The Issue The issues to be resolved in this proceedings concern whether Environmental Resource Permit (ERP) No. 4-109-0216-ERP, should be modified to allow construction and operation of a surface water management system (project) related to the construction and operation of single-family homes on "Marshall Creek" (Parcel D) in a manner consistent with the standards for issuance of an ERP in accordance with Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.
Findings Of Fact The Project The project is a 29.9-acre residential development and associated stormwater system in a wetland mitigation area known as "Parcel D." It lies within the much larger Marshall Creek DRI in St. Johns County, Florida, bounded on the northeast by Marshall Creek, on the south and southeast by a previously permitted golf course holes sixteen and seventeen, and on the north by the "Loop Road." The project consists of thirty residential lots of approximately one-half acre in size; a short segment of Loop Road to access Parcel D; an internal road system; expansion of previously permitted Pond N, a wet detention stormwater management pond lying north of the Loop Road and wetland mitigation areas. Approximately 1.15 acres of wetlands are located on the Parcel D site. The project plan calls for filling 0.63 acres of the wetlands for purposes of constructing a road and residential lots for Parcel D. Part of that 0.63-acre impact area, 0.11 acres, is comprised of a 760-foot-long, narrow drainageway, with 0.52 acres of adjacent wetland. Downstream of the fill area, 0.52 acres of higher quality wetland is to be preserved. Hines proposes to preserve 4.5 acres of existing wetland and 2.49 acres of upland, as well as to create .82 acres of forested wetland as mitigation for the proposed impact of the project. Additionally, as part of the project, Hines will implement a nutrient and pesticide management plan. The only pesticides to be used at the project will be approved by the Department of Agriculture for use with soil types prevailing at the site and only pesticides approved by the Environmental Protection Agency may be used on the site. All pesticides to be used on the project site must be selected to minimize impacts to ground and surface water, including having a maximum 70-day half-life. Stormwater Management System The majority of surface runoff from Parcel D will be diverted to a stormwater collection system and thence through drainage pipes and a swale into Phase I of Pond N. After treatment in Pond N, the water will discharge to an upland area adjacent to wetlands associated with Marshall Creek and then flow into Marshall Creek. The system will discharge to Marshall Creek. In addition to the area served by Pond N, a portion of lots fourteen though twenty drain through a vegetated, natural buffer zone and ultimately through the soil into Marshall Creek. Water quality treatment for that stormwater runoff will be achieved by percolating water into the ground and allowing natural soil treatment. The fifty-foot, vegetated, natural buffer is adequate to treat the stormwater runoff to water quality standards for Lots 14, 15 and 20. Lots 16, 17, 18 and 19, will have only a twenty-five foot buffer, so additional measures must be adopted for those lots to require either that the owners of them direct all runoff from the roofs and driveways of houses to be constructed on those lots to the collection system for Pond N or placement of an additional twenty-five foot barrier of xeriscape plants, with all non- vegetated areas being mulched, with no pesticide or fertilizer use. An additional mandatory permit condition, specifying that either of these measures must be employed for Lots 16, 17, 18 and 19, is necessary to ensure that water quality standards will be met. Pond N is a wet detention-type stormwater pond. Wet detention systems function similarly to natural lakes and are permanently wet, with a depth of six to twelve feet. When stormwater enters a wet detention pond it mixes with existing water and physical, chemical and biological processes work to remove the pollutants from the stormwater. Pond N is designed for a twenty-five year, twenty-four- hour storm event (design storm). The pre-development peak rate of discharge from the Pond N drainage area for the design storm event is forty cubic feet per second. The post-development peak rate of discharge for the design storm event will be approximately twenty-eight cubic feet per second. The discharge rate for the less severe, "mean annual storm" would be approximately eleven cubic feet per second, pre-development peak rate and the post-development peak rate of discharge would be approximately five cubic feet per second. Consequently, the post-development peak rate of discharge does not exceed the pre- development peak rate of discharge. Pond N is designed to meet the engineering requirements of Rule 40C-42.026(4), Florida Administrative Code. Because the pond is not designed with a littoral zone, the permanent pool volume has been increased by fifty-percent. Additionally, because Pond N discharges to the Class II waters of Marshall Creek, an additional fifty-percent of treatment volume is included in the pond design. The system design addresses surface water velocity and erosion issues through incorporation of best management practices promulgated by the District to prevent erosion and sedimentation, including; designing side slopes of 4:1; siding and seeding disturbed areas to stabilize soil; and the use of riprap at the outfall from Pond N. During construction, short- term water quality impacts will be addressed through installation of silt fences and hay bales. The majority of the eighteen-acre drainage basin which flows into the Parcel D wetland lies to the south and southwest of Parcel D. In accordance with the prior permit, water from those off-site acres will be intercepted and routed to stormwater ponds serving golf course holes sixteen and seventeen. The system design will prevent adverse impacts to the hydroperiod of remaining on-site and off-site wetlands. The remaining wetlands will be hydrated through groundwater flow. Surface waters will continue to flow to the wetlands adjacent to lots fourteen through twenty because drainage from those lots will be directed across a vegetated, natural buffer to those wetlands. There is no diversion of water from the natural drainage basin, because Pond N discharges to a wetland adjacent to Marshall Creek, slightly upstream from the current discharge point for the wetland which is to be impacted. This ensures that Marshall Creek will continue to receive that fresh-water source. An underground "PVC cut-off wall" will be installed around Pond N to ensure that the pond will not draw down the water table below the wetlands near the pond. Pond N has been designed to treat stormwater prior to discharge, in part to remove turbidity and sedimentation. This means that discharge from the pond will not carry sediment and that the system will not result in shoaling. There will be no septic tanks in the project. The system is a gravity flow system with no mechanical or moving parts. It will be constructed in accordance with standard industry materials readily available and there will be nothing extraordinary about its design or operation. The system is capable of being effectively operated and maintained and the owner of the system will be the Marshall Creek Community Development District (CDD). Water Quality Water entering Pond N will have a residence time of approximately 200 days or about fifteen times higher than the design criteria listed in the below-cited rule. During that time, the treatment and removal process described herein will occur, removing most of the pollutants. Discharge from the pond will enter Marshall Creek, a Class II water body. The discharges must therefore meet Class II water quality numerical and anti-degradation standards. The design for the pond complies with the design criteria for wet detention systems listed in Rule 40C-42.026(4), Florida Administrative Code. In addition to meeting applicable design criteria, the potential discharge will meet water quality standards. The pond will have low levels of nitrogen and phosphorous resulting in low algae production in the pond. The long residence time of the water in the pond will provide an adequate amount of time for pesticides to volatilize or degrade, minimizing the potential for pesticide discharge. Due to the clear characteristics of the water column, neither thermal stratification nor chemical stratification are expected. Periodically, fecal coliform and total coliform levels are exceeded under current, pre-development conditions. These are common natural background conditions. Because the detention time in the pond will be an average of 200 days, and because the life span of fecal coliform bacteria is approximately seven to fourteen days the levels for coliforms in the pond will be very low. Discharges from the pond will enhance water quality of the Class II receiving waters because the levels of fecal coliform and total coliform will be reduced. The discharge will be characterized by approximately 100 micrograms per liter total nitrogen, compared with a background of 250 micrograms per liter presently existing in the receiving waters of Marshall Creek. The discharge will contain approximately three micrograms per liter of phosphorous, compared with sixty-three micrograms per liter presently existing in Marshall Creek. Total suspended solids in the discharge will be less than one-milligram per liter compared with seventy-two milligrams per liter in the present waters of Marshall Creek. Biochemical oxygen demand will be approximately a 0.3 level in the discharge, compared with a level of 2.4 in Marshall Creek. Consequently, the water quality discharging from the pond will be of better quality than the water in Marshall Creek or the water discharging from the wetland today. The pollutant loading in the discharge from the stormwater management system will have water quality values several times lower than pre-development discharges from the same site. Comparison of pre-development and post-development mass loadings of pollutants demonstrates that post-development discharges will be substantially lower than pre-development discharges. Currently, Marshall Creek periodically does not meet Class II water quality standards for dissolved oxygen. Construction and operation of the project will improve water quality in the creek concerning dissolved oxygen values because discharges from Pond N will be subjected to additional aeration. This results from design features such as discharge from the surface of the system, where the highest level of dissolved oxygen exists, and the discharge water draining through an orifice and then free falling to a stormwater structure, providing additional aeration. Discharges from the system will maintain existing uses of the Class II waters of Marshall Creek because there will be no degradation of water quality. Discharges will not cause new violations or contribute to existing violations because the discharge from the system will contain less pollutant loading for coliform and will be at a higher quality or value for dissolved oxygen. Discharges from the system as to water quality will not adversely affect marine fisheries or marine productivity because the water will be clear so there will be no potential for thermal stratification; the post-development discharges will remain freshwater so there will be no change to the salinity regime; and the gradual pre-development discharges will be replicated in post-development discharges. Several factors minimize potential for discharge of pesticide related pollutants: (1) only EPA-approved pesticides can be used; (2) only pesticides approved for site-specific soils can be used; (3) pesticides must be selected so as to minimize impacts on surface and groundwater; (4) pesticides must have a maximum half-life of 70 days; and (5) the system design will maximize such pollutant removal. Archaeological Resources The applicant conducted an archaeological resource assessment of the project and area. This was intended to locate and define the boundaries of any historical or archaeological sites and to assess any site, if such exists, as to its potential eligibility for listing in the National Register of Historic Places (National Register). Only a portion of one archaeological site was located on the project tract. Site 8SJ3473, according to witness Anne Stokes, an expert in the field of archaeological assessment, contains trace artifacts dating to the so-called "Orange Period," a time horizon for human archaeological pre-history in Florida dating to approximately 2,300 B.C. The site may have been only a small campsite, however, since only five pottery fragments and two chert flakes, residuals from tool-making were found. Moreover, there is little possibility that the site would add to knowledge concerning the Orange Period or pre-history because it is a very common type of site for northeast Florida and is not an extensive village site. There are likely other campsites around and very few artifacts were found. No artifacts were found which would associate the site with historic events or persons. The applicant provided the findings of its cultural resource assessment, made by Dr. Stokes, to the Florida Division of Historical Resources. That agency is charged with the responsibility of reviewing cultural resource assessments to determine if significant historic or archaeological resources will be impacted. The division reviewed the survey techniques used by Dr. Stokes, including shovel testing, sub-surface testing and pedestrian walk-over and investigation. The division determined that the site in question is not of a significant historical or archaeological nature as a resource because it does not meet any of the four criteria for inclusion in the National Register.1 Thus the referenced agency determined that the site in question is not a significant historical or archaeological resource and that construction may proceed in that area without further investigation, insofar as its regulatory jurisdiction is concerned. Wetlands The wetlands to be impacted by the project consist of a 1,000 foot drainage-way made up of a 0.11 acre open-water channel, approximately four feet wide, and an adjacent vegetated wetland area of approximately 0.52 acres containing fewer than 30 trees. The open-water channel is intermittent in that it flows during periods of heavy rainfall and recedes to a series of small, standing pools of water during drier periods. The Parcel D wetland is hydrologically connected to Marshall Creek, although its ephemeral nature means that the connection does not always flow. The wetland at times consists only of isolated pools that do not connect it to Marshall Creek. Although it provides detrital material export, that function is negligible because the productivity of the adjacent marsh is so much greater than that of the wetland with its very small drainage area. Because of the intermittent flow in the wetland, base flow maintenance and nursery habitat functions are not attributed to the wetland. The Parcel D wetland is not unique. The predominant tree species and the small amount of vegetated wetland are water oak and swamp bay. Faunal utilization of the wetland is negligible. The wetland drainage-way functions like a ditch because it lacks the typical characteristics of a creek, such as a swampy, hardwood floodplain headwater system that channelizes and contains adjacent hardwood floodplains. The location of the wetland is an area designated by the St. Johns County comprehensive plan as a development parcel. The Florida Natural Areas Inventories maps indicate that the wetland is not within any unique wildlife or vegetative habitats. The wetland is to be impacted as a freshwater system and is not located in a lagoon or estuary. It contains no vegetation that is consistent with a saltwater wetland. The retaining wall at the end of the impact area is located 1.7 feet above the mean high water line. Wetland Impacts The proposed 0.63 acre wetland impact area will run approximately 760 linear feet from the existing trail road to the proposed retaining wall. If the wetland were preserved, development would surround the wetland, adversely affecting its long-term functions. Mitigation of the wetland functions is proposed, which will provide greater long-term ecological value than the wetland to be adversely affected. The wetland to be impacted does not provide a unique or special wetland function or good habitat source for fish or wildlife. The wetland does not provide the thick cover that would make it valuable as Black Bear habitat and is so narrow and ephemeral that it would not provide good habitat for aquatic-dependent and wetland-dependent species. Its does not, for instance, provide good habitat for woodstorks due to the lack of a fish population and its closed- in tree canopy. Minnow sized fish (Gambusia) and crabs were seen in portions of the wetland, but those areas are downstream of the proposed area of impact. Mitigation Mitigation is offered as compensation for any wetland impacts as part of an overall mitigation plan for the Marshall Creek DRI. The overall mitigation plan is described in the development order, the mitigation offered for the subject permit and mitigation required by prior permits. A total of 27 acres of the more than 287 acres of wetlands in the total 1,300-acre DRI tract are anticipated to be impacted by the DRI. Approximately 14.5 acres of impacted area out of that 27 acres has already been previously authorized by prior permits. The overall mitigation plan for the DRI as a whole will preserve all of the remaining wetlands in the DRI after development occurs. Approximately one-half of that preserved area already has been committed to preservation as a condition of prior permits not at issue in this case. Also, as part of prior permitting, wetland creation areas have been required, as well as preserved upland buffers which further protect the preserved wetlands. The mitigation area for the project lies within the Tolomato River Basin. The development order governing the total DRI requires that 66 acres of uplands must also be preserved adjacent to preserved wetlands. The overall mitigation plan for the DRI preserves or enhances approximately 260 acres of wetlands; preserves a minimum of 66 acres of uplands and creates enhancement or restores additional wetlands to offset wetland impacts. The preserved wetlands and uplands constitute the majority of Marshall Creek, and Stokes Creek which are tributaries of the Tolomato River Basin, a designated Outstanding Florida Water (OFW). Preservation of these areas prevents them from being timbered and ensures that they will not be developed in the future. The overall DRI mitigation plan provides regional ecological value because it encompasses wetlands and uplands they are adjacent to and in close proximity to the following regionally significant resources: (1) the 55,000 acre Guana- Tolomato-Matanzas National Estuarine Research Reserve; (2) the Guana River State Park; (3) the Guana Wildlife Management Area; (4) an aquatic preserve; (5) an OFW; and (6) the 22,000 acre Cummer Tract Preserve. The mitigation plan will provide for a wildlife corridor between these resources, preserve their habitat and insure protection of the water quality for these regionally significant resources. The mitigation offered to offset wetland impacts associated with Parcel D includes: (1) wetland preservation of 0.52 acres of bottom land forest along the northeast property boundary (wetland EP); (2) wetland preservation of 3.98 acres of bottom land forest on a tributary of Marshall Creek contained in the DRI boundaries (Wetlands EEE and HHH); (3) upland preservation of 2.49 acres, including a 25-foot buffer along the preserved Wetlands EEE and HHH and a 50-foot buffer adjacent to Marshall Creek and preserved Wetland EP; (4) a wetland creation area of 0.82 acres, contiguous with the wetland preservation area; and (5) an upland buffer located adjacent to the wetland creation area. The wetland creation area will be graded to match the grades of the adjacent bottomland swamp and planted with wetland tree species. Small ponds of varying depths will be constructed in the wetland creation area to provide varying hydrologic conditions similar to those of the wetland to be impacted. The wetland creation area is designed so as to not de-water the adjacent wetlands. All of the mitigation lands will be encumbered with a conservation easement consistent with the requirements of Section 704.06, Florida Statutes. The proposed mitigation will offset the wetland functions and values lost through the wetland impact on Parcel D. The wetland creation is designed to mimic the functions of the impact area, but is located within a larger ecological system that includes hardwood wetland headwaters. The long-term ecological value of the mitigation area will be greater than the long-term value of the wetland to be impacted because; (1) the mitigation area is part of a larger ecological system; (2) the mitigation area is part of an intact wetland system; (3) the wetland to be impacted will be unlikely to maintain its functions in the long-term; and (4) the mitigation area provides additional habitat for animal species not present in the wetland to be impacted. Certain features will prevent adverse secondary impacts in the vicinity of the roadway such as: (1) a retaining wall which would prevent migration of wetland animals onto the road; (2) a guard rail to prevent people from moving from the uplands into wetlands; and (3) a vegetated hedge to prevent intrusion of light and noise caused by automotive use of the roadway.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered granting the subject application for modification of Permit 4-109-0216A-ERP so as to allow construction and operation of the Parcel D project at issue, with the addition of the inclusion of a supplemental permit condition regarding the vegetated natural buffers for Lots 16 through 19 described and determined above. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of April, 2001.
The Issue The issue to be determined is whether Respondent Land Trust #97-12 (“Land Trust”) is entitled to an Environmental Resource Permit (“ERP”) for its proposed project on Perico Island in Bradenton, Florida.
Findings Of Fact The Parties Petitioner Joseph McClash is a resident of Bradenton, Florida, who uses the waters in the vicinity of the project for fishing, crabbing, boating, and wildlife observation. Petitioner Manasota-88, Inc., is an active Florida nonprofit corporation for more than 20 years. Manasota-88 has approximately 530 members, most of whom (approximately 300) reside in Manatee County. The mission and goal of Manasota-88 includes the protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Petitioner FISH is an active Florida nonprofit corporation in existence since 1991. FISH owns real property in unincorporated Cortez in Manatee County and maintains a Manatee County mailing address. FISH has more than 190 members and more than 150 of them own property or reside in Manatee County. The mission and goal of FISH includes protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Intervenor Suncoast Waterkeeper, Inc., is an active Florida nonprofit corporation in existence since 2012. The mission of Suncoast Waterkeeper is “to protect and restore the Suncoast’s waterways through enforcement, fieldwork, advocacy, and environmental education for the benefit of the communities that rely upon coastal resources.” Suncoast Waterkeeper provided the names and addresses of 25 members residing in Manatee County. A substantial number of the members of Suncoast Waterkeeper use the area and waters near the proposed activity for nature-based activities, including nature observation, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Intervenor Sierra Club, Inc., is a national organization that is a California corporation registered as a foreign nonprofit corporation in Florida. Sierra Club has been permitted to conduct business in Florida since 1982. The mission of Sierra Club includes protection of the natural resources of Manatee County, which include Anna Maria Sound and Perico Island. Sierra Club provided the names and addresses of 26 members who live in Manatee County. A substantial number of the members of Sierra Club use the area and waters near the proposed project for nature-based activities, including observing native flora and fauna, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Respondent Land Trust is the applicant for the challenged ERP and owns the property on which the proposed project would be constructed. Respondent District is an independent special district of the State of Florida created, granted powers, and assigned duties under chapter 373, Florida Statutes, including the regulation of activities in surface waters. The proposed project is within the boundaries of the District. The Project Site The project site is 3.46 acres of a 40.36-acre parcel owned by Land Trust. The parcel includes uplands, wetlands, and submerged lands, on or seaward of Perico Island, next to Anna Maria Sound, which is part of Lower Tampa Bay. Anna Maria Sound is an Outstanding Florida Water. The project site is adjacent to a large multi-family residential development called Harbour Isles, which is currently under construction. Access to the Land Trust property is gained through this development. The Land Trust parcel contains approximately seven acres of high quality mangroves along the shoreline of Anna Maria Sound. They are mostly black and red mangroves, with some white mangroves. The mangroves on the project site amount to a total of 1.9 acres. Mangroves have high biological productivity and are important to estuarine food webs. Mangroves provide nesting, roosting, foraging, and nursery functions for many species of wildlife. Mangroves also provide a buffer from storm surge and help to stabilize shorelines. Wildlife species found on the project site include ibises, pelicans, egrets, spoonbills, mangrove cuckoos, bay scallops, fiddler crabs, mangrove tree crabs, horseshoe crabs, marsh rabbits, raccoons, mangrove bees, and a variety of fish. No endangered species have been observed on the project site, but mangroves are used by a number of listed species. The Proposed Project The proposed project is to construct a retaining wall, place fill behind the wall to create buildable lots for four single-family homes, construct an access driveway, and install a stormwater management facility. The stormwater management facility is a “Stormtech” system, which is an underground system usually used in situations where there is insufficient area to accommodate a stormwater pond. Riprap would be placed on the waterward side of the retaining wall. The retaining wall would be more than 35 feet landward of the mean high water line in most areas. Petitioners contend the proposed retaining wall is a vertical seawall, which is not allowed in an estuary pursuant to section 373.414(5). “Vertical seawall” is defined in section 2.0(a)(111), Volume I, of the Environmental Resource Permit Applicant’s Handbook (“Applicants Handbook”) as a seawall which is steeper than 75 degrees to the horizontal. It further states, “A seawall with sloping riprap covering the waterward face to the mean high water line shall not be considered a vertical seawall.” The retaining wall is vertical, but it would have riprap covering its waterward face and installed at a slope of 70 degrees. The retaining wall is not a vertical seawall under the District’s definition. Stormwater Management Stormwater in excess of the Stormtech system’s design capacity would discharge into Anna Maria Sound. Because Anna Maria Sound is an Outstanding Florida Water, District design criteria require that an additional 50 percent of treatment volume be provided. The Stormtech system meets the District’s design criteria for managing water quality and water quantity. Projects which meet the District’s design criteria are presumed to provide reasonable assurance of compliance with state water quality standards. Petitioners’ evidence was not sufficient to rebut this presumption. Petitioners contend the District waiver of water quality certification for the proposed project means that Land Trust was not required to meet water quality standards. However, that was a misunderstanding of the certification process. All state water quality criteria are applicable. Petitioners contend water quality monitoring should be imposed for this project. However, section 4.7 of the Applicant’s Handbook, Volume II, provides that if the applicant meets the District’s design criteria, water quality monitoring is not required. Petitioners failed to prove the proposed stormwater management system cannot be constructed, operated, or maintained in compliance with applicable criteria. Wetland Impacts In order to create buildable lots, 1.05 acres of the 1.9 acres of mangroves on the project site would be removed and replaced with fill. A swath of mangroves approximately 40 feet wide would remain waterward of the retaining wall. The proposed direct and secondary impacts to the functions provided by wetlands were evaluated using the Uniform Mitigation Assessment Method (“UMAM”) as required by Florida Administrative Code Chapter 62-345. UMAM is used to quantify the loss of functions performed by wetlands considering: current condition, hydrologic connection, uniqueness, location, fish and wildlife utilization, time lag, and mitigation risk. The District determined the filling of 1.05 acres of wetlands would result in a functional loss of 0.81 units and the secondary impacts resulting from installation of the retaining wall would result in a loss of 0.09 units for a total functional loss of 0.9 units. Petitioners contend the functional loss would be greater. Petitioners contend the wetland delineation performed by Land Trust and confirmed by the District did not extend as far landward as the hydric soils and, therefore, the total acreage of affected wetlands would be greater. However, Petitioners did not produce a wetland delineation for the project site, and their evidence was not sufficient to rebut Land Trust's prima facie evidence on this issue. Petitioners’ experts believe the secondary impacts caused by the proposed project would be greater than calculated, including fragmentation of the shoreline mangrove system, damage to the roots of mangroves near the retaining wall, and scouring effects caused by wave action associated with the retaining wall. Respondents assert that the analysis by Petitioners’ expert Jacqueline Cook relied on federal methodology and that “the science used in her analysis is not contained in the state or district rule criteria.” Reliance on science is always appropriate. However, Ms. Cook’s use of a federal impact assessment methodology creates doubt about whether her scoring is consistent with UMAM. Despite the unreliability of Ms. Cook’s UMAM score, it is found that Respondents’ UMAM score under-calculated secondary impacts due to scour and other effects of changed water movement that would be caused by the retaining wall. It was not explained how the loss of storm buffering and erosion prevention functions of wetlands are accounted for in the UMAM score. Elimination or Reduction of Impacts Section 10.2.1 of the Applicant’s Handbook, Volume I, states that in reviewing a project the District is to consider practicable design modifications to eliminate or reduce impacts to wetland functions. Section 10.2.1.1 explains: The term “modification” shall not be construed as including the alternative of not implementing the activity in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification that is not technically capable of being completed, is not economically viable, or that adversely affects public safety through the endangerment of lives or property is not considered “practicable.” A proposed modification need not remove all economic value of the property in order to be considered not “practicable.” Conversely, a modification need not provide the highest and best use of the property to be “practicable.” In determining whether a proposed modification is practicable, consideration shall also be given to cost of the modification compared to the environmental benefit it achieves. Land Trust originally proposed constructing a surface water retention pond. The Stormtech stormwater management system would cause less wetland impact than a retention pond. Land Trust contends the use of a retaining wall reduces wetland impacts because, otherwise, more mangroves would have to be removed to account for the slope of the waterward side of the fill area. However, this proposition assumes the appropriateness of the size of the fill area. Land Trust also contends wetland impacts are reduced by using the adjacent development to access the proposed project site, rather than creating a new road. However, the evidence did not establish that Land Trust had a practicable and preferred alternative for access. Unlike the Stormtech system, the retaining wall and access driveway were not shown to be project modifications. The proposed project would cause fewer impacts to wetlands if the fill area was reduced in size, which was not shown to be impracticable. Reducing the size of the fill area would not cause the project to be significantly different in type or function. Land Trust did not demonstrate that it implemented reasonable design modifications to eliminate or reduce impacts to wetland functions. Mitigation Land Trust proposes to purchase credits from the Tampa Bay Mitigation Bank, which is 17 miles north of the proposed project site. The Tampa Bay Mitigation Bank is in the Tampa Bay Drainage Basin. The project site is in the South Coastal Drainage Basin. Pursuant to section 10.2.8 of the Applicant’s Handbook, Volume I, if an applicant mitigates adverse impacts within the same drainage basin, the agency will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. However, if the applicant proposes to mitigate impacts in another drainage basin, factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” will be considered to determine whether the impacts are fully offset. The parties disputed whether there was connectivity between the waters near the project site and the waters at the Tampa Bay Mitigation Bank. The more persuasive evidence shows there is connectivity. There was also a dispute about the habitat range of affected species. The evidence establishes that the species found in the mangroves at the project site are also found at the mitigation bank. However, local fish and wildlife, and local biological productivity would be diminished by the proposed project. This diminution affects Petitioners’ substantial interests. The loss or reduction of storm buffering and erosion prevention functions performed by the mangroves at Perico Island cannot be mitigated for at the Tampa Bay Mitigation Bank. Cumulative impacts are unacceptable when the proposed activity, considered in conjunction with past, present, and future activities would result in a violation of state water quality standards, or significant adverse impacts to functions of wetlands or other surface waters. See § 10.2.8.1, Applicant’s Handbook, Vol. I. Section 10.2.8(b) provides that, in considering the cumulative impacts associated with a project, the District is to consider other activities which reasonably may be expected to be located within wetlands or other surface waters in the same drainage basin, based upon the local government’s comprehensive plan. Land Trust did not make a prima facie showing on this point. Land Trust could propose a similar project on another part of its property on Perico Island. Anyone owning property in the area which is designated for residential use under the City of Bradenton’s comprehensive plan and bounded by wetlands could apply to enlarge the buildable portion of the property by removing the wetlands and filling behind a retaining wall. When considering future wetland impacts in the basin which are likely to result from similar future activities, the cumulative impacts of the proposed project would result in significant adverse impacts to wetland functions in the area. Public Interest For projects located in, on, or over wetlands or other surface waters, an applicant must provide reasonable assurance that the project will not be contrary to the public interest, or if such activities significantly degrade or are within an Outstanding Florida Water, are clearly in the public interest, as determined by balancing the criteria set forth in rule 62- 330.302(1)(a), and as set forth in sections 10.2.3 through of the Applicant’s Handbook. Rule 62-330.302, which is identical to section 373.414, Florida Statutes, lists the following seven public interest balancing factors to be considered: Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The Parties stipulated that the proposed project would not have an adverse impact on public health, navigation, historical resources, archeological resources, or social costs. Land Trust proposes to give $5,000 to the City of Palmetto for an informational kiosk at the City of Palmetto’s public boat ramp. A District employee testified that this contribution made the project clearly in the public interest. Reasonable assurances were not provided that the proposed project is clearly in the public interest because of the adverse cumulative effects on the conservation of fish and wildlife, fishing and recreational values, and marine productivity of Anna Maria Sound, an Outstanding Florida Water.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Southwest Florida Water Management District issue a final order that denies the Environmental Resource Permit. DONE AND ENTERED this 25th day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2015. COPIES FURNISHED: Christian Thomas Van Hise, Esquire Abel Band, Chartered Post Office Box 49948 Sarasota, Florida 34230-6948 (eServed) Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 (eServed) Douglas P. Manson, Esquire MansonBolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606 (eServed) Joseph McClash 711 89th Street Northwest Bradenton, Florida 34209 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Justin Bloom, Esquire Post Office Box 1028 Sarasota, Florida 34230 (eServed) Robert Beltram, P.E., Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
Findings Of Fact The following findings of fact are based on the evidence presented and relate both to Fairfield's MSSW and CUP applications: Fort George Island is an approximately 900 acre island located northeast of the City of Jacksonville in Duval County, Florida. It is bounded to the north and east by the Fort George River, to the west by an extensive salt marsh, and to the south by Batten Island and the St. Johns River. The island is separated from the Atlantic Ocean by Little Talbot Island. There are presently approximately 16 homes on Fort George Island, an existing 18-hole golf course with clubhouse, the Kingsley Plantation State Park in the north and the Rollins site surface waters on the northern two-thirds of the island are Class II waters, while the waters to the south are Class III. The following factors concerning Fort George Island are of ecological significance: Existence of a large area of coastal hammock; Value of the coastal hammock for scientific research and as a food source for migrating song birds; Fact that the Island is located in an aquatic preserve; Salt marshes on the western side of the Island which are a food source for wading birds; State lands on the Island which are utilized as wildlife and plant preserve, as well as for historical purposes; Estuaries on the western side of the Island which function as primary nursery areas for commercial and sport fishery species, as well as for shrimp, oysters and crabs; Existence of commercial oyster leases on the western side of the Island; and Public use of the Island's shoreline for oystering and clamming. Fairfield owns approximately 757.5 acres on Fort George Island which it proposes to develop into a "planned unit development" of 1,343 dwelling units, a 27 hole golf course, and approximately 80,000 square feet of commercial development. The approximate density of the development will be 1.8 units per acre. Approximately 80% of Fairfield's property is currently forested, and after development approximately 35% will remain undisturbed habitat. The City of Jacksonville approved the "planned unit development" on January 10, 1983. Because the Department of Community Affairs had determined on August 11, 1982, that this development was a "development of regional impact," Fairfield submitted an Application for Development Approval to the Department, the Northeast Florida Regional Planning Council, and the City of Jacksonville, which subsequently approved the proposed development in an Amended Development Order. On January 25, 1984, the Florida Land and Water Adjudicatory Commission approved the Amended Development Order (ADO). In addition to approving the development of maximum of 1,343 units, 80,000 square feet of commercial area, two 18 hole golf courses (one already in existence), and a marina with not more than 50 slips, the ADO required Fairfield to conduct a 12 month study and prepare a Master Resource Management Plan prior to development. Specifically, Fairfield was required to demonstrate that there is a sufficient supply of potable ground water to serve the entire development without adverse effects on the Floridan Aquifer and other existing legal users; establish the ambient conditions of the water surrounding Fort George Island and the ambient climatic conditions of the Island and Rollins Sanctuary through a 12 month monitoring program; identify all endangered, threatened, unique, rare, notable and "species of special concern" and determine their habitat requirements; address surface water quality and quantity, terrestrial and wetlands biology, and ground water quality and quantity for the entire project; and submit a revised Master Land Use Plan, consistent with the Master Resource Management Plan, to the City of Jacksonville's Planning Commission for its approval. Further, the ADO required Fairfield to demonstrate that it could retain the 100 year, 24-hour storm (calculated to be 11.04 inches of rain in 24 hours), and prevent degradation of the established ambient conditions of the waters surrounding Fort George. Finally, the ADO required Fairfield to submit its Master Resource Management Plan to the City, Regional Planning Council, Department of Community Affairs, Department of Environmental Regulation, Department of Natural Resources, Game and Fresh Water Fish Commission, and the District, for their, review, comment, and in some cases approval. After review and comment by these agencies, the City of Jacksonville Planning Commission approved the Master Resource Management Plan on January 29, 1986, from which no appeal was taken. Case Number 85-3537 (MSSW) The following findings of fact are based upon the stipulation of the parties and relate to Fairfield's MSSW application: The District, a special taxing district and agency, created by Chapter 373, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Sections 373.413 and 373.416, Florida Statutes, and Chapter 40C-4, Florida Administrative Code. The District is the agency involved in this proceeding. The District has assigned Fairfield's conceptual MSSW permit application the permit number 4-031-002AC. Fairfield is a Delaware corporation authorized to do business in Florida. Its address is 3520 Piedmont Road, N.E., Atlanta, Georgia 30305. The proposed MSSW will serve Fairfield's development on Fort George Island, located in Duval County at Section 34, Township 15, Range 29 East. Petitioner Friends of Fort George, Inc., is a not-for- profit Florida Corporation, whose principal office for the transaction of business is located at 11251 Fort George Road, East, Jacksonville, Florida 32226. Petitioner in Intervention Southeastern Fisheries Association is a Florida not-for profit corporation whose address is 312 East Georgia Street, Tallahassee, Florida 32301. Petitioner in Intervention Logan Diving, Inc., is a Florida corporation whose address is 5731 St. Augustine Road, Jacksonville, Florida 32207. Petitioners in Intervention Florida Audubon Society and Duval Audubon Society are not-for-profit Florida corporations whose principal offices for the transaction of business are located at 1101 Audubon Way, Maitland, Florida 32751 and 2°65 Forest Circle, Jacksonville, Florida 32217. Individual Petitioners William E. Arnold, Jr., William M. Bliss, Doris B. Chappelle, Leo E. Chappelle, Mr. & Mrs. Rhodes Gay, Dr. & Mrs. William J. Knauer, Jr., Camillus S. Lengle, Jr., and Mr. & Mrs. J. W. Lucas are natural persons and citizens of the State of Florida who are owners of real property on Fort George Island. On August 27, 1985, the District gave Notice of its intent to deny MSSW application No. 4-031-002AC. On September 23, 1985, the District determined to recommend issuance of MSSW Application No. 4-031-002AC, as then modified, with conditions. Fairfield had originally contemplated in both its original Master Resource Management Plan (MRMP) and the referenced MSSW application that its proposed development for Fort George Island would have a 36-hole golf course facility. Fairfield subsequently reduced its proposed golf course facility from 36 holes to 27 holes. The City of Jacksonville's Planning Commission approved the MRMP with conditions, including the condition that the golf course be reduced, on January 29, 1986. Because of the reduction in size of Fairfield's proposed golf course facility from 36 to 27 holes Fairfield's total requirements for water for irrigation were reduced. By pleading dated April 7, 1986, Fairfield moved to amend its conceptual MSSW approval application. On April 10, 1986, the motion was granted pursuant to Stipulation of all the parties. The motion was granted by written Order of the Hearing Officer on April 17, 1986. The Petitioners' original Petition for Formal Administrative Proceedings was timely filed within fourteen (14) days of receipt of the District's proposed agency action of September 23, 1985. A number of the members of Friends of Fort George, Inc. own real property on Fort George Island, reside on the Island, and engage in recreational activities on the Island and its adjacent waters and environs. The subject matter of the proposed agency action challenged by Petitioners and Intervenors concerns the natural resources on Fort George Island. Protection of this resource falls within-the general purpose and objectives of Friends of Fort George, Inc., namely, the preservation, conservation, and restoration of Fort George Island and surrounding environs. The relief requested in this proceeding by Petitioners and Intervenors is denial of the conceptual management and storage of surface waters permit. The water storage ponds proposed in the project will intersect with the surficial aquifer on Fort George Island. Petitioners, Friends of Fort George, Inc. and Intervenors, Florida Audubon Society and Duval Audubon Society have standing pursuant to Section 403.412(5), Florida Statutes, to bring this action. During the hearing, the parties stipulated that Logan Diving, Inc., has standing in this proceeding since it is the holder of oyster and clam harvesting leases from the Department of Natural Resources for beds located in Class II waters adjacent to Fort George Island and it derives substantial income from harvesting of these beds. Closure or reclassification of these waters to limit or preclude shellfish harvesting would impair the value of Logan Diving's shellfish leases, or render them worthless. The following findings of fact relating to Fairfield's MSSW application are based upon the evidence presented, including the demeanor and credibility of witnesses who testified: Southeastern Fisheries Association, Inc., established at the hearing that it is a not-for-profit incorporated association of seafood producers, packers, canners, processors, wholesalers, retailers and others substantially involved in the seafood and fishing industries. Based upon the testimony of Robert P. Jones, 200 to 250 of the Association's 350 members shrimp in waters in the vicinity of Fort George Island, 26 of its members are residents of Duval or Massau Counties and 6 are residents of Fort George Island. Thus, a significant number of the Association's members harvest and transport seafood from the waters in the area of Fort George Island, and others also pack and process seafood from these waters. They would be substantially affected if the quality of these waters was degraded, or if the waters were closed to shellfish harvesting as a result of destruction to the nursery areas or reduction in quality or quantity of fish or shellfish which are harvested in these waters, or which utilize these waters as nursery areas. The objectives and purposes of the Association include promoting the general welfare of the fisheries industry and enhancing its economic progress. In contrast, the Florida Wildlife Federation was allowed to participate in this hearing but failed to offer any evidence in support of its verified Petition at the hearing. Fairfield's MSSW application is for conceptual approval, pursuant to District rule, and if conceptual approval is obtained Fairfield will then have to re-apply for construction, operation and maintenance MSSW permits. Although this is an application for conceptual approval, the documentation and information submitted by Fairfield to the District in support of its application is more thorough and complete than almost any other application for conceptual approval received by the District, and is actually superior to the documentation and information received from most applicants for construction permits. According to District staff, more sampling and testing results are presented in this conceptual application than they ever get. After initial review of its MSSW application by District staff following submission on January 5, 1984, Fairfield received a request for additional information. In responding to this request, Fairfield developed a plan of study which was approved by District staff and which focused on the water supply potential of the surficial aquifer, and the ability of a stormwater management and control system to retain stormwater on-site in compliance with the ADO and the District's permitting rules. Fairfield's study was comprehensive, and was completed in a very competent, professional manner. It included the collection of data through soil borings, installation of monitoring wells, conducting permeability and percolation tests, collecting rainfall data' and sampling of water quality. A water budget model was developed, and approved by the District, to compare existing conditions to proposed developed conditions and to specifically determine the water supply potential of the surficial aquifer, assess the availability of water for irrigation after development, assess changes in recharge to the surficial aquifer after development, and generally to determine how the development would impact the existing hyrologic cycle on the Island. Considering all of the evidence presented, it is specifically found that Fairfield utilized correct and appropriate input parameters in its water budget model to determine that currently 17.5 inches per year of freshwater is flowing from the Island to the surrounding estuary under average annual rainfall conditions, and after development approximately 16 inches per year of freshwater will flow from the Island to the estuary--less than a 10% change in ground- water flowing to the estuary. Therefore, the subject development will not adversely impact the overall water balance on Fort George Island. Utilizing the water budget model, under developed conditions it is shown that in a one-in-ten dry year there will be slightly more fresh water flow from the Island, and in a one-in-ten wet year there will be slightly less freshwater flow to the estuary than currently exists. This further demonstrates that overall water balance will be maintained. Total recharge will be greater post-development in average, wet and dry years. Fairfield's stormwater management system consists of a series of golf course fairway retention areas, and also includes four ponds in the north of the island which are interconnected, and one in the south, into which storm water will flow. The retention ponds comprise an area of approximately 32 acres. The fairway retention areas maximize percolation or infiltration, and water that remains to enter these ponds will be used for golf course irrigation through pumping. Generally, 95% of golf course need will be met by such pumping from the ponds, with the remaining need being met by withdrawals from the Floridan Aquifer. Under dry conditions, the need to withdraw from the Floridan Aquifer will be greater and could approach 49% of golf course irrigation requirements. The fairway retention areas and the five storage ponds comprise an on-line treatment system which will retain the first one-half inch of runoff, as well as additional runoff. Fairfield's on-line system is equivalent to an off-line system required by Rule Chapter 40C-42, Florida Administrative Code, for discharges to Outstanding Florida Waters (OFW) such as those that surround Fort George Island. Thus, the "first flush" containing a higher level of pollutants will be received by the retention areas and ponds in this on-line system and will primarily be removed through percolation in the retention areas. Pollutants should not be discharged into the estuaries, even in emergencies or when conditions exceed design capacity. Pond retention time will be approximately two months and surficial runoff will account for 5%-10% of the water in the ponds, with the rest coming from ground-water in-flow. Fairfield's storm water management system is operational and maintainable. It will be able to retain the 100 year, 24 hour storm event and otherwise meet the District's requirement that post-development discharge not exceed pre- development peak discharge. Surface discharges from the system will occur infrequently, perhaps every 80 years. Currently there is about one-half inch of direct surface runoff annually. Since surface runoff is a primary source of pollutant transport, the elimination of this runoff will have a beneficial effect on the estuary. The system will not degrade the quality of surrounding estuaries or the OFW since discharges to the estuaries will not occur from the ponds except under extreme conditions, and also because of the high level of treatment which will be provided by the ponds. Reasonable assurance has been given that water in the ponds will meet Class III standards, as well as the "free from" standards in Chapter 17-3, Florida Administrative Code, in the immediate future. The proposed ponds will be an improvement over existing borrow pits and bogs on the Island which have drastic side slopes and very long residence times, such as the Osmunda Bog, and will be a better habitat for fish and drinking water source for wildlife than the existing pits. It will also result in an improvement to Blue Pond, with better vegetation and habitat than currently exists, and with wildlife access being insured through preservation areas. A recognized and accepted ground-water flow model was used by Fairfield, and was approved by the District for use in this situation. The surficial aquifer system was correctly modeled as a single layer unit. Clay which underlies the Island is not a significant feature since, at minus 18 feet mean sea level, it is well into the saturated zone of the surficial aquifer and well below the surface water table, and since water levels actually observed in test wells could not be predicted when the top of the clay layer was used in the model as the bottom of the surficial aquifer. When the depth of the surficial aquifer was set at the top of the Hawthorne layer, the model accurately predicted water levels, as correlated against actual measured levels. Surface waters around Fort George Island have been classified as OFW since 1979. No significant development has taken place on the Island since 1979, and therefore ambient water conditions in 1978 and 1979 could reasonably be expected to have been what they are today. The stormwater management system will create a ground- water divide around the retention ponds. Any water falling inside the divide will flow toward the ponds; water falling outside the divide will percolate to the water table and then flow to the estuary. While under existing conditions nutrient pollutants that reach the water table simply flow to the estuary, after development half of the water falling on the golf course will be inside the divide and will therefore flow to the ponds. Therefore, after development there will be less nutrients and other pollutants reaching the estuary than under current conditions. Fairfield's stormwater management system is designed in a manner to ensure that the first 1 1/2 inches of rainfall will be retained or detained from an OFW. In fact, it appears that the system will actually retain runoff from the first 11 inches of rainfall. After analyzing data for metals, nutrients and coliform bacteria, it is found that the ambient water quality of the estuary will not be degraded by Fairfield's proposed development, and in fact there will actually be a net improvement in the quality of water reaching it from the Island. As a result of pollutant removal through filtration, sedimentation, absorption, precipitation, biological activity and dilution, it can reasonably be expected that ground-water seepage from the fairways and ponds to the OFW will meet primary and secondary drinking water standards, as well as Class II standards, and will not degrade the ambient water quality of the estuary. Infrequent surface discharges to the estuary also will not violate Class III standards. Total loading of nutrients to the OFW under developed conditions will be less than under existing conditions, and coliforms reaching the OFW via ground- water will be eliminated. Freshwater surface flow from the developed areas of the Island to the sloughs on the western side of the Island will be virtually eliminated. This elimination will not be detrimental to either salinities or particulate flows to these sloughs. Since there is an average of 50 inches of rainfall on the estuary per year, as opposed to less than 1/2 inch of freshwater runoff, and since the tidal flow is the forcing function in the estuary and not fresh surface water runoff, the salinity levels in the estuary will be largely unchanged. Particulate material will continue to be readily available to the sloughs from the marshlands, and from perimeter buffers which will be preserved by Fairfield around the Island. An undeveloped, preserved buffer zone is retained between the project and the surrounding waters as well as Rollins Sanctuary. This buffer zone is not intruded upon by the retention ponds contouring or berms associated with the development. In addition to the buffer zone, an undisturbed area will also be retained in the development, and the total acreage of the buffer and undisturbed areas will be 226 acres. The buffer and undisturbed areas will be more than adequate to protect the rare, notable, endangered or threatened plant and wildlife species identified on the Island when these areas are considered in relation to Rollins Sanctuary and other properties on the Island in state ownership. There will also be no construction activity in the saltmarsh off the western side of the Island. Extensive surveys conducted by Fairfield identified 26 species of plants and 16 species of wildlife on the Island. The habitat for all but one wildlife species, the gopher tortoise, is the saltmarsh to the west of the Island which will be undisturbed. Two national champion trees were identified and will be preserved. There will be no adverse impacts on notable plants in Rollins Sanctuary or other preservation areas since a 30 meter buffer is provided on the northern boundary of the Sanctuary and no development at all will take place to the west! of the Sanctuary. Woodstorks, the only endangered species identified in the survey, have been observed resting in trees at the western side of the Island in the saltmarsh. They are not nesting on Fort George Island, but return to the D-Dot Ranch south of Jacksonville every night to nest. The western area of the Island will remain undisturbed habitat in a buffer area from 250 to 450 feet wide, as will the southwestern portion of the Island. Woodstorks appear to be using the tidal sloughs for feeding, and development should have no adverse impact on these sloughs. A heron and egret rookery exists on the northern side of the Island, primarily off of Fairfield's property. Approximately 20 nesting pairs of great blue herons and great egrets use this rookery, which appears to be a satellite of regional rookeries. These are not notable species, but Fairfield will provide up to a 600 foot buffer. The gopher tortoise is the only notable terrestrial species on the Island and is a "species of special concern." The undisturbed natural habitat of a major concentration of gopher tortoise on Fairfield's property will be preserved. While the habitat for non-notable species such as bobcat, grey fox, owls and songbirds will be reduced, they will not be extirpated. Significant archaeological sites on Fairfield's property will be preserved and protected, including Mission San Juan del Puerto, the Grave Robbers Mound, the Sugar Mill site, and the Crypt site. If additional sites are found during development, a mitigation plan will be developed for approval by the State Division of Archives, with an evaluation by a professional archaeologist. Indian middens, or trash piles, have been deemed insignificant and will not be preserved. Surface water table draw-downs which will result from Fairfield's system due to pumping from the surficial aquifer will have no adverse impact on either wildlife or plant life on the Island. Such draw-downs will be limited and localized primarily around the ponds. In fact, the water table on the western side of the Island may increase slightly. The draw-down within Rollins Sanctuary or at Rollins Creek will be less than one foot and therefore should not have any adverse impact. Rollins Creek is approximately five feet wide. A fifty foot buffer around the Creek is provided. Only EPA approved chemicals will be used for weed control associated with the ponds, and aeration will be used to assist the production of oxygen in the ponds. Nutrients, nitrates and phosphorous, will be continually analyzed so that immediate corrective action in fertilizer application can be taken if necessary. Fairfield will utilize an integrated pest management program under a plan which must be approved by the District and which will actually reduce the need for chemical pesticides. Only EPA approved pesticides will be used. As for fertilizers, Fairfield will apply fertilizers more frequently, but in lesser amounts, than on the existing golf course. This ensures a better uptake of nitrates and phosphates, thereby reducing unabsorbed nutrients that might flow to the ponds or estuary. A full-time resource manager will be employed to ensure proper operation of the entire stormwater management system. Once the system is in place, Fairfield will conduct a long-term monitoring program of the water quality in the MWBZ, surficial aquifer, the ponds, and any surface water discharges to ensure permit compliance and also to provide a data base for further activities. Such a data base will represent a positive public benefit. Additional beneficial results of the project, after construction permits are obtained, include stabilization of the northern shoreline of the Island which has had notable marshland erosion, and re-aligning a road on the western side of in the Island to eliminate a point where it crosses Big Slough and thereby open the Slough up to additional sheetflow. Middle and Northern Sloughs will be preserved. Mitigation will be required for any disturbance of a small wetland area on the west side of the Island which is approximately 3/4 of an acre in size. Eliminating marsh erosion, and removing vehicle traffic and flow restrictions in the area of Big Slough are clearly in the public interest, as is the preservation of other wetland areas. The District staff originally recommended that Fairfield's MSSW application be denied but after modifications to the application were made, the District staff has recommended approval with conditions to ensure generally that Fairfield: Monitors water quality in the five ponds in accordance with a plan approved by the District, as well as the quantity and quality of all surface water discharges. Monitors water levels in surficial aquifer wells and reports such data to the District Recalibrates its surficial aquifer and water budget models every five years using the actual monitoring data it has collected and reported to the District in the preceding years, and if such recalibration indicates more than a 50% increase in the volume or frequency of surface water discharges, the stormwater management system must be altered, with District approval, to prevent such increases Submits a pesticide management plan for District approval. Submits a mitigation plan for District approval, at the time of application for construction permits, that will mitigate for any loss to off-site aquatic and wetland dependent species associated with project development in the area of the tidal sloughs on the west coast of the Island. A total of fourteen specific conditions which the District staff recommends be placed on the conceptual approval of the MSSW permit are contained in the Management and Storage of Surface Waters Summary Sheet, dated May 1986, which is hereby incorporated by reference and found to be reasonable in its entirety. Case Number 85-3596 (CUP) The following findings of fact are based upon the stipulation of the parties and relate to Fairfield's CUP application: The District, a special taxing district and agency, created by Chapter 373, is charged with the statutory responsibility for the administration and enforcement of permitting programs pursuant to Sections 373.219 and 373.223, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The District is the agency involved in this proceeding. The District has assigned Fairfield's CUP application the permit number 2-031-0021AN. Findings of Fact 10, 11, 14 and 15 which are set forth above are hereby readopted and incorporated herein. On December 1, 1983, Fairfield, through its then-agent George Register, III, submitted to the District the subject CUP application. The application was assigned No. 2-031-0021AN. On August 23, 1985, the District gave notice of its intent to deny CUP application No. 2-031-0021AN. On September 23, 1985, the District determined to recommend issuance of CUP application No. 2-031-0021AN, as then modified, with conditions. Fairfield had originally contemplated in both its original Master Resource Management Plan (MRMP) and the referenced CUP application that its proposed development for Fort George Island would have a 36-hole golf course facility. Fairfield subsequently reduced its proposed golf course facility from 36 holes to 27 holes. The City of Jacksonville's Planning Commission approved the MRMP with conditions, including the condition that the golf course be reduced, on January 29, 1986. Because of the reduction in size of Fairfield's proposed golf course facility form 36 to 27 holes, Fairfield's total requirements for irrigation water were reduced. By pleading dated February 28, 1986, Fairfield moved to amend its application. The motion was granted by the Hearing Officer on March 11, 1986. In light of this amended application, the District issued a revised "Consumptive Uses of Water Summary Sheet," dated March-24, 1986, to reflect this amended request and to recommend issuance of the CUP. The Petitioners' original Petition For Formal Administrative Proceedings was timely filed within fourteen (14) days of receipt of the District's proposed agency action of September 23, 1985. A number of the members of Friends of Fort George, Inc. own real property on Fort George Island, reside on the Island, and possess drinking water wells on the Island and engage in recreational activities on the Island and its adjacent waters and environs. The subject matter of the proposed agency action challenged by Petitioners and Intervenors concerns the water resources on Fort George Island, including its drinking water supply. Protection of this resource falls within the general purpose and objectives of Friends of Fort George, Inc., namely, the preservation, conservation and restoration of Fort George Island and surrounding environs. The relief requested in this proceeding by Petitioner and Intervenor is denial of the proposed consumptive use permit. The water storage ponds proposed in the project will intersect with the surficial aquifer on Fort George Island. The residential value of Petitioners' property on Fort George Island would decrease if the property had absolutely no access to potable water. Petitioners and Intervenors have standing pursuant to Section 403.412(5), Florida Statutes, to bring this action. The following findings of fact relating to Fairfield's CUP application are based upon the evidence presented, including the demeanor and credibility of witnesses who testified: Following review of Fairfield's CUP application, District staff requested additional information on January 11, 1984; Fairfield developed a plan of study to supply the requested additional information, and the plan of study was approved by District staff. The plan of study sought to find out the nature and characteristics of an anomaly in the northeastern part of the Island, and also to determine if Fairfield's proposed usage would have any affect on existing legal users. As part of the study, Fairfield conducted a well inventory and survey, water quality survey, water level measurements, and vertical investigations. The study also examined three alternatives to obtaining water from the various water bearing zones under Fort George Island, including drilling a test well (TP-2) into the Middle Water Bearing Zone after obtaining appropriate permits. The Floridan Aquifer below Fort George Island consists of three zones--The Upper Water Bearing Zone (UWBZ), Middle Water Bearing Zone (MWBZ) and Lower Water Bearing Zone (LWBZ). The bottom of the Hawthorne formation separating the surficial and Floridan aquifers occurs at about 400 feet below mean sea level. The UWBZ exists from of depth of approximately 520 feet to 1000 feet. Below the UWBZ is an upper semiconfining zone from a depth of approximately 1000 to 1200 feet. The MWBZ is generally 100 feet thick and exists from a depth of approximately 1200 to 1700 feet, below which is a lower semiconfining zone from a depth of approximately 1700 to 2000 feet. The MWBZ is a single water producing zone with interconnected channels or flow zones. The LWBZ exists from a depth of approximately 2000 to 2100 feet, below which is a lower confining unit. The confining zones are saturated with water but are less permeable than any of the water bearing zones. Regional ground-water flow in the Floridan Aquifer at Fort George Island is from the west to the east, northeast and southeast. Water quality to a depth of approximately 1900 feet is generally good, with chloride concentrations of less than 50 milligrams per liter (mgl). In the UWBZ chloride concentrations are generally 10-15 mgl. However, in the north eastern part of the Island chloride concentrations are approximately ten times higher, although still considered potable, due to an anomaly which exists in this area with a radius of approximately 1000 feet, and which allows the flow of water directly from the LWBZ to theMWBZ and LWBZ. While the potentiometric surface or pressure for most of the Island is 39 feet, at the anomaly it is 43 feet above mean sea level. The anomaly was caused either by a sinkhole or fault and acts as a localized conduit or coins source of lower quality water from the LWBZ to the UWBZ. No other point sources of lower quality water exist on the island. The Hawthorne formation was found to exist approximately fifty feet deeper in the area of the anomaly than on the rest of the Island. Existing users on Fort George Island draw water from the UWBZ. Fairfield proposes to draw its water from the MWBZ at a rate of 101.11 million gallons per year in an average year, and 181.04 million gallons per year in a 1 in 10 dry year, and will be the only user of water from the MWBZ on the Island. Household use consumption is projected to be 129.3 gallons per capita which is below the District average of 150 gallons per capita. Based upon pump tests already conducted by Fairfield, the MWBZ will produce more than enough water to meet Fairfield's needs for its project and such pumping will have no adverse impact on the UWBZ or existing users. Pumping from the MWBZ will also have no adverse impact on the MWBZ. Specifically, salt water intrusion from the surrounding estuary or from the tWBZ to the MWBZ will not significantly increase, chloride levels will not increase and potentiometric levels will not decrease in the MWBZ due to this pumping. The MWBZ will produce an adequate Supply of potable water for 15 to 30 years. Fairfield does propose to use well P-1 in the UWBZ in emergency situations but such usage will have no adverse impact on the quality of the UWBZ or its existing users. Use of the MWBZ will be minimized by maximum utilization of the surface water management system ponds for irrigation needs. Well TP-2 is approximately a mile from the anomaly in a south-southwesterly direction. It was constructed by Fairfield, after obtaining necessary permits, with casing to a depth of 771 feet all the way through the UWBZ and into the underlying confining bed. Pump tests were conducted on the MWBZ using TP-2, which is the only well on the Island in the MWBZ. No separate monitoring well in the MWBZ was required by the District, and none was utilized by Fairfield because the flow off 2,000 gallons per minute from TP-2 was so strong that a separate monitoring well was not necessary. When TP-2 was pumped, there was no measurable change in nearby UWBZ wells. This confirms that the MWBZ is hydrologically separate from the UWBZ, other than at the anomaly, and pumping from one will not affect wells in the other. In response to a request from the District, Fairfield utilized conservative factors in applying a mathematical model to determine the effects of its proposed pumping on the Floridan Aquifer. Using the USGS contaminant transport model, which is professionally accepted and appropriate for use in this case, and after proper calibration to reproduced observed conditions, it was determined that chloride concentrations in the MWBZ will not be adversely affected, nor will potentiometric surfaces of the UWBZ or MWBZ when pumping is conducted from TP-2 in the MWBZ over a thirty year period. At most, pumping from TP-2 could result in a slight increase of flow from the anomaly into the MWBZ, with a minimal increase in chloride concentrations. Fairfield has agreed to install a monitoring well in the MWBZ and to monitor several wells in the UWBZ in order to constantly test and monitor chloride levels. Currently chloride levels in the MWBZ are 25 mgl and the limit for potable water is 250 mgl. The monitoring well will be approximately 550 feet northeast of well TP-2, and will detect any changes in chloride levels with sufficient lead time for Fairfield to initiate action to drill another well into the MWBZ further from the chloride source. It is estimated that such lead time could reasonably be as much as ten years. Even without Fairfield's pumping from the MWBZ, water quality in the UWBZ would be expected to degrade, as it has historically, as a result of regional pumping which has caused a regional decline in water quality and 37 SO as a result of flow from the anomaly. Existing users may actually benefit from Fairfield's pumping from the MWBZ and the decline in the quality of the UWBZ may be slowed due to Fairfield's elimination of golf course irrigation which currently comes from the UMBZ at a rate of approximately 175,000 gallons per day, accounting for approximately 90% of all current water usage on the Island. Pumping from the Floridan Aquifer will be conducted to supplement irrigation from the stormwater management system. Fairfield will use up to 580,000 gallons per day for golf course irrigation in dry years. However, even in a dry year the primary source for golf course irrigation will still be from the stormwater management system. In an average year, approximately 95% of irrigation needs will be met by the surface water management system ponds. In a wet year there should be no need to pump from the Aquifer. The District staff originally recommended denial of Fairfield's CUP application when it was for a 36 hole golf course, anad for withdrawal of potable water from the UWBZ with only golf course irrigation being from the MWBZ. Fairfield has modified its application and now proposes a 27 golf course with all water needs coming from the MWBZ, except in an emergency when well P-1 in the UWBZ may be used. The District staff has now recommended approval, with a total of twenty conditions contained in the "Consumptive Uses of Water Summary Sheet," which are hereby incorporated by reference and which ensure generally that Fairfield: Mitigates any adverse impact caused by withdrawals permitted herein on existing legal uses of water; the District may curtail any withdrawal if there are adverse impacts on existing legal users. Mitigates any adverse impacts caused by withdrawals permitted herein on existing adjacent land uses; the District may curtail any withdrawal if there are adverse impacts on existing adjacent land uses. Must reapply for another CUP after seven years from issuance. Begins irrigating the existing 18 hole golf course from the MWBZ by March 1, 1987, with existing UWBZ irrigation wells only to be used thereafter for fire protection. Institutes a sampling program for existing wells in the UWBZ and MWBZ. Supplies all potable and supplemental irrigation requirements from the MWBZ, and keeps monthly records of such withdrawals. Drills and maintains a monitoring well in the MWBZ approximately 550 feet northeast of its MWBZ potable and supplemental irrigation well, and provides long term water quality samples to the District from the monitoring well. The District staff's recommended conditions are found to be reasonable in their entirety.
Recommendation Based on the foregoing, it is recommended that the St. John's River Water Management District issue to Fairfield Communities, Inc., conceptual approval of MSSW permit number 4- 031-002AC with conditions set forth in the District's Management and Storage of Surface Waters Summary Sheet, dated May 1986, and also issue to Fairfield Communities, Inc., CUP number 2-031- 3021AN with conditions set forth in the District's Consumptive Uses of Water Summary Sheet. Further, it is recommended that the Florida Wildlife Federation be dismissed as a party in this proceeding. DONE and ENTERED this 6th day of October, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1986. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management Post Office Box 1429 Palatka, FL 32078-1429 Segundo J. Fernandez, Esquire Post Office Box 6507 Tallahassee, FL 32314 Thomas G. Pelham, Esquire Post Office Drawer 11300 Tallahassee, FL 32302-3300 Kathryn L. Mennella, Esquire Post Office Box 1429 Palatka, FL 32087-1429 Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, FL 32751 Jeffrey R. Lugwig, Esquire One Independent Square Jacksonville, FL 32276 Stephen O'Hara, Jr., Esquire 1500 American Heritage Life Building Jacksonville, FL 32202 APPENDIX Rulings on Petitioners' and Intervenors' Proposed Findings of Fact: 1. Adopted in Findings of Fact 9-27, 58-73. 2-7. Rejected as irrelevant and unnecessary 8. Adopted in Findings of Fact 36, 42. 9-10. Rejected as irrelevant and unnecessary 11. Adopted in part in Findings of Fact 4, 77, but otherwise rejected as irrelevant and unnecessary 12-24. Adopted in Finding of Fact 15, but otherwise rejected as unnecessary or not based on competent substantial evidence. 25-27. Rejected as irrelevant and unnecessary 28-39. Adopted and rejected in Finding of Fact 76, but otherwise rejected as irrelevant and unnecessary 40-45. Rejected in Findings of Fact 25, 77, 78 and otherwise not based on competent substantial evidence. Rejected in Finding of Fact 76. Rejected as irrelevant. 48-50. Rejected in Findings of Fact 77, 78 and otherwise not based on competent substantial evidence. 51-52. Rejected as unnecessary. 53. Rejected as not based on competent substantial evidence. 54-55. Rejected in Findings of Fact 77, 78. 56. Adopted in Finding of Fact 56. 57-63. Rejected in Finding of Fact 79 and otherwise not based on competent substantial evidence. 64-66. Rejected as irrelevant and unnecessary. 67-75. Rejected as irrelevant, unnecessary and otherwise not based on competent substantial evidence. 76-79. Rejected in Finding of Fact 79, and otherwise not based on competent substantial evidence. 80-83 Rejected in Finding of Fact 75, and otherwise irrelevant and not based on competent substantial evidence. Rejected in Finding of Fact 78 Rejected as irrelevant and unnecessary. 86-87. Rejected in Finding of Fact 75. 88-107. Adopted and rejected in part in Findings of Fact 75, 78, and otherwise irrelevant and not based on competent substantial evidence. 108. Rejected in Finding of Fact 79. 109-111. Rejected in Findings of Fact 76, 80. Adopted in Finding of Fact 80. Rejected as irrelevant and unnecessary. 114-116. Adopted in Finding of Fact 80. 117-120. Rejected as irrelevant and not based on competent substantial evidence. 121-136. Rejected in Finding of Fact 37 and otherwise unnecessary and not based on competent substantial evidence. Rejected as not based on competent substantial evidence. Rejected as unnecessary and cumulative. 139-141. Rejected as not based on competent substantial evidence. 142-144. Rejected as unnecessary and cumulative. 145-147. Rejected as not based on competent substantial evidence. Rejected in Findings of Fact 36, 37. Rejected as unnecessary and cumulative. Rejected as not based on competent substantial evidence 151-161. Rejected as unnecessary, cumulative and not based on competent substantial evidence. 162-164. Rejected in Finding of Fact 37 and otherwise not based on competent substantial evidence. 165-169. Rejected as unnecessary and cumulative. 170. Rejected in Findings of Fact 34, 39, 41. 171-173. Rejected as unnecessary and cumulative. 174-177. Rejected in Findings of Fact 36, 37. 178-179. Rejected in Findings of Fact 50, 51. 180. Adopted in Finding of Fact 39. 181-186. Rejected as not based on competent substantial evidence and otherwise unnecessary. 187-189. Rejected in Finding of Fact 32, and otherwise not based on competent substantial evidence. 190-193. Rejected as unnecessary and cumulative. 194-195. Rejected as not based on competent substantial evidence. 196. Rejected as unnecessary. 197-200. Rejected as not based on competent substantial evidence. 201-205. Rejected in Findings of Fact 32, 33 and otherwise not based on competent substantial evidence. 206-210. Rejected in Findings of Fact 32, 33, 36, 37. 211-268. Rejected in Findings of Fact 35, 36, 39-41, 52-54 and otherwise unnecessary and contrary to competent substantial evidence. 269-278. Adopted in part in Finding of Fact 3, but otherwise rejected as unnecessary. 279-297. Rejected in Findings of Fact 32, 33, 35, 36, 41, 42 and otherwise as unnecessary. 298. Rejected as irrelevant and unnecessary. 299-300. Adopted in part in Finding of Fact 3. Rejected as unnecessary. Rejected in Finding of Fact 44. Adopted and rejected in part in Findings of Fact 45-47. 304-305. Adopted in Finding of Fact 4. 306-312. Rejected in Findings of Fact 44-48 and otherwise not based on competent substantial evidence. Rejected in Findings of Fact 43, 45. Rejected in Finding of Fact 48. 315-321. Rejected as unnecessary and not based on competent substantial evidence. 322-323. Adopted and rejected in part in Finding of Fact 50. 324. Rejected as unnecessary. 325-329. Adopted and rejected in part in Finding of Fact 28. 330. Rejected as unnecessary. Rulings on Respondent Fairfield Communities' Proposed Findings of Fact: Adopted in Findings of Fact 9, 58. Adopted in Findings of Fact 10, 59. Adopted in Findings of Fact 11, 59. Adopted in Findings of Fact 15, 59. Adopted in Finding of Fact 12. Adopted in Findings of Fact 13, 27. Adopted in Findings of Fact 14, 59. Rejected as unnecessary based on Finding of Fact 28 Adopted in Findings of Fact 30, 60. Adopted in Findings of Fact 16, 17, 61, 62. Adopted in Findings of Fact 4, 6, 18, 19 Adopted in Findings of Fact 20, 65. Adopted in Finding of Fact 26. Adopted 1n Findings of Fact 21, 67. Adopted and rejected in Finding of Fact 28 Adopted in Finding of Fact 28. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. 20-22. Adopted in Finding of Fact S. 23-24. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 77, 81. 28-30. Adopted in Finding of Fact 74. Adopted in Finding of Fact 75. Adopted in Findings of Fact 75, 76 Adopted in Finding of Fact 76. Adopted 1n Findings of Fact 75, 76. Rejected as unnecessary. 36-37. Adopted in Finding of Fact 75. 38. Adopted in Finding of Fact 77, but otherwise rejected 39-40. Adopted in Finding of Fact 76 evidence. 41-43. Adopted in Findings of Fact 76-80, but otherwise rejected as cumulative and unnecessary. 44-47. Adopted in Finding of Fact 74 48-50. Adopted in Finding of Fact 78 51-55 Adopted in Finding of Fact 79. Rejected as unnecessary. Adopted in Findings of Fact 77, 80. Adopted in Findings of Fact 77, 83. Adopted in Finding of Fact 80. Adopted in Findings of Fact 78, 79. Adopted in Finding of Fact 79. 62-63. Adopted in Finding of Fact 81. 64-65. Adopted in Finding of Fact 77 Adopted in Findings of Fact 4; 77. Adopted in Finding of Fact 82. Adopted in Finding of Fact 82, but otherwise rejected as unnecessary. 69-70. Rejected as unnecessary and cumulative 71-72. Adopted in Finding of Fact 30. 73-75. Adopted in Finding of Fact 31 76-84. Adopted in Findings of Fact 31, 32, but otherwise rejected as unnecessary 85-88. Adopted in Finding of Fact 33. 89-92. Adopted in Findings of Fact 36, 37, but otherwise rejected as unnecessary. Adopted in Finding of Fact 34. Adopted in Finding of Fact 82, but otherwise rejected as unnecessary. Rejected as unnecessary Adopted in Finding of Fact 43 Adopted in Finding of Fact 36 Adopted in Findings of Fact 4i, 42 Adopted in Findings of Fact 2, 38 Adopted in Findings of Fact 41, 42. 101-102. Adopted in Finding of Fact 39 Adopted in Finding of Fact 40. Adopted in Finding of Fact 35. 105-105. Adopted in Finding of Fact 41. 110-115. Adopted in Finding of Fact 42 116-117. Adopted in Findings of Fact 36, 42, but otherwise rejected as unnecessary. 118-121. Adopted in Finding of Fact 50, but otherwise rejected as unnecessary 122. Rejected as unnecessary, cumulative and inaccurate. 123-125. Rejected as cumulative and unnecessary. Adopted in Findings of Fact 29, 31. Adopted in Finding of Fact 43. 128-131. Adopted in Finding of Fact 56. 132-133. Adopted in Finding of Fact 36. 134-135. Adopted in Finding of Fact 56, but otherwise rejected as unnecessary. 136. Adopted in Finding of Fact 51. 137-138. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 52. Adopted in Findings of Fact 52, 53. Adopted in Finding of Fact 54. Adopted in Finding of Fact 55. 144-148. Adopted in Finding of Fact 44, but otherwise rejected as unnecessary. 149. Adopted in Findings of Fact 4, 43, 44, but otherwise rejected as unnecessary. 150-151. Adopted in Finding of Fact 45. Rejected as unnecessary. Adopted in Finding of Fact 45. 154-155. Adopted in Finding of Fact 46. Adopted in Finding of Fact 47. Adopted in Finding of Fact 48. 158-160. Adopted in Finding of Fact 49. Rulings on Respondent St. John's River Water Management District's Proposed Findings of Fact: (The District's proposal was not timely filed, and the District did not seek permission from the Hearing Officer for late filing. It also consists of serial, unnumbered paragraphs from pages 18 to 48 despite specific instruction of the Hearing Officer to the parties to number paragraphs in proposed findings in order to allow specific rulings to be made. Despite these failures, a ruling will be made on the District's proposals, after having consecutively numbered each unnumbered paragraph, since counsel for the District indicates counsel for Petitioners has no objection to this late-filing, and in fact no Motion to Strike has been filed on behalf of Petitioners.) Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 75. Adopted in Finding of Fact 76. Adopted in Findings of Fact 77, 81. Adopted in Finding of Fact 60. Adopted in Finding of Fact 30.47 Adopted in Findings of Fact 16, 17. Adopted in Finding of Fact 18. Adopted in Finding of Fact 6. Adopted in Findings of Fact 66, 83. Adopted in Finding of Fact 83. Adopted in Finding of Fact 20. 15-16. Adopted in Finding of Fact 57. 17. Adopted in Findings of Fact 21, G7. 18-21. Adopted in Finding of Fact 74. Adopted in Findings of Fact 74-76. Adopted in Finding of Fact 74. 24-26. Rejected as irrelevant and unnecessary. 27. Adopted in Finding of Fact 77. 28-35. Adopted in Finding of Fact 76. 36-41. Adopted in Finding of Fact 78. 42. Adopted in Finding of Fact 80. 43-45. Adopted in Finding of Fact 79. Adopted in Finding of Fact 75. Adopted in Findings of Fact 75, 79. Adopted in Finding of Fact 79. 49-50. Adopted in Finding of Fact 81. 51-52. Adopted in Finding of Fact 79. Adopted in Finding of Fact 80. Adopted in Finding of Fact 79. Adopted in Finding of Fact 77. Adopted in Finding of Fact 81. 57-58. Adopted in Finding of Fact 77. Adopted in Findings of Fact 34, 82. Rejected as unnecessary. Adopted in Finding of Fact 77. Rejected as unnecessary and cumulative. Adopted in Finding of Fact 78. 64-65. Adopted in Finding of Fact 30. 66. Adopted in Findings of Fact 34, 39. 67-72. Adopted in Finding of Fact 31. 73-81. Adopted in Finding of Fact 32. 82. Adopted in Findings of Fact 36, 42. 83-84. Adopted in Findings of Fact 32, 33. 85-87. Adopted in Finding of Fact 33. 88-94. Rejected as unnecessary. 95. Adopted in Finding of Fact 37. 96-98. Adopted in Finding of Fact 36, but otherwise rejected as unnecessary. Adopted in Finding of Fact 54. Adopted in Findings of Fact 34-36. 101-102. Rejected as unnecessary and cumulative. Adopted in Findings of Fact 2, 38. Rejected as unnecessary and cumulative. Adopted in Findings of Fact 36, 39. Adopted in Finding of Fact 39. Adopted in Findings of Fact 41. Adopted in Finding of Fact 35. Rejected as unnecessary. 110-118. Adopted in Finding of Fact 41, but otherwise rejected as unnecessary. Adopted in Finding of Fact 53. Adopted in Findings of Fact 52, 53, but otherwise rejected as unnecessary. Adopted in Finding of Fact 55. Adopted in Finding of Fact 42. 124-128. Adopted in Findings of Fact 32, 36, 42, but otherwise rejected as unnecessary. Adopted in Findings of Fact 35, 42, but otherwise rejected as unnecessary. Rejected as unnecessary. 131-134. Adopted in Finding of Fact 50, but otherwise rejected as unnecessary. 135. Adopted in Findings of Fact 42, 43. 136-138. Adopted in Finding of Fact 56. 139. Adopted in Findings of Fact 36, 56. 140-141. Adopted in Finding of Fact 56. 142. Adopted in Finding of Fact 51. 143-144. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Rejected as cumulative, unnecessary and incorrect. Adopted and rejected in part in Finding of Fact 28. Adopted in Finding of Fact 28. ================================================================ AGENCY FINAL ORDER ================================================================ IN THE ST. JOHNS RIVER WATER MANAGEMENT DISTRICT FRIENDS OF FORT GEORGE, INC., Petitioners, and LOGAN DIVING, INC., SOUTHEASTERN FISHERIES ASSOCIATIONS, INC., THE FLORIDA AUDUBON SOCIETY, THE DOAH Case No. 85-3537 DUVAL AUDUBON SOCIETY, and THE (Management and Storage FLORIDA WILDLIFE FEDERATION, of Surface Waters) SJRWMD Case No. 85-3948 Intervenors, v. FAIRFIELD COMMUNITIES, INC., and ST. JOHNS RIVER WATER, MANAGEMENT DISTRICT, Respondents. / FRIENDS OF FORT GEORGE, INC., et al., Petitioners, and THE FLORIDA AUDUBON SOCIETY DOAH Case No. 85-3596 and THE DUVAL AUDUBON SOCIETY, (Consumptive Use Permit) SJRWMD Case No. 85-394A Intervenors, v. FAIRFIELD COMMUNITIES, INC., and ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondents. /
The Issue Petitioners challenge the South Florida Water Management District’s (the District) proposed action to issue Individual Environmental Resource Permit (ERP) 50-06558-P to authorize conceptual approval of a surface water management (SWM) system to serve 1,919 acres of a phased, multiple-use development referred to as the Palm Beach County Biotechnolgy Research Park (BRP) and to authorize construction and operation of Phase 1A of that proposed project. The ultimate issue is whether the Applicants provided reasonable assurances that the proposed activities will not be harmful to the water resources of the District; will not be inconsistent with the overall objectives of the District; and will comply with the water quantity, environmental, and water quality criteria of the District’s ERP regulations, which are set forth in Part IV of Chapter 373, Florida Statutes, Florida Administrative Code Chapter 40E-4, et. seq.; and the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District – September 2003 (BOR).1
Findings Of Fact THE PARTIES The Florida Wildlife Federation, Audubon Society of the Everglades, and Jupiter Farms Environmental Council, Inc. (d/b/a Loxahatchee River Coalition) are not-for-profit corporations in existence prior to 2003 with more than 25 members in Palm Beach County. Palm Beach County Environmental Coalition was formed in 1997 and is a private, county-wide, non-profit citizen’s organization. Ms. Ketter, Mr. Bell, Ms. Larson, and Mr. Christensen are individuals affected by the proposed BRP. The Respondents stipulated that the parties who remained Petitioners after Mr. Silver’s withdrawal as a Petitioner have standing to bring this proceeding. The District, a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, operates pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district with its principal office in West Palm Beach, Florida. The County is a duly-constituted governmental entity. THE PROJECT SITE AND ADJACENT LANDS The site of the project is generally referred to as the Mecca Farms, which is a contiguous tract of 1,919 acres of land. At present, the Mecca Farms is used for farming and mining operations. There presently exists a permitted, SWM system on the Mecca Farms that was first permitted in 1979, and has been modified from time to time since then. The existing SWM system includes 73 acres of ditches and a 272-acre above-ground impoundment area. The Mecca Farms site is located within the C-18 Basin. There are no jurisdictional wetlands or delineated surface waters on the Mecca Farms. The following, which is taken from the Staff Report (SFWMD Ex. 1), accurately describes the project site and its adjacent lands: The project site consists of 1,919 acres presently supporting an active orange grove with approximately 73 acres of associated drainage and irrigation ditches/canals and a 30-acre active sand mining operation. The ditches/canals are presently maintained at an elevation of approximately 17 feet NGVD.[3] These ditches/canals provide drainage conveyance to a 272-acre above- ground impoundment located in the northeast corner of the site utilizing four (4) 22,000 gpm pumps. The above-ground impoundment discharges to the west leg of the C-18 Canal via gravity discharge. Project site ditches and canals also connect directly to the C-18 Canal through an 18,000 gpm pump. An additional 224-acre agricultural area east of the 1,919 acres of orange groves is connected to and drains into the canal/ditch system on the project site. This adjacent area was leased from the adjacent land owner by the grove owner for use as row crops and was connected to the grove canal/ditch system for better control of drainage and irrigation. The area is no longer used for row crops. There is also a small area on the site that contains caretaker housing and an equipment maintenance building for the orange groves. These facilities were originally permitted in 1979 under Surface Water Management Permit No. 50-00689-S and subsequent modifications. The citrus grove and primary drainage facilities have been in existence since the 1960s. The Hungryland Slough is located north of the project site, separated from the project site by the C-18 Canal. This area is comprised primarily of publicly-owned natural areas, including an area referred to as Unit 11, which is owned in the majority by Palm Beach County. To the west is the J.W. Corbett Wildlife Management Area (CWMA) owned and managed by the Florida Fish and Wildlife Conservation Commission (FFWCC). To the east, a large area of low-intensity agricultural land exists under the ownership of Charles Vavrus and within the City of Palm Beach Gardens. These lands contain extensive wetlands that are adjacent to the Loxahatchee Slough to the east. The Acreage, a low-density residential area, is located directly to the south of the project site. The only access to the site at this time is an unpaved extension of Seminole Pratt-Whitney Road (SPW), connecting the site at its southwestern corner to the Acreage. THE PROPOSED PROJECT The subject application is for conceptual approval of the SWM system for the BRP and for construction and operation of Phase 1A of the project. All of the proposed Phase 1A construction will occur on the Mecca Farms site. The following, taken from the Staff Report, accurately describes the proposed project: The [BRP] is a phased multiple use development planned for approximately 1,919 acres and will consist of land uses related to science and technology, biotechnology, biomedical, and other related research and development industries and manufacturing. Additionally, proposed support and complementary land uses include educational, institutional, residential, commercial, and recreational facilities, along with utilities and a large created natural area. THE PROPOSED SWM SYSTEM The proposed SWM system will consist of several interconnected lakes that will provide wet detention for storm water runoff from the property site and from 39 acres of off- site flows from SPW Road and a proposed Florida Power and Light (FPL) Substation. The lakes will collect, store, and treat the runoff. The storm water will pass through the lakes, through a 247-acre area referred to as the “Natural Area” (which will be created as part of the mitigation plan), and discharged to the C-18 Canal. To provide additional water quality treatment, these lakes will include planted littoral zones and the southern lake will include a filter marsh. The Natural Area will, in subsequent construction phases, be constructed on the western boundary of the Mecca site with discharge to the C-18 canal, which is adjacent to the northern boundary of the Mecca Farms. The southern boundary of the Natural Area will be the north boundary of the lake that is to be constructed on the southern end of the property. This is the area that is available for use as a flow-way (which will be discussed in greater detail in a subsequent section of this Recommended Order). The Natural Area will be a wetland type system that will move water slowly through that system providing additional storage and water quality benefits prior to discharging through a gravity control structure into the C-18 Canal. The C-18 Canal discharges to either the Northwest or Southwest Fork of the Loxahatchee River, depending on how structures are operated downstream. Discharges travel in the C-18 Canal for approximately nine miles before reaching the Loxahatchee River. The existing SWM system for the Mecca Farms currently discharges to the C-18 Canal, as will the proposed SWM system. The proposed project will not discharge to the CWMA or the Hungryland Slough. The Grassy Waters Preserve and the Loxahatchee Slough are several miles from the project site and will not be affected by the project’s proposed activities. The following, which is taken from the Staff Report, accurately describes the proposed SWM system. The proposed conceptual surface water management system which will serve the 1,919-acre site will consist of site grading, storm water inlets and culverts which will direct all runoff to a series of interconnected lakes for water quality treatment and attenuation of the peak runoff rate. Pumps will control the runoff rate from the developed site into the adjacent onsite BRP natural area. The BRP natural area will discharge into the C-18 canal via a gravity control structure. The system has been designed to accommodate 39 acres of off-site flows from SPW [Road] and a proposed Florida Power and Light (FPL) Substation. The existing control elevation of the citrus grove is 17.0’ NGVD. The proposed control elevations are 18.0’ NGVD for the developed area and 19.0’ NGVD for the natural area. The control elevations are being raised to provide a “step down” of water elevations from wetlands to the north, west and east of the site (20.5’ to 21.0’) to lower elevations to the south (17.0’). PHASE 1A CONSTRUCTION The following, which is taken from the Staff Report, accurately describes the proposed Phase 1A construction: The Phase 1A construction activities will allow the applicant to proceed with lake excavation, clearing and site grading of 536 acres in the southern portion of the site. No permanent buildings or parking areas are proposed at this time. Stormwater from Phase 1A and the remainder of the site, to remain in agricultural use, will be treated in the Phase 1A lakes and then pumped into the existing impoundment for additional water quality treatment and attenuation prior to discharging to the west leg of the C-18 Canal via the existing weir structures. The existing 18,000 gpm pump that connects the on-site ditches and canals directly to the C-18 Canal will remain, but will only be used if the impoundment is full. (See Special Condition No. 21). Approval of Phase 1A authorizes the use of the existing, previously permitted surface water management facilities, therefore, the previous permit no. 50-00689-S is superceded by this permit. The 224 acre agricultural area east of the existing grove that is connected to the grove canal/ditch system will be severed as part of Phase 1A. The pipe connecting this area will be removed and portions of the berm around this area will be regraded so the area will sheetflow into the adjacent pasture land’s canal/ditch system as it did previously [sic] to being connected to the grove system. Of the 536 acres involved in the Phase 1A construction, 87 acres will become lake bottom and 449 acres will remain pervious area, subject only to grading. CONCEPTUAL APPROVAL Pertinent to this proceeding, Florida Administrative Code Rule 40E-4.021(5) defines the term “conceptual approval” to mean an ERP issued by the District which approves a conceptual master plan for a surface water management system or a mitigation bank. Florida Administrative Code Rule 40E-4.305, pertains to conceptual approvals and provides, in relevant part, as follows: Conceptual approvals constitute final District action and are binding to the extent that adequate data has been submitted for review by the applicant during the review process. A conceptual approval does not authorize construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system or the establishment and operation of a mitigation bank. * * * For phased projects, the approval process must begin with an application for a conceptual approval which shall be the first permit issued for the project. An application for construction authorization of the first phase(s) may also be included as a part of the initial application. As the permittee desires to construct additional phases, new applications shall be processed as individual or standard general environmental resource permit applications pursuant to the conceptual approval. The conceptual approval, individual and standard general permits shall be modified in accordance with conditions contained in Chapters 40E-4 and 40E-40, F.A.C. Issuance of a conceptual approval permit pursuant to Chapter 40E-4, F.A.C., shall not relieve the applicant of any requirements for obtaining a permit to construct, alter, operate, maintain, remove, or abandon a surface water management system or establish or operate a mitigation bank, nor shall the conceptual approval permit applicant be relieved of the District’s informational requirements or the need to meet the standards of issuance of permits pursuant to Chapters 40E-4 or 40E-40, F.A.C. . . . PERMITTING CRITERIA In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. The conditions for issuance focus on water quantity criteria, environmental criteria, and water quality criteria. Florida Administrative Code Rule 40E-4.301 contains the following permitting conditions applicable to this proceeding: In order to obtain a standard general, individual, or conceptual approval permit ... an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters ...; will not cause adverse secondary impacts to the water resources; will not adversely impact the maintenance of surface or ground water levels or surface water flows ...; will not cause adverse impacts to a work of the District ...; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and will comply with any applicable special basin or geographic area criteria established in Chapter 40E-41 F.A.C. Florida Administrative Code Rule 40E-4.302 provides the following Additional Conditions for Issuance of Permits applicable to this proceeding: In addition to the conditions set forth in section 40E-4.301, F.A.C., in order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system: Located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 4.2.3 through 4.2.3.7 of the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District: Whether the activity will adversely affect the public health, safety or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the Basis of Review. . . . THE BASIS OF REVIEW The District has adopted the BOR and incorporated it by reference by Florida Administrative Code Rule 40E- 4.091(1)(a). The standards and criteria found in the BOR are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Section 1.3 of the BOR provides, in part, as follows: . . . Compliance with the criteria established herein [the BOR] constitutes a presumption that the project proposal is in conformance with the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302, F.A.C. WATER QUANTITY The term “control elevation” describes the level of freshwater water bodies established by a SWM system. The existing SWM system has a control elevation of 17’ NGVD. The control elevation for the proposed lake system will be raised to 18’ NGVD, and the control elevation for the proposed Natural Area will be raised to 19’ NGVD. Raising the control elevations will permit more treatment of storm water prior to discharge and will permit a more controlled discharge. In addition, raising the control elevation will lessen seepage onto the project site from adjacent wetlands. The Applicants provided reasonable assurances that the proposed project will not cause adverse water quantity impacts to receiving waters and adjacent lands, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E- 4.301(a). The Applicants provided reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E-4.301(b). The Applicants provided reasonable assurances that the proposed project will not cause adverse impacts to existing surface water storage and conveyance capabilities, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E-4.301(c). VALUE OF FUNCTIONS OF WETLANDS AND SURFACE WATERS Florida Administrative Code Rule 40E-4.301(d), requires the Applicants to establish that “. . . the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system . . .” “. . . will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters.” The District established that the term “value of functions,” as used in the rule, refers to habitat and life support functions. Because there are no wetlands or delineated surface waters on the Mecca Farms site, there are no direct adverse impacts to the functions that wetlands provide to fish and wildlife. The Applicants have provided reasonable assurances to demonstrate that the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters will not be adversely affected. The existing project site does not contain nesting areas for wetland-dependent endangered or threatened wildlife species or species of special concern. The potential for use of the existing project site for nesting by such species is minimal. The existing project site does contain habitat for the American Alligator and foraging habitat for wading birds and birds of prey. The primary foraging habitat on the existing site is around the perimeter of the existing 272-acre impoundment area in the northeast portion of the site. The existing impoundment will be replaced by on-site storm water treatment lakes and the BRP Natural Area that will have shallow banks planted with wetland plant species common to the area. Wildlife is opportunistic; and wading birds commonly feed in areas where there is water, wetland vegetation and wetland plants. The end result will be that the proposed project will have more and better foraging habitat acreage than the existing site. The Natural Area will provide a wetland buffer between the developed area and CWMA that will prevent any adverse impacts both to the wetlands and other surface waters in CWMA and to the value of the functions those wetlands and other surface waters provide to fish, wildlife, and listed species. The Natural Area will provide a wetland buffer between the developed area and Unit 11 that will prevent any adverse impacts both to the wetlands and other surface waters in Unit 11 and to the value of the functions those wetlands and other surface waters provide to fish, wildlife, and listed species. There was no competent evidence that the proposed project would impact the ability of the Florida Fish and Wildlife Conservation Commission to manage the CWMA through control burns or otherwise, thereby adversely affecting the diversity or abundance of fish and wildlife (including endangered species and their habitats). Petitioners attempted to raise the issue of mosquito control in their Petitions and at the Final Hearing. The allegations pertaining to mosquito control were struck by the District and Special Condition Number 26 was added before the Petitions were referred to DOAH. Petitioners made no attempt to amend their Petitions and have not challenged Special Condition 26. The Addendum to Staff Report (SFWMD Ex. 2) contains the following Special Condition Number 26: “Upon submittal of an application for construction of any buildings, the permittee shall submit a mosquito control plan for review and approval by District Staff.” Since there will be no buildings containing people or other facilities which would encourage the use of mosquito spraying, it is appropriate for the mosquito control condition to apply to only future phases of construction. There was no competent evidence of impacts attributable to pesticides associated with the application for the SWM system or for Phase 1A construction and operation that would adversely affect the diversity or abundance of fish and wildlife including endangered species and their habitats. The Applicants have satisfied the criteria set forth in Florida Administrative Code Rule 40E-4.301(d). WATER QUALITY The primary concern during Phase 1A construction will be erosion control. Best Management Practices (“BMPs”) are operational and design elements used to either eliminate or reduce the amount of pollutants at the source so they do not get into a SWM system or move downstream. To contain erosion in Phase 1A, the Applicants will use the following BMPs: Silt screens and turbidity barriers within existing ditches and around the perimeter of property. Planned construction sequencing to reduce movement and stock piling of material; Slope stabilization and seeding or sodding of graded areas; and Containment of construction materials with berms. All erosion and turbidity control measures will remain in place until the completion of the on-site construction and approval by the District’s post-permit compliance staff. The Applicants provided reasonable assurances that the proposed Phase 1A construction activities will not adversely impact the quality of receiving waters and that those activities will not violate State water quality standards. Section 5.2.1, BOR, requires that a SWM system provide wet detention for the first one inch of runoff. The proposed SWM system will provide wet detention for one and one-half inches of runoff. The Applicants provided reasonable assurances to demonstrate that the technical criteria in the BOR will be met. Under Section 1.3 of the BOR, compliance with the criteria in the BOR constitutes a presumption that the Proposed Project is in conformance with the conditions for issuance. This presumption was not rebutted by the Petitioners. The lake system will include planted littoral zones to provide additional uptake of pollutants. A filter marsh is also included in the southern lake. All of the storm water runoff from the lakes will pass through the filter marsh, which will be planted with wetland plants. The filter marsh will provide additional polishing of pollutants, uptake, and filtering through the plants. The discharge will then go into the BRP, which will provide the discharge additional uptake and filtering. BMPs utilized during the Operations and Maintenance phase will include regular maintenance inspections and cleaning of the SWM system, street-sweeping, litter control programs, roadway maintenance inspections and repair schedule, municipal waste collection, pollution prevention education programs, pesticides, herbicides and fertilizer storage, and application training and education. The littoral zones, filter marsh, BRP natural area, and BMPs were not included in the water quality calculations and are over and above rule requirements. The Applicants provided reasonable assurances to demonstrate that the proposed project will not adversely affect the quality of receiving waters. Therefore, Rule 40E- 4.301(1)(e), F.A.C., will be satisfied and water quality standards will not be violated. HAZARDOUS SUBSTANCES Pursuant to Section 5.5.5 of the BOR, commercial or industrial zoned projects shall provide at least one-half inch of dry detention or retention pretreatment as part of the required retention/detention, unless reasonable assurances can be offered that hazardous materials will not enter the project's SWM system. The Addendum to Staff Report reflects the following Special Condition 25 pertaining to hazardous materials: Upon submittal of an application for construction of commercial or industrial uses the permittee shall submit a plan that provides reasonable assurances that hazardous materials will not enter the surface water management system pursuant to the requirements of section 5.2.2(a) of the Basis of Review. Applicable permitting criteria does not require the Applicants to present a hazardous substances plan at this point because no facilities that will contain hazardous materials are part of the Phase 1A construction. SECONDARY IMPACTS Florida Administrative Code Rule 40E-4.301(1)(f) and Section 4.1.1(f) of the BOR, require an applicant to provide reasonable assurances that the proposed activities will not cause adverse secondary impacts to the water resources. A secondary impact is an indirect effect of a project resulting in adverse effects to wetlands or other surface waters. The District considers those adverse effects that would not occur "but for" the activities that are closely linked and causally related to the activity under review. This standard is discussed further in the Conclusions of Law section of this Recommended Order. The County’s Exhibit 3 is a secondary impact analysis identifying the secondary impacts that may potentially result from the proposed project. These impacts are: 1) the widening of SPW Road; 2) the construction of an FPL substation; 3) the extension of PGA Boulevard; and 4) the potential relocation of a runway at North County Airport. The secondary impact analysis performed pursuant to the Uniform Mitigation Assessment Method (UMAM) contained in Florida Administrative Code Chapter 62-345 reflects that up to 153.3 acres of wetlands may be partially or completely impacted by these secondary impacts, resulting in approximately 71.21 units of functional loss. Where future activities are expected to directly impact wetlands, secondary impacts were assessed based on the loss of all current functional value within the direct footprint of that activity. Additionally, an assessment was conducted to determine the degree of partial functional loss where impacts beyond the footprint of these activities are anticipated. SPW Road is an existing dirt road which is in the County's five-year road plan to widen as a four-lane paved road. Because the widening of the existing dirt road to a four-lane paved road is part of the five-year road plan, the impacts of that widening are not attributable to the subject project. However, as part of the proposed project, it is proposed to widen SPW Road to a six-lane paved road. The additional impacts associated with the widening from four to six lanes will be caused by, and are linked to, the proposed project. These impacts amount to approximately 2.2 acres. The FPL substation, which is proposed to service the proposed project, may result in 1.6 acres of potential direct impacts to wetlands. In addition, 1.0 acre of potential indirect secondary impacts may occur to wetlands that are not going to be dredged and filled. Those indirect secondary impacts may have some adverse impact on the functional value to those wetlands for wildlife utilization. The extension of PGA Boulevard to the Mecca Farms site has the potential to result in 45.6 acres of direct impacts to wetlands and 56.6 acres of indirect secondary wetland impacts which will not be dredged or filled, but will be in close proximity to the road. The secondary impact assessment for PGA Boulevard assumed the incorporation of wildlife crossings to minimize habitat fragmentation. If the airport runway needs to be shifted, potential direct wetland impacts to an additional 22.7 acres may occur. Indirect impacts to 23.6 acres of wetlands in close proximity could also occur. Runway relocation may or may not be necessary due to the PGA Boulevard extension; however, the analysis assumed the need for the relocation. Each of the projects listed above as potential secondary impacts will require a separate construction and operation permit from the District. The issuance of this permit does not in any way guarantee the issuance of permits for any of these identified potential secondary impacts. MITIGATION PLAN The Applicants provided a conceptual mitigation plan using UMAM to demonstrate how potential secondary impacts could be offset. Mitigation options have the potential to provide more than twice the functional gain than the functional loss from the identified secondary impacts. The conceptual mitigation options include: 194 acres of the land that had been acquired for future mitigation needs in Unit 11. 227 acres of the BRP natural area. 32.6 acres in the southern lake wetland along with proposed upland habitat. Sufficient mitigation is available in these options to offset the potential secondary impacts. The mitigation for the four potential secondary impacts is not required to be implemented now because the impacts are not occurring now. Section 4.2.7 of the BOR requires that the District consider those future impacts now and that a conceptual mitigation plan be provided to demonstrate and provide reasonable assurances that those impacts, in fact, can be offset in the future. The Governor and Cabinet sitting as the Board of Trustees considered and approved a request for public easement of approximately 30 acres to use a portion of CWMA for SPW Road, an FPL substation, and the land area that may be needed by District in the future for the connection to the flow-way. As consideration in exchange for the public easement over 30 acres, the County will transfer fee simple title of 60 acres to the State. This public easement also provides a benefit for CERP as it includes the small portion that the District is going to need for its future CERP project to connect to the flow-way on the proposed project site. The Applicants provided reasonable assurances that mitigation will offset secondary impacts to wetlands and other surface waters. UNIDENTIFIED SECONDARY IMPACTS Testimony at the final hearing raised a question as to whether there is nesting or roosting by listed wading bird species in adjacent off-site wetlands outside the eastern boundary of the project site. Evidence was inconclusive on nesting or roosting in these areas. Because the status of adjacent listed wading bird nesting or roosting is uncertain, the District suggested in its Proposed Recommended Order that a special condition requiring a wildlife survey prior to construction near the eastern project boundary be added to the permit as follows: Prior to application for construction within 1000 feet of the eastern boundary of the above-ground impoundment, the applicant shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. The District represented in its Proposed Recommended Order that the County has no objection to adding the foregoing condition. CUMULATIVE IMPACTS Pursuant to Section 373.414(8), Florida Statutes, the District is required to consider cumulative impacts upon wetlands and other surface waters delineated in Section 373.421(1), Florida Statutes, within the same drainage basin. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. The cumulative impact analysis is geographically based upon the drainage basins described in Figure 4.2.8-1 of the BOR. Cumulative impacts are unacceptable when they would result in unacceptable adverse impacts to the functions of wetlands and surface waters within a drainage basin. There are no wetlands or other surface waters delineated pursuant to Section 373.421(1), Florida Statutes, on the Mecca Farms site. Therefore, no cumulative impacts are created by the direct impacts of the project. Cumulative impacts may be created by a project's secondary impacts. If a wetland impact has been appropriately mitigated on-site within the drainage basin, there is no residual impact, and therefore no cumulative impact. The PGA Boulevard extension, a portion of the SPW Road widening, and the airport runway relocation are located within the C-18 Basin. The proposed mitigation options are all located in the C-18 Basin and will offset those impacts. Those potential secondary impacts are considered to meet the cumulative impact requirements of Section 373.414(8), Florida Statutes. The Applicants provided reasonable assurances that the proposed project will not result in cumulative impacts to the C-18 Basin. The FPL substation is located within the L-8 Drainage Basin. The majority of the SPW Road expansion is located within the C-18 Basin, but a portion is located on the basin line between the C-18 Basin and the L-8 Basin. Because the mitigation for the L-8 impacts are proposed in a different basin, the Applicants were required to conduct a cumulative impact analysis for the L-8 Basin impacts. Based on the Florida Land Use Cover Classification System, there are 43,457 acres of freshwater wetlands within the L-8 Basin. Approximately 41,000 acres of the wetlands in L-8 Basin are in public ownership. This total constitutes approximately 95 percent of all the wetlands in the L-8 Basin. Public ownership of these wetlands provide a high level of assurance that these lands will be protected in perpetuity. The Respondents established that proposed mitigation can fully offset the potential impacts from the SPW Road expansion and the FPL substation and the approximately four acres of impacted wetlands in the L-8 Basin. The Applicants provided reasonable assurances that there are no unacceptable adverse cumulative impacts on the L-8 Basin.4 GROUND WATER FLOWS, SURFACE WATER FLOWS, AND MINIMUM FLOWS AND LEVELS Florida Administrative Code Rule 40E-4.301(1)(g) requires an applicant to provide reasonable assurances that the proposed activity will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The term "maintenance of surface and groundwater levels or surface water flows" in Florida Administrative Code Rule 40E-4.301(1)(g) means that a project will not adversely impact the maintenance of surface water flows that contribute to meeting the minimum flow for the water body. An adverse impact to the maintenance of surface or groundwater levels or surface water flows may occur when a project discharging to a water body with a designated minimum flow level is proposed to be diverted. An analysis was done to compare the peak discharge rate from the existing SWM system on the Mecca Farms site with the projected peak discharge rate from the proposed SWM system. The analysis showed that the peak discharge rate under the proposed system will be less than that of the existing system. That result was expected since the proposed system will have higher control elevations, which, as noted above, will provide better treatment and permit a better control of the discharge into the C-18 Canal. Under the existing SWM system, storm event water in a dry period is frequently stored in the existing impoundment for future irrigation purposes. Under the proposed SWM system such storm event water will be discharged downstream, which will benefit those downstream areas during dry periods. The proposed system will also provide better control over pulse discharges during heavy storm events. The Applicants provided reasonable assurances that the proposed activities will not adversely impact the maintenance of surface or ground levels or surface water flows as required by Florida Administrative Code Rule 40E-4.301(1)(g). THE DISTRICT’S OBJECTIVES Sections 373.414 and 373.416, Florida Statutes, require an applicant to provide reasonable assurances that a regulated activity will not be harmful to the water resources and will not be inconsistent with the overall objectives of the District. Congress initially authorized the Central and Southern Florida (“C&SF”) Project in 1948. Thereafter extensive work was undertaken pertaining to flood control; water supply for municipal, industrial, and agricultural uses; prevention of saltwater intrusion; and protection of fish and wildlife. The work included construction of a primary system of 1000 miles each of levees and canals, 150 water-control structures, and 16 major pump stations. Unintended consequences of the C&SF Project have included the irreversible loss of vast areas of wetlands, including half of the original Everglades; the alteration in the water storage, timing, and flow capacities of natural drainage systems; and the degradation of water quality and habitat due to over-drainage or extreme fluctuations in the timing and delivery of fresh water into the coastal wetlands and estuaries. In 1992, Congress authorized the C&SF Project Comprehensive Review Study, which is generally referred to as the “Restudy.” The objective of the Restudy was to reexamine the C&SF Project to determine the feasibility of modifying the project to restore the South Florida ecosystem and provide for the other water-related needs of the region, such as water supply and flood protection. In April 1999, the U.S. Army Corps of Engineers issued the Central and Southern Florida Project Comprehensive Review Study Final Integrated Feasibility Report and Programmatic Environmental Impact Statement (“Restudy Report”). The Restudy Report recommends a comprehensive plan for the restoration, protection, and preservation of the water resources of Central and South Florida. The resulting plan is known as CERP. The North Palm Beach County Part I project, which includes restoration of the Northwest Fork of the Loxahatchee River (“NWFLR”), is a component of CERP. The successful completion of CERP and the successful restoration of the NWFLR are high-priority objectives of the District. The Loxahatchee River is an important feature of the South Florida ecosystem, nationally and internationally unique, and an important natural and economic resource. Rules pertaining to MFL for the NWFLR and for the recovery of the NWFLR are found at Florida Administrative Code Rule 40E-8.011; 40E-8.221(4); and 40E-8.421. Recovery goals, which are not presently being met, have been established; and strategies to meet those goals have been identified. The Mecca Farms site is located within the boundaries of the CERP North Palm Beach County Part I project and has the potential to affect CERP and the restoration of the NWFLR. Projects that potentially would affect or would be within or adjacent to a CERP project are evaluated on a case-by- case basis to determine whether a proposed project would not be inconsistent with CERP and other District objectives. There was a dispute between Respondents and Petitioners as to whether the proposed project was inconsistent with the District’s objectives, including CERP and its goals pertaining to the restoration of the NWFLR. Petitioners contend that the District has insufficient evidence that the Mecca Farms will not be needed for the construction of a reservoir. That contention is rejected. The greater weight of the credible evidence established that sufficient storage is available at a superior site known as the Palm Beach Aggregates (PBA) site in the L-8 Basin, which is a unique geological site that will provide in-ground storage of water.5 Water from the PBA storage site can be conveyed to the NWFLR to increase dry season flows. Water can be stored at the PBA site in the wet season to prevent potentially damaging high flows. The L-8 Basin, which is adjacent to the C-18 Basin, receives more water during the wet season than it uses. This means that at present a significant amount of water must be discharged to tide (lost) during the wet season to provide for flood protection in this area. As envisioned, the water currently lost to tide could be stored at the PBA site for use during the dry season. By combining the water storage in the L-8 Basin with connective flow-ways to the C-18 Canal, water demands within the C-18 Basin, including the NWFLR, can also be met by the PBA storage site.6 An increase in freshwater flows to the NWFLR will further the District’s restoration goals for the NWFLR. Storage at PBA has regional benefits for other significant natural areas because it will provide additional flows to the Loxahatchee Slough and Grassy Waters Preserve. Those additional flows will further the District’s CERP goals. Since October of 2003, County staff and the District’s ERP staff have coordinated review of the subject project with the District’s CERP Planning and Federal Projects Division and other District staff working on projects in this region. The County asked the District to determine if the Mecca Farms’ site could in some way accommodate CERP objectives, and three alternatives were considered: 1) no action; 2) a reservoir; and 3) a flow-way. As opposed to a reservoir, the more valuable and the more practical, use of the Mecca Farms site would be as part of the system to convey the stored water to the areas that would most benefit from its discharge. The proposed flow-way in the BRP Natural Area would be an integral part of that conveyance system and would provide the District with greater flexibility in managing and directing the discharge of the water stored at the PBA site. Prior to the development of the flow-way concept as part of the proposed development, CERP identified a single route to take water from PBA to the NWFLR. The flow-way will provide an additional route from PBA to the NWFLR. That additional route will provide the District with greater operational flexibility. The flow-way will complement the L-8 Basin flow- way and help reduce peak flows to the NWFLR and the Estuary. The flow-way also provides a potential route allowing excess water to be brought back from the C-18 Basin to the PBA site for storage. There are no other potential routes that allow water to be directed from the C-18 Basin in the wet season to the PBA site. The flow-way provides a feature that was not part of the CERP original plan and is therefore an unanticipated benefit for CERP. The Applicants provided reasonable assurances that the proposed project is not inconsistent with the District’s objectives.7
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the District issue the subject ERP for the conceptual approval of the SWM system for the BRP and the Phase 1A construction and operation subject to the general and special conditions set forth in the Staff Report and the Amended Staff Report. It is further RECOMMENDED that the District add the following special condition: Prior to application for construction within 1000 feet of the eastern boundary of the above-ground impoundment, the applicants shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. DONE AND ENTERED this 3rd day of December, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 3rd day of December, 2004.
Findings Of Fact Background Respondent Telese is the owner and developer of Egret Woods Subdivision on real property contiguous to state waters in Pinellas County, Florida. The property is near the incorporated areas of Indian Shores and Largo. A residential subdivision borders the project locale to the east, and tidal mangrove swamps fringe the property to the west. An intracoastal connecting waterway known as the "Narrows" lies to the west of the swamps. These state waters connect Boca Ceiga Bay and Clearwater Harbor. The proposed subdivision area is an upland strip between the existing subdivision and the tidal swamp adjacent to the "Narrows". The uplands are predominantly vegetated by live oak, saw palmettos and slash pines. In order to develop the property, and to reconfigure lots from a previously platted subdivision, Respondent Telese applied for a permit from DER to fill 0.12 acres of DER jurisdictional wetlands located at the development site. The application for the permit represents that 340 cubic yards of clean, non-deleterious sandy loam is needed to fill disturbed high marsh areas and other low areas on the proposed lots. Respondent Telese has also requested permission to install culverts in the two conveyance/mosquito ditches that run through the lots before they reach their discharge points outside of the proposed lot lines. The Petitioners are owners of single-family homes within the subdivision to the east known as Whispering Pines Forest, 5th Addition. These property owners filed a Petition in which they disputed the appropriateness of the Notice of Intent to Issue filed by DER on August 21, 1990. In support of their position, the Petitioners identified a number of areas of controversy they contend should cause DER to reverse its preliminary decision to grant the "dredge and fill" permit on this project. Elimination of Natural Drainage The first area of controversy is the Petitioners' contention that their interests are substantially effected by the elimination of natural drainage from their subdivision into the uplands referred to as Egret Woods Subdivision. The entire area was owned by the same developer prior to the creation of Whispering Pines Forest 5th Addition. Essentially, the Petitioners allege that a subservient estate was created on these adjacent lands for their surface water drainage purposes which the proposed development eliminates. A review of the Notice of Intent to Issue reveals that culverts are to be placed in two of the open conveyance ditches currently transporting surface water runoff from Whispering Pines Forest 5th Addition through the uplands of Egret Woods into the wetlands. While this proposed change in the means of conveyance of the surface water may not affect the volume of water conveyed, it could adversely effect the quality of the water at the discharge points into the wetlands. At hearing, the Petitioners were unable to clearly articulate their concerns about this water quality issue. However, it is intricately interwoven into the surface water management issues. The water quality concern was obliquely referred to in the Biological and Water Quality Assessment Report where DER's application appraiser commented that the proposed conservation easements and the mitigation plantings, which replace the high marsh removed for lot reconfiguration, are sufficient to offset the potential adverse impacts of the requested fill and culvert changes to the existing water quality at the project site. Although this particular water quality issue was properly addressed by DER in its review of the permit application, it was not clearly set forth in the Notice of Intent to Issue. There is no way for a person whose substantial interests are affected by the proposed permitting decision to determine that DER had considered mitigation measures to prevent this adverse effect. A decrease in surface water quality would have been caused by the marsh elimination and the placement of culverts if the marsh had not been replanted, and other mitigative measures had not occurred at the locale. The Petitioners properly requested a formal administrative hearing to address surface water management issues as DER's consideration of the matter was not made clear to them in the Notice of Intent to Issue. The written report that discusses water quality as it relates to the mitigation plan was provided to Petitioner's post-hearing, after a copy of the written appraisal was sent to the Hearing Officer and all parties by DER. Planned Roadway The second area of controversy is the Petitioner's concern about the effects of the planned roadway on their properties. As the planned roadway involves the county, it is not a matter considered in the dredge and fill permit. Neither DER nor the Hearing Officer has subject matter jurisdiction. The Petitioners did not pursue this area of controversy or the road location at hearing based upon the Hearing Officer's ruling that it was not relevant to this permit review. High Water Mark and the Setting of the DER Jurisdictional Line The third area of controversy raised by Petitioners involves their collective concern about a variance in the height of the Mean High Water Line on the property on different documents presented to different agencies. The current survey for DER completed by the surveyor shows the Mean High Water Line at 1.16, while the survey submitted to Pinellas County in 1981 from the same surveyor reads the Mean High Water Line at 1.25. This was explained at hearing by the surveyor. It was his opinion as a professional surveyor that there is no basic difference between these two mean high water lines. Since the survey to the county in 1981, the Mean High Water Line has varied between 3 - 3 1/2 feet in some areas. The same methodology and simple mathematical formula was used by him during the two different surveys which were about eight years apart. The difference in the two surveys is within the tolerance level accepted within the industry and needs no further reconciliation. As a correlative issue, Petitioners raise a concern about the change in DER's jurisdictional line on various documents involving this same site over a number of years. DER's jurisdictional lines have changed since the "Hendersons Wetland Act" enacted on October 1, 1984. The jurisdictional line as depicted on this permit application was established by dominant plant species as defined in Rule 17-301.400, Florida Administrative Code, just prior to the application submission. This was the correct way to determine jurisdiction on the property at this particular point in time. Although the mean high water line may have been determinative of DER's jurisdiction on earlier permits, only the current law applies to the facts of this case. DER reviewed the jurisdictional lines as depicted on the property by Respondent Telese's consultant and found them to be properly placed during the processing of the permit application. Historical DER jurisdictional lines and permit reviews are irrelevant to this permit review as it is based upon the agency's current rules the applicable statutory criteria, and current site conditions. Fill Calculations The fourth area of controversy involves the Respondent's request to place fill on the site. When Petitioners used an engineer's scale to measure the areas to be filled on the permit drawings, their volume calculations reveal that more fill will be needed than represented on the permit application. Petitioners are concerned that this error could cause DER to approve a permit which does not accurately depict site conditions. The actual fill calculations were done by the professional engineer with a computer model based upon average elevations, depth and area. In his professional engineering opinion, his calculations were accurate, which was given great weight by the Hearing Officer. The drawings used by the Petitioners to calculate the required fill for the area were pictorial communications of what the Respondent Telese intended to accomplish at the site. These drawings were designed for descriptive purposes only and were not scaled to the extent that they could be accurately used for fill calculations in the manner applied by Petitioners. The computer modeling used by the professional engineer was the more prudent approach to the on-site fill requirements. De Novo Permit Review Although the wetlands resource permit requested by Respondent Telese is commonly referred to as a "dredge and fill" permit, there is no dredging associated with the project. The proposed placement of fill in the high marsh area of tidal wetlands on the property and the culvert placement requires construction activity in Class III Waters. Water quality impacts to the area will be a short term problem as water turbidity should take place only during construction. Specific conditions regarding construction techniques have been placed in the permit as permit conditions to minimize the impacts. There is no factual dispute as to whether the proposed conservation easement, the replacement and enlargement of the high marsh in another location, the removal of exotics such as Brazilian Pepper trees, and the planting of black mangroves will sufficiently mitigate the adverse impacts on water quality and the public interests at the proposed development. Without the replacement of the disturbed high marsh with high marsh plantings at a 1.91:1 ratio, the enhancement of the property through exotic removal, and the conservation easements at a 132:1 ratio, the Respondent Telese is unable to provide reasonable assurances that the project is not contrary to the public interest under the statutory criteria established in Section 403.918, Florida Statutes. The proposed project will not adversely affect the public health, safety, or welfare or the property of others. The flooding anticipated by the Petitioners is speculative, and has not been directly related to the fill placement and the culverts in the two conveyance/mosquito ditches. Conservation of fish and wildlife and their habitats, will not be adversely affected due to the high marsh replacement and the fact that the area provided only marginal wetland habitat prior to the permit application due to the invasion of exotics at the site. Any impact from the proposed project on this public interest criterion is offset by the mitigation plan. The project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the project. The proposed plantings of black mangroves and the removal of exotics, along with the new high marsh swamp should enhance the productivity of the area. No future projects of a similar nature can be developed at this locale due to the conservation easements the Respondent Telese has consented to provide over the remaining undeveloped property owned by him in the area. These easements will allow the Department to limit and control activities that may be undertaken in these tidal waters to prevent degradation of the site from an environmental standpoint. The mitigation planting schedule provides reasonable assurances that water quality standards will not be violated in the area as a result of culvert placement in the two conveyance/mosquito ditches that transport surface water to Class III waters of the state. Balancing of Interests In the "dredge and fill" permit application appraisal, site review, and Notice of Intent to Issue, DER considered and balanced all of the required statutory criteria to determine that the project is not contrary to the public interest or applicable water quality standards. Area of Controversy All of the areas of controversy raised by the Petitioners which are within the Division of Administrative Hearings' jurisdiction, have been sufficiently met by the reasonable assurances of Respondent Telese and the permit conditions required by DER. Based upon the evidence presented at hearing, it is concluded that the harms anticipated by Petitioners will not occur. Recommendation Regarding the Assessment of Attorneys Fees and Costs Petitioners did not participate in this proceeding for an improper purpose. The Notice of Intent to Issue was vague as to how interests were balanced and how the mitigation would offset the adverse impacts that concerned Petitioners. The petition was filed and prosecuted in good faith and addressed legitimate concerns of concerned citizenry who reside on adjacent lands.
Recommendation Based upon the foregoing, it is recommended: That a Final Order be entered approving Respondent's Telese's dredge and fill permit number 521715273, pursuant to the Notice of Intent to Issue filed August 21, 1990. That Petitioners should not be assessed attorney fees and costs as they did not participate in these proceedings for an improper purpose. RECOMMENDED this 28th day of June, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7035 Petitioners' proposed findings of fact are addressed as follows: Accepted. See HO #11. Rejected. Does not allow for change in seasons or conditions. See HO #11. Accepted. See HO #11. Accepted. See HO #15. Accepted. Rejected. Not within Hearing Officer's subject matter jurisdiction. Irrelevant to this proceeding. Accepted. See HO #3. Respondent Telese's proposed findings of fact are addressed as follows: Accepted. See HO #1, #2 and #18. Accepted. See HO #1, #2, #20 and #23. Accepted. See HO #20 and #21. Accepted. See HO #21. Accepted. See HO #22 - #27. Accepted. See HO #13 and #16. Denied. Contrary to fact. See HO #4 - #17. DER's proposed findings of fact are addressed as follows: 1. Accepted. See HO #1 and #2. 2. Accepted. See HO #1. 3. Accepted. See HO #1 - #3. 4. Accepted. See HO #2, #18 and #20. 5. Accepted. See HO #20, #21 and #24. 6. Accepted. 7. Accepted. 8. Accepted. 9. Accepted. 10. Accepted. 11. Accepted. 12. Accepted. 13. Accepted. 14. Accepted. 15. Accepted. 16. Accepted. 17. Accepted. See HO #19. 18. Accepted. 19. Accepted. See HO #19. 20. Accepted. See HO #21. 21. Accepted. See HO #18. COPIES FURNISHED: Ines D. Degnan 8410-144th Lane North Seminole, Florida 34636 David R. Chirington 8400-144th Lane North Seminole, Florida 34646 Alton Jeffcoat 8340-144th Lane North Seminole, Florida 34646 Carol B. Newton 8450-144th Lane North Seminole, Florida 34646 Steven M. Siebert, Esquire JOHNSON BLAKELY POPE BOKOR RUPPEL & BURNS, P.A. 911 Chestnut Street Clearwater, Florida 34616 W. Douglas Beason, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The issue to be determined is whether Consumptive Use Permit No. 2-083-91926-3, and Environmental Resource Permit No. IND-083-130588-4 should be issued as proposed in the respective proposed agency actions issued by the St. Johns River Water Management District.
Findings Of Fact The Parties Sierra Club, Inc., is a national organization, the mission of which is to explore, enjoy, and advocate for the environment. A substantial number of Sierra Club’s 28,000 Florida members utilize the Silver River, Silver Springs, the Ocklawaha River, and the St. Johns River for water-based recreational activities, which uses include kayaking, swimming, fishing, boating, canoeing, nature photography, and bird watching. St. Johns Riverkeeper, Inc., is one of 280 members of the worldwide Waterkeepers Alliance. Its mission is to protect, restore, and promote healthy waters of the St. Johns River, its tributaries, springs, and wetlands -- including Silver Springs, the Silver River, and the Ocklawaha River -- through citizen- based advocacy. A substantial number of St. Johns Riverkeeper’s more than 1,000 members use and enjoy the St. Johns River, the Silver River, Silver Springs, and the Ocklawaha River for boating, fishing, wildlife observation, and other water-based recreational activities. Karen Ahlers is a native of Putnam County, Florida, and lives approximately 15 miles from the Applicant’s property on which the permitted uses will be conducted. Ms. Ahlers currently uses the Ocklawaha River for canoeing, kayaking, and swimming, and enjoys birding and nature photography on and around the Silver River. Over the years, Ms. Ahlers has advocated for the restoration and protection of the Ocklawaha River, as an individual and as a past-president of the Putnam County Environmental Council. Jeri Baldwin lives on a parcel of property in the northeast corner of Marion County, approximately one mile from the Applicant’s property on which the permitted uses will be conducted. Ms. Baldwin, who was raised in the area, and whose family and she used the resources extensively in earlier years, currently uses the Ocklawaha River for boating. Florida Defenders of the Environment (FDE) is a Florida corporation, the mission of which is to conserve and protect and restore Florida's natural resources and to conduct environmental education projects. A substantial number of FDE’s 186 members, of which 29 reside in Marion County, Florida, use and enjoy Silver Springs, the Silver River, and the Ocklawaha Aquatic Preserve, and their associated watersheds in their educational and outreach activities, as well as for various recreational activities including boating, fishing, wildlife observation, and other water-based recreational activities. Sleepy Creek Lands, LLC (Sleepy Creek or Applicant), is an entity registered with the Florida Department of State to do business in the state of Florida. Sleepy Creek owns approximately 21,000 acres of land in Marion County, Florida, which includes the East Tract and the North Tract on which the activities authorized by the permits are proposed. St. Johns River Water Management District (SJRWMD or District) is a water-management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. The Consumptive Use Permit The CUP is a modification and consolidation of two existing CUP permits, CUP No. 2-083-3011-7 and CUP No. 2-083- 91926-2, which authorize the withdrawal of 1.46 mgd from wells located on the East Tract. Although the existing CUP permits authorize an allocation of 1.46 mgd, actual use has historically been far less, and rarely exceeded 0.3 mgd. The proposed CUP modification will convert the authorized use of water from irrigation of 1,010 acres of sod grass on the East Tract, to supplemental irrigation of improved pasture for grass and other forage crops (approximately 97 percent of the proposed withdrawals) and cattle watering (approximately three percent of the proposed withdrawals) on the North Tract and the East Tract. An additional very small amount will be used in conjunction with the application of agricultural chemicals. CUP No. 2-083-3011-7 is due to expire in 2021. CUP No. 2-083-91926-2 is due to expire in 2024. In addition to the consolidation of the withdrawals into a single permit, the proposed agency action would extend the term of the consolidated permit to 20 years from issuance, with the submission of a compliance report due 10 years from issuance. Sleepy Creek calculated a water demand of 2.569 mgd for the production of grasses and forage crops necessary to meet the needs for grass-fed beef production, based on the expected demand in a 2-in-10 drought year. That calculation is consistent with that established in CUP Applicant’s Handbook (CUP A.H.) section 12.5.1. The calculated amount exceeds the authorized average allocation of 1.46 mgd. Mr. Jenkins testified as to the District’s understanding that the requested amount would be sufficient, since the proposed use was a “scaleable-type project,” with adjustments to cattle numbers made as necessary to meet the availability of feed. Regardless of demand, the proposed permit establishes the enforceable withdrawal limits applicable to the property. With regard to the East Tract, the proposed agency action reduces the existing 1.46 mgd allocation for that tract to a maximum allocation of 0.464 mgd, and authorizes the irrigation of 611 acres of pasture grass using existing extraction wells and six existing pivots. With regard to the North Tract, the proposed agency action authorizes the irrigation of 1,620 acres of pasture and forage grain crops using 15 center pivot systems. Extraction wells to serve the North Tract pivots will be constructed on the North Tract. The proposed North Tract withdrawal wells are further from Silver Springs than the current withdrawal locations. The proposed CUP allows Sleepy Creek to apply the allocated water as it believes to be appropriate to the management of the cattle operation. Although the East Tract is limited to a maximum of 0.464 mgd, there is no limitation on the North Tract. Thus, Sleepy Creek could choose to apply all of the 1.46 mgd on the North Tract. For that reason, the analysis of impacts from the irrigation of the North Tract has generally been based on the full 1.46 mgd allocation being drawn from and applied to the North Tract. The Environmental Resource Permit As initially proposed, the CUP had no elements that would require issuance of an ERP. However, in order to control the potential for increased runoff and nutrient loading resulting from the irrigation of the pastures, Sleepy Creek proposes to construct a stormwater management system to capture runoff from the irrigated pastures, consisting of a series of vegetated upland buffers, retention berms and redistribution swales between the pastures and downgradient wetland features. Because the retention berm and swale system triggered the permitting thresholds in rule 62-330.020(2)(d) (“a total project area of more than one acre”) and rule 62-330.020(2)(e) (“a capability of impounding more than 40 acre-feet of water”), Sleepy Creek was required to obtain an Environmental Resource Permit for its construction. Regional Geologic Features To the west of the North Tract is a geologic feature known as the Ocala Uplift or Ocala Platform, in which the limestone that comprises the Floridan aquifer system exists at or very near the land surface. Karst features, including subterranean conduits and voids that can manifest at the land surface as sinkholes, are common in the Ocala Uplift due in large part to the lack of consolidated or confining material overlaying the limestone. Water falling on the surface of such areas tends to infiltrate rapidly through the soil into the Floridan aquifer, occasionally through direct connections such as sinkholes. The lack of confinement in the Ocala Uplift results in few if any surface-water features such as wetlands, creeks, and streams. As one moves east from the Ocala Uplift, a geologic feature known as the Cody Escarpment becomes more prominent. In the Cody Escarpment, the limestone becomes increasingly overlain by sands, shell, silt, clays, and other less permeable sediments of the Hawthorn Group. The North Tract and the East Tract lie to the east of the point at which the Cody Escarpment becomes apparent. As a result, water tends to flow overland to wetlands and other surface water features. The Property The North and East Tracts are located in northern Marion County near the community of Fort McCoy. East Tract Topography and Historic Use The East Tract is located in the Daisy Creek Basin, and includes the headwaters of a small creek that drains directly to the Ocklawaha River. The historic use of the East Tract has been as a cleared 1,010-acre sod farm. The production of sod included irrigation, fertilization, and pest control. Little change in the topography, use, and appearance of the property will be apparent as a result of the permits at issue, but for the addition of grazing cattle. The current CUPs that are subject to modification in this proceeding authorize groundwater withdrawals for irrigation of the East Tract at the rate of 1.46 mgd. Since the proposed agency action has the result of reducing the maximum withdrawal from wells on the East Tract to 0.464 mgd, thus proportionately reducing the proposed impacts, there was little evidence offered to counter Sleepy Creek’s prima facie case that reasonable assurance was provided that the proposed East Tract groundwater withdrawal allocation will meet applicable CUP standards. There are no stormwater management structures to be constructed on the East Tract. Therefore, the ERP permit discussed herein is not applicable to the East Tract. North Tract Topography and Historic Use The North Tract has a generally flat topography, with elevations ranging from 45 feet to 75 feet above sea level. The land elevation is highest at the center of the North Tract, with the land sloping towards the Ocklawaha River to the east, and to several large wet prairie systems to the west. Surface water features on the North Tract include isolated, prairie, and slough-type wetlands on approximately 28 percent of the North Tract, and a network of creeks, streams, and ditches, including the headwaters of Mill Creek, a contributing tributary of the Ocklawaha River. A seasonal high groundwater elevation on the North Tract is estimated at 6 to 14 inches below ground surface. The existence of defined creeks and surface water features supports a finding that the North Tract is underlain by a relatively impermeable confining layer that impedes the flow of water from the surface and the shallow surficial aquifer to the upper Floridan and lower Floridan aquifers. If there was no confining unit, water going onto the surface of the property, either in the form of rain or irrigation water, would percolate unimpeded to the lower aquifers. Areas in the Ocala Uplift to the west of the North Tract, where the confining layer is thinner and discontiguous, contain few streams or runoff features. Historically, the North Tract was used for timber production, with limited pasture and crop lands. At the time the 7,207-acre North Tract was purchased by Sleepy Creek, land use consisted of 4,061 acres of planted pine, 1,998 acres of wetlands, 750 acres of improved pasture, 286 acres of crops, 78 acres of non-forested uplands, 20 acres of native forest, 10 acres of open water, and 4 acres of roads and facilities. Prior to the submission of the CUP and ERP applications, much of the planted pine was harvested, and the land converted to improved pasture. Areas converted to improved pasture include those proposed for irrigation, which have been developed in the circular configuration necessary for future use with center irrigation pivots. As a result of the harvesting of planted pine, and the conversion of about 345 acres of cropland and non-forested uplands to pasture and incidental uses, total acreage in pasture on the North Tract increased from 750 acres to 3,938 acres. Other improvements were constructed on the North Tract, including the cattle processing facility. Aerial photographs suggest that the conversion of the North Tract to improved pasture and infrastructure to support a cattle ranch is substantially complete. The act of converting the North Tract from a property dominated by planted pine to one dominated by improved pasture, and the change in use of the East Tract from sod farm to pasture, were agricultural activities that did not require a permit from the District. As such, there is no impropriety in considering the actual, legal use of the property in its current configuration as the existing use for which baseline conditions are to be measured. Petitioners argue that the baseline conditions should be measured against the use of the property as planted pine plantation, and that Sleepy Creek should not be allowed to “cattle-up” before submitting its permit applications, thereby allowing the baseline to be established as a higher impact use. However, the applicable rules and statutes provide no retrospective time-period for establishing the nature of a parcel of property other than that lawfully existing when the application is made. See West Coast Reg’l Water Supply Auth. v. SW Fla. Water Mgmt. Dist., Case No. 95-1520 et seq., ¶ 301 (Fla. DOAH May 29, 1997; SFWMD ) (“The baseline against which projected impacts conditions [sic] are those conditions, including previously permitted adverse impacts, which existed at the time of the filing of the renewal applications.”). The evidence and testimony in this case focused on the effects of the water allocation on the Floridan aquifer, Silver Springs, and the Silver River, and on the effects of the irrigation on water and nutrient transport from the properties. It was not directed at establishing a violation of chapter 373, the rules of the SJRWMD, or the CUP Applicant’s Handbook with regard to the use and management of the agriculturally-exempt unirrigated pastures, nor did it do so. Soil Types Soils are subject to classifications developed by the Soil Conservation Service based on their hydrologic characteristics, and are grouped into Group A, Group B, Group C, or Group D. Factors applied to determine the appropriate hydrologic soil group on a site-specific basis include depth to seasonal high saturation, the permeability rate of the most restrictive layer within a certain depth, and the depth to any impermeable layers. Group A includes the most well-drained soils, and Group D includes the most poorly-drained soils. Group D soils are those with seasonal high saturation within 24 inches of the soil surface and a higher runoff potential. The primary information used to determine the hydrologic soil groups on the North Tract was the depth to seasonal-high saturation, defined as the highest expected annual elevation of saturation in the soil. Depth to seasonal-high saturation was measured through a series of seven hand-dug and augered soil borings completed at various locations proposed for irrigation across the North Tract. In determining depth to seasonal-high saturation, the extracted soils were examined based on depth, color, texture, and other relevant characteristics. In six of the seven locations at which soil borings were conducted, a restrictive layer was identified within 36 inches of the soil surface. At one location at the northeastern corner of the North Tract, the auger hole ended at a depth of 48 inches -- the length of the auger -- at which depth there was an observable increase in clay content but not a full restrictive layer. However, while the soil assessment was ongoing, a back-hoe was in operation approximately one hundred yards north of the boring location. Observations of that excavation revealed a heavy clay layer at a depth of approximately 5 feet. In each of the locations, the depth to seasonal-high saturation was within 14 inches of the soil surface. Based on the consistent observation of seasonal-high saturation at each of the sampled locations, as well as the flat topography of the property with surface water features, the soils throughout the property, with the exception of a small area in the vicinity of Pivot 6, were determined to be in hydrologic soil Group D. Hydrogeologic Features There are generally five hydrogeologic units underlying the North Tract, those units being the surficial aquifer system, the intermediate confining unit, the upper Floridan aquifer, the middle confining unit, and the lower Floridan aquifer. In areas in which a confining layer is present, water falling on the surface of the land flows over the surface of the land or across the top of the confining layer. A surficial aquifer, with a relatively high perched water table, is created by the confinement and separation of surface waters from the upper strata of the Floridan aquifer. Surface waters are also collected in or conveyed by various surface water features, including perched wetlands, creeks, and streams. The preponderance of the evidence adduced at the final hearing demonstrates that the surficial aquifer exists on the property to a depth of up to 20 feet below the land surface (bls). Beneath the surficial aquifer is an intermediate confining unit of dense clay interspersed with beds of sand and calcareous clays that exists to a depth of up to 100 feet bls. The clay material observed on the North Tract is known as massive or structureless. Such clays are restrictive with very low levels of hydraulic conductivity, and are not conducive to development of preferential flow paths to the surficial or lower aquifers. The intermediate confining unit beneath the North Tract restricts the exchange of groundwater from the surficial aquifer to the upper Floridan aquifer. The upper Floridan aquifer begins at a depth of approximately 100 feet bls, and extends to a depth of approximately 340 feet bls. At about 340 feet bls, the upper Floridan aquifer transitions to the middle confining unit, which consists of finely grained, denser material that separates the interchange of water between the upper Floridan aquifer and the lower Floridan aquifer. Karst Features Karst features form as a result of water moving through rock that comprises the aquifer, primarily limestone, dissolving and forming conduits in the rock. Karst areas present a challenging environment to simulate through modeling. Models assume the subsurface to be a relatively uniform “sand box” through which it is easier to simulate groundwater flow. However, if the subsurface contains conduits, it becomes more difficult to simulate the preferential flows and their effect on groundwater flow paths and travel times. The District has designated parts of western Alachua County and western Marion County as a Sensitive Karst Area Basin. A Sensitive Karst Area is a location in which the porous limestone of the Floridan aquifer occurs within 20 feet of the land surface, and in which there is 10 to 20 inches of annual recharge to the Floridan aquifer. The designation of an area as being within the Sensitive Karst Area Basin does not demonstrate that it does, or does not, have subsurface features that are karstic in nature, or that would provide a connection between the surficial aquifer and the Floridan aquifer. The western portion of the North Tract is within the Sensitive Karst Area Basin. The two intensive-use areas on the North Tract that have associated stormwater facilities -- the cattle unloading area and the processing facility -- are outside of the Sensitive Karst Area Basin. The evidence was persuasive that karst features are more prominent to the west of the North Tract. In order to evaluate the presence of karst features on the North Tract, Mr. Andreyev performed a “desktop-type evaluation,” with a minimal field survey. The desktop review included a review of aerial photographs and an investigation of available data, including the Florida Geological Survey database of sinkhole occurrence in the area. The aerial photographs showed circular depressions suggestive of karst activity west and southwest of the North Tract, but no such depressions on the North Tract. Soil borings taken on the North Tract indicated the presence of layers of clayey sand, clays, and silts at a depth of 70 to 80 feet. Well-drilling logs taken during the development of the wells used for an aquifer performance test on the North Tract showed the limestone of the Floridan aquifer starting at a depth below ground surface of 70 to 80 feet. Other boring data generated on the North Tract suggests that there is greater than 100 feet of clay and sandy clay overburden above the Floridan aquifer on and in the vicinity of the North Tract. Regardless of site-specific differences, the observed confining layer separating the surficial aquifer from the Floridan aquifer is substantial, and not indicative of a karst environment. Aquifer performance tests performed on the North Tract were consistent in showing that drawdown in the surficial aquifer from the tests was minimal to non-detectable, which is strong evidence of an intact and low-permeability confining layer. The presence of well-developed drainage features on the North Tract is further evidence of a unit of confinement that is restricting water from going deeper into the subsurface, and forcing it to runoff to low-lying surface water features. Petitioners’ witnesses did not perform any site- specific analysis of karst features on or around the Sleepy Creek property. Their understanding of the nature of the karst systems in the region was described as “hypothetical or [] conceptual.” Dr. Kincaid admitted that he knew of no conduits on or adjacent to the North Tract. As a result of the data collected from the North Tract, Mr. Hearn opined that the potential for karst features on the property that provide an opening to the upper Floridan aquifer “is extremely remote.” Mr. Hearn’s opinion is consistent with the preponderance of the evidence in this case, and is accepted. In the event a surface karst feature were to manifest itself, Sleepy Creek has proposed that the surface feature be filled and plugged to reestablish the integrity of the confining layer. More to the point, the development of a surficial karst feature in an area influenced by irrigation would be sufficient grounds for the SJRWMD to reevaluate and modify the CUP to account for any changed conditions affecting the assumptions and bases for issuance of the CUP. Silver Springs, the Silver River, and the Ocklawaha River The primary, almost exclusive concern of Petitioners was the effect of the modified CUP and the nutrients from the proposed cattle ranch on Silver Springs, the Silver River, and the Ocklawaha River. Silver Springs Silver Springs has long been a well-known attraction in Florida. It is located just to the east of Ocala, Florida. Many of the speakers at the public comment period of this proceeding spoke fondly of having frequented Silver Springs over the years, enjoying its crystal clear waters through famous glass-bottomed boats. For most of its recorded history, Silver Springs was the largest spring by volume in Florida. Beginning in the 1970s, it began to lose its advantage, and by the year 2000, Rainbow Springs, located in southwestern Marion County, surpassed Silver Springs as the state’s largest spring. Silver Springs exists at the top of the potentiometric surface of the Floridan aquifer. Being at the “top of the mountain,” when water levels in the Floridan aquifer decline, groundwater flow favors the lower elevation springs. Thus, surrounding springshed boundaries expand to take more water to maintain their baseflows, at the expense of the Silver Springs springshed, which contracts. Rainbow Springs shares an overlapping springshed with Silver Springs. The analogy used by Dr. Knight was of the aquifer as a bucket with holes at different levels, and with the Silver Springs “hole” near the top of the bucket. When the water level in the bucket is high, water will flow from the top hole. As the water level drops below that hole, it will preferentially flow from the lower holes. Rainbow Springs has a vent or outlet from the aquifer, that is 10 feet lower in elevation than that of Silver Springs. Coastal springs are lower still. Thus, as groundwater levels decline, the lower springs “pirate flow” from the upper springs. Since the first major studies of Silver Springs were conducted in the 1950s, the ecosystem of Silver Springs has undergone changes. The water clarity, though still high as compared to other springs, has been reduced by 10 to 15 percent. Since the 1950s, macrophytic plants, i.e., rooted plants with seeds and flowers, have declined in population, while epiphytic and benthic algae have increased. Those plants are sensitive to increases in nitrogen in the water. Thus, Dr. Knight’s opinion that increases in nitrogen emerging from Silver Springs, calculated to have risen from just over 0.4 mg/l in the 1950s, to 1.1 mg/l in 2004, and to up to 1.5 mg/l at present,1/ have caused the observed vegetative changes is accepted. Silver River Silver Springs forms the headwaters for the Silver River, a spring run 5 1/2 miles in length, at which point it becomes a primary input to the Ocklawaha River. Issues of water clarity and alteration of the vegetative regime that exist at Silver Springs are also evident in the Silver River. In addition, the reduction in flow allows for more tannic water to enter the river, further reducing clarity. Dr. Dunn recognized the vegetative changes in the river, and opined that the “hydraulic roughness” caused by the increase in vegetation is likely creating a spring pool backwater at Silver Springs, thereby suppressing some of the flow from the spring. The Silver River has been designated as an Outstanding Florida Water. There are currently no Minimum Flows and Levels established by the District for the Silver River. Ocklawaha River The Ocklawaha River originates near Leesburg, Florida, at the Harris Chain of Lakes, and runs northward past Silver Springs. The Silver River is a major contributor to the flow of the Ocklawaha River. Due to the contribution of the Silver River and other spring-fed tributaries, the Ocklawaha River can take on the appearance of a spring run during periods of low rainfall. Historically, the Ocklawaha River flowed unimpeded to its confluence with the St. Johns River in the vicinity of Palatka, Florida. In the 1960s, as part of the Cross-Florida Barge Canal project, the Rodman Dam was constructed across the Ocklawaha River north of the Sleepy Creek property, creating a large reservoir known as the Rodman Pool. Dr. Knight testified convincingly that the Rodman Dam and Pool have altered the Ocklawaha River ecosystem, precipitating a decline in migratory fish populations and an increase in filamentous algae. At the point at which the Ocklawaha River flows past the Sleepy Creek property, it retains its free-flowing characteristics. Mill Creek, which has its headwaters on the North Tract, is a tributary of the Ocklawaha River. The Ocklawaha River, from the Eureka Dam south, has been designated as an Outstanding Florida Water. However, the Ocklawaha River at the point at which Mill Creek or other potential surface water discharges from the Sleepy Creek property might enter the river are not included in the Outstanding Florida Water designation. There are currently no Minimum Flows and Levels established by the District for the Ocklawaha River. The Silver Springs Springshed A springshed is that area from which a spring draws water. Unlike a surface watershed boundary, which is fixed based on land features, contours, and elevations, a springshed boundary is flexible, and changes depending on a number of factors, including rainfall. As to Silver Springs, its springshed is largest during periods of more abundant rainfall when the aquifer is replenished, and smaller during drier periods when groundwater levels are down, and water moves preferentially to springs and discharge points that are lower in elevation. The evidence in this case was conflicting as to whether the North Tract is in or out of the Silver Springs springshed boundary. Dr. Kincaid indicated that under some of the springshed delineations, part of the North Tract was out of the springshed, but over the total period of record, it is within the springshed. Thus, it was Dr. Kincaid’s opinion that withdrawals anywhere within the region will preferentially impact Silver Springs, though he admitted that he did not have the ability to quantify his opinion. Dr. Knight testified that the North Tract is within the Silver Springs “maximum extent” springshed at least part of the time, if not all the time. He did not opine as to the period of time in which the Silver Springs springshed was at its maximum extent. Dr. Bottcher testified that the North Tract is not within the Silver Springs springshed because there is a piezometric rise between North Tract and Silver Springs. Thus, in his opinion, withdrawals at the North Tract would not be withdrawing water going to Silver Springs. Dr. Dunn agreed that the North Tract is on the groundwater divide for Silver Springs. In his view, the North Tract is sometimes in, and sometimes out of the springshed depending on the potentiometric surface. In his opinion, the greater probability is that the North Tract is more often outside of the Silver Springs springshed, with seasonal and year—to—year variation. Dr. Dunn’s opinion provides the most credible explanation of the extent to which the North Tract sits atop that portion of the lower Floridan aquifer that feeds to Silver Springs. Thus, it is found that the groundwater divide exists to the south of the North Tract for a majority of the time, and water entering the Floridan aquifer from the North Tract will, more often than not, flow away from Silver Springs. Silver Springs Flow Volume The Silver Springs daily water discharge has been monitored and recorded since 1932. Over the longest part of the period of record, up to the 1960s, flows at Silver Springs averaged about 800 cubic feet per second (cfs). Through 1989, there was a reasonable regression between rainfall and springflow, based on average rainfalls. The long-term average rainfall in Ocala was around 50 inches per year, and long-term springflow was about 800 cfs, with deviations from average generally consistent with one another. Between 1990 and 1999, the relationship between rainfall and springflow declined by about 80 cubic feet per second. Thus, with average rainfall of 50 inches per year, the average springflow was reduced to about 720 cfs. From 2000 to 2009, there was an additional decline, such that the total cumulative decline for the 20-year period through 2009 was 250 cfs. Dr. Dunn agreed with Dr. Knight that after 2000, there was an abrupt and persistent reduction in flow of about 165 cfs. However, Dr. Dunn did not believe the post-2000 flow reduction could be explained by rainfall directly, although average rainfall was less than normal. Likewise, groundwater withdrawals did not offer an adequate explanation. Dr. Dunn described a natural 30-year cycle of wetter and drier periods known as the Atlantic Multidecadal Oscillation (AMO) that has manifested itself over the area for the period of record. From the 1940s up through 1970, the area experienced an AMO wet cycle with generally higher than normal rainfall at the Ocala rain station. For the next 30-year period, from 1970 up to 2000, the Ocala area ranged from a little bit drier to some years in which it was very, very dry. Dr. Dunn attributed the 80 cfs decline in Silver Springs flow recorded in the 1990s to that lower rainfall cycle. After 2000, when the next AMO cycle would be expected to build up, as it did post—1940, it did not happen. Rather, there was a particularly dry period around 2000 that Dr. Dunn believes to have had a dramatic effect on the lack of recovery in the post-2000 flows in the Silver River. According to Mr. Jenkins, that period of deficient rainfall extended through 2010. Around the year 2001, the relationship between rainfall and flow changed such that for a given amount of rainfall, there was less flow in the Silver River, with flow dropping to as low as 535 cfs after 2001. It is that reduction in flow that Dr. Knight has attributed to groundwater withdrawals. It should be noted that the observed flow of Silver Springs that formed the 1995 baseline conditions for the North Central Florida groundwater model that will be discussed herein was approximately 706 cfs. At the time of the final hearing in August 2014, flow at Silver Springs was 675 cfs. The reason offered for the apparent partial recovery was higher levels of rainfall, though the issue was not explored in depth. For the ten-year period centered on the year 2000, local water use within Marion and Alachua County, closer to Silver Springs, changed little -- around one percent per year. From a regional perspective, groundwater use declined at about one percent per year for the period from 1990 to 2010. The figures prepared by Dr. Knight demonstrate that the Sleepy Creek project area is in an area that has a very low density of consumptive use permits as compared to areas adjacent to Silver Springs and more clearly in the Silver Springs springshed. In Dr. Dunn’s opinion, there were no significant changes in groundwater use either locally or regionally that would account for the flow reduction in Silver Springs from 1990 to 2010. In that regard, the environmental report prepared by Dr. Dunn and submitted with the CUP modification application estimated that groundwater withdrawals accounted for a reduction in flow at Silver Springs of approximately 20 cfs as measured against the period of record up to the year 2000, with most of that reduction attributable to population growth in Marion County. In the March 2014, environmental impacts report, Dr. Dunn described reductions in the stream flow of not only the Silver River, but of other tributaries of the lower Ocklawaha River, including the upper Ocklawaha River at Moss Bluff and Orange Creek. However, an evaluation of the Ocklawaha River water balance revealed there to be additional flow of approximately 50 cfs coming into the Ocklawaha River at other stations. Dr. Dunn suggested that changes to the vent characteristics of Silver Springs, and the backwater effects of increased vegetation in the Silver River, have resulted in a redistribution of pressure to other smaller springs that discharge to the Ocklawaha River, accounting for a portion of the diminished flow at Silver Springs. The Proposed Cattle Operation Virtually all beef cattle raised in Florida, upon reaching a weight of approximately 875 pounds, are shipped to Texas or Kansas to be fattened on grain to the final body weight of approximately 1,150 pounds, whereupon they are slaughtered and processed. The United States Department of Agriculture has a certification for grass—fed beef which requires that, after an animal is weaned, it can only be fed on green forage crops, including grasses, and on corn and grains that are cut green and before they set seed. The forage crops may be grazed or put into hay or silage and fed when grass and forage is dormant. The benefit of grass feeding is that a higher quality meat is produced, with a corresponding higher market value. Sleepy Creek plans to develop the property as a grass- fed beef production ranch, with pastures and related loading/unloading and slaughter/processing facilities where calves can be fattened on grass and green grain crops to a standard slaughter weight, and then slaughtered and processed locally. By so doing, Sleepy Creek expects to save the transportation and energy costs of shipping calves to the Midwest, and to generate jobs and revenues by employing local people to manage, finish, and process the cattle. As they currently exist, pastures proposed for irrigation have been cleared and seeded, and have “fairly good grass production.” The purpose of the irrigation is to enhance the production and quality of the grass in order to maintain the quality and reliability of feed necessary for the production of grass-fed beef. East Tract Cattle Operation The East Tract is 1,242 acres in size, substantially all of which was previously cleared, irrigated, and used for sod production. The proposed CUP permit authorizes the irrigation of 611 acres of pasture under six existing center pivots. The remaining 631 acres will be used as improved, but unirrigated, pasture. Under the proposed permit, a maximum of 1,207 cattle would be managed on the East Tract. Of that number, 707 cattle would be grazed on the irrigated paddocks, and 500 cattle would be grazed on the unirrigated improved pastures. If the decision is made to forego irrigation on the East Tract, with the water allocation being used on the North Tract or not at all, the number of cattle grazed on the six center pivot pastures would be decreased from 707 cattle to 484 cattle. The historic use of the East Tract as a sod farm resulted in high phosphorus levels in the soil from fertilization, which has made its way to Daisy Creek. Sleepy Creek has proposed a cattle density substantially below that allowed by application of the formulae in the Nutrient Management Plan in order to “mine” the phosphorus levels in the soil over time. North Tract Cattle Operation The larger North Tract includes most of the “new” ranch activities, having no previous irrigation, and having been put to primarily silvicultural use with limited pasture prior to its acquisition by Sleepy Creek. The ranch’s more intensive uses, i.e., the unloading corrals and the slaughter house, are located on the North Tract. The North Tract is 7,207 acres in size. Of that, 1,656 acres are proposed for irrigation by means of 15 center- pivot irrigation systems. In addition to the proposed irrigated pastures, the North Tract includes 2,382 acres of unirrigated improved pasture, of which approximately 10 percent is wooded. Under the proposed permit, a maximum of 6,371 cattle would be managed on the North Tract. Of that number, 3,497 cattle would be grazed on the irrigated paddocks (roughly 2.2 head of cattle per acre), and 2,374 cattle would graze on the improved pastures (up to 1.1 head of cattle per acre). The higher cattle density in the irrigated pastures can be maintained due to the higher quality grass produced as a result of irrigation. The remaining 500 cattle would be held temporarily in high-concentration corrals, either after offloading or while awaiting slaughter. On average, there will be fewer than 250 head of cattle staged in those high-concentration corrals at any one time. In the absence of irrigation, the improved pasture on the North Tract could sustain about 4,585 cattle. Nutrient Management Plan, Water Conservation Plan, and BMPs The CUP and ERP applications find much of their support in the implementation of the Nutrient Management Plan (NMP), the Water Conservation Plan, and Best Management Practices (BMPs). The NMP sets forth information designed to govern the day to day operations of the ranch. Those elements of the NMP that were the subject of substantive testimony and evidence at the hearing are discussed herein. Those elements not discussed herein are found to have been supported by Sleepy Creek’s prima facie case, without a preponderance of competent and substantial evidence to the contrary. The NMP includes a herd management plan, which describes rotational grazing and the movement of cattle from paddock to paddock, and establishes animal densities designed to maintain a balance of nutrients on the paddocks, and to prevent overgrazing. The NMP establishes fertilization practices, with the application of fertilizer based on crop tissue analysis to determine need and amount. Thus, the application of nitrogen- based fertilizer is restricted to that capable of ready uptake by the grasses and forage crops, limiting the amount of excess nitrogen that might run off of the pastures or infiltrate past the root zone. The NMP establishes operation and maintenance plans that incorporate maintenance and calibration of equipment, and management of high-use areas. The NMP requires that records be kept of, among other things, soil testing, nutrient application, herd rotation, application of irrigation water, and laboratory testing. The irrigation plan describes the manner and schedule for the application of water during each irrigation cycle. Irrigation schedules for grazed and cropped scenarios vary from pivot to pivot based primarily on soil type. The center pivots proposed for use employ high-efficiency drop irrigation heads, resulting in an 85 percent system efficiency factor, meaning that there is an expected evaporative loss of 15 percent of the water before it becomes available as water in the soil. That level of efficiency is greater than the system efficiency factor of 80 percent established in CUP A.H. section 12.5.2. Other features of the irrigation plan include the employment of an irrigation manager, installation of an on-site weather station, and cumulative tracking of rain and evapotranspiration with periodic verification of soil moisture conditions. The purpose of the water conservation practices is to avoid over application of water, limiting over-saturation and runoff from the irrigated pastures. Sleepy Creek has entered into a Notice of Intent to Implement Water Quality BMPs with the Florida Department of Agriculture and Consumer Services which is incorporated in the NMP and which requires the implementation of Best Management Practices.2/ Dr. Bottcher testified that implementation and compliance with the Water Quality Best Management Practices manual creates a presumption of compliance with water quality standards. His testimony in that regard is consistent with Department of Agriculture and Consumer Services rule 5M-11.003 (“implementation, in accordance with adopted rules, of BMPs that have been verified by the Florida Department of Environmental Protection as effective in reducing target pollutants provides a presumption of compliance with state water quality standards.”). Rotational Grazing Rotational grazing is a practice by which cattle are allowed to graze a pasture for a limited period of time, after which they are “rotated” to a different pasture. The 1,656 acres proposed for irrigation on the North Tract are to be divided into 15 center-pivot pastures. Each individual pasture will have 10 fenced paddocks. The 611 acres of irrigated pasture on the East Tract are divided into 6 center-pivot pastures. The outer fence for each irrigated pasture is to be a permanent “hard” fence. Separating the internal paddocks will be electric fences that can be lowered to allow cattle to move from paddock to paddock, and then raised after they have moved to the new paddock. The NMP for the North Tract provides that cattle are to be brought into individual irrigated pastures as a single herd of approximately 190 cattle and placed into one of the ten paddocks. They will be moved every one to three days to a new paddock, based upon growing conditions and the reduction in grass height resulting from grazing. In this way, the cattle are rotated within the irrigated pasture, with each paddock being used for one to three days, and then rested until each of the other paddocks have been used, whereupon it will again be used in the rotation. The East Tract NMP generally provides for rotation based on the height of the pasture grasses, but is designed to provide a uniform average of cattle per acre per year. Due to the desire to “mine” phosphorus deposited during the years of operation of the East Tract as a sod farm, the density of cattle on the irrigated East Tract pastures is about 30 percent less than that proposed for the North Tract. The East Tract NMP calls for a routine pasture rest period of 15 to 30 days. Unlike dairy farm pastures, where dairy cows traverse a fixed path to the milking barn several times a day, there will be minimal “travel lanes” within the pastures or between paddocks. There will be no travel lanes through wetlands. If nitrogen-based fertilizer is needed, based upon tissue analysis of the grass, fertilizer is proposed for application immediately after a paddock is vacated by the herd. By so doing, the grass within each paddock will have a sufficient period to grow and “flush up” without grazing or traffic, which results in a high—quality grass when the cattle come back around to feed. Sleepy Creek proposes that rotational grazing is to be practiced on improved pastures and irrigated pastures alike. The rotational practices on the improved East Tract and North Tract pastures are generally similar to those practiced on the irrigated pastures. The paddocks will have permanent watering troughs, with one trough serving two adjacent paddocks. The troughs will be raised to prevent “boggy areas” from forming around the trough. Since the area around the troughs will be of a higher use, Sleepy Creek proposes to periodically remove accumulated manure, and re-grade if necessary. Other cattle support items, including feed bunkers and shade structures are portable and can be moved as conditions demand. Forage Crop Production The primary forage crop on the irrigated pastures is to be Bermuda grass. Bermuda grass or other grass types tolerant of drier conditions will be used in unirrigated pastures. During the winter, when Bermuda grass stops growing, Sleepy Creek will overseed the North Tract pastures with ryegrass or other winter crops. Due to the limitation on irrigation water, the East Tract NMP calls for no over-seeding for production of winter crops. Crops do not grow uniformly during the course of a year. Rather, there are periods during which there are excess crops, and periods during which the crops are not growing enough to keep up with the needs of the cattle. During periods of excess, Sleepy Creek will cut those crops and store them as haylage to be fed to the cattle during lower growth periods. The North Tract management plan allows Sleepy Creek to dedicate one or more irrigated pastures for the exclusive production of haylage. If that option is used, cattle numbers will be reduced in proportion to the number of pastures dedicated to haylage production. As a result of the limit on irrigation, the East Tract NMP does not recommend growing supplemental feed on dedicated irrigation pivot pastures. Direct Wetland Impacts Approximately 100 acres proposed for irrigation are wetlands or wetland buffer. Those areas are predominantly isolated wetlands, though some have surface water connections to Mill Creek, a water of the state. Trees will be cut in the wetlands to allow the pivot to pass overhead. Tree cutting is an exempt agricultural activity that does not require a permit. There was no persuasive evidence that cutting trees will alter the fundamental benefit of the wetlands or damage water resources of the District. The wetlands and wetland buffer will be subject to the same watering and fertigation regimen as the irrigated pastures. The application of water to wetlands, done concurrently with the application of water to the pastures, will occur during periods in which the pasture soils are dry. The incidental application of water to the wetlands during dry periods will serve to maintain hydration of the wetlands, which is considered to be a benefit. Fertilizers will be applied through the irrigation arms, a process known as fertigation. Petitioners asserted that the application of fertilizer onto the wetlands beneath the pivot arms could result in some adverse effects to the wetlands. However, Petitioners did not quantify to what extent the wetlands might be affected, or otherwise describe the potential effects. Fertigation of the wetlands will promote the growth of wetland plants. Nitrogen applied through fertigation will be taken up by plants, or will be subject to denitrification -- a process discussed in greater detail herein -- in the anaerobic wetland soils. The preponderance of the evidence indicated that enhanced wetland plant growth would not rise to a level of concern. Since most of the affected wetlands are isolated wetlands, there is expected to be little or no discharge of nutrients from the wetlands. Even as to those wetlands that have a surface water connection, most, if not all of the additional nitrogen applied through fertigation will be accounted for by the combined effect of plant uptake and denitrification. Larger wetland areas within an irrigated pasture will be fenced at the buffer line to prevent cattle from entering. The NMP provided a blow-up of the proposed fencing related to a larger wetland on Pivot 8. Although other figures are not to the same scale, it appears that larger wetlands associated with Pivots 1, 2, 3, and 12 will be similarly fenced. Cattle would be allowed to go into the smaller, isolated wetlands. Cattle going into wetlands do not necessarily damage the wetlands. Any damage that may occur is a function of density, duration, and the number of cattle. The only direct evidence of potential damage to wetlands was the statement that “[i]f you have 6,371 [cattle] go into a wetland, there may be impacts.” The NMP provides that pasture use will be limited to herds of approximately 190 cattle, which will be rotated from paddock to paddock every two to three days, and which will allow for “rest” periods of approximately 20 days. There will be no travel lanes through any wetland. Thus, there is no evidence to support a finding that the cattle at the density, duration, and number proposed will cause direct adverse effects to wetlands on the property. High Concentration Areas Cattle brought to the facility are to be unloaded from trucks and temporarily corralled for inspection. For that period, the cattle will be tightly confined. Cattle that have reached their slaughter weight will be temporarily held in corrals associated with the processing plant. The stormwater retention ponds used to capture and store runoff from the offloading corral and the processing plant holding corral are part of a normal and customary agricultural activity, and are not part of the applications and approvals that are at issue in this proceeding. The retention ponds associated with the high-intensity areas do not require permits because they do not exceed one acre in size or impound more than 40 acre-feet of water. Nonetheless, issues related to the retention ponds were addressed by Petitioners and Sleepy Creek, and warrant discussion here. The retention ponds are designed to capture 100 percent of the runoff and entrained nutrients from the high concentration areas for a minimum of a 24—hour/25—year storm event. If rainfall occurs in excess of the designed storm, the design is such that upon reaching capacity, only new surface water coming to the retention pond will be discharged, and not that containing high concentrations of nutrients from the initial flush of stormwater runoff. Unlike the stormwater retention berms for the pastures, which are to be constructed from the first nine inches of permeable topsoil on the property, the corral retention ponds are to be excavated to a depth of six feet which, based on soil borings in the vicinity, will leave a minimum of two to four feet of clay beneath the retention ponds. In short, the excavation will penetrate into the clay layer underlying the pond sites, but will not penetrate through that layer. The excavated clay will be used to form the side slopes of the ponds, lining the permeable surficial layer and generally making the ponds impermeable. Organic materials entering the retention ponds will form an additional seal. An organic seal is important in areas in which retention ponds are constructed in sandy soil conditions. Organic sealing is less important in this case, where clay forms the barrier preventing nutrients from entering the surficial aquifer. Although the organic material is subject to periodic removal, the clay layer will remain to provide the impermeable barrier necessary to prevent leakage from the ponds. Dr. Bottcher testified that if, during excavation of the ponds, it was found that the remaining in-situ clay layer was too thin, Sleepy Creek would implement the standard practice of bringing additional clay to the site to ensure adequate thickness of the liner. Nutrient Balance The goal of the NMP is to create a balance of nutrients being applied to and taken up from the property. Nitrogen and phosphorus are the nutrients of primary concern, and are those for which specific management standards are proposed. Nutrient inputs to the NMP consist generally of deposition of cattle manure (which includes solid manure and urine), recycling of plant material and roots from the previous growing season, and application of supplemental fertilizer. Nutrient outputs to the NMP consist generally of volatization of ammonia to the atmosphere, uptake and utilization of the nutrients by the grass and crops, weight gain of the cattle, and absorption and denitrification of the nutrients in the soil. The NMP, and the various models discussed herein, average the grass and forage crop uptake and the manure deposition to match that of a 1,013 pound animal. That average weight takes into account the fact that cattle on the property will range from calf weight of approximately 850 pounds, to slaughter weight of 1150 pounds. Nutrients that are not accounted for in the balance, e.g., those that become entrained in stormwater or that pass through the plant root zone without being taken up, are subject to runoff to surface waters or discharge to groundwater. Generally, phosphorus not taken up by crops remains immobile in the soil. Unless there is a potential for runoff to surface waters, the nutrient balance is limited by the amount of nitrogen that can be taken up by the crops. Due to the composition of the soils on the property, the high water table, and the relatively shallow confining layer, there is a potential for surface runoff. Thus, the NMP was developed using phosphorus as the limiting nutrient, which results in nutrient application being limited by the “P-index.” A total of 108 pounds of phosphorus per acre/per year can be taken up and used by the irrigated pasture grasses and forage crops. Therefore, the total number of cattle that can be supported on the irrigated pastures is that which, as a herd, will deposit an average of 108 pounds of phosphorus per year over the irrigated acreage. Therefore, Sleepy Creek has proposed a herd size and density based on calculations demonstrating that the total phosphorus contained in the waste excreted by the cattle equals the amount taken up by the crops. A herd producing 108 pounds per acre per year of phosphorus is calculated to produce 147 pounds of nitrogen per acre per year. The Bermuda grass and forage crops proposed for the irrigated fields require 420 pounds of nitrogen per acre per year. As a result of the nitrogen deficiency, additional nitrogen-based fertilizer to make up the shortfall is required to maintain the crops. Since phosphorus needs are accounted for by animal deposition, the fertilizer will have no phosphorus. The NMP requires routine soil and plant tissue tests to determine the amount of nitrogen fertilizer needed. By basing the application of nitrogen on measured rather than calculated needs, variations in inputs, including plant decomposition and atmospheric deposition, and outputs, including those affected by weather, can be accounted for, bringing the full nutrient balance into consideration. The numeric values for crop uptakes, manure deposition, and other estimates upon which the NMP was developed were based upon literature, values, and research performed and published by the University of Florida and the Natural Resource Conservation Service. Dr. Bottcher testified convincingly that the use of such values is a proven and reliable method of developing a balance for the operation of similar agricultural operations. A primary criticism of the NMP was its expressed intent to “reduce” or “minimize” the transport of nutrients to surface waters and groundwater, rather than to “negate” or “prevent” such transport. Petitioners argue that complete prevention of the transport of nutrients from the property is necessary to meet the standards necessary for issuance of the CUP and ERP. Mr. Drummond went into some detail regarding the total mass of nutrients expected to be deposited onto the ground from the cattle, exclusive of fertilizer application. In the course of his testimony, he suggested that the majority of the nutrients deposited on the land surface “are going to make it to the surficial aquifer and then be carried either to the Floridan or laterally with the groundwater flow.” However, Mr. Drummond performed no analysis on the fate of nitrogen through uptake by crops, volatization, or soil treatment, and did not quantify the infiltration of nitrogen to groundwater. Furthermore, he was not able to provide any quantifiable estimate on any effect of nutrients on Mill Creek, the Ocklawaha River, or Silver Springs. In light of the effectiveness of the nutrient balance and other elements of the NMP, along with the retention berm system that will be discussed herein, Mr. Drummond’s assessment of the nutrients that might be expected to impact water resources of the District is contrary to the greater weight of the evidence. Mr. Drummond’s testimony also runs counter to that of Dr. Kincaid, who performed a particle track analysis of the fate of water recharge from the North Tract. In short, Dr. Kincaid calculated that of the water that makes it as recharge from the North Tract to the surficial aquifer, less than one percent is expected to make its way to the upper Floridan aquifer, with that portion originating from the vicinity of Pivot 6. Recharge from the other 14 irrigated pastures was ultimately accounted for by evapotranspiration or emerged at the surface and found its way to Mill Creek. The preponderance of the competent, substantial evidence adduced at the final hearing supports the effectiveness of the NMPs for the North Tract and East Tract at managing the application and use of nutrients on the property, and minimizing the transport of nutrients to surface water and groundwater resources of the District. North Central Florida Model All of the experts involved in this proceeding agreed that the use of groundwater models is necessary to simulate what might occur below the surface of the ground. Models represent complex systems by applying data from known conditions and impacts measured over a period of years to simulate the effects of new conditions. Models are imperfect, but are the best means of predicting the effects of stresses on complex and unseen subsurface systems. The North Central Florida (NCF) model is used to simulate impacts of water withdrawals on local and regional groundwater levels and flows. The NCF model simulates the surficial aquifer, the upper Floridan aquifer, and the lower Floridan aquifer. Those aquifers are separated from one another by relatively impervious confining units. The intermediate confining unit separates the surficial aquifer from the upper Floridan aquifer. The intermediate confining unit is not present in all locations simulated by the NCF model. However, the evidence is persuasive that the intermediate confining unit is continuous at the North Tract, and serves to effectively isolate the surficial aquifer from the upper Floridan aquifer. The NCF model is not a perfect depiction of what exists under the land surface of the North Tract or elsewhere. It was, however, acknowledged by the testifying experts in this case, despite disagreements as to the extent of error inherent in the model, to be the best available tool for calculating the effects of withdrawals of water within the boundary of the model. The NCF model was developed and calibrated over a period of years, is updated routinely as data becomes available, and has undergone peer review. Aquifer Performance Tests In order to gather site-specific data regarding the characteristics of the aquifer beneath the Sleepy Creek property, a series of three aquifer performance tests (APTs) was conducted on the North Tract. The first two tests were performed by Sleepy Creek, and the third by the District. An APT serves to induce stress on the aquifer by pumping from a well at a high rate. By observing changes in groundwater levels in observation wells, which can be at varying distances from the extraction well, one can extrapolate the nature of the subsurface. In addition, well-completion reports for the various withdrawal and observation wells provide actual data regarding the composition of subsurface soils, clays, and features of the property. The APT is particularly useful in evaluating the ability of the aquifer to produce water, and in calculating the transmissivity of the aquifer. Transmissivity is a measure of the rate at which a substance passes through a medium and, as relevant to this case, measures how groundwater flows through an aquifer. The APTs demonstrated that the Floridan aquifer is capable of producing water at the rate requested. The APT drawdown contour measured in the upper Floridan aquifer was greater than that predicted from a simple run of the NCF model, but the lateral extent of the drawdown was less than predicted. The most reasonable conclusion to be drawn from the combination of greater than expected drawdown in the upper Floridan aquifer with less than expected extent is that the transmissivity of the aquifer beneath the North Tract is lower than the NCF model assumptions. The conclusion that the transmissivity of the aquifer at the North Tract is lower than previously estimated means that impacts from groundwater extraction would tend to be more vertical than horizontal, i.e., the drawdown would be greater, but would be more localized. As such, for areas of lower than estimated transmissivity, modeling would over-estimate off-site impacts from the extraction. NCF Modeling Scenarios The initial NCF modeling runs were based on an assumed withdrawal of 2.39 mgd, an earlier -- though withdrawn - - proposal. The evidence suggests that the simulated well placement for the 2.39 mgd model run was entirely on the North Tract. Thus, the results of the model based on that withdrawal have some limited relevance, especially given that the proposed CUP allows for all of the requested 1.46 mgd of water to be withdrawn from North Tract wells at the option of Sleepy Creek, but will over-predict impacts from the permitted rate of withdrawal. A factor that was suggested as causing a further over-prediction of drawdown in the 2.39 mgd model run was the decision, made at the request of the District, to exclude the input of data of additional recharge to the surficial aquifer, wetlands and surface waters from the irrigation, and the resulting diminution in soil storage capacity. Although there is some merit to the suggestion that omitting recharge made the model results “excessively conservative,” the addition of recharge to the model would not substantially alter the predicted impacts. A model run was subsequently performed based on a presumed withdrawal of 1.54 mgd, a rate that remains slightly more than, but still representative of, the requested amount of 1.46 mgd. The 1.54 mgd model run included an input for irrigation recharge. The simulated extraction points were placed on the East Tract and North Tract in the general configuration as requested in the CUP application. The NCF is designed to model the impacts of a withdrawal based upon various scenarios, identified at the hearing as Scenarios A, B, C, and D. Scenario A is the baseline condition for the NCF model, and represents the impacts of all legal users of water at their estimated actual flow rates as they existed in 1995. Scenario B is all existing users, not including the applicant, at end-of-permit allocations. Scenario C is all existing users, including the applicant, at current end-of-permit allocations. Scenario D is all permittees at full allocation, except the applicant which is modeled at the requested (i.e., new or modified) end-of-permit allocation. To simulate the effects of the CUP modification, simulations were performed on scenarios A, C, and D. In order to measure the specific impact of the modification of the CUP, the Scenario C impacts to the surficial, upper Floridan, and lower Floridan aquifers were compared with the Scenario D impacts to those aquifers. In order to measure the cumulative impact of the CUP, the Scenario A actual-use baseline condition was compared to the Scenario D condition which predicts the impacts of all permitted users, including the applicant, pumping at full end-of-permit allocations. The results of the NCF modeling indicate the following: 2.39 mgd - Specific Impact The surficial aquifer drawdown from the simulated 2.39 mgd withdrawal was less than 0.05 feet on-site and off- site, except to the west of the North Tract, at which a drawdown of 0.07 feet was predicted. The upper Floridan aquifer drawdown from the 2.39 mgd withdrawal was predicted at between 0.30 and 0.12 feet on-site, and between 0.30 and 0.01 feet off-site. The higher off-site figures are immediately proximate to the property. The lower Floridan aquifer drawdown from the 2.39 mgd withdrawal was predicted at less than 0.05 feet at all locations, and at or less than 0.02 feet within six miles of the North Tract. 2.39 mgd - Cumulative Impact The cumulative impact to the surficial aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, was less than 0.05 feet on-site, and off-site to the north and east, except to the west of the North Tract, at which a drawdown of 0.07 feet was predicted. The cumulative impact to the upper Floridan aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, ranged from 0.4 feet to 0.8 feet over all pertinent locations. The cumulative impact to the lower Floridan aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, ranged from 1.0 to 1.9 feet over all pertinent locations. The conclusion drawn by Mr. Andreyev that the predicted impacts to the lower Floridan are almost entirely from other end-of-permit user withdrawals is supported by the evidence and accepted. 1.54 mgd - Specific Impact The NCF model runs based on the more representative 1.54 mgd withdrawal predicted a surficial aquifer drawdown of less than 0.01 feet (i.e., no drawdown contour shown) on the North Tract, and a 0.01 to 0.02 foot drawdown at the location of the East Tract. The drawdown of the upper Floridan aquifer from the CUP modification was predicted at up to 0.07 feet on the property, and generally less than 0.05 feet off-site. There were no drawdown contours at the minimum 0.01 foot level that came within 9 miles of Silver Springs. The lower Floridan aquifer drawdown from the CUP modification was predicted at less than 0.01 feet (i.e., no drawdown contour shown) at all locations. 1.54 mgd - Cumulative Impact A comparison of the cumulative drawdown contours for the 2.36 mgd model and 1.54 mgd model show there to be a significant decrease in predicted drawdowns to the surficial and upper Floridan aquifers, with the decrease in the upper Floridan aquifer drawdown being relatively substantial, i.e., from 0.5 to 0.8 feet on-site predicted for the 2.36 mgd withdrawal, to 0.4 to 0.5 feet on-site for the 1.54 mgd model. Given the small predicted individual impact of the CUP on the upper Floridan aquifer, the evidence is persuasive that the cumulative impacts are the result of other end-of-permit user withdrawals. The drawdown contour for the lower Floridan aquifer predicted by the 1.54 mgd model is almost identical to that of the 2.36 mgd model, thus supporting the conclusion that predicted impacts to the lower Floridan are almost entirely from other end-of-permit user withdrawals. Modeled Effect on Silver Springs As a result of the relocation of the extraction wells from the East Tract to the North Tract, the NCF model run at the 1.54 mgd withdrawal rate predicted springflow at Silver Springs to increase by 0.15 cfs. The net cumulative impact in spring flow as measured from 1995 conditions to the scenario in which all legal users, including Sleepy Creek, are pumping at full capacity at their end-of-permit rates for one year3/ is roughly 35.4 cfs, which is approximately 5 percent of Silver Springs’ current flow. However, as a result of the redistribution of the Sleepy Creek withdrawal, which is, in its current iteration, a legal and permitted use, the cumulative effect of the CUP modification at issue is an increase in flow of 0.l5 cfs. Dr. Kincaid agreed that there is more of an impact to Silver Springs when the pumping allowed by the CUP is located on the East Tract than there is on the North Tract, but that the degree of difference is very small. Dr. Knight testified that effect on the flow of Silver Springs from relocating the 1.46 mgd withdrawal from the East Tract to the North Tract would be “zero.” The predicted increase of 0.15 cfs is admittedly miniscule when compared to the current Silver Springs springflow of approximately 675 cfs. However, as small as the modeled increase may be -- perhaps smaller than its “level of certainty” -- it remains the best evidence that the impact of the CUP modification to the flow of Silver Springs will be insignificant at worst, and beneficial at best. Opposition to the NCF Model Petitioners submitted considerable evidence designed to call the results generated by the District’s and Sleepy Creek’s NCF modeling into question. Karst Features A primary criticism of the validity of the NCF model was its purported inability to account for the presence of karst features, including conduits, and their effect on the results. It was Dr. Kincaid’s opinion that the NCF model assigned transmissivity values that were too high, which he attributed to the presence of karst features that are collecting flow and delivering it to springs. He asserted that, instead of assuming the presence of karst features, the model was adjusted to raise the overall capacity of the porous medium to transmit water, and thereby match the observed flows. In his opinion, the transmissivity values of the equivalent porous media were raised so much that the model can no longer be used to predict drawdowns. That alleged deficiency in the model is insufficient for two reasons. First, as previously discussed in greater detail, the preponderance of the evidence in this case supports a finding that there are no karst features in the vicinity of the North Tract that would provide preferential pathways for water flow so as to skew the results of the NCF model. Second, Dr. Kincaid, while acknowledging that the NCF model is the best available tool for predicting impacts from groundwater extraction on the aquifer, suggested that a hybrid porous media and conduit model would be a better means of predicting impacts, the development of which would take two years or more. There is no basis for the establishment of a de facto moratorium on CUP permitting while waiting for the development of a different and, in this case, unnecessary model. For the reasons set forth herein, it is found that the NCF model is sufficient to accurately and adequately predict the effects of the Sleepy Creek groundwater withdrawals on the aquifers underlying the property, and to provide reasonable assurance that the standards for such withdrawals have been met. Recharge to the Aquifer Petitioners argued that the modeling results showing little significant drawdown were dependent on the application of unrealistic values for recharge or return flow from irrigation. In a groundwater model, as in the physical world, some portion of the water extracted from the aquifer is predicted to be returned to the aquifer as recharge. If more water is applied to the land surface than is being accounted for by evaporation, plant uptake and evapotranspiration, surface runoff, and other processes, that excess water may seep down into the aquifer as recharge. Recharge serves to replenish the aquifer and offset the effects of the groundwater withdrawal. Dr. Kincaid opined that the NCF modeling performed for the CUP application assigned too much water from recharge, offsetting the model's prediction of impacts to other features. It is reasonable to assume that there is some recharge associated with both agricultural and public supply uses. However, the evidence suggests that the impact of recharge on the overall NCF model results is insignificant on the predicted impacts to Silver Springs, the issue of primary concern. Mr. Hearn ran a simulation using the NCF model in which all variables were held constant, except for recharge. The difference between the “with recharge” and “without recharge" simulations at Silver Springs was 0.002 cfs. That difference is not significant, and is not suggestive of adverse impacts on Silver Springs from the CUP modification. Dr. Kincaid testified that “the recharge offset on the property is mostly impacting the surficial aquifer,” and that “the addition of recharge in this case didn't have much of an impact on the upper Floridan aquifer system.” As such, the effect of adding recharge to the model would be as to the effect of groundwater withdrawal on wetlands or surface water bodies, and not on springs. As previously detailed, the drawdown of the surficial aquifer simulated for the 2.39 mgd “no recharge” scenario were less than 0.05 feet on-site and off-site, except for a predicted 0.07 foot drawdown to the west of the North Tract. The predicted drawdown of the surficial aquifer for the 1.54 mgd “with recharge” scenario was 0.02 feet or less. The preponderance of the evidence supports a finding that drawdowns of either degree are less than that at which adverse impacts to wetlands or surface waters would occur. Thus, issues related to the recharge or return flows from irrigation are insufficient to support a finding or conclusion that the NCF model failed to provide reasonable assurance that the standards for issuance of the CUP modification were met. External Boundaries The boundaries of the NCF model are not isolated from the rest of the physical world. Rather, groundwater flows into the modeled area from multiple directions, and out of the modeled area in multiple directions. Inflows to the model area are comprised of recharge, which is an assigned value, and includes water infiltrating and recharging the aquifer from surface waters; injection wells; upward and downward leakage from lower aquifers; and flow across the external horizontal boundaries. Outflows from the model area include evapotranspiration; discharge to surface waters, including springs and rivers; extraction from wells; upward and downward leakage from lower aquifers; and flow against the external model boundaries. Dr. Kincaid testified that flow across the external model boundary is an unknown and unverifiable quantity which increases the uncertainty in the model. He asserted that in the calibrated version of the model, there is no way to check those flows against data. His conclusion was that the inability of the NCF model to accurately account for external boundary flow made the margin of error so great as to make the model an unreliable tool with which to assess whether the withdrawal approved by the proposed CUP modification will increase or decrease drawdown at Silver Springs. The District correlates the NCF model boundaries with a much larger model developed by the United States Geological Survey, the Peninsula of Florida Model, more commonly referred to as the Mega Model, which encompasses most of the State of Florida and part of Southeast Georgia. The Mega Model provides a means to acknowledge that there are stresses outside the NCF model, and to adjust boundary conditions to account for those stresses. The NCF is one of several models that are subsets of the Mega Model, with the grids of the two models being “nested” together. The 1995 base year of the NCF model is sufficiently similar to the 1993-1994 base year of the Mega Model as to allow for a comparison of simulated drawdowns calculated by each of the models. By running a Mega Model simulation of future water use, and applying the change in that use from 1993 base year conditions, the District was able to come to a representative prediction of specific boundary conditions for the 1995 NCF base year, which were then used as the baseline for simulations of subsequent conditions. In its review of the CUP modification, the District conducted a model validation simulation to measure the accuracy of the NCF model against observed conditions, with the conditions of interest being the water flow at Silver Springs. The District ran a simulation using the best information available as to water use in the year 2010, the calculated boundary conditions, irrigation, pumping, recharge, climatic conditions, and generally “everything that we think constitutes that year.” The discharge of water at Silver Springs in 2010 was measured at 580 cfs. The discharge simulated by the NCF model was 545 cfs. Thus, the discharge predicted by the NCF model simulation was within six percent of the observed discharge. Such a result is generally considered in the modeling community to be “a home run.” Petitioners’ objections to the calculation of boundary conditions for the NCF model are insufficient to support a finding that the NCF model is not an appropriate and accurate tool for determining that reasonable assurance has been provided that the standards for issuance of the CUP modification were met. Cumulative Impact Error As part of the District’s efforts to continually refine the NCF, and in conjunction with a draft minimum flows and levels report for Silver Springs and the Silver River, the cumulative NCF model results for the period of baseline to 2010 were compared with the simulated results from the Northern District Model (NDF), a larger model that overlapped the NCF. As a result of the comparison, which yielded different results, it was discovered that the modeler had “turned off” not only the withdrawal pumps, but inputs to the aquifer from drainage wells and sinkholes as well. When those inputs were put back into the model run, and effects calculated only from withdrawals between the “pumps-off” condition and 2010 pumping conditions, the cumulative effect of the withdrawals was adjusted from a reduction in the flow at Silver Springs of 29 cfs to a reduction of between 45 and 50 cfs, an effect described as “counterintuitive.” Although that result has not undergone peer review, and remains subject to further review and comparison with the Mega Model, it was accepted by the District representative, Mr. Bartol. Petitioners seized upon the results of the comparison model run as evidence of the inaccuracy and unreliability of the NCF model. However, the error in the NCF model run was not the result of deficiencies in the model, but was a data input error. Despite the error in the estimate of the cumulative effect of all users at 2010 levels, the evidence in this case does not support a finding that the more recent estimates of specific impact from the CUP at issue were in error. NCF Model Conclusion As has been discussed herein, a model is generally the best means by which to calculate conditions and effects that cannot be directly observed. The NCF model is recognized as being the best tool available for determining the subsurface conditions of the model domain, having been calibrated over a period of years and subject to peer review. It should be recognized that the simulations run using the NCF model represent the worst—case scenario, with all permittees simultaneously drawing at their full end-of-permit allocations. There is merit to the description of that occurrence as being “very remote.” Thus, the results of the modeling represent a conservative estimate of potential drawdown and impacts. While the NCF model is subject to uncertainty, as is any method of predicting the effects of conditions that cannot be seen, the model provides reasonable assurance that the conditions simulated are representative of the conditions that will occur as a result of the withdrawals authorized by the CUP modification. Environmental Resource Permit The irrigation proposed by the CUP will result in runoff from the North Tract irrigated pastures in excess of that expected from the improved pastures, due in large measure to the diminished storage capacity of the soil. Irrigation water will be applied when the soils are dry, and capable of absorbing water not subject to evaporation or plant uptake. The irrigation water will fill the storage space that would exist without irrigation. With irrigation water taking up the capacity of the soil to hold water, soils beneath the irrigation pivots will be less capable of retaining additional moisture during storm events. Thus, there is an increased likelihood of runoff from the irrigated pastures over that expected with dry soils. The increase in runoff is expected to be relatively small, since there should be little or no irrigation needed during the normal summer wet season. The additional runoff may have increased nutrient levels due to the increased cattle density made possible by the irrigation of the pastures. The CUP has a no—impact requirement for water quality resulting from the irrigation of the improved pasture. Thus, nutrients leaving the irrigated pastures may not exceed those calculated to be leaving the existing pre-development use as improved pastures. Retention Berms The additional runoff and nutrient load is proposed to be addressed by constructing a system of retention berms, approximately 50,0004/ feet in length, which is intended to intercept, retain, and provide treatment for runoff from the irrigated pasture. The goal of the system is to ensure that post—development nutrient loading from the proposed irrigated pastures will not exceed the pre—development nutrient loading from the existing improved pastures. An ERP permit is required for the construction of the berm system, since the area needed for the construction of the berms is greater than the one acre in size, and since the berms have the capability of impounding more than 40 acre-feet of water. The berms are to be constructed by excavating the top nine inches of sandy, permeable topsoil and using that permeable soil to create the berms, which will be 1 to 2 feet in height. The water storage areas created by the excavation will have flat or horizontal bottoms, and will be very shallow with the capacity to retain approximately a foot of water. The berms will be planted with pasture grasses after construction to provide vegetative cover. The retention berm system is proposed to be built in segments, with the segment designed to capture runoff from a particular center pivot pasture to be constructed prior to the commencement of irrigation from that center pivot. A continuous clay layer underlies the areas in which the berms are to be constructed. The clay layer varies from 18 to 36 inches below the ground surface, with at least one location being as much as five feet below the ground surface. As such, after nine inches of soil is scraped away to create the water retention area and construct the berm, there will remain a layer of permeable sandy material above the clay. The berms are to be constructed at least 25 feet landward of any jurisdictional wetland, creating a “safe upland line.” Thus, the construction, operation, and maintenance of the retention berms and redistribution swales will result in no direct impacts to jurisdictional wetlands or other surface waters. There will be no agricultural activities, e.g., tilling, planting, or mowing, within the 25-foot buffers, and the buffers will be allowed to establish with native vegetation to provide additional protection for downgradient wetlands. As stormwater runoff flows from the irrigated pastures, it may, in places, create concentrated flow ways. Redistribution swales will be built in those areas to spread any remaining overland flow of water and reestablish sheet flow to the retention berm system. At any point at which water may overtop a berm, the berm will be hardened with rip—rap to insure its integrity. The berms are designed to intercept and collect overland flow from the pastures and temporarily store it behind the berms, regaining the soil storage volume lost through irrigation. A portion of the runoff intercepted by the berm system will evaporate. The majority will infiltrate either through the berm, or vertically into the subsurface soils beneath it. When the surficial soils become saturated, further vertical movement will be stopped by the impermeable clay layer underlying the site. The runoff water will then move horizontally until it reemerges into downstream wetland systems. Thus, the berm system is not expected to have a measurable impact on the hydroperiod of the wetlands on the North Tract. Phosphorus Removal Phosphorus tends to get “tied up” in soil as it moves through it. Phosphorus reduction occurs easily in permeable soil systems because it is removed from the water through a chemical absorption process that is not dependent on the environment of the soil. As the soils in the retention areas and berms go through drying cycles, the absorption capacity is regenerated. Thus, the retention system will effectively account for any increase in phosphorus resulting from the increased cattle density allowed by the irrigation such that there is expected to be no increase in phosphorus levels beyond the berm. Nitrogen Removal When manure is deposited on the ground, primarily as high pH urine, the urea is quickly converted to ammonia, which experiences a loss of 40 to 50 percent of the nitrogen to volatization. Soil conditions during dry weather conditions are generally aerobic. Remaining ammonia in the manure is converted by aerobic bacteria in the soil to nitrates and nitrites. Converted nitrates and nitrites from manure, along with nitrogen from fertilizer, is readily available for uptake as food by plants, including grasses and forage crops. Nitrates and nitrites are mobile in water. Therefore, during rain events of sufficient intensity to create runoff, the nitrogen can be transported downstream towards wetlands and other receiving waters, or percolate downward through the soil until blocked by an impervious barrier. During storm events, the soils above the clay confining layer and the lower parts of the pervious berms become saturated. Those saturated soils are drained of oxygen and become anaerobic. When nitrates and nitrites encounter saturated conditions, they provide food for anaerobic bacteria that exist in those conditions. The bacteria convert nitrates and nitrites to elemental nitrogen, which has no adverse impact on surface waters or groundwater. That process, known as denitrification, is enhanced in the presence of organic material. The soils from which the berms are constructed have a considerable organic component. In addition to the denitrification that occurs in the saturated conditions in and underlying the berms, remaining nitrogen compounds that reemerge into the downstream wetlands are likely to encounter organic wetland-type soil conditions. Organic wetland soils are anaerobic in nature, and will result in further, almost immediate denitrification of the nitrates and nitrites in the emerging water. Calculation of Volume - BMPTRAINS Model The calculation of the volume necessary to capture and store excess runoff from the irrigated pastures was performed by Dr. Wanielista using the BMPTRAINS model. BMPTRAINS is a simple, easy to use spreadsheet model. Its ease of use does not suggest that it is less than reliable. The model has been used as a method of calculating storage volumes in many conditions over a period of more than 40 years. The model was used to calculate the storage volumes necessary to provide storage and treatment of runoff from fifteen “basins” that had a control or a Best Management Practice associated with them. All of the basins were calculated as being underlain by soils in poorly-drained hydrologic soil Group D, except for the basin in the vicinity of Pivot 6, which is underlain by the more well-drained soil Group A. The model assumed about percent of the property to have soil Group A soils, an assumption that is supported by the evidence. Soil moisture conditions on the property were calculated by application of data regarding rainfall events and times, the irrigation schedule, and the amount of irrigation water projected for use over a year. The soil moisture condition was used to determine the amount of water that could be stored in the on-site soils, known as the storage coefficient. Once the storage coefficient was determined, that data was used to calculate the amount of water that would be expected to run off of the North Tract, known as the curve number. The curve number is adjusted by the extent to which the storage within a soil column is filled by the application of irrigation water, making it unable to store additional rainfall. As soil storage goes down, the curve number goes up. Thus, a curve number that approaches 100 means that more water is predicted to run off. Conversely, a lower curve number means that less water is predicted to run off. The pre-development curve number for the North Tract was based on the property being an unirrigated, poor grass area. A post-development curve number was assigned to the property that reflected a wet condition representative of the irrigated soils beneath the pivots. In calculating the storage volume necessary to handle runoff from the basins, the wet condition curve number was adjusted based on the fact that there is a mixture of irrigated and unirrigated general pasture within each basin to be served by a segment of the retention berm system, and by the estimated 15 percent of the time that the irrigation areas would be in a drier condition. In addition, the number was adjusted to reflect the 8 to 10 inches of additional evapotranspiration that occurs as a result of irrigation. The BMPTRAINS model was based on average annual nutrient-loading conditions, with water quality data collected at a suitable point within Reach 22, the receiving waterbody. The effects of nutrients from the irrigated pastures on receiving waterbodies is, in terms of the model, best represented by average annual conditions, rather than a single highest-observed nutrient value. Pre-development loading figures were based on the existing use of the property as unirrigated general pasture. The pre-development phosphorus loading figure was calculated at an average event mean concentration (EMC) of 0.421 milligrams per liter (mg/l). The post—condition phosphorus loading figure was calculated at an EMC of 0.621 mg/l. Therefore, in order to achieve pre-development levels of phosphorus, treatment to achieve a reduction in phosphorus of approximately 36 percent was determined to be necessary. The pre-development nitrogen loading figure was calculated at an EMC of 2.6 mg/l. The post—condition nitrogen loading figure was calculated at an EMC of 3.3 mg/l. Therefore, in order to achieve pre-development levels of nitrogen, treatment to achieve a reduction in nitrogen of approximately 25 percent was determined to be necessary. The limiting value for the design of the retention berms is phosphorus. To achieve post-development concentrations that are equal to or less than pre-development concentrations, the treatment volume of the berm system must be sufficient to allow for the removal of 36 percent of the nutrients in water being retained and treated behind the berms, which represents the necessary percentage of phosphorus. In order to achieve the 36 percent reduction required for phosphorus, the retention berm system must be capable of retaining approximately 38 acre—feet of water from the 15 basins. In order to achieve that retention volume, a berm length of approximately 50,000 linear feet was determined to be necessary, with an average depth of retention behind the berms of one foot. The proposed length of the berms is sufficient to retain the requisite volume of water to achieve a reduction in phosphorus of 36 percent. Thus, the post-development/irrigation levels of phosphorus from runoff are expected to be no greater than pre-development/general pasture levels of phosphorus from runoff. By basing the berm length and volume on that necessary for the treatment of phosphorus, there will be storage volume that is greater than required for a 25 percent reduction in nitrogen. Thus, the post-development/irrigation levels of nitrogen from runoff are expected to be less than pre- development/general pasture levels of nitrogen from runoff. Mr. Drummond admitted that the design of the retention berms “shows there is some reduction, potentially, but it's not going to totally clean up the nutrients.” Such a total clean-up is not required. Rather, it is sufficient that there is nutrient removal to pre-development levels, so that there is no additional pollutant loading from the permitted activities. Reasonable assurance that such additional loading is not expected to occur was provided. Despite Mr. Drummond’s criticism of the BMPTRAINS model, he did not quantify nutrient loading on the North Tract, and was unable to determine whether post-development concentrations of nutrients would increase over pre-development levels. As such, there was insufficient evidence to counter the results of the BMPTRAINS modeling. Watershed Assessment Model In order to further assess potential water quantity and water quality impacts to surface water bodies, and to confirm stormwater retention area and volume necessary to meet pre-development conditions, Sleepy Creek utilized the Watershed Assessment Model (WAM). The WAM is a peer-reviewed model that is widely accepted by national, state, and local regulatory entities. The WAM was designed to simulate water balance and nutrient impacts of varying land uses. It was used in this case to simulate and provide a quantitative measure of the anticipated impacts of irrigation on receiving water bodies, including Mill Creek, Daisy Creek, the Ocklawaha River, and Silver Springs. Inputs to the model include land conditions, soil conditions, rain and climate conditions, and water conveyance systems found on the property. In order to calculate the extent to which nutrients applied to the land surface might affect receiving waters, a time series of surface water and groundwater flow is “routed” through the modeled watershed and to the various outlets from the system, all of which have assimilation algorithms that represent the types of nutrient uptakes expected to occur as water goes through the system. Simulations were performed on the North Tract in its condition prior to acquisition by Sleepy Creek, in its current “exempted improved pasture condition,” and in its proposed “post—development” pivot-irrigation condition. The simulations assessed impacts of the site conditions on surface waters at the point at which they leave the property and discharge to Mill Creek, and at the point where Mill Creek merges into the Ocklawaha River. The baseline condition for measuring changes in nutrient concentrations was determined to be that lawfully existing at the time the application was made. Had there been any suggestion of illegality or impropriety in Sleepy Creek’s actions in clearing the timber and creating improved pasture, a different baseline might be warranted. However, no such illegality or impropriety was shown, and the SJRWMD rules create no procedure for “looking back” to previous land uses and conditions that were legally changed. Thus, the “exempted improved pasture condition” nutrient levels are appropriate for comparison with irrigated pasture nutrient levels. The WAM simulations indicated that nitrogen resulting from the irrigation of the North Tract pastures would be reduced at the outflow to Mill Creek at the Reach 22 stream segment from improved pasture levels by 1.7 percent in pounds per year, and by 0.6 percent in milligrams per liter of water. The model simulations predicted a corresponding reduction at the Mill Creek outflow to the Ocklawaha River of 1.3 percent in pounds per year, and 0.5 percent in milligrams per liter of water. These levels are small, but nonetheless support a finding that the berm system is effective in reducing nitrogen from the North Tract. Furthermore, the WAM simulations showed levels of nitrogen from the irrigated pasture after the construction of the retention berms to be reduced from that present in the pre- development condition, a conclusion consistent with that derived from the BMPTRAINS model. The WAM simulations indicated that phosphorus from the irrigated North Tract pastures, measured at the outflow to Mill Creek at the Reach 22 stream segment, would be reduced from improved pasture levels by 3.7 percent in pounds per year, and by 2.6 percent in milligrams per liter of water. The model simulations predicted a corresponding reduction at the Mill Creek outflow to the Ocklawaha River of 2.5 percent in pounds per year, and 1.6 percent in milligrams per liter of water. Those levels are, again, small, but supportive of a finding of no impact from the permitted activities. The WAM simulations showed phosphorus in the Ocklawaha River at the Eureka Station after the construction of the retention berms to be slightly greater than those simulated for the pre-development condition (0.00008 mg/l) -- the only calculated increase. That level is beyond miniscule, with impacts properly characterized as “non- measurable” and “non-detectable.” In any event, total phosphorus remains well below Florida’s nutrient standards. The WAM simulations were conducted based on all of the 15 pivots operating simultaneously at full capacity. That amount is greater than what is allowed under the permit. Thus, according to Dr. Bottcher, the predicted loads are higher than those that would be generated by the permitted allocation, making his estimates “very conservative.” Dr. Bottcher’s testimony is credited. During the course of the final hearing, the accuracy of the model results was questioned based on inaccuracies in rainfall inputs due to the five-mile distance of the property from the nearest rain station. Dr. Bottcher admitted that given the dynamics of summer convection storms, confidence that the rain station rainfall measurements represent specific conditions on the North Tract is limited. However, it remains the best data available. Furthermore, Dr. Bottcher testified that even if specific data points simulated by the model differ from that recorded at the rain station, that same error carries through each of the various scenarios. Thus, for the comparative purpose of the model, the errors get “washed out.” Other testimony regarding purported inaccuracies in the WAM simulations and report were explained as being the result of errors in the parameters used to run alternative simulations or analyze Sleepy Creek’s simulations, including use of soil types that are not representative of the North Tract, and a misunderstanding of dry weight/wet weight loading rates. There was agreement among witnesses that the WAM is regarded, among individuals with expertise in modeling, as an effective tool, and was the appropriate model for use in the ERP application that is the subject of this proceeding. As a result, the undersigned accepts the WAM simulations as being representative of comparative nutrient impacts on receiving surface water bodies resulting from irrigation of the North Tract. The WAM confirmed that the proposed retention berm system will be sufficient to treat additional nutrients that may result from irrigation of the pastures, and supports a finding of reasonable assurance that water quality criteria will be met. With regard to the East Tract, the WAM simulations showed that there would be reductions in nitrogen and phosphorus loading to Daisy Creek from the conversion of the property to irrigated pasture. Those simulations were also conservative because they assumed the maximum number of cattle allowed by the nutrient balance, and did not assume the 30 percent reduction in the number of cattle under the NMP so as to allow existing elevated levels of phosphorus in the soil from the sod farm to be “mined” by vegetation. Pivot 6 The evidence in this case suggests that, unlike the majority of the North Tract, a small area on the western side of the North Tract drains to the west and north. Irrigation Pivot is within that area. Dr. Harper noted that there are some soils in hydrologic soil Group A in the vicinity of Pivot 6 that reflect soils with a deeper water table where rainfall would be expected to infiltrate into the ground. Dr. Kincaid’s particle track analysis suggested that recharge to the surficial aquifer ultimately discharges to Mill Creek, except for recharge at Pivot 11, which is accounted for by evapotranspiration, and recharge at Pivot 6. Dr. Kincaid concluded that approximately 1 percent of the recharge to the surficial aquifer beneath the North Tract found its way into the upper Floridan aquifer. Those particle tracks originated only on the far western side of the property, and implicated only Pivot 6, which is indicative of the flow divide in the Floridan aquifer. Of the 1 percent of particle tracks entering the Floridan aquifer, some ultimately discharged at the St. John’s River, the Ocklawaha River, or Mill Creek. Dr. Kincaid opined, however, that most ultimately found their way to Silver Springs. Given the previous finding that the Floridan aquifer beneath the property is within the Silver Springs springshed for less than a majority of the time, it is found that a correspondingly small fraction of the less than 1 percent of the particle tracks originating on the North Tract, perhaps a few tenths of one percent, can reach Silver Springs. Dr. Bottcher generally agreed that some small percentage of the water from the North Tract may make it to the upper Floridan aquifer, but that amount will be very small. Furthermore, that water reaching the upper Floridan aquifer would have been subject to the protection and treatment afforded by the NMP and the ERP berms. The evidence regarding the somewhat less restrictive confinement of the aquifer around Pivot 6 is not sufficient to rebut the prima facie case that the CUP modification, coupled with the ERP, will meet the District’s permitting standards. Public Interest The primary basis upon which Sleepy Creek relies to demonstrate that the CUP is “consistent with the public interest” is that Florida's economy is highly dependent upon agricultural operations in terms of jobs and economic development, and that there is a necessity of food production. Sleepy Creek could raise cattle on the property using the agriculturally-exempt improved pastures, but the economic return on the investment would be questionable without the increased quality, quantity, and reliability of grass and forage crop production resulting from the proposed irrigation. Sleepy Creek will continue to engage in agricultural activities on its properties if the CUP modification is denied. Although a typical Florida beef operation could be maintained on the property, the investment was based upon having the revenue generation allowed by grass-fed beef production in order to realize a return on its capital investment and to optimize the economic return. If the CUP modification is denied, the existing CUP will continue to allow the extraction of 1.46 mgd for use on the East Tract. The preponderance of the evidence suggests that such a use would have greater impacts on the water levels at Silver Springs, and that the continued use of the East Tract as a less stringently-controlled sod farm would have a greater likelihood of higher nutrient levels, particularly phosphorus levels which are already elevated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the St. Johns River Water Management District enter a final order: approving the issuance of Consumptive Use Permit No. 2-083-91926-3 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete Permit Application for Consumptive Uses of Water and the Consumptive Use Technical Staff Report; and approving the issuance of Environmental Resource Permit No. IND-083-130588-4 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete Joint Application for Individual and Conceptual Environmental Resource Permit and the Individual Environmental Resource Permit Technical Staff Report. DONE AND ENTERED this 29th day of April, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2015.
The Issue The issue in this case is whether the Southwest Florida Water Management District (District) should issue to Century Realty Funds, Inc. (Century) Environmental Resource Permit (ERP) No. 44000227.002 (the ERP), which would modify Management and Storage of Surface Waters (MSSW) Permit No. 400227.000 (the Permit) and Stormwater Exemption No. EO1481, issued by the District to Century in July 1985 for construction of a surface water management system for Angler's Green Mobile Home Park located in Mulberry, Polk County, Florida.
Findings Of Fact The District issued Management and Storage of Surface Waters (MSSW) Permit No. 400227.000 and Stormwater Exemption No. EO1481 to Century in July 1985 for construction of a surface water management system for Angler's Green Mobile Home Park (MHP) located in Mulberry, Polk County, Florida. Angler’s Green MHP Angler’s Green MHP is an 83-acre residential golf course development of approximately 385 homes located off of State Road 37 near Mulberry. Residents at Angler’s Green own their own mobile homes and lease the residential lots pursuant to annual leases expiring December 31 of each year, with guaranteed renewal conditioned upon owner compliance with the terms and conditions of the lease. Prior to being developed as a mobile home park, the property which is now Angler’s Green MHP was part of a phosphate mining operation and was reclaimed under a phosphate mining land reclamation plan approved by the Florida Department of Natural Resources and a reclamation contract dated September 4, 1984. Final contours of the Angler’s Green site were made in accordance with the approved reclamation plan. After reclamation contouring, a 23-acre manmade (former phosphate mine pit) lake remained in the northeast quadrant of the Angler's Green site. The resulting lake had a finger arm (bay or cove) extending from the southwest corner of the main body of the lake, oriented in a north-to-south direction and located west of a peninsula of land extending into the northwest part of the lake from the north. The lake also had a short, narrow canal leading into the main body of the lake from the south; the canal connected at a right angle to longer narrow waterway to the south of and extending parallel to the main body of the lake in an east-to-west orientation. There also were two smaller ponds on the property after reclamation contouring. After reclamation, surface water onsite generally flowed westerly and discharged from the property to a railroad ditch along the western boundary of the property. The recorded post-reclamation, pre-development water level for the 23-acre lake, as indicated on the site grading plans, was around 127.1 to 127.8 feet above Mean Sea Level (M.S.L.). The 1985 Permits On July 10, 1985, the District issued MSSW Permit No. 400227.000 and Stormwater Exemption No. EO1481 to Century to authorize the construction of a surface water management system for Angler’s Green. The MSSW Permit had an expiration date of July 10, 1988. As designed, the permitted Angler’s Green surface water management system was to route internal stormwater runoff to swales, detention ponds, and catchment areas before discharging through a sidebank sand filtration system (a berm approximately 300 feet long containing an 8” perforated drain pipe covered by a filter fabric and sand filter material) to receiving waters at the northwest corner of the property. The permitted system was designed with five drainage areas known as Basins A through E. Basin A was in the southeast quadrant of the site; Basin B was to its east in the southeast quadrant of the site; Basin E was to the north of Basin A and included the 23-acre former phosphate mining pit reclaimed as an artificial lake, which was referred to as “Lake E” or sometimes “Pond E"; Basin C was to the west of Basin E; and Basin D was to the west of Basin C and to the north of Basin B. The two smaller ponds on the property were designated Pond C-1 and Pond B-1 and were located in Basin C and Basin B, respectively. Basin D was in the northwest corner of the site; the discharge structure was in the northwest corner of Basin D. As the system was designed, stormwater from Basin E would appear to sheet flow naturally into Lake E; stormwater from Basin A would appear to flow naturally to the southwest, away from Lake E, but the system routed the water from the southwest corner of Basin A to the western end of the waterway on Lake E through an underground pipe. Stormwater from Basin B was to flow to and be retained in Pond B-1; as the system was designed, surface water was not designed to discharge offsite from Basin B. As designed, Lake E served as a detention pond for water from Basin E and Basin A. It was to have a control structure (CS-1) in the arm of Lake E that would produce a seasonal fluctuation range of two feet, from 127.5’ above M.S.L. to 129.5’ above M.S.L. Stormwater discharging from CS- 1 was to be conveyed by pipe to Pond C-1, where it was to mingle with surface water draining from Basin C. When full, Pond C-1 would cascade into the golf course area in Basin D and, as necessary, in a portion of Basin B. After catchment and detention in the golf course area, overflow was eventually and ultimately to discharge offsite through the side-bank sand filtration system in the northwest corner of Basin D. In this manner, the Angler’s Green surface water management system was designed to accommodate the 24-hour, 25- year storm event, which was estimated to produce approximately 8 inches of water in a 24-hour period. It also was designed to comply with the water quality requirements as specified in Florida Administrative Code Chapter 17-25 (1985 Ann. Supp.) by detaining the first half-inch of runoff before discharging it offsite through the sidebank sand filtration system in the northwest corner of Basin D. (All rule citations are to the Florida Administrative Code.) Omission of the Stangls During the review process, the District noted from drawings submitted as part of Century's MSSW Permit application that the project area did not include approximately the eastern third of the main body of Lake E. District staff brought this to Century's attention in a request for additional information (RAI) and stated: "If possible, you should obtain a perpetual right to operate and maintain the lake from other owners." In response, Century falsely represented to the District that L. Kirk McKay, a joint venture partner of Century, was the only riparian owner on Lake E and that Century had obtained from him a perpetual right to operate and maintain Lake E as part of the MSSW Permit. In fact, the Stangls owned property on the east side of the lake, including approximately 500 feet of lakefront and contiguous lake bottom. The Stangls and two partners purchased the property from McKay himself in 1979. The Stangls bought out their partners in 1984. The District relied on Century's misrepresentation. The District would not have issued the MSSW Permit to Century if the District had known that Century did not own or control all the land being used for the Permit--specifically, including all of Lake E. See Rule 40D-4.101(1)(d) and (2)(d)6. (1985) (application must include "evidence of ownership or control"). In addition, because the District was unaware of the Stangls' ownership of a portion of Lake E, the District did not require Century to give the Stangls direct, actual notice of the Century's permit application. Instead, the District only required that Century publish notice of the District’s receipt of the permit application. Notice was published on April 3, 1985, in the Lakeland Ledger, a newspaper of general circulation qualified under the terms of Section 50.011, Florida Statutes. But the Stangls did not see the published notice, were unaware of the permit application, and did not ask to participate in the permitting process. The Stangl property adjacent to Angler’s Green remained undeveloped and unoccupied until 1999, when the Stangls' son, John, established a business on the site. Prior to 1999, the Stangls visited the property a couple times a year. They were fully aware of the construction and operation of Anglers Green as a mobile home park across Lake E. During this time, Century leased 385 lots with guaranteed annual renewal conditioned only upon compliance with lease terms and conditions. Amenities under the leases included clubhouse and golf course privileges. At no time before 2000 did the Stangls take any action to challenge the validity of Century's 1985 MSSW Permit. 1985 Surface Water Management Permitting Requirements In 1985, permitting requirements for surface water management systems were divided between two regulatory schemes. Surface water management permits in Polk County were issued by the District under Chapter 373, Florida Statutes, and Rule Chapters 40D-4 and 40D-40, which addressed water quantity and flooding issues for projects greater than and less than 40 acres, respectively. Water quality permits or exemptions from water quality permitting requirements were issued by the Department of Environmental Regulation under Chapter 403, Florida Statutes, and Rule Chapter 17-25 to address water quality concerns. It was not until 1988 that permitting requirements were consolidated into the MSSW regulatory program administered by the District under Rule Chapters 40D-4 and 40D-40. In 1985, the District did not have a Basis of Review (BOR) to specify system design requirements for applicants to provide reasonable assurances that the conditions for issuance of surface water permits were satisfied. Standards and criteria for the design and performance of surface water management systems were contained in Rule 40D-4.301(2) (1985) Under subsection (2)(i) of that rule, projects designed to meet the requirements of Chapter 17-25 [Regulation of Stormwater Discharge] were presumed to meet applicable State water quality requirements. There were no requirements for wet detention pond littoral zones. 20. Under Rule 17-25.03(2)(b) (1985 Ann. Supp.), stormwater management systems for projects with drainage areas less than 100 acres that provided retention or detention with filtration of the first half-inch of runoff were exempt from the permitting requirements of Rule Chapter 17-25. 21. In 1985, District Rule 40D-4.301(2)(j) (1985) allowed for natural areas and existing water bodies to be used for stormwater retention or detention purposes when not in conflict with environmental or public use considerations. Areas that could be considered for this purpose included previously-degraded areas or man-made areas (such as borrow pits). Apparently, the District allowed Century to use Lake E as a detention pond under this provision. Deviations from MSSW Permit Angler’s Green MHP was constructed in two phases, with the first phase completed in 1985, and the second phase completed in 1987. Construction of at least the part of the surface water management system to serve the first phase took place prior to 1985; it was not clear from the evidence whether construction of the part of the surface water management system to serve the second phase also took place prior to 1985, but it clearly took place prior to construction of the second phase in 1987. Condition No. 4 of Century's MSSW Permit required the submittal of a certification that the system was constructed in accordance with the approved and permitted design. But Century did not provide any such certification. Century also never certified to the District that its new stormwater discharge facility, as constructed, continued to qualify for exemption from State water quality requirements. Although the surface water management system was constructed and operating, the District never transferred the 1985 Permit to the operation phase. In several respects, the Angler’s Green surface water management system was not constructed as designed, approved, and permitted in 1985. The pipe to convey stormwater from the southwest corner of Basin A back to the Lake E waterway apparently never was constructed; instead, stormwater from Basin A was routed to Pond B-1. (There also was a berm constructed in Basin A near the southern boundary of the site; but that berm apparently was a visual berm, and there was no evidence that it affected performance of the surface water management system.) Control structure CS-1 (which was supposed to be located in the arm or bay of Lake E) and the pipe to convey overflow from there into Pond C-1 also never were constructed. By the early 1990's, Angler's Green was experiencing flooding in the golf course area in Basin D and B for extended periods of time. In November 1993, the District responded to a complaint of flooding in that vicinity. Upon investigation, the District determined that malfunction of the surface water management system serving Reservation Lakes (now known as Paradise Lakes), a development to the north and downstream of the Angler's Green system, was causing water to back up through the wetlands and the sand filtration system in the northwest corner of the Angler’s Green project. As a result, water overtopped the discharge structure, equalized at levels above the top of the discharge structure's berm, and flooded the golf course for extended periods of time. At some undetermined point in time, an unpermitted pond was dug in Basin D, apparently in an attempt to alleviate flooding of the golf course. In addition, possibly for the same purpose, a pump was installed in Basin D near Pond C-1, and a pipe was installed to convey stormwater from there into Lake E. The sidebank sand filtration system designed to provide filtration of stormwater prior to discharge from the northwest corner of the site does not appear to exist today. It may be present but difficult to see after 15 years of plant growth; or it may have been removed or disturbed as a result of re-grading in the area. However, the evidence proved that the discharge structure was present in 1993, and there is no reason to believe that it was not installed during construction of the surface water management system--i.e., by 1987 at the latest. In addition, at some undetermined point in time, a pipe was installed at the northeast corner of Lake E to convey overflow from Lake E eastward to a drainage ditch located alongside SR 37 to the north of the Stangls' property. No witnesses could testify as to when the pipe to the SR 37 ditch was installed or its elevation. (The District and Century state in their PRO that Map No. 2 in P/I Exhibit 14--an aerial map/survey submitted to the District by Century on August 13, 1990, as part of Century's 1990 Water Use Permit No. 209993.000 application--notes the pipe's elevation as 127.95 feet above M.S.L.; but no such finding could be made from review of the exhibit.) Roads in Angler's Green have inverted crowns to convey runoff from roads, driveways, and roofs away from mobile home lots. Some runoff from these impervious surfaces appears to be directed into a swale on the east side of the site; this swale leads to Lake E. In addition, approximately 12 drains have been installed in or near roads in Angler's Green that convey water through pipes directly into Lake E or Pond C-1. Under current Rule Chapters 40D-4 and 40D-40, road drains connecting impervious surfaces to Lake E would have to be shown on application construction drawings, and separate stormwater calculations would have to be provided in an application. But in 1985 this was not required. Century's calculations, together with flow arrows on drawings showing the direction of stormwater flow towards the detention ponds, were considered sufficient--especially since Century's calculations used a relatively high runoff co-efficient. As a result, the existence of these drains and pipes are not considered to be substantial deviations from the original, approved design. Similarly, approximately 64 roof drains and pipes conveying water from roofs directly into Lake E and Pond C-1 would not be considered substantial deviations from the original, approved design. In addition, these apparently were installed by mobile homeowners over the years, not by Century. From 1985 to 2000, the District did not have occasion to address regulatory concerns at Angler’s Green, except for the complaint of flooding in the golf course area that occurred in November 1993 and a more recent complaint about an area of the golf course that was designed to flood under certain conditions. Otto Stangl’s Complaint and the District’s Response Around November 1999, John Stangl noticed a fish kill in the ditch along SR 37 near the Stangl property. He also was contacted by a governmental compliance officer concerning the fish kill. Upon investigating, John Stangl saw the unpermitted pipe leading from Lake E that was discharging into the SR 37 ditch where the fish kill was observed, as well as the unpermitted pump that was pumping water from the Angler’s Green golf course area through a pipe that discharged into Lake E. In February 2000, Otto Stangl complained to the District about the fish kill and the existence of the unpermitted structures associated with Lake E. Upon receiving Otto Stangl’s complaint, District staff conducted site visits of the Angler’s Green project. Staff observed the unauthorized pump and pipe conveying water from Pond C-1 to Lake E and the unauthorized pipe conveying water from Lake E to the SR 37 ditch. Staff also observed that the Lake E control structure was missing, the pipe to convey stormwater from Basin A to Lake E was missing, and Basin D had been re-graded. In February 2000, the District also became aware of the fact that Century did not have full ownership or control of Lake E. On March 15, 2000, the District issued Century Notice of Non-Compliance and directed Century to either construct the system as designed and permitted or to seek a permit modification. On May 8, 2000, Century submitted a letter application to modify the original MSSW Permit No. 400227.000 by constructing the originally permitted Lake E control structure and pipe conveying water from Lake E to Pond C-1, but in a different location in Lake E than originally permitted due to the existence of homes at the location where these structures were originally planned. The application was subsequently amended to be a formal modification upon Century’s request for further modification to allow Basin A stormwater to flow to Pond B-1 and to expand Pond B-1 and add a control structure and an effluent filtration system. Despite having actual knowledge since at least February 2000 that the Angler's Green surface water management system was built partially on their property, the Stangls did not ask for a hearing on the 1985 Permit. Instead, they awaited the District's consideration of Century's modification application and sought to challenge the District's notice of intent to grant the modification permit issued on October 29, 2001. The District’s Regulatory Compliance Practices In the 1980's, the District appeared to pay little or no attention to construction of permitted projects or submission of required post-construction certifications. Many projects permitted by the District in the 1980’s, such as Angler’s Green, were built and operating although no certifications had been submitted; as a result, the permits issued for these projects never were transferred to the operation phase. Eventually, some projects not built in compliance with issued permits came to the attention of the District, typically through third-party complaints about drainage problems and flooding. By this time, there was a large backlog of issued construction permits for which no required post-construction certifications had been submitted. The backlog of these older projects was so large that the District decided not to initiate an aggressive, systematic, and comprehensive review of all permits for which no required certifications had been submitted. Instead, projects were checked on an ad hoc basis as complaints regarding the functioning of their surface water management systems were registered. When it came to the attention of the District in this manner that a project had been built under an MSSW permit but that no required certifications had been submitted, the District first attempted to secure the required certifications in the form of certified as-built construction drawings and a Statement of Completion, as required by BOR 2.7. In so doing, it was common practice for the District to accept certifications beyond the expiration date on a permit. If projects were substantially completed, the District would not deem the permit as expired simply because the required certifications had not been submitted before the expiration date; and such projects did not lose their status as being permitted. It should be noted that, according to the testimony of the District's expert, William Hartmann, this agency practice was not based on an interpretation of Rule 40D- 4.321(1)(b) (1985) (on duration of construction permits). Rather, the agency practice was to ignore the expiration of the construction permit under those circumstances. In addition, it does not appear from the evidence that the District ever before has faced the situation presented in this case--where a person on whose property part of a surface water management system was built without the person's consent opposes modification and asserts the construction permit has expired. In cases where the agency's practice was applied, if the required certified as-built construction drawings and Statement of Completion could not be provided because the project was not built in accordance with the MSSW permit, the District would require the permittee to either bring the system into compliance with the approved permit designs or obtain a modification of the construction permit. Letter modifications would be accepted when the requested modification would not substantially alter the permit authorization, increase the authorized offsite discharge, impact the environmental features of the project, decrease the required retention/detention, decrease the required flood control elevations for roads or buildings, or decrease pollution removal efficiency. See Rule 40D-4.331(2)(b) (1985). (The current version of the rule adds renewal or extension of the existing permit duration.) Alterations meeting the threshold requirements for a letter modification would be presumed to meet the conditions for issuance for a permit. Otherwise, formal permit modifications would be required. When application is made for a permit modification, the District’s practice is to evaluate those aspects of the surface water management system being modified. Review generally would not extend to the entire system. Permittees seeking to modify their surface water management systems generally are not required by the District to bring the unmodified portions of the system into compliance with current design criteria. Proposed ERP Permit Modification ERP Application No. 44000227.002 seeks authorization to modify portions of the Angler’s Green surface water management system. The specific alterations for which approval is sought are: permanent removal of the existing, unpermitted 18-inch pipe between Lake E and SR 37 roadside ditch; permanent removal of the pump and associated piping conveying water from Pond C-1 to Lake E; installation of the control structure (CS-1), together with installation of pipe to convey water from the control structure to Pond C-1, as designed and approved in the 1985 Permit but different location in the northwest corner of the main body of Lake E; re-grading of the northwesterly portion of the golf course to more closely conform to the original permitted plan and help keep Basin B separate from Basin D; reconstruction of the side-bank sand filter system in the northwest corner of the property, as designed and approved in the 1985 Permit but with a slightly higher invert elevation (122.04 feet above M.S.L.) to prevent water from backing up into Angler's Green from Paradise Lakes again, and with a concrete flume and spreader swale between Pond C-1 and the berm of the side-bank sand filter system; enlargement of Pond B-1; installation of a control structure on Pond B-1; and installation of 100 feet of 6-inch side-bank sand filter discharging to the southwest corner of the property from Pond B-1. By removing the unpermitted pipe to the roadside ditch along SR 37 and by constructing control structure CS-1, with the same control elevations as in the 1985 Permit (albeit at a different location in Lake E), and connecting CS-1 by pipe to Pond C-1 as envisioned in the 1985 Permit, the function of Lake E should approximate its function under the design approved in 1985. Modifying the permitted design to authorize Basin A to flow to Pond B-1 instead of Lake E results in less water flowing to Lake E; these changes will not increase water quantity or quality impacts to Lake E, as compared to the 1985 Permit. As compared to reclamation conditions prior to implementation of the 1985 Permit, water quantity and quality impacts to Lake E would be expected both under the system as designed and permitted in 1985 and as proposed to be modified, by virtue of the similar use of Lake E as a detention pond under either system. Pond B-1 is being enlarged to better accommodate the flow from Basin A. The control structure being added at Pond B-1 will control flow into the swale to the west so as to address water quantity impacts in that area. Stormwater calculations for the revised Pond B-1 demonstrated that the post-development discharge rate will not exceed the pre- development discharge rate, so that there are no concerns for adverse water quantity impacts to receiving waters or adjacent lands or flooding impacts to on-site or off-site property. The historical flows to the west are still maintained. The discharge structure being added at Pond B-1 will account for treatment of the Basin A flow. Based on calculations for revised Pond B-1, the enlarged pond will retain and percolate half an inch of stormwater runoff from the contributing area in 36 hours (which is consistent with current BOR design requirements). The proposed Pond B-1/Basin B modifications, including the routing of Basin A stormwater to Pond B-1, will not adversely affect the quality of receiving waters in that vicinity such that state water quality standards would be violated. Angler's Green is located in the Southern Water Use Caution Area of Polk County. No surface or groundwater levels or surface water flows have been established for this area under Section 373.042, Florida Statutes. The proposed modifications do not involve any works of the District. The proposed modifications are based on generally accepted engineering and scientific principles and employ treatment methods of effluent filtration which involve commonly accepted designs that can be effectively performed and function as proposed. There are no concerns about Century’s financial, legal, or administrative capability to undertake the proposed modifications as specified in the permit, if issued. There are no applicable special basin or geographic area criteria established for this area. Environmental Concerns As with its review of the proposed permit modification for water quantity impacts, the District's review of environmental concerns was limited to review of impacts from the proposed modifications to the original permitted design; unmodified portions of the original permit were not reviewed for compliance with current requirements. An approximately 20 square-foot permanent impact is proposed to Lake E due to the placement of the control structure (SW-1) in the water. A 379 square-foot temporary impact is proposed to Lake E due to the placement of a cofferdam to facilitate construction of the control structure. Temporary impacts to Lake E resulting from the construction of the control structure would be addressed through the use of sediment and erosion controls to prevent possible sedimentation and turbidity that may arise during the construction activity. The placement of a control structure in Lake E would create very minor permanent impacts resulting from the loss of the footprint of the control structure. These impacts would be insignificant. Due to the very minor nature of these proposed impacts, no mitigation would be required, and no loss of wetlands would be required to be recorded on the Wetlands/Surface Water Table. Construction of SW-1 would not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District. No secondary impacts would be expected from construction of SW-1. No unacceptable cumulative impacts upon wetlands and other surface waters would be expected to occur as a result of construction of SW-1. The project area includes .71 acre of herbaceous/forested wetlands (WL-1) in the northwest corner. The potential for secondary impacts is addressed by an existing fence surrounding WL-1, which eliminates concerns for secondary impacts to this wetland area. No adverse impacts would be anticipated to occur to these wetlands, and no adverse secondary impacts to the water resources would be expected to occur as a result of the proposed modifications themselves. The proposed modifications would not cause unacceptable cumulative impacts to wetlands and other surface waters. Class II or Class III waters would not be affected by the proposed modification project. Therefore, Rule 40D- 4.302(1)(c) is not applicable. No seawalls, lagoons or estuaries are involved in this project. Therefore, Rule 40D-4.302(d) is not applicable. The proposed modifications would not be contrary to the public interest. Relocation of a control structure and enhancement of the Basin B portion of the system would create no significant change in impacts. The proposed modifications constitute a slight improvement over water quality from the original permitted design. No threatened or endangered species were identified for Angler’s Green. The proposed relocation and construction of the Lake E control structure, preservation of onsite wetlands in the northwest corner, and re-design of Pond B-1 present no environmental concerns. Consequently, the proposed modifications do not create any potential for adverse effects regarding the conservation of fish and wildlife, including endangered or threatened species or their habitats. The proposed modifications do not adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The project area does not involve navigable waters and does not affect the flow of water or cause harmful erosion or shoaling. Hence, Rule 40D-4.302(1)(a)(3) does not apply to this permit modification application. There are no significant historical and archaeological resources involved in this Project. Therefore, Rule 40D-4.302(1)(a)(6) is not applicable to this permit modification application. The proposed modifications would not be contrary to the public interest; they would not adversely affect the public health, safety or welfare or the property of others. No adverse impacts are anticipated to occur as a result of the proposed modifications. The proposed modifications maintain the historic water elevation for Lake E and maintain historic flows for the project area. The modified system should also provide some improvement in water quality.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order denying Century's permit modification application designated ERP No. 44000227.002. DONE AND ENTERED this 8th day of July, 2002, in Tallahassee, Leon County, Florida. ________________________________ 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 8th day of July, 2002. COPIES FURNISHED: Joseph D. Magri, Esquire Merkle & Magri, P.A. 5510 West LaSalle Street Tampa, Florida 33607-1713 Joseph P. Mawhinney, Esquire Clark, Campbell & Mawhinney, P.A. Post Office Box 6559 Lakeland, Florida 33802 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E. D. Sonny Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The SFWMD is a public corporation in the state of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 573, Fla. Stat., and Title 40E, Fla. Admin. Code, as a multi-purpose water management district, with its principal office in West Palm Beach, Florida. The Navy has proposed construction of a naval housing facility on the Peary Court site (the "Site") in Key West, Florida. The Site is approximately 25.89 acres and will provide 160 housing units for junior enlisted Navy and Air Force personnel and their families. The Site is the center of a larger, 37 acre drainage basin. The Site was formerly the location of military housing. However, for the past 18 years, the Site had been used by the City of Key West, with the assent of the Navy, for active and passive recreation for city residents. The Site contains a cemetery of historic value and a former military housing structure now being used by the Navy Key West Federal Credit Union with an associated parking area of paved asphalt. On February 6, 1992, the Navy submitted an application for a Surface Water Management District General Permit for the Project. The proposed surface water management system (the "System") was designed by Rice Creekmore, a registered professional engineer, and his company Johnson, Creekmore, and Fabray. The proposed System utilizes the existing topography and incorporates a number of drainage control mechanisms to manage the run-off from the Site. The System employs inlets, swales and culverts to direct stormwater run-off into dry detention areas (ponds) for pretreatment prior to discharging into seven 24-inch Class V injection wells (drainage wells). As discussed below, these injection wells must be permitted by the Florida Department of Environmental Regulation ("FDER"). The dry pond areas utilize key ditches, bottom elevation 1.0' NGVD, in order to hydraulically connect all of the dry pond areas together into one dry system prior to overflowing into the drainage wells beginning at elevation 1.5' NGVD. In other words, the detention ponds are interconnected with pipes. The design includes only one point where run-off would be discharged from the Site during any storm equal to a 25 year, three day storm event. That discharge would occur at the lowest point of the Site at the corner of Eisenhower and Palm. The water would be discharged through a V notch weir (the "Weir") into the City's stormwater system. An existing 12" storm drain line at the discharge point will be replaced by a 13.5" by 22.0" Reinforced Concrete Elliptical Pipe culvert. As discussed in more detail below, the System is designed so as to detain 1" of run-off within the dry detention ponds prior to any discharge through the Weir. After review of the application and submittals, the SFWMD issued a Notice of Intent to issue General Permit and Stormwater Discharge Certification No. 44-00178-S (the "Permit") on September 29, 1992. Petitioner and Intervenor timely petitioned for an administrative hearing challenging the SFWMD decision to award the Permit. There is no dispute as to the standing of either Petitioner or Intervenor. The SFWMD has adopted rules that set forth the criteria which an applicant must satisfy in order for a surface water management permit to issue. The criteria are set forth in Rule 40E-4, Florida Administrative Code. Rule 40E-4.301(1)(m) and 40E-4.091(1)(a) incorporate by reference The Basis of Review for Surface Water Management Permit Applications within South Florida Water Management District - April, 1987, ("The Basis for Review"). The Basis for Review explicates certain procedures and information used by the SFWMD staff in reviewing a surface water management permit application. The SFWMD issues general permits for projects of 40 acres or less that meet specific criteria. All other projects must obtain individual permits which are reviewed by the District Board. The specific rules relating only to general permits are set forth in Rule 40E-40. In addition, the Basis for Review sets forth certain technical requirements which must be met for the issuance of a general permit including general construction requirements and special requirements for wetlands. The Basis for Review also sets forth criteria for how a proposed system should address water quantity and water quality issues. The SFWMD assumes that water quantity and water quality standards will be met if a system satisfies the criteria set forth in the Basis for Review. Water Quantity Criteria Rule 40E-4.301(a), Florida Administrative Code, requires an applicant to provide reasonable assurances that a surface water management system will provide adequate flood protection and drainage. The purpose of the water quantity criteria is to insure that pre- development flows and post-development flows are equal. The SFWMD requires calculations of a project's projected post-development flow to guarantee that the post-development discharge rate will not be in excess of the pre-development discharge rate. These calculations are based on a 25 year, 3 day storm event. There is no stormwater management system in place at the Project Site. The pre-development topography results in a pre-development discharge point from the Site at the corner of Eisenhower Drive and Palm Avenue. At this point, a discharge or outfall pipe leads into the City of Key West's stormwater management system. The City's system ultimately discharge into Garrison Bight, a nearly waterbody which is discussed in more detail below. At the time the Navy began planning for the Project, the Navy was told that the discharge pipe had a capacity of accepting water at a rate of 40 cubic feet per second ("CFS"). The Navy initially designed a system to utilize this capacity. Subsequently, it was discovered that, due to the size of the pipe at the discharge point and the capacity of the pipes downstream in the City of Key West's stormwater management system, the City would not allow or accommodate a discharge of more than 11 CFS from the Site. Thus, the System had to be redesigned so that the discharge to the City's system would not exceed 11 CFS. The system was redesigned to incorporate the seven (7) Class V injection wells. The injection wells are intended to insure that discharge from the Project into the City stormwater system through the surface water discharge pipe at Eisenhower Drive and Palm Avenue will not exceed 11 CFS. The injection wells introduce treated stormwater into the ground before it reaches the discharge point. The pre-development rate of surface water discharge from Peary Court in a 25 year, 72 hour storm event was 55 CFS. This rate was calculated based upon a site survey, a determination of the existing amount of pervious versus impervious surface area, and a calculation made through a generally accepted civil-engineering computer program. 1/ This predevelopment discharge is the amount of water which would be expected to discharge off-site after percolation occurs. The number and size of the injection wells for the proposed system were determined based upon tests of an on-site twelve-inch fire well. The results of the tests revealed that the on-site test well could manage in excess of 2 CFS. Due to test limitations, the exact capacity could not be measured, but the capacity was clearly more than 2 CFS. These results were then compared with data obtained from the engineering firm of Post, Buckeley, Schuh & Jernigan for installed wells in the Florida Keys of a similar nature and size to the wells in the proposed surface water management system. The Post, Buckeley test results indicated that 24-inch wells had a capacity of 31 CFS. In addition, the design engineer consulted with South Florida Well Drillers, who have drilled other wells in the Florida Keys including 24-inch wells at the Key West airport which were completed shortly before the application for this Project. South Florida Well drillers found the capacity of 24-inch wells in Key West to be in the 25 to 30 CFS range. Based upon the results of the test well and the related reports described above, the project engineer based his design of the surface water management system on an estimated well capacity of 8.4 CFS for each well. These estimates were submitted by the Navy in its application and were appropriately determined to be reasonable by the SFWMD staff. Indeed, the evidence established that 8.4 CFS was a conservative estimate. The seven injection wells, at an estimated capacity of approximately 8.4 CFS each, provide in excess of 56 CFS of well discharge capacity, which is beyond the necessary discharge volume for the Project. Limiting Condition No. 13 of the Permit requires the Navy to obtain a well capacity test from a Florida Registered Professional Engineer or Professional Geologist following the installation of the first Class V injection well at the Site. If the results of this test indicate that the capacity of the well is different than that submitted by the Navy in its application, the Navy must apply for a permit modification to provide a design which incorporates a representative injection well flow-rate and an appropriate number of wells for the Site. In view of the reasonableness of the capacity rates utilized for the wells, it is unlikely that the results of the capacity test will result in any major design change in the proposed surface water management system. The use of the injection wells in the proposed surface water management system will significantly reduce the amount of run-off which would otherwise reach Garrison Bight from the Site. After the System is completed, it is expected that the amount of run-off from the Site that will reach Garrison Bight will be only 20 percent of the predevelopment amount. In addition, because there has previously been no management of the run-off from the Site and surrounding areas, there has been a frequent flooding problem at the corner of Eisenhower Drive and Palm Avenue after heavy rain storms. The proposed surface water management system will accommodate the overflow of water which historically occurred when discharges from Peary Court and the surrounding areas could not be accommodated by the Key West storm water management system. Petitioner and Intervenor suggest that the effect of tidal flow on the capacity of the wells was not fully considered. The evidence established that the design engineer considered normal high tides in calculating groundwater elevations. Respondent's engineering experts have concluded that the proposed surface water management system is effectively designed to accommodate the Florida Keys' tidal flows. Petitioner and Intervenor offered no expert testimony to refute this conclusion and/or to establish that the tides would impact the effectiveness of the proposed surface water management system. In the event that an extremely high tide occurs at the time of a storm, the detention ponds may hold standing water for a short time. This water would not be discharged off-site. There is no evidence that tidal influences would in any way adversely affect the System's ability to uptake pollutants in the "first- flush". The Class V shallow injection wells are an integral part of the proposed Peary Court surface water management system. Without the injection wells it is not clear whether the Project could meet the SFWMD water quantity criteria. The SFWMD does not have authority to permit Class V injection wells. FDER must permit those wells. The Peary Court site is not the first Florida Keys' project permitted by the SFWMD which utilizes injection wells. The surface water management permits for the other projects were issued contingent upon obtaining the necessary permits for the injection wells. Special Condition No. 14 of the Permit provides that the Permit is conditioned on the Applicant obtaining the applicable permits from FDER for the injection wells. During the interim while the Navy is seeking the FDER permits, it should be required to retain all run-off on-site. If the Navy is not able to obtain the necessary FDER permits for the injection wells, the Navy should be required to either retain all run-off on-site or propose an alternate design to meet the SFWMD's water quantity requirements. A modified permit application with a new Notice of Intent should be required for any alternate design. The following Special Condition Number 14 was offered by the SFWMD at the hearing (language revised from original condition is highlighted and underlined): THIS PERMIT IS ISSUED BASED ON THE APPLICANT OBTAINING THE NECESSARY CLASS V INJECTION WELL PERMITS FROM THE FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION (FDER). THE PERMITTEE SHALL SUBMIT AN APPROVED CLASS V DRAINAGE WELL PERMIT FROM FDER PRIOR TO OPERATION OF THE SURFACE WATER MANAGEMENT SYSTEM. IN THE INTERIM, THE PERMITTEE SHALL CERTIFY TO THE DISTRICT THAT NO OFF-SITE DISCHARGE WILL OCCUR UNTIL THE APPROVED CLASS V DRAINAGE WELLS ARE IN OPERATION. IF THE SURFACE WATER MANAGEMENT SYSTEM DESIGN MUST BE MODIFIED AS A RESULT OF FDER REQUIREMENTS OR IF THE CLASS V INJECTION WELL PERMITS ARE NOT ISSUED, THE APPLICANT SHALL APPLY FOR A PERMIT MODIFICATION TO PROVIDE A SURFACE WATER MANAGEMENT SYSTEM DESIGN WHICH SHALL MEET DISTRICT CRITERIA IN EFFECT AT THAT TIME. The proposed additional language requires the Navy to certify that no off-site discharges will occur until the injection wells are permitted and are operating. This revised language should be added to Special Condition No. 14 to clarify that the injection wells must be in operation prior to any off-site discharge from the surface water management system. Maintenance of the surface water management system entails upkeep of the dry detention areas and routine grass cutting, as well as inspection of the injection wells on a periodic basis to guard against clogging and reduced capacity. The system is essentially designed to operate without direct surveillance or intervention. Injection wells do not require any additional maintenance over and above that which is routinely required for other types of surface water management systems. The injection wells will require routine maintenance to ensure that manholes and inlets do not become clogged. Limiting Condition No. 8 of the Permit requires that the surface water management system, including the injection wells, be maintained. At the hearing, the SFWMD proposed that a condition be added to the Permit to further clarify the maintenance requirements. A condition requiring long-term maintenance would be desirable and reasonable. A new special condition should be added to the Permit requiring long-term maintenance of grass swales and inspections of injection wells for clogging. Acceptable language for such a condition would be: SPECIAL CONDITION NO. 15 The permittee shall provide long-term maintenance of the surface water management system, encompassing the injection wells, including, but not limited to, (a) maintenance of the vegetation in the grass swales and detention ponds and (b) routine inspections of wells and discharge structures for clogging. Water Quality Criteria As noted above, there is no designed system for surface water management and/or water quality pretreatment at the Site in its undeveloped state. Surface water run-off that can not be managed by the City of Key West's storm water management system collects in roads adjacent to the Site, resulting in adverse water quality and quantity impacts to adjacent land and receiving waters. The applicable water quality criteria, contained in Rule 40E-4.301, Florida Administrative Code, require an applicant to provide reasonable assurances that a surface water management system will not cause adverse water quality impacts to receiving waters and adjacent lands, and will not cause discharge which results in any violation of the standards and criteria of Chapter 17-302 for surface waters of the state. Rule 40E-4.301 provides that: In order to obtain a permit under this chapter, an applicant must give reasonable assurances that the surface water management system is consistent with the State Water Policy as set forth in Chapter 17-40, Florida Administrative Code (40E-4.301(1)(h), Florida Administrative Code. Rule 17-40.420 provides in pertinent part: Minimum Stormwater Treatment Performance Standards. When a stormwater management system complies with rules establishing the design and performance criteria for stormwater management systems, there shall be a rebuttable presumption that such systems will comply with state water quality standards. The Department and the Districts, pursuant to Section 373.436, Florida Statutes, shall adopt rules that specify design and performance criteria for new stormwater management systems which: 1. Shall be designed to achieve at least 80 percent reduction of the average annual load of pollutants that would cause or contribute to violations of state water quality standards. The Basis for Review, which is incorporated into Title 40E, Florida Administrative Code, by reference, further delineates the applicable water quality permit criteria for surface water management systems. Regarding water quality criteria, the Basis for Review provides: 3.2.2.1 State standards - Projects shall be designed so that discharges will meet state water quality standards, as set forth in Chapter 17-3 [revised to 17-302], Florida Administrative Code. The SFWMD's water quality criteria do not require chemical testing of stormwater for residential projects. The SFWMD's water quality criteria require that the design of a surface water management system meet applicable design/technology based criteria. Section 3.2.2.2 of the Basis for Review contains the specific water quality criteria for the design of a surface water management system. The SFWMD allows applicants to design their surface water management system using either dry or wet detention or dry or wet retention, so long as the treatment provided by the system meets water quality and quantity criteria. Dry detention consists of a system of grass swales and vegetative- covered ponds which detain water at a predetermined rate prior to off-site discharge. Wet retention can contain canals, ditches, lakes or ponds to retain water on-site. If a system is designed to meet the criteria specified in 3.2.2.2(a) of the Basis for Review and incorporates Best Management Practices ("BMP's") for the type of system proposed, the SFWMD presumes that water quality standards will not be violated. In determining which system is appropriate for a particular site, water quantity (flooding impacts) and water quality impacts must be balanced. In some cases, water quantity concerns may preclude certain types of water quality treatment methods. At the hearing in this case, Petitioner and Intervenor suggested that retention is superior to detention in designing surface water management systems. The evidence presented in this case was insufficient to support this conclusion. In any event, this contention focuses only on water quality considerations. One drawback to retention is that it may have on-site flooding impacts. With respect to this Project, the evidence indicates that retention may not have been an acceptable alternative because of possible adverse water quantity impacts. The Navy's proposed surface water management system was designed to utilize dry detention with filtration for treatment of surface water prior to discharge into the injection wells and/or off-site. The design uses a system of grass swales and grass-covered detention ponds to detain and filter pollutants from the surface water as it makes its way through the dry detention system. The System is designed to utilize as many grass swale areas as possible to filter or treat the surface water before it reaches the detention ponds which provide further treatment. The swales restrict the flow of water to approxmiately one half to one foot per second which allows for percolation and a tremendous amount of filtration. The System utilizes the natural topography of the Site to direct water through the dry detention system to the lowest point of the Site at the corner of Eisenhower Drive and Palm Avenue. Any water which makes it to this last detention pond and is not drained into one of the injection wells can flow through the discharge structure (the Weir) at 11 CFS and ultimately make it into Garrison Bight. Petitioner and Intervenor have suggested that the design of the proposed System is defective because water discharged from the cul-de-sacs in the Project design will flow directly into detention ponds without passing over any of the grass swales. The permit criteria do not specify that all surface water must contact grass swales prior to reaching a detention pond. While greater filtration is achieved the longer the run-off remains in the system, the evidence established that the detention ponds by themselves provide sufficient water quality treatment. With respect to all but one of the cul-de-sacs, the water must pass through at least two detention ponds before it is discharged. Run-off from the cul-de-sac closest to the Weir will receive treatment only in the last discharge pond. Petitioner and Intervenor questioned whether the run- off from this last cul-de-sac will receive adequate treatment, in other words, whether the "first flush" will be adequately detained prior to discharge, especially in circumstances when the detention pond is already wet. However, the evidence was insufficient to establish that their concerns are justified and/or that this situation would constitute a violation of water quality standards. This cul-de-sac is only 100 ft in diameter and accounts for no more than 8 percent of the total run-off from the Site. After considering all of the evidence, it is concluded that the water from the cul-de-sacs will be adequately treated in accordance with the permit criteria prior to any discharge. In assessing the Navy's proposed surface water management system the following criteria from the Basis for Review are pertinent in determining whether the proposed System will provide appropriate water quality treatment: 3.2.2.2 Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof. . .: Wet detention volume shall be provided for the first inch of run-off from the developed project, or the total run-off of 2.5 inches times the percentage of imperviousness, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. If the receiving waterbody, is a "sensitive receiving water," which would include an Outstanding Florida Water, the following additional criteria regarding direct discharges are applicable: 3.2.2.2 d. Projects having greater than 40 percent impervious area and which discharge directly to sensitive receiving waters shall provide at least one half inch of dry detention or retention pretreatment as part of the required retention/detention. The SFWMD interprets the permitting criteria as creating a rebuttable presumption that a surface water management system that provides detention in accordance with BMP's of the first inch (1") of run-off from a Site, commonly referred to as the "first-flush", will meet state water quality standards. The "first-flush" occurs at the onset of a rainfall when most pollutants run off paved areas and percolate into the grass swales. It is an accepted design parameter that the "first flush" contains 90 percent of the pollutants which will be collected in the run-off. The 90 percent of the pollutants in the first flush are consequently retained on-site through pure percolation and never reach the discharge facility. Although Petitioner and Intervenor suggest that dry detention does not provide this degree of filtration, the evidence was insufficient to support this contention. The proposed System for this Project provides treatment for the first one inch (1") of run-off from the developed Project, thereby meeting the permitting criteria for sensitive receiving waters. Intervenor and Petitioner contend that the development of this Project will necessarily result in a larger amount of pollutants in the run-off from the Site. They argue that the Applicant has not provided reasonable assurances that capturing 90 percent of the increased level of pollutants in the first flush will meet water quality standards. As noted above, compliance with the permit criteria creates a rebuttable presumption that water quality standards will be met. Insufficient evidence was presented to overcome this rebuttable presumption. In calculating the appropriate volume for the dry detention ponds, the Project engineer used the Site's percentage of impervious area. The percentage of impervious area was determined in accordance with SFWMD criteria. The calculations do not account for any percolation from the impervious areas even though much of that run-off will pass through swales and other grassy areas of the Site. In addition, there is a built-in buffer between the berm elevation around the ponds and the expected water level in the ponds. These factors confirm that there is significant additional capacity in the ponds which is an overage or safety net. In sizing the detention ponds, the project engineer also factored in additional off-site water that will be coming on-site from Palm Avenue. This water currently ponds on Palm Avenue contributing to a recurring flooding problem in the area. This off-site water will be routed through an inlet and pumped directly into on-site detention areas thereby reducing flooding on Palm Avenue and providing some treatment for off-site run-off that was not previously treated before entering the City's stormwater system. As noted above, additional water quality criteria requirements apply to projects which discharge to an Outstanding Florida Water. These additional criteria are set forth in paragraph 40 above. Outstanding Florida Water or OFW is the designation given exclusively by the FDER to certain waterbodies in Florida which have special significance, either for ecological or recreational reasons. Outstanding Florida Waters are afforded the highest degree of water quality protection. The criteria for designation of waters as Outstanding Florida Waters is found in Chapter 17-302, Florida Administrative Code. When the SFWMD initially reviewed the Permit application for this Project, it erroneously assumed that Garrison Bight, the ultimate receiving body for the waters discharged from the project through the City stormwater system, was an OFW. Although the SFWMD applied water quality criteria for OFW's when it reviewed the subject permit application, the evidence at the hearing in this case established that Garrison Bight is not an Outstanding Florida Water. A FDER representative, qualified as an expert in the designation of Outstanding Florida Waters, testified that the Outstanding Florida Water designation does not apply to certain waterbodies that were degraded at the time of designation or did not have the significance or pristine water quality that merit special protection. The designation also does not apply to artificial waterbodies. Artificial waterbodies are defined in Rule 17-302.700(9)(i), Florida Administrative Code, as a waterbody created by dredging or excavation or by the filing in of its boundaries on at least two sides. The FDER has formally determined that Garrison Bight is not an Outstanding Florida Water because Garrison Bight is an artificial waterbody in accordance with the definition. Furthermore, Garrison Bight is the site of extensive boating and marina activities. The water quality of Garrison Bight is currently degraded in comparison to ambient conditions and offshore/unconfined water. In sum, the evidence established that proposed surface water management system meets or exceeds the current permit criteria. Consequently, the water flowing into Garrison Bight from the Site will be significantly less and much cleaner after the proposed surface water management system is installed than it currently is without a designed surface water management system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered approving the issuance of Surface Water Management General Permit No. 44-01785 in accordance with the Notice of Intent dated September 29, 1992 and the additional conditions noted in this Recommended Order. DONE AND ENTERED this 14th day of May, 1993, at Tallahassee, Florida. J. STEPHEN MENTON 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 14th day of May, 1993.
Findings Of Fact The Parties and the Property. The Respondent, Saddlebrook Resorts, Inc. (Saddlebrook), is a corporation organized and existing under the laws of Florida, and is wholly owned by the Dempsey family. Saddlebrook is located on approximately 480 acres in central Pasco County, east of I-75 and south of State Road 54. The Petitioner, Wiregrass Ranch, Inc. (Wiregrass) is a corporation organized and existing under the laws of Florida, and is wholly owned by the Porter family ("the Porters"). Wiregrass owns approximately 5,000 acres of property which extends from Saddlebrook west approximately one mile to State Road 581 and south for approximately four miles. The Respondent, the Southwest Florida Water Management District (SWFWMD), is a political subdivision created pursuant to Chapter 61-691, Laws of Florida, which exists and operates under the Water Resources Act, Fla. Stat., Ch. 373. SWFWMD is charged with regulating, among other things, surface water management systems in Pasco County. Saddlebrook discharges surface water onto Wiregrass at two locations on the southern and western boundaries of Saddlebrook, known as the south outfall and the west outfall. Saddlebrook's property is part of a drainage basin totalling approximately 1400 acres that contributes runoff to Wiregrass' property. Until approximately 1973, the Saddlebrook property was undeveloped and owned by the Porters. In approximately 1973, the Porters sold the Saddlebrook property to the Refram family, which began developing the property. In approximately 1979, Saddlebrook acquired the property from the Reframs. The Saddlebrook property includes residential development, a conference center, and golf course and tennis facilities. Wiregrass' property, which is largely undeveloped and used for ranching, consists of pine-palmetto flatwoods, wetland strands, isolated wetlands, and improved pastures. The Porters' Civil Action Against Saddlebrook. The Porters instituted a civil action against Saddlebrook, Porter, et al. v. Saddlebrook Resorts, Inc., Case No. CA 83-1860, in the Circuit Court of the Sixth Judicial District, Pasco County, complaining that post-development discharges from Saddlebrook exceed pre-development discharges. In the civil litigation, the Porters contended that Saddlebrook's peak flow discharges should be returned to pre-development, or 1973, levels. A primary purpose of Saddlebrook's proposed redesign is to return peak flow discharges to those levels that existed in 1973, in response to the Porters' complaints in the civil action. Saddlebrook's current surface water management system is deemed by SWFWMD to be in compliance with Rule 40D-4, and SWFWMD's regulations do not require redesign or modification of the current system. Prior to Saddlebrook's submission of its application, SWFWMD advised Saddlebrook that, because Rule 40D-4 became effective on October 1, 1984, SWFWMD considered that date to be the "pre-development" condition for purposes of evaluating Saddlebrook's discharges. Saddlebrook requested that SWFWMD evaluate its application using 1973 as the pre-development condition. SWFWMD advised Saddlebrook that it would apply 1973 as the pre-development condition if the Porters consented. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for purposes of evaluating those discharges relevant to Saddlebrook's MSSW permit application. Saddlebrook's MSSW Permit Application. On or about February 8, 1990, Saddlebrook submitted its application for MSSW permit no. 497318.00, seeking SWFWMD's conceptual approval of the redesign of Saddlebrook's surface water management system. The proposed redesign calls for modification of most of the existing drainage control structures at Saddlebrook and installation of new control structures at several locations, including the south and west outfalls. After submission of its initial application, Saddlebrook made various subsequent submittals in response to SWFWMD requests for additional information. Saddlebrook's response to SWFWMD's requests culminated in final submittals on March 7, 1991 and April 5, 1991. In its various submittals, Saddlebrook provided, among other things, detailed descriptions of all proposed modifications to its drainage system, engineering reports, and computerized flood-routing analyses of runoff from Saddlebrook under pre-development (1973) and post-modification conditions. Saddlebrook provided all information requested, and SWFWMD thereafter deemed its application complete. SWFWMD's Review of Saddlebrook's Application. In the fifteen months following Saddlwbrook's initial February, 1990, submittal, SWFWMD conducted an intensive review of the application. During the course of this review, SWFWMD staff performed numerous field inspections, made an independent determination of all input data to the computer analyses of Saddlebrook's discharges, and made six separate formal requests for additional information. SWFWMD's requests for additional information required, among other things, that Saddlebrook modify various input data and rerun its computer analyses of discharges under the pre-development and post-modification conditions. In addition, SWFWMD required Saddlebrook to perform computer modelling analyses of discharges from Wiregrass' property onto the property of downstream landowners. Because, unlike the Porters, these downstream owners had not provided consent to use 1973 as the relevant pre-development date, SWFWMD required Saddlebrook to model this downstream discharge using a "pre- development" date of 1984. SWFWMD performed its standard review procedures in connection with Saddlebrooks' application. In addition, SWFWMD also performed its own computer-modelling analyses of Saddlebrook's discharges. This modelling was based on input data independently collected by SWFWMD staff in the field and from other sources. SWFWMD staff also met with the Porters' hydrologist, Dr. Gerald Seaburn, and thoroughly reviewed concerns he expressed in connection with Saddlebrook's application. In addressing these concerns, SWFWMD performed additional work, including conferring with an independent soils expert, performing additional field inspections, and modifying the SWFWMD computer modelling analyses based on alternative input parameters suggested by Dr. Seaburn. In reviewing Saddlebrook's application, SWFWMD applied the design and performance criteria set forth in its "Basis of Review for Surface Water Management Permit Applications" ("Basis of Review"), which is incorporated by reference in F.A.C. Rule Chapter 40D-4. Based upon its review of Saddlebrook's application, SWFWMD concluded that Saddlebrook had demonstrated compliance with the design and performance criteria set forth in SWFWMD's Basis of Review and the conditions for permit issuance under F.A.C. Rule 40D-4.301. By a Staff Report dated April 29, 1991, and Notice of Proposed Agency Action dated May 3, 1991, SWFWMD recommended approval of Saddlebrook's application. Compliance With SWFWMD Permitting Criteria. The design and performance criteria for MSSW permitting set forth in SWFWMD's Basis of Review fall into four categories: (1) water quantity, in terms of peak flow discharges for projects, like Saddlebrook's, located in open drainage basins; (2) flood protection; (3) water quality; and (4) wetlands impacts. Water Quantity. Under the Basis of Review's water quantity standards, SWFWMD requires that projected peak flow discharges during a 25-year, 24-hour storm event under the proposed system be reasonably similar to peak flow discharges under the pre- development condition. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quantity standards. This evidence demonstrated that peak flow discharges during a 25-year, 24-hour storm event under the proposed system will be less than, but reasonably similar to, pre-development (1973) peak flow discharges. The evidence presented at the formal hearing also demonstrated that, under the proposed system, peak flow discharges during a 25-year, 24-hour storm event from Wiregrass' property onto downstream landowners will be less than, but reasonably similar to, 1984 peak flow discharges. The evidence presented by Saddlebrook further demonstrated that storage will be increased under the proposed redesign versus the pre- development, 1973 condition. On Saddlebrook's property, there will be approximately 35 percent more storage than existed in 1973, and the total storage for Saddlebrook and the contributing drainage basin upstream of Saddlebrook will be increased by approximately 15 percent over that existing in 1973. Flood Protection. Under the flood-protection standards of the Basis of Review, SWFWMD requires that the applicant demonstrate that under the proposed condition the lower floor of all residential and other buildings on-site, and in areas affected by the site, will be above the 100-year flood elevation. SWFWMD also requires that there be no net encroachment into the flood plain, up to that encompassed by the 100-year event, which will adversely affect conveyance, storage, water quality or adjacent lands. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's flood-protection standards. The testimony of Mr. Fuxan and Wiregrass' related exhibit, Ranch Ex. 35, purporting to show that in a 25-year, 24-hour storm Saddlebrook's proposed redesign will "flood the [Saddlebrook perimeter] roads and just sheet flow onto the Porter property" is not accurate. As part of its redesign, Saddlebrook will construct an additional berm along the southwestern and southern perimeters of its property. This berm will detain water on Saddlebrook's property during a 25-year, 24-hour storm event and prevent it from "sheet-flowing" onto the Wiregrass property. Water Quality. Under the water-quality standards of the Basis of Review, SWFWMD requires, for systems like Saddlebrook's involving wet detention and isolated wetlands, that the applicant provide sufficient storage to treat one inch of runoff from the basins contributing runoff to the site. This volume must be discharged in no less than 120 hours, with no more than one-half of the volume being discharged within the first 60 hours. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quality standards. Wetland Impacts. Under the wetland-impacts standards of the Basis of Review, SWFWMD requires that the applicant provide reasonable assurance that the proposed system will not adversely impact on-site and downstream wetlands. The evidence presented at the formal hearing demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to on-site wetlands. Saddlebrook's proposed redesign will impact only approximately .167 acres of on-site wetlands, for which Saddlebrook will fully mitigate by creating .174 acres of forested wetlands and buffer area. The evidence presented at the formal hearing also demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to off-site wetlands. Reasonable assurance that off- site wetlands will not be adversely impacted was demonstrated by, among other things, evidence establishing that: (1) discharge points will not change under the proposed condition; (2) discharge elevations will be reasonably similar under the proposed condition; (3) there will be no significant variation in the water fluctuations in the wetlands adjacent to the south and west outfalls as a result of the proposed condition; (4) the drainage basin areas will be reasonably similar under the proposed condition; and (5) the proposed redesign will satisfy SWFWMD's water quality requirements. Wiregrass' Petition. In its Petition for Formal Administrative Hearing, Wiregrass focused primarily on water quality issues and stormwater runoff rates (or peak flow discharges), alleging the following "ultimate facts" which it claimed "entitle [it] to relief": The application, as submitted, contains insufficient storage to meet water quality criteria. The application, as submitted, will result in storage volumes on the project site which will not be recovered within 72 hours [sic] as required by the DISTRICT criteria. The application, as submitted, contains calculations based on erroneous hydraulic gradients. The application, as submitted, will result in storage volumes insufficient to meet water quality criteria as required by DISTRICT criteria. Post development stormwater runoff rates are underestimated in the application, resulting in system design with insufficient retention storage capacity to meet the DISTRICT's water quantity criteria. The failure to store stormwater or irrigation runoff impacts the substantial interest of the RANCH in that it deprives it of groundwater resources necessary for the successful operation of the ranch. Further, the lack of storage of stormwater and irrigation water is a prohibited waste of the water resources. At the formal hearing, Wiregrass presented no evidence to support any of the foregoing allegations of its Petition. Objections Raised by Wiregrass At The Hearing. At the final hearing, Wiregrass' opposition to Saddlebrook's permit application focused on three different grounds: For purposes of evaluating peak flow discharges, SWFWMD does not have jurisdiction to use a pre-development date prior to October 1, 1984. Under F.A.C. Rule 40D-4.301(1)(i), which provides that an applicant must give reasonable assurance that the surface water management systems "is consistent with the requirements of other public agencies," SWFWMD must apply not only its own permitting criteria but also those of other governmental entities, including county planning ordinan Under F.A.C. Rule 40D-4.301(1)(b), which provides that a permit application must give reasonable assurances that the surface water management system "will not cause adverse water . . . quantity impacts", SWFWMD must consider whether the annual volume of runoff will increase as a result of the proposed surface water management system. None of the foregoing objections was raised in Wiregrass' Petition as a basis for denying Saddlebrook's application. (Annual volume was alluded to in the Petition only as being pertinent to the question of Wiregrass' "substantial interest" for purposes of standing.) In any event, for the reasons set forth below, each of these objections was refuted by the evidence presented at the formal hearing. The 1973 Pre-Development Date. In their civil action against Saddlebrook, the Porters took the position that Saddlebrook's surface water management system should be redesigned so that discharges approximate those levels existing in 1973, before development of the Saddlebrook property. Dr. Gerald Seaburn, a hydrologist retained by the Porters, testified in the civil action that 1973 is the appropriate pre-development date for purposes of evaluating Saddlebrook's peak flow discharges. David Fuxan, a civil engineer retained by the Porters, took the position in the civil action that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels. At the formal hearing in this proceeding, Mr. Fuxan testified that it is still his position that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for evaluating those discharges relevant to Saddlebrook's MSSW permit application. Use of a 1984 "pre-development" date would prevent Saddlebrook from making the modifications the Porters claim in the civil litigation that it must make. Saddlebrook's existing system, about which the Porters complain in the civil litigation, is in all material respects the same system that was in place on October 1, 1984. Use of this existing system as the benchmark of comparison for attenuation of peak flows, therefore, would mean that substantial modifications to the existing system could not be made without substantially increasing retention storage on Saddlebrook. Substantially increasing retention storage on Saddlebrook is not possible due to the high water table and proximity of the lower aquifer. See Finding of Fact 70, below. In addition, a primary claim of the Porters in the civil action is that duration of flow under Saddlebrook's existing system exceeds 1973 levels and has resulted in expanded wetlands on the Porter property. But duration of flow and peak flow discharges are inversely related: duration of flow can be decreased only if peak flow discharges are increased. Accordingly, the only way that Saddlebrook can reduce the duration of flow onto Wiregrass to 1973 levels, as the Porters have demanded, other than increasing retention storage on Saddlebrook, is to return peak flow discharges to 1973 levels. Other Governmental Agencies' Requirements. F.A.C. Rule 40D-4.301(1)(i) provides that a permit applicant must give reasonable assurance that the surface water management system "is consistent with the requirements of other public agencies." SWFWMD has consistently interpreted this provision to be "advisory", i.e., to apprise applicants that they must also comply with other applicable laws and that issuance of an MSSW permit by the District does not relieve them of the responsibility to obtain all necessary local and other permits. SWFWMD's long-standing and consistently-applied interpretation and practice is not to require applicants to prove compliance with the regulations of other govermental agencies in order to obtain an MSSW permit. There are two primary reasons for this interpretation and practice. First, the Southwest Florida Water Management District includes 16 counties and 96 municipalities. In addition, other state and various federal agencies have jurisdiction within its territory. It is impracticable for SWFWMD to become familiar with, and to apply, the permitting and other regulations of more than 100 other agencies. Second, SWFWMD has concluded that, under Part 4 of Secton 373 of the Flordia Statutes, it does not have authority to deny a permit application based on its interpretation of another governmental agency's regulations. In any event, the evidence demonstrates that Saddlebrook has provided reasonable assurance that the proposed redesign will be "consistent with the requirements of other public agencies" as provided in F.A.C. Rule 40D- 4.301(1)(i). Limiting Condition No. 3 of the proposed permit requires that Saddlebrook must comply with Pasco County and other local requirements: The Permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition the permittee shall obtain all necessary Federal, State, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit. In addition, Standard Condition No.3 ensures that SWFWMD approval will not supersede any separate permitting or other requirements imposed by Pasco County: The issuance of this permit does not . . . authorize any . . . infringement of federal, state or local laws or regulations. (Emphasis added.) Finally, the Pasco County ordinance upon which Wiregrass relies imposes requirements that are in substance identical to SWFWMD's with respect to MSSW permit applications. Saddlebrook's compliance with SWFWMD's regulations likewise would satisfy the substance of the requirements of the county ordinance. Annual Volume of Runoff. F.A.C. Rule 40D-4 (incorporating the Basis of Review) does not address, and SWFWMD does not regulate, the annual volume of runoff in open drainage basins. If annual volume of runoff is relevant under Rule 40D-4.301, as Wiregrass contends, that rule requires only that the applicant provide reasonable assurance that "the surface water management system" will not cause adverse quantity impacts. Saddlebrook's existing surface water management system has not caused a significant increase in the annual volume of runoff onto Wiregrass' property. The increase in the annual volume of runoff from Saddlebrook that has occurred over the pre-development 1973 condition has resulted from the urbanization of Saddlebrook's property. The increase in the annual volume of runoff from Saddlebrook over that existing prior to development (1973) is approximately 3.4 inches. This increase is only a small fraction of the natural year-to-year variation in runoff resulting from differences in rainfall alone. Rainfall can vary up to 30 inches on an annual basis, from 40 to 70 inches per year. The resulting year-to-year variations in runoff can total as much as 20 inches. The approximately 3.4 inches increase in the annual volume of runoff from Saddlebrook due to urbanization has caused no adverse impact to Wiregrass. The natural drainage system on the Wiregrass property has in the past and throughout its history received and handled increases in the annual volume of runoff of up to 20 inches due to rainfall differences. Such increases simply flow through Wiregrass' property. Of the approximately 3.4 inch increase in annual runoff due to urbanization, only approximately one-third of an inch is due to the filling in of bayheads by Saddlebrook's prior owner. This increase is insignificant and has not caused a substantial adverse impact to Wiregrass. Any reduction of storage resulting from the filling of bayheads will be more than compensated for under the proposed redesign. Storage on Saddlebrook's property will be increased by approximately 35 percent under the proposed condition over that existing in 1973, before the bayheads were filled. In open drainage basins, like Saddlebrook's, downstream flooding is a function of the rate of peak flow of discharge, not the annual volume of runoff. This is one of the reasons why, in the case of open drainage basins, SWFWMD regulates peak flow discharges and not the annual volume of runoff. Because Saddlebrook's proposed redesign will attenuate peak flow discharges to those levels that existed in the pre-devlopment 1973 condition, Saddlebrook has provided reasonable assurance that there will not be increased flooding on Wiregrass' property in the future. The evidence does not establish that Wiregrass has suffered, or will suffer, any adverse impact due to an increase in the annual volume of runoff from Saddlebrook as a result of the design, or redesign, of the system, or as a result of urbanization, or otherwise. It is not possible to design a surface water management system at Saddlebrook that would reduce the annual volume of runoff. Such a system, which involves the percolation of surface water from retention ponds into a deeper, aquifer system, requires a deep water table. At Saddlebrook, the water table is near the ground surface. As a result, it is not possible to store a significant quantity of water in retention ponds between storm events. In addition, the water levels in the deeper and the shallower aquifer systems at Saddlebrook are approximately the same and, therefore, there is insufficient hydraulic pressure to push the water through the confining layer between the two systems and into the deeper aquifer system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order granting Saddlebrook's application for surface water management permit no. 497318.00, subject to the terms and conditions in the SWFWMD Staff Report. RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3658 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. Accepted and incorporated to the extent not subordinate or unnecessary. 7.-9. Rejected as not proven and contrary to the greater weight of the evidence. First sentence, accepted. Second sentence, rejected as not proven and contrary to the greater weight of the evidence. Accepted but not necessary. 12.-13. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but not necessary. The extent of the wetland expansion is rejected as not proven and contrary to the greater weight of the evidence. The rest is accepted. However, the increased volume is due in large part to urbanization, not to the surface water management system. It also is due in part to alterations to the property done by the Porters. Accepted but subordinate and unnecessary. Accepted. However, this would occur only during a 25-year, 24-hour storm event, and there was no evidence that one has occurred or, if it has, whether Mr. Porter was there to observe it. 18.-20. Accepted but subordinate and unnecessary. Characterization "much of" is rejected as not proven and contrary to the greater weight of the evidence. Otherwise, accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. Rejected as not proven and contrary to the greater weight of the evidence. Rejected as not proven and contrary to the greater weight of the evidence that lichen lines, by themselves, are ordinarily are sufficient to set jurisdictional lines. 26.-29. Rejected as not proven and contrary to the greater weight of the evidence. Even if it were proven that the wetlands had expanded, it was not proven, and is contrary to the greater weight of the evidence, that Saddlebrook (and, especially, Saddlebrook's surface water management system) caused the expansion. First sentence, accepted but cumulative. The rest is rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. In any event, both factors are undeniably significant. 32.-34. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. 39.-41. Rejected as not proven and contrary to the greater weight of the evidence that SWFWMD does not apply it. The evidence was that SWFWMD interprets it differently than Wiregrass proposes and applies its own interpretation. Under the SWFWMD interpretation, the permit conditions requiring compliance with other legal requirements constitute the necessary "reasonable assurance." In addition, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and the Pasco County ordinance has been considered as part of this proceeding. Rejected as not proven and contrary to the greater weight of the evidence. Again, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and annual volume has been considered as part of this proceeding. That consideration has affirmed SWFWMD's position that, at least in this case, the proposed stormwater management system does not cause an increase in annual volume that would result in denial of the application. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. First sentence, accepted (although the characterization "far exceed" is imprecise) and incorporated. Second sentence, rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary that no "stipulation" was entered into. But the evidence is clear that Wiregrass, Saddlebrook and SWFWMD all agreed to the use of 1973 as the point of comparison for peak flow discharges. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Respondents' Proposed Findings of Fact. The proposed findings of fact contained in the Proposed Recommended Order of Respondents Saddlebrook Resorts, Inc., and Southwest Florida Water Management District are accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Douglas P. Manson, Esquire Foley & Lardner 101 East Kennedy Boulevard Suite 3650 Tampa, Florida 33602 Stephen R. Patton, Esquire Jeffrey A. Hall, Esquire Kirkland & Ellis East Randolph Drive Chicago, Illinois 60601 Enola T. Brown, Esquire Lawson, McWhirter, Grandoff & Reeves East Kennedy Boulevard Suite 800 Post Office Box 3350 Tampa, Florida 33601-3350 Mark F. Lapp, Esquire Edward Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
