The Issue The issue is whether Respondent Win-Suncoast, Ltd., is entitled to an individual environmental resource permit to construct a surface water management system to serve a proposed shopping center.
Findings Of Fact On April 25, 2006, Applicant filed with District an application for an individual ERP to construct a surface water management system on a parcel located in south Pasco County on the north side of State Road 54, about 1000 feet east of the right-of-way of the Suncoast Parkway. The proposed surface water management system would serve the commercial development of the now-vacant, 36.7-acre parcel. State Road 54 runs from State Road 19 near New Port Richey to Interstate 75; at the Suncoast Parkway, State Road 54 is six lanes wide. The Suncoast Parkway is a limited-access toll road that runs from Memorial Parkway in Tampa to U.S. Route 98 north of Brooksville. The subject parcel is about one mile north of Hillsborough County, four miles east of the terminus of Gunn Highway at State Road 54, and five miles west of State Road The vicinity of this intersection is experiencing rapid commercial development and escalating land values, mostly since the completion of the Suncoast Parkway in 2001. Three parcels adjoin the subject parcel. Immediately north of the subject parcel is the Ashley Glen parcel, which consists of 266.36 acres. Immediately west of the subject parcel and the Ashley Glen parcel is the parcel owned by Petitioner. Petitioner's parcel has about 700 feet of frontage on State Road 54 and runs the length of the western borders of the subject parcel and the Ashley Glen parcel. The northern border of Petitioner's parcel and the Ashley Glen parcel is an abandoned railroad grade. Immediately east of the subject parcel is a DOT-owned parcel, which serves as floodplain mitigation, probably in connection with the Suncoast Parkway or State Road 54. Petitioner challenged the issuance of an ERP in two administrative cases involving the Ashley Glen parcel. In the Blanco I final order, which is dated January 25, 2005, the District denied an ERP for a surface water management system to serve the development of a residential subdivision of over 400 lots. The ERP was denied due to the applicant's failure to conduct an appropriate wildlife survey and to account for the effect of a newly excavated 37-acre borrow pit/pond on a large forested wetland partly occupying a large area on the north end of Petitioner's property. After the developer submitted a revised application, Petitioner challenged the ERP that District proposed to issue. After an administrative hearing, District granted an ERP in the Blanco II final order, which is dated May 30, 2006. Significant differences in the second application were that the applicant had reduced the maximum depth of the borrow pit/pond from 25 feet to 12 feet, under most circumstances, and that the applicant had obtained an appropriate wildlife survey. The subject parcel is about 1.5 miles south of a large tract proposed for acquisition by District and known as the Masaryktown Canal area. This tract would join the smaller Starkey tract, which is also owned by District, with another somewhat smaller publicly owned tract to place much of central Pasco County, from Hillsborough County to Hernando County, in public ownership. Water from the subject parcel drains north toward central Pasco County and then into the Anclote River. The record is in conflict as to the drainage basin in which the subject parcel is located. According to BOR Appendix 6, which is dated May 2, 2006, the subject parcel is in the southern end of the Upper Coastal Drainage basin, which is a vast basin that stretches down the Gulf coast from north of Crystal River to the southern tip of Pinellas County. At points, this basin is not wide, such as at the southern tip of Pinellas County, where, just a few miles inland, the Tampa Bay Drainage basin begins. At other places, the Upper Coastal Drainage basin extends considerably inland, such as at the Pasco County--Hernando County line, where the basin extends about 25 miles east from the Gulf coast, ending only five miles west of the Withlacoochee River. According to District Exhibit 5, which is the District Land Acquisition Priorities Map issued in December 2004, the subject parcel is in the Tampa Bay/Anclote River Watershed. On this map, a large, unnamed watershed, corresponding roughly to the Upper Coastal Drainage basin in BOR Appendix 6, runs to the north of the subject parcel's watershed. At the hearing, District explained that the boundaries shown on District Exhibit 5 identify political subdivisions. The "basins," which are marked in green letters, appear to be political subdivisions, judging from their straight lines, which suggest political, not natural, boundaries. However, the "watersheds," which are marked in larger blue letters, are actual drainage basins. Applicant's ecologist initially believed that the subject parcel was in the Hillsborough watershed. Also, the basin map shown on the District website, District depicts the subject parcel's basin (here named the "Pinellas--Anclote River Basin") as that south of the large basin (here named the "Coastal Basin") encompassing almost the entire coast within the northern area of District's jurisdiction1. Factually, the stronger evidence places the subject parcel in a basin to the south of the large coastal basin described in the preceding paragraphs. However, for the reasons discussed in the Conclusions of Law, the basin depicted in BOR Appendix 6 governs. Although not yet constructed, an important feature of the subject parcel is a road to be known as Ashley Glen Road. This road will nearly bisect the property and will run north from State Road 54 through the Ashley Glen parcel. The road is likely to be developed because it has already been permitted, is subject to a co-developers' agreement, and has already been dedicated to Pasco County. The developer in Blanco I and Blanco II has since sold the Ashley Glen parcel to another developer, which has substantially changed the original plan of development. The new developer has obtained a Development of Regional Impact approval for the development of 1.8 million square feet of office, 450,000 square feet of retail, and 900 multifamily units. However, the new development will incorporate Ashley Glen Road. (For ease of reference, this recommended order continues to use the name, "Ashley Glen" to refer to the parcel, development, and road, although new names may attach to each.) At present, the subject parcel conveys stormwater from south to north. Running along the eastern edge of the parcel is a 20-foot-wide ditch that receives water, by way of a culvert under State Road 54, from the extensive wetland system known as the Hogan wetland, which lies to the south of State Road 54. The ditch was dredged (or re-dredged) about 50 years ago. From south to north, the ditch runs straight in a north-northwesterly direction to about midpoint on the subject parcel, at which point the ditch turns due north and runs in nearly a straight line into and along the eastern part of the Ashley Glen parcel to the north. The northern part of the Ashley Glen parcel widens in an easterly direction, so the ditch bisects this part of the Ashley Glen parcel, prior to turning to the northwest for a short run to the railroad grade. There are two wetlands presently on the subject parcel. In the southeast corner is an isolated wetland known as Wetland B12, which has been described above. The ERP approved in Blanco II authorizes the filling of this entire wetland, whose eastern third would be occupied by Ashley Glen Road. The Blanco II final order determines that Wetland B12 is a "low-quality, small (0.58 acres), isolated, forested wetland that has been impacted by livestock grazing and the intrusion of exotic species." (Recommended Order, paragraph 11.) The Ashley Glen developer originally intended to create on its property an 18-acre littoral shelf to mitigate wetland losses, including the loss of Wetland B12. However, the sale of the Ashley Glen parcel and adoption of a new development plan have delayed the creation of the littoral shelf. Applicant has thus proposed new mitigation in the form of a mitigation bank credit for the impact to Wetland B12. By this means, Applicant seeks permission to fill the wetland and proceed with development without waiting for the new Ashley Glen developer to create the mitigation for Wetland B12. Although the already-permitted loss of Wetland B12 is not an issue in this case, the mitigation for its loss is an issue. Because Applicant is proposing new mitigation for the loss of Wetland B12, it is necessary to determine whether Applicant, using the methodology adopted by District, has provided reasonable assurance that the functional gain from the proposed mitigation for Wetland B12 offsets the functional loss from its filling. The other wetland on the subject parcel is Wetland C12, which is a nine-acre contiguous wetland. The final order resulting from Blanco II authorizes no impact to Wetland C12, so its loss and the mitigation for the loss are issues in this case. The subject application proposes no impact to 4.5 acres of Wetland C12, permanent loss of 3.1 acres, and temporary loss of 1.4 acres (due to the realignment of part of the ditch, which is within Wetland C12). The part of Wetland C12 proposed to be destroyed is its southernmost one-third, which lies in the southern half of the subject parcel, immediately west of the west bank of the realigned ditch. Wetland C12 forms part of the conveyance, from south to north, of water from the Hogan wetland to the railroad grade at the northern boundary of the Ashley Glen parcel. Stormwater then accumulates against the railroad grade, runs west along the grade, backs up to contribute hydration to the large forested wetland at the northwest corner of the Ashley Glen parcel and the north half of Petitioner's parcel, and passes under the railroad grade by way of three culverts near the northwest corner of the Ashley Glen parcel. Wetland C12 has been disturbed by agricultural activities, mostly by the formation of the ditch. There is some testimony concerning a stream at this location, but the record does not support such a characterization. Based on the present record, prior to any disturbance, it is equally possible that water was conveyed by a stream, a slough, or sheetflow. For these reasons, the record does not permit a finding that the ditch is a restorable stream. Wetland C12 has little buffer from surrounding land cover and agricultural uses. According to Petitioner's testimony, which is credited, the dredging (or re-dredging) 50 years ago was the work of a nearby landowner who owned a dragline and used it to alleviate flooding near the Hogan wetland, presumably by deepening and widening the ditch. The hydrology of Wetland C12 has been altered, so that nuisance exotics and upland species are present at locations within the wetland, presumably including the portions of the banks hosting large spoil piles from past dredging. No listed species use Wetland C12, and its potential as habitat corridor is limited due to the extensive residential development that has taken place immediately to the west of Wetland C12, the extensive residential and commercial development taking place to the east of Wetland C12, and the barriers posed by the Suncoast Parkway and 280-foot right-of-way of State Road 54. Applicant has presented to District a plan to construct nine freestanding buildings with surface parking on the subject parcel. The plan is to construct, from north to south on the west side of Ashley Glen Road, a retail space of 5000 square feet and 75 parking spaces on 1.17 acres, a strip of nine retail spaces of 10,500 square feet and 61 parking spaces on 2.02 acres, a fast-food restaurant of 3800 square feet and 40 parking spaces on 1.02 acres, a convenience/retail store of 6000 square feet and 44 parking spaces on 1.66 acres, a fast-food restaurant of 3000 square feet and 44 parking spaces on 1.22 acres, and a bank of 4300 square feet and 38 parking spaces on 0.95 acres. On the east side of Ashley Glen Road, the plan is to construct, from south to north, a restaurant of 4700 square feet and 67 parking spaces on 1.19 acres, a bank of 4120 square feet and 43 parking spaces on 1.16 acres, and a supermarket complex. The supermarket complex comprises a supermarket, an attached strip identified as "Retail B," a restaurant abutting Retail B, an attached strip identified as "Retail C," and a restaurant abutting Retail C. The supermarket building is 237 feet by 205 feet and houses a 46,755 square-foot grocery store, and 1876 square-foot liquor store, and 1125 square-foot vestibule; the supermarket building is served by 243 spaces. Retail B comprises six retail spaces of 6500 square feet and 33 parking spaces; the restaurant is 3000 square feet and is allocated 34 parking spaces. Retail C comprises four retail spaces of 5600 square feet and 28 spaces; the restaurant is 3600 square feet and is allocated 40 parking spaces. The previously described bank and restaurant on the east side of Ashley Glen Road front State Road 54. Behind the drive-through lanes of the bank and parking of the restaurant are nearly all of the parking allocated to the supermarket complex. The supermarket faces State Road 54, although it is about 500 feet from the road and is located in the middle of the eastern half of the subject parcel. The liquor store is incorporated into the southwest corner of the supermarket building, which has a truck dock at the northwest corner. Running in a north-south direction, Retail B runs along the entire west side of the supermarket building. A strip of 40 parking spaces separates Retail B from Ashley Glen Road. Retail C is oriented perpendicular to Retail B and extends, in an east-west direction, off the southeast corner of the supermarket building. Wetland C12 would be occupied by the footprint of the eastern half to two-thirds of the supermarket building, half of the parking in front of the supermarket, half of Retail Strip C, and almost half of the restaurant fronting State Road 54 on the east side of Ashley Glen Road. In terms of area, the footprint of the supermarket and parking occupies about two-thirds of the 3.1 acres of Wetland C12 proposed to be permanently lost. Several components make up the proposed surface water management system, in addition to the rooftops and paving described above. Applicant proposes to realign a portion of the ditch running within Wetland C12, so that the southern half of the ditch will run on the extreme eastern edge of the subject parcel. For a short distance, two-thirds of the width of the proposed ditch is located off the subject parcel and on the parcel owned by DOT to the east. Applicant proposes to triple the width of the ditch to 60 feet and deepen it so that its bottom would be 20 feet wide. Applicant proposes impervious surface for the vast majority of the entire southern two-thirds of the parcel. A stormwater collector system would collect water and convey it north under Ashley Glen Road to the northwest corner of the subject parcel. The water would enter a 3.92-acre pond to be excavated at a depth to hold stormwater for 14 days from the design storm event, which is a 100-year, five-day storm. During this period, contaminants would be removed by evaporation, settlement, and skimming. A littoral shelf abutting the pond on the west will also permit the vegetative uptake of contaminants. Applicant has incorporated wet detention using the conservation design method, a design approved by District for improved stormwater treatment when compared to other wet-detention treatment designs. From the littoral shelf, stormwater will pass through an outflow structure and enter Mitigation Area B, which will be a created 1.4-acre cypress wetland at the very northwest corner of the subject parcel. Applicant will apply wetland topsoil from the dredged portions of Wetland C12 to Mitigation Area B to encourage the growth of wetland species. Stormwater will sheetflow through Mitigation Area B, which will enhance water quality treatment. Although District calculates mitigation credit for an area only up to the seasonal high water line, Applicant proposes, not merely to sod the slope ending at the seasonal high water line, as is the common practice, but instead to plant this area with native species, such as pines, palmettos, and wax myrtles. From Mitigation Area B, stormwater flows, by way of a culvert under Ashley Glen Road, to Mitigation Area A, which will be a created 2.5-acre cypress wetland directly across Ashley Glen Road from Mitigation Area A. Applicant will apply wetland topsoil to Mitigation Area A and plant native species on the upland slopes of the created wetland, which will also treat sheetflow prior to its passing east into the adjacent, undisturbed portion of Wetland C12. The vice-president of the managing partner of Applicant testified in the case. He has 20 years' experience in commercial construction sales and retail development. He has developed seven shopping centers anchored by a grocery store (Anchored Centers) and six shopping centers without a grocery- store anchor (Unanchored Centers). The corporate managing partner has developed 43 Anchored Centers and is developing five more. The site-selection process requires analysis of land costs, construction costs, prevailing market rents, outparcel values, zoning, title, environmental issues, and geotechnical issues. Analysis of the locational factors are especially important. These include traffic, residential development, and demographics. The intersection of the Suncoast Parkway and State Road 54 is ideal for the development of an Anchored Center. In the past seven years, 10,000 residential units have been developed in the State Road 54 corridor between State Road 41 and the Suncoast Parkway. The southeast quadrant of this intersection is being developed with mixed uses, including office and retail. A large parcel immediately east of the DOT parcel and Ashley Glen parcel is being developed with commercial uses. The southwest quadrant is being developed with a Super Target. Older residential areas exist to the east and southeast of the subject parcel. Applicant entered a contract to purchase the subject parcel in August 2002 and closed on the purchase in November 2003. It has a contract with Sweetbay Supermarket for the grocery store. The appeal of the Anchored Center is in the synergy between the anchor--the supermarket--and the outparcels. The proposed Anchored Center would be a one-stop destination for the consumer seeking the goods and services associated with a supermarket, bank, restaurant, and allied retail and may thus shorten or reduce the number of motor-vehicle trips. Raw land in the vicinity of the intersection of the Suncoast Parkway and State Road 54 has been appreciating at a monthly rate of about three percent during the past four or five years. Parcels in Anchored Centers command a considerable premium over similar parcels in Unanchored Centers, and substantially different business risks attach to each kind of development. One of the differences between the Anchored Center and Unanchored Center is the former's requirement of additional parking. Given this requirement, there was no design modification that would accommodate a shopping center and parking without destroying wetlands. Although Sweetbay Supermarket has a template for a smaller building than the one proposed on the subject site, the smaller building is typically reserved for urban settings, and nothing in the record suggests that even the smaller building, with surface parking, would spare the wetlands completely. In its site-planning exercises, Applicant tried to reduce wetland impacts by moving the supermarket to different locations on the subject parcel. The supermarket will not fit on the west side of Ashley Glen Road. On the east side, Applicant moved it as far west as it could to avoid as much wetland impact as possible given the location of the supermarket at the midpoint of the east side of the subject parcel. The present location represents the best accommodation of the Wetland C12 and the commercial development, at its proposed intensity, that Applicant could find after 8-10 reconfigurations of the site improvements. Given the shape of the subject parcel and Wetland C12, the proposed midpoint location impacts Wetland C12 less than any other location, except right at the northeast corner of the intersection of Ashley Glen Road and State Road 54. However, obvious marketing problems arise with this location. Sweetbay Supermarket understandably desires the supermarket to face State Road 54 to attract business. If the supermarket were located at the northeast corner of these two roads, there would be no parking in the front, requiring the customers to enter from the back, or the back of the supermarket would face State Road 54. In designing the site, Applicant reduced some retail space and associated parking to reduce wetland impacts. At the present midpoint location, the elimination of Retail B and Retail C would permit Applicant to move the building to the west, but this would only slightly reduce the wetland impacts because substantial wetland impacts would occur to the south under the footprint of the parking. Similarly, a parking garage would permit Applicant to avoid those substantial wetland impacts, but not the smaller, but still significant, area of wetland impacts under the footprint of the east side of the supermarket building and Retail C. Of course, Applicant could combine these two modifications--elimination of Retail B and Retail C with the relocation of the supermarket building to the west and the construction of an elevated parking garage on the western half of the proposed footprint of the parking area in front of the supermarket building. Applicant contends that these modifications are not economically practicable. Undoubtedly, parking garages are not typically associated with nonurban development. The vice-president of the managing partner admitted that he had not priced such structures, but estimated that each space in a parking deck would cost 10 times more than each space at grade. With somewhat more authority, he also testified that the loss of any more retail space would leave the development economically unfeasible. Sweetbay Supermarket's declared and presumed preferences also play a role in evaluating this substantial design modification. Sweetbay Supermarket prefers retail on both sides of the supermarket, and, given its need for visibility from State Road 54, it may be presumed not to favor the presence of a multi-story parking garage between its grocery store and State Road 54. Again, placing the parking garage behind the supermarket would gain visibility, but raise the prospect of the back of the supermarket facing State Road 54 or the customers entering the store from the back. These are all plainly unacceptable prospects, without regard to Applicant's notions of economic feasibility or return on investment. Similar considerations apply to the possible realignments of the ditch. In its present alignment, the ditch would be occupied by the footprint of the west half of Retail C, the northeast corner of the supermarket building, as well as parking and paved roadway associated with the supermarket and the restaurant fronting State Road 54 on the east side of Ashley Glen Road. Because the ditch does not extend nearly as far to the west as does Wetland C12, it would be possible to preserve the present ditch by eliminating Retail B and Retail C and shifting the supermarket building to the west with the "extra" parking gained by the elimination of the two retail strips probably offsetting the lost parking in front of the supermarket. But this is a lot to ask to preserve a conveyance that, on this record, does not rise above the homely level of a ditch with its attendant functional limitations, especially when the new ditch will probably relieve existing flooding around the Hogan wetland. Applicant's ecologist applied the Uniform Mitigation Assessment Method (UMAM) to assess Wetlands B12 and C12 and the mitigation areas. UMAM and its applicability to this case are discussed in the Conclusions of Law. Generally, UMAM provides a methodology to determine the functional loss of permanent and temporary wetland impacts and the functional gain of mitigation and ensure that the latter equal or exceed the former. For Wetland B12, Applicant's ecologist determined that its functional value, based on location and landscape support, was 5 out of 10 points due to the isolated nature of the wetland in a pasture, adjacent to a tree farm and absent any buffer. Invasives and exotics are in the adjacent community. Based on water environment, the ecologist scored Wetland B12 with 7 out of 10 points due to the presence of distinct water indicators, although the wetland appears to be dependent on rainfall and had suffered degradation from cattle. Based on community structure, the ecologist scored Wetland B12 with 6 out of 10 points due to its normal appearance for a cypress dome, but evident lack of natural recruitment, presence of nuisance exotics such as primrose willow and Brazilian pepper, and severe degradation from cattle and other agricultural uses. The ecologist's assessment of the permanent impact to 3.1 acres of Wetland C12 and temporary impact to 1.4 acres of the ditch within Wetland C12 followed the same approach, except that the temporary impact to the ditch required an additional step in the process. Applicant's ecologist scored the impacted area of Wetland C12, including the 1.4-acre ditch, with an average functional value of 6.67, based on scores of 7 for location and landscape support, 6 for water environment, and 7 for community structure. The location and landscape support are adversely impacted by the reduced complexity of surrounding uplands, but facilitated by the undeveloped state of the immediate vicinity that would allow use by small- to medium- sized wildlife. The ecologist noted the hydrological connection served by the ditch/wetland network and the narrow riparian corridor provided by this arrangement. The function of the water environment is heightened by the fact that most of the water environment is intact, but suffers from adverse impacts to the hydrology and water quality from the construction of the ditch and conversion of surrounding land cover to pasture and roadway. The community structure is facilitated by the presence of canopy vegetation of cypress, pop ash, and laurel oak, but adversely impacted by the presence of Brazilian pepper in the subcanopy. The additional step required in the analysis of the temporary impacts to 1.4 acres is the projected functional value of the relocated ditch. As compared to the present ditch, the re-created ditch scored one less point in location and landscape support due to the further reduction in adjacent uplands and resulting inhibition on use by medium-size wildlife that currently use the site, one less point in water environment due to some changes in microclimate, nutrient assimilation, and flow characteristics that may adversely affect current wildlife composition, and four fewer points in community structure due to removal of the canopy, subcanopy, and groundcover with the associated seed banks and vegetative growth that could recruit similar species to match existing composition and structure. Based on the foregoing, the ecologist concluded that the permanent functional loss to Wetland B12 was 0.35 units, the permanent functional loss to the 3.1 acres of Wetland C12 was 2.07 units, and the temporary functional loss to the 1.4 acres of Wetland C12/the ditch was 0.28 units, resulting in permanent functional losses of 2.42 units and temporary functional losses of 0.28 units, for a total functional loss of 2.70 units. For onsite mitigation of these functional losses, Applicant proposes Mitigation Areas A and B. Mitigation Area B, which is the 1.4-acre forested wetland to be created on the west side of Ashley Glen Road, received a score of zero in its present undeveloped state, and scores of 4 for location and landscape support, 7 for water environment, and 6 for community structure after it is created. The relatively low score for location and landscape recognizes the limited connectivity (through culverts) to other existing and proposed wetlands, although the lack of barriers for use by birds and aquatic species is a functional advantage. The relatively high score for water environment reflects the hydrological interdependence of Mitigation Area B with the stormwater collection system and created wetlands and the relative reliability of these sources of hydration. The score for community structure reflects the increases in microtopography resulting from the design of high and low wetland areas and the planting of species to create three vegetative strata within the created wetland. The ecologist assigned a time lag factor of 2.73 for this created wetland. Derived from Florida Administrative Code Rule 62-345.600(1)(d), this time lag factor correlates to a time lag of 36-40 years to establish the mitigative functions for which the mitigation site is given credit. The ecologist assigned a risk factor of 2 for this created wetland. Derived from Florida Administrative Code Rule 62-345.600(2), this risk factor correlates to a moderate risk of failure of attaining the functions predicted for the mitigation site. Applying the risk and time lag factors to Mitigation Area B, the ecologist calculated a functional gain of 0.15 units for this 1.4-acre mitigation site. The ecologist used the same methodology for Mitigation Area A, which is the 2.5-acre created wetland across Ashley Glen Road from Mitigation Area B. The ecologist assigned this created wetland a 6 for location and landscape support, a 7 for water environment, and a 7 for community structure. This wetland scored 2 points higher than Mitigation Area B for location and landscape support because it is not isolated by the road and culverts from the unimpacted area of Wetland C12 and offers more upland buffer for small wetland-dependent species. Mitigation Area A scored 1 point higher for community structure due to the likelihood of natural recruitment of seeds from the adjacent unimpacted wetland. For water environment, Mitigation Area A and Mitigation Area B received the same score due to their common characteristics. The ecologist applied the same time lag factor to Mitigation Area A as he did to Mitigation Area B. However, the risk factor was one increment less than moderate, probably due to the hydrological advantages that Mitigation Area A enjoys over Mitigation B due to its pre-existing hydric soils and proximity to the unimpacted wetlands of Wetland C12. Applying the risk and time lag factors to Mitigation Area A, the ecologist calculated a functional gain of 0.35 units for this 2.5-acre site. Applicant's ecologist then calculated the functional gain from the enhancement of the 1.4-acre Wetland C12/ditch. He found an increase of 0.13, as compared to the current value, based on a relatively strong score for the enhanced location and landscape support, average score for the enhanced water environment, and relatively weak score for the enhanced community structure. The enhanced system enjoys functional advantages from the planting of three strata of vegetation along the ditch and emergents in the channel. The ecologist applied a time lag factor of 2.18 (meaning 26-30 years) and a moderate risk factor of 2.0 to obtain a final score of 0.03 acres for this enhancement mitigation. The functional gains and losses for the onsite wetland impacts and mitigation, as determined by Applicant's ecologist, are supported by the record, and his analysis of these losses and gains from the onsite creation and enhancement mitigation is accurate. Next, Applicant purchased a conservation easement as offsite mitigation. This easement is on what is known as the Marr Parcel. The Marr Parcel is a 67.49-acre parcel that sits almost in the middle of a large publicly owned area that runs nearly 30 miles along the coast, from Weeki Wachee to the south to Crystal River to the north. Situated in the north-central part of this large area is the District-owned Chassahowitzka River and Coastal Swamps tract (Chassahowitzka Tract). The Marr Parcel is at the southern end of the Chassahowitzka Tract, about four miles from the Gulf of Mexico. The Marr Parcel is about 33 miles from the subject parcel. The Marr Parcel is in the large coastal basin that, according to BOR Appendix 6, includes the subject parcel and, according to District Exhibit 5, is the basin to the north of the basin that includes the subject parcel. At the end of Zebra Finch Road, the Marr Parcel is surrounded by pristine forested wetland habitat that forms part of an important travel corridor for numerous species, including the Florida black bear. This is a sustainable population of Florida black bears, so this habitat is of critical importance. The forested habitat is a combination of cypress and mixed hardwoods. The larger publicly owned area enveloping the Marr Parcel includes almost every significant habitat present in Florida. Other parcels preserved by similar means are directly north of the Marr Parcel. Applicant's ecologist raised the Marr Parcel's score by 1 point for location and landscape support and 1 point for community structure, as a result of the purchase of the conservation easement. The parcel's score for water environment was unchanged by the purchase of the conservation easement. Taking the modest gain from the purchase of the conservation easement, the ecologist applied the preservation adjustment factor of 0.60 to reduce this gain further and then applied a time lag factor of 1.0, indicative of a time lag of one year or less, and a risk factor of 1.25, indicative of the smallest incremental risk above no risk, to determine a functional gain of 2.16 units for the preservation mitigation involving the Marr Parcel. Petitioner contends that development of the Marr Parcel was unlikely, even without the conservation easement purchased by Applicant. Without detailed analysis of site characteristics and regulatory controls applicable to the Marr Parcel, it is impossible to evaluate this contention, except to note that the ecologist took very little credit for the transaction. The smallest credit is one point in all three categories; the ecologist took two points. The functional gain for this preservation mitigation, as determined by Applicant's ecologist, is supported by the record, and his analysis of this gain from the offsite preservation mitigation is accurate, provided District clarifies the ERP, which describes the Marr Parcel in detail, to require that Applicant purchase the conservation easement in the Marr Parcel as part of the required mitigation. Lastly, Applicant turned to the Upper Coastal Mitigation Bank (UCMB) to purchase 0.4 acres of forested- wetlands credit. This mitigation bank, which is administered by Earth Balance, pertains to property (UCMB Tract) that is just north of the Chassahowitzka Tract, immediately south of Homosassa Springs. A few months prior to the hearing, District permitted the UCMB for 47.64 functional gain units, for the purpose of providing mitigation bank credits to ERP applicants. District has approved UCMB for freshwater forested wetlands credits, among other types of credits. The UCMB Tract is about seven miles north of the Marr Parcel and, thus, about 40 miles north of the subject parcel. The UCMB Tract is in the large coastal basin that, according to BOR Appendix 6, includes the subject parcel and, according to District Exhibit 5, is the basin to the north of the basin that includes the subject parcel. Based on the foregoing, Applicant realized a functional gain of 0.52 units from the onsite creation and enhancement mitigation, 2.16 units from the offsite preservation mitigation from the Marr Parcel, and 0.40 units from the purchase of units from UCMB, for a total functional gain of 3.09 units. Pursuant to UMAM, the 2.70 functional loss units are exceeded by the 3.09 functional gain units, so Applicant has provided adequate mitigation. Applicant provided reasonable assurance that the proposed activity will not cause adverse impacts to the storage and conveyance capacity of surface waters. As noted above, Applicant proposes to expand the conveyance capacity of the ditch by substantially widening and deepening it, which will probably alleviate some of the longstanding flooding around the Hogan wetland. With respect to Petitioner's parcel, Applicant will place a liner on the west side of the pond, so as to prevent adverse impacts to Petitioner's parcel from base flow. Applicant will add a swale along the west side of the subject parcel to prevent adverse impacts to Petitioner's parcel from stormwater flow. The engineer's analysis in particular does not reveal flooding at the northwest corner of the Ashley Glen parcel, from where Petitioner's wetlands draw hydration. No testimony revealed whether Applicant's engineer performed pre- and post-development analysis of flows at the point at which the re-created ditch leaves the subject parcel at the DOT floodplain-mitigation site. Nothing in the record suggests that the proposed activities will cause flooding of this site, and DOT will likely perform its own analysis prior to granting Applicant a sufficient interest to dredge part of the realigned, enlarged ditch on DOT property. The proposed activities will fill 8.48 acre-feet of floodplain, but mitigate this loss with 10.02 acre-feet of excavation. Considered with the increased capacity of the drainage ditch, Applicant proposes to increase flood storage. Applicant has provided reasonable assurance that the proposed activities will not adversely impact water quality. The water-treatment components of the proposed surface water management system have been described above. Applicant provided reasonable assurance that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Some minor loss of use by small- and medium-size wildlife may be expected from the loss of 3.1 acres of Wetland C12, but the presence of State Road 54 and imminent development of the Ashley Glen parcel mean that Wetland C12 can provide no meaningful travel corridor. Degraded adjacent uplands further reduce the value of Wetland C12 as habitat for such wildlife. The created pond will provide habitat for certain birds, and the offsite mitigation will provide functional gain in terms of wildlife habitat. Changes in fish habitat from the relocation of part of the ditch and dredging of the ditch are also negligible, based on limited utilization of the present ditch and enhanced utilization potential of the new ditch in terms of a more suitable bank, which will be protected from erosion by matting, and the addition of appropriate vegetation, including emergents in the channel. For the reasons set forth above, Applicant has provided reasonable assurance that the proposed activities will not cause adverse secondary impacts to the water resources. Although the post-development wetlands are unbuffered, the secondary impacts of construction are addressed by the usual construction devices of turbidity curtains and hay bales, and the secondary impacts of the ultimate use of the Anchored Center are adequately addressed by the by the subject surface water management system, especially with respect to water quality treatment. District's senior environmental scientist disclaimed the existence of post-development secondary impacts, evidently reasoning that Wetlands B12 and C12 had already been impacted. As discussed in the Conclusions of Law, the secondary impacts are the activities closely linked to the construction of the project. In this case, the project is the surface water management system to serve the development of the Anchored Center, and the obvious secondary impact is motor vehicle traffic on the subject parcel. However, the water-quality analysis addresses this secondary impact. Subject to one exception, Applicant has provided reasonable assurance that the proposed surface water management system will perform effectively and will function as proposed and that an entity with the requisite financial, legal, and administrative capabilities will conduct the proposed activities. The exception is that District may not issue the ERP until Applicant obtains from DOT a legal instrument, in recordable form, granting Applicant and its assigns all rights necessary to construct, maintain, and operate the portion of the realigned ditch that will be located in the DOT floodplain mitigation parcel. Based on the Conclusions of Law, which necessitate the acceptance of the basin depictions in BOR Appendix 6, Applicant has provided reasonable assurance that the proposed activities will not cause adverse cumulative impacts upon wetlands and other surface waters. However, if the subject parcel were in the basin to the south of the large coastal basin, Applicant has not provided reasonable assurance that the proposed activities will not cause adverse cumulative impacts because it has not undertaken any cumulative-impact analysis. Based on the foregoing and subject to the two conditions stated above, Applicant has provided reasonable assurance that the proposed activities in, on, or over wetlands or other surface waters are not contrary to the public interest.
Recommendation It is RECOMMENDED that the Southwest Florida Water Management District issue to Win-Suncoast, Ltd., the environmental resource permit, subject to the two conditions identified above. DONE AND ENTERED this 14th day of February, 2008, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2008.
The Issue Did the Respondent, Charles W. Coxwell, Sr., excavate in statutorily- protected waters of the State of Florida in March of 1992, as alleged in the Department's Notice of Violation (NOV).
Findings Of Fact 1. In back of Respondent's house, on property owned by the Respondent, is a spring system where underground streams of water flow to the surface and out into an area formerly dominated by wetland plant species, to include: Fetterbush (Lyonia Iucida), Sweet Gallberry (Ilex Corjacea), and Sweet Bay Magnolia (Magnolia Virginiana). The stream continues over property owned by other persons, ultimately flowing into Grassy Lake which connects to Choctawhatchee Bay. All of this water is statutorily protected and within the regulatory jurisdiction created and assigned to the Department by the Legislature. In 1990, Respondent applied for a permit from the Department to construct a small impoundment where the springs flow out, on his property (and before the waters flow onto the property of other downstream landowners). The application form for the permit sought by Respondent in 1990 required him to list the adjoining landowner, who was, in fact, a Mr. Finch. Mr. Finch expressed his concern that an improperly built impoundment might be unsafe. The Department made a number of requests to Respondent for specific design specifications and drawings of the impoundment and its outfall structure. Respondent had discussions with Department staff in which he acknowledged that a permit was required; however, he declined to respond satisfactorily to the Department's "incompleteness requests" for additional information. Ultimately, the permit application was denied on May 16, 1991. Respondent did not pursue administrative remedies in the matter of the permit denial. In approximately March of 1992, Respondent caused 0.3 acres of the statutorily-protected waters and wetlands where the springs emerge behind his house to be excavated without the permit required by Florida law. Respondent knew that permits for such excavation were required by Florida law. The NOV assessed $404.51 (four hundred and four dollars and fifty-one cents) in enforcement costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the findings of the Department's Notice of Violation were proven by substantial and competent evidence, and it is RECOMMENDED that the Orders for Corrective Action set out in the Notice of Violation and restated below be made final: Respondent shall immediately cease and desist from either dredging and/or filling within waters of the State as defined in Florida Administrative Code Rules 17-4.022 and 17-312 prior to receiving the necessary permit form the Department or notice that the proposed activity is exempt from the permitting requirements of the Department. Within 30 days of the effective date of the Final order, Respondent shall reimburse the Department for expenses incurred in investigating the violation in the sum of $404.51. Payment shall be made by certified check, cashiers' check or money order submitted to the Department's Northwest District Office, 160 Governmental Center, Pensacola, Florida 32501-5794. See Exhibit 3 Attached. Within 60 days of the effective date of the Final Order, Respondent shall restore the excavated area as identified on the drawings attached hereto as Exhibit 2. The excavated material shall be regraded so as to re-establish pre-existing contours and elevations as indicated by the adjacent undisturbed areas. Respondent shall revegetate the restored site as identified in paragraph d below. Respondent shall stabilize the site as needed to retain sediment on- site during restoration. Respondent shall utilize turbidity control devices throughout the restoration including the use of staked filter cloths in the vegetated wetlands and floating screens where needed in the open waters. Within 15 days of the effective date of the Final Order, Respondent shall submit a planting plan and schedule to the Department for approval prior to revegetating the regraded site as identified in Exhibit 2. No work to revegetate the site shall be undertaken until the plan is approved by the Department. Respondent's plan shall address and institute measures necessary to insure successful revegetation. The restoration area shall be planted with indigenous tree species of no less than 2 feet in height, such as Fetterbush (Lyonia Iucida), Sweet Gallberry (Ilex Corjacea), and Sweet Bay Magnolia (Magnolia Virginiana). The trees shall be planted on ten (10) foot centers. Respondent shall implement the restoration plan within 10 days of Department approval. Upon completion of the restoration work required by paragraph c above, Respondent shall maintain the restored area as follows: the revegetation effort shall be considered successful if, after one year or one growing season - whichever is less, 80% of the revegetation effort yield values of less than 80%, then the unsuccessful areas shall be replanted to meet, at a minimum, the required percentage. DONE AND ENTERED this 29th day of March, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 29th day of March, 1993. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esquire Acting General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard L. Windsor, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles W. Coxwell, Sr. 1133 White Point Road Niceville, FL 32578
Findings Of Fact Introduction Respondent, South Florida Water Management District (SFWMD or District), is a creature of the legislature having been created under Chapter 373, Florida Statutes (1985). It has jurisdiction over and administers all "waters in the District", including the regulation of the management and storage of surface waters. According to the map depicted in Rule 40E-1.103, Florida Administrative Code, the SFWMD's jurisdiction appears to extend over all of Monroe, Dade, Broward, Collier, Palm Beach, Martin, Lee, Hendry and Glades Counties and portions of St. Lucie, Okeechobee, Osceola, Charlotte and Orange Counties, Florida. A precise legal description of its boundaries is found in Subsection 373.069(2)(e), Florida Statutes (1985). Under the District's surface water management permitting authority, a permit is required for the construction of any works that impound, impede, obstruct or otherwise impact the flow of water, irrespective of whether the property contains a wetland of any nature. To implement the above jurisdiction, the District has adopted by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a technical manual entitled "Basis of Review for Surface Water Management Permit Application within the South Florida Water Management District" (Basis for Review). The manual was first adopted in 1977 and has been readopted with various modifications since that time. The most recent version became effective in July 1986. The manual contains criteria to be used by the District when reviewing permit applications for the construction and operation of surface water management systems within its jurisdictional boundaries. These criteria specify the manner in which an applicant must provide reasonable assurance that a project meets SFWMD objectives, and include both water quantity and quality considerations as well as environmental standards designed to protect fish and wildlife. One feature of the Basis of Review is a provision allowing an applicant to submit and implement innovative project designs as long as they meet District objectives. Many of the principles embodied in the Basis of Review have been carried forward into the challenged rules. An applicant may apply for a conceptual approval or a construction and operation (C&O) permit. The conceptual approval is a permit for a master plan when the applicant is not ready to submit all detailed drawings necessary to obtain a C&O permit. It is especially appropriate for large projects developed in phases. A conceptual approval does not authorize construction of a surface water management system, but rather authorizes a master plan with which subsequent construction and operation must be consistent. Once a conceptual permit has been issued, the individual C&O permits are then applied for and issued consistent with the terms of the conceptual permit. In 1986 the Legislature enacted Section 373.414, Florida Statutes (Supp. 1986). That section requires the District, not later than March 31, 1987, to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department (of environmental regulation) for purposes of regulation of dredging and filling." The statute goes on to require that the rule include the following: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. The statute further provides that until the District adopts specific isolated wetland rules, its review of fish and wildlife impacts in small isolated wetlands is limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. In response to the foregoing legislation, and after a series of meetings and workshops, on November 7, 1986 the District proposed to amend existing Rules 40E-4.091 and 40E- 4.301, Florida Administrative Code. The text of the amended portion of Rule 40E-4.301 reads as follows: 40E-4.301 Conditions for Issuance of Permits. (1)(m) is not against public policy, and will meet the general and specific criteria in the document described in Rule 40E-4.091(1)(a), and will meet the criteria for isolated wetlands, which are found in Appendix 7 of the document described in Rule 40E-4.091(1)(a) (Underscored words represent the proposed amendment.) In conjunction with the foregoing, the District prepared an economic impact statement (EIS) which read as follows: SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULE: 1. COST TO THE AGENCY: The proposed rule largely reflects existing policy and procedure but enunciates the specific guidelines the District applies in permitting decisions. The rule strikes a balance between specific quantitative guidelines and administrative flexibility with regard to permitting decisions. While there may be some initial implementation costs to the District, a minimal total cost increase to the agency is expected. The specific quantitative guidelines provided in the Appendix are expected to facilitate agency decisions regarding required mitigation- compensation, so that in the long run costs may actually decline as a result of implementation of the new criteria. There are no plans to change the size of District regulatory staff as a result of implementation of the standards in Appendix To the extend that additional staff is required in the future to address the impacts of permitting decisions on wetland habitat on threatened and endangered species, this impact can more correctly be attributed to the adoption of Section 373.414, F.S., by the Florida Legislature than to this rule. COSTS AND BENEFITS TO THOSE DIRECTLY AFFECTED: Appendix 7 provides the applicant with the choice of either meeting specific quantitative project design criteria or proposing a unique project design which will be reviewed by a qualitative standard to ensure that the proposed project complies with the District's objective of protecting isolated wetlands and their associated fish and wildlife functions and values. The requirements that project applications which proposed to impact wetlands provide reasonable assurances, such as mitigation/compensation, maintenance plans, monitoring and a guarantee of performance, is expected to result in some cost increases to permittees. Such require- ments are likely to improve the effectiveness of District protecting the water and related land resources of the District. IMPACT ON COMPETITION AND THE OPEN MARKET FOR EMPLOYMENT: No significant impact on competition and the open market for employment is expected. IMPACTS ON SMALL BUSINESS: The quantitative criteria in the Appendix set differential standards on the basis of isolated wetland size rather than firm size. Large projects are expected to have slightly greater flexibility in meeting the reasonable assurance requirements than small projects; however, the differential impact on small business, as defined in Section 288.703, Florida Statutes, is not expected to be significant. DATA AND METHODS USED: Data from the computer files of the District's Resource Control Department were the primary source of data used. Appendix 7 adopted by reference in amended Rule 40E- 4.301(1)(o) is a document entitled "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District - Appendix 7 - Isolated Wetlands" (Appendix 7). As originally proposed for adoption, the Appendix contained sections 1.0 through 6.0 covering the following subjects: introduction (1.0), glossary (numbered as 2.0 and containing sections 2.1, 2.2, 2.3, 2.4, 2.7., 2.9 and 2.10), size threshold (3.0), review procedures for projects which propose to impact isolated wetlands (numbered as 4.0 and containing sections 4.1-4.5), review criteria (5.0), quantitative design criteria (5.1.1., 5.1.2., 5.1.3, 5.1.4, 5.1.5, 5.1.7 and 5.1.8), qualitative criteria (5.2-5.2.3) and project guarantee criteria (numbered as 6.0 and containing sections 6.1-6.3). For purposes of surface water management permitting, Appendix 7 applies only to activities in isolated wetlands while all other activities are subject to the criteria embodied in the Basis of Review. On November 26, 1986 petitioners, Orlando Central Park, Inc. (OCP), Real Estate Corporation of Florida, N.V. (REC), and National Association of Industrial and Office Parks, Region IV (NAIOP), filed a Petition for Administrative Determination of Invalidity of Proposed Rules wherein they sought to have declared invalid proposed rules 40E-4.091(1) and 40E-4.301(1)(o). In their petition, petitioners generally challenged all or portions of sections 2.0, 3.0, 4.0, 5.0, 5.1., 5.2 and 6.0-6.4 in Appendix 7 as well as the sufficiency of the EIS. In light of the above petition having been filed, the District again considered its proposed rules on January 8, 1987 and amended Appendix 7 in a number of respects. The revised Appendix has been received in evidence as joint exhibit number 2. As a result of those revisions, and as reflected in their post- hearing pleadings, petitioners have limited their attack to sections 2.2, 4.2b, 4.3, 4.4, 5.1.1a, 5.1.1b, 5.1.1d, 5.1.2, 5.1.3 and 5.1.7 in Appendix 7 and the adequacy of the EIS. On January 15, 1987 intervenor/respondent, The Florida Audubon Society (intervenor or FAS), filed a petition to intervene. This petition was granted conditioned upon intervenor proving up at final hearing its standing in the proceeding. Standing In order to challenge a proposed rule, a party must generally demonstrate that its substantial interests will be affected by the challenged rule. To do so, petitioners presented evidence on this issue at final hearing. In the same vein, the standing of intervenor was also questioned, and it too presented evidence to demonstrate its right to have access to this proceeding. REC - REC is the owner and developer of a residential and commercial development consisting of approximately 2,400 acres known as the Buenaventura Lakes Planned Unit Development between Kissimmee and St. Cloud in Osceola County. The project has been subdivided into what is known as Basins 1, 2 and 3, of which the undeveloped acreage lies within the latter Basin. The corporation has plans to develop the remaining acreage into single family and multi-family residential and commercial developments but has not yet obtained the necessary environmental permits for the undeveloped tract. Through the testimony of an REC representative, the undeveloped acreage was described as having open grasslands, wooded areas and low, marshy areas. Some portions of the land were also described as a "wet, marshy, boggy area." However, their specific size was not disclosed, and there was only conjecture on the part of petitioners' expert that the areas were in fact isolated wetlands as defined in the proposed rule. The representative fears that if jurisdictional isolated wetlands are located within Basin 3, and the rules are adopted, it will impact upon REC in that more restrictive permits will be required prior to any further development of the land. The District has previously issued construction and operation permits for Basins 1 and 2 and necessary Department of Environmental Regulation (DER) permits have also been obtained. None have been sought or issued for Basin 3, and there was no evidence that a letter of conceptual approval covering drainage in Basin 3 has been issued by the District. Had one been issued, the project might be grandfathered and exempt from the pending rules. Even so, the record does not support a finding that isolated wetlands as defined in the proposed rule are definitely located within Basin 3 so as to make REC's substantial interest affected by this proceeding. NAIOP - The NAIOP is a national non-profit organization of developers, consisting of some 6,000 members nationwide. In Florida, it has four chapters (Jacksonville, Fort Lauderdale, Orlando and Tampa) and "several hundred" members. As developers of office, industrial and commercial real estate, it is necessary that its members obtain permits from the District on certain projects within the District's jurisdiction. The association monitors all rulemaking proceedings affecting its members, and has actively lobbied the legislature on environmental matters. It has appeared before the District and DER concerning rules and policy, especially those that affect the permitting process. According to an NAIOP representative, Eric B. Eicher, approximately 30 percent of its state members do business in SFWMD jurisdictional territory. However, Eicher had no first-hand knowledge as to how many members owned property within the District, or whether any members are intending to develop isolated wetlands which would be subject to the proposed rule. Indeed, he admitted that only two members had even talked to him about the proposed rules. As such, the NAIOP has not demonstrated any immediate and discernible impact that the proposed rule would have on its members. OCP - The OCP is a wholly-owned subsidiary of Martin-Marietta Corporation, a large corporation with offices in the Orlando area. However, Martin-Marietta is not a party in this proceeding. OCP itself is the owner and developer of an office, industrial and commercial park known as Orlando Center Park in Orange County, Florida. In addition, OCP acts as the developer of certain properties owned by Martin-Marietta. At the present time, OCP has approximately 2,400 acres in its own name which it intends to develop. They are generally located in an area west of the Florida Turnpike, south of Sand Lake Road, north of the Beeline Expressway and east of 1-4. Various aerial photographs and maps of the area were received in evidence as petitioners' exhibits 5, 8 and 9. It is undisputed that this property lies within the territorial jurisdiction of the SFWMD. On November 17, 1977 the District issued a permit granting conceptual approval of a master plan for the development of certain properties owned by OCP. However, the permit itself (petitioners' exhibit 15) did not include a review of impacts on wetlands for OCP's property. Therefore, the project is not grandfathered under proposed rule 4.1, and is subject to the new rules. If the proposed rules are adopted, OCP would have to modify its master plan and reduce the amount of its sellable or developable property. In two jurisdictional determinations performed by DER in 1983 and 1984, DER identified various isolated wetlands on OCP's property not subject to DER jurisdiction. These are located on what are identified as phases 8-B and 9 of the undeveloped tract of land (petitioners' exhibits 8 and 13). Since it is undisputed that OCP intends to develop this land, OCP is substantially affected by the proposed rules. FAS - Intervenor, which supports the rule amendments, is a non-profit association with principal headquarters in Maitland, Florida. Its membership numbers some 30,000, of which a large part live in Southeastern Florida and within the territorial jurisdiction of SFWMD. Although only one member (its president) testified at final hearing, it was the president's contention that "most" of its members support the proposed rules and the perpetuation of the isolated wetland as a function for wildlife. Through documentation offered in evidence as intervenor/respondent's exhibit 1, it was established that FAS owns various tracts of undeveloped land in Lee, St. Lucie and Collier Counties, which lie within SFWMD's boundaries. A part of these lands are isolated wetlands, and other parts are adjacent to wetlands areas. Although FAS expressed a fear that adjacent wetlands may be developed if the proposed rules are invalidated, it offered no proof of impending developments on isolated wetlands, or that such development would occur on properties adjacent to its own. Therefore, any adverse impact is remote and speculative, and has no immediacy or reality. The FAS has entered into a contract with the Game and Fresh Water Fish Commission to administer the Florida Breeding Bird Atlas Program. Under the program, FAS has contracted to establish a baseline of the numbers and types of breeding birds in the State. The FAS fears that if the rule amendments are not adopted, the destruction of wetlands will occur, thereby interfering with its ability to carry out the contract. Again, however, it offered no proof of impending developments on adjacent isolated wetlands, or otherwise established that its substantial interests under the contract would be affected. Economic Impact Statement Other than the introduction of the EIS into evidence as joint exhibit 4, there was no relevant factual evidence presented by the parties concerning the insufficiency or inaccuracy of the EIS. It is noted, however, that the District merely estimated that the proposed rules would "result in some cost increases to the permittees", and did not attempt to precisely identify the economic impact. Respondent offered into evidence various documents upon which it relied in preparing the EIS. However, such documents are hearsay, and it was not shown what competent evidence, if any, they were intended to supplement and explain. The Challenged Rules Petitioners' real concern lies with portions of Appendix 7 which has been adopted and incorporated by reference by Rule 40E-4.301(1)(o), Florida Administrative Code. That document spells out in detail the criteria that will apply to applications for surface water management permits where the proposed activity affects isolated wetlands. As noted earlier, the Appendix is divided into a number of sections, which for ease of discussion will be referred to as "rules." Each challenged "rule" will be dealt with separately. Rule 2.2 - This rule defines an "isolated wetland" as follows: Any wetland not under the jurisdiction of the Department of Environmental Regulation (DER) for the purposes of regulation of dredging and filling. Multiple individual wetlands normally connected by surface flow during a wet season with average rainfall shall be presumed to be an isolated wetland. The first sentence of the rule simply provides that any wetland not subject to DER dredge and fill jurisdiction is to be considered an isolated wetland and subject to Appendix 7 criteria. Conversely, if a wetland is subject to DER jurisdiction, any District regulated activity affecting that land must be considered under the existing Basis of Review criteria. Petitioners' concern is with the second sentence of the rule and is that whenever multiple isolated wetlands are connected by surface flow during the wet season, they believe the rule would confer jurisdiction in SFWMD not only over the isolated wetlands themselves, but also the uplands that lie adjacent to and between the individual wetlands. But, through credible and persuasive testimony, it was established that this is not the intent or result of the proposed amendment. Indeed, it was established that jurisdiction is intended to lie only over the wetlands themselves, and not the connecting uplands. Petitioners also object to the District aggregating small isolated wetlands into a single larger isolated wetland for jurisdictional purposes. However, such aggregation is necessary because of the biological interaction between the small wetlands. Petitioners further voiced some criticism of the provision in the rule that connected wetlands shall be presumed to be an isolated wetland. Even so, the rule allows an applicant to present evidence to contradict this presumption. Finally, despite suggestions to the contrary, there was no evidence of any conflicting DER policy or concept regarding isolated wetlands, how such wetlands are defined by DER, or that DER prefers the District to follow such policy or definition. Rule 4.2b. - This rule prescribes certain information that must be filed by an applicant for a permit whenever the project impacts isolated wetlands. As is pertinent here, Section b. requires the following to be filed with the application: b. A list of all plant and animal species listed as endangered, threatened or of special concern pursuant to 50 Code of Federal Regulations, Section 17.12, and Rules 39-27.03, 39-27.04 and 39-27.05, Florida Administrative Code, which are incorporated by reference and made a part of this rule which utilize the area and an evaluation of the probable significance of the area to the listed species. Petitioners object to the requirement that an applicant submit a list of all plant species of special concern as defined by Rule 39-27.05, Florida Administrative Code. This rule was promulgated by the Game and Fresh Water Fish Commission and designates some forty-three plant "species of special concern". Petitioners' objection is based on the premise that the term "species" does not include plants, and that plant species are accordingly outside the purview of the District's permitting authority. However, they presented no evidence to support this construction of the term. In contrast, through testimony from a National Audubon Society employee, it was established that the term "species" not only includes animals, but plants as well. Mitigation/Compensation Rules - A number of rules within Appendix 7 make reference to mitigation and compensation proposals to be submitted by applicants whose projects impact isolated wetlands. As is relevant here, they include rules 4.3, 4.4, 5.1.1a., b. and d., 5.1.2, 5.1.3 and 5.1.7, all challenged by petitioners. These rules generally require or provide for mitigation when an applicant intends to impact or destroy all non-exempt isolated wetlands 0.5 acre to 5.0 acres in size. It is petitioners' contention that the District has no authority to require or otherwise provide for mitigation or compensation as a permit criterion. Mitigation is defined in rule 2.8 as "remedying isolated wetland impacts by restoring or enhancing affected habitat, or by creating similar habitat of equal or greater function". Compensation is defined in rule 2.9 as the "replacement of isolated wetlands with a mixture of wetland/upland habitat, unique upland habitat, or otherwise provide overall benefits to the natural system". Mitigation is a common practice in environmental permitting and has been routinely used by the District in its existing Basis for Review. Indeed, at the present time ``most'' applicants include a mitigation plan with their applications for permits. Even petitioners' expert conceded that the use of mitigation is "a reasonable practice" and has resulted in "better projects", and "better" protection of the water resources. Rules 4.3 and 4.4 require applicants who propose mitigation or compensation to submit certain information with their applications. This information is necessary to insure that the mitigation/compensation plan will be successful. It is also noted that mitigation is not used or required for every project, and can be avoided where a project has other built-in compensation features. The new rules simply continue existing agency policy. Rules 5.1.1a. and b. provide the following presumptions concerning mitigation and compensation: Mitigation or compensation for elimination of isolated wetlands between 0.5 and 5.0 acres in size, pursuant to Section 5.1.2 below, shall be presumed to maintain wetland functions. There is no presumption that the function of isolated wetlands over 5.0 acres in size can be maintained by measures other than protection as defined in Section 2.4 above. Protection of isolated wetlands over 5.0 acres in size shall be the preferred method of providing the required reasonable assurance, however, other reasonable alternatives proposed by the applicant will be considered. Section a. creates a presumption in favor of the applicant that mitigation or compensation, in ratios specified within the rules, shall be presumed to maintain the functions of isolated wetlands between .5 and 5 acres in size. Section b. eliminates this presumption for isolated wetlands over five acres in size since the District's experience has been that applicants have not generally been successful in mitigating larger wetlands, and that it is more difficult to mitigate and compensate for larger projects. Even so, the rule allows an applicant to present "other reasonable alternatives" to mitigation. Petitioners object to the presumption in Section b. since they contend it reposes in the District the authority to preserve isolated wetlands over 5.0 acres in size. However, this "authority" comes into play only when the criteria cannot be met, and the applicant fails to present "other reasonable alternatives". Rule 5.1.1d. provides as follows: (d) Protection of isolated wetlands or incorporation of isolated wetlands into surface water management systems in favored over isolated wetland destruction and mitigation or compensation. Wetland destruction and mitigation or compensation shall be considered only when there are no feasible project design alternatives for the particular site. Reasonable project design alternatives to isolated wetland impacts shall be considered. This rule essentially favors the protection of isolated wetlands as opposed to their destruction. It goes on to permit destruction and mitigation/compensation whenever there are no "feasible project design alternatives". In other words, the District has established a first priority of preserving wetlands whenever possible, and allowing destruction only when no "reasonable project design alternatives" are available. Under the latter situation, mitigation/compensation will then be required. Petitioners assert the term "feasible project design alternative" is not readily understood, or comprehensible to the average person. However, even their engineer stated he could "apply it", and that he "normally" goes about designing projects consistent with the terms of the rule. It was further established that the District construes the terms "feasible" and "reasonable" to be synonymous, and that the rule would not require an applicant to present a proposal that was prohibitively expensive, or technically unfeasible. Rule 5.1.2 also deals with mitigation/compensation and addresses mitigation ratios to be used by applicants. It reads as follows: Isolated wetland mitigation shall be implemented based upon ratios of acres wet- lands created, or restored to acres of wet- lands destroyed which provide reasonable assurance that the mitigation will be successful. The following ratios shall be presumed to provide such reasonable assurance for type-for-type mitigation: Forested swamp, non-cypress dominated-2. 5:1 Forested swamp, cypress dominated---2.0:1 Freshwater marshes 1.5:1 Ratios for mitigation with unlike habitat, including expanded littoral zones, or compen- sation shall be determined on a case-by-case basis. When type-for-type mitigation is provided as defined in Section 2.8 and accepted by the District prior to isolated wetland impacts, a one-to-one ratio shall be presumed to provide such reasonable assurance. The rule explains that the prescribed mitigation ratios provide reasonable assurance that the creation or restoration will be successful. It is a natural corollary to the District's mitigation/compensation policy. Testimony established that these ratios were reasonable, favor an applicant, and are consistent with the different natural communities to which they apply. Higher ratios of wetlands created to wetlands destroyed are necessary because of the time required for an artificially created replacement system to provide all of the previous native functions. Finally, the use of a one-to-one ratio when type-for- type mitigation is used reduces the amount of land required by an applicant for mitigation, and provides flexibility from the otherwise specified ratios. Rule 5.1.3 prescribes the use of mitigation/compen-sation where disturbed wetlands are impacted by a project. It reads as follows: Disturbed isolated wetlands may be developed and their loss compensated for by: Mitigation at ratios less than those required in 5.1.2, based on the degree of disturbance and the remaining functional qualities. Mitigation through restoration or other disturbed wetlands is preferred over wetland creation. Preservation of unique uplands or in- clusion of developable uplands within an up- land/wetland protected system. Mitigation or compensation shall not be required for isolated wetlands which do not provide fun- ctions and values as expressed above in Sections 1.0 and 5.0. Unlike rule 5.1.2., this rule provides for mitigation ratios based upon the degree of disturbance and the remaining functional qualities of the wetland. It is too is a natural corollary of the District's stated policy. It recognizes that some wetlands have been disturbed, and that the ratios prescribed in rule 5.1.2. are inappropriate and too rigid for a previously disturbed wetland. Rule 5.1.7 - The final rule challenged by petitioners provides for the establishment of "buffer zones" under certain conditions. It is petitioners' contention that, like many of the other cited rules, the District has no authority to adopt the rule because buffer zones in upland areas are not a part of the surface water management system. A buffer zone is defined in rule 2.7 as "an area adjacent to the isolated wetland which protects wetland function and minimizes adverse impacts of upland development on wetland function". The challenged rule reads as follows: Buffer zones may be required around all isolated wetlands that are to be protected or incorporated into a surface water management system to protect wetland function and mini- mize adverse impacts of upland development on wetland function. Actual delineation of the buffer zone may vary according to site specific conditions. Buffer zones which extends (sic) at least fifteen feet landward from the edge of the wetland in all places and averages twenty-five feet from the landward edge of the wetland will be presumed to be adequate. Prior to issuance of Construction and Operation permits, buffer zones shall be field verified and delineated in the field. Buffer zones may consist of undisturbed uplands, open water bodies, wildlife corr- idors or other natural or structural features which serve the purpose stated in Section 2.7 as appropriate for the particular site. Upland areas or wildlife corridors adja- cent to buffer zones may be incorporated as compensation areas, provided they are in excess of the minimum buffer zone and meet all other requirements for compen- sation areas. Under current District policy, buffer zones are required around wetlands whenever they are necessary to maintain the integrity of the wetland. They are a reasonable tool in the District's arsenal to protect water, fish and wildlife resources. Testimony established that they are particularly essential when an applicant proposes to build a project immediately adjacent to a wetland so that erosion or destruction of the wetland may be avoided. The rule merely extends the District's existing policy to isolated wetlands.
The Issue The issue is whether St. Johns County Comprehensive Plan Policies E.2.2.5, E.2.2.10, E.2.2.13, E.2.2.17, and D.2.3.4 adopted by Ordinance No. 2003-31 on March 25, 2003, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's current Plan was adopted in 1990. At that time, the County adopted a minimum buffer between wetlands and "natural drainage courses" of 25 feet. During the preparation of its Evaluation Appraisal Report (an update to the Plan) in 1999, the County directed its staff to initiate a study of wetlands and upland buffers. After a Request for Proposals was issued, the County eventually contracted with Jones, Edmunds & Associates (JEA) to prepare a study of the available science concerning upland buffers and develop a wetland buffer plan which would protect environmentally sensitive lands from development activities. In conducting this study, JEA relied upon its own personnel, County staff, and outside consultants. In August 1999, JEA completed and submitted to the County a "Background Report in Support of Development of Wetland Buffer Zone Ordinance" (Background Report). In January 2000, JEA completed and submitted to the County a final report entitled "Calculating Buffer Zone Widths for Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County" (Final Report). The Final Report generally provided a methodology for calculating buffer widths based on vegetation and groundwater drawdown and recommended that the County adopt a 300-foot buffer around all wetlands in the County. In response to the Final Report, on May 10, 2000, the County adopted various amendments to its wetland buffer provisions, including a new Policy E.2.2.5(a)(1)(c) which required that it adopt Land Development Regulations (LDRs) pertaining to wetlands within two years "after completion of the consultant's wetland buffer study," or by January 2002. In February 2000, the County also created a volunteer working group (Working Group) made up of County staff, biologists, environmental scientists, and representatives of environmental organizations and landowners, to review data and analysis related to wetland buffers, including the JEA Final Report. That group held at least nineteen meetings between February 2000 and May 2001, and it analyzed scientific and technical data and expert testimony from various federal and state agencies. On July 24, 2001, the County staff recommended that the County adopt new LDRs which identified upland buffer zones and required wetland buffers ranging from 50 to 150 feet, depending on the sensitivity of the area; however, this recommendation was rejected by a 3-2 vote. When the County failed to adopt new wetland buffer regulations within the two year period, as required by the Plan, on June 11, 2002, Petitioners filed a complaint with the Department under Section 163.3202, Florida Statutes (2001), seeking enforcement of Policy E.2.2.5(a)(1)(c). After the Department made a determination that the County had failed to amend its LDRs, as required by the Plan, on October 16, 2002, the County submitted to the Department for its compliance review a package of proposed amendments, including amendments to Policies E.2.2.5, E.2.2.10, E.2.2.13, and E.2.2.17. On December 20, 2002, the Department issued its Objections, Recommendations, and Comments Report (ORC), which raised objections to Policies E.2.2.5, E.2.2.10, and E.2.2.13. More specifically, the ORC raised the following two issues: The amendments establishing averaging of buffers do not provide a predictable standard for buffering. In particular there is no minimum buffer width [Issue 1]. Additionally, the amendment is not supported by data and analysis demonstrating the proposed minimum and averaging is adequate to protect the resources referenced in the County. Therefore, the amendment has not demonstrated consistency with requirements to protect natural resources including upland habitat and wetlands [Issue 2]. In response to the ORC, on March 25, 2003, the County adopted Ordinance No. 2003-31, which made changes to Policies E.2.2.5 and D.3.2.4. The Ordinance also readopted (without further change) Policies E.2.2.10, E.2.2.13, and E.2.2.17, which had been previously submitted to the Department on October 16, 2002. Policies E.2.2.5, E.2.2.10, E.2.2.13, and E.2.2.17 are found in the Conservation/Coastal Management Element of the Plan while Policy D.3.2.4 is found in the Stormwater Management Sub-Element of the Infrastructure Element of the Plan. As noted above, while the County made further amendments to Policy E.2.2.5(a)(1)(a) and (b), which addressed the minimum buffer issue raised in the ORC, it did not make any changes (e.g., altering the width of the buffers) which addressed the issue of whether the buffers were adequate in size to protect the natural resources. Finally, for the purpose of providing "clarification and consistency" with other provisions within the Plan, the County also made minor modifications to Policy D.3.2.4. In very broad terms, Ordinance No. 2003-31 added a requirement that the LDRs address "wetland buffer averaging" and establish a variance procedure. It also deleted the requirement that the wetland buffer regulations be amended within two years after the completion of the consultant's study. On May 21, 2003, the Department published its Notice of Intent to Find Amendment in Compliance in a local newspaper. In making this determination, the Department concluded that it was legally prohibited by Section 163.3184(6)(c), Florida Statutes, from compelling the County to adopt larger upland buffers. That statute provides that when a state agency, here the St. Johns River Water Management District (District), has implemented a permitting program, "the [Department] shall not require a local government to duplicate or exceed that permitting program in its comprehensive plan." On June 3, 2003, Petitioners filed their Petition contending that the amendments were not in compliance for numerous reasons. As set forth in the parties' Pre-Hearing Stipulation, Petitioners contend that there was insufficient data and analyses to support the amendments in violation of Sections 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rules 9J-5.005(1)(c), (2)(a) and (b), 9J-5.006(2)(b) and (c), 9J-5.012(2), and 9J-5.013(1); that the amendment is not in compliance with Florida Administrative Code Rule 9J-5.013(2)(b)(4), (c)(5) and (6), and (3); that the amendment is not in compliance with Section 163.3177(6)(d), Florida Statutes; that the amendment to Policy E.2.2.10(b) is not in compliance because it is a self-amending policy; that the amendment to Policy E.2.2.5(a)(1) is not in compliance because it fails to provide a clear, predictable standard for variances; that the amendment is internally inconsistent with Future Land Use Element Goal A.1 and Objective A.1.1, Conservation Goal E.2, Objective E.2.2, and associated Policies E.2.2.4, E.2.2(c),3 E.2.2.8, E.2.2.9, E.2.2.10, E.2.2.17, and E.2.2.18; that the amendment is internally inconsistent with Conservation Objectives E.2.3 and E.2.8 and Policies E.2.3.7, E.2.8.7, and E.2.8.8; and that the amendment is inconsistent with the following portions of the State Comprehensive Plan: Section 187.201(8)(b)10. and 12., (10)(b)1., 3., and 7., and (26)(b)7., Florida Statutes. The Parties The County is the local government responsible for adopting a Plan and amendments thereto. FWF is a not-for-profit corporation whose purpose, according to its president, is "conservation and natural resources and education." FWF submitted objections to the County prior to the adoption of the challenged amendments. Although FWF's offices are located in Tallahassee, it currently has 173 members who reside within the County. FWF does not assert that it resides or owns property or a business within the County; however, FWF does contend that it has standing to participate in this proceeding on the theory that it operates a business within the County. Besides making comments, recommendations, and objections to local governments regarding growth management issues, the evidence shows that the organization (primarily if not wholly from its Tallahassee office) collects dues from its members; periodically sends members a newsletter providing information on conservation issues; organizes and takes field trips; issues press releases; occasionally makes presentations to the public; and provides information to the news media concerning conservation-related issues. The organization also has a web site with a "merchandise store," which sells merchandise (more than likely to members but also to the public) from its Tallahassee office. However, the sale of merchandise is only incidental to the primary purpose described above by its president. FWF does not maintain an office in the County; it does not have an occupational license to engage in a business; it has no employees in the County; it has no telephone listing in the County; it has not filed any tangible personal property tax returns or requested exemptions from the County Tax Collector; it holds no formal meetings within the County; and its president could not recall when or if merchandise was sold by the Tallahassee office (via the web site) to a County resident within the last 12 months. It is fair to find from the evidence that FWF does not operate a business within the County. FMI is a not-for-profit Florida corporation (created in 1997) whose principal address is 201 Owens Avenue, St. Augustine, Florida. (That address is also the address of a charter member, Patrick Hamilton.) FMI submitted objections to the County prior to the adoption of the challenged amendments. According to Mr. Hamilton, the purpose of the organization is to "preserve and protect the Matanzas River Basin [which runs north-south along the eastern part of the County] and the lands that affect it." The organization has members who reside within the County, although the exact number is not of record. Like FWF, FMI does not reside or own property or a business within the County; however, FMI contends that it is an affected person because it operates a business within the County. To substantiate this assertion, FMI presented evidence that it collects dues from its members; sends newsletters to its members; prepares and submits objections, recommendations, and comments to the County regarding growth management issues; hires attorneys and consultants to represent its interests in environmental and land use matters; provides educational information to local news media; has been involved in various projects over the years (such as seeking to have Highway A1A designated as a state scenic highway and providing input to the State on the purchase of lands for conservation purposes); takes occasional field trips; and conducts meetings within the County. FMI maintains a bank account but has no office. (When meetings are held, it generally uses the office or home of one of its members.) There is no evidence that FMI has a telephone listing, an occupational license to engage in any type of business, or any full or part-time employees. Even though FMI engages in a number of commendable activities, it is fair to infer from the evidence that FMI is not engaged in a "business" within the County, as that word is commonly understood. The parties have stipulated that DDI is a Florida corporation that owns property and operates a business in the County, and that it submitted oral and written comments to the County prior to the adoption of the plan amendments. These stipulated facts establish that DDI is an affected person within the meaning of Section 163.3184(1)(a), Florida Statutes. The Amendments Although a local government is not required by statute or rule to adopt buffers in a comprehensive plan, in the 1990 Plan, the County established a 25-foot buffer between developed areas and natural drainage courses as a protective measure for wetlands and other environmentally sensitive lands. The primary purpose of implementing wetland buffers is, of course, to protect water quality. When the Plan was updated in 2000, the County adopted its current regulation to provide a 50-foot upland buffer adjacent to the contiguous wetlands associated with the Guana, Tolomato, Matanzas, and St. Johns Rivers. For all other contiguous wetlands in the County, the Plan required a 25-foot buffer. The update also required that both the Plan and the LDRs be amended within two years after completion of the JEA's study of wetland buffers. There are three accepted strategies in comprehensive planning used by local governments for protecting wetlands. The first approach is a mapping strategy, where the local government performs an assessment of wetlands and environmentally sensitive lands and reflects those areas on a map. Alternatively, a local government may choose to rely on policies incorporated into the text of its comprehensive plan. Or, the local government may choose a combination of the first two strategies that would involve both mapping and policies to guide land uses for the wetland areas. The County's choice appears to be a combination of the first two strategies. In broad terms, the 2003 text amendments to Policies E.2.2.5(a)(1)(a) and (b), E.2.2.13(b), and D.3.2.4 relate to a system of "wetland buffers" as one of the County's strategies for protection of wetlands and other environmentally sensitive lands, while the amendments to Policies E.2.2.10 and E.2.2.17 relate to another proposed strategy, the use of Environmentally Sensitive Overlay Zone (ESOZ) regulations. More specifically, Policy E.2.2.5(a)(1), as amended, reads as follows: E.2.2.5. The County shall protect Environmentally Sensitive Lands (ESLs) through the establishment of Land Development Regulations (LDRs) which address the alternative types of protection for each type of Environmentally Sensitive Land. Adoption and implementation of the Land Development Regulations shall, at a minimum, address the following issues: For Wetlands, Outstanding Florida Waters (OFW), and Estuaries: establish and maintain buffers between the wetlands/OFW/estuaries and upland development as stated in the County's Land Development Regulations (LDRs), and as follows: A minimum natural vegetative upland buffer of 25 f[ee]t shall be required and maintained between the developed areas and the contiguous wetlands to protect the water quality of the wetlands, except where buffer averaging may allow less than the required minimum of 25 feet in certain locations while achieving a greater buffer width or where a variance is granted. Except where a variance is granted, no buffer shall be reduced to less than 10 feet except in circumstances where an unavoidable wetland impact occurs such as but not limited to a road crossing. Such wetland buffer shall be measured from the jurisdictional wetland line as determined by the SJRWMD and FDEP. [A] minimum of a 50 f[oo]t natural vegetative upland buffer shall be required and maintained between the development area and the St. Johns, Matanzas, Guana and Tolomato Rivers and their associated tributaries, streams, and other interconnecting water bodies, except where buffer averaging may allow less than the required minimum 50 feet in certain locations while achieving a greater buffer width or where a variance is granted. Except where a variance is granted, no buffer shall be reduced to less than 25 feet except in circumstances where an unavoidable wetland impact occurs such as but not limited to a road crossing. Such wetland buffer shall be measured from the jurisdictional wetland line as determined by the SJRWMD and FDEP. In addition, the County deleted subparagraph (a)(1)(c), which required that it adopt LDR wetland requirements within two years after completion of the consultant's wetland buffer study. As amended, Policy E.2.2.10(b) reads as follows: E.2.2.10. By December 2005 or sooner, the County shall develop and adopt guidelines and standards for the preservation and conservation of wetlands through various land development techniques including, but not limited to, the following: * * * (b) The County shall protect wetlands, uplands[,] and their associated wildlife habitats through the implementation of natural vegetative buffers, the preservation of Significant Natural Communities Habitat, and the protection of Listed Species within St. Johns County as provided in the County Land Development Regulations. The County also deleted reference in the Policy to an ESOZ ordinance and the requirement that it adopt ESOZ regulations within two years after the completion of the consultant's wetland buffer study. As amended, Policy E.2.2.13(a) reads as follows: By December 1999, the County shall develop and adopt guidelines and standards for the preservation and conservation of uplands through various land development techniques as follows: St. Johns County shall require a buffer zone adjacent to the wetlands and open water habitats on all new development sites as specified in the LDRs and [P]olicy E.2.2.5. In addition, the County deleted language which required that it adopt "new wetland buffer regulations" within two years after completion of the consultant's wetland buffer study. As amended, Policy E.2.2.17 reads in relevant part as follows E.2.2.17. By 2005 or sooner, the County shall consider adoption of an Environmentally Sensitive Overlay Zone (ESOZ) for areas designated on the Environmentally Sensitive Lands Map. The ESOZ shall establish standards and procedures to address the following: (list of criteria omitted) The amendment also deleted language requiring that the County adopt an ESOZ ordinance within two years after the completion of the consultant's wetland buffer study and by 2005 adopt LDRs for the ESOZ. Finally, as amended, Policy D.3.2.4 reads as follows: D.3.2.4. The County shall require a vegetative buffer between contiguous wetlands and developed areas to protect the water quality of the drainage course as established in the County Land Development Regulations and Policy E.2.2.5 of this Comprehensive Plan. This amendment merely eliminated reference to a "minimum 25- foot" vegetative buffer and added language that the buffer provisions in Policy E.2.2.5 would now apply. Prior to the 2003 amendments, the wetland buffer averaging and variance provisions were not included in the Plan, but instead were established in the County's LDRs. The amendments conform the Plan policies to the County's existing practices for averaging and variances. The changes to Policy E.2.2.5(a)(1)(a) and (b) require that the County's LDRs address wetland buffer averaging by only allowing buffers to fall below the established minimums if an overall greater buffer width is achieved. (In other words, the County must maintain 25 and 50-foot natural vegetative buffers around wetlands and wetlands associated with certain rivers, respectively; however, through an averaging process, the buffers may average 25 and 50 feet, rather than be a static 25 and 50 feet around the entire wetland.) Averaging allows the County to consider site-specific conditions, thereby providing better protection and conservation of wildlife and resource protection. Similarly, the change to the Policy requires that the LDRs address variances to the wetland buffer requirement. Variance procedures follow those previously set out in the County's LDRs. (The record shows that in the last four years, the County has never granted a variance to reduce or eliminate a buffer.) Before the amendments to Policies E.2.2.10(b) and E.2.2.17, those Policies required LDRs which would establish standards for certain identified environmental features, such as shellfish harvesting, water quality, flood plain capacity, and water dependent wildlife, through the use of a zoning overlay, that is, an ESOZ. The amendments changed the policy from mandatory establishment of an ESOZ in the LDRs to a discretionary act. (Policy E.2.2.17 now provides that "[b]y 2005 or sooner, the County shall consider adoption of an [ESOZ] ") The original ESOZ provision was placed in the Plan during the Plan update in 1999-2000 as a strategy to protect environmentally sensitive lands. Since that time, the County has determined that other types of protection strategies may protect environmentally sensitive lands as well as or better than an ESOZ. The County intends to conduct a study of the ESOZ to determine whether or not it is a preferred strategy for environmental protection. The amendments are designed to provide the County with flexibility to rely on other strategies if they provide a better way to achieve the same result. Since adoption of the ESOZ policy, the County has instituted new regulations, adopted further protective measures, established regulatory programs, and hired additional personnel for the purpose of protecting the natural resources in the County. If these (and other) measures address the issues that the ESOZ would address, there is no need to duplicate the other natural resource protection programs. If the Plan as a whole protects environmentally sensitive lands, then the change to the ESOZ Policies will not reduce protection of natural resources in the County. The ESOZ is designed to establish standards and procedures to address shellfish harvesting areas; surface water quality; flood storage and flood plain capacity; wetland dependent wildlife and other endangered species; environmental scenic views and vistas; provisions for development mitigation, revegetation, buffering, and setback measures within the ESOZ; and provisions for building and development practices and techniques which protect the integrity of the ESOZ. There are, however, numerous other Plan provisions which address these same areas of concern. The County will analyze these policies and other possible protection measures to determine whether an ESOZ is the preferred alternative. Accordingly, the more persuasive evidence establishes that the amendments to Policies E.2.2.10(b) and E.2.2.17 do not reduce the protection currently afforded environmentally sensitive lands by the Plan. Wetland Data and Analysis The JEA Background Report compiled a literature review of the basic principles of buffer zones, set forth the ecological benefits of buffer zones, and compiled a summary of various buffer ordinances adopted by counties throughout the State. The JEA Final Report provided a methodology for calculating buffer widths based on vegetation and groundwater drawdown and recommended that a 300-foot wetland buffer be preserved adjacent to all wetlands in order to provide protection to water quality, water quantity, and wildlife habitat. With regard to water quality, buffers are primarily beneficial for protecting against the effects of sedimentation and turbidity. However, methods other than buffers can be implemented which can be equally effective in reducing sediment transport. In other words, a 300-foot buffer is not always necessary to prevent sediment transport. Based upon information presented to the Working Group over an 18-month period after the Final Report was submitted, the County determined that, through its Environmental Resource Permit program, the District effectively regulates activities which can cause sedimentation and turbidity, and that additional buffer widths were not needed to protect against sedimentation and turbidity. The County is not required to duplicate or exceed the requirements of a state or regional agency's permitting program. With regard to water quantity, the Final Report and Working Group considered the extent to which wetland buffers may provide the benefit of protecting against adverse effects of groundwater drawdown. Based on evidence presented to the Working Group, the County determined that adequate measures were in place (through District oversight and permitting requirements) to prevent adverse groundwater effects, and that additional buffers were not needed to address this issue. As to the habitat protection issue, the Final Report recommended a 300-foot wetland buffer to protect those species "that require a wide surrounding upland area," but also stated that, based on unspecified "policy decisions," a wetland buffer of less than 300 feet can provide protection to wetlands. The Final Report's recommendation was based on the assumption that the spatial requirements for various wildlife species present in the County ranged from 20 to 6,336 feet. There was no evidence, however, of a direct correlation between spatial requirements and the upland habitat needs of the studied species. Also, the Final Report does not contain any data and analysis of the upland habitat needs of the species. The methodology used by JEA in reaching a wetland buffer recommendation was not professionally acceptable. First, although the Final Report contains several tables purportedly summarizing "recommended buffer widths," citing several scientific studies to support those conclusions, those studies do not support the JEA conclusions. That is to say, the studies cited in the Final Report as the basis for buffer width recommendations are neither consistent with, nor support, the buffer widths contained in the Final Report. Similarly, although the recommendations in the Final Report are based upon Appendix A attached thereto ("Species List of Wetland-Dependent Wildlife Habitat"), Appendix A does not relate to the upland habitat needs for a species. In other words, there is no direct correlation between the spatial requirements as shown in Appendix A and the upland habitat needs of the listed species. Based upon the spatial requirements JEA listed for each species, JEA then plotted an algebraic curve correlating the number of species with the spatial requirements. Without explaining the reasons, JEA then decided to protect 50 percent of the species in a given type of habitat and, referring to the curve, determined that a 300-foot buffer would be necessary to protect the 50 percent. However, this is not a professionally acceptable methodology for the following reasons: the underlying studies were not necessarily representative of the habitat needs of the species in the County; the spatial requirements did not necessarily correlate with actual upland habitat requirements; and JEA erroneously translated spatial requirements from water's edge or width of forest needed as being the upland habitat needs from wetlands edge. The evidence supports a finding that this is not a professionally acceptable methodology for determining buffer widths. In summary, the County and DDI established that the JEA Background and Final Reports are not based on the best available relevant data and analyses for determining appropriate buffer widths. Besides the questions raised about the acceptability of the methodology used in reaching the 300- foot buffer recommendation, the County determined that other types of regulations could and do provide the same or better resource protection. As a result of the Working Group process, the County received extensive additional scientific and technical information regarding buffers, including the water quality benefits of buffers; the effectiveness of current regulatory programs of the District in protecting water quality; the effectiveness of the District's programs for protecting against adverse groundwater drawdown; and the relative effectiveness of wetland buffers in protecting wildlife habitat. Petitioners' Objections Petitioners' objections are grouped into six broad categories: that the amendments are not supported by adequate data and analyses; that the amendments are not in compliance with Section 163.3177(6)(d), Florida Statutes, and numerous portions of Florida Administrative Code Rule 9J-5.013 (which pertains to the Conservation Element); that the amendment to Policy E.2.2.10(b) is a self-amending policy; that Policy E.2.2.5(a)(1) fails to provide a clear, predictable standard for variances; that the amendments conflict with other Plan provisions; and that the amendments are inconsistent with six provisions within the State Comprehensive Plan, as established in Chapter 187, Florida Statutes. These objections will be discussed separately below. Data and analyses While the JEA Final Report was original data collected by the County, there is no credible evidence that it is either the best available data or based on a professionally accepted methodology. (See Findings of Fact 32-40.) The County conducted an additional 18 months of extensive data gathering and analyses of the issues addressed in the Final Report. The amendments were consistent with, and an appropriate reaction to, the results of that data and analyses and are based upon the best available, appropriate scientific data gathered using a professionally acceptable methodology. The more persuasive evidence supports a finding that Petitioners have failed to establish beyond fair debate that the amendments are not based upon relevant and appropriate data and analyses. Inconsistency with a statute and rule Petitioners next contend that the amendments are not in compliance with Florida Administrative Code Rule 9J- 5.013(3)(b), which addresses the protection and conservation of wetlands, and reads as follows: Future land uses which are incompatible with the protection and conservation of wetland functions shall be directed away from wetlands. The type, intensity or density, extent, distribution and location of allowable land uses and the types, values, functions, sizes, conditions and locations of wetlands are land use factors which shall be considered when directing incompatible land uses away from wetlands. Land uses shall be distributed in a manner that minimizes the effect and impact on wetlands. The protection and conservation of wetlands by the direction of incompatible land uses away from wetlands shall occur in combination with other goals, objectives and policies in the comprehensive plan. Where incompatible land uses are allowed to occur, mitigation shall be considered as one means to compensate for loss of wetland functions. The County has adopted a three-tiered approach to satisfy this rule. First, the Future Land Use Map directs intensities away from significant water bodies. Second, lower land use densities have been adopted in coastal areas. Third, numerous policies require site-specific review of, and protection for, environmentally sensitive lands. This approach has previously been found to be in compliance, and it is a land use planning type of approach recognized by the Department. Petitioners did not establish beyond fair debate that the amendments are not in compliance with this rule. Petitioners next contend that the amendments are not in compliance with Florida Administrative Code Rule 9J- 5.013(2)(b)4., which requires that a plan's Conservation Element contain one or more specific objectives which "[c]onserve, appropriately use and protect fisheries, wildlife, wildlife habitat[,] and marine habitat." As noted above, with the additional provisions for averaging and variances, the wetland buffer distance requirements remain the same, and they are desirable from a land planning perspective. In addition, the change to the ESOZ provision does not reduce any current provisions in the Plan. Petitioners did not establish beyond fair debate that the amendments are not in compliance with this rule. Petitioners further contend that the amendments are not in compliance with Florida Administrative Code Rule 9J- 5.013(2)(c)3., 5., and 6., which requires that a plan's Conservation Element contain at least one policy for each objective which addresses protection of native vegetative communities from destruction by development activities; restriction of activities known to adversely affect the survival of endangered and threatened wildlife; and protection and conservation of the natural functions of existing soils, fisheries, wildlife habitats, rivers, bays, lakes, floodplains, and wetlands. The evidence clearly demonstrates that such policies exist in the Plan, and that there is nothing in the amendments that is inconsistent with, or will override or prevent implementation of, these policies. Accordingly, Petitioners did not establish beyond fair debate that the amendments do not comply with this rule. Petitioners next contend that the amendments are not in compliance with Section 163.3177(6)(d), Florida Statutes, which requires that a plan must contain a Conservation Element for the "conservation, use, and protection of natural resources" in the area, including "air, water, water recharge areas, wetlands, waterwells, estuarine marshes, soils, beaches, shores, flood plains, rivers, bays, lakes, harbors, forests, fisheries and wildlife, marine habitat, minerals, and other natural and environmental resources." The parties have stipulated that prior to the adoption of the amendments, the County's Plan was in compliance. The more persuasive evidence is that the amendments will not reduce the conservation, use, and protection measures of the Plan. Therefore, Petitioners have not established beyond fair debate that the amendments are not in compliance with this statute. Self-amending policy Petitioners contend that the amendment to Policy E.2.2.10(b) is a self-amending policy. A self-amending policy is "one which changes as the result of an event that is unknown and unspecified at the time the policy is adopted." Palm Bch. County Bd. of County Comm. et al. v. Town of Jupiter and Dep't of Comm. Affrs., DOAH Case No. 95-5930GM (Div. Admin. Hrgs. Jan. 24, 1997; Admin. Comm. Oct. 21, 1997). However, a policy is not self-amending if it sets out a clear general policy and specific conditions for changing that policy. Id. Comprehensive plans need not include the implementing regulations, but rather should provide meaningful guidelines for the content of more detailed LDRs. See Fla. Admin. Code R. 9J-5.005(6)("It is not the intent of this chapter to require the inclusion of implementing regulations in the comprehensive plan ") Policy E.2.2.10(b) establishes a clear general policy to preserve and conserve wetlands through specific programs. Specific conditions for each program are set forth elsewhere in the Plan, including Policy E.2.2.5(a)(1) (natural vegetative upland buffers); Policy E.2.2.13 (significant natural communities habitat); and Objective E.2.8 (threatened and endangered species) and related policies. All of these are implemented in the planning process, as required by Policy E.2.2.7. In combination, these policies establish clear policy direction and guidelines for developing future LDRs. Therefore, it is found that Policy E.2.2.10(b) is consistent with other policies, and Petitioners have not established beyond fair debate that the Policy is self-amending.4 Does Policy E.2.2.5 have a clear, predictable standard? Petitioners contend that Policy E.2.2.5(a)(1) is not in compliance because it fails to provide a clear, predictable standard for variances. They go on to assert that because there is no predictable standard in the Policy, it essentially equates to a form of a self-amending policy. Variances are special exceptions to regulations and allow a non-conforming use in order to alleviate undue burden or unnecessary hardship. See, e.g., Troup v. Bird, 53 So. 2d 717, 720-22 (Fla. 1951). They must be "consistent or in harmony with, or not subversive or in derogation of, the spirit, intent, purpose or general plan of such regulations." Id. at 721. Policy E.2.2.5 merely requires that variances must be established in the LDRs. While the more specific standards and procedures for granting variances will be incorporated into the LDRs, the testimony corroborates that variances can only be approved when "an unavoidable wetland impact occurs such as but not limited to a road crossing," and that in no circumstance can the buffer width be totally eliminated. Further, the variance must be unavoidable, and it cannot be inconsistent with the overall objectives of the Plan or LDRs. Therefore, Petitioners have failed to show beyond fair debate that the amendment does not establish a sufficiently clear general policy direction or that the policy is self-amending. Conflicts with other provisions in the Plan Petitioners next contend that the amendments as a whole, or amendments pertaining to a single policy, conflict with various Goals, Objectives, and Policies within the Plan, including Goal A.1, Objective A.1.1, Goal E.2, Objective E.2.2, Policies E.2.2.4, E.2.2.5(c), E.2.2.8, E.2.2.9, E.2.2.10, E.2.2.17, E.2.2.18, Objective E.2.3, Policy E.2.3.7, Objective E.2.8, Policy E.2.8.7, and Policy E.2.8.8. If goals, objectives, and policies do not conflict, then they are considered consistent. Goal A.1 in the Land Use Element is the County's overall guiding principle for managing growth and development in a responsible manner, and it requires the County to balance several interests, including encouraging/accommodating land uses which make the County a viable community; creating a sound economic base; offering diverse opportunities for a wide variety of living, working, shopping, and leisure activities; and minimizing adverse impacts on the natural environment. The more persuasive evidence supports a finding that the amendments do not conflict with this guiding principle. Objective A.1.1 in the Land Use Element requires that the County designate future land uses based upon environmental conditions and constraints. Through testimony, the County established that its approach is to direct incompatible land uses away from environmentally sensitive lands, limit the types of land uses adjacent to significant water bodies, reduce land use densities in coastal areas, and require environmental analysis and protection on a site-by- site basis. The challenged amendments are consistent with that approach. In combination with other provisions of the Plan, they also address the issues required by Objective A.1.1: vegetation; wildlife; aquifer recharge; and the like. Petitioners have failed to establish beyond fair debate that the amendments are inconsistent with Objective A.1.1. Goal E.2 in the Conservation Sub-Element of the Conservation/Coastal Management Element of the Plan requires conservation, use, and protection of natural resources to ensure availability for existing and future generations. Objective E.2.2 requires protection of various natural resources to provide for maintenance of environmental quality and wildlife habitat. Policy E.2.2.4 requires identification of native vegetative communities and their associated wildlife species. The County has identified those resources and protected some of those resources through land acquisition. Policy E.2.2.5(c) requires that criteria be established in the LDRs for listed species protection. The County has implemented such criteria and measures for protection of listed species. Policy E.2.2.8. requires that various habitat measures be implemented; these measures have been implemented and continue to be implemented. Policy E.2.2.9 requires the adoption of guidelines and standards for wildlife corridors through such measures as Planned Unit Development regulations and optional density bonuses. The County has adopted such measures. Policy E.2.2.10 was amended in part and requires guidelines and standards for the preservation and conservation of wetlands through various land development techniques. This Policy serves as a summary of measures that have been implemented by the County. Policy E.2.2.17 is another amended policy related to the ESOZ. As previously discussed, the Policy was changed from requiring mandatory adoption of an ESOZ in the LDRs to requiring the County to consider adoption of an ESOZ. The County is re-evaluating its prior decision to use the ESOZ as a primary measure to provide protection of environmentally sensitive lands. The amendment allows the County the flexibility to adopt different measures if they are found to be preferable. Finally, Policy E.2.2.18 requires the County to investigate certain Outstanding Florida Water designations. This Policy is unrelated to the amendments and is therefore irrelevant to this proceeding. Petitioners have not established beyond fair debate that the amendments will impact or otherwise conflict with the cited Goal, Objective, or Policies. Objective E.2.3 pertains to surface water quality and requires maintenance of surface water quality. Underlying Policy E.2.3.7 requires restriction of land uses which adversely affect the quality and quantity of water resources. The amendments do not lessen the protections afforded by the Plan. Likewise, the County has implemented numerous other Policies to protect water quality, such as Policies D.3.2.1, D.3.1.8, and E.2.6.1, and the more persuasive evidence supports a finding that the amendments will not adversely affect those provisions. Again, Petitioners have not established beyond fair debate that the amendments are inconsistent with this Objective and Policy. Objective E.2.8, which relates to threatened and endangered species, protects habitat of populations of existing listed species. Policy E.2.8.7 thereunder relates to land use classifications adjacent to certain environmentally sensitive areas. The amendments do not change or reduce the protection afforded by that Policy. Policy E.2.8.8 requires the County to assist state agencies in preparing a wildlife corridor plan and to determine, after completion of the JEA study, whether changes to the wetland buffers are necessary and appropriate. The evidence shows that the County considered the JEA study and related data and analysis and determined that changes to the buffer dimensions were not needed or appropriate, but that clarification of the averaging and variance procedures were. The amendments do not change or reduce the protections established by that Policy. Petitioners have not established beyond fair debate that the amendments are inconsistent with this Objective and those two Policies. Finally, Petitioners have alleged in very general terms that the amendments are inconsistent with a number of provisions of the State Comprehensive Plan, as codified in Section 187.201, Florida Statutes. They include subparagraphs (8)(b)10. and 12.; (10)(b)1., 3., and 7.; and (26)(b)7. Section 187.201(8)(b)10., Florida Statutes, sets as state policy the protection of "surface and groundwater quality and quantity in the state." Because the evidence clearly establishes that the amendments do not adversely impact the Plan's provisions to protect water quality and quantity, Petitioners have failed to establish beyond fair debate that the amendments are inconsistent with this statute. Section 187.201(8)(b)12., Florida Statutes, sets as state policy the elimination of discharge of inadequately treated wastewater and stormwater runoff into waters of the state. For the reasons previously found, Petitioners have failed to establish beyond fair debate that the amendments are inconsistent with this statute. Section 187.201(10(b)1., Florida Statutes, sets as state policy conservation of certain natural resources, including wetlands and wildlife, to maintain listed functional values. For the reasons previously found, Petitioners have failed to establish beyond fair debate that the amendments are inconsistent with this statute. Section 187.201(10)(b)3., Florida Statutes, sets state policy prohibiting the destruction of endangered species and protection of their habitats. For the reasons previously found, Petitioners have failed to establish beyond fair debate that the amendments are inconsistent with this statute. Section 187.201(10(b)7., Florida Statutes, sets as state policy the protection and restoration of the "ecological functions of wetland systems to ensure their long term environmental, economic and recreational value." For reasons previously found, Petitioners have failed to show beyond fair debate that the amendments are inconsistent with the statute. Finally, Section 187.201(26)(b)7., Florida Statutes, sets as state policy the development of local plans that "implement and accurately reflect state goals and policies and address problems, issues and conditions that are of particular concern in a region." Petitioners have failed to show beyond fair debate that the amendments are inconsistent with the goals and policies of this statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the St. Johns County plan amendments adopted by Ordinance No. 2003-31 on March 25, 2003, are in compliance. DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2004.
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue The issues presented in this matter concern the request by the Petitioner to be granted a management and storage of surface waters permit by Respondent. Respondent proposes to deny the permit based upon the perception that the activities contemplated by Petitioner: (1) are not consistent with the public interest as envisioned by Section 373.016, Florida Statutes, and 40C- 4.301(1)(b), Florida Administrative Code, (2) are not a reasonable and beneficial activity, per Section 40C-4.301(1)(a), Florida Administrative Code, alter the peak discharge rate of runoff from the proposed activity or the downstream peak stage or duration for the 1 in 10 year design storm, per Section 40C-4.301(3)(a), Florida Administrative Code, (4) cause an increase in velocity or flood stage on lands other than those owned, leased, or otherwise controlled by the applicant for the design storm, per Section 40C-4.301(3)(b), Florida Administrative Code, (5) cause an increase in flow or stage such that it would adversely affect lands other than those owned, leased, or otherwise controlled by the applicant, per Section 40C-4.301(3)(c), Florida Administrative Code. 1/
Findings Of Fact A predecessor applicant had requested permission to construct and operate the water management system which is the subject of this controversy. The approximate acreage involved was 197 acres in Lake County, Florida. This acreage and requested activity was subject to the regulatory requirements of St. Johns River Water Management District. Clay Island Farms, Inc., hereinafter referred to as CIF, was substituted for the initial applicant and this matter has been litigated before the Division of Administrative Hearings on the continuing application of the Petitioner. The permit application number is 4- 8089. This application was considered with application number 4-8088, pertaining to property owned by A. Duda and Sons, Inc. Subsequently, the latter application shall be referred to as the Duda request for permit. Certain additional information was sought by Respondent from the applicants, CIF and Duda, in the permit review, by correspondence dated October 2, 1981. A copy of that correspondence may be found as Petitioner's Exhibit No. 16 admitted into evidence. In particular, CIF was requested to prepare pre and post-development runoff rates in the 1 in 10, 1 in 25,and 1 in 100-year storms, to include stage-storage and stage-discharge rates for any and all retention facilities within the project design. Petitioner's Composite Exhibit No. 1 admitted into evidence contains a copy of the engineering report by CIF which are CIF's responses to the request for information. The date of the engineering report is July 12, 1982. The CIF application, as originally envisioned, called for the construction of exterior and interior ditches to be placed around a dike of 71 feet MSL elevation. The dike would enclose a proposed farm operation of approximately 197 acres, should the permit be granted. Within that 197 acre plot, would be found numerous drainage ditches to include major ditches and minor arterial ditches. The purpose of those ditches found in the 197 acres would be to serve as a conveyance for rainfall runoff. The system of conveyance would be connected to an existing conveyance system already in place and related to farm operations of A. Duda and Sons. The runoff would be eventually placed in a retention pond and at times discharged from that retention pond or basin into Lake Apopka by means of gravity flow. The particulars of the development of the 197 acre plot and its service dike, canals, and ditches are more completely described in Petitioner's Exhibit No. 1, which is the engineering report for the surface water management permit application. The CIF application was reviewed by the staff of the Respondent. Recommendation was made to deny the permit. Details of that denial may be found in Respondent's Exhibit No. 1. In the face of the denial, CIF requested an administrative hearing. This request was made on August 27, 1982, by petition for formal Subsection 120.57(1), Florida Statutes, hearing to determine Petitioner's entitlement to the requested permit. St. Johns River Water Management District, in the person of its governing board, determined to refer this matter to the Division of Administrative Hearings to conduct the formal proceeding and the request for the assignment of a hearing officer was received by the Division on September 13, 1982, leading to the final hearing in this cause. During the course of the final hearing, the CIF permit application was modified in a fashion which reduced the amount of acreage sought for cultivation. Now, approximately 122 acres would be farmed per the amended proposal. A general depiction of the design of the project in its amended form may be found in the engineer's sheet, which is Petitioner's Exhibit No. 20 admitted into evidence. When contrasted with the engineering drawings set out in Petitioner's Composite Exhibit No. 1, the new design is essentially the same as contemplated in the original permit application, on a lesser scale. Other than dimensions, the basic concepts of the CIF operation would remain the same under the amended proposal. At present, Petitioner proposes to remove the vegetation which covers the subject 122 acre plot and to conduct a muck farming operation. That vegetation is mostly mixed hardwood with the primary species being red maple. The soil in this area is constituted of monteverde muck, which is conducive to the production of corn and carrots, the crops which Petitioner would plant, to prepare the land for the operation, the system of ditches dikes and canals described would be installed following the cleaning, draining, and leveling of the 122 acres. Petitioner's Exhibit No. 10 admitted into evidence depicts land which has been cultivated and the subject 122 acres in its undisturbed state. Petitioner's Exhibit No. 4 admitted into evidence shows the overall CIF area is outlined in red, except for its southerly extent, which carries a red and yellow line on the exhibit. This exhibit depicts Wolfshead Lake which is a small interior lake in the southeastern corner of the overall CIF property. The yellow line in the middle of the CIF property represents, the location of a former north-south canal. The westernmost north-south reach, which is shown with a red line, depicts a canal which runs north from Wolfshead Lake into the existing Duda system of canals and ditches. The Duda operation has attempted to plug that north-south canal on the western fringe to stop the flow from the area of Wolfshead Lake, but has been unsuccessful and the water still enters the Duda farm ditches and canals. In the 1940's and early 1950's, the CIF property had been partially developed for a cattle operation and truck farming. Those canals, as described before, were installed, together with the diagonal yellow line on Petitioner's Exhibit 4, which represents a canal that was built with an axis running northeast and southwest. In addition, there was a centrally placed east-west canal and a slough running from Wolfshead Lake in a southeasterly direction. The slough is still there, although water that might be diverted from the Wolfshead Lake area into the slough is flowing north in the westerly north-south canal at present. If the project were allowed, most of the water flowing in and around the Wolfshead Lake would be introduced into the slough and from there exit to Lake Apopka. The center north-south canal and the interior east-west canal, together with the diagonal canal, are not in operation at present. The center north-south-canal would become the approximate eastern boundary of the 122 acres with the western north-south canal representing the approximate western boundary of the 122 acre plot. The northern boundary of the CIF property is constituted of an east-west canal which is part of the present Duda system. This is the only one of the canals associated with the former farming operation on the CIF property which is part of any maintained system of conveyances presently in existence. Approximately 1,000 acres are being farmed by Duda and Sons in property north of the proposed project. The Duda permit application, 4-8088 as granted, is described in Petitioner's Exhibit No. 13 which is a copy of the permit. This acreage is generally found to the northwest of the CIF plot, and would allow an additional 300 acres to be farmed in that muck area, on land which has been cleared for the most part and/or which has an elevation predominantly above 68.5 feet MSL. Eighty acres of the proposed Duda permit application was denied based upon the fact that it had not been cleared prior to the Duda permit application and in consideration of the amount of the 80 acre segment which lies below 68.5 feet MSL. The elevation 68.5 feet MSL represents the flood plain for the 1 in 10 year rainfall event for Lake Apopka. The area of the Duda permit is depicted on Petitioner's Exhibit No. 4 and outlined on that exhibit with lines of green and yellow at the southern end, green and yellow and red and yellow on its western flanks, red at the north end and by red on the east side, together with a Duda drainage ditch, which runs north from the terminus of the north-south drainage ditch coming from Wolfshead Lake and the east-west drainage ditch at the northern extent of the CIF property. Exhibit No. 4 was made prior to clearing operations depicted in Petitioner's Exhibit No. 10 and that letter exhibit is a more correct indication of the appearance of the new Duda permit property today. A green diagonal line running northwest and southeast intersecting with a line running east-west and a line running north-south depicts the approximate part of the 80 acres, which lies below 68.5 feet MSL, as shown in Petitioner's Exhibit No. 4. Farm operations, in keeping with the authority of Permit No. 4-8088, have not commenced. If the CIF permit application is successful, the original 1,000 acres, approximately 300 acre area of the Duda permit and the 122 acres of CIF, would be tied in by a system of conveyance ditches or canals allowing the interchange and transport of water through and around the three farm areas. The existing retention pond would be expanded to accommodate the additional farm acreage. The Petitioner is willing to increase the present retention pond to a design capacity which would equal one acre of basin for each ten acres of farm land, at the place in time when all three elements of the muck farm operation were under way. This again pertains to the existing 1,000 acres, the approximately 300 acre recent Duda permit, and the 122 acres related to the CIF application. With the addition of the CIF acreage, when water in the ditches reached 67.1 feet MSL, this would cause the engagement of a 40,000 GPM pump allowing the ditch water influent into the retention pond. The pump automatically would shut off at any time the water level in the access ditches to the pond dropped below 61 feet MSL. The primary purpose of the retention pond is to make water available for irrigation of crops, in its present state, and as contemplated with the addition of the CIF project. The pond does and would detain farm water for a period of about a day allowing the settling out of certain nutrients which are in particulate form. The existing pond and in its expanded form does not and would not filter nutrients which have been dissolved and have become a part of the water column. At times of high incidence of rainfall, when the crops are inundated with water for a 48-hour period of time, the retention pond is now designed and as contemplated by the addition of the CIF farm land, would allow for the discharge of effluent into Lake Apopka through two discharge culverts. The discharge is by means of gravity through an adjustable riser system. The retention pond as presently designed and as contemplated in its expansion has established the height at which water would be released from the retention pond into Lake Apopka through the riser at 68 feet MSL. The occasion of high incidence of rainfall occurs during the normal rainy season in a given year. Discharge could also be expected in the 1 in 10 year, 24hour storm event. During that storm event or design, Lake Apopka would rise to a level of 68.54 feet MSL, a level which would correspond to the 10year flood plain. Whether in the pre or post-development phase of the 122 acres, waters from that acreage would be discharged during the course of the storm through culverts leading from the retention pond into Lake Apopka. This process would continue until the gravity flow stopped at the moment where the water level in the pond and the water level in Lake Apopka adjacent to the discharge culverts achieved equilibrium of elevation. At that point in time, the gravity flow or discharge from the retention basin would cease, there no longer being a positive gradient from the detention pond to Lake Apopka. There will be some amount of discharge in the 24-hour storm event through the culverts at the retention pond either in the pre or post-development phases of the project, because, at present, the western most north-south ditch, which is found at the western boundary of the CIF property, allows water to flow north into the present Duda ditch system, water which has fallen on the 122 acres in question. From the ditch system, that water finds its way into the retention pond and thus into the lake. The contemplated system to be installed with the 122 acres at build-out would also allow water from the 122 acres to go through a system of conveyances and to the retention pond and from there into Lake Apopka. Although considerable testimony was presented by both parties on the subject of comparing pre-development and post-development peak discharge rates of runoff from the proposed activity, in the 1 in 10 year, 24-hour storm design or event, neither party has satisfactorily proven the dimensions of the pre-development and post-development peak discharge rates of runoff from the proposed activity. This determination is made having reviewed the testimony and the exhibits in support of that testimony. Notwithstanding a lack of proof of this differential with exactitude, it has been shown by the testimony and exhibits that the post- development peak discharge rate of runoff in the 1 in 10 year, 24-hour design storm or event can be expected to exceed that of the pre-development rate. On the associated topic of the ability of the post-development design to accommodate the differential in peak discharge rate of runoff between pre- development and post-development, Petitioner has failed to establish this proof. The modeling that was done by the Petitioner, in an effort to depict the differential as 10 acre feet with an available capacity of attenuation approximating 26 acre feet within the system of ditches, is not convincing. Nor has petitioner shown that there is sufficient storage in the retention pond, in the course of the storm event. The data offered in support of Petitioner's position does not sufficiently address accommodation of the drainage from areas surrounding the 122 acres in question, which are not part of the Duda system; the amounts of water already found in the system of ditches and canals at the onset of the storm event; the amount of water located on the crops at the onset of the storm event, which would have to be removed; and the amount of water already found in the retention pond at the time of the storm event. During the 1 in 10 year 24-hour storm, the CIF 122 acres will be protected by the 71-foot MSL dike, in that the expected elevation of Lake Apopka would not exceed 68.54 feet MSL. The dike would also protect the 122 acres in the 25, 50, and 100-year, 24-hour storm events whose elevations are anticipated to be 68.98, 69.28, and 69.56 feet MSL, respectively. As a consequence, an increase in flood stage would occur on lands other than those controlled by CIF. The amount of increase in flood stage would be approximately .046 inches during the 1 in 10 year storm, and an increasingly greater amount for the larger storms. It was not established where the amount of water which could not be staged on the 122 acres would be brought to bear through the surface flow on the 31,000 acres of water which constitute Lake Apopka. Nonetheless, that water could be expected to increase the flood stage on lands other than those of the Applicant. Possibly the dikes protecting the muck farms on the northern side of Lake Apopka could be influenced by the .046 inches in elevation due to the forces associated with the 1 in 10 year storm event, such as winds and movement of the water in the lake. This is true, notwithstanding the fact that the design goal of the dikes in the area is 71 feet MSL. The dikes are constituted of muck and are susceptible to overtopping, erosion, or blowout. By history, there have bean dike failures in the northern end of Lake Apopka, and associated increases in stage or flood stage. This incremental increase in water level in the 1 in 10 year storm event, due to the CIF development, when considered in the context with the other influences of that storm event, could possibly be the determining incident leading to dike failure in the northern perimeter of Lake Apopka. However, given the history of dike failures, prior to this potential loss of the storage area on the applicant's property, it has not been shown that the proximate cause of dike failure in the 1 in 10 year storm could be expected to be the contribution of an additional .046 inches of water on the lake surface. Those failures existed prior to the potential for the addition of water and were the result of inadequate maintenance of a structure which demanded a better quality of attention. Nonetheless, the additional amount of water could be expected to exacerbate the extent of a dike breach in any 1 in 10 year storm event that occurred subsequent to the development of the CIF 122 acres. In summary, the likelihood that the increase in elevation of water caused by the loss of storage on the subject property will be the critical event that causes a dike failure is not accepted. A dike could breach because of the influence of the storm even itself, without regard for the incremental increases in water elevation due to loss of water storage on the CIF property. The poor condition of some dikes due to less than adequate design or maintenance, would promote that dike failure and be exacerbated to the extent of more water being introduced on that property through the incremental amount of increase due to loss of storage on the CIF property. The dike failure circumstance in and of itself would not be sufficient to deny the permit application; however, the applicant had the burden of addressing the possible problem of increases in stage or flood stage on other properties, not its own, which are not protected by dikes. This showing was not made by the applicant, notwithstanding the fact that an increase in stage or flood stage could be expected to occur on property fronting Lake Apopka, which property is not protected by any form of artificial barrier. The installation of the protective dike aground the 122 areas of the CIF property in the 1 in 10 year design storm and potentially at times of lesser rainfall events, could be expected to increase the stage or flood stage on lands unprotected by dikes and thereby adversely affect lands other than those controlled by the applicant. Most of the 122 acres and the property to the east of that development and a portion of the undeveloped 80 acres in the recent Duda permit would be inundated in the 1 in 10 year storm event, prior to development. This is true because the elevation of much of that property is approximately 67.5 foot MSL. During the 1 in 10 year storm event, it would store approximately one foot of water, as presently constituted. It could also be expected to be inundated on an average of approximately once in two years. Lake Apopka is a part of a controlled system of lakes known as the Oklawaha River chain of lakes. Respondent regulates the water level in that chain of lakes by operation of a lock on the Apopka-Beauclair canal. The maximum desirable elevation of 67.5 feet MSL for Lake Apopka is a part of the regulation schedule found in Respondent's Exhibit No. 2 admitted into evidence. In the 1 in 10 year or better storm event, the Apopka-Beauclair system could not draw down the surface water at a rate faster than 27 days per foot, even assuming the lock was fully open to flow. Consequently, those properties that were suffering an, increase in flood stage on their surface could not expect to gain prompt relief through the regulation of waters in the Oklawaha River chain of lakes. Lake Apopka is an hyper-eutrophic lake. Although it is classified as Class III water body (ambient water quality) within the meaning of Section 17- 3.161, Florida Administrative Code, it fails to match that classification in terms of its actual water quality. This is as a consequence of its highly eutrophic state, brought about by the age of the lake and the contributions of man. Some of the contributors to the eutrophication have been removed from the lake area and water quality has improved. Those facilities removed were sewage treatment and citrus processing plants around the Lake Apopka rim. The muck farms remain and the quality of the water in the retention basins or ponds when compared to the receiving waters of Lake Apopka is similar in nature. Consequently, the receiving waters are not enhanced in their water quality when the retention ponds discharge water into Lake Apopka. As stated before, the retention ponds do not have as their primary purpose the treatment of water. Any water quality improvement is a secondary function of the retention pond. The retention ponds do improve the water somewhat, as described, and are adequately sized to fulfill that partial cleansing. Whether the water quality in Lake Apopka would ever improve sufficiently to allow Lake Apopka to become a more diversified habitat for fish and wildlife is not certain, even if all contributing discharges of pollutants were curtailed, to include the discharge of water from the muck farms with its high nutrient loads. Nonetheless, Lake Apopka cannot accomplish the recovery if the effluent from the muck farms continues to be introduced into the lake with the present constituents found in the water. Out of concern for the water quality in Lake Apopka, officials of the University of Florida have conducted experiments on nutrient removal which they hoped would approximate the quality of removal accomplished by transitional vegetation and swamp. (The 122 acres at issue and the western and eastern adjoining property are constituted of these water treatment zones.) This experiment of nutrient removal through use of retention ponds calls for the retention of the muck farm water for a period of six days allowing settlement of particulates and for the vegetation within those experimental retention basins to uptake dissolved nutrients. Several types of vegetation are used to gain a better quality of nutrient uptake add the vegetation is harvested every six to eight weeks to improve that performance. The experiment has shown that the quality of water discharged from the ponds utilized by the University of Florida was comparable in its quality to the natural wetlands system water discharge. The natural wetlands discharge is of a better quality than the receiving waters. Unlike the university experiment, the pond contemplated by CIF primarily emphasizes detention for a shorter period of time than was used in the experiment and allows highly eutrophic water to be mixed with that quality of water already found in Lake Apopka. The only exception to that comment is that water flowing from Wolfshead Lake, which is south of the proposed 122 acres, is a high quality of water, and through the project as contemplated, this water would be directly introduced into Lake Apopka through a flow over a natural wetlands system. This is in opposition to the present situation where the water from Wolfshead Lake flows primarily to the north through an existing canal and is mixed with water from the muck farm and is, therefore, of the eutrophic character as opposed to the high quality character. The Duda permit, which was issued, would allow the introduction of water which is similar in character to the water of Lake Apopka, through the system of ditch conveyances, placement in the retention pond, and at times, flow to the lake. In its effect, the nutrient loading which occurs by introduction of waters from that new farm, would be similar to that proposed in the CIF project. The fact of this similarity does not prohibit the district from evaluating water quality matters on the occasion of the CIF permit decision. Should the 122 acres be converted from natural vegetation to a muck farm, wildlife and fish habitat would be adversely impacted. The habitat provided by the plot is in scarce supply and is essential to the maintenance of a diversified fish population. The hardwood swamp, which is part of and adjacent to the 122 acres of the CIF application, supports benthic invertebrates, which are a food source for game fish. The type of vegetation found in the lake, due to its eutrophic state, is plankton and one of the by- products of the reproduction of that plant through the process and respiration is the destruction of the fish population. This occurs in the summer months. The plankton has replaced the emergent and submergent vegetation which once covered as much as two-thirds of Lake Apopka and now represents .05 percent of the lake. As a consequence, game fish have diminished over a period of years with plankton feeding fish predominating. Consequently, the fish population is less diverse and the removal of the vegetation becomes a significant contributor to the imbalance in fish population.
Findings Of Fact Based upon the stipulated facts of the parties, as filed with the Division of Administrative Hearings on December 14, 1987, the following relevant facts are found: 1/ On October 31, 1985, the DER received from Agrico dredge and fill Application No. 531120329. On May 8, 1986, the DER sent to Agrico a Notice of Completeness indicating that Application No. 531120329 was complete as of April 24, 1986. On July 22, 1986, J. W. Landers, Jr. executed on behalf of Agrico a Waiver of 90 Day Time Limit, indicating that the waiver expired on August 1, 1986. On or about July 28, 1986, DER personnel discussed with Agrico representatives the possible withdrawal of Application No. 531120329 as one of the conditions for the issuance of a permit for Application No. 531093999. The DER failed to take action to approve or deny Application No. 531120329 on or before August 2, 1986. On August 12, 1986, the DER issued Permit No. 531093999. On August 23, 1986, Booker Creek Preservation, Inc. and Manasota-88, Inc. filed a Motion to Intervene Into Ongoing Environmental Licensing Proceeding and Petition For Formal Administrative Proceeding challenging the Department's issuance of Permit No. 531093999 and rendering that Permit to the status of intended agency action. This proceeding was assigned DOAH Case No. 86-3618. DOAH Case No. 86-3618 was scheduled for hearing on April 28-30, 1987. By letter date March 2, 1987, Agrico withdrew Permit Application No. 531093999. On May 8, 1987, the DER sent to Agrico a letter directing Agrico to publish public notice of the DER's intent to issue Permit No. 531120329 pursuant to Section 120.60(2), Florida Statutes. On May 26, 1987, the DER received from Agrico a letter indicating that the public notice was published as required. Manasota-88, Inc. timely requested an administrative hearing challenging the proposed issuance of Permit Number 531120329.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that Permit Number 531120329 be issued to Agrico Chemical Company as of August 2, 1986, and that the petition filed by Manasota-88, Inc. challenging this permit be DISMISSED. Respectfully submitted and entered this 18th day of February, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 18th day of February, 1988.
Findings Of Fact The City currently operates a wastewater treatment plant providing "secondary treatment," and the effluent from that plant is discharged into Whitaker Bayou, an arm of Sarasota Bay. The Federal NPDES Permit and State Temporary Operating Permit for the wastewater treatment plant require the City to cease this discharge by July, 1988 due to pollution problems in the Bay, but the specific means through which this must be accomplished is not specified in the NPDES or Temporary Operating Permit. Any emergency discharge into Whitaker Bayou after July, 1988 would be violative of both state and federal- permits. On August 14, 1984, the City applied to the Department for a permit (File No. 58-0912689) for the following activities in the waters of the state in connection with the development of a 2,462 acre site as a wastewater spray irrigation facility; (1) the construction of a 36" diameter pipeline approximately 16 miles long from the existing wastewater treatment plant to the proposed sprayfield site with a total of 13 wetland crossings; (2) the construction of a wastewater retention pond; (3) the construction of a center pivot spray irrigation and underdrain system based on 15 center pivot points; (4) the creation of mitigation wetland areas of 20 acres; 33 acres, 72 acres, 27 acres and 46 acres: (5) the construction of a weir across East Ditch with an invert elevation to the top of the weir crest set at 34.5 feet to retain water in the existing on-site marsh system; (6) the construction of three other weir structures to control the run-off from the mitigation wetlands to East Ditch with crest elevations of 38.0 feet in the Northernmost area and two at 34.0 feet in the Southeast corner of the site, and one at 26.0 feet in the Southwest corner of the site with a crest elevation of 26.0 feet to control the run off to Howard Creek; (7) rerouting East Ditch 500 feet to the East; (8) rerouting Howard Creek and East Ditch into Vanderipe Slough through a new ditch with a berm; (9) closing the connection from Vanderipe Slough to the Myakka River; (10) replacing the existing double 30" culverts with a triple 60" culvert for the drainage crossing of the Florida Power and Light right-of-way through Vanderipe Slough; (11) the construction of a system of two-lane, shell-bed service roads on the project site with culverted wetland crossings; (12) dredging approximately 3,363,775 cubic yards of material and; (13) filling with approximately 1,578,850 cubic yards of material. This application, as well as plans and specifications, was prepared by a professional engineer, registered in Florida, and was deemed complete on May 1, 1985. On November 1, 1984, the City applied to the Department for a permit (File No. DC58-095055) to construct improvements to the wastewater treatment plant, a wastewater transmission line and a wastewater spray irrigation facility. This application was certified by a professional engineer, registered in Florida, as were plans and specifications. These facilities will permit the City to spray-irrigate 13 million gallons a day of chlorinated effluent and to discharge the effluent from sprayfield underdrains to on-site wetlands for further treatment. Surface run-off from these wetlands will flow into Howard Creek and East Ditch. This application was deemed complete on May 28, 1985. On January 24, 1985, the City filed with the Department a Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). The Petition requests alternative criteria for Class III dissolved oxygen and nutrient standards in the on-site wetlands, which would receive a wastewater discharge from the sprayfield underdrains. Bishop and Kehn filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689) and the Petition for An Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). Sefton and Peters filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka filed petitions with the Department challenging the application for a permit to construct wastewater treatment plant improvements, the wastewater transmission line and the wastewater spray irrigation facility (File No. DC58-095055) and the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka also filed a petition to intervene in the challenges filed by Bishop and Kehn to the Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). In its prehearing stipulation filed on May 23, 1986, the Department noticed its change of position and intent to deny the City's applications. By separate stipulation executed May 12, 1986, following a status conference, the City and Myakka acknowledged that the Department would change its position in these proceedings, and would do so in the context of its prehearing stipulation. A formal administrative hearing to consider these matters was conducted from May 27 to June 5, 1986, at which evidence from the parties as well as public testimony was received. The City of Sarasota has proposed to expand and improve its sewage treatment plant from its present approved capacity of 9.1 million gallons per day (MOD) to an average daily flow of 13 MGD, with a peak capacity of 25 MGD. The City estimated it will not reach an average daily flow of 13 MGD until after the year 2000, although currently peak flow does reach 13 MGD. A transmission line is proposed for construction from the expanded sewage treatment plant, using city easements, to a city-owned parcel located in the eastern portion of Sarasota County. The parcel was acquired in 1981. The transmission line will be constructed underground using thirty-six inch force main, will cover a distance of approximately sixteen miles. and is designed to carry an average daily flow of 13 MGD. Effluent will be pumped through the transmission line from the treatment plant to the city-owned parcel. The line will not intersect water or storm mains, will not cross any canals or waterways subject to maintenance dredging, and will not allow for the introduction of stormwater or other sources of wastewater. The city-owned parcel which will be at the end of the transmission line was formerly known as the Hi-Hat Ranch. It is an area consisting of 2,462 acres which is currently comprised of wetlands, wooded hammocks and uplands used for cattle grazing, and is located fourteen miles east of the City of Sarasota and two miles south of Highway 780. The parcel has been fertilized to some extent in the past, although the amount and frequency of application has not been established. The City proposes to construct a spray irrigation project on the site to dispose of effluent from its sewage treatment plant. Myakka River State Park is located to the east of the proposed spray site a residential area known as Myakka Valley Ranches Subdivision is located to the south: and Vpper and Lower Lake Myakka, the Myakka River, and Vanderipe Slough are located south-east of the proposed spray irrigation site. East Ditch runs through the east side of the parcel and Howard Creek parallels the western boundary. Surface and ground water presently flows from the proposed spray site to the south-southwest into Howard Creek, a class III water body, and to the south-southeast into East Ditch, a class III water body, which then converge and flow into Vpper Lake Myakka, a class I water body and a designated Outstanding Florida Water. From Upper Lake Myakka, water flows into Vanderipe Slough, a class III water body, and Lower Lake Myakka; a class I water body and Outstanding Florida Water, via the Myakka River. The geologic materials presently found at the Hi-Hat Ranch Site are sedimentary in origin and consist of sands, silts, sandy phosphatic clays and limestone. There are 343 acres of natural herbaceous wetlands on the site, but only 140 acres have been determined by the Department to be "jurisdictional." Herbaceous wetlands are more sensitive to changes in water and nutrient levels than hardwood wetlands. The natural wetlands serve as fish and wildlife habitat, recharge areas, and as assimilation areas for nutrients. The proposed project will preserve 96 acres of natural wetlands on the East Ditch and create a total of 196 acres of artificial or mitigation wetlands. In order to provide the necessary degree of wetland treatment for the applied effluent, 150 acres of these mitigation wetlands, along with the 96 acres of preserved natural wetlands, for a total of 246 acres of mitigation and natural wetlands, will be utilized for treatment as part of the spray irrigation project. Plant communities on-site will be substantially and adversely altered in creating the mitigation wetlands, and this will alter wildlife habitat presently associated with the natural wetlands on-site. It was not established that wildlife presently on-site will be able to survive the project's affects and remain on- site. The City proposes to construct a spray irrigation project on the Hi-Hat Ranch property to dispose of sewage effluent. The project will consist of a holding pond into which effluent will initially flow from the transmission line, a pump station to transmit the effluent from the holding pond to the sprayfield where it will be sprayed on fifteen spray sites, an underdrain system under the spray sites to carry water that has filtered through the soils to drainage ditches which will then carry the water to four of five artificial or mitigation wetland areas on the site. As indicated above, a total of 246 acres of mitigation and natural wetlands will be utilized to provide the necessary degree of wetlands treatment for the applied effluent. From the wetlands areas, the flow will be discharged into Howard Creek and East Ditch. After intersecting East Ditch, a diversion of Howard Creek is proposed so that it will flow directly into Vanderipe Slough, instead of its current course into the Myakka River State Park and Upper Lake Myakka. (a) The proposed holding pond will encompass 120 acres and consist of three cells. Its design is based on the City's review of 72 years of climatological data to determine the greatest number of consecutive days that rainfall will prevent spraying. Its purpose will be to store wastewater initially entering the site from the transmission line prior to being pumped to the spray fields, and to even out surges in this in- flow. Additionally, some nutrient removal will take place through volatilization and settling. Test soil borings of the holding pond site, excluding its eastern side, indicate that a natural clay layer, along with additional clay to be placed on site, will form a barrier layer under the holding pond and thereby result in a minimal average permeability rate of .03 inches per day. Insufficient borings were done in the northeastern part of the holding pond to make a determination of permeability. There will be one large cell to allow a longer detention time of 8 1/2 days at 13 MGD, and two smaller cells with a detention time of 4 1/3 days each at 13 MGD. In-flow of effluent from the transmission line will be alternated among the cells depending on the rate of flow and the water level in the cells. Each cell is designed to retain two feet of water at all times to discourage mosquitos and aquatic weeds, with a designed maximum depth when in use of eight feet. The maximum operating capacity of the holding pond is approximately 220 million gallons, which represents approximately 17 days of flow from the treatment plant at 13 MGD assuming no rainfall into the pond during this time. In the event that the holding pond is at maximum capacity and can accept no more effluent, the City proposes to either divert the effluent for discharge into Whitaker Bayou, or to spray directly onto the spray fields, by passing the holding pond. The holding pond is designed with walls that will have an additional three feet elevation over the designed maximum water depth of eight feet. but there is a potential for overflow if water depth exceeds eight feet. If the holding pond were to be filled to the top of the side walls, it would then, hold four hundred million gallons of effluent. No emergency discharge device has been provided in the design of the holding pond, although it is required by the Department's Land Application Design Manual. A potable water well will be placed onsite within 500 feet of the holding pond, although such placement is prohibited by the Land Application Design Manual. (a) Effluent will be pumped to the fifteen spray sites from the holding pond using a pumping station located next to the holding pond and a distribution system connected to fifteen center pivot irrigation systems. The pump station has a design capacity to pump 13 MGD of effluent in 16 hours. Effluent will alternately be sprayed on the fifteen sites by means of a rotating, center pivot spray. The system is designed to average 2.6 inches of spray per week on each spray site. The Department's Land Application Design Manual requires that no more than 2 inches be sprayed per week. A crop of Coastal Bermuda grass, supplemented with winter rye, will be grown on each spray site. An underdrain system will be installed under each spray site to receive sprayed effluent that has filtered through the soils, and to maintain the water table at three feet, which will be below the root system of the Bermuda and rye grasses and thereby provide proper soil conditions and aeration for root growth. The fifteen spray sites will encompass a total area of 1,296 acres. The City has not provided the Department with an operational plan for the sprayfield to address loading and resting periods, harvesting periods and the spray rotation schedule. It has not been established by competent substantial evidence that the City can operate the sprayfield to allow in the same operation harvesting of the grass crop, drying of the mitigated wetlands, prevention of soil saturation and sheet flow of effluent during rainfall events and maintenance of the hydrologic balance of the system. An underdrain system will be constructed using perforated polyester piping enveloped in a fabric and surrounded by course sand. The piping will be spaced between 75 and 150 feet apart. It is designed to receive 13 MGD while maintaining the three foot water table. The underdrains will empty into a series of ditches located throughout the project site which will then carry the effluent, along with rain water runoff to four of the five mitigation wetlands. The fifth mitigation wetland and natural wetlands remaining on-site will receive stormwater runoff only. Additionally, sheet flow will occur in an area composed of wetlands and upland vegetation along East Ditch. A five year storm was considered in the design of culverts in the ditches receiving underdrain discharge. (a) The City proposes to construct the mitigated wetland areas to replace natural wetlands that will be destroyed in the preparation and construction of the spray irrigation project. All of the mitigation wetlands will be marsh habitats, but a non-marsh, woody wetland will be destroyed in the area of the holding pond which will therefore not be mitigated. Some effluent treatment will take place in the mitigated wetlands which will also serve to control the flow of effluent and runoff leaving the project to the southwest, south and southeast. The mitigated wetlands have been designated for a 24 hour storm event that would be expected to occur once in 25 years. A system of ten foot wide wooden weirs with inch notches will be used to control the flow of water through the mitigated wetlands. Wooden boards will be placed in the notches to regulate the flow, but it has not been shown that the hydroperiods or detention times of the pre-construction natural wetlands will be duplicated in the mitigated wetlands. It appears that the detention time necessary for effluent treatment is inconsistent with the natural wetland hydroperiods. Currently the natural wetlands on site are dry for periods throughout the year: however, the mitigated wetlands are designed to have a constant two foot minimum depth and there are no plans to periodically and regularly draw-down the mitigated wetlands. Construction of the mitigated wetland areas will take several weeks, during which time vegetation presently on site will be removed by excavation, the land dried and contoured, berms constructed, and a mulching technique will then be used in an attempt to replace vegetative species found in the natural wetlands. However, testimony shows that a mulching technique is only successful if it is completed in two to three weeks, including establishment of a correct seasonal hydroperiod, and also only if a weed control program is carried out for two years. In this case it is unlikely that construction and mulching could be completed in three weeks, and the City has note proposed an effective weed control program. Berms to be constructed along the southern and western end of the project site around the mitigated wetlands will be ten feet in width at their top and approximateIy three feet above existing grade, or approximately eight feet above the bottom of the mitigated wetland: they will be constructed of clay and sand materials found on site. Reasonable assurance has not been given that the berms as designed will prevent uncontrolled runoff of water to neighboring land to the south and west of the project site. It has also not been shown with reasonable assurance that the mitigation wetlands will replicate plant zonation or community, or the type, function or form of all existing natural wetlands to be destroyed. Finally, reasonable assurance has not been given that the project will preserve a large hardwood swamp, primarily pop ash, on the eastern half of the site, or that an oak hammock in the northeast corner of the site will be saved from flooding as a result of the project. Flows leaving the mitigated wetlands will empty into Howard Creek and East Ditch. Culverts at the outfalls into Howard Creek and East Ditch were designed using a 25 year, 24 hour storm event. These water bodies are currently clear flowing with no algae. The rate of flow through Howard Creek and East Ditch varies currently from a slight trickle to flood conditions due to seasonal rainfall variations. The spray irrigation project will increase the flow into Howard Creek and East Ditch in low flow conditions. The City contends the project should reduce storm discharges and nutrient loading into these water bodies when it is operating under design conditions, but this has not been established by competent substantial evidence. The areas of Howard Creek, East Ditch and Vanderipe Slough which the City seeks to use in the project are privately owned or state property. The City currently has no legal interest in, or authority to use: the privately owned areas of Howard Creek in Myakka Valley Ranches Subdivision (MVRS) for transmission of its discharge from the spraysite to the Howard Creek diversion inside Myakka River State Park: the privately owned areas and drainage way of East Ditch in MVRS for effluent transmission from the spraysite to the Howard Creek diversion inside Myakka River State Park: any portion of Myakka River State Park as part of its wastewater disposal program: or the privately owned areas of Vanderipe Slough for which it seeks permits for the transmission and treatment of sewage effluent. The City proposes to remove a dike, constructed almost fifty years ago, which currently prevents Howard Creek from flowing directly into Vanderipe Slough, and divert the Creek from its present course which is into Upper Lake Myakka. This would restore the natural course of the Creek into the Slough, and eliminate any flow from the Creek into Upper Lake, by constructing a berm between the Creek and Upper Lake within the state park. However, this diversion would destroy a pop ash swamp, some of which is inside the state park, and no mitigation is proposed for this loss. The City has not established that the flow lost by this diversion will not adversely affect water quality of Upper Lake Myakka, or wetlands in the state park. Vanderipe Slough encompasses an area of approximately 500 acres, a portion of which is within the Myakka River State Park, and is therefore an Outstanding Florida Water. At various times of the year, depending upon seasonal rainfall, it is dry to a significant extent, or else is completely flooded such that it overflows Shep's Island and joins with the Myakka River as they flow into Lower Lake Myakka. It is a nutrient limited system with substantial vegetative matting in normal flows. Large areas of the Slough are herbaceous wetlands. The project will cause more water to flow into the Slough in low and medium flow conditions, and under high flow conditions there will be at least as much flow into the Slough as at the present. Water carrying the entire nutrient load of Howard Creek and East Ditch will enter the Slough through a channel that will be cut in its northern end, and will then flow southward at a relatively slow velocity, with a detention time in the Slough of approximately 2.8 days. Channelization or scouring in the Slough will not occur under design conditions due to this relatively slow flow velocity. Flow velocities will be greater through the artificial channel and rip-rap will be used to avoid scouring at this point of entry into the Slough. Approximately 280 acres of Vanderipe Slough will be regularly, and almost continuously, inundated after the project. Under high flow conditions from 400 to 500 acres will be inundated. Nitrogen levels will increase and be converted to usable forms, with a resulting increase in plant growth and decrease in dissolved oxygen content of the water. This is reasonably expected to cause and contribute to existing water quality violations in the Slough, and alter its use as a wildlife habitat to a more aquatic habitat due to increased water levels. Several obstructions or hindrances to the flow of water through the Slough currently exist. These include culverts thirty and forty-two inches wide, which the City proposes to replace with three sixty inch culverts, and berms two to three feet above the Slough floor which are six to ten feet in width. The City has not proposed removal or modification of all obstructions to flow through the Slough. Elevations in the area range from approximately twenty feet above sea level at the sewage treatment plant, with a twenty foot rise along the transmission line to an average elevation of approximately forty feet at the project site, to an elevation of approximately thirteen feet at the present dike which diverts Howard Creek directly into Upper Lake Myakka. Elevations along the eastern edge of Myakka Valley Ranches average twenty feet. Howard Creek falls sixty Eeet in elevation from a point ten miles upstream to the point at which it presently enters Upper Lake Myakka. There is no set back along the southern edge of the property to protect property owners from excessive groundwater flows from the project site which could occur in flood conditions. Sheet flow from the site to other property is likely to occur if watertables in the sprayfield are raised above three feet due to spraying, rainfall or increased groundwater levels. Several Petitioners and members of the public who testified expressed concern about increased flooding and stormwater runoff as a result of the project. The addition of the City's discharge from the sprayfield will impair and adversely affect drainage of property in Myakka Valley Ranches Subdivision through East Ditch, Howard Creek and Vanderipe Slough, and will reasonably be expected to cause flooding. Wetland areas on the eastern boundary of the site may also overflow and discharge into the state park. There is no competent substantial evidence that the City will control increased mosquito populations which will result from flooding and which may cause a health problem and adversely affect the use of these water bodies for recreational and conservation purposes. Security around the spray field site will be provided by three strands of barbed wire on the east, west and north sides of the parcel. On the south side next to Myakka Valley Ranches Subdivision, a six foot high hog wire fence with three strands of barbed wire above it will provided. Gates at all entrance points will allow for locking. The property will also be posted with "no trespassing" signs. This does represent adequate restriction of public access to the site. There was extensive testimony concerning the current water quality and nutrient levels existing on the project site and surrounding water bodies, and the affect of this spray irrigation project on existing wetlands and surrounding waters. In its initial application, the City predicted effluent leaving the treatment plant would contain 12.4 mg/1 nitrogen. In fact, the current average concentration of nitrogen in effluent leaving the plant is 20 mg/1. The stronger concentrations in the City's effluent will continue after completion of the project. Effluent leaving the plant will have achieved basic disinfection, with 90 per cent or more of the Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS) having been removed prior to discharge into the holding pond. Basic disinfection produces effluent containing up to 200 colonies of fecal coliform per 100 ml. Chlorine contact in the transmission line will reduce bacteria and viruses in the effluent entering the holding pond, but fecal coliforms will still be present in the effluent on- site. Total nitrogen in the holding pond effluent will be volatized, assimilated and absorbed to a degree in the sprayfields. However, the City has incorrectly concluded that the total nitrogen in the underdrain discharge will be in trace amounts, since its analysis began with incorrect assumptions about nitrogen loading from the plant, and also assumed excessive nitrogen uptake from sprayfield grass crops. Nitrogen concentration from the underdrains will be as high as three mg/l. At this level, the underdrain discharge will cause or contribute to new violations of water quality standards for nutrients and dissolved oxygen in the natural and mitigated wetlands. In order to determine if a particular wetland can assimilate nutrient loading, a water budget for that wetland must be prepared. The City has failed to provide adequate wetland water budgets from which it could be determined if the wetlands will assimilate nutrients since none of the water budgets proposed or relied upon by the City accounted for the addition of stormwater or groundwater flow onto the site from offsite. The discharge from the wetlands will introduce nutrients into waters of the state in Howard Creek, East Ditch, Vanderipe Slough and Lower Lake Myakka causing further nutrient enrichment of waters presently high in nutrient concentrations and sensitive to further concentrations and loadings. Sewage effluent will be the only water pollution source affecting these water bodies, for which the City has not sought site specific alternative criteria. The addition of discharge from the spraysite will result in a lowering of dissolved oxygen levels in Howard Creek and East Ditch causing new, or contributing to continuing, violations. These impacts on water quality will be measurable. Howard Creek, East Ditch, and Vanderipe Slough have existing dissolved oxygen violations, and the diversion of Howard Creek and East Ditch into the Slough will cause or contribute to existing DO violations in the Slough. The QUAL/2E Model, as used by the City in this case to predict post-project levels of dissolved oxygen, is not reliable because it is only appropriate for use in determining dissolved oxygen levels in a flowing riverine system, which this is not, and also because there was an insufficient data base. Separating the holding pond from the existing groundwater is a natural clay layer which will be pierced at some points by the excavation of the holding pond. This will allow seepage from the holding pond into the groundwater and the City has not shown that this seepage will meet primary and secondary drinking water standards. Various endangered species are now found in Vanderipe Slough, and the project will adversely impact the habitat of these species which include woodstorks, bald eagles and Florida panthers. Residents of Myakka Valley Ranches, including the Petitioners and several members of the public who testified, currently use portions of Howard Creek, Upper LaXe Myakka and Vanderipe Slough for canoeing, fishing, birdwatching, camping, hunting, boating and picnicking, and the project will adversely impact on such use due to the introduction of effluent and nutrient loading into these areas, as well as the potential for flooding. Upper and Lower Lake Myakka and the Myakka River connecting these two lakes are all located in the Myakka River State Park, and are in state ownership. The City has not affirmatively demonstrated a net improvement to Upper Lake Myakka as a result of the Howard Creek diversion and the project. To the contrary, the City's use of the state park will adversely affect the conservation related uses of the state park, and recreational use of Upper Lake Myakka as it presently exists due to the elimination of boating access from Howard Creek. The City published notice of the Department's Intent to Issue the construction permit in the February 14, 1986 edition of the Sarasota Herald Tribune, a newspaper of general circulation in Sarasota County. The notice of Intent to Issue the application for a wetlands exemption was published in the June 21, 1985 edition of the Sarasota Herald Tribune. The notice of Intent to Issue the dredge and fill permit application was published in the January 16, 1986 edition of the Sarasota Herald Tribune. The only hearing provided for was the opportunity for this formal administrative hearing, but public testimony was received in this hearing. Myakka timely filed petitions under Sections 120.57(1) and 403.412(5), Florida Statutes, concerning the dredge and fill, and construction permit applications. The individual Petitioners timely filed petitions under Section 120.57(1), Florida Statutes, challenging the application for wetlands exemption since their petitions were filed on July 8, 1985, the first available business day after July 5, 1985, on which the Department's offices were closed; and which would otherwise have been the last day for filing such petitions. Myakka subsequently timely intervened in the individual Petitioners' proceeding under Sections 120.57(1) and 403.412(5), Florida Statutes. Myakka is a not-for-profit Florida corporation consisting of approximately 300 families who own property to the south of the project site. In addition, Myakka owns portions of Howard Creek which the City proposes to use to transmit effluent discharged from the project site, and also owns a conservation area immediately adjoining Myakka River State Park through which Howard Creek flows. This is used by residents and members, including the individual Petitioners, for recreational and conservation purposes. Myakka also has exclusive drainage rights for portions of East Ditch which the City proposes to use to transmit effluent from the spray site. The individual Petitioners are residents of Myakka Valley Ranches Subdivision whose homes and property abut the southern border of the project site, Howard Creek, East Ditch, Vanderipe Slough and the conservation area referred to above and who will therefore be substantially affected by the City's project due to its adverse affects on these water bodies and conservation area. Myakka has established that one of its main purposes and interests is to protect water quality, wildlife and other natural resources in Howard Creek, East Ditch, Vanderipe Slough, and Upper and Lower Lake Myakka. Sarasota County's local pollution control ordinance requires advanced wastewater treatment (AWT) which is: five milligrams per liter (mg/l) or less of Biological Oxygen Demand (BOD): five mg/1 or less of suspended solids: three mg/1 of total nitrogen as nitrogen: and one mg/1 of total phosphorous as phosphorous. The City's spray irrigation project is intended to achieve AWT prior to discharge into state waters but it has not been established by competent substantial evidence that it will meet this goal. Secondary treatment currently provided reduces the BOD and suspended solids concentrations in the effluent discharged into Whitaker Bayou to 20 mg/1. As applied for, the City's project places portions of several sprayfields and some of the mitigated wetlands within the 500 foot vegetated buffer zone which has been required for the spraysite by Sarasota County. (a) The findings of fact set forth above are made after considering the evidence introduced, as well as the qualifications, credibility and demeanor of all witnesses who testified. Specifically, the expert testimony of the following witnesses was deemed particularly persuasive and credible: George T. Baragona, expert in hydrology William M. Kutash, expert in biology with special expertise in wetland biology, mitigation of natural wetlands, wetland hydroperiods and water quality impacts in state waters Larry Schwartz, expert in wetland ecology and wetland modeling David Bickner, expert in wetland ecology; and Jan Mandrup-Poulsen, expert in water quality modeling and analysis. The testimony of Donald Deemer, who was recognized as an expert in sanitary engineering with special expertise is waste water treatment and land treatment of wastewater, was outweighed, rebutted and discredited through the testimony of Jan Mandrup-Poulsen and Paul Larsen, who was accepted as an expert in environmental engineering. The testimony of Andrew Huggins, who was recognized as an expert in water quality modeling with special expertise in water chemistry, hydrology and ecology necessary to discuss modeling, was outweighed, rebutted and discredited through the testimony of Larry Schwartz. Geroge Milton, who was accepted as an expert in civil and sanitary engineering with special expertise in wastewater treatment facility design and operation, as well as Douglas Taylor; Superintendent of the City's Treatment Plants, presented credible testimony concerning the City's sewage treatment plant, the proposed transmission line and design of the spray irrigation system. John E. Garlanger, who was accepted as an expert in civil engineering and geology with special expertise in experimental and applied soil mechanics, soil exploration and testing, and land application of water and wastewater, testified regarding his recommendations about the holding pond and underdrains, as well as site soil characteristics: however, the weight given his testimony was lessened since he testified he was not familiar with the City's applications at issue in this case and also did not know if the project was designed consistent with his recommendation. Donald Mauer, who was accepted as an expert in sanitary and civil engineering, testified about his design of the sprayfield, as well as his opinions regarding the treatment plant, transmission line and other off-site project activities: however, his rebuttal testimony lessened the weight given to his testimony generally. The testimony of the following expert witnesses was considered but given less weight due to the witnesses' lack of site specific data, personal knowledge or experience on the site and conflicting testimony of other witnesses; Lloyd Horvath, who was accepted as an expert in hydrology and civil engineering with expertise in water resource modeling; Andre Clewell, expert in botany with special expertise in restoration of wetland habitats and aerial photo interpretation of vegetation; Eduardo Aguilar, expert in geology and groundwater hydrology: and Forrest Dierberg, expert in environmental chemistry with special expertise in wetland biology and chemical processes. All additional testimony and evidence presented by the parties and through public testimony was considered and weighed in the preparation of these findings of fact.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order denying the City of Sarasota's Application for Wetlands Exemption (VE-58-206), Application for Construction Permit (DC-58-095055) and Application for Dredge and Fill Permit (File No. 58-092689). DONE and ENTERED this 31st day of July, 1986, at Tallahassee, Florida. DONALD D. CONN, 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 31 day of July, 1986. APPENDIX Rulings on Individual Petitioners' Proposed Findings of Fact. 1,2 Adopted in Finding of Fact 30. Rejected since it is not based on competent substantial evidence. Adopted in Finding of Fact 22. Rejected since it is not based on competent substantial evidence. Rejected as irrelevant. Adopted in Finding of Fact 23. 8,9 Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Findings of Fact 18, 24, 25. Adopted in Finding of Fact 34. Adopted in Finding of Fact 27. Rejected in Finding of Fact 14. 14-17 Rejected as unnecessary and cumulative. 18,19 Adopted in Finding of Fact 14. 20 Rejected since it is not based on competent substantial evidence. Rulings on Myakka's Proposed Findings of Fact. 1,2 Adopted in Finding of Fact 5. Adopted in Findings of Fact 2, 3, 4. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Findings of Fact 1, 7. Adopted in Finding of Fact 7. 10-13 Adopted in Finding of Fact 19. 14-15 Rejected since they are not based on competent substantial evidence. Adopted in Finding of Fact 19. Adopted in Finding of Fact 7. 18,19 Rejected as irrelevant and unnecessary. 20-22 Adopted in Finding of Fact 1. 23,24 Rejected as irrelevant and unnecessary. 25 Adopted in Finding of Fact 1. 26-28 Rejected as irrelevant and unnecessary. 29-31 Adopted in Finding of Fact 33. 32-33 Rejected as irrelevant and unnecessary. 34-36 Adopted in Finding of Fact 9. 37,38 Adopted in Finding of Fact 14. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. 41,42 Adopted in Finding of Fact 13. 43-45 Adopted in Finding of Fact 14. 46-48 Adopted in Finding of Fact 13. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. 51-56 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. Adopted in Finding of Fact 27. Adopted in Finding of Fact 24. Rejected in Finding of Fact 2r 3. Rejected since it is not based on competent substantial evidence. 62,63 Rejected as irrelevant and unnecessary. 64 Adopted in part and rejected in part in Finding of Fact 17. 65,66 Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Rejected as cumulative. Rejected as irrelevant and unnecessary. 74,75 Adopted in Finding of Fact 13. Rejected in Finding of Fact 26. Adopted in Finding of Fact 13. 78-80 Rejected as irrelevant, unnecessary and otherwise not based on competent substantial evidence. 81 Adopted in Findings of Fact 11, 12. 82,83 Rejected as irrelevant and unnecessary. 84 Adopted in Finding of Fact-21. 85-87 Adopted in Finding of Fact 11. 88-91 Adopted in part in Finding of Fact 18, but otherwise rejected as unnecessary and cumulative. 92-95 Adopted in Finding of Fact 17. 96-97 Adopted in part in Finding of Fact 17, but otherwise rejected as unnecessary. 98-99 Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 27. Rejected as irrelevant and unnecessary. 103-106 Adopted in Finding of Fact 27. Adopted in Finding of Fact 6. Adopted in Finding of Fact 27. 109,110 Rejected as irrelevant and not based on competent substantial evidence. 111 Adopted in part in Finding of Fact 17. 112-120 Adopted in Finding of Fact 27. 121-126 Rejected as unnecessary and cumulative. 127 Adopted in Finding of Fact 27. 128-130 Rejected as unnecessary. 131-168 Adopted in Finding of Fact 27. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Finding of Fact 24. 172-174 Adopted in Finding of Fact 27. 176-179 Rejected as irrelevant, unnecessary, and cumulative. 180 Adopted in Finding of Fact 18. 181-184 Rejected as irrelevant, unnecessary, and cumulative. Rejected as unnecessary. Rejected in Finding of Fact 20. 187,188 Adopted in Finding of Fact 20. Rejected as unnecessary and cumulative. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. 192,193 Adopted in Finding of Fact 27. 194 Adopted in Finding of Fact 25. 195-198 Adopted in Finding of Fact 20. 199,200 Rejected as irrelevant and unnecessary. 201 Adopted in Finding of Fact 9. 202,203 Adopted in Finding of Fact 30. 204-206 Adopted in Finding of Fact 21. 207 Rejected as cumulative and unnecessary. 208-211 Adopted in Findings of Fact 21, 22, 27. 212,213 Adopted in Finding of Fact 23. 214 Rejected as irrelevant and cumulative. 215-218 Adopted in Findings of Fact 21. 22, 27. 219-223 Adopted in part in Finding of Fact 27, but otherwise rejected as unnecessary, cumulative and otherwise not based on competent substantial evidence. 224,225 Rejected as irrelevant and unnecessary. 226,227 Adopted in Finding of Fact 34. 228 Rejected as not based on competent substantial evidence. 229,230 Rejected as cumulative. 231-233 Rejected as not based on competent substantial evidence. 234,235 Adopted in Finding of Fact 28. 236 Adopted in Finding of Fact 30. 237-243 Adopted in part in Finding of Fact 28-30, but otherwise rejected as cumulative and not based on competent substantial evidence. 244-246 Rejected as cumulative and otherwise not based on competent substantial evidence. 247,248 Adopted in Finding of Fact 31. 249-259 Adopted in Findings of Fact 2-5, 32. 260-262 Adopted in Finding of Fact 32. 263 Adopted in Finding of Fact 29. 264 Adopted in Finding of Fact 32. 265-267 Adopted in Finding of Fact 29. 268,269 Adopted in Finding of Fact 32. Adopted in Finding of Fact 25. Adopted in Finding of Fact 29. Adopted in Findings of Fact 25. 29, 32. Adopted in Finding of Fact 19. Adopted in Findings of Fact 19, 29. Adopted in Finding of Fact 29. 276,277 Adopted in Finding of Fact 25. Adopted in Finding of Fact 22. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 25. 281-283 Rejected as irrelevant and unnecessary. 284 Adopted in Finding of Fact 29. 285 Adopted in Findings of Fact 29, 32. 286 Adopted in Findings of Fact 19. 32. 287,288 Rejected as unnecessary and otherwise not based on competent substantial evidence. 289-296 Rejected as irrelevant and unnecessary. Rulings on City's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as irrelevant. Adopted in Finding of Fact 1. Adopted in Finding of Fact 33. 5 Rejected as irrelevant and unnecessary. 6-11 Adopted in Finding of Fact 1. 12-14 Adopted in Finding of Fact 6. 15 Rejected as irrelevant. 16 Adopted in Finding of Fact 7. 17 Rejected as irrelevant. 18 Adopted in Findings of Fact 27, 33. 19-21 Adopted in Finding of Fact 27. 22-30 Rejected as irrelevant, unnecessary and otherwise contrary to Finding of Fact 27. 31 Rejected as not based on competent substantial evidence. 32,33 Adopted in Findings of Fact 2, 3, 7. 34,35 Adopted in Finding of Fact 6. 36-44 Rejected as unnecessary and otherwise not based on competent substantial evidence. 45-52 Adopted in Finding of Fact 7. 53-55 Rejected as unnecessary. 56-58 Adopted in Finding of Fact 8. 59 Rejected as irrelevant and unnecessary. 60-62 Adopted in Finding of Fact 8. 63,64 Rejected as unnecessary. 65 Adopted in Finding of Fact 11. 66-69 Rejected as irrelevant and otherwise not based on competent substantial evidence. 70-84 Adopted in Finding of Fact 13. Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 13. 87-92 Adopted in Finding of Fact 27. Rejected as unclear. Adopted in Finding of Fact 27. 95-100 Adopted in Finding of Fact 14. 101 Rejected in Finding of Fact 14. 102-104 Adopted in Finding of Fact 14. Rejected as irrelevant. Adopted in Finding of Fact 15. Adopted in Finding of Fact 13. Adopted in Finding of Fact-16. Adopted in part and rejected in part in Finding of Fact 27. 110,111 Rejected in Finding of Fact 27. 112 Rejected as irrelevant. 113-118 Rejected in Finding of Fact 27. 119,120 Adopted substantially in Finding of Fact 11. Adopted in Finding of Fact 16. Adopted in Finding of Fact 2. Adopted in Finding of Fact 17. 124,125 Rejected as not based on competent substantial evidence and otherwise irrelevant. 126-130 Adopted in part in Finding of Fact 2. 16, but otherwise rejected as cumulative and unnecessary. 131-135 Adopted in part in Finding of Fact 17 but otherwise rejected as cumulative and unnecessary. 136-140 Rejected in Finding of Fact 17. Rejected in Findings of Fact 11, 17. Adopted in Finding of Fact 16. 143-148 Rejected in Finding of Fact 27 and otherwise unnecessary. 149 Adopted in Finding of Fact 27. 150,151 Rejected in Finding of Fact 27. Adopted in Findings of Fact 17, 18. Adopted in Finding of Fact 17. Adopted in part and rejected in part in Finding of Fact 18. 155,156 Rejected in Finding of Fact 17. Rejected as irrelevant and unnecessary. Rejected in Findings of Fact 13, 14. Rejected as irrelevant. Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 26. Rejected as unnecessary and cumulative. 163-165 Rejected as not based on competent substantial evidence. 166-169 Adopted in Finding of Fact 20. 170-173 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted in part and rejected in part in Finding of Fact 20. Adopted in Finding of Fact 23. Adopted in Finding of Fact 9. Rejected in Finding of Fact 27. 178-188 Rejected in Finding of Fact 27, and otherwise irrelevant, unnecessary and not based on competent substantial evidence. 189,190 Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 20. 193-195 Rejected as unnecessary and otherwise not based on competent substantial evidence. 196 Adopted in Finding of Fact 9. 197-199 Adopted in Finding of Fact 21. 200,201 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. 202-206 Rejected in Finding of Fact 27, and otherwise irrelevant and unnecessary. 207,208 Adopted in part in Finding of Fact 21. 209-217 Rejected in Findings of Fact 21, 22, 27, and otherwise irrelevant and unnecessary. Rejected in Finding of Fact 21. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 9. Rejected as cumulative and unnecessary. 222-224 Rejected in Finding of Fact 27. and otherwise irrelevant and unnecessary. 225 Rejected as unnecessary and not based on competent substantial evidence. 226 evidence. Rejected as not based on competent substantial 227,228 Rejected as irrelevant. 229-232 Adopted in Finding of Fact 3. 233 Rejected as irrelevant. 234,235 evidence. Rejected as not based on competent substantial 236 Adopted in Finding of Fact 3. 237,238 Adopted in Finding of Fact 5. 239 Adopted in Finding of Fact 3. 240-243 Rejected as irrelevant. 244-246 Adopted in Finding of Fact 31. 247-250 Adopted in Finding of Fact 4. 251 evidence. Rejected as not based on competent substantial 252,253 Adopted in Finding of Fact 5. 254,255 Rejected as irrelevant and otherwise not based on competent substantial evidence. 256,257 Adopted in Finding of Fact 31. 258-260 Adopted in Finding of Fact 2. 261 Rejected as irrelevant. 262 Adopted in Finding of Fact 2. 263 Adopted in Finding of Fact 5. 264 Adopted in Findings of Fact 2, 11. 265-267 Rejected as irrelevant. 268 Adopted in Finding of Fact 5. 269-272 Rejected as irrelevant and unnecessary. 273,274 Adopted in Finding of Fact 31. 275-278 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. 279-284 Rejected in Finding of Fact 32. Rulings on the Department's Proposed Findings of Fact. 1 Adopted in Finding of Fact 5. 2,3 Adopted in Findings of Fact 2. 3, 4. 4 Adopted in Finding of Fact 7. 5-8 Adopted in Finding of Fact 9. 9 Adopted in Finding of Fact 21. 10-12 Adopted in Finding of Fact 1. 13 Rejected as irrelevant and unnecessary. 14,15 Adopted in Finding of Fact 33. 16-23 Rejected as irrelevant and unnecessary. Rejected since this is a conclusion of law rather than a proposed finding of fact. Rejected as unclear. Adopted in Finding of Fact 14. 27-30 Adopted in Finding of Fact 13. Adopted in Finding of Fact 26. Adopted in Finding of Fact 17. Rejected as speculative and not based on competent substantial evidence. Adopted in Finding of Fact 24. 35,36 Adopted in Finding of Fact 13. 37,38 Rejected as unnecessary. Adopted in Finding of Fact 14. Adopted in Finding of Fact 13. Rejected as unnecessary. Adopted in Finding of Fact 11. Adopted in part in Finding of Fact 17, but otherwise rejected as irrelevant and unnecessary. Adopted in Findings of Fact 11, 12. Rejected as unnecessary. Adopted in Finding of Fact 16. 47,48 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. 51,52 Adopted in Finding of Fact 17. 53-55 Rejected as cumulative and unnecessary. 56-59 Adopted in Finding of Fact 17. Rejected as unnecessary and cumulative. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 17. 63,64 Adopted in Finding of Fact 20. 65-73 Adopted in Finding of Fact 17. Adopted in Finding of Fact 22. Rejected in Finding of Fact 20. 76,77 Adopted in Finding of Fact 21. 78-82 Adopted in Finding of Fact 22. Adopted in Finding of Fact 8. Rejected in Finding of Fact 8. Adopted in Finding of Fact 21._ Adopted in Finding of Fact 27. 87,88 Rejected as a conclusion of law rather than a proposed finding of fact. 89,90 Rejected as unnecessary and cumulative. 91-93 Rejected as unnecessary. 94 Adopted in part in Finding of Fact 21. 95,96 Adopted in part in Finding of Fact 22. Rejected as cumulative and unnecessary. Adopted in Findings of Fact 21, 22. 99-103 Adopted in Finding of Fact 27. Adopted in Finding of Fact 22. Rejected as unclear. Adopted in Finding of Fact 22. 107,108 Adopted in Finding of Fact 27. 109 Adopted in Finding of Fact 22.. 110,111 Adopted in Finding of Fact 27. 112-114 Rejected as unnecessary and cumulative. 115-117 Adopted in Finding of Fact 11. 118 Rejected as cumulative. 119-121 Adopted in Finding of Fact 27. 122 Adopted in Finding of Fact 6. 123-136 Adopted in Finding of Fact 27. COPIES FURNISHED: Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Greg D. Sefton 5781 Old Ranch Road Sarasota, Florida 34241 Edward P. de la Parte, Jr. Attorney at Law 705 East Kennedy Boulevard Tampa, Florida 33602 Ralph A. Kehn Route 1, Box 74-170 Rockinghorse Lane Sarasota, Florida 34241 Wyatt S. Bishop Route 1, Box 74-203 Sarasota, Florida 34241 C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Judith Kavanaugh, Esquire 2831 Ringling Boulevard Suite C209 Sarasota, Florida 33577 Dorisanna L. Peters 5793 Old Ranch Road Sarasota, Florida 34241
The Issue The issue in this case is whether, and under what conditions, the Respondent, St. Johns River Water Management District (District), should grant Environmental Resource Permit (ERP) No. 40-109-81153-1 authorizing Respondents, Jay and Linda Ginn (Ginns or Applicants), to construct a 136-unit single-family residential development with associated surface water management system.
Findings Of Fact The Parties and Proposed Project Respondent, the District, is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce the cited statutes and Florida Administrative Code Rules promulgated by the District under the authority of those statutes. (Unless otherwise stated, all Florida Statutes refer to the 2003 codification, and all Florida Administrative Code Rules refer to the current codification.) Respondents, Jay and Linda Ginn, are the owners of 47 acres of land located just west of the City of St. Augustine in St. Johns County, Florida. They are seeking ERP Permit No. 40- 109-81153-1 from the District to construct a 136-acre residential community and associated surface water management facilities on the property, to be known as Ravenswood Forest. The 47-acre project site is predominantly uplands, with a large (10.98-acre) wetland (Wetland 1) located on the eastern boundary and completely separating the uplands on the project site from adjacent properties to the east. While the central portion of the site is mostly a sand pine vegetated community, and the western portion is largely a pine flatwood community, there are six other smaller wetlands scattered within the upland areas lying west of Wetland 1, each numbered separately, 2 through 7. The site is currently undeveloped except for some cleared areas that are used as dirt road trails and a borrow pit or pond excavated in the central part of the site. This clearing and excavation was accomplished in the 1980’s for a project that was never completed. The project site is bordered on the north by Ravenswood Drive. On the east lies an existing residential development probably constructed in the 1970’s; to the west of the project site is a power-line easement; and to the south is a Time Warner cable facility. The land elevations at the project site are generally higher on the west and slope off to Wetland 1 on the east. Under current conditions, water generally drains from west to east into Wetland 1. Some water from the site, as well as some water entering the site from off-site properties to the west, flows into the existing pond or borrow pit located in the central portion of the site. Under extreme rainfall conditions, the borrow pit/pond can reach a stage that allows it to overflow and discharge into Wetland 1. Some off-site water also enters Wetland 1 at its north end. Water that originates from properties to the west of the Ravenswood site is conveyed through ditches to the roadside ditch that runs along the south side of Ravenswood Drive. Water in this roadside ditch ultimately enters Wetland 1 at its north end and flows south. Once in Wetland 1, water moves north to south. Water leaves the part of Wetland 1 that is located on the Ravenswood site and continues to flow south through ditches and culverts ultimately to the San Sebastian River. The Wetland 1 system is contiguous with wetlands located on property owned by Petitioner, Marilyn McMulkin. Mrs. McMulkin lives on Hibiscus Street to the east of the project. Mrs. McMulkin is disabled and enjoys observing wildlife from her home. Mrs. McMulkin has observed woodstorks, kites, deer, cardinals, birds, otter, indigo snake, flying squirrels, gopher tortoises, and (more recently) bald eagles on her property or around the neighborhood. Mrs. McMulkin informed the District of the presence of the bald eagle in 2002, but it was not discovered until November of 2003 that there was an eagle nest on the Ginns property in Wetland 1. Petitioner, Diane Mills, owns a house and property on Hibiscus Street to the east of the Project. The proposed stormwater discharge for the Project is to a wetland system that is contiguous with a wetland system that is in close proximity to Mrs. Mills' property. Petitioners' property is not located in a flood plain identified by FEMA. Nevertheless, Petitioners' property experiences flooding. At times, the flooding has come through Mrs. McMulkin's house and exited out the front door. The flood water, which can be 18-24 inches high in some places on Mrs. McMulkin's property, comes across her backyard, goes through or around her house, enters Hibiscus Street and turns north. The flooding started in the late 1980's and comes from the north and west, from the Ginns' property. The flooding started after Mr. Clyatt Powell, a previous co-owner of the Ravenswood property, started clearing and creating fill roads on the property using dirt excavated from the property. The flooding now occurs every year and has increased in duration and frequency; the flooding gets worse after the rain stops and hours pass. The evidence, including Petitioners' Exhibit 1, indicated that there are numerous other possible reasons, besides activities on the Ginns' property in the late 1980's, for the onset and exacerbation of Petitioners' flooding problems, including: failure to properly maintain existing drainage facilities; other development in the area; and failure to improve drainage facilities as development proceeds. The parties have stipulated that Petitioners have standing to object to ERP Permit No. 40-109-81153-1. Project Description As indicated, water that originates west of the project site currently enters the project site in two ways: (1) it moves across the western project boundary; and (2) it travels north to a ditch located on the south side of Ravenswood Drive and is conveyed to Wetland 1. The offsite water that moves across the western project boundary comes from a 16-acre area identified as Basin C (called Basin 4 post-development). The offsite water that moves north to the ditch and enters Wetland 1 comes from a 106.87-acre area identified as Basin D (called Basin 5 post-development). The project’s stormwater conveyance and treatment facilities include two connected wet detention ponds with an outfall to a wetland on the eastern portion of the project site. Stormwater from most of the project site will be conveyed to a pond, or detention area (DA) DA-1, which will be located near (and partially coinciding with the location of) the existing pond or borrow pit. The water elevation in DA-1 will be controlled at a level of 26 feet. Water from DA-1 will spill over through a control structure into a pipe that will convey the spill-over to DA-2. In addition to the spill-over from DA-1, offsite water that currently enters the project site across the western boundary will be conveyed to a wetland area at the southwest corner of the project site. At that point, some of the water will be taken into DA-2 through an inlet structure. The water elevation in DA-2 will be controlled at level 21. Water from DA-2 will be released by a control structure to a spreader swale in Wetland 1. While some of the water conveyed to the wetland area at the southwest corner of the project site will enter DA-2, as described, some will discharge over an irregular weir (a low area that holds water until it stages up and flows out) and move around the southern boundary of the project site and flow east into Wetland 1. Wetland 1 is a 10.98-acre onsite portion of a larger offsite wetland area extending to the south and east (which includes the wetlands on Mrs. McMulkin's property). For purposes of an Overall Watershed Study performed by the Ginns' engineering consultant, the combined onsite and offsite wetlands was designated Node 98 (pre-development) and Node 99 (post- development). From those areas, water drains south to ditches and culverts and eventually to the San Sebastian River. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers, if needed. In addition, the District's TSR imposed permit conditions that require erosion and sediment control measures to be implemented. The District's TSR also imposed a permit condition that requires District approval of a dewatering plan within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site. Wetland Impacts Onsite Wetlands Wetland 1 is a 10.98-acre mixed-forested wetland system. Its overall condition is good. It has a variety of vegetative strata, a mature canopy, dense understory and groundcover, open water areas, and permanent water of varying levels over the course of a year. These attributes allow for species diversity. Although surrounded by development, the wetland is a good source for a variety of species to forage, breed, nest, and roost. In terms of vegetation, the wetland is not unique to northeast Florida, but in November 2003 an eagle nest was discovered in it. A second wetland area onsite (Wetland 2) is a 0.29-acre coniferous depression located near the western boundary of the site. The overall value of the functions provided by Wetland 2 is minimal or low. It has a fairly sparse pine canopy and scattered ferns provide for little refuge and nesting. Water does stand in it, but not for extended periods of time, which does not allow for breeding of most amphibians. The vegetation and inundation do not foster lower trophic animals. For that reason, although the semi-open canopy would be conducive to use by woodstorks, birds and small mammals do not forage there. A third wetland area onsite (Wetland 3) is a 0.28-acre mixed-forested wetland on the northern portion of the site. The quality of Wetland 3 is low. A 24-inch culvert drains the area into a 600-foot long drainage ditch along the south side of Ravenswood Drive leading to Wetland 1. As a result, its hydroperiod is reduced and, although it has a healthy pine and cypress canopy, it also has invasive Chinese tallow and upland species, along with some maple. The mature canopy and its proximity to Ravenswood Drive would allow for nesting, but no use of the wetland by listed species has been observed. In order to return Wetland 3 to being productive, its hydroperiod would have to be restored by eliminating the connection to the Ravenswood Drive ditch. A fourth wetland area onsite (Wetland 4) is a 0.01- acre portion of a mixed-forested wetland on the western boundary of the site that extends offsite to the west. Its value is poor because: a power line easement runs through it; it has been used as a trail road, so it is void of vegetation; and it is such a small fringe of an offsite wetland that it does not provide much habitat value. A fifth wetland area onsite (Wetland 5) is a 0.01-acre portion of the same offsite mixed-forested wetland that Wetland 4 is part of. Wetland 5 has a cleared trail road through its upland fringe. Wetland 5 has moderate value. It is vegetated except on its upland side (although its vegetation is not unique to northeast Florida), has a nice canopy, and provides fish and wildlife value (although not as much as the interior of the offsite wetland). A sixth wetland area onsite (Wetland 6) is a 0.28-acre wetland located in the western portion of the site. It is a depression with a coniferous-dominated canopy with some bays and a sparse understory of ferns and cord grass that is of moderate value overall. It does not connect with any other wetlands by standing or flowing water and is not unique. It has water in it sufficient to allow breeding, so there would be foraging in it. Although not discovered by the Ginns' consultants initially, a great blue heron has been observed utilizing the wetland. No listed species have been observed using it. Wetland 6 could be good gopher frog habitat due to its isolation near uplands and its intermittent inundation, limiting predation by fish. In addition, four gopher tortoise burrows have been identified in uplands on the project site, and gopher frogs use gopher tortoise burrows. The gopher frog is not a listed species; the gopher tortoise is listed by the State of Florida as a species of special concern but is not aquatic or wetland-dependent. Woodstorks are listed as endangered. Although no woodstorks were observed using Wetland 6, they rely on isolated wetlands drying down to concentrate fish and prey in the isolated wetlands. With its semi-open canopy, Wetland 6 could be used by woodstorks, which have a wingspan similar to great blue herons, which were seen using Wetland 6. However, Wetland would not provide a significant food source for wading birds such as woodstorks. The other surface water area onsite (Wetland 7) is the existing 0.97-acre pond or borrow pit in the southwest portion of the project site. The pond is man-made with a narrow littoral shelf dominated by torpedo grass; levels appears to fluctuate as groundwater does; and it is not unique. It connects to Wetland 1 during seasonal high water. It has some fish, but the steep slope to its littoral shelf minimizes the shelf's value for fish, tadpoles, and larvae stage for amphibians because fish can forage easily on the shelf. The Ginns propose to fill Wetlands 2, 3, 4, and 6; to not impact Wetland 5; and to fill a 0.45-acre portion of Wetland and dredge the remaining part into DA-1. Also, 0.18 acre of Wetland 1 (0.03 acre is offsite) will be temporarily disturbed during installation of the utility lines to provide service to the project. Individually and cumulatively, the wetlands that are less than 0.5-acre--Wetlands 3, 6, 2, 4, and 5--are low quality and not more than minimal value to fish and wildlife except for Wetland 5, because it is a viable part of an offsite wetland with value. While the Ginns have sought a permit to fill Wetland 4, they actually do not intend to fill it. Instead, they will simply treat the wetland as filled for the purpose of avoiding a County requirement of providing a wetland buffer and setback, which would inhibit the development of three lots. Offsite Wetlands The proposed project would not be expected to have an impact on offsite wetlands. Neither DA-1 nor DA-2, especially with the special conditions imposed by the District, will draw down offsite wetlands. The seasonal high water (SHW) table in the area of DA- 1 is estimated at elevation 26 to 29. With a SHW table of 26, DA-1 will not influence groundwater. Even with a SHW table of 29, DA-1 will not influence the groundwater beyond the project's western boundary. DA-1 will not adversely affect offsite wetlands. A MODFLOW model was run to demonstrate the influence of DA-1 on nearby wetlands assuming that DA-1 would be controlled at elevation 21, that the groundwater elevation was 29, and that no cutoff wall or liner would be present. The model results demonstrated that the influence of DA-1 on groundwater would barely extend offsite. The current proposed elevation for DA-1 is 26, which is higher than the elevation used in the model and which would result in less influence on groundwater. The seasonal high water table in the area of DA-2 is 28.5 to 29.5. A cutoff wall is proposed to be installed around the western portion of DA-2 to prevent it from drawing down the water levels in the adjacent wetlands such that the wetlands would be adversely affected. The vertical cutoff wall will be constructed of clay and will extend from the land surface down to an existing horizontal layer of relatively impermeable soil called hardpan. The cutoff wall tied into the hardpan would act as a barrier to vertical and horizontal groundwater flow, essentially severing the flow. A MODFLOW model demonstrated that DA-2 with the cutoff wall will not draw down the adjacent wetlands. The blow counts shown on the boring logs and the permeability rates of soils at the proposed location of DA-2 indicate the presence of hardpan. The hardpan is present in the area of DA-2 at approximately 10 to 15 feet below the land surface. The thickness of the hardpan layer is at least 5 feet. The Ginns measured the permeability of hardpan in various locations on the project site. The cutoff wall design is based on tying into a hardpan layer with a permeability of 0.052 feet per day. Because permeability may vary across the project site, the District recommended a permit condition that would require a professional engineer to test for the presence and permeability of the hardpan along the length of the cutoff wall. If the hardpan is not continuous, or if its permeability is higher than 0.052 feet per day, then a liner will be required to be installed instead of a cutoff wall. The liner would be installed under the western third of DA-2, west of a north-south line connecting the easterly ends of the cutoff wall. (The location of the liner is indicated in yellow on Applicants' Exhibit 5B, sheet 8, and is described in District Exhibit 10.) The liner would be 2 feet thick and constructed of clay with a permeability of no more than 1 x 10-6 centimeters per second. A liner on a portion of the bottom of pond DA-2 will horizontally sever a portion of the pond bottom from the groundwater to negate the influence of DA-2 on groundwater in the area. A clay liner would function to prevent adverse drawdown impacts to adjacent wetlands. The project, with either a cutoff wall or a clay liner, will not result in a drawdown of the groundwater table such that adjacent wetlands would be adversely affected. Reduction and Elimination of Impacts The Ginns evaluated practicable design alternatives for eliminating the temporary impact to 0.18-acre of Wetland 1. The analysis indicated that routing the proposed utility services around the project site was possible but would require a lift station that would cost approximately $80,000 to $100,000. The impact avoided is a temporary impact; it is likely that the area to be impacted can be successfully reestablished and restored; and preservation of Wetland 1 is proposed to address lag-time for reestablishment. It was determined by the Ginns and District staff that the costs of avoidance outweigh the environmental benefits of avoidance. Petitioners put on evidence to question the validity of the Wetland 1 reduction/elimination analysis. First, Mr. Mills, who has experience installing sewer/water pipes, testified to his belief that a lift station would cost only approximately $50,000 to $60,000. He also pointed out that using a lift station and forced main method would make it approximately a third less expensive per linear foot to install the pipe line itself. This is because a gravity sewer, which would be required if a lift station and forced main is not used, must be laid at precise grades, making it is more difficult and costly to lay. However, Mr. Mills acknowledged that, due to the relatively narrow width of the right-of-way along Ravenswood Drive, it would be necessary to obtain a waiver of the usual requirement to separate the sewer and water lines by at least 10 feet. He thought that a five-foot separation waiver would be possible for his proposed alternative route if the "horizontal" separation was at least 18 inches. (It is not clear what Mr. Mills meant by "horizontal.") In addition, he did not analyze how the per-linear-foot cost savings from use of the lift station and forced main sewer would compare to the additional cost of the lift station, even if it is just $50,000 to $60,000, as he thinks. However, it would appear that his proposed alternative route is approximately three times as long as the route proposed by the Ginns, so that the total cost of laying the sewer pipeline itself would be approximately equal under either proposal. Mr. Mills's testimony also suggested that the Ginns did not account for the possible disturbance to the Ravenswood eagles if an emergency repair to the water/sewer is necessary during nesting season. While this is a possibility, it is speculative. There is no reason to think such emergency repairs will be necessary, at least during the approximately 20-year life expectancy of the water/sewer line. Practicable design modifications to avoid filling Wetland 4 also were evaluated. Not filling Wetland 4 would trigger St. Johns County wetland setback requirements that would eliminate three building lots, at a cost of $4,684 per lot. Meanwhile, the impacted wetland is small and of poor quality, and the filling of Wetland 4 can be offset by proposed mitigation. As a result, the costs of avoidance outweigh the environmental benefits of avoidance. Relying on ERP-A.H. 12.2.2.1 the Ginns did not perform reduction/elimination analyses for Wetlands 2 and 6, and the District did not require them. As explained in testimony, the District interprets ERP-A.H. 12.2.1.1 to require a reduction/elimination analysis only when a project will result in adverse impacts such that it does not meet the requirements of ERP-A.H. 12.2.2 through 12.2.3.7 and 12.2.5 through 12.3.8. But ERP-A.H. 12.2.2.1 does not require compliance with those sections for regulated activities in isolated wetlands less than one-half acre in size except in circumstances not applicable to this case: if they are used by threatened or endangered species; if they are located in an area of critical state concern; if they are connected at seasonal high water level to other wetlands; and if they are "more than minimal value," singularly or cumulatively, to fish and wildlife. See ERP-A.H. 12.2.2.1(a) through (d). Under the District's interpretation of ERP-A.H. 12.2.1.1, since ERP-A.H. 12.2.2.1 does not require compliance with the very sections that determine whether a reduction/elimination analysis is necessary under ERP-A.H. 12.2.1.1, such an analysis is not required for Wetlands 2 and 6. Relying on ERP-A.H. 12.2.1.2, a., the Ginns did not perform reduction/elimination analyses for Wetlands 3 and 7, and the District did not require them, because the functions provided by Wetlands 3 and 7 are "low" and the proposed mitigation to offset the impacts to these wetlands provides greater long-term value. Petitioners' environmental expert opined that an reduction/elimination analysis should have been performed for all of the wetlands on the project site, even if isolated and less than half an acre size, because all of the wetlands on the project site have ecological value. For example, small and isolated wetlands can be have value for amphibians, including the gopher frog. But his position does not square with the ERP- A.H., as reasonably interpreted by the District. Specifically, the tests are "more than minimal value" under ERP-A.H. 12.2.2.1(d) and "low value" under ERP-A.H. 12.2.1.2, a. Secondary Impacts The impacts to the wetlands and other surface waters are not expected to result in adverse secondary impacts to the water resources, including endangered or threatened listed species or their habitats. In accordance with ERP-A.H. 12.2.7(a), the design incorporates upland preserved buffers with minimum widths of 15 feet and an average width of 25 feet around the wetlands that will not be impacted. Sediment and erosion control measures will assure that the construction will not have an adverse secondary impact on water quality. The proposed development will be served by central water and sewer provided by the City of St. Augustine, eliminating a potential for secondary impacts to water quality from residential septic tanks or septic drainfields. In order to provide additional measures to avoid secondary impacts to Wetland 1, which is the location of the bald eagles’ nest, the Applicants proposed additional protections in a Bald Eagle Management Plan (BEMP) (App. Ex. 14). Under the terms of the BEMP, all land clearing, infrastructure installation, and exterior construction on homes located within in the primary zone (a distance within 750 feet of the nest tree) is restricted to the non-nesting season (generally May 15 through September 30). In the secondary zone (area between 750 feet and 1500 feet from the nest tree), exterior construction, infrastructure installation, and land clearing may take place during the nesting season with appropriate monitoring as described in the BEMP. Proposed Mitigation The Ginns have proposed mitigation for the purpose of offsetting adverse impacts to wetland functions. They have proposed to provide mitigation for: the 0.18-acre temporary impact to Wetland 1 during installation of a water/sewer line extending from existing City of St. Augustine service to the east (at Theodore Street); the impacts to Wetlands 3, 4 and 7; and the secondary impacts to the offsite portion of Wetland 4. The Ginns propose to grade the 0.18-acre temporary impact area in Wetland 1 to pre-construction elevations, plant 72 trees, and monitor annually for 5 years to document success. Although the easement is 30 feet in width, work will be confined to 20 feet where vegetation will be cleared, the top 1 foot of soil removed and stored for replacing, the trench excavated, the utility lines installed, the trench refilled, the top foot replaced, the area replanted with native vegetation, and re- vegetation monitored. To facilitate success, the historic water regime and historic seed source will give the re-vegetation effort a jump-start. The Ginns propose to restore and enhance a 0.12-acre portion of Wetland 1 that has been degraded by a trail road. They will grade the area to match the elevations of adjacent wetland, plant 48 trees, and monitor annually for 5 years to document success. This is proposed to offset the impacts to Wetland 4. The proposed grading, replanting, and monitoring will allow the area to be enhanced causing an environmental benefit. The Ginns propose to preserve 10.58 acres of wetlands and 3.99 acres of uplands in Wetland 1, 1 acre of upland buffers adjacent to Wetlands 1 and 5, and the 0.01 acre wetland in Wetland 5. The upland buffer will be a minimum of 15 feet wide with an average of 25 feet wide for Wetland 1 and 25 feet wide for Wetland 5. A conservation easement will be conveyed to the District to preserve Wetlands 1 and 5, the upland buffers, and the wetland restoration and enhancement areas. The preservation of wetlands provides mitigation value because it provides perpetual protection by ensuring that development will not occur in those areas, as well as preventing activities that are unregulated from occurring there. This will allow the conserved lands to mature and provide more forage and habitat for the wildlife that would utilize those areas. Mitigation for Wetlands 2 and 6 was not provided because they are isolated wetlands less than 0.5-acre in size that are not used by threatened or endangered species; are not located in an area of critical state concern; are not connected at seasonal high water level to other wetlands; and are not more than minimal value, singularly or cumulatively, to fish and wildlife. As previously referenced in the explanation of why no reduction/elimination analysis was required for these wetlands, ERP-A.H. 12.2.2.1(d) does not require compliance with under ERP- A.H. 12.3 through 12.3.8 (mitigation requirements) for regulated activities in isolated wetlands less than one-half acre in size except in circumstances found not to be present in this case. See Finding 44, supra. The cost of the proposed mitigation will be approximately $15,000. Operation and Maintenance A non-profit corporation that is a homeowners association (HOA) will be responsible for the operation, maintenance, and repair of the surface water management system. An HOA is a typical operation and maintenance entity for a subdivision and is an acceptable entity under District rules. See ERP-A.H. 7.1.1(e) and 7.1.2; Fla. Admin. Code R. 40C- 42.027(3) and (4). The Articles of Incorporation for the HOA and the Declaration of Covenants, Conditions, and Restrictions contain the language required by District rules. Water Quantity To address water quantity criteria, the Applicants' engineers ran a model (AdICPR, Version 1.4) to compare the peak rate discharge from the project in the pre-project state versus the peak rate discharge after the project is put in place. The pre-project data input into the model were defined by those conditions that existed in 1985 or 1986, prior to the partial work that was conducted, but not completed, on the site in the late 1980's. The project’s 1985/1986 site condition included a feature called Depression A that attenuated some onsite as well as offsite stormwater. Because of work that was done on the project site after 1985/1986 (i.e., the excavation of the borrow pit and road-clearing activities in the late 1980's), the peak rate of discharge for the 1985/1986 project site condition was lower than the peak rate of discharge for today’s project site condition. (Flooding at Mrs. McMulkin's house began after the work was performed on the project site in the late 1980's.) Because this partial work conducted in the late 1980's increased peak rate discharge from the site, by taking the pre-project conditions back to the time prior to that work, the peak rate of discharge in the 1985-86 pre-project condition was lower than it would be under today's conditions. The model results indicated that for the 25-year, 24- hour storm event, the pre-project peak rate discharge is 61.44 cubic feet per second (cfs). The post-project peak rate discharge is 28.16 cfs. Because the completed project reduces the pre-project peak rate discharges, the project will not cause any adverse flooding impacts off the property downstream. A similar analysis of the peak rate discharges under pre-project conditions that exist today (rather than in 1986) was compared to peak rate discharges for the post-project conditions. This analysis also showed post-project peak rate discharges to be less than the peak rate discharges from the site using today’s conditions as pre-project conditions. As further support to demonstrate that the project would not cause additional flooding downstream, a second modeling analysis was conducted, which is referred to as the Ravenswood Overall Watershed Model (OWM). The Applicants' engineer identified water flowing into the system from the entire watershed basin, including the project site under both the pre- and post-project conditions. The water regime was evaluated to determine what effect the proposed project will have on the overall peak rate discharges, the overall staging, and the duration of the staging within the basin that ultimately receives the water from the overall watershed. This receiving basin area was defined as the "wetland node" (Node 98 pre- project, and Node 99 post-project). As previously stated, the area within this "wetland node" includes more than just the portion of Wetland 1 that is located on the Ravenswood site. It also includes the areas to the south and east of the on-site Wetland 1 (including properties owned by the Petitioners) and extends down to an east-west ditch located just north of Josiah Street. The project’s surface water management system will not discharge to a landlocked basin. The project is not located in a floodway or floodplain. The project is not located downstream of a point on a watercourse where the drainage is five square miles or more. The project is impounding water only for temporary storage purposes. Based on testimony from their experts, Petitioners contend that reasonable assurances have not been given as to water quantity criteria due to various alleged problems regarding the modeling performed by the Ginns' engineer. Tailwater Elevations First, they raise what they call "the tailwater problem." According to Petitioners, the Ginns' modeling was flawed because it did not use a 19.27-foot SHW elevation in Wetland 1 as the tailwater elevation. The 19.27-foot SHW was identified by the Ginns' biologist in the Wetland 1 near the location of the proposed utility line crossing the wetland and was used as the pre-development tailwater in the analysis of the project site. The post-development tailwater condition was different because constructing the project would change the discharge point, and "tailwater" refers to the water elevation at the final discharge of the stormwater management system. (SW- A.H., Section 9.7) The post-development tailwater was 21 feet, which reflects the elevation of the top of the spreader swale that will be constructed, and it rose to 21.3 feet at peak flow over that berm. For the OWM, the final discharge point of the system being modeled was the east-west ditch located just north of Josiah Street, where the tailwater elevation was approximately 18.1 feet, not the 19.27 feet SHW mark to the north in Wetland 1. The tailwater condition used in the modeling was correct. Petitioners also mention in their PRO that "the Applicants' analysis shows that, at certain times after the 25 year, 24 hour storm event, in the post development state, Wetland 1 will have higher staging than in the predevelopment state." But those stages are after peak flows have occurred and are below flood stages. This is not an expected result of post- development peak-flow attenuation. Watershed Criticism The second major criticism Petitioners level at the Applicants' modeling is that parts of the applicable watershed basins were omitted. These include basins to the west of the project site, as well as basins to the north of the site, which Petitioners lumped into the so-called "tailwater problem." Petitioners sought to show that the basins identified by the Ginns as draining onto the project site from the west were undersized, thus underestimating the amount of offsite water flowing onto the project site. With respect to Basin C, Petitioners' witness testified that the basin should be 60 acres instead of 30 acres in size, and that consequently more water would flow into pond DA-2 and thus reduce the residence time of the permanent pool volume. In fact, Basin C is 16 acres in size, not 30 acres. The water from Basin C moves onto the project site over the western project boundary. A portion of the water from Basin C will be directed to pond DA-2 through an inlet structure, and the rest will move over an irregular weir and around the project site. With respect to Basin D, Petitioners' witness testified that the basin should encompass an additional 20 acres to the west and north. West of Basin D, there are ditches routing water flow away from the watershed, so it is unclear how water from an additional 20 acres would enter the watershed. The western boundary of the OWM is consistent with the western boundaries delineated in two studies performed for St. Johns County. Petitioners' witness testified that all of the water from the western offsite basins currently travels across the project site's western boundary, and that in post-development all of that water will enter pond DA-2 through the inlet structure. In fact, currently only the water from Basin C flows across the project site's western boundary. Post-development, only a portion of water from Basin C will enter pond DA-2. Currently and post-development, the water in Basin D travels north to a ditch south of Ravenswood Drive and discharges into Wetland 1. Petitioners also sought to show that a 50-acre area north of the project site should have been included in the OWM. Petitioners' witness testified that there is a "strong possibility" that the northern area drains into the project site by means of overtopping Ravenswood Drive. The witness' estimate of 50 acres was based on review of topographical maps; the witness has not seen water flowing over Ravenswood Drive. The Ginns' engineer testified that the area north of Ravenswood Drive does not enter the project site, based on his review of two reports prepared by different engineering firms for St. Johns County, conversations with one of those engineering firms, conversations with the St. Johns County engineer, reviews of aerials and contour maps, and site observations. Based on site observations, the area north of the project site drains north and then east. One report prepared for St. Johns County did not include the northern area in the watershed, and the other report included an area to the north consisting of 12 acres. The Ginns' engineer added the 12-acre area to the OWM and assumed the existence of an unobstructed culvert through which this additional water could enter Wetland 1, but the model results showed no effect of the project on stages or duration in the wetland. Even if a 50-acre area were included in the OWM, the result would be an increase in both pre-development and post- development peak rates of discharge. So long as the post- development peak rate of discharge is lower than the pre- development peak rate of discharge, then the conveyance system downstream will experience a rate of water flow that is the same or lower than before the project, and the project will not cause adverse flooding impacts offsite. Petitioners' witness did not have any documents to support his version of the delineations of Basins C and D and the area north of Ravenswood Drive. Time of Concentration Time of concentration (TC) is the time that it takes a drop of water to travel from the hydraulically most distant point in a watershed. Petitioners sought to show that the TC used for Basin C was incorrect. Part of Petitioners' rationale is related to their criticism of the watersheds used in the Ginns' modeling. Petitioners' witness testified that the TC was too low because the distance traveled in Basin C should be longer because Basin C should be larger. The appropriateness of the Basin C delineation already has been addressed. See Finding 71, supra. Petitioners' witness also testified that the TC used for the post-development analysis was too high because water will travel faster after development. However, the project will not develop Basins C and D, and thus using the same TC in pre- development and post-development is appropriate. The project will develop Basins A and B (called Basins 1, 2, and 3 post- development), and the post-development TC for those basins were, in fact, lower than those used in the pre-development analysis. Groundwater Infiltration in DA-2 One witness for Petitioners opined that groundwater would move up through the bottom of DA-2 as a result of upwelling (also referred to as infiltration or seepage), such that 1,941 gallons per day (gpd) would enter DA-2. That witness agreed that if a liner were installed in a portion of DA-2, the liner would reduce upwelling in a portion of the pond. Another witness for Petitioners opined that 200 gpd of groundwater would enter the eastern part and 20,000 gpd would enter the western part of DA-2. Although that witness stated that upwelling of 200 gpd is not a significant input and that upwelling of 20,000 gpd is a significant input, he had not performed calculations to determine the significance. Even if more than 20,000 gpd of groundwater entered DA-2, DA-2 will provide sufficient permanent pool residence time without any change to the currently designed permanent pool size or the orifice size. Although part of one system, even if DA-2 is considered separate from DA-1, DA-2 is designed to provide an additional permanent pool volume of 6.57 acre-feet (in addition to the 20.5 acre/feet provided by DA-1). This 6.57 acre-feet provided by DA-2, is more than the 4.889 acre-feet of permanent pool volume that would be necessary to achieve a 21-day residence time for the 24+ acres that discharge directly into DA-2, as well as background seepage into DA-2 at a rate of 0.0403 cfs, which is more upwelling than estimated by Petitioners' two witnesses. There is adequate permanent pool volume in DA-2 to accommodate the entire flow from Basin C and for water entering through the pond bottom and pond sides and provide at least 21 days of residence time. Water Quality Criteria Presumptive Water Quality The stormwater system proposed by the Ginns is designed in accordance with Florida Administrative Code Rules 40C-42.024, 40C-42.025, and 40C-42.026(4). Wet detention ponds must be designed for a permanent pool residence time of 14 days with a littoral zone, or for a residence time of 21 days without a littoral zone, which is the case for this project. See Fla. Admin. Code R. 40C-42.026(4)(c) and (d). DA-1 and DA-2 contain sufficient permanent pool volume to provide a residence time of 31.5 days, which is the amount of time required for projects that discharge to Class II Outstanding Florida Waters, even though the receiving waterbody for this project is classified as Class III Waters. See Fla. Admin. Code R. 40C-42.026(4)(k)1. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers if needed. In addition, the District proposed permit conditions that require erosion and sediment control measures to be implemented. (Dist. Ex. 1, pp. 8-9, #4; Dist. Ex. 2, p. 1, ##3, 4, and 5, and p. 6, #10). ERP/MSSW/Stormwater Special Conditions incorporated into the proposed permit require that all wetland areas or water bodies outside the specific limits of construction must be protected from erosion, siltation, scouring or excess turbidity, and dewatering. (Dist. Ex. 2). The District also proposed a permit condition that requires District approval of a dewatering plan for construction, including DA-1 and DA-2, within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site. As previously described, Petitioners' engineering witness sought to show that DA-2 will not provide the required permanent pool residence time because Basin C should be 60 acres in size. Petitioners' environmental witness also expressed concern about the capacity of the ponds to provide the water quality treatment required to meet the presumptive water quality criteria in the rules, but those concerns were based on information he obtained from Petitioners' engineering witness. Those issues already have been addressed. See Findings 77-78, supra. Groundwater Contamination Besides those issues, Petitioners raised the issue that groundwater contamination from a former landfill nearby and from some onsite sludge and trash disposal could be drawn into the proposed stormwater management system and cause water quality violations in the receiving waters. If groundwater is contaminated, the surface water management system could allow groundwater to become surface water in proposed DA-1. St. Johns County operated a landfill from the mid-1950s to 1977 in an area northwest of the project site. The landfill accepted household and industrial waste, which was buried in groundwater, which in turn could greatly enhance the creation of leachate and impacted water. Groundwater flows from west to east in the vicinity of the landfill and the project site but there was conflicting evidence as to a minor portion of the property. The Ginns' witness testified that if the landfill extended far enough south, a small part of the project site could be downgradient from the landfill. But there was no evidence that the landfill extended that far south. Petitioners' witness testified that the groundwater flow varies on the south side of the landfill so that groundwater might flow southeast toward the site. Even if Petitioners' witness is correct, the surface water management system was designed, as Petitioners' other witness agreed, so that DA-1 would have minimal influence on groundwater near the pond. In 1989, sewage sludge and garbage were placed in a pit in the central part of the project site, north of the existing pond, which also is the area for proposed DA-1; and at various times refuse--including a couple of batteries, a few sealed buckets, and concrete--has been placed on the surface of the site. In 1989, to determine the amount of sewage and garbage on the project site, the St. Johns County Health Department chose several locations evidencing recent excavation south of Ravenswood Drive, had the areas re-excavated, and found one bag of garbage and debris such as tree stumps and palmettos. In 2001, an empty 55-gallon drum was on the site; there was no evidence what it once contained or what it contained when deposited onsite, if anything. In addition, trespassers dumped solid waste on the property from time to time. Petitioners' witness searched the site with a magnetometer and found nothing significant. On the same day, another of Petitioners’ witnesses sampled with an auger but the auger did not bore for core or any other type sample; it merely measured groundwater level. In 1985, 1999, and 2000, groundwater offsite of the project near the landfill was sampled at various times and places by various consultants to determine whether groundwater was being contaminated by the landfill. The groundwater sampling did not detect any violations of water quality standards. Consultants for the Ginns twice sampled groundwater beneath the project site and also modeled contaminant migration. The first time, in 2001, they used three wells to sample the site in the northwest for potential impacts to the property from the landfill. The second time, they sampled the site through cluster wells in the northwest, middle, and south. (Each cluster well samples in a shallow and in a deeper location.) The well locations were closest to the offsite landfill and within an area where refuse may have been buried in the north- central part of the site. Due to natural processes since 1989, no sewage sludge deposited onsite then would be expected to remain on the surface or be found in the groundwater. The evidence was that the sewage sludge and garbage were excavated. Although samples taken near the center of the property contained substances that are water quality parameters, they were not found in sufficient concentration to be water quality violations. There is an iron stain in the sand north of the existing pond in the area where pond DA-1 is to be located. Based on dissolved oxygen levels in the groundwater, Petitioners' witness suggested that the stain is due to buried sewage, but the oxygen levels are not in violation of water quality standards and, while toward the low end of not being a violation, the levels could be due to natural causes. No evidence was presented establishing that the presence of the iron stain will lead to a violation of water quality standards. Petitioners' witness, Mr. Boyes, testified that iron was a health concern. But iron itself is a secondary drinking water standard, which is not a health-based standard but pertains to odor and appearance of drinking water. See § 403.852(12) and (13), Fla. Stat. Petitioners argued that the Phase I study was defective because historical activity on the project site was not adequately addressed. But the Phase I study was only part of the evidence considered during this de novo hearing. Following up on the Phase I study, the 2001 sampling analyzed for 68 volatile organics and 72 semi-volatile organics, which would have picked up solvents, some pesticides, petroleum hydrocarbons, and polynuclear aromatic hydrocarbons--the full range of semi-volatile and volatile organics. The sampling in August 2003 occurred because some of the semi-volatile parameters sampled earlier needed to be more precisely measured, and it was a much broader analysis that included 63 semi-volatiles, 73 volatile organic compounds, 23 polynuclear aromatic hydrocarbons, 25 organic phosphate pesticides, 13 chlorinated herbicides, 13 metals, and ammonia and phosphorus. The parameters for which sampling and analyses were done included parameters that were representative of contaminants in landfills that would have now spread to the project site. They also would have detected any contamination due to historical activity on the project site. Yet groundwater testing demonstrated that existing groundwater at the project site meets state water quality standards. Based on the lack of contaminants found in these samples taken from groundwater at the project site 50 years after the landfill began operation, the logical conclusion is that either groundwater does not flow from the landfill toward the project site or that the groundwater moving away from the landfill is not contaminated. Groundwater that may enter the stormwater ponds will not contain contaminants that will exceed surface water quality standards or groundwater quality standards. Taken together, the evidence was adequate to give reasonable assurances that groundwater entering the stormwater ponds will not contain contaminants that exceed surface water quality standards or groundwater quality standards and that water quality violations would not occur from contaminated water groundwater drawn into the proposed stormwater management system, whether from the old landfill or from onsite waste disposal. The greater weight of the evidence was that there are no violations of water quality standards in groundwater beneath the project site and that nothing has happened on the site that would cause violations to occur in the future. Contrary to Petitioners' suggestion, a permit condition requiring continued monitoring for onsite contamination is not warranted. J. Fish and Wildlife Except for the bald eagle nest, all issues regarding fish and wildlife, listed species, and their habitat as they relate to ERP-A.H. 12.2.2 through 12.2.2.4 already have been addressed. When the Ginns were made aware in November 2003 that there was an eagle nest in Wetland 1, they retained the services of Tony Steffer, an eagle expert with over 25 years of experience working specifically with eagles and eagle management issues, including extensive hands-on experience with eagles and the conduct of field studies, aerial surveys, and behavioral observations as well as numerous research projects on the bald eagle. Mr. Steffer visited the Ravenswood site on numerous occasions since the discovery of the nest, made observations, and was integral in the drafting of the Ravenswood BEMP. It is Mr. Steffer’s opinion that the proposed project, with the implementation of the BEMP, will not adversely affect the eagles. This opinion was based on Mr. Steffer's extensive knowledge and experience with eagle behavior and human interactions. In addition, Mr. Steffer considered the physical characteristics of the Ravenswood site and the nest tree, the dense vegetation in Wetland 1 surrounding the nest site, and the existing surrounding land uses, including the existing residential community that lies a distance of about 310 feet from the nest site, the existing roadways and associated traffic, and the school (with attendant playground noise) that is to north of the site. In Mr. Steffer's opinion, the eagles are deriving their security from the buffering effects provided by the surrounding wetland. He observed that the nesting and incubating eagles were not disturbed when he set up his scope at about 300-320 feet from the tree. The BEMP requires that Wetland 1, and the upland islands located within it, be preserved and limits the work associated with the water/sewer line to the non-nesting season. With the BEMP implemented, Mr. Steffer expressed confidence that the Ravenswood eagles would be able to tolerate the proposed activities allowed under the BEMP. The Ravenswood project plans and the BEMP were reviewed by the U.S. Fish and Wildlife Service (USFWS). The USFWS analyzed information in their files relating to projects which proposed activities within the primary zone of an eagle nest and reported abandoned nests. None of the reported abandoned nests could be attributed to human activities in and around the nest tree. Based on the project plans, the terms of the BEMP, and this analysis, the USFWS concluded that the Ravenswood project "is not likely to adversely affect" the bald eagles at the Ravenswood site. According to the coordination procedures agreed to and employed by the USFWS and the Florida Fish and Wildlife Conservation Commission (FFWCC), the USFWS takes the lead in reviewing bald eagle issues associated with development projects. In accordance with these procedures, for the Ravenswood project, the USFWS coordinated their review and their draft comments with the FFWCC. The FFWCC concurred with the USFWS’s position that the project, with the implementation of the BEMP, will not adversely affect the Ravenswood eagles or their nest. This position by both agencies is consistent with the expert testimony of Mr. Don Palmer, which was based on his 29 years of experience with the USFWS in bald eagle and human interactions. Petitioners and their witnesses raised several valid concerns regarding the continued viability of the Ravenswood eagle nest during and after implementation of the proposed project. One concern expressed was that parts of the Habitat Management Guidelines for the Bald Eagle in the Southeast Region (Eagle Management Guidelines) seem inconsistent with the proposed project. For example, the Eagle Management Guidelines state: "The emphasis [of the guidelines] is to avoid or minimize detrimental human-related impacts on bald eagles, particularly during the nesting season." They also state that the primary zone, which in this case is the area within a 750 foot radius of the nest tree, is "the most critical area and must be maintained to promote acceptable conditions for eagles." They recommend no residential development within the primary zone "at any time." (Emphasis in original.) They also recommend no major activities such as land clearing and construction in the secondary zone during the nesting season because "[e]ven intermittent use or activities [of that kind] of short duration during nesting are likely to constitute disturbance." But the eagle experts explained that the Eagle Management Guidelines have not been updated since 1987, and it has been learned since then that eagles can tolerate more disturbance than was thought at that time. Another concern was that the Ravenswood eagles may have chosen the nest site in Wetland 1 not only for its insulation from existing development to the north and east but also for the relatively sparse development to the west. Along those lines, it was not clear from the evidence that the eagles are used to flying over developed land to forage on the San Sebastian River and its estuaries to the east, as the eagle experts seemed to believe. Mr. Mills testified that eagles have been seen foraging around stocked fish ponds to the west, which also could be the source of catfish bones found beneath the Ravenswood nest. But it is believed that the confident testimony of the eagle experts must be accepted and credited notwithstanding Petitioners' unspecific concerns along these lines. Finally, Petitioners expressed concern about the effectiveness of the monitoring during the nesting required under the BEMP. Some of Petitioners' witnesses related less-than-perfect experiences with eagle monitoring, including malfeasance (monitors sleeping instead of monitoring), unresponsive developers (ignoring monitors' requests to stop work because of signs of eagle disturbance, or delaying work stoppage), and indications that some eagle monitors may lack independence from the hiring developer (giving rise, in a worst case, to the question whether an illegal conspiracy exists between them to ignore signs of disturbance when no independent observer is around). Notwithstanding these concerns, Petitioners' witnesses conceded that eagle monitoring can be and is sometimes effective. If Mr. Steffer is retained as the eagle monitor for this project, or to recruit and train eagle monitors to work under his supervision, there is no reason to think that eagle monitoring in this case will not be conducted in good faith and effectively. Even if the Ginns do not retain Mr. Steffer for those purposes, the evidence did not suggest a valid reason to assume that the Ginns' proposed eagle monitoring will not be conducted in good faith and effectively. K. Other 40C-4.301 Criteria – 40C-4.301(1)(g)-(k) 40C-4.301.301(1)(g) - No minimum surface or groundwater levels or surface water flows have been established pursuant to Florida Administrative Code Rules Chapter 40C-8 in the area of the project. 40C-4.301.301(1)(h) - There are no works of the District in the area of the project. 40C-4.301.301(1)(i) - The proposed wet detention system is typical and is based on accepted engineering practices. Wet detention systems are one of the most easily maintained stormwater management systems and require very little maintenance, just periodically checking the outfall structure for clogging. 40C-4.301.301(1)(j) - The Ginns own the property where the project is located free from mortgages and liens. As previously indicated, they will establish an operation and maintenance entity. The cost of mitigation is less than $25,000 so that financial responsibility for mitigation was not required to be established. (Costs associated with the proposed BEMP are not included as part of the Ginns' mitigation proposal.) 40C-4.301.301(1)(k) - The project is not located in a basin subject to special criteria. Public Interest Test in 40C-4.302 The seven-factor public interest test is a balancing test. The test applies to the parts of the project that are in, on, or over wetlands, and those parts must not be contrary to the public interest unless they are located in, on, or over an Outstanding Florida Water (OFW) or significantly degrade an OFW, in which case the project must be clearly in the public interest. No part of the project is located within an OFW. Balancing the public interest test factors, the project will not be contrary to the public interest. 40C-4.302(1)(a)1. - The project will not adversely affect the public health, safety, or welfare or the property of others because the surface water management system is designed in accordance with District criteria, the post-development peak rate of discharge is less than the pre-development peak rate of discharge, and the project will not cause flooding to offsite properties. 40C-4.302(1)(a)2. - Mitigation will offset any adverse impacts of the project to the conservation of fish and wildlife or their habitats, and the BEMP is designed to prevent adverse effects on the Ravenswood eagles. Although active gopher tortoise burrows were observed on the site, the impacts to these burrows are addressed by the FFWCC’s incidental take permit. The mitigation that is required as part of that permit will adequately offset the impacts to this species. 40C-4.302(1)(a)3. - The project will not adversely affect navigation or cause harmful shoaling. The project will not adversely affect the flow of water or cause harmful erosion. The project's design includes erosion and sediment control measures. The project's design minimizes flow velocities by including flat slopes for pipes. The stormwater will be discharged through an upsized pipe, which will reduce the velocity of the water. The stormwater will discharge into a spreader swale (also called a velocity attenuation pond), which will further reduce the velocity and will prevent erosion in Wetland 1. The other findings of fact relevant to this criterion are in the section entitled "Water Quantity." See Findings 61-67, supra. 40C-4.302(1)(a)4. – Development of the project will not adversely affect the legal recreational use of the project site. (Illegal use by trespassers should not be considered under this criterion.) There also will not be any adverse impact on recreational use in the vicinity of the project site. Wetlands 1 and 5 may provide benefit to marine productivity by supplying detritus to the marine habitat, and these wetlands will remain. 40C-4.302(1)(a)5. - The project will be of a permanent nature except for the temporary impacts to Wetland 1. Mitigation will offset the temporary adverse impacts. 40C-4.302(1)(a)6. - The District found no archeological or historical resources on the site, and the District received information from the Division of Historical Resources indicating there would be no adverse impacts from this project to significant historical or archeological resources. 40C-4.302(1)(a)7. - Considering the mitigation proposal, and the proposed BEMP, there will be no adverse effects on the current condition and relative value of functions being performed by areas affected by the proposed project. The proposed project is no worse than neutral measured against any one of these criteria, individually. For that reason, it must be determined that, on balance, consideration these factors indicates that the project is not contrary to the public interest. Other 40C-4.302 Criteria The proposed mitigation is located within the same drainage basin as the project and offsets the adverse impacts so the project would not cause an unacceptable cumulative impact. The project is not located in or near Class II waters. The project does not contain seawalls and is not located in an estuary or lagoon. The District reviewed a dredge and fill violation that occurred on the project site and was handled by the Department of Environmental Regulation (DER) in 1989. The Ginns owned the property with others in 1989. Although they did not conduct the activity that caused the violation, they took responsibility for resolving the matter in a timely manner through entry of a Consent Order. The evidence was that they complied with the terms of the Consent Order. Applicants' Exhibit 30K was a letter from DER dated February 13, 1991, verifying compliance based on a site inspection. Inexplicably, the file reference number did not match the number on the Consent Order. But Mr. Ginn testified that he has heard nothing since concerning the matter either from DER, or its successor agency (the Department of Environmental Protection), or from the District. The evidence was that the Ginns have not violated any rules described in Florida Administrative Code Rule 40C- 4.302(2). There also was no evidence of any other DER or DEP violations after 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to Jay and Linda Ginn ERP number 40-109-81153-1, subject to the conditions set forth in District Exhibits 1, 2, and 10. DONE AND ENTERED this 16th day of April, 2004, 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 16th day of April, 2004.
The Issue This is a challenge to certain administrative rules adopted by the St. Johns River Water Management District relating to permitting criteria for isolated wetlands. Section 373.414, F.S. mandates that permitting criteria for isolated wetlands be adopted by water management districts, by rule, by March 31, 1987. The statute also includes four more specific requirements for those rules. Petitioners contend that St. Johns River Water Management District Rule Chapter 40C-4, F.A.C. and the Applicant's Handbook, Management and Storage of Surface Waters, adopted as a rule by reference, fail to comply with the statutory mandate and are an invalid exercise of delegated legislative authority by the District. Respondent, St. Johns River Water Management District, contends that its rules comply with Section 373.414, F.S.. St. Johns River Water Management District contests the standing of Petitioner, the Florida Wildlife Federation, Inc. Intervenors, E.I. Du Pont De Nemours and Company, Inc. and Associated Minerals (USA), Inc., support the District's position and contest the standing of both Petitioners.
Findings Of Fact Petitioner, Sierra Club, Inc., (Sierra) is a non-profit corporation registered to do business within the state of Florida. It is an international organization, with regional committees, state chapters, and local regional groups. The Florida chapter has 15 regional groups, several of which are located within the jurisdictional boundaries of the St. Johns River Water Management District (SJRWMD). About 6,000 members live within the boundaries of the SJRWMD. The overall purpose of Sierra is to explore, enjoy and protect the natural resources of the earth. Sierra commonly offers outings for the enjoyment and education of its members and the general public. These involve traveling, hiking, birdwatching and other wildlife observation. Part of the outings program includes hiking and viewing of isolated wetlands and wildlife dependent on those wetlands. These outings take place within the SJRWMD. Some Sierra members are actively involved in work related to isolated wetlands, including studies, consulting, and managing of wetlands, some of which are located within the SJRWMD. The Florida Wildlife Federation, Inc. (FWF) is a non-profit corporation registered to do business in the state of Florida. It is comprised of organizations and individual members who support the wise use and management of Florida's natural resources. Sportsmen and naturalists who belong to the club are involved in hunting, fishing, hiking, birdwatching, nature photography and other activities loosely called "naturalizing". These activities take place within SJRWMD boundaries and rely on wildlife species which live in, or are dependent upon, isolated wetlands. FWF attracts membership by publicity of its existence and purpose directed to sportsmen and naturalists. Respondent, SJRWMD, is a political subdivision of the state of Florida, with the authority to regulate, through its permitting process, the management and storage of surface waters (MSSW) within its designated geographical boundaries, pursuant to Part IV of Chapter 373, F.S. Prior to adoption of the administrative rules in issue in this proceeding, the Florida Department of Environmental Regulation (DER) delegated to Respondent the responsibility for administration of its stormwater rule. Intervenors conduct heavy metal mining operations within the District. These mining operations are regulated pursuant to Chapter 40C-4, F.A.C. and the Applicant's Handbook. Virtually all mining activities exceed existing permitting thresholds and all District wetland criteria apply to the activities. Since 1983, SJRWMD has been regulating wetlands and wetland MSSW impacts, including isolated wetlands, throughout its 19-county area. The rules adopted in 1983 included all wetlands, both isolated and non-isolated. In 1986, the legislature created Section 373.414, F.S., which provided as follows: 373.414 Wetlands.-- By March 31, 1987, for those water management districts to which the department has delegated the responsibility for administration of its stormwater rule, each district shall adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department for purposes of regulation of dredging and filling. The rule shall include: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. This section does not affect the authority of the water management districts to regulate impacts on water quality and water quantity. Until a water management district has adopted a rule to implement the provisions of subsection (1), review of fish and wildlife impacts in small isolated wetlands shall be limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. Section 373.414(3), F.S. (1986) was repealed effective March 31, 1987, the deadline by which the districts were to have their own isolated wetlands rules in place. Sections 373.414(1) and (2), F.S. remain in effect. "Wetlands" is defined in SJRWMD's MSSW rule as: ...hydrologically sensitive areas which are identified by being inundated or saturated by surface or groundwater with a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Rule 40C-4.021(11), F.A.C. This definition is repeated in Section 10.7.3 of the Applicant's Handbook. Section 10.7.3 also provides: Wetlands are important components of the water resource because they serve as spawning, nursery and feeding habitats for many species of fish and wildlife, and because they provide important flood storage and water quality benefits. Not all wetlands provide these benefits, nor do they provide them to the same extent. A wide array of physical and chemical factors affect the functioning of any wetland community. * * * Small isolated wetlands are totally unique biological systems. They are not small versions of large wetlands. They play two major roles in animal ecology: to harbor diverse species that use the habitat for their entire life cycle, and to provide a productive resource for transient species. If a wetland is truly isolated, its fish population is generally limited to the smaller-bodied, smaller-mouthed varieties which are limited in their predatory abilities. This permits the abundance of amphibians and invertebrates not found in larger, more permanent wetlands where the fish would rapidly decimate the population. Amphibians are a cornerstone of the vertebrate food chain. They are food for a variety of snakes, which in turn, are food for hawks. Wading birds find easy prey as the isolated wetlands begin drying up and contracting. The entire cycle of the pond, from fully wet to dry, is significant. Ambystoma tigrinum (tiger salamanders) are hatched and raised in isolated wetlands; they leave, and must return to breed in the same pond. They have a strong homing instinct. Ignorant of intervening events, they are often found spending their honeymoon dodging cars on an apartment complex pavement, seeking in vain the pond of their birth. The SJRWMD adopted Chapter 40C-4, F.A.C. and its Applicant's Handbook to regulate the construction, operation, alteration, removal or abandonment of surface water management systems, to insure that those activities will not harm the water resources of the District and insure that they are consistent with the objectives of the District. Activities which do not meet certain thresholds established in Rule 40C-4.041, F.A.C. do not require a District MSSW permit, including those activities impacting an isolated wetland. The threshold provisions pre-date Section 373.414, F.S. and still apply. The threshold provisions of Rule 40C-4.041(2)(b), F.A.C., challenged by Petitioners, state as follows: 40C-4.041 Permit Required. * * * (b) An individual or general permit is required prior to the construction, alteration, operation, maintenance, abandonment or removal of a surface water management system which: Is capable of impounding a volume of water of forty or more acre feet; or Serves a project with a total land area equal to or exceeding forty acres; or Serves a project with a total land area equal to or exceeding ten acres, when any part of the project is located within the Wekiva River Hydrologic Basin north of State Road 436; or Provides for the placement of twelve or more acres of impervious surface which constitutes 40 or more percent of the total land area; or Provides for the placement of one half acre or more of impervious surface, when any of the impervious surface is located within the Wekiva river Hydrologic Basin north of State Road 436; or Contains a traversing work which traverses: A stream or other watercourse with a drainage area of five or more square miles upstream from the traversing work; or An impoundment with more than ten acres of surface area; or Contains a surface water management system which serves an area of five or more contiguous acres of a hydrologically sensitive area with a direct hydrologic connection to: A stream or other watercourse with a drainage area of five or more square miles; or An impoundment with no outfall, which is not wholly owned by the applicant and which is ten acres or greater in size; or A hydrologically sensitive area not wholly owned by the applicant. Is wholly or partially located within the Wekiva River Hydrologic Basin's Riparian Habitat Protection Zone as described in paragraph 40C-41.063(3)(e). The same threshold provisions are contained in Section 3.3.1, Applicant's Handbook, also challenged by Petitioners. In 1987, after passage of Section 373.414, F.S. the District amended its wetland regulations to provide that all wetlands would be evaluated, regardless of size, within the already-established permit thresholds: A wide variety of wetland habitats exist within the St. Johns River Water Management District. The functions which these habitats serve are dependent on many factors. Biological and hydrological evidence demonstrate that size is not the single determinant of wetland value. Since the District bases its evaluation on wetland functions, the District will review impacts to all wetlands (a zero acre threshold will be employed) in reviewing impacts to fish and wildlife and their habitats for systems requiring a permit from the District. * * * 10.7.5 Wetland Evaluation Applicant's Handbook As the result of an objection by the Joint Administrative Procedures Committee (JAPC) stating that the District had failed to comply with Section 373.414(1)(a), F.S., the District amended the zero acre review threshold for isolated wetlands and adopted a 0.5 acre review threshold, based upon biological investigations indicating that wetlands below this size have minimal fish and wildlife value. In all applications for MSSW permits under Chapter 40C-4, the District reviews impacts to isolated wetlands unless those wetlands are less than 0.5 acre in size and are not used by threatened or endangered species. No permit application, however, is required for projects under the thresholds described in paragraph 13, above, even though those projects might include wetlands larger than 0.5 acres. Staff of the SJRWMD concedes that the non-regulated isolated wetlands might have significant value and agrees with Petitioner's experts that isolated wetlands found in projects below the Rule 40C-4.041(2)(b), F.A.C. thresholds (called "get-in-the-door" thresholds) could have more than minimal fish and wildlife value. Petitioners challenge the entire Chapter 40C-4, F.A.C. and Applicant's Handbook for non-compliance with Section 373.414(1)(d), F.S. The SJRWMD does not consider, and nothing in its rules require consideration of, cumulative impacts of a series of isolated wetlands included in below-threshold projects even though there could be a negative cumulative impact from the loss of those wetlands. Petitioners challenge section 10.7.4 Wetland Review Criteria, Applicants Handbook, to the extent that it may limit consideration of impacts to isolated wetlands to off-site aquatic and wetland dependent species, unless threatened or endangered species are involved. This section provides in pertinent part: 10.7.4 Wetland Review Criteria In determining whether a system will meet the objective contained in Paragraph 9.1.1(j) and that part of the criterion contained in Paragraph 10.2.1(e) regarding hydrologically related environmental functions, the District will, except when threatened or endangered species are involved, consider only the impacts to off-site aquatic and wetland dependent species relative to the functions currently being provided by the wetland to these types of fish and wildlife. This assessment of off-site impacts is based upon a review of pertinent scientific literature, soils and hydrologic information, and a general understanding of the ecological resources of the site. Generally, site specific biological data collection is not required. An applicant must provide reasonable assurance that a proposed system will not cause adverse off-site changes in: the habitat of an aquatic and wetland dependent species, the abundance and diversity of aquatic and wetland dependent species, and the food sources of aquatic and wetland dependent species. The only exception to limiting review of a system under this Subsection to off-site impacts is where wetlands are used or reasonable scientific judgement would indicate use by threatened or endangered species listed in Sections 39-27.003 and 39-27.004, F.A.C., which are aquatic or wetland dependent. In this instance, both off-site and on-site impacts will be assessed. Petitioners also challenge section 16.1.3(a), Applicant's Handbook, to the extent that it may limit mitigation requirements to off-site impacts. If a project as initially proposed is subject to Respondent's surface water permitting requirements, and as initially proposed fails to meet wetland review criteria, mitigation may be considered as a means of bringing the proposed project within permitting requirements. The challenged portion provides: 16.1.3 Mitigation (a) Mitigation is defined here as action or actions taken to offset the adverse effects of a system on off-site functions and in the care of threatened or endangered species, to offset the adverse effects of a system on on-site and off-site functions. Although there may be a difference in degree of functions performed by isolated wetlands on site, as compared to the degree of functions performed by isolated wetlands off-site, the difference in negligible. Adverse ecological effects on-site will also be felt off-site. In developing its criteria SJRWMD staff could not conceive of a situation where a functioning wetland or isolated wetland would be eliminated and not have an off-site impact. Finally, Petitioners challenge the last paragraph of Section 16.1.4, Applicant's Handbook, related to mitigation for mining projects that fall under the jurisdiction of the Department of Natural Resources (DNR) pursuant to section 378.601, F.S. (heavy mineral extraction). Section 16.1.4, Wetland Creation, Applicant's Handbook, provides guidelines to be used to estimate the extent of wetland creation which may mitigate for the destruction of a unit of wetland. The challenged portion of the section provides: For lands and mining activities that fall under the jurisdiction of the Florida Department of Natural Resources pursuant to section 378.601, F.S. mitigation or compensation plans that are consistent with the land reclamation policies and criteria approved by that agency will be considered by the District as satisfactory mitigation. (emphasis added). The District is not required to allow mitigation if impacts are so substantial that they cannot be offset. If the District does not consider a DNR reclamation plan as sufficient, the District applies its wetland review criteria in section 10.7.4, Applicant's Handbook. For heavy mineral mining, DNR requires one-to-one mitigation for every wetland, regardless of type, that is disturbed by the zoning activity, and the restoration of wildlife habitat, including threatened or endangered species. Heavy mineral mining, in contrast to other mining such as phosphate, has far less impact on the environment. This is reflected in the success which has been experienced in restoring wetlands disturbed by heavy mineral mining.
