay swamps to ensure that the ditch and berm recharge ditch system areas will be effective in protecting those preserved areas. Rule 40D-4.301(1)(a) --Water Quantity Impacts Under Rule 40D-4.301(1)(a), an ERP applicant must provide reasonable assurance that its proposed activities will not cause adverse water quantity impacts to receiving waters and adjacent lands. Surface water flows are dependent on two sources: rainfall runoff from adjacent areas; and (2) groundwater that enters surface water streams, sometimes referred to as "base flow." On the Altman Tract, both rainfall runoff and baseflow basically flows into the watercourse between the box culverts under SR 37, the Central Marsh, and the rest of Horse Creek. Surface water flow off the Tract exits where Horse Creek exits the Tract. During mining and reclamation activities on the northern half of the Tract, the ditch and berm recharge system will capture rainfall runoff on these areas and eliminate the rainfall runoff contribution from those areas to stream flow at the point where Horse Creek exits the Altman Tract. When the southern half of the Tract is mined and reclaimed later in the sequence, the ditch and berm recharge system will capture rainfall runoff from the southern half of the Tract and eliminate the rainfall runoff contribution from those areas. The ditch and berm recharge system helps maintain baseflow from those areas, except where open mine cuts are too close. The combined effect of rainfall runoff and baseflow, however, will be a reduction in surface water flow off the Altman during mining. After mining and reclamation are complete, the ditch and berm systems will no longer be required. Rainfall runoff will flow across and through the reclaimed wetlands and then flow off-site. However, as previously found, more and deeper wetlands will be present after reclamation is completed than exist today. These wetlands tend to "use," through evapotranspiration (ET), more water than a comparably sized upland area. Thus, after reclamation is completed, there will be some reduction in the amount of water contributed from the property to the stream flow where Horse Creek exits the Altman Tract. IMC did not provide DEP with any hydrologic analysis of the extent of the water quantity impact of mining and reclamation on stream flow in Horse Creek downstream from the Altman Tract prior to DEP's decision to issue notice of intent to issue the Draft Permit. Subsequently, information of this nature was provided to DEP by Dr. Garlanger. Dr. Garlanger performed modeling to assess the potential significance of flow reductions anticipated during mining and reclamation at the Tract. The modeling results predicted that during mining and reclamation there will be some reduction in the flow rate in Horse Creek leaving the Tract during the 30 percent of the year when flow leaves the Tract. The predicted reduction, however, would be only a small percentage of the total flow at any point in time. Furthermore, the only effect of the predicted reduction in flow would be to reduce slightly the depth of the water in the channel. This predicted depth reduction probably would have no adverse ecological impact. Dr. Garlanger predicted that, after mining and reclamation are completed, flow in Horse Creek at the property line actually would increase very slightly on the average, but only because a portion of the runoff that now enters Horse Creek a bit further downstream from the Tract would report to the exit of Horse Creek from the Tract post-reclamation. Using the predictions from his modeling, Dr. Garlanger also assessed the worst-case impact of the predicted flow reductions from the Tract on several downstream locations. His analysis predicted that, during mining, there would be slight flow reductions occurring during otherwise high-flow conditions with the magnitude of such flow reduction decreasing as one moves downstream. Flow impacts at Charlotte Harbor were predicted to be miniscule and immeasurable. Even where measurable impacts were predicted at the closer downstream locations, the only anticipated impact was a slight reduction in water depth that is of no ecological consequence. During low-flow periods, no flow reduction impacts were predicted at any downstream locations. Flow impacts predicted after reclamation is complete at the Tract were even less than those predicted during mining. Whether IMC gave reasonable assurance as to the water quantity impact of mining and reclamation on the Altman Tract on receiving waters and adjacent lands depends completely on the validity of the modeling analysis performed by Dr. Garlanger. Nonetheless, and even though Dr. Garlanger's analysis was not prepared until after DEP's notice of intent, there was no evidence as to DEP's evaluation of the analysis since no DEP witness was called to give opinion testimony on this (or any other) issue. Dr. Garlanger's analysis essentially divided the Altman Tract into uplands and wetlands. For the uplands, he simulated runoff and baseflow into the wetlands using a modified version of the Environmental Protection Agency's (EPA's) Hydrologic Evaluation of Landfill Performance ("HELP") Model, which was run in a continuous manner with daily rainfall for 25 years. Dr. Garlanger then used those results as an input for another model for the wetlands to simulate change in wetland storage. He used a spreadsheet program to keep track of the changes on a daily based. Whenever water levels in the wetlands exceeded storage capacity, the excess water was treated as stream flow. This analysis was performed for five scenarios: current conditions; pre-mining at Four Corners (with a larger testing area); during mining at the time point of maximum capture or severance of acreage from the natural system; post- reclamation on the Altman Tract only; and post-reclamation on the entire reclaimed watershed. Dr. Garlanger's modified HELP model was not calibrated. Calibration is the process of verifying that the computer program matches real life conditions. Calibration is necessary to check the ability of the model to make reliable and accurate predictions. Since Dr. Garlanger's model was not calibrated, it only could be used for interpretative (i.e., comparative) purposes. The HELP Model was specifically designed to evaluate the movement of water through the top of a landfill into the leachate collection system. The HELP Model User's Manual specifically states "the model should not be expected to produce credible results from input unrepresentative of landfills." (T. 2004; Co. Ex. 55). Recognizing that the Altman Tract is not representative of a landfill, Dr. Garlanger modified the primary groundwater flow equation in the HELP model by changing several lines of computer code. Dr. Garlanger's modification of the HELP model has not been sanctioned by the authors of the HELP Model, nor has it gone through EPA's peer review and administrative approval process. The County's hydrologist, Mr. Phil Davis, questioned the validity of Dr. Garlanger's analysis on numerous grounds. Many of his questions were answered by Dr. Garlanger in rebuttal. But some important questions remain. One of Mr. Davis' criticisms was an error he thought Dr. Garlanger made in using Dupuit seepage equation. In rebuttal, Dr. Garlanger explained that there was no error because he was using the Uniform Infiltration and Drainage Equation, not the Dupuit equation. But Dr. Garlanger's report stated that he used yet another seepage equation, called Darcy's Law, which Dr. Garlanger called the "mother of all other seepage equations." Another of Mr. Davis' criticisms was that much better modeling tools were available to IMC, instead of the combination of spreadsheet models and other models, including the modified HELP model, used by Dr. Garlanger. The best of them, according to Mr. Davis, is one called the Integrated Hydrologic Model, which was developed by Florida Institute of Phosphate Research ("FIPR") specifically to model the pre-mining and post- reclamation hydrology of a phosphate mine project (T. 2111- 2115). In rebuttal, Dr. Garlanger acknowledged the existence of more complicated, numerical models that he could have used. He testified that he did not use any of them because he was "comfortable with the HELP model," having been "using it for a long time." He "only had to make a very minor modification," "basically one line of computer model code to make the HELP model calculate accurately the groundwater outflow." (T. 3401- 3402). He testified that he had been using his modified HELP model for three years. He claimed that his model was "peer- reviewed" in the sense that he was using it for IMC's pending Ona Mine application. As part of the "Team Permitting Process" for the Ona Mine application, he discussed his modeling approach with engineers and hydrologists from DEP and SWFWMD on the "hydrology work group" and stated: "Several suggestions were made. I believe I incorporated most of the suggestions into the model." (T. 3402-3403). There was no corroborating testimony or evidence from DEP or SWFWMD. Mr. Davis also questioned whether Dr. Garlanger's modification of the HELP model appropriately took into account changes in the surficial aquifer as a result of mining and reclamation. It appears that Dr. Garlanger's HELP simulations all used the same soil and aquifer parameters. The surficial aquifer presently consists of topsoil, overburden, and matrix. During active mining, the site will consist of some combination of open mine pits filled with recirculation water, some mined pits filled with sand tailings, and other mined pits filled with sand tailings and topsoil. In addition, IMC may throw overburden up against some or all mine cuts to help prevent seepage of groundwater flow out of the mine cuts. As a result, there will be vertical layers of overburden in parts or all of the site. Dr. Garlanger testified in rebuttal that he actually analyzed soil and aquifer parameters and determined that they would be the same before mining, during mining, and post- reclamation. Again, there was no opinion testimony from DEP. It is clear that proposed activities on the Altman Tract will reduce stream flow in Horse Creek to some extent. It also is clear that phosphate mining historically has contributed to some extent to decreased stream flow in the Peace River. As mining moves south, more runoff will be captured during mining since the unit rate of runoff is higher in the Lower Basin of the Peace River due to different soil conditions there. Mr. Davis testified that he believed the capture rate for the Altman Tract to be seven to nine inches a year--as much as 50 percent more than estimated by Dr. Garlanger. (T. 2192). Given the importance of surface water flow to the ecology of Horse Creek, the Peace River, and Charlotte Harbor, additional assurances should be required to better quantify the decrease in stream flow in Horse Creek and downstream that will result from mining the Altman Tract through use of a better model and further scrutiny of the soil and surficial aquifer parameters used for modeling. With regard to groundwater quantity, the evidence demonstrated that the ditch and berm recharge system generally will be effective in maintaining surficial aquifer water levels in adjacent lands and wetlands during mining and reclamation. Following reclamation, groundwater levels probably will return essentially to pre-mining elevations. Mr. Davis questioned whether lower post-reclamation topography in the southern end of the Altman Tract could cause a problem. A large reclaimed wetland only 100-200 feet from the southern property boundary would be five feet deeper than its pre-mining counterpart and could possibly cause drawdown impacts to wetlands in the adjoining Manatee River Basin in that location. Mr. Davis' concern was not directly rebutted by IMC, but it was not enough to overcome IMC's reasonable assurances as to water quantity impacts. As previously found, while the ditch and berm recharge systems generally would provide adequate ground water flow to the preserved wetlands on the Altman Tract during mining, reasonable assurances were not given that there will be no adverse impacts on the two forested bay swamps to be preserved; the ditch and berm system tracks the northern boundaries of those wetlands so closely that they may well be impacted through loss of surface water runoff and perhaps also groundwater from the north during mining. (4) Rule 40D-4.301(1)(b) -- Flooding An ERP applicant must demonstrate that its activities will not cause an increase in on-site or off-site flooding potential. To make this demonstration, a storm water analysis is performed. Rule 40D-4.301(1)(b) and BOR 4.2 require that predicted peak discharges from a mining site during a 25-year/24- hour storm event after mining and reclamation are completed may not be greater than that which would have occurred prior to mining or other development in the watershed. Under BOR 4.2.a.1, the allowable discharge is the peak rate at which runoff leaves the property by gravity under existing site conditions. Under BOR 4.2.b, unless otherwise specified, off-site discharges for the pre-mining and reclaimed conditions shall be computed using SWFWMD's 24-hour, 25-year rainfall maps and Soil Conservation Service's Type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition 11. Several peak flow analyses meeting the BOR requirements were discussed at the hearing in this case. All concluded that the post-reclamation peak discharges would be less than pre-mining peak levels. DEP relied on them in deciding to give notice of intent to issue the Draft Permit. Specifically, Mr. Steve Partney, DEP's reviewing engineer, testified that he relied primarily on an analysis prepared by Florida Engineering Design (FED), as the last analysis submitted in response to DEP's questions during the review process. All of these analyses utilized rainfall runoff models. Pickett and Associates (Pickett) and FED utilized the HEC-1 Model, and FEES utilized the AdICPR model. In its review of these analyses, DEP did not perform any independent modeling or calculations to verify the predicted flows. None of these models were calibrated; as a result, they only can be used for interpretative (i.e., comparative) purposes. All of these hydrologic analyses suffered from deficiencies, which rendered the model results unreliable. None of them accounted for water storage (retention or detention) on- site either pre-mining or post-reclamation; all essentially produced rainfall runoff hydrographs. FED's analysis improperly routed water out of wetlands located on off-site clay settling areas, and Pickett's misplaced a decimal point in defining the slope of the watershed. As a result, the discharges predicted by all these analyses were too high. The estimates for the five to 7.5 square mile Altman Tract drainage basins modeled ranged from 14,796 to 959 cubic feet per second (cfs), with corresponding peak unit flow rates ranging from 1,887 to 185 cfs per square mile. The peak flows were many times larger than the 25-year peak flood estimates at the gauging stations on Horse Creek near Arcadia, which has a 218 square mile drainage basin, and even on the Peace River at Arcadia, which has a 1,367 square mile drainage basin. They are also much greater than peak flows measured at other stream gauges in the Peace River with drainage areas much greater than the one simulated in this case. While none of these model predictions were reliable, the models still are useful for comparative purposes as an interpretive tool. All predicted lower peak flows after mining and reclamation than before. This information, together with the knowledge that there was going to be an increase in the amount of wetland acreage on the Tract, was a sufficient basis for a finding that there would not be increased flooding potential. In its case-in-chief, IMC presented the testimony of Dr. John Garlanger on an empirical study he performed primarily to assess the AFW to more accurately estimate the actual anticipated peak flows at the property. Having done his study for the AFW, it was relatively easy for him to use the same analysis to predict peak flows where Horse Creek exits the Tract. Employing a regional multiple regression analysis technique, Dr. Garlanger utilized actual historical flood flow information from nearby streams and estimated a pre-mining peak flow rate of 227 cfs exiting the property and a post-reclamation peak flow rate of 203 cfs at the same location. The County criticized Dr. Garlanger's regional multiple regression analysis as being a modification of a USGS- sanctioned regression equation developed for the State of Florida by W.C. Bridges of the United States Geological Survey in 1982. As indicated in a report submitted by Dr. Garlanger in March 2000, the Bridges equation would predict a post- reclamation peak flow for the Altman Tract that is a few percentages higher than the pre-mining peak flow. (798 cfs vs. 763 cfs, although other peak flows were indicated elsewhere in Dr. Garlanger's testimony). (T. 854, 856, 3492). But this is because use of the Bridges equation for both pre-mining and post-reclamation does not account for the proposed increase in storage on-site post-reclamation. Bridges' method recognized that the presence of lakes and wetlands in the watershed would affect flood flows. He took into account the actual area of lakes in a particular watershed and then assumed that wetlands would cover an additional three percent of the drainage area. However, in the region of Florida where the Altman Tract is located, there are few lakes but lots of wetlands in the watersheds involved. For that reason, Dr. Garlanger modified the Bridges equation and used the actual wetland percentage present in the watersheds for his analysis. Statistical testing gave Dr. Garlanger a very high confidence level in the results from use of his modified equation. The County's criticism of Dr. Garlanger's modification of the Bridges equation was based primarily on a misunderstanding that wetlands assumed to be "full" would provide no storage capability and would have no impact upon the flooding conditions on the Tract. Actually, "full" wetlands have no more retention capacity and begin to overflow. Because of the nature and configuration of wetlands, however, additional waters reporting to these systems do not immediately flow downstream. Instead, the water is detained in the wetland systems as it overflows laterally and only gradually discharges waters to downstream locations. This detention capacity of wetlands provides significant flood control function and was properly taken into account in Dr. Garlanger's analysis. The County also criticized Dr. Garlanger and the other IMC consultants for making no change in their models to account for changes in the composition of the surficial aquifer post-reclamation. However, Dr. Garlanger explained in rebuttal that soil storage capacity of the surficial aquifer affects the runoff curve numbers used as parameters in the various models. He testified that he reviewed USGS measurements for mined and unmined areas and found that the curve numbers were very similar for pre-mined and post-reclamation conditions. For that reason, he did not think using the same runoff curve numbers pre-mining and post-reclamation would introduce any significant error into the model results. The County also criticized Dr. Garlanger for using four gauging stations on Horse Creek for data to develop his regional regression equation. This may have introduced bias into his analysis, but the County made no attempt to quantify the error that may have been introduced. The County also criticized Dr. Garlanger's regional multiple regression analysis for not taking into account antecedent moisture conditions. However, Dr. Garlanger explained that, while he did not use the "Soil Conservation Service's type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition 11," as required by BOR 4.2.b, his equation accounted for antecedent moisture conditions by using actual peak flow data. Notwithstanding the County's criticisms, Dr. Garlanger's modification of the Bridges equation probably produced the most accurate peak flow study in evidence in this case. While Dr. Garlanger's study does not meet the technical requirements of BOR 4.2.b, it supplements the earlier analyses and provides additional assurance that post-reclamation peak discharges from the Altman Tract probably will not exceeding pre- mining peak discharges. Rule 40D-4.301(1)(c) -- Impacts to Surface Water Storage and Conveyance Capabilities IMC has agreed to modify the point of connection between the Replacement Central Marsh and the preservation area based on recommendations from Dr. Garlanger to minimize any disturbance of the preserved area. As indicated, Dr. Garlanger used his regional multiple regression analysis to assess the capacity of the AFW to convey anticipated peak flows during its operation and opined that the AFW, as designed, will carry these flows without difficulty. However, his analysis raised some concerns with regard to erosion control. For that reason, he recommended and IMC agreed to implement minor design revisions at both ends of the AFW: the 90-degree "elbow" turn at the inlet from the culverts will be protected from erosion by the placement of rip-rap; and the outlet to the Central Marsh will be modified to allow water to sheet flow at a slower rate when entering the Central Marsh. (IMC Ex. 96). With these changes, Dr. Garlanger predicted that anticipated flows through the vegetated AFW would not cause erosion in the structure or downstream. The County's criticisms of Dr. Garlanger's regional multiple regression analysis have been addressed. See Findings 174-176, supra. The County's witnesses did not perform any independent modeling of anticipated flows through the AFW, and Dr. Garlanger's analysis provided reasonable assurance that peak flows would neither cause erosion nor overtop the AFW. Of all the peak flow analyses, only Pickett's analysis predicted peak flows high enough to cause erosion and to overtop the AFW. But Pickett's extremely high peak flows were clearly erroneous. A hydrologic analysis was also performed to ensure that the Replacement Central Marsh would be adequate to carry anticipated peak flows. Taken together, the evidence proved that storage and conveyance capabilities will be more than adequate to handle peak discharges without increasing flooding either upstream or downstream of the Altman Tract both during mining and after reclamation. Rule 40D-4.301(1)(d) -- Fish & Wildlife Rule 40D-4.301(1)(d) requires that IMC provide reasonable assurances that its proposed activities "will not adversely impact the value of functions provided to fish and wildlife, and [l]isted species, including aquatic and wetland dependent species, by wetlands, other surface waters and other related resources of the District." BOR 3.2.2 requires IMC to provide reasonable assurances that its proposed activities "will not impact the values of wetlands, other surface waters and other water related resources of the District, so as to cause adverse impacts to: (a) the abundance and diversity of fish, wildlife and listed species; and (b) the habitat of fish, wildlife and listed species." It is clear from the evidence that the proposed mining of the Altman Tract will have adverse impacts on fish and wildlife resources on the Altman Tract. IMC characterizes these impacts as "short-term" and "localized" and notes that "temporary destruction of habitat and displacement of individuals is an unavoidable consequence of mining activities." IMC proposes to mitigate for these impacts through the implementation of "special measures" and by reclaiming the Tract to more and better wetland wildlife habitat than presently exists. However, as previously found, reasonable assurances have not been provided that the "special measures" and reclamation will offset the adverse impacts. See Findings 103-126, supra, and 220-222, infra. Rule 40D-4.301(1)(e) -- Water Quality Rule 40D-4.301(e) requires that IMC provide reasonable assurances that its proposed activities "will not adversely affect the quality of receiving waters such that the water quality standards . . . will be violated." According to Rule 62-312.080(1), this is essentially the same standard applicable to the WRP for Section 1 of the Altman Tract. Water within active mining areas will be retained within the mine's water recirculation system. Any necessary discharges will be made from a permitted outfall located on other property owned by IMC. Years of sampling and analysis demonstrate that water discharged from IMC's permitted outfalls is of high quality and reflects a very high rate of compliance with permit criteria. The waters on the Altman Tract and in Horse Creek where it exits the Tract are classified by DEP as Class III water bodies. IMC provided reasonable assurances that, after reclamation, surface water bodies on the Altman Tract should be able to achieve applicable Class III surface water quality criteria. The extensive water quality monitoring conducted by IMC on reclaimed areas demonstrates that water leaving the reclaimed areas and entering surface water bodies meets applicable water quality standards. Reclaimed wetland areas will not be connected to waters of the state until water quality criteria are met. Reasonable assurances were given that there will be no water quality impacts on any Class I waters, any Outstanding Florida Water (OFW) or aquatic preserve, or any Class II waters. The first downstream Class I water is 41 miles from the Tract; the Charlotte Harbor OFW is 51 miles away, and the nearest Class II water (approved for shellfish harvesting) is 55 miles away. Extensive groundwater quality monitoring in the vicinity of phosphate mining operations has demonstrated that such operations do not adversely impact the quality of groundwater in the surficial aquifer or in the deeper intermediate or Floridan aquifer systems. Charlotte County argued that adverse water quality impacts will occur downstream of the AFW (namely, discharge of turbid and sediment-laden water into the Central Marsh) if the flow velocity through the AFW becomes excessive or if the water overtops the AFW. But the evidence proved that such concerns are theoretical only, and unlikely to occur. The County also argues that destruction of stream habitat on the Altman Tract will result in a lack of habitat for benthic organisms and higher nutrient loadings and concentrations. However, the most significant stream habitat not proposed to be preserved is found in parts of the Central Marsh and in the watercourse between it and the box culverts under SR 37; most of the first-order streams on the Tract are the other agricultural ditches, which are less significant streams. For that reason, reasonable assurances were given that, if this kind of impact occurs, it would be limited, and applicable water quality standards probably would not be violated. Rule 40D-4.301(1)(f) -- Secondary Impacts Rule 40D-4.301(1)(g) requires IMC to provide reasonable assurances that its proposed activities will not cause adverse secondary impacts to water resources. There was no evidence of any secondary impacts. All impacts are primary impacts resulting from IMC's proposed activities on the Altman Tract. Rule 40D-4.301(1)(g) -- Minimum Flows and Levels Rule 40D-4.301(1)(g) requires IMC to provide reasonable assurances that its proposed activities will not adversely impact the maintenance of surface or groundwater levels or surface water flows "established in pursuant to" Section 373.042, Florida Statutes. No minimum flows or levels have been established by rule pursuant to Section 373.042, Florida Statutes, for any water body potentially impacted by the proposed mining or reclamation at the Altman Tract, including Horse Creek or the Peace River. See ManaSota-88, Inc., et al. v. IMC Phosphates Co., DOAH Consolidated Case Nos. 01-1080, etc. (DEP Final Order Nov. 22, 2002)("Manson Jenkins Final Order"), Ruling on Exception II ("Minimum flows and levels established pursuant to Section 373.042, Florida Statutes, must be adopted by rule, not on a case-by-case permit basis"); Findings of Fact 110, 199, 267 and 284. Until applicable minimum flows and levels are established by rule, IMC's proposed activities cannot impact the maintenance of any minimum flows and levels. The Peace River Regional Water Supply Authority's (Authority's) water plant is downstream of the confluence of Horse Creek and the Peace River. The Authority has a water use permit ("WUP") authorizing water withdrawals from this facility through 2016. Charlotte appears as a permittee on the WUP. Standard Condition 8 of the WUP requires surface water withdrawals to cease or be reduced if the Peace River's flow falls below minimum levels established in Florida Administrative Code Chapter 40D-8. Once SWFWMD formally establishes minimum flows and a recovery strategy for the Peace River, this permit condition will require the Authority to cease or reduce its withdrawals to achieve the minimum flow. The County wants any Draft Permit issued in this case to include a provision similar to the one in the Authority's WUP. But the Draft Permit is not a WUP, and there was no evidence as to any practicable way to impose a similar condition in the Draft Permit. Rule 40D-4.301(1)(h) -- Works of the District Rule 40D-6.051(5) states that no separate SWFWMD "Works of the District" permit under Rule 40D-6.041 will be required if SWFWMD issues an ERP for a project. The testimony of DEP witnesses was that DEP and SWFWMD have an informal agreement that no separate SWFWMD "Works of the District" permit under Rule 40D-6.041 will be required if DEP issues an ERP for a project. Rule 40D-4.301(1)(h) requires IMC to provide reasonable assurances that its proposed activities "will not cause adverse impacts to a work of the District established pursuant to Section 373.086, F.S." Under Rule 40D-6.031(2)(d), tributaries of the Peace River are "Works of the District." As previously found, Horse Creek is a tributary of the Peace River. Rule 40D-6.021(1) defines "tributaries" to mean "the contributing streams and other watercourses including brooks, rills, and rivulets, extending upstream to the point water usually begins to flow in a regular channel, with an alveus, or bed, and banks or sides, or to the point where the lines of ordinary high water marks converge, whichever extends the farthest upgradient." Section 373.019(11), Florida Statutes, also defines "other watercourses" to mean "any canal, ditch and other artificial watercourses in which water usually flows in a defined bed or channel. It is not essential that the flowing be uniform or uninterrupted." As previously found, Horse Creek passes completely through the Altman Tract. For that reason, the portions of Horse Creek passing through the Altman Tract are part of the Horse Creek tributary of the Peace River and are "Works of the District." It is clear that the "Works of the District" on the Altman Tract will be adversely affected by IMC's proposed activities. Mining will destroy and remove them upgradient of the proposed preserved area. IMC characterizes the destruction and removal of the Horse Creek tributary on the Altman Tract as a "temporary disturbance" and relies on its proposal to maintain flows through use of the AFW, as well as its position that these areas "will be reclaimed in a manner that will enhance their ecological function." Mitigation appears in Chapter 3 of the BOR, which is titled "Environmental." According to BOR 3.2, the criteria contained in Chapter 3 (including mitigation) apply to the "Environmental Conditions for Issuance" contained in BOR 3.1.1. Rule 40D-4.301(1)(h) is not identified in BOR 3.1.1 as one of the "Environmental Conditions for Issuance." If mitigation is available to offset adverse impacts to "Works of the District," reasonable assurances were not given that IMC's proposed reclamation will offset those impacts. As found, reclamation will not restore existing stream-like flow in parts of the Central Marsh and between it and the box culverts under SR 37. It was not proven that eliminating these features will "enhance" ecological function. Rule 40D-4.301(1)(i) -- Engineering and Scientific Capability Rule 40D-4.301(1)(i) requires IMC to provide reasonable assurances that its proposal "is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed." As reflected in previous findings, reasonable assurances were not provided as to certain aspects of IMC's proposal. Reasonable assurances were not provided that both the existing Central Marsh and proposed Replacement Central Marsh can be hydrated from off-site flow when this would be necessary. Reasonable assurances were not provided that the ditch and berm recharge system will be effective in preserving the two bay swamp forested wetlands. Reasonable assurances were not provided that stream flow to receiving waters will not decline. Reasonable assurances were not provided as to all aspects of the reclamation plan. In other respects, IMC's proposal is capable of being effectively performed and will function as proposed, based upon generally accepted engineering and scientific principles. Rule 40D-4.301(1)(j) -- Financial, Legal and Administrative Capability (BOR 3.3.3.7, Financial Responsibility) Rule 40D-4.301(1)(j) requires IMC to provide reasonable assurances that its proposed activities "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." It is clear from the evidence that IMC owns the surface lands and the phosphate mineral interests to a depth of 150 feet. But, as previously found, IMC did not give reasonable assurance that it has the ability to prevent the Mullins Family from exercising its rights to explore and mine for minerals on the southern half of the Altman Tract. Without the ability to exclude the Mullins Family, IMC cannot give reasonable assurance that it can perform mining and reclamation of those lands, as proposed. In addition, the Mullins Family's mineral rights adversely impacts part of the conservation easement offered by IMC. BOR 3.3.7.6 allows an applicant to establish financial responsibility by several means, including "(d) Deposit of cash or cash equivalent into an escrow agreement." BOR 3.3.7.7 required IMC to submit an estimate of the total cost of wetlands mitigation addressing the relevant elements of cost as set forth in the BOR. The estimate is to be prepared assuming that a third-party contractor would do the mitigation work. The estimate is to be submitted along with a draft of the financial responsibility mechanism. IMC's most recent proposal estimates mitigation cost of $8,320 an acre for herbaceous wetlands, $8,722 an acre for shrub marshes, and $11,415 an acre for forested wetland system, for a total cost of $6.7 million. (T. 125; IMC Ex. 47). But the County presented evidence through its expert, Kevin Erwin, that the actual cost will be $25,660 an acre for herbaceous wetlands and $28,484 an acre for forested wetlands. (T. 2799- 2801; Co. Ex. 1612). IMC did not rebut the County's evidence. As a result, IMC did not provide reasonable assurances that its demonstration of financial responsibility is sufficient. In addition, IMC's draft escrow agreement is to be funded with cash on an annual basis. IMC takes the position that this is acceptable because BOR 3.3.7.6 requires establishment of financial responsibility "for each phase of the project." But calendar years of the proposed mining and reclamation sequence are not separate phases of the mining and reclamation project and should not be considered to be separate phases for purposes of BOR 3.7.7.6. IMC's ERP application states on page SP-01960 that it is not a multi-phase permit. The Draft Permit, in Table 1-A, refers to just two project phases--the first lasting six years, and the second spanning the rest of the project. According to BOR 2.1, a phased project is one where the applicant obtains a conceptual permit encompassing all project phases before obtaining a construction permit for the first phase; when no conceptual permit has been obtained, "applications for phases of a project may be considered only when the phases are totally independent of, or make sufficient provisions for, adjacent lands." Here, the years in IMC's proposed mining sequence are not totally independent. As previously found, wetlands in the active mining blocks will be impacted by mining of adjacent lands. IMC does not offer any financial responsibility for proposed reclamation of uplands. Mining and reclamation of uplands are not considered part of the "project" for purposes of Rule 40D-4.301(1)(j) and the financial responsibility BOR provisions. However, as found, successful reclamation of uplands is required in this case to give reasonable assurances as to successful reclamation of the wetlands. Rule 40D-4.302(1)(a) -- Public Interest Balancing Test Rule 40D-4.302(1)(a) requires that IMC provide reasonable assurances that its proposed activities will not be contrary to the public interest, upon consideration of the seven factors listed in the rule. (According to Florida Administrative Code Rule 62-312.080(2), this is essentially the same standard applicable to the WRP for Section 1 of the Altman Tract. See also Section 403.918(2), Florida Statutes (1991). Public health, safety, or welfare or the property of others As found, the project is located on IMC's private property and will not adversely affect public health, safety, or welfare, or the property of others in any way not addressed under one of the other factors. Conservation of Fish & Wildlife The proposed activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Reasonable assurances were not given that the proposed mining sequence will prevent adverse impacts; it will be of some benefit to some mobile wildlife species but not enough to avoid adverse impacts on conservation of them and their habitat. Measures proposed by IMC to help conserve fish and wildlife, including endangered or threatened species, and their habitats both on-site and off-site will be beneficial, but reasonable assurances have not been given that the overall effect of the proposed activities will not be adverse. IMC suggests that its voluntary establishment of a conservation easement over the preserved flow-way of Horse Creek and the Replacement Central Marsh will assure that the fish and wildlife values in these areas will be protected in perpetuity. However, that would not be true as to the portions of preserved flow-way where the Mullins Family has mineral rights. In addition, as of the date of the final hearing, the Board of Trustees of the Internal Improvement Trust Fund had not accepted the offered conservation easement. Without acceptance and management, the benefits of the offered conservation easement are not assured. IMC also suggests that its offered conservation easement and will act as a wildlife corridor and will connect to a larger regional network of habitat corridors conceived of and being encouraged by DEP known as the Integrated Habitat Network (IHN). However, it is not clear from the evidence how or if the IHN actually will tie into the Altman Tract. Navigation, flow or harmful erosion or shoaling As found, reasonable assurances have not been given that the proposed activities will not adversely affect the flow of water on the Altman Tract--specifically, off-site stream flow, on-site stream flow between the box culverts under SR 37 and the Central Marsh, and the flow required to hydrate both the existing Central Marsh and the proposed Replacement Central Marsh during the times this will be required. Otherwise, reasonable assurances have been given that the proposed activities will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. Horse Creek and the other water bodies on the Altman Tract are private and not navigable. With design modifications recommended by Dr. Garlanger and accepted by IMC, reasonable assurances have been given that the AFW will not cause erosion either within the AFW or in downstream waters. Based on Dr. Garlanger's recommendation, IMC has also agreed to revise the post- reclamation topography to match the elevation of the roadside ditch along SR 37 with bottom contour elevations of the Replacement Central Marsh. (T. Garlanger at 578; IMC Ex. 97, 98). With this revision, post-reclamation flows through this area will not cause erosion. Fishing, recreational values or marine productivity The proposed activities will not adversely affect the fishing or recreational values or marine productivity in the vicinity. The Altman Tract is privately owned and does not currently support public recreation or fishing activities. Being approximately 50 miles upstream from Charlotte Harbor, there is no marine productivity in the area. Following completion of reclamation mining activities, the Altman Tract will support similar fish and recreational values as currently exist on the Tract. Temporary or permanent nature Section 378.202(1), Florida Statutes, states that phosphate mining is a temporary use of the land. Under Chapter 378, Florida Statutes, and Rule 62C-16, mine operators are required to expeditiously reclaim mined land to a beneficial use. In the case of the Altman Tract, some combination of mining and reclamation activities are planned to take place for approximately 12 years, with reclamation activities being completely at the end of 17 years. However, reclamation could take longer than planned. When completed, the reclamation project becomes permanent in nature. Impact on significant historical and archeological resources. The Tract contains no significant historical or archeological sites. Current conditions and relative value of functions performed by affected areas. As previously found, the current condition and relative value of functions performed by the Altman Tract are very high. Reasonable assurances were not given that conditions and relative value of functions after reclamation will be as high. BOR 3.3 -- Mitigation Unavoidable adverse impacts to wetland functions caused by phosphate mining may be offset by mitigation as provided in BOR 3.3. BOR 3.3 cautions: "In certain cases, mitigation cannot offset impacts sufficiently to yield a [permittable] project. Such [cases] often include activities which . . . adversely impact habitat for listed species, or adversely impact those wetlands or other surface waters not likely to be successfully recreated." Under Section 373.414(6), Florida Statutes, phosphate mining wetland reclamation activities are deemed to be appropriate mitigation for purposes of the ERP process if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities. In this case, IMC provided reasonable assurances that water quality will be maintained but did not prove that proposed reclamation activities will maintain or improve the function of the biological systems present at the site prior to the commencement of mining activities. Rule 40D-4.302(2) -- Consideration of Past Violations DEP reviewed issues dealing with IMC's compliance with the ERP rules. DEP also took into consideration compliance issues with SWFWMD. All compliance issues related to both have been resolved. Rule 40D-4.302(1)(b) -- Cumulative Impacts Analysis Section 373.414(8)(a), Florida Statutes, requires DEP to consider the cumulative impacts of a proposed project on surface water and wetlands within the same drainage basin when evaluating an ERP application. Rule 40D-4.302(1)(b) requires an applicant for an ERP to provide reasonable assurance that the project will not cause unacceptable cumulative impacts on wetlands and other surface waters. Section 403.919, Florida Statutes (1991), also contained a somewhat different requirement for consideration of cumulative impacts, called "equitable distribution," which applies to WRPs. Section 373.414(8)(b), Florida Statutes, provides that, if an applicant proposes mitigation within the same drainage basin as the adverse impacts to be mitigated, and if the mitigation offsets these adverse impacts, then DEP shall consider the regulated activity to meet the cumulative impact requirements of Section 373.414(8)(a). See also Manson Jenkins Final Order, Ruling on Exception I; Finding of Fact No. 282. To the extent that IMC relies on reclamation for mitigation, the mitigation is confined to the Altman Tract. If this mitigation offsets adverse impacts, as IMC claims, there would be no need to consider cumulative impacts, since all mitigation would be within the same drainage basin as the adverse impacts to be mitigated. The only off-site mitigation proposed by IMC in this case would relate to parts of the "special measures" proposed for protection and conservation of wildlife. The County criticized IMC for not assessing the cumulative impacts on scrub jays since mitigation for the loss of scrub jays and scrub jay habitat on the Altman Tract is to occur outside the Peace River Basin. However, scrub jays are not wetland-dependent species and need not be included in a cumulative impacts analysis under the applicable statute and rule. On the other hand, if the proposed mitigation does not offset the adverse impacts of the proposed project, the project's impacts would not be permitted, and a cumulative impacts analysis would be superfluous. In this case, reasonable assurances were not given that proposed reclamation will offset impact. If the Draft Permit is not issued for that reason, cumulative impacts would not have to be addressed. While perhaps unnecessary, IMC presented an analysis prepared by Dr. Garlanger on the cumulative impacts of phosphate mining on flow conditions in the Horse Creek sub-basin and in the Peace River Basin. Dr. Garlanger used information gathered by another IMC consultant as to the acreage mined and reclaimed in the Peace River Basin from 1978 through 2002, and as to acreage anticipated to be mined and reclaimed between 2003 and 2027. Using information from his other modeling efforts, including his modified HELP model, Dr. Garlanger estimated a "maximum capture rate" for lands undergoing mining and an "ET loss rate" for reclaimed lands. In arriving at the "maximum capture rate," Dr. Garlanger assumed that all runoff would be captured by the ditch and berm recharge system surrounding the acreage being mined. This was a conservative assumption in that some water is discharged through outfalls permitted under the National Pollution Discharge Elimination System (NPDES). On the other hand, Dr. Garlanger assumed that there would be no reduction in baseflow if all ditch and berm recharge systems are maintained and operated correctly. While probably reasonable for purposes of his analysis, this may have been a liberal assumption in that there might be some reduction in baseflow contributions to stream flow during mining. Dr. Garlanger estimated a "maximum capture rate" of 0.56 cfs per square mile. In arriving at the "ET loss rate," Dr. Garlanger analyzed the post-reclamation land forms and their accepted average ET rates, together with estimates in ET changes calculated in connection with other mines. Using his professional judgment, he decided to use an "ET loss rate" of 0.05 cfs per square mile for reclaimed lands. Dr. Garlanger then applied his "maximum capture rate" and "ET loss rate" to the average number of acres mined and reclaimed during the period 1978 through 2002. This produced an estimated 2.71 cfs decrease in average flow in the Horse Creek sub-basin basin, both at SR 64 and at SR 72. He then applied his "maximum capture rate" and "ET loss rate" to the average number of acres anticipated to be mined during the period from 2003 through 2027. This resulted in estimates of decreases in average flow in the Horse Creek sub-basin of 11.70 cfs at SR 64 and 17.75 cfs at SR 72 (where cumulative flow impacts are higher because more mining will occur further south in the basin). Dr. Garlanger labeled the difference between the estimated decrease in average flow for 1978-2002, and the projected decrease in average flow for 2003-2037--i.e., 8.99 and 15.04 cfs, respectively--as the "cumulative impact" at those locations. Flow duration curves using 1978-2002 average flows as the baseline were used to demonstrate that so-called "cumulative impacts" would mean lower levels during periods of high flow (less than 25 percent of the time) but insignificant differences during periods of low flow (the rest of the time). Dr. Garlanger then performed similar analyses, using the same "maximum capture rate" and "ET loss rate," for the part of the Peace River Basin above Arcadia and for the entire Peace River Basin above Charlotte Harbor. The estimated average decrease in flow was different at these two locations during the "baseline" period: 60.13 cfs at Arcadia; and 62.84 cfs at Charlotte Harbor. The projected average decrease in flow also was different at the two locations in the later period, 2003- 2027. Because the average acreage expected to be mined in the Peace River Basin in 2003-2027 is much less than the average acreage expected to be reclaimed, the average decrease in stream flow at the two locations is expected to be less than in the baseline period: 33.15 cfs at Arcadia; and 18.12 cfs at Charlotte Harbor. Dr. Garlanger labeled the differences as cumulative impacts of increase in average flow. It seems clear that the number of acres mined but not yet reclaimed in the Peace River watershed in the future will not exceed the levels measured in the early 1990s. A comparison of land uses in the year 2000, and projected land uses in the year 2025, based upon publicly available documents, would indicate that the acreage being utilized for active phosphate mining areas will be reduced by approximately 40,000 acres from 2000 to 2025. IMC's other evidence would indicate that the area captured by phosphate mining in the Peace River Basin is expected to increase from approximately 28,000 acres in 2000, to approximately 41,000 acres in 2010, before dropping to approximately 35,000 acres through 2020, and declining further to approximately 30,000 acres in 2025. In the Horse Creek sub-basin, IMC expects the area captured by phosphate mining to rise steadily from approximately 8,000 acres in 2000, to approximately 23,000 acres in 2010, before dropping to approximately 20,000 acres in 2015, and remaining at that level until after 2020, when it will decline again to approximately 15,000 acres in 2025. While called a "cumulative impacts" analysis, Dr. Garlanger's analysis actually compares flow impacts from mining during 1978-2002 with expected impacts during 2003-2027. It does not examine the cumulative impact of phosphate mining and reclamation beginning in 1978. As such, the analysis shows the effects of ongoing reclamation and a decline in "capture area" within the Peace River Basin. It also shows the effects of an increase in "capture area" in the Horse Creek sub-basin. According to Dr. Garlanger's analysis, it would not appear that future phosphate mining and reclamation activities would have an adverse impact on water quantity at any point in the Peace River basin. Similarly, the relatively minor flow increases predicted would not be anticipated to have any adverse water quality implications and, in particular, would not measurably affect the freshwater/salt water interface in Charlotte Harbor. By using a single "maximum capture rate" for all mining since 1978, Dr. Garlanger's analysis did not account for higher unit rates of runoff in the Lower Peace River Basin due to different soil conditions than in the Upper Peace River Basin. As more mining moves south, the actual "maximum capture rate" will increase, and more runoff will be lost due to capture per acre mined than Dr. Garlanger's analysis predicts. According to Mr. Davis the actual capture rate for future mining may well 50 percent greater, or even twice, the average capture rate assumed by Dr. Garlanger for purposes of his analysis. (T. 2149, 2192). As indicated, Dr. Garlanger's cumulative impacts analysis only addressed flow. It did not address the cumulative impacts from the loss of other wetland functions, fish and wildlife habitat functions. In addition, cumulative impacts from the loss of first-order streams might be significant. The evidence was that approximately 20 percent of the first-order streams in the Horse Creek sub-basin are in areas where phosphate mining activities were said to be expected from 2003-2027. Urban areas will increase by approximately 220,000 acres between 2000 and 2025. Dr. Garlanger also considered the potential impact of these and other types of development on stream flows. Rigorous analysis of this issue was not undertaken because residential, commercial and agricultural developments generally have a tendency to increase stream flow (although some agricultural developments might decrease stream flow somewhat). Rule 62C-16.0051 – Reclamation Requirements3 Soil Zone The proposed reclamation in the Modified CRP complies with the soil zone requirement in Rule 62C-16.0051(3) requiring good quality topsoil or other appropriate growing medium. Restoration Rule 62C-16.0051(4) requires that wetlands disturbed by mining operations be restored acre-for-acre, type-for-type. Rule 62C-16.0021(15) defines "restoration" to mean: "recontouring and revegetation of lands in a manner, consistent with the criteria and standards established pursuant to this chapter, which will return the type, nature, and function of the ecosystem to the condition in existence immediately prior to mining operations." Acre-for-Acre, Type-for-Type For purposes of Rule 62C-16.16.0051(4), Florida Administrative Code, DEP relies upon Level II of the FLUCFCS system to determine whether wetlands are being replaced "acre- for-acre, type-for-type." See Manson Jenkins Final Order, Ruling on Exception V. It appears that, in Manson Jenkins, FLUCFCS Level II distinguished between herbaceous wetlands and forested wetlands to determine compliance with the type-for-type requirement of Rule 62C-16. In this case, IMC proposes to replace 478 acres of Altman Tract herbaceous marsh with 865 acres of herbaceous marsh after reclamation on the Tract. As previously found, there may actually be a little more herbaceous marsh on the Tract than IMC mapped (i.e., some of the erroneously mapped improved pasture). But it is clear that IMC is proposing more herbaceous marsh for reclamation than now exists. It also is clear that, after addition of the Altman Tract, the Modified CRP will increase herbaceous marsh acreage on the total 46,533 acres covered by the Modified CRP. As for forested wetland, IMC proposes to reclaim with 70.5 Altman Tract acres versus 38 acres now on the Tract. It also is clear that, after addition of the Altman Tract, the Modified CRP will increase forested wetland acreage on the total 46,533 acres covered by the Modified CRP. Under FLUCFCS Level II, each type of forested wetlands has its own code: wetland hardwood forests are code 610; wetland coniferous forests are code 620; and wetland mixed forests are code 630. Under code 620 (wetland coniferous forest), IMC does not plan to replace the half acre it mapped on the Altman Tract in its reclamation plans for the Altman Tract. However, as to the total 46,533 acres covered by the Modified CRP, 213 acres of wetland coniferous will be replaced by 394 acres post-reclamation. The 4.3 acres on the Altman Tract mapped by IMC as FLUCFCS 510 (Streams and Waterways) are not being replaced "acre- for-acre, type-for-type." Citing BOR 3.3.1.1, IMC and DEP take the position that replacement is not required because these are agricultural ditches which are less desirable wetland types than the herbaceous marshes that are to replace them. Actually, the so-called agricultural ditches have relatively high ecological value because they are shallow and have existed without maintenance or improvement for decades. Some provide beneficial functions of first-order streams. Some provide fish habitat at times. In addition, BOR 3.3.1.1 does not apply to Rule 62C- 16.16.0051(4). IMC's and DEP's treatment of FLUCFCS Code 510 in the Modified CRP is confusing. In the review process, DEP asked for an explanation as to why IMC mapped 224 acres as code 510 but only proposed to reclaim 9 of them. In a response, IMC stated that there were 209 acres of FLUCFCS code 510, that "193 acres are manmade features which should not be counted on an acre for acre, type for type, due to these being agricultural ditches for drainage of crop/pastureland. The remaining 16 acres are acre for acre, type for type and mitigated for in the post reclamation plan as FLUCFCS 510 acreage." The Modified CRP indicates that, of the total 46,533 acres covered by it, 200 acres are FLUCFCS code 510 and that there will be 11 acres of FLUCFCS code 510 post-reclamation. The Modified CRP also includes a table of the 5,077 acres covered by it that are not yet disturbed. The preface to the table states: "However, some enhancement work to be conducted in the non disturbed land will result in changes in FLUCFCS acreage from pre-mining to post reclamation." The table indicates that 10 acres of these "non-disturbed lands" are FLUCFCS code 510 pre-mining and that there will be 10 acres of FLUCFCS code 510 post-reclamation. Due to the confusion, reasonable assurances were not given that "streams and waterways" will be replaced "acre-for-acre, type-for-type." The Modified CRP also makes reference to FLUCFCS code 560 ("slough waters"). No sloughs were mapped on the Altman Tract. The slough between the box culverts under SR 37 and the Central Marsh were mapped as freshwater marsh (FLUCFCS code 641). But the Modified CRP indicates that, of the total 46,533 acres covered by it, there were 12 acres of slough waters pre-mining and that none of them are to be replaced post-reclamation. The Modified CRP's table of "non-disturbed lands" does not include any FLUCFCS 560 slough waters. Notwithstanding the confusion, it seems clear that the slough-like area between the box culverts under SR 37 and the Central Marsh should not be eliminated. To do so would exacerbate the elimination of slough waters under the Modified CRP. (b) Nature and Function As indicated, the other part of the definition of "restoration" in Rule 62C-16.0021(15) speaks to returning "the nature, and function of the ecosystem to the condition in existence immediately prior to mining operations." See also Section 378.207(1), Florida Statutes (requiring "return of the natural function of wetlands or a particular habitat or condition to that in existence prior to mining"; and Section 378.203(10), Florida Statutes (requiring restoration to "maintain or improve the water quality and function of the biological systems present at the site prior to mining"). In this case, IMC did not prove that its reclamation will meet these restoration requirements. Design The reclaimed wetlands at the Tract will comply with the general design requirements of wetlands set forth in Rule 16C-16.0051(5). Among other things, the proposed reclaimed wetlands have been designed to provide aquatic wetlands and wildlife habitat values, maintain downstream water quality by preventing erosion and providing nutrient uptake; and reclaimed water bodies are to incorporate a variety of emergent habitats, a balance of deep and shallow water, and fluctuating water levels. (T. Durbin at 1471, 1542-44). However, as previously found, post-reclamation water levels will be generally deeper, hydroperiods will be longer, and zonation will be reduced, such that the nature and functions of existing wetlands will not be maintained. Water Quality As required by Rule 16C-16.0051(6), applicable water quality standards will be met for waters leaving reclaimed wetlands on the Tract and wetland water quality on the Tract will support fish and other wildlife. Flooding and Drainage Patterns As required by Rule 16C-16.0051(7), all necessary steps have been taken to eliminate the risk of flooding on lands not owned by the applicant. In addition, general drainage patterns would be restored. Watershed boundaries will not be crossed, and post-reclamation topography would allow interconnectivity between at least some wetlands created on the Tract during at least some periods of rain. Revegetation Requirements The Draft Permit requires that reclaimed wetlands and uplands on the Tract comply with the revegetation provisions (including minimum cover requirements) as required by Rule 16C- 16.0051(9). (IMC Ex. 12, Sp. Cond. 14C). Mitigation Measures As required by Rule 16C-16.0051(10), the modified CRP identifies measures designed to offset fish and wildlife values lost as a result of mining operations. Special programs to restore, and/or reclaim particular habitats, especially for endangered and threatened species, have been identified. However, as previously found, reasonable assurances were not given that these measures will succeed in offsetting fish and wildlife values lost as a result of mining operation. Reclamation Schedules Reclamation is proposed to proceed in a fashion that will comply with the schedules contained in Rule 16C-16.0051(11). (IMC Ex. 12, Sp. Cond. 11).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that DEP enter a final order denying IMC's applications to mine and reclaim the Altman Tract. DONE AND ENTERED this 1st day of August, 2003, 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 1st day of August, 2003.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent owns real property located in Township 2 North, Range 7 East, Section 32, in Madison County, Florida, that has surface water flowing through it and is encompassed within what is defined as "wetlands." Respondent is in control and possession of the property in question and all work on the property that is material to this proceeding is under the control or direction of the Respondent. There were access roads on the property as early as 1973 as reflected by Respondent's exhibit 2, a 1973 aerial photograph, but the width of the roads or the existence of ditches or culverts cannot be determined from the photograph. Petitioner's exhibit 2, a 1981 aerial photograph, shows the roads still in existence in 1981 but the width of the roads or existence of ditches or culverts cannot be determined from the photograph. Sometime before the Respondent purchased the property and began construction to expand the roads, ditches and culverts were in place; however, there was no evidence as to when the ditches and culverts came to be in place. A 1976 survey of the property reflects 60 foot roads which were to provide access to platted but unrecorded lots. These roads had not been constructed when Respondent purchased the property or began construction to expand the roads. The newly constructed portions of the road indicates an attempt to build the roads in accordance with the 1976 survey. The previously existing roads attempted to follow the natural contour of the land and as a result were not always straight, and only had a negligible effect on the flow or storage of surface water in regard to the property. Sometime around October 1987, Respondent began to rebuild and construct roads on the property by straightening existing curves, removing fill material from adjacent wetlands to widen and heighten the existing roadbed or construct a new roadbed, and to increase the depth and width of existing ditches or dig new ditches. The initial portion of the existing road providing access to the property from the county graded road has been substantially rebuilt with portion of the roadbed being 40 to 43 feet wide. Ditches along this portion of the roadbed have had their width increased up to 14 feet and their depth increased up to 6 and 8 feet. Other portions of the road has been expanded beyond the previously existing roadbed by increasing the width and height of the roadbed. The increased size of the ditches and the expanded roadbed has increased the interception of surface water above that already being intercepted by the previous roadbed and ditches and, as a result, there is an increased amount of surface water impounded or obstructed. The effect is that surface water is removed from Respondent's property at a faster rate than before road construction began and, as a result, sheet flow of surface water is decreased which diminishes the storage of surface water on the property. Although new culverts were installed during road construction, there was insufficient evidence to show that these new culverts were in addition to the culverts already in place or if they replaced old culverts. There was insufficient evidence to show that the new culverts allowed water to flow in a different direction or be removed from the property at a faster rate than before or if they impounded or obstructed surface water more so than before. The previously existing roads had sufficiently served an earlier timber harvest on the property and, by Respondent's own testimony, were sufficient for his ongoing hog and goat operation. The extensive rebuilding and constructing of roads in this case was neither necessary nor a customary practice for construction of farm access roads in this area. Respondent is engaged in the occupation of agriculture in that he has a bona fide hog and goat operation. However, Respondent's silviculture occupation is somewhat limited in that he is presently harvesting the timber but shows no indication of replanting or continuing the forestry operation upon completing the present harvesting operation. The extensive rebuilding and constructing of roads in this case goes beyond what is necessary or is the customary practice in the area for a hog or goat operation or forestry operation such as Respondent's and is inconsistent with this type of agriculture or silviculture occupation. Respondent has never applied for nor received a surface water management permit from the Petitioner even though the Petitioner has informed Respondent that a permit was required for the work being done on his property. The present alteration of the topography of the land by Respondent has obstructed and impounded surface water in such a fashion that the interruption of the sheet flow of surface water has been increased, causing the storage of surface water on the property to be diminished. At the present time, Respondent has been enjoined by the Circuit Court of Madison County, Florida, from any further activity on this project. However, should Respondent be allowed to complete this project, it is evident that the sole and predominant purpose would be to impound and obstruct the sheet flow of surface water and diminish the storage of surface water on the property in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Suwannee River Management District, enter a Final Order requiring Respondent, Norman Leonard, to: (a) remove all unauthorized fill material placed within jurisdictional wetlands and return those areas to predevelopment grades and revegetate with naturally occurring local wetlands species to prevent erosion; (b) back fill excavated swale ditches, return road beds and excavated ditches to predevelopment condition and grades and seed disturbed non-wetland areas with a 50:50 mix of bahia and rye grass and; (c) refrain from any other development until and unless a required permit is obtained for such development. Respectfully submitted and entered this 13th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1445 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 2. 4.-7. Are unnecessary findings for this Recommended Order. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Subordinate to the facts actually found in this Recommended Order. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Rejected as conclusions of law. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Findings of Fact 15 and 17. 26.-29. Adopted in Finding of Fact 12. 30. Adopted in Finding of Fact 13. 31.-32. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 12. Adopted in Finding of Fact 16. 35.-38. Subordinate to facts actually found in this Recommended Order. 39.-42. Rejected as not being relevant or material. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. The first paragraph adopted in Finding of Fact 16. The balance is rejected as a conclusion of law. 2.-3. Rejected as not being relevant or material. Not a finding of fact but a statement of testimony. However, it is subordinate to facts actually found in this Recommended Order. Rejected as not supported by substantial competent evidence in the record. The more credible evidence is contrary to this finding. COPIES FURNISHED: Janice F. Baker, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Norman Leonard, Pro Se Route 2, Box 172-D Live Oak, Florida 32060 Donald O. Morgan Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, Florida Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Description of Proposed Fill Project DER proposes to deny three alternative proposals to fill all or part of Petitioners' real property located in Key West, Florida. The property is rectangular, approximately three acres in size, with 300 feet bordering Roosevelt Boulevard (High-Way A1A) to the south and approximately 300 feet bordering Key West International Airport to the north. The easterly property line is 489.4 feet and the westerly line is 434.63 feet. The Straits of Florida (Atlantic Ocean) are immediately on the other side of Roosevelt Boulevard to the south. The property has a strip of approximately 90 feet of upland and transitional wetland adjacent to Roosevelt Boulevard, with the rest of the property being covered by a salt pond of approximately 40 acres in size (Jnt. Ex. 1). Petitioners initially submitted a permit application in July, 1983, to fill the entire property for construction of multifamily housing units. On May 4, 1984, after discussion with a DER permitting official, Petitioners submitted a second application containing two alternative, less extensive development proposals. The first alternative involves the placement of fill over a 300' x 230' area (approximately 9722 cubic yards) extending 230 feet from the property along Roosevelt Boulevard out into the water. This alternative would entail construction of 24 family housing units, consisting of six basic structures, each four-stories high. The second alternative involves subdividing the property into six separate lots connected by a central fill road with cul-de- sac. Each lot, approximately .4 acres in size, would contain a single family house on pilings and an associated fill pad for parking. The fill pads would be connected to a approximately 300' x 30' entrance road constructed on fill material. Presumably, this second alternative would contain the same amount of total fill as required in the first. As it presently exists, the salt pond (a part of which applicant would fill) serves several significant and beneficial environmental functions. In regard to water quality, the pond stores, filters, and purifies large quantities of storm water which drain from the airport and South Roosevelt Boulevard. The filling of any portion of this pond would diminish this capacity. (Jnt. Ex. 1) Because of their relatively isolated nature, the organic detrital material that is produced from the leaf litter of fringing mangroves is broken down into a very fine and readily usable form by bacteria. As a result, when there is an occasional exchange between the salt pond and tidal waters, the exported organics are in a very desirable form for higher trophic levels in the food web such as small fish, crustaceans, filter feeders, and various larval forms of marine life. (Jnt. Ex. 1) The salt pond proper provides valuable habitat for fish and wildlife, most notable of which are avifauna. The pond has apparently become established as a healthy, self-sustaining ecosystem providing permanent and temporary food, shelter and refuge for many faunal species which play significant and necessary ecological roles both in the salt ponds and other tidal and brackish water systems. (Jnt. Ex. 1) Through the placement of fill and the displacement of present salt pond habitat, water quality and the biological resources in the immediate and surrounding areas would be expected to undergo degradation. (Jnt. Ex. 1) Through the encroachment of development in this area, which presently lacks residential development, biological integrity standards would be expected to fall below acceptable levels. The proposed fill areas would reduce wind- driven circulation in the pond so as to stress levels of oxygen, salinity, temperature and turbidity. Runoff from the proposed fill would introduce nutrients and elevate turbidity during storm events. Finally, elevated turbidity levels could be expected during the actual filling process and the various species of fish and wildlife now located over the project site would be temporarily disturbed by construction activities and permanently displaced in the long term through the loss of habitat. (Jnt. Ex. 1) There is a 40' zoning setback and another 50' easement owned by the City of Key West, which together form a 90' strip on the property adjacent to Roosevelt Boulevard. This 90-foot strip is largely upland and some transitional wetland. There is no zoning impediment to any of the development alternatives proposed by Petitioners. The property is currently zoned R2H (multifamily residential) by the City of Key West. II. DER's Action on the Application After DER received and reviewed Petitioners initial application on July 22, 1983, a completeness summary was sent on August 17, 1983, requesting additional information. DER received the additional information on March 23, 1984, after which it notified Petitioners that additional information was needed. Petitioners met with DER officials on April 20, 1984, and submitted additional information on May 4, 1984, including the two alternative proposals. DER issued the "Intent to Deny" all three of the proposed projects on July 19, 1984 (Jnt. Ex. 1). On May 16, 1984, a DER Environmental Specialist visited the site of the proposed projects and conducted a biological and water quality assessment. This assessment was later submitted, in report form, as the Permit Application Appraisal, dated June 7, 1984. This appraisal, uncontested by Petitioners, indicates that each of the three fill proposals would take place in waters of the state and result in water quality violations under Rules 17-3.051(1), 17- 3.061(2)(c), (j) and (r); 17-3.121(7), (13) and (28); Chapter 17-4, Florida Administrative Code; and Chapter 403, Florida Statutes. Water quality problems associated with the project were identified as diminished storm water treatment, reduced beneficial deterital material, stress on oxygen levels, salinity, temperature, and turbidity, and an introduction of nutrients. (Jnt. Ex. 1) Although a DER dredge and fill permitting official testified that any filling of the salt pond would be detrimental to the birds and animals which feed there on a daily basis, and that, in his view, a "substantial amount" of filling would not be allowed by DER, there are development projects (other than the three presented by Petitioners) which, in his view, may qualify for a permit under DER rules. DER has, in the past, issued permits authorizing the construction of above-ground residences over wetland properties. Under DER's permitting standards, one or more single-family residences could be built on the property if the structures were built on stilts, did not violate water quality standards, had acceptable drainage, and did not result in adverse storm water discharges. In evaluating such an application, any mitigation an applicant could provide, such as enhancing flushing in the salt ponds by the installation of a culvert to open water, would be balanced against any adverse impacts expected from the filling activity. The three alternative filling proposals submitted by Petitioners (including drawings and designs) do not, however as yet, fall within or satisfy these general perimeters of permitting acceptability.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioners' application to fill (containing three alternative proposals) be denied for failure to prove compliance with applicable permitting standards contained in Chapter 403, Florida Statutes, and Chapters 17-3 and 17- 4, Florida Administrative Code. DONE and ORDERED this 26th day of July, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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 26th day of July, 1985.
The Issue Whether Respondent Occidental Chemical Agricultural Products, Inc.'s application for approval of its "Conceptual Reclamation Plan" for the Swift Creek (phosphate) Mine has been approved by operation of Section 120.60(2), Florida Statutes (1983), based on Respondent, Department of Natural Resources alleged failure to approve or deny the application within 90 days after receipt of timely requested additional information.
Findings Of Fact On October 7, 1981, Occidental filed with DNR an application for approval of its conceptual reclamation plan for its Swift Creek Mine located in Hamilton County, Florida. (DNR Exhibit #1) On November 5, 1981, within 30 days of receipt of the application, DNR sent Occidental a request for additional information. On February 23, 1983, Occidental filed and DNR received Occidental's responses to this request for additional information. (DNR Exhibit Nos. 2, 7) On March 21, 1983, within 30 days of DNR's receipt of Occidental's response to DNR's first request, DNR sent Occidental a second request for additional information. On May 12, 1983, Occidental filed and DNR received Occidental's response to DNR's second request. (DNR Exhibit Nos. 8, 9) On June 14, 1983, 33 days after receiving Occidental's response to its second request, DNR sent Occidental a third request for additional information. On August 19, 1983, Occidental mailed its response to DNR's third request. The response, received by DNR on August 22, 1983, was accompanied by a letter asserting that Occidental's application was deemed approved by operation of Section 120.60, Florida Statutes, in that DNR had failed to approve or deny the application within 90 days of May 12, 1983--the date DNR received Occidental's response to its second request for additional information. (DNR Exhibit Nos. 10, 11, 12) By letter dated September 26, 1983, DNR notified Occidental that the application "was complete as of August 22, 1983, and that "[t]he 90-day [application] review period began on August 23, 1983." (DNR Exhibit No. 13) On three subsequent occasions, DNR sought 30-day extensions of the 90- day review period. Each time, Occidental agreed to the extension, but reserved any right it might have to a default permit, first asserted in its August 19, 1983 transmittal letter. The last extension requested by DNR was granted by Occidental in December of 1983. (DNR Exhibit Nos. 16, 17, 20) During this extended [application] permit review period, Occidental submitted several revisions of its application documents to DNR in response to criticism and suggestions by permitting officials in DNR's Bureau of Mine Reclamation. On October 14, 1983, Occidental submitted a revised "Pre-mining Drainage Pattern Maps" and asked that it be substituted for maps previously submitted in connection with the pending application. On November 14, 1983, Occidental submitted revisions or additions to Part II, Items 4, 5 and 6, of the application. (DNR Exhibit Nos. 15, 19) DNR never sought a renewal of the 90-day application review period on grounds that Occidental had substantially modified or revised its application. Neither did it recant its earlier notice that the application was complete and that the 90-day period (for grant or denial of the application) began on August 23, 1983. On March 20, 1984, DNR presented Occidental's application to the Governor and Cabinet, sitting as agency head, and the application was approved with conditions. On April 3, 1983, Petitioner filed its petition for hearing, resulting in this proceeding. II Petitioner and DNR contend that the statutory 90-day time-clock for granting or denying Occidental's application never began to run because several of the items timely requested by DNR (within 30 days of receipt of the application) were never submitted. Occidental counters that its February 23, 1983, response to DNR's first (admittedly timely) request for additional information was both adequate and complete; that the 90-day period thus began to run on February 24, 1983; and that a default permit was granted by operation of Section 120.60(2), Florida Statutes, because DNR failed to grant or deny the application within 90 days--on or before May 25, 1983. Occidental's contention is sustained by the greater weight of the evidence. In support of their position, DNR and Petitioner contend that additional information requested on November 5, 1981 (concerning Part I, Item 6; Part II, Items 3, 4 and 6; and Part III, Items 4, 5 and 8 of the application), were never submitted though DNR did not notify Occidental of this assertion until hearing on August 30, 1985; and the assertion is not consistent with DNR's September 26, 1983 notice that the application was "complete." The information requested and received is described below. Part II, Items 3 and 4. These application items elicit information on water bodies, and surface drainage patterns for affected lands and 1/4 mile beyond, as such lands existed prior to phosphate mining and would exist after reclamation. In its application, Occidental (on pp. 9 and 10) provided information based on State of Florida reports, U.S. Geological Survey quadrangle maps and personal inspection. In response to DNR's first request for more information on items 3 and 4, Occidental stated that the information initially submitted was correct, and provided extensive additional information on these subjects including maps showing drainage patterns before mining and after reclamation. Notably, DNR neither sought further clarification of Occidental's response in its subsequent requests for additional information, nor advised DNR that the response was deficient. (DNR Exhibit Nos. 1,7) Part II, Item 6. Part II, Item 6 of the application requires a description of endangered or threatened species and their habitat, and a description of planned restoration. Occidental's initial submittal stated that according to a Florida Game and Fresh Water Fish Commission ("Commission") publication, the mine area did not include critical habitat for any endangered or threatened species. Occidental also listed possible species with historic range in the area and described how the planned reclamation would benefit these species. In its first request for additional information, DNR (by check-off- sheet) seemingly disregarded Occidental's submittal and restated the requirement of Part I, Item 6. It noted that Occidental should describe the critical habitats though Occidental had already stated that there was no critical habitat in the mine area. In its response to DNR's first request, Occidental stated simply that the information initially submitted on this item was correct; given its initial submittal, this was a reasonable response to DNR's first request. In its second request for further information, DNR did not ask for clarification or additional information on this item. (However, in its third request, DNR referred to an April 5, 1983, letter from the Commission addressing concerns about endangered plant and animal species, to which Occidental provided a detailed response in the August 22, 1983 submittal. (DNR Exhibit Nos. 2,7,10,12) Part III, Items 4 and 5. These application items seek maps depicting land uses, water bodies, and surface drainage patterns for affected lands and 1/4 mile beyond, both before mining and after reclamation. The requested maps were submitted as part of Occidental's original application. In its first request for additional information, DNR again sought maps for surface drainage patterns and demarcation of watershed boundaries. Occidental provided the additional maps requested. (In its second request for additional information, as to Item 4, DNR suggested the plan should be revised to eliminate drainage pattern changes. Alternatively, DNR asked for an explanation as to why the changes must occur. As to Item 5, DNR sought a revision to the conceptual plan. In this and subsequent requests, DNR did not notify Occidental that the maps were deficient. Rather, the thrust of its criticism was directed at the change drainage patterns depicted by the maps.) (DNR Exhibit Nos. 1, pp.17,18,23-30; 7,8) Part III, Item 8. These application items seek a map of the critical habitat for endangered species. Occidental initially indicated that none were present and referred DNR to the Part II, Item 6 discussion. In its first request (much like the request relating to Part II, Item 6), DNR seemingly overlooked or disregarded Occidental's statement that no critical habitats existed in the reclamation area, and asked for a map of the critical habitat. In its response, Occidental simply stated that the information previously submitted on this item was correct. No maps of critical habitat were ever submitted, as it was Occidental's position that no such habitats existed on the site. Given its earlier statement on the application, Occidental's response to DNR's first request was reasonably responsive. DNR was apparently satisfied as it did not again ask for clarification or additional information on this item. (DNR Exhibit Nos. 2,10)
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner's petition for hearing be DISMISSED and that DNR APPROVE Occidental's application for approval of its conceptual reclamation plan for the Swift Creek Mine, as the application existed on May 25, 1983. DONE and ORDERED this 18th day of December, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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 18th day of December, 1985. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT 1-5. Approved. 6-8. Rejected. Mr. Craft's opinion is rebutted by examination of the actual requests and responses. It is also inconsistent with DNR's failure to promptly notify Occidental that its February 23, 1983 response was deficient, and its September 26, 1983 notice that the application was "complete" (How could it be complete if the previously requested additional information had not been submitted?). RULINGS ON DNR'S PROPOSED FINDINGS OF FACT Approved. Approved in substance. Rejected as recitation of testimony--not a proposed finding. The last sentence is not supported by the evidence. 4-5. Rejected as argument and as unsupported by the evidence. See, paragraphs 6-8, infra. 6. Rejected as argument. Further Mr. Craft's opinions are implicitly contradicted by DNR's September 26, 1983 notice to Occidental that the application was "completed as of August 22, 1983." RULINGS ON OCCIDENTAL'S PROPOSED FINDINGS 1-9. Approved in substance; however, DNR received the application on October 7, 1981, not October 6, 1981. (TR. p.12) 10. Modified to more accurately reflect the letter's statement concerning default. 11-20. Approved in substance. COPIES FURNISHED: SEGUNDO J. FERNANDEZ, ESQUIRE 2700 BLAIRSTONE ROAD TALLAHASSEE, FLORIDA 32301 J. ALAN COX, ESQUIRE 219 SOUTH CALHOUN STREET, SUITE 107 TALLAHASSEE, FLORIDA 32301 SPIRO T. KYPREOS, ESQUIRE 3900 COMMONWEALTH BOULEVARD SUITE 1003 TALLAHASSEE, FLORIDA 32303 ROY C. YOUNG, ESQUIRE POST OFFICE BOX 1833 TALLAHASSEE, FLORIDA 32303
The Issue Whether Petitioner's application for renewal of water use permit application #200781.02 should be granted to withdraw a combined average withdrawal of 9,320,000 gallons of water per day and a maximum combined withdrawal rate of 18,600,000 gallons per day, subject to the terms and conditions listed in proposed permit for use at applicant's Haynesworth Mane.
Findings Of Fact IMCF operates a phosphate mining facility known as the Haynesworth Mine located on SR 37 in western Polk County, south of Bradley Junction. IMCF leases this mine from Brewster Phosphates, which is a joint venture of American Cyanamid Corporation and Kerr-McGee Corporation. The mine includes approximately 14,100 acres. IMCF took control of the mine from Brewster in 1986. At the time IMCF took control of this mine, a consumptive water use permit was extant which was due to expire in 1989. It is to renew this permit that the application here being considered was filed. After requesting and obtaining additional information and evaluating the application, Respondent issued its notice of intent to issue the permit. Phosphate ore is extracted by a dragline which opens mining cuts of 30 to 40 feet in depth at this facility. Seepage occurs into the mine cuts which must be removed in order to see and extract the phosphate ore. Dewatering is also necessary to protect the dragline from slope stability problems. Water pumped out of the mining cuts is introduced into the mine water recirculating system where it is used for numerous purposes, such as hydraulically pumping the extracted material to the beneficiation plant where clay and sand is extracted from the phosphate ore. The beneficiation plant uses large quantities of water, utilizing supplies from within the mine system (surface waters) and some from deep wells. It is the water from the deep wells that is the primary concern of the Intervenor. The surface water comes primarily from rainfall, mine cut seepage and make up water from the deep wells. Recycled water is of lower quality than well water due to the presence of organic materials or suspended solids, but it is used for many purposes, such as washing ore before being sent to settling ponds and later decanted from the top of the settling areas and returned to the water recirculating system. By use of recircled water in the beneficiation plant, the quantity of well water needed in later stages of the mining process and for make up due to evaporation and transpiration losses is reduced. Evidence presented shows that IMCF, by improving the recirculation system, has reduced the amount of well water needed in the overall mining process from 1220 gallons of deep well water per ton of phosphate rock produced in 1987 to 775 gallons per ton in 1989. The use here proposed is greater than was approved in the expiring permit; however, this increase is due almost entirely to the inclusion of the water pumped in the dewatering operation and the sealing water wells which were not counted in earlier years in determining the quantity permitted to be pumped. Withdrawal of water from the mine cuts affects only the surficial aquifer and can result in a withdrawal of water from adjoining property. To mitigate this problem, a setback of 1100 feet from adjacent property has been established in which mining cannot be conducted. Additionally, a ditch is to be installed between the mining cut and the property line which is kept full of water to provide recharge to the surficial aquifer. Phosphate mining is a reasonable and beneficial use of water, and is consistent with the public interest. The use here proposed was grandfathered in long before the Intervenor received a consumptive use permit in 1986 and will not interfere with any legal use of water existing at the time of the application. Considerable testimony was presented describing the computer modelling process used by IMCF and SFWMD in determining that the maximum drawdown of the water allowed by this proposed permit would not have a deleterious effect on adjacent property owners or on the Florida aquifer from which much of this water will be drawn. As a result, it is found that the rate of flow in nearby streams or watercourse will not be lowered; the level of the potentiometric surface will not be lowered below the regulatory level established by SFWMD; the drawdown will not induce salt water encroachment; will not cause the water table to be lowered so that lake stages or vegetation will be significantly affected on property not owned by the applicant; will not cause the potentiometric surface to be lowered below sea level; and the granting of this permit is in the public interest. The Intervenor's property consists of a 62 acre orange grove planted on reclaimed phosphate land that was mined more than 30 years ago and is surrounded by the 14,100 acres now controlled by IMCF. Her primary concern is that IMCF's mining operations will withdraw surficial water that would otherwise go to her orange grove, and that sufficient water will be withdrawn from the Florida aquifer that she will not have sufficient water to irrigate her grove. To support this position, Intervenor presented evidence that prior to 1986 her grove prospered with only natural rainfall. However, in 1986 it was found necessary to install a well to provide irrigation to this grove; and a permit was obtained from SFWMD. Subsequently, during a dry spell in April 1988 the surface pressure at Intervenor's pump dropped from 22 psi to less than 15 psi, and she was told the pumps would be burned out if pumping continued and the pressure dropped further. She attributed this low pressure at her pump to IMCF taking water from the aquifer from which her water also was drawn. During the period around April 1988, the ground water level dropped 15 to 20 feet below the average level of the water from which Intervenor drew her irrigation water. This resulted in the submersible pump having to lift water 15 to 20 feet (or more) higher than it had to lift when the pressure of the pump was 22 psi. In other words, Intervenor's pump was completely submerged in the water in the upper Florida aquifer, but the pump was not powerful enough to provide 22 psi pressure at the earth's surface. Changes in the ground water levels vary during each year depending on the amount of rainfall and the demands of those removing water from the aquifer. Spring time usage is normally heavy for agricultural purposes, and, as shown on Exhibit 25, each spring the ground water levels are closer to sea level than at any other time of the year. Intervenor also contended that IMCF should retain all of the water used in the mining process on its land rather than allowing the excess during heavy rainfall periods to be discharged into the Alafia River. No evidence was presented by Intervenor to show this to be a feasible solution; nor was evidence presented that this discharge polluted the Alafia River as contended by Intervenor. The Haynesworth Mine is a stationary installation which is reasonably expected to be a source of water pollution. Accordingly, it is required to obtain a permit from the Department of Environmental Regulation to discharge water into the Alafia River and is subject to various restrictions in so doing. No evidence was presented that IMCF or Haynesworth Mines violated any of the provisions of Chapter 403, Florida Statutes, in this regard.
Recommendation It is recommended that consumptive use permit #200781.02 be issued to IMC Fertilizer Inc., subject to the conditions contained in the draft permit. ENTERED this 7th day of January, 1991, in Tallahassee, Florida. K. N. AYERS 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 7th day of January, 1991. COPIES FURNISHED: Robert W. Sims, Esquire Post Office Box 1526 Orlando, FL 32802 Catherine D'Andrea, Esquire 2379 Broad Street Brooksville, FL 34699-6899 Faye Dobbs Post Office Box 3407 Lakeland, FL 33802
