The Issue The issue in this case is whether, and under what conditions, the Respondent, St. Johns River Water Management District (District), should grant Environmental Resource Permit (ERP) No. 40-109-81153-1 authorizing Respondents, Jay and Linda Ginn (Ginns or Applicants), to construct a 136-unit single-family residential development with associated surface water management system.
Findings Of Fact The Parties and Proposed Project Respondent, the District, is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce the cited statutes and Florida Administrative Code Rules promulgated by the District under the authority of those statutes. (Unless otherwise stated, all Florida Statutes refer to the 2003 codification, and all Florida Administrative Code Rules refer to the current codification.) Respondents, Jay and Linda Ginn, are the owners of 47 acres of land located just west of the City of St. Augustine in St. Johns County, Florida. They are seeking ERP Permit No. 40- 109-81153-1 from the District to construct a 136-acre residential community and associated surface water management facilities on the property, to be known as Ravenswood Forest. The 47-acre project site is predominantly uplands, with a large (10.98-acre) wetland (Wetland 1) located on the eastern boundary and completely separating the uplands on the project site from adjacent properties to the east. While the central portion of the site is mostly a sand pine vegetated community, and the western portion is largely a pine flatwood community, there are six other smaller wetlands scattered within the upland areas lying west of Wetland 1, each numbered separately, 2 through 7. The site is currently undeveloped except for some cleared areas that are used as dirt road trails and a borrow pit or pond excavated in the central part of the site. This clearing and excavation was accomplished in the 1980’s for a project that was never completed. The project site is bordered on the north by Ravenswood Drive. On the east lies an existing residential development probably constructed in the 1970’s; to the west of the project site is a power-line easement; and to the south is a Time Warner cable facility. The land elevations at the project site are generally higher on the west and slope off to Wetland 1 on the east. Under current conditions, water generally drains from west to east into Wetland 1. Some water from the site, as well as some water entering the site from off-site properties to the west, flows into the existing pond or borrow pit located in the central portion of the site. Under extreme rainfall conditions, the borrow pit/pond can reach a stage that allows it to overflow and discharge into Wetland 1. Some off-site water also enters Wetland 1 at its north end. Water that originates from properties to the west of the Ravenswood site is conveyed through ditches to the roadside ditch that runs along the south side of Ravenswood Drive. Water in this roadside ditch ultimately enters Wetland 1 at its north end and flows south. Once in Wetland 1, water moves north to south. Water leaves the part of Wetland 1 that is located on the Ravenswood site and continues to flow south through ditches and culverts ultimately to the San Sebastian River. The Wetland 1 system is contiguous with wetlands located on property owned by Petitioner, Marilyn McMulkin. Mrs. McMulkin lives on Hibiscus Street to the east of the project. Mrs. McMulkin is disabled and enjoys observing wildlife from her home. Mrs. McMulkin has observed woodstorks, kites, deer, cardinals, birds, otter, indigo snake, flying squirrels, gopher tortoises, and (more recently) bald eagles on her property or around the neighborhood. Mrs. McMulkin informed the District of the presence of the bald eagle in 2002, but it was not discovered until November of 2003 that there was an eagle nest on the Ginns property in Wetland 1. Petitioner, Diane Mills, owns a house and property on Hibiscus Street to the east of the Project. The proposed stormwater discharge for the Project is to a wetland system that is contiguous with a wetland system that is in close proximity to Mrs. Mills' property. Petitioners' property is not located in a flood plain identified by FEMA. Nevertheless, Petitioners' property experiences flooding. At times, the flooding has come through Mrs. McMulkin's house and exited out the front door. The flood water, which can be 18-24 inches high in some places on Mrs. McMulkin's property, comes across her backyard, goes through or around her house, enters Hibiscus Street and turns north. The flooding started in the late 1980's and comes from the north and west, from the Ginns' property. The flooding started after Mr. Clyatt Powell, a previous co-owner of the Ravenswood property, started clearing and creating fill roads on the property using dirt excavated from the property. The flooding now occurs every year and has increased in duration and frequency; the flooding gets worse after the rain stops and hours pass. The evidence, including Petitioners' Exhibit 1, indicated that there are numerous other possible reasons, besides activities on the Ginns' property in the late 1980's, for the onset and exacerbation of Petitioners' flooding problems, including: failure to properly maintain existing drainage facilities; other development in the area; and failure to improve drainage facilities as development proceeds. The parties have stipulated that Petitioners have standing to object to ERP Permit No. 40-109-81153-1. Project Description As indicated, water that originates west of the project site currently enters the project site in two ways: (1) it moves across the western project boundary; and (2) it travels north to a ditch located on the south side of Ravenswood Drive and is conveyed to Wetland 1. The offsite water that moves across the western project boundary comes from a 16-acre area identified as Basin C (called Basin 4 post-development). The offsite water that moves north to the ditch and enters Wetland 1 comes from a 106.87-acre area identified as Basin D (called Basin 5 post-development). The project’s stormwater conveyance and treatment facilities include two connected wet detention ponds with an outfall to a wetland on the eastern portion of the project site. Stormwater from most of the project site will be conveyed to a pond, or detention area (DA) DA-1, which will be located near (and partially coinciding with the location of) the existing pond or borrow pit. The water elevation in DA-1 will be controlled at a level of 26 feet. Water from DA-1 will spill over through a control structure into a pipe that will convey the spill-over to DA-2. In addition to the spill-over from DA-1, offsite water that currently enters the project site across the western boundary will be conveyed to a wetland area at the southwest corner of the project site. At that point, some of the water will be taken into DA-2 through an inlet structure. The water elevation in DA-2 will be controlled at level 21. Water from DA-2 will be released by a control structure to a spreader swale in Wetland 1. While some of the water conveyed to the wetland area at the southwest corner of the project site will enter DA-2, as described, some will discharge over an irregular weir (a low area that holds water until it stages up and flows out) and move around the southern boundary of the project site and flow east into Wetland 1. Wetland 1 is a 10.98-acre onsite portion of a larger offsite wetland area extending to the south and east (which includes the wetlands on Mrs. McMulkin's property). For purposes of an Overall Watershed Study performed by the Ginns' engineering consultant, the combined onsite and offsite wetlands was designated Node 98 (pre-development) and Node 99 (post- development). From those areas, water drains south to ditches and culverts and eventually to the San Sebastian River. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers, if needed. In addition, the District's TSR imposed permit conditions that require erosion and sediment control measures to be implemented. The District's TSR also imposed a permit condition that requires District approval of a dewatering plan within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site. Wetland Impacts Onsite Wetlands Wetland 1 is a 10.98-acre mixed-forested wetland system. Its overall condition is good. It has a variety of vegetative strata, a mature canopy, dense understory and groundcover, open water areas, and permanent water of varying levels over the course of a year. These attributes allow for species diversity. Although surrounded by development, the wetland is a good source for a variety of species to forage, breed, nest, and roost. In terms of vegetation, the wetland is not unique to northeast Florida, but in November 2003 an eagle nest was discovered in it. A second wetland area onsite (Wetland 2) is a 0.29-acre coniferous depression located near the western boundary of the site. The overall value of the functions provided by Wetland 2 is minimal or low. It has a fairly sparse pine canopy and scattered ferns provide for little refuge and nesting. Water does stand in it, but not for extended periods of time, which does not allow for breeding of most amphibians. The vegetation and inundation do not foster lower trophic animals. For that reason, although the semi-open canopy would be conducive to use by woodstorks, birds and small mammals do not forage there. A third wetland area onsite (Wetland 3) is a 0.28-acre mixed-forested wetland on the northern portion of the site. The quality of Wetland 3 is low. A 24-inch culvert drains the area into a 600-foot long drainage ditch along the south side of Ravenswood Drive leading to Wetland 1. As a result, its hydroperiod is reduced and, although it has a healthy pine and cypress canopy, it also has invasive Chinese tallow and upland species, along with some maple. The mature canopy and its proximity to Ravenswood Drive would allow for nesting, but no use of the wetland by listed species has been observed. In order to return Wetland 3 to being productive, its hydroperiod would have to be restored by eliminating the connection to the Ravenswood Drive ditch. A fourth wetland area onsite (Wetland 4) is a 0.01- acre portion of a mixed-forested wetland on the western boundary of the site that extends offsite to the west. Its value is poor because: a power line easement runs through it; it has been used as a trail road, so it is void of vegetation; and it is such a small fringe of an offsite wetland that it does not provide much habitat value. A fifth wetland area onsite (Wetland 5) is a 0.01-acre portion of the same offsite mixed-forested wetland that Wetland 4 is part of. Wetland 5 has a cleared trail road through its upland fringe. Wetland 5 has moderate value. It is vegetated except on its upland side (although its vegetation is not unique to northeast Florida), has a nice canopy, and provides fish and wildlife value (although not as much as the interior of the offsite wetland). A sixth wetland area onsite (Wetland 6) is a 0.28-acre wetland located in the western portion of the site. It is a depression with a coniferous-dominated canopy with some bays and a sparse understory of ferns and cord grass that is of moderate value overall. It does not connect with any other wetlands by standing or flowing water and is not unique. It has water in it sufficient to allow breeding, so there would be foraging in it. Although not discovered by the Ginns' consultants initially, a great blue heron has been observed utilizing the wetland. No listed species have been observed using it. Wetland 6 could be good gopher frog habitat due to its isolation near uplands and its intermittent inundation, limiting predation by fish. In addition, four gopher tortoise burrows have been identified in uplands on the project site, and gopher frogs use gopher tortoise burrows. The gopher frog is not a listed species; the gopher tortoise is listed by the State of Florida as a species of special concern but is not aquatic or wetland-dependent. Woodstorks are listed as endangered. Although no woodstorks were observed using Wetland 6, they rely on isolated wetlands drying down to concentrate fish and prey in the isolated wetlands. With its semi-open canopy, Wetland 6 could be used by woodstorks, which have a wingspan similar to great blue herons, which were seen using Wetland 6. However, Wetland would not provide a significant food source for wading birds such as woodstorks. The other surface water area onsite (Wetland 7) is the existing 0.97-acre pond or borrow pit in the southwest portion of the project site. The pond is man-made with a narrow littoral shelf dominated by torpedo grass; levels appears to fluctuate as groundwater does; and it is not unique. It connects to Wetland 1 during seasonal high water. It has some fish, but the steep slope to its littoral shelf minimizes the shelf's value for fish, tadpoles, and larvae stage for amphibians because fish can forage easily on the shelf. The Ginns propose to fill Wetlands 2, 3, 4, and 6; to not impact Wetland 5; and to fill a 0.45-acre portion of Wetland and dredge the remaining part into DA-1. Also, 0.18 acre of Wetland 1 (0.03 acre is offsite) will be temporarily disturbed during installation of the utility lines to provide service to the project. Individually and cumulatively, the wetlands that are less than 0.5-acre--Wetlands 3, 6, 2, 4, and 5--are low quality and not more than minimal value to fish and wildlife except for Wetland 5, because it is a viable part of an offsite wetland with value. While the Ginns have sought a permit to fill Wetland 4, they actually do not intend to fill it. Instead, they will simply treat the wetland as filled for the purpose of avoiding a County requirement of providing a wetland buffer and setback, which would inhibit the development of three lots. Offsite Wetlands The proposed project would not be expected to have an impact on offsite wetlands. Neither DA-1 nor DA-2, especially with the special conditions imposed by the District, will draw down offsite wetlands. The seasonal high water (SHW) table in the area of DA- 1 is estimated at elevation 26 to 29. With a SHW table of 26, DA-1 will not influence groundwater. Even with a SHW table of 29, DA-1 will not influence the groundwater beyond the project's western boundary. DA-1 will not adversely affect offsite wetlands. A MODFLOW model was run to demonstrate the influence of DA-1 on nearby wetlands assuming that DA-1 would be controlled at elevation 21, that the groundwater elevation was 29, and that no cutoff wall or liner would be present. The model results demonstrated that the influence of DA-1 on groundwater would barely extend offsite. The current proposed elevation for DA-1 is 26, which is higher than the elevation used in the model and which would result in less influence on groundwater. The seasonal high water table in the area of DA-2 is 28.5 to 29.5. A cutoff wall is proposed to be installed around the western portion of DA-2 to prevent it from drawing down the water levels in the adjacent wetlands such that the wetlands would be adversely affected. The vertical cutoff wall will be constructed of clay and will extend from the land surface down to an existing horizontal layer of relatively impermeable soil called hardpan. The cutoff wall tied into the hardpan would act as a barrier to vertical and horizontal groundwater flow, essentially severing the flow. A MODFLOW model demonstrated that DA-2 with the cutoff wall will not draw down the adjacent wetlands. The blow counts shown on the boring logs and the permeability rates of soils at the proposed location of DA-2 indicate the presence of hardpan. The hardpan is present in the area of DA-2 at approximately 10 to 15 feet below the land surface. The thickness of the hardpan layer is at least 5 feet. The Ginns measured the permeability of hardpan in various locations on the project site. The cutoff wall design is based on tying into a hardpan layer with a permeability of 0.052 feet per day. Because permeability may vary across the project site, the District recommended a permit condition that would require a professional engineer to test for the presence and permeability of the hardpan along the length of the cutoff wall. If the hardpan is not continuous, or if its permeability is higher than 0.052 feet per day, then a liner will be required to be installed instead of a cutoff wall. The liner would be installed under the western third of DA-2, west of a north-south line connecting the easterly ends of the cutoff wall. (The location of the liner is indicated in yellow on Applicants' Exhibit 5B, sheet 8, and is described in District Exhibit 10.) The liner would be 2 feet thick and constructed of clay with a permeability of no more than 1 x 10-6 centimeters per second. A liner on a portion of the bottom of pond DA-2 will horizontally sever a portion of the pond bottom from the groundwater to negate the influence of DA-2 on groundwater in the area. A clay liner would function to prevent adverse drawdown impacts to adjacent wetlands. The project, with either a cutoff wall or a clay liner, will not result in a drawdown of the groundwater table such that adjacent wetlands would be adversely affected. Reduction and Elimination of Impacts The Ginns evaluated practicable design alternatives for eliminating the temporary impact to 0.18-acre of Wetland 1. The analysis indicated that routing the proposed utility services around the project site was possible but would require a lift station that would cost approximately $80,000 to $100,000. The impact avoided is a temporary impact; it is likely that the area to be impacted can be successfully reestablished and restored; and preservation of Wetland 1 is proposed to address lag-time for reestablishment. It was determined by the Ginns and District staff that the costs of avoidance outweigh the environmental benefits of avoidance. Petitioners put on evidence to question the validity of the Wetland 1 reduction/elimination analysis. First, Mr. Mills, who has experience installing sewer/water pipes, testified to his belief that a lift station would cost only approximately $50,000 to $60,000. He also pointed out that using a lift station and forced main method would make it approximately a third less expensive per linear foot to install the pipe line itself. This is because a gravity sewer, which would be required if a lift station and forced main is not used, must be laid at precise grades, making it is more difficult and costly to lay. However, Mr. Mills acknowledged that, due to the relatively narrow width of the right-of-way along Ravenswood Drive, it would be necessary to obtain a waiver of the usual requirement to separate the sewer and water lines by at least 10 feet. He thought that a five-foot separation waiver would be possible for his proposed alternative route if the "horizontal" separation was at least 18 inches. (It is not clear what Mr. Mills meant by "horizontal.") In addition, he did not analyze how the per-linear-foot cost savings from use of the lift station and forced main sewer would compare to the additional cost of the lift station, even if it is just $50,000 to $60,000, as he thinks. However, it would appear that his proposed alternative route is approximately three times as long as the route proposed by the Ginns, so that the total cost of laying the sewer pipeline itself would be approximately equal under either proposal. Mr. Mills's testimony also suggested that the Ginns did not account for the possible disturbance to the Ravenswood eagles if an emergency repair to the water/sewer is necessary during nesting season. While this is a possibility, it is speculative. There is no reason to think such emergency repairs will be necessary, at least during the approximately 20-year life expectancy of the water/sewer line. Practicable design modifications to avoid filling Wetland 4 also were evaluated. Not filling Wetland 4 would trigger St. Johns County wetland setback requirements that would eliminate three building lots, at a cost of $4,684 per lot. Meanwhile, the impacted wetland is small and of poor quality, and the filling of Wetland 4 can be offset by proposed mitigation. As a result, the costs of avoidance outweigh the environmental benefits of avoidance. Relying on ERP-A.H. 12.2.2.1 the Ginns did not perform reduction/elimination analyses for Wetlands 2 and 6, and the District did not require them. As explained in testimony, the District interprets ERP-A.H. 12.2.1.1 to require a reduction/elimination analysis only when a project will result in adverse impacts such that it does not meet the requirements of ERP-A.H. 12.2.2 through 12.2.3.7 and 12.2.5 through 12.3.8. But ERP-A.H. 12.2.2.1 does not require compliance with those sections for regulated activities in isolated wetlands less than one-half acre in size except in circumstances not applicable to this case: if they are used by threatened or endangered species; if they are located in an area of critical state concern; if they are connected at seasonal high water level to other wetlands; and if they are "more than minimal value," singularly or cumulatively, to fish and wildlife. See ERP-A.H. 12.2.2.1(a) through (d). Under the District's interpretation of ERP-A.H. 12.2.1.1, since ERP-A.H. 12.2.2.1 does not require compliance with the very sections that determine whether a reduction/elimination analysis is necessary under ERP-A.H. 12.2.1.1, such an analysis is not required for Wetlands 2 and 6. Relying on ERP-A.H. 12.2.1.2, a., the Ginns did not perform reduction/elimination analyses for Wetlands 3 and 7, and the District did not require them, because the functions provided by Wetlands 3 and 7 are "low" and the proposed mitigation to offset the impacts to these wetlands provides greater long-term value. Petitioners' environmental expert opined that an reduction/elimination analysis should have been performed for all of the wetlands on the project site, even if isolated and less than half an acre size, because all of the wetlands on the project site have ecological value. For example, small and isolated wetlands can be have value for amphibians, including the gopher frog. But his position does not square with the ERP- A.H., as reasonably interpreted by the District. Specifically, the tests are "more than minimal value" under ERP-A.H. 12.2.2.1(d) and "low value" under ERP-A.H. 12.2.1.2, a. Secondary Impacts The impacts to the wetlands and other surface waters are not expected to result in adverse secondary impacts to the water resources, including endangered or threatened listed species or their habitats. In accordance with ERP-A.H. 12.2.7(a), the design incorporates upland preserved buffers with minimum widths of 15 feet and an average width of 25 feet around the wetlands that will not be impacted. Sediment and erosion control measures will assure that the construction will not have an adverse secondary impact on water quality. The proposed development will be served by central water and sewer provided by the City of St. Augustine, eliminating a potential for secondary impacts to water quality from residential septic tanks or septic drainfields. In order to provide additional measures to avoid secondary impacts to Wetland 1, which is the location of the bald eagles’ nest, the Applicants proposed additional protections in a Bald Eagle Management Plan (BEMP) (App. Ex. 14). Under the terms of the BEMP, all land clearing, infrastructure installation, and exterior construction on homes located within in the primary zone (a distance within 750 feet of the nest tree) is restricted to the non-nesting season (generally May 15 through September 30). In the secondary zone (area between 750 feet and 1500 feet from the nest tree), exterior construction, infrastructure installation, and land clearing may take place during the nesting season with appropriate monitoring as described in the BEMP. Proposed Mitigation The Ginns have proposed mitigation for the purpose of offsetting adverse impacts to wetland functions. They have proposed to provide mitigation for: the 0.18-acre temporary impact to Wetland 1 during installation of a water/sewer line extending from existing City of St. Augustine service to the east (at Theodore Street); the impacts to Wetlands 3, 4 and 7; and the secondary impacts to the offsite portion of Wetland 4. The Ginns propose to grade the 0.18-acre temporary impact area in Wetland 1 to pre-construction elevations, plant 72 trees, and monitor annually for 5 years to document success. Although the easement is 30 feet in width, work will be confined to 20 feet where vegetation will be cleared, the top 1 foot of soil removed and stored for replacing, the trench excavated, the utility lines installed, the trench refilled, the top foot replaced, the area replanted with native vegetation, and re- vegetation monitored. To facilitate success, the historic water regime and historic seed source will give the re-vegetation effort a jump-start. The Ginns propose to restore and enhance a 0.12-acre portion of Wetland 1 that has been degraded by a trail road. They will grade the area to match the elevations of adjacent wetland, plant 48 trees, and monitor annually for 5 years to document success. This is proposed to offset the impacts to Wetland 4. The proposed grading, replanting, and monitoring will allow the area to be enhanced causing an environmental benefit. The Ginns propose to preserve 10.58 acres of wetlands and 3.99 acres of uplands in Wetland 1, 1 acre of upland buffers adjacent to Wetlands 1 and 5, and the 0.01 acre wetland in Wetland 5. The upland buffer will be a minimum of 15 feet wide with an average of 25 feet wide for Wetland 1 and 25 feet wide for Wetland 5. A conservation easement will be conveyed to the District to preserve Wetlands 1 and 5, the upland buffers, and the wetland restoration and enhancement areas. The preservation of wetlands provides mitigation value because it provides perpetual protection by ensuring that development will not occur in those areas, as well as preventing activities that are unregulated from occurring there. This will allow the conserved lands to mature and provide more forage and habitat for the wildlife that would utilize those areas. Mitigation for Wetlands 2 and 6 was not provided because they are isolated wetlands less than 0.5-acre in size that are not used by threatened or endangered species; are not located in an area of critical state concern; are not connected at seasonal high water level to other wetlands; and are not more than minimal value, singularly or cumulatively, to fish and wildlife. As previously referenced in the explanation of why no reduction/elimination analysis was required for these wetlands, ERP-A.H. 12.2.2.1(d) does not require compliance with under ERP- A.H. 12.3 through 12.3.8 (mitigation requirements) for regulated activities in isolated wetlands less than one-half acre in size except in circumstances found not to be present in this case. See Finding 44, supra. The cost of the proposed mitigation will be approximately $15,000. Operation and Maintenance A non-profit corporation that is a homeowners association (HOA) will be responsible for the operation, maintenance, and repair of the surface water management system. An HOA is a typical operation and maintenance entity for a subdivision and is an acceptable entity under District rules. See ERP-A.H. 7.1.1(e) and 7.1.2; Fla. Admin. Code R. 40C- 42.027(3) and (4). The Articles of Incorporation for the HOA and the Declaration of Covenants, Conditions, and Restrictions contain the language required by District rules. Water Quantity To address water quantity criteria, the Applicants' engineers ran a model (AdICPR, Version 1.4) to compare the peak rate discharge from the project in the pre-project state versus the peak rate discharge after the project is put in place. The pre-project data input into the model were defined by those conditions that existed in 1985 or 1986, prior to the partial work that was conducted, but not completed, on the site in the late 1980's. The project’s 1985/1986 site condition included a feature called Depression A that attenuated some onsite as well as offsite stormwater. Because of work that was done on the project site after 1985/1986 (i.e., the excavation of the borrow pit and road-clearing activities in the late 1980's), the peak rate of discharge for the 1985/1986 project site condition was lower than the peak rate of discharge for today’s project site condition. (Flooding at Mrs. McMulkin's house began after the work was performed on the project site in the late 1980's.) Because this partial work conducted in the late 1980's increased peak rate discharge from the site, by taking the pre-project conditions back to the time prior to that work, the peak rate of discharge in the 1985-86 pre-project condition was lower than it would be under today's conditions. The model results indicated that for the 25-year, 24- hour storm event, the pre-project peak rate discharge is 61.44 cubic feet per second (cfs). The post-project peak rate discharge is 28.16 cfs. Because the completed project reduces the pre-project peak rate discharges, the project will not cause any adverse flooding impacts off the property downstream. A similar analysis of the peak rate discharges under pre-project conditions that exist today (rather than in 1986) was compared to peak rate discharges for the post-project conditions. This analysis also showed post-project peak rate discharges to be less than the peak rate discharges from the site using today’s conditions as pre-project conditions. As further support to demonstrate that the project would not cause additional flooding downstream, a second modeling analysis was conducted, which is referred to as the Ravenswood Overall Watershed Model (OWM). The Applicants' engineer identified water flowing into the system from the entire watershed basin, including the project site under both the pre- and post-project conditions. The water regime was evaluated to determine what effect the proposed project will have on the overall peak rate discharges, the overall staging, and the duration of the staging within the basin that ultimately receives the water from the overall watershed. This receiving basin area was defined as the "wetland node" (Node 98 pre- project, and Node 99 post-project). As previously stated, the area within this "wetland node" includes more than just the portion of Wetland 1 that is located on the Ravenswood site. It also includes the areas to the south and east of the on-site Wetland 1 (including properties owned by the Petitioners) and extends down to an east-west ditch located just north of Josiah Street. The project’s surface water management system will not discharge to a landlocked basin. The project is not located in a floodway or floodplain. The project is not located downstream of a point on a watercourse where the drainage is five square miles or more. The project is impounding water only for temporary storage purposes. Based on testimony from their experts, Petitioners contend that reasonable assurances have not been given as to water quantity criteria due to various alleged problems regarding the modeling performed by the Ginns' engineer. Tailwater Elevations First, they raise what they call "the tailwater problem." According to Petitioners, the Ginns' modeling was flawed because it did not use a 19.27-foot SHW elevation in Wetland 1 as the tailwater elevation. The 19.27-foot SHW was identified by the Ginns' biologist in the Wetland 1 near the location of the proposed utility line crossing the wetland and was used as the pre-development tailwater in the analysis of the project site. The post-development tailwater condition was different because constructing the project would change the discharge point, and "tailwater" refers to the water elevation at the final discharge of the stormwater management system. (SW- A.H., Section 9.7) The post-development tailwater was 21 feet, which reflects the elevation of the top of the spreader swale that will be constructed, and it rose to 21.3 feet at peak flow over that berm. For the OWM, the final discharge point of the system being modeled was the east-west ditch located just north of Josiah Street, where the tailwater elevation was approximately 18.1 feet, not the 19.27 feet SHW mark to the north in Wetland 1. The tailwater condition used in the modeling was correct. Petitioners also mention in their PRO that "the Applicants' analysis shows that, at certain times after the 25 year, 24 hour storm event, in the post development state, Wetland 1 will have higher staging than in the predevelopment state." But those stages are after peak flows have occurred and are below flood stages. This is not an expected result of post- development peak-flow attenuation. Watershed Criticism The second major criticism Petitioners level at the Applicants' modeling is that parts of the applicable watershed basins were omitted. These include basins to the west of the project site, as well as basins to the north of the site, which Petitioners lumped into the so-called "tailwater problem." Petitioners sought to show that the basins identified by the Ginns as draining onto the project site from the west were undersized, thus underestimating the amount of offsite water flowing onto the project site. With respect to Basin C, Petitioners' witness testified that the basin should be 60 acres instead of 30 acres in size, and that consequently more water would flow into pond DA-2 and thus reduce the residence time of the permanent pool volume. In fact, Basin C is 16 acres in size, not 30 acres. The water from Basin C moves onto the project site over the western project boundary. A portion of the water from Basin C will be directed to pond DA-2 through an inlet structure, and the rest will move over an irregular weir and around the project site. With respect to Basin D, Petitioners' witness testified that the basin should encompass an additional 20 acres to the west and north. West of Basin D, there are ditches routing water flow away from the watershed, so it is unclear how water from an additional 20 acres would enter the watershed. The western boundary of the OWM is consistent with the western boundaries delineated in two studies performed for St. Johns County. Petitioners' witness testified that all of the water from the western offsite basins currently travels across the project site's western boundary, and that in post-development all of that water will enter pond DA-2 through the inlet structure. In fact, currently only the water from Basin C flows across the project site's western boundary. Post-development, only a portion of water from Basin C will enter pond DA-2. Currently and post-development, the water in Basin D travels north to a ditch south of Ravenswood Drive and discharges into Wetland 1. Petitioners also sought to show that a 50-acre area north of the project site should have been included in the OWM. Petitioners' witness testified that there is a "strong possibility" that the northern area drains into the project site by means of overtopping Ravenswood Drive. The witness' estimate of 50 acres was based on review of topographical maps; the witness has not seen water flowing over Ravenswood Drive. The Ginns' engineer testified that the area north of Ravenswood Drive does not enter the project site, based on his review of two reports prepared by different engineering firms for St. Johns County, conversations with one of those engineering firms, conversations with the St. Johns County engineer, reviews of aerials and contour maps, and site observations. Based on site observations, the area north of the project site drains north and then east. One report prepared for St. Johns County did not include the northern area in the watershed, and the other report included an area to the north consisting of 12 acres. The Ginns' engineer added the 12-acre area to the OWM and assumed the existence of an unobstructed culvert through which this additional water could enter Wetland 1, but the model results showed no effect of the project on stages or duration in the wetland. Even if a 50-acre area were included in the OWM, the result would be an increase in both pre-development and post- development peak rates of discharge. So long as the post- development peak rate of discharge is lower than the pre- development peak rate of discharge, then the conveyance system downstream will experience a rate of water flow that is the same or lower than before the project, and the project will not cause adverse flooding impacts offsite. Petitioners' witness did not have any documents to support his version of the delineations of Basins C and D and the area north of Ravenswood Drive. Time of Concentration Time of concentration (TC) is the time that it takes a drop of water to travel from the hydraulically most distant point in a watershed. Petitioners sought to show that the TC used for Basin C was incorrect. Part of Petitioners' rationale is related to their criticism of the watersheds used in the Ginns' modeling. Petitioners' witness testified that the TC was too low because the distance traveled in Basin C should be longer because Basin C should be larger. The appropriateness of the Basin C delineation already has been addressed. See Finding 71, supra. Petitioners' witness also testified that the TC used for the post-development analysis was too high because water will travel faster after development. However, the project will not develop Basins C and D, and thus using the same TC in pre- development and post-development is appropriate. The project will develop Basins A and B (called Basins 1, 2, and 3 post- development), and the post-development TC for those basins were, in fact, lower than those used in the pre-development analysis. Groundwater Infiltration in DA-2 One witness for Petitioners opined that groundwater would move up through the bottom of DA-2 as a result of upwelling (also referred to as infiltration or seepage), such that 1,941 gallons per day (gpd) would enter DA-2. That witness agreed that if a liner were installed in a portion of DA-2, the liner would reduce upwelling in a portion of the pond. Another witness for Petitioners opined that 200 gpd of groundwater would enter the eastern part and 20,000 gpd would enter the western part of DA-2. Although that witness stated that upwelling of 200 gpd is not a significant input and that upwelling of 20,000 gpd is a significant input, he had not performed calculations to determine the significance. Even if more than 20,000 gpd of groundwater entered DA-2, DA-2 will provide sufficient permanent pool residence time without any change to the currently designed permanent pool size or the orifice size. Although part of one system, even if DA-2 is considered separate from DA-1, DA-2 is designed to provide an additional permanent pool volume of 6.57 acre-feet (in addition to the 20.5 acre/feet provided by DA-1). This 6.57 acre-feet provided by DA-2, is more than the 4.889 acre-feet of permanent pool volume that would be necessary to achieve a 21-day residence time for the 24+ acres that discharge directly into DA-2, as well as background seepage into DA-2 at a rate of 0.0403 cfs, which is more upwelling than estimated by Petitioners' two witnesses. There is adequate permanent pool volume in DA-2 to accommodate the entire flow from Basin C and for water entering through the pond bottom and pond sides and provide at least 21 days of residence time. Water Quality Criteria Presumptive Water Quality The stormwater system proposed by the Ginns is designed in accordance with Florida Administrative Code Rules 40C-42.024, 40C-42.025, and 40C-42.026(4). Wet detention ponds must be designed for a permanent pool residence time of 14 days with a littoral zone, or for a residence time of 21 days without a littoral zone, which is the case for this project. See Fla. Admin. Code R. 40C-42.026(4)(c) and (d). DA-1 and DA-2 contain sufficient permanent pool volume to provide a residence time of 31.5 days, which is the amount of time required for projects that discharge to Class II Outstanding Florida Waters, even though the receiving waterbody for this project is classified as Class III Waters. See Fla. Admin. Code R. 40C-42.026(4)(k)1. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers if needed. In addition, the District proposed permit conditions that require erosion and sediment control measures to be implemented. (Dist. Ex. 1, pp. 8-9, #4; Dist. Ex. 2, p. 1, ##3, 4, and 5, and p. 6, #10). ERP/MSSW/Stormwater Special Conditions incorporated into the proposed permit require that all wetland areas or water bodies outside the specific limits of construction must be protected from erosion, siltation, scouring or excess turbidity, and dewatering. (Dist. Ex. 2). The District also proposed a permit condition that requires District approval of a dewatering plan for construction, including DA-1 and DA-2, within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site. As previously described, Petitioners' engineering witness sought to show that DA-2 will not provide the required permanent pool residence time because Basin C should be 60 acres in size. Petitioners' environmental witness also expressed concern about the capacity of the ponds to provide the water quality treatment required to meet the presumptive water quality criteria in the rules, but those concerns were based on information he obtained from Petitioners' engineering witness. Those issues already have been addressed. See Findings 77-78, supra. Groundwater Contamination Besides those issues, Petitioners raised the issue that groundwater contamination from a former landfill nearby and from some onsite sludge and trash disposal could be drawn into the proposed stormwater management system and cause water quality violations in the receiving waters. If groundwater is contaminated, the surface water management system could allow groundwater to become surface water in proposed DA-1. St. Johns County operated a landfill from the mid-1950s to 1977 in an area northwest of the project site. The landfill accepted household and industrial waste, which was buried in groundwater, which in turn could greatly enhance the creation of leachate and impacted water. Groundwater flows from west to east in the vicinity of the landfill and the project site but there was conflicting evidence as to a minor portion of the property. The Ginns' witness testified that if the landfill extended far enough south, a small part of the project site could be downgradient from the landfill. But there was no evidence that the landfill extended that far south. Petitioners' witness testified that the groundwater flow varies on the south side of the landfill so that groundwater might flow southeast toward the site. Even if Petitioners' witness is correct, the surface water management system was designed, as Petitioners' other witness agreed, so that DA-1 would have minimal influence on groundwater near the pond. In 1989, sewage sludge and garbage were placed in a pit in the central part of the project site, north of the existing pond, which also is the area for proposed DA-1; and at various times refuse--including a couple of batteries, a few sealed buckets, and concrete--has been placed on the surface of the site. In 1989, to determine the amount of sewage and garbage on the project site, the St. Johns County Health Department chose several locations evidencing recent excavation south of Ravenswood Drive, had the areas re-excavated, and found one bag of garbage and debris such as tree stumps and palmettos. In 2001, an empty 55-gallon drum was on the site; there was no evidence what it once contained or what it contained when deposited onsite, if anything. In addition, trespassers dumped solid waste on the property from time to time. Petitioners' witness searched the site with a magnetometer and found nothing significant. On the same day, another of Petitioners’ witnesses sampled with an auger but the auger did not bore for core or any other type sample; it merely measured groundwater level. In 1985, 1999, and 2000, groundwater offsite of the project near the landfill was sampled at various times and places by various consultants to determine whether groundwater was being contaminated by the landfill. The groundwater sampling did not detect any violations of water quality standards. Consultants for the Ginns twice sampled groundwater beneath the project site and also modeled contaminant migration. The first time, in 2001, they used three wells to sample the site in the northwest for potential impacts to the property from the landfill. The second time, they sampled the site through cluster wells in the northwest, middle, and south. (Each cluster well samples in a shallow and in a deeper location.) The well locations were closest to the offsite landfill and within an area where refuse may have been buried in the north- central part of the site. Due to natural processes since 1989, no sewage sludge deposited onsite then would be expected to remain on the surface or be found in the groundwater. The evidence was that the sewage sludge and garbage were excavated. Although samples taken near the center of the property contained substances that are water quality parameters, they were not found in sufficient concentration to be water quality violations. There is an iron stain in the sand north of the existing pond in the area where pond DA-1 is to be located. Based on dissolved oxygen levels in the groundwater, Petitioners' witness suggested that the stain is due to buried sewage, but the oxygen levels are not in violation of water quality standards and, while toward the low end of not being a violation, the levels could be due to natural causes. No evidence was presented establishing that the presence of the iron stain will lead to a violation of water quality standards. Petitioners' witness, Mr. Boyes, testified that iron was a health concern. But iron itself is a secondary drinking water standard, which is not a health-based standard but pertains to odor and appearance of drinking water. See § 403.852(12) and (13), Fla. Stat. Petitioners argued that the Phase I study was defective because historical activity on the project site was not adequately addressed. But the Phase I study was only part of the evidence considered during this de novo hearing. Following up on the Phase I study, the 2001 sampling analyzed for 68 volatile organics and 72 semi-volatile organics, which would have picked up solvents, some pesticides, petroleum hydrocarbons, and polynuclear aromatic hydrocarbons--the full range of semi-volatile and volatile organics. The sampling in August 2003 occurred because some of the semi-volatile parameters sampled earlier needed to be more precisely measured, and it was a much broader analysis that included 63 semi-volatiles, 73 volatile organic compounds, 23 polynuclear aromatic hydrocarbons, 25 organic phosphate pesticides, 13 chlorinated herbicides, 13 metals, and ammonia and phosphorus. The parameters for which sampling and analyses were done included parameters that were representative of contaminants in landfills that would have now spread to the project site. They also would have detected any contamination due to historical activity on the project site. Yet groundwater testing demonstrated that existing groundwater at the project site meets state water quality standards. Based on the lack of contaminants found in these samples taken from groundwater at the project site 50 years after the landfill began operation, the logical conclusion is that either groundwater does not flow from the landfill toward the project site or that the groundwater moving away from the landfill is not contaminated. Groundwater that may enter the stormwater ponds will not contain contaminants that will exceed surface water quality standards or groundwater quality standards. Taken together, the evidence was adequate to give reasonable assurances that groundwater entering the stormwater ponds will not contain contaminants that exceed surface water quality standards or groundwater quality standards and that water quality violations would not occur from contaminated water groundwater drawn into the proposed stormwater management system, whether from the old landfill or from onsite waste disposal. The greater weight of the evidence was that there are no violations of water quality standards in groundwater beneath the project site and that nothing has happened on the site that would cause violations to occur in the future. Contrary to Petitioners' suggestion, a permit condition requiring continued monitoring for onsite contamination is not warranted. J. Fish and Wildlife Except for the bald eagle nest, all issues regarding fish and wildlife, listed species, and their habitat as they relate to ERP-A.H. 12.2.2 through 12.2.2.4 already have been addressed. When the Ginns were made aware in November 2003 that there was an eagle nest in Wetland 1, they retained the services of Tony Steffer, an eagle expert with over 25 years of experience working specifically with eagles and eagle management issues, including extensive hands-on experience with eagles and the conduct of field studies, aerial surveys, and behavioral observations as well as numerous research projects on the bald eagle. Mr. Steffer visited the Ravenswood site on numerous occasions since the discovery of the nest, made observations, and was integral in the drafting of the Ravenswood BEMP. It is Mr. Steffer’s opinion that the proposed project, with the implementation of the BEMP, will not adversely affect the eagles. This opinion was based on Mr. Steffer's extensive knowledge and experience with eagle behavior and human interactions. In addition, Mr. Steffer considered the physical characteristics of the Ravenswood site and the nest tree, the dense vegetation in Wetland 1 surrounding the nest site, and the existing surrounding land uses, including the existing residential community that lies a distance of about 310 feet from the nest site, the existing roadways and associated traffic, and the school (with attendant playground noise) that is to north of the site. In Mr. Steffer's opinion, the eagles are deriving their security from the buffering effects provided by the surrounding wetland. He observed that the nesting and incubating eagles were not disturbed when he set up his scope at about 300-320 feet from the tree. The BEMP requires that Wetland 1, and the upland islands located within it, be preserved and limits the work associated with the water/sewer line to the non-nesting season. With the BEMP implemented, Mr. Steffer expressed confidence that the Ravenswood eagles would be able to tolerate the proposed activities allowed under the BEMP. The Ravenswood project plans and the BEMP were reviewed by the U.S. Fish and Wildlife Service (USFWS). The USFWS analyzed information in their files relating to projects which proposed activities within the primary zone of an eagle nest and reported abandoned nests. None of the reported abandoned nests could be attributed to human activities in and around the nest tree. Based on the project plans, the terms of the BEMP, and this analysis, the USFWS concluded that the Ravenswood project "is not likely to adversely affect" the bald eagles at the Ravenswood site. According to the coordination procedures agreed to and employed by the USFWS and the Florida Fish and Wildlife Conservation Commission (FFWCC), the USFWS takes the lead in reviewing bald eagle issues associated with development projects. In accordance with these procedures, for the Ravenswood project, the USFWS coordinated their review and their draft comments with the FFWCC. The FFWCC concurred with the USFWS’s position that the project, with the implementation of the BEMP, will not adversely affect the Ravenswood eagles or their nest. This position by both agencies is consistent with the expert testimony of Mr. Don Palmer, which was based on his 29 years of experience with the USFWS in bald eagle and human interactions. Petitioners and their witnesses raised several valid concerns regarding the continued viability of the Ravenswood eagle nest during and after implementation of the proposed project. One concern expressed was that parts of the Habitat Management Guidelines for the Bald Eagle in the Southeast Region (Eagle Management Guidelines) seem inconsistent with the proposed project. For example, the Eagle Management Guidelines state: "The emphasis [of the guidelines] is to avoid or minimize detrimental human-related impacts on bald eagles, particularly during the nesting season." They also state that the primary zone, which in this case is the area within a 750 foot radius of the nest tree, is "the most critical area and must be maintained to promote acceptable conditions for eagles." They recommend no residential development within the primary zone "at any time." (Emphasis in original.) They also recommend no major activities such as land clearing and construction in the secondary zone during the nesting season because "[e]ven intermittent use or activities [of that kind] of short duration during nesting are likely to constitute disturbance." But the eagle experts explained that the Eagle Management Guidelines have not been updated since 1987, and it has been learned since then that eagles can tolerate more disturbance than was thought at that time. Another concern was that the Ravenswood eagles may have chosen the nest site in Wetland 1 not only for its insulation from existing development to the north and east but also for the relatively sparse development to the west. Along those lines, it was not clear from the evidence that the eagles are used to flying over developed land to forage on the San Sebastian River and its estuaries to the east, as the eagle experts seemed to believe. Mr. Mills testified that eagles have been seen foraging around stocked fish ponds to the west, which also could be the source of catfish bones found beneath the Ravenswood nest. But it is believed that the confident testimony of the eagle experts must be accepted and credited notwithstanding Petitioners' unspecific concerns along these lines. Finally, Petitioners expressed concern about the effectiveness of the monitoring during the nesting required under the BEMP. Some of Petitioners' witnesses related less-than-perfect experiences with eagle monitoring, including malfeasance (monitors sleeping instead of monitoring), unresponsive developers (ignoring monitors' requests to stop work because of signs of eagle disturbance, or delaying work stoppage), and indications that some eagle monitors may lack independence from the hiring developer (giving rise, in a worst case, to the question whether an illegal conspiracy exists between them to ignore signs of disturbance when no independent observer is around). Notwithstanding these concerns, Petitioners' witnesses conceded that eagle monitoring can be and is sometimes effective. If Mr. Steffer is retained as the eagle monitor for this project, or to recruit and train eagle monitors to work under his supervision, there is no reason to think that eagle monitoring in this case will not be conducted in good faith and effectively. Even if the Ginns do not retain Mr. Steffer for those purposes, the evidence did not suggest a valid reason to assume that the Ginns' proposed eagle monitoring will not be conducted in good faith and effectively. K. Other 40C-4.301 Criteria – 40C-4.301(1)(g)-(k) 40C-4.301.301(1)(g) - No minimum surface or groundwater levels or surface water flows have been established pursuant to Florida Administrative Code Rules Chapter 40C-8 in the area of the project. 40C-4.301.301(1)(h) - There are no works of the District in the area of the project. 40C-4.301.301(1)(i) - The proposed wet detention system is typical and is based on accepted engineering practices. Wet detention systems are one of the most easily maintained stormwater management systems and require very little maintenance, just periodically checking the outfall structure for clogging. 40C-4.301.301(1)(j) - The Ginns own the property where the project is located free from mortgages and liens. As previously indicated, they will establish an operation and maintenance entity. The cost of mitigation is less than $25,000 so that financial responsibility for mitigation was not required to be established. (Costs associated with the proposed BEMP are not included as part of the Ginns' mitigation proposal.) 40C-4.301.301(1)(k) - The project is not located in a basin subject to special criteria. Public Interest Test in 40C-4.302 The seven-factor public interest test is a balancing test. The test applies to the parts of the project that are in, on, or over wetlands, and those parts must not be contrary to the public interest unless they are located in, on, or over an Outstanding Florida Water (OFW) or significantly degrade an OFW, in which case the project must be clearly in the public interest. No part of the project is located within an OFW. Balancing the public interest test factors, the project will not be contrary to the public interest. 40C-4.302(1)(a)1. - The project will not adversely affect the public health, safety, or welfare or the property of others because the surface water management system is designed in accordance with District criteria, the post-development peak rate of discharge is less than the pre-development peak rate of discharge, and the project will not cause flooding to offsite properties. 40C-4.302(1)(a)2. - Mitigation will offset any adverse impacts of the project to the conservation of fish and wildlife or their habitats, and the BEMP is designed to prevent adverse effects on the Ravenswood eagles. Although active gopher tortoise burrows were observed on the site, the impacts to these burrows are addressed by the FFWCC’s incidental take permit. The mitigation that is required as part of that permit will adequately offset the impacts to this species. 40C-4.302(1)(a)3. - The project will not adversely affect navigation or cause harmful shoaling. The project will not adversely affect the flow of water or cause harmful erosion. The project's design includes erosion and sediment control measures. The project's design minimizes flow velocities by including flat slopes for pipes. The stormwater will be discharged through an upsized pipe, which will reduce the velocity of the water. The stormwater will discharge into a spreader swale (also called a velocity attenuation pond), which will further reduce the velocity and will prevent erosion in Wetland 1. The other findings of fact relevant to this criterion are in the section entitled "Water Quantity." See Findings 61-67, supra. 40C-4.302(1)(a)4. – Development of the project will not adversely affect the legal recreational use of the project site. (Illegal use by trespassers should not be considered under this criterion.) There also will not be any adverse impact on recreational use in the vicinity of the project site. Wetlands 1 and 5 may provide benefit to marine productivity by supplying detritus to the marine habitat, and these wetlands will remain. 40C-4.302(1)(a)5. - The project will be of a permanent nature except for the temporary impacts to Wetland 1. Mitigation will offset the temporary adverse impacts. 40C-4.302(1)(a)6. - The District found no archeological or historical resources on the site, and the District received information from the Division of Historical Resources indicating there would be no adverse impacts from this project to significant historical or archeological resources. 40C-4.302(1)(a)7. - Considering the mitigation proposal, and the proposed BEMP, there will be no adverse effects on the current condition and relative value of functions being performed by areas affected by the proposed project. The proposed project is no worse than neutral measured against any one of these criteria, individually. For that reason, it must be determined that, on balance, consideration these factors indicates that the project is not contrary to the public interest. Other 40C-4.302 Criteria The proposed mitigation is located within the same drainage basin as the project and offsets the adverse impacts so the project would not cause an unacceptable cumulative impact. The project is not located in or near Class II waters. The project does not contain seawalls and is not located in an estuary or lagoon. The District reviewed a dredge and fill violation that occurred on the project site and was handled by the Department of Environmental Regulation (DER) in 1989. The Ginns owned the property with others in 1989. Although they did not conduct the activity that caused the violation, they took responsibility for resolving the matter in a timely manner through entry of a Consent Order. The evidence was that they complied with the terms of the Consent Order. Applicants' Exhibit 30K was a letter from DER dated February 13, 1991, verifying compliance based on a site inspection. Inexplicably, the file reference number did not match the number on the Consent Order. But Mr. Ginn testified that he has heard nothing since concerning the matter either from DER, or its successor agency (the Department of Environmental Protection), or from the District. The evidence was that the Ginns have not violated any rules described in Florida Administrative Code Rule 40C- 4.302(2). There also was no evidence of any other DER or DEP violations after 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to Jay and Linda Ginn ERP number 40-109-81153-1, subject to the conditions set forth in District Exhibits 1, 2, and 10. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2004.
The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
The Issue Whether Petitioner has provided reasonable assurance that the proposed project is not contrary to the public interest as set forth in Section 403.918(2)(a), Florida Statutes and Rule 17-312.300 et. seq., Florida Administrative Code. Whether Petitioner has reduced the environmental impacts of the project in conformance with Section 403.918, Florida Statutes and Chapter 17-312.200, Florida Administrative Code. Whether the Respondent considered the cumulative impacts of the project pursuant to Section 403.919, Florida Statutes.
Findings Of Fact The Department of Environmental Regulation is the administrative agency of the State of Florida with the authority to administer the provisions of Chapter 403, Florida Statutes and the rules pertaining thereto with regard to matters involving water quality and the dredging and filling of wetlands, as defined therein. The Intervenor, Manasota-88, is a public interest environmental protection and conservation organization incorporated under the laws of the State of Florida as a not-for-profit corporation. Manasota-88 is a citizen of the State of Florida for purposes of Section 403.412(5), Florida Statutes and thereby has standing as a party in these proceedings. Petitioner, VQH, is the permit applicant and is a wholly owned subsidiary of Republic Bank of Clearwater, Florida who acquired the tract in foreclosure proceedings. Respondent, DER, is the affected state permitting agency. On November 18, 1989, VQH applied for a permit to dredge and fill wetlands on a site in southern Pasco County for purposes of commercial development. The site is comprised of both uplands and wetlands and is located on the east side of U.S. Highway 19 in Holiday, approximately one mile north of the Pasco County border with Pinellas County. After the Department denied the initial application VQH modified the application to reduce the to be destroyed wetlands from 14 acres to 11 acres and on November 17, 1992 the Department executed an Intent to Issue the subject permit to VQH. On December 4, 1992 Manasota-88 timely filed its petition to intervene in opposition to the grant of the permit and these proceedings followed. In addition to the above the parties stipulated the following are not issues in these proceedings. Water quality standards; Outstanding Florida Waters; Threatened or endangered species; Navigation, flow of water, erosion or shoaling, and Significant historical and archaeological resources. As stated in the notice of Intent to Issue (Exhibit 12) The project site consists of 94 ac. of forested uplands and wetlands. The wetlands on site are located along a drainage divide; they drain to both the Anclote River on the east and the Gulf of Mexico on the west through a series of ditches, roadway culverts, canals, and natural wetlands. The 52.52 ac. of wetlands on site are mature, red maple dominated swamps typical of the Anclote River flood plain. This site previously included cypress as one of the dominant canopy species, as noted by the number of remaining stumps, but appears to have been logged within the last 40 years. The canopy is currently dominated by red maple; also present are sweetbay, water oak, swamp laurel oak, water tupelo and cabbage palms. Due to the substantial conflict in the evidence in this regard the evidence was insufficient to establish the erstwhile dominance of cypress in this area. The development proposed is in the southwest corner of the 94-acre tract just east of U.S. 19. Near the center of the proposed development a bell- shaped upland area extends north from the southern boundary of the property. Petitioner proposed to fill to the east and west of the bell-shaped uplands some 8.9 acres. The other 2.1 acres included in this requested permit are for a road along the southern edge of the property which will be an extension of Society Drive and provide a needed east-west corridor in this part of Pasco County. The principal concern of those opposed to the granting of this permit is the filling of the wetlands between the bell-shaped area westward to U.S. 19. This area consists of hummocks originating from fallen trees or logs on which the hardwood trees are located. Between these hummocks are deep pockets which contain water for extended periods. As stated by one witness whose testimony was generally corroborated by other witnesses. The VQH wetland represents a complex ecosystem. Due to the relief, complex flow patterns, muck depths and overall age of the system there is a high diversity of habitat for aquatic fauna and wetland dependent animals. The deepest and most complex section of the system on the site is the area proposed for permanent destruction. The diversity of aquatic fauna of the area to be filled is a function of the permanency of the pools dotting the landscape. The longer the site is wet through an annual cycle the more likely aquatic fauna with long life cycles will flourish. As an example, a number of aquatic insects require 5 or more months to hatch out, mature and emerge as adults to complete the life cycle. The longer water remains on the site the greater the number of species adaptable to the conditions will flourish. The importance of this is to develop high diversity and a well balanced population of not only the invertebrates but also the fishes and other animals dependent on these invertebrate life forms for food. (Exhibit 17, p.6) The project application is one of the most controversial ever received by the DER Southwest District Office, not only because of the proposed destruction of a valuable wetland area but also because of the high visibility of this project as one of the few undeveloped areas along the U.S. 19 corridor. A genuine concern expressed by several opponents of this application is that if this permit is granted, numerous other property owners of wetland properties along other major highways will also be requesting permits to fill and develop their properties. This is a valid concern; however, if the proposed mitigation is found to be adequate and replaces three acres of wetlands to every one destroyed, the state will gain wetlands and not suffer a permanent loss of wetlands. Other applicants could also be required to provide adequate mitigation to compensate for the proposed loss of their wetlands. Proposed findings submitted by DER and Manasota-88 extoll the virtues and benefits accruing to the state from the wetland area proposed for filling. It is accepted as fact that the proposed destruction is of a high quality hardwood wetlands and, absent adequate mitigation, is contrary to the public interest. Although there is testimony from Petitioner's witness that the standing water and long hydroperiods in this hardwood wetlands decreased the undergrowth that would otherwise be expected, this evidence does not materially detract from the ecological value of these wetlands. The testimony of Petitioner's witnesses that reducing the foot print of the proposed development from 13+ acres to 8.9 acres constitutes the minimum area for the proposed shopping center to be economically viable was not rebutted, although several DER employees opined that the project had not been adequately minimized. This leaves the principal issue to be decided is whether the proposed mitigation, if carried out as required by the draft permit approval, has a substantial probability of success. Intervenor's witnesses, except for Ann Redmond, DER's mitigation coordinator, are all employed in the DER Southwest District Office and all oppose granting the permit here involved primarily because of the historical lack of success of projects to develop fresh water hardwood wetlands. The proposed permit to be granted also involves the removal of an abandoned waste water treatment plant owned by Pasco County which is a potential source of pollution, modification of existing ditches which serve to channel water coming onto the property, placing culverts under the FPC road and right- of-way berm, and placing some 95 acres in a conservation easement. As provided in the notice of Intent to Issue (Exhibit 12), the mitigation for the loss of 11 acres of mature forested wetland shall include the following implementation plan: create and restore 18.6 ac. forested wetland from existing uplands; remove an abandoned wastewater treatment plant and create 8.8 ac. of forested wetlands; convert an existing 2 ac. ditch contiguous to the wastewater treatment plant to a forested wetland system; convert 2.95 ac. of existing ditch within a Florida Power Corp. (FPC) easement to an herbacious wetland system; restore 0.75 ac. of disturbed herbacious wetlands within the FPC easement by regrading and planting with shrubby species; create 1.49 ac. shrubby wetlands from uplands within the FPC easement. install two culverts within the FPC easement roadway; restore 1.55 ac. of upland by planting with mesic and traditional hardwood species; and place all created, restored and converted wetlands (34.60 ac.) and the remaining existing wetlands and uplands on site, 60.78 ac. including 15.42 ac. within the FPC easement, in a perpetual conservation easement. The impact area has a tree density of approximately 1000 trees per acre. Red maple was found at a density of approximately 157 per acre and black haw was found at approximately 230 shrubs per acre. To recreate this density Petitioner proposes planting one gallon size trees on 6 foot centers over 50 percent of the site. However, it is proposed to create a more natural effect by clumping some trees together in some areas and space them further apart in other areas. These one gallon trees will be 30 percent pond cypress, 30 percent pop ash, 30 percent black gum and a 10 percent a mix of swamp bay, red maple and laurel oak. More of the mature trees will be removed from the impact site by spading (remove tree and root system with a machine designed to do this) and transplanting to the mitigation areas. The conditions included in the DRAFT permit with the notice of Intent to Issue contain detailed clearing and planting requirements which, in some respects, differ from the Petitioner's testimony presented at this hearing. As an example, under paragraph 7 the following is required: The wetland creation restoration, conversion, upland restoration, and upland and wetland preservation, shall be conducted prior to or concurrent with the wetland impacts, and shall be completed to the point of planting of tree species no later than one year after the commencement of the wetland impacts. Under paragraph 9 the following requirement appears: A minimum of one foot of fresh organic soils or muck, stock piled for not longer than 7 days, obtained from the wetland impact site, shall be uniformly spread over the entirety of the wetland creation and conversion areas prior to the final grading. Within thirty days of the completion of grading, the wetland creation and conversion areas shall be surveyed. A topographical map, showing a minimum of one foot contour intervals based on a 50 foot grid, certified by a registered land surveyor or professional engineer, shall be submitted to the Bureau of Wetland Resource Management in Tallahassee and to the Southwest District Office in Tampa within 60 days of the completion of the final grading. In this connection it is essential that the tree spading be accomplished during the trees' dormant period from November to March. Petitioner was anxious to have an expedited hearing so the tree spading could be completed by early march. It is presumed that all of the transplanting and spading is intended to be done between November 1993 and March 1994 if this permit is granted. Petitioner's witnesses indicated that if the transplanting (by spading) is not done in the plant's dormant period their survival rate will be low and nursery grown plants would be used in lieu of spading. The draft period requires 7 gallon trees to be used to substitute for trees not spaded. Petitioner proposes, and the DRAFT permit requires, the Petitioner to grade the existing uplands intended for conversion to wetlands to provide gradients low enough to qualify as wetlands and be inundated at various times of the year. Petitioner proposes to establish a wetland area where the water will move across the property in a sheet flow eastward towards the Anclote River basin. The spread of organic material over the planting sites will improve the probability of success of the mitigation project by reason of the seeds in the soil plus the benefit of the muck to the propagation and growth of the planted trees and scrubs. The water level in the newly created wetlands will be monitored by gauges established at the easterly part of the property and the hydroperiod for the area established and maintained. Further, in the first two years of the planting, Petitioner will provide for temporary irrigation of the newly planted area if necessary. Also Petitioner will maintain 85% survival for the trees planted in the first two years by planting additional trees as needed. Petitioner also proposed and the DRAFT permit requires the removal of some of the hummocks from the impact area to the newly created wetlands.. In 1990 the Florida Legislature instructed DER to assess the use and effectiveness of mitigation in Wetland Resource Regulation permitting. The study was intended to evaluate wetland mitigation projects required by DER permits in terms of compliance with both: 1) the permit conditions, and 2) whether the created wetlands were biologically functional, i.e., animal species diversity and density, plant reproduction, water quality, hydroperiod, etc. That study resulted in a Report on the Effectiveness of Permitted Mitigation dated March 5, 1991. (Attachment B to Exhibit 16) This study found a high rate of noncompliance with mitigation requirements in permits issued. The ecological success rate of mitigation design for freshwater permits was only 12 percent. However, it was predicated that with remedial action this rate could rise to 41%. The study made recommendations for improvements in DER policy and rules involving mitigation projects which included the consideration of mitigation options in the following sequence: enhancement of degraded wetlands, or restoration of historic wetlands; preservation of other wetlands in conjunction with other forms of mitigation; and wetland creation. This committee further recommended that Creation should only be accepted if review of the creation proposals indicates that it includes features to ensure that it will be successful. In all cases, if the proposed mitigation does not provide reasonable assurance that the wetland losses can be offset, the project should be denied. (Exhibit B of Exhibit 16) Without changing rule provisions DER began to orient its view of the minimization process that is required by Rule 17-312.060(10) by stressing that step in the process. They also re-assessed the use of wetland creation from uplands as a common mitigation option, describing it as the least preferable mitigation option, especially for freshwater wetlands. Additional studies conducted on behalf of the South Florida Water Management District and the St. Johns River Water Management District found lack of compliance with mitigation requirements, and lower success rates for fresh water mitigation than salt water mitigation. The March 5, 1991 Report found the following four factors to be critical in assuring a high likelihood of success: Constructing the wetland floor at the proper elevation relative to the groundwater table. There must be a hydrologic connection between the mitigation wetland and other waters of the State to ensure the wetland is within Department wetland resource regulation jurisdiction and functions as a water of the state. The topography and configuration of the wetland should coincide with the permit requirements to yield the required wetland acreage. Regular maintenance of the wetland to reduce exotic and nuisance plants during its establishment. The mitigation proposal submitted by Petitioner addresses each of the above four factors. Additionally, Petitioner is required to post a bond before commencing the project of $440,000 (110% of the estimated cost of the mitigation) to ensure sufficient funds are available to complete the mitigation project. Generally speaking a mature wetland is developed only over an extended period of many years. On the other hand the attempt to develop wetlands from uplands to provide mitigation for the destruction of other wetlands is quite new, leading opponents to conclude this to be more art than science. Serious studies and experiments with developing wetlands have occurred only in the past 10-15 years. These studies have not only indicated that wetlands can be created, but also have shown that developing freshwater wetlands is a very difficult task requiring dedication and close attention to the project. During the past decade a lot of misconceptions have been corrected but the process has not as yet reached the stage for the success of a project to generate freshwater hardwood wetlands can be guaranteed. A similar lack of progress has been made in creating freshwater undergrowth (shrubs). While the intent to deny this application in 1989 was signed by Carol Browner, DER Director, and the intent to grant was signed by Janet Llewellen, Bureau Chief for the Bureau of Wetland Resource Management, the ultimate decision in both instances was made by Browner, who, in deciding to grant the instant application, overruled the recommendation of a majority of the DER staff involved with this project. This accounts for the conditional "if successful" acceptance of the mitigation plan by those DER staff members who testified in support of the application.
Recommendation It is RECOMMENDED that permit (File No. 511731859) be issued to VQH Development, Inc. in accordance with and subject to the conditions contained in the DRAFT permit attached to the notice of Intent to Issue Permit. DONE and ORDERED this 26th day of March, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 26th day of March, 1993. APPENDIX Proposed findings submitted by Petitioner are accepted except: 18. Second sentence. Accepted as uncontradicted testimony of Petitioner's witness. 30. Rejected that there is a diminished overall value of these wetlands because of reduced or no understory. 36. First sentence rejected. No credible evidence was submitted that any historic wetlands on this property were filed by man. 38. First sentence rejected as confusing. 40. Third sentence rejected as fact; accepted as the testimony of VQH contractor. 61. Sentence 5(2) rejected as fact; accepted as a hoped for condition. Proposed findings submitted by Respondent are accepted, except: 7. Whether red maple or laurel oak is the dominant species was disputed. However, both tree species are present in significant numbers and naming one dominant is irrelevant. 19. Whether red maple or laurel oak is the dominant species was disputed. However, both tree species are present in such significant numbers that naming one dominant is irrelevant. Proposed findings submitted by Intervenor are accepted, except: 12. Property is rectangular in shape. 18. Last sentence rejected as contrary to witness' testimony. 20. Rejected as irrelevant. VQH project has been approved in principle by Pasco County. 22. Rejected as irrelevant. VQH project has been approved in principle by Pasco County. 28. I would characterize the mitigation proposals as neo-typical. 34. Second sentence rejected. Red maple and laurel oak dominate site. 38. Second and third sentences irrelevant as to cause of thin understory. 60. Rejected as fact. This is a conclusion of law. 62.-66. Rejected as fact. These are conclusions of law. Accepted as unwritten rule. Unwritten rule not proved valid in these proceedings. 68d. Last sentence. See HO #14. Rejected as f act. This is a legal conclusion. Rejected. This opinion of one witness is in conflict with the actions of DER in this instance. 83. Absent a definition of success the opinion here conflicts with the testimony of BRA's expert. 96.-99. These are legal conclusions. 101.-102. Rejected. VQH submitted numerous plans showing the reduction of the footprint on wetlands. 103. Rejected. Mudano also testified that the property on which all such stand alone stores are owned by the store. 105. Word practical rejected. 107. Rejected. Notice of Intent to Issue carries with it the conclusion that the project had been minimized as required by statutes. This is a conclusion of law. Rejected. 115. The date of February 1, 1993 a time to start on this project was not mentioned in this hearing. See HO #23. 117. While this mitigation plan may be consistent with present day requirements it is much more complex and detailed than were former mitigation plans which did not meet expectations. 118.-119. Rejected. 120. Conclusion of Law. 122. Conclusion of Law. 122. (Second) Last sentence rejected. 124. Rejected. 126.-128. Conclusions of Law. 130. Rejected. 132.(first)-134. Conclusions of Law. 133.-134. Conclusions of Law. COPIES FURNISHED: John W. Wilcox, Esquire Post Office Box 3273 Tampa, Florida 33601 3273 E. Gary Early, Esquire Post Office Box 10555 Tallahassee, Florida 32302 2555 Buddy Blair, Esquire 202 Madison Street Tampa, Florida 33602 W. Douglas Beason, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399 2400 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Daniel H. Thompson, Esquire Acting General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399 2400 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399 2400
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a dredge and fill permit be issued to Fairfield to fill 2.1 acres of wetlands and to create 2.1 acres of wetlands as mitigation, including the planting of Spartina to be maintained at an 80% survival rate for a period of five years and the provision of erosion control measures in and adjacent to Lake Avoca and St. Joseph's Sound. Respectfully submitted and entered this 14th day of February, 1986 in Tallahassee, Leon County, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of Feburary, 1986. APPENDIX The proposed findings of fact submitted by the Petitioner and the Respondent Fairfield have been accepted and/or incorporated in this Recommended, except as noted below: Petitioner page 3, 3rd full paragraph, Rejected; not supported last sentence: by competent substantial evidence. page 4, 1st paragraph: Rejected; contrary to the greater weight of the evidence. page 5, 1st full sentence: Accepted, but irrelevant and immaterial to disposition of any issue. pages 5 and 6, starting with Rejected; contrary to the 1st full paragraph: greater weight of the evidence. Respondent Fairfield page 4, 2nd full paragraph: Rejected; mere recitation of testimony and conclusions of law as opposed to factual findings. page 13, 1st paragraph: Rejected: irrelevant and immaterial. NOTE: Many of the proposed findings of fact submitted by the Petitioner and the Respondent Fairfield constitute either recitations of testimony or legal conclusions. While these have not technically been rejected by the undersigned, they are not appropriate for the findings of fact section and are discussed in the conclusions of law. COPIES FURNISHED: Victoria Techinkel Secretary Twin Towers Office Bldg. 2600 Blairstone Road Tallahassee, FL 32301 Mary f. Smallwood General Counsel Twin Towers Office Bldg. 2600 Blairstone Road Tallahassee, FL 32301 William W. Deane, Esquire Hanley and Deane, P.A. 465 Second Avenue North P. O. Box 7473 St. Petersburg, FL 33734 Julia D. Cobb Deborah Detzoff Richard Tucker 2600 Blairstone Road Tallahassee, FL 32301 Terry E. Lewis Steve Lewis Messer, Vickers, Caparello, French & Madsen P. O. Box 1876 Tallahassee, FL 32302 =============================================================== AGENCY FINAL ORDER =============================================================== STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION LEAGUE OF WOMEN VOTERS OF CLEARWATER-UPPER PINELLAS COUNTY, Petitioner, v. DOAH CASE NO. 85-2755 DDT OGC FILE NO. 85-0822 DEPARTMENT OF ENVIRONMENTAL REGULATION and FAIRFIELD COMMUNITIES, INC., Respondents. /
The Issue Whether Respondent Richardson’s application for a wetlands resource permit to construct a private road and bridge through wetlands should be denied for failing to provide mitigation to offset the impacts to existing wetlands. Whether Respondent Richardson had provided the Department with reasonable assurance that he or she owns or has sufficient authorization to use certain land in mitigation to offset the wetland impacts.
Findings Of Fact In January of 1990, John Richardson applied to the Department for a wetland resource (dredge and fill) permit under Section 403.918, Florida Statutes to construct a private road and bridge through wetlands. The proposed project would impact 0.032 acres of wetland. The proposed project is not located in an Outstanding Florida Water (OFW). The proposed project would adversely affect the following: the conservation of fish and wildlife; the fishing, recreational values, and marine productivity in the vicinity of the proposed project; and the current condition and relative value of functions being performed by the wetlands impacted by the project. The proposed project would be permanent in nature. The proposed project would not meet the criteria of Section 403.918(2)(a) Florida Statutes, without mitigation adequate to offset the impacts to wetlands. To provide adequate mitigation for the proposed project, Respondent John Richardson proposed to create and preserve 0.029 acres of new wetlands and preserve 4.35 acres of existing wetlands. The preservation would consist of granting to the Department a perpetual conservation easement over the mitigation wetlands. Respondent John Richardson represented to the Department that he was the record owner or had permission to use the land that he offered for mitigation. The Department reasonably relied on that representation. The mitigation proposed by Respondent John Richardson would be adequate to offset the impacts to wetlands resulting from the proposed project. On March 4, 1992, the Department issued to John Richardson a wetlands resource permit for the proposed project. The Department was not aware, before it issued this permit, that John Richardson might not own or have permission to use the mitigation land. The Department was substantially justified in issuing the permit to John Richardson on March 4, 1992. Specific conditions 28-31 of that permit required Respondent John Richardson to grant the Department a conservation easement over the mitigation land within thirty days after issuance of the permit. Respondent John Richardson failed to grant the Department the required conservation easement, and failed to publish notice of the Department’s action. On July 22, 1996, Petitioners filed a timely petition with the Department challenging the Department’s issuance of the March 4, 1992, permit to Respondent John Richardson. On September 11, 1996, Janet Richardson filed an application with the Department for transfer of the March 4, 1992, permit to her following the dissolution of marriage with John Richardson. By letter dated October 11, 1996, the Department requested Janet Richardson to provide additional documentation to show that she either owns the mitigation land or has permission to use that land. Janet Richardson was required to provide a legal survey drawing depicting the mitigation land, property records showing ownership of that land, and a notarized statement from the land owner authorizing her to use that land. The Department specifically advised Janet Richardson that it could not approve the proposed project if she failed to submit this requested documentation to the Department prior to the final hearing. Janet Richardson failed to provide the requested documentation by the date of the final hearing in this matter, or subsequently. As of November 6, 1996, no work had begun on the proposed project. At the hearing, the Department adequately explained its change in position from deciding to issue the permit (on March 4, 1992) and proposing denial of the permit (on November 6, 1996). The Department relies on an applicant’s representations regarding ownership of or right to use land unless a problem is brought to the Department’s attention. In this case, the Department was not aware that there was a problem with the applicant’s right to use the mitigation land until the petition was filed with the Department on July 22, 1996. Janet Richardson failed to provide proof that she either owns or is authorized to use the land to mitigate the impacts to wetlands from the proposed project. Without such proof, Janet Richardson failed to prove that she could mitigate those same impacts from the proposed project.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Respondent Richardson’s request for a wetlands resource permit for the proposed project.ONE AND ORDERED this 17th day of December, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Richard Stauffer Post Office Box 97 Aripeka, Florida 34679-097 Cy Plata Post Office Box 64 Aripeka, Florida 34679 Steven McCallum Post Office Box 484 Aripeka, Florida 34679 Leslie Neumann Post Office Box 738 Aripeka, Florida 34679 John Richardson 700 West Broad Street Brooksville, Florida 34607 Janet Richardson 1603 Osowaw Boulevard Springhill, Florida 34607 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether the Respondents, Kelly Endres and Ifrain Lima (Endres/Lima), are entitled to an Environmental Resource Permit (ERP) that would allow use of 0.535 acres of previously impacted wetlands for the construction of a single-family residence and associated structures, a 30' x 30' private dock with a 4' access walkway, and a 12' wide boat ramp (Project) at 160 Long Acres Lane, Oviedo, Florida (Property).
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated, thereunder, in the Florida Administrative Code. Under that authority, the Department determines whether to issue or deny applications for ERPs. Respondents Endres/Lima own the Property and are the applicants for the ERP at issue in this consolidated proceeding. Petitioner Meier is a neighboring property owner to the south of the Property. Petitioner Meier's property includes a single-family residence with accessory structures and is located on Long Lake. Petitioner Meier is concerned that the NOI provides inadequate environmental protections and that there will be flooding on adjacent properties from the Project. Petitioner Hacker is the neighboring property owner adjacent to the south of the Property. Petitioner Hacker's property includes a single-family residence with accessory structures and is located on Long Lake. He is concerned with the completeness of the application for the Project, the calculation of wetland impacts, that reasonable assurances were provided, and that the Department's NOI ignores willful negligence and allows disparate treatment of Respondents Endres/Lima. Petitioner Kochmann is a property owner with a single-family residence and accessory structures located on Long Lake. She is concerned that the NOI is based on a misleading application and provides no evidence that the Respondents Endres/Lima made reasonable efforts to eliminate and reduce impacts detrimental to the environment. History of the Project and Application On April 12, 2018, Respondents Endres/Lima applied for an ERP for proposed wetland impacts associated with a planned single-family home on the Property. This was the first ERP application for the Property. The Department sent a Request for Additional Information (RAI) on April 24, 2018, and a second RAI on November 2, 2018. Respondents Endres/Lima provided a Mitigation Service Area Rule Analysis for "As If In-Basin" for the Lake X Mitigation Bank for the St. Johns River Water Management District Basins to the Department via email on May 10, 2018. Respondents Endres/Lima submitted revised plans to the Department on September 19, and October 30, 2018. On January 7, 2019, the Department denied the ERP application. The Department and Respondents Endres/Lima, on July 18, 2019, entered into a Consent Order (CO). The Department found, and Respondents Endres/Lima admitted, that approximately 0.80 acres of jurisdictional wetlands were dredged and filled without a valid ERP from the Department; and was done with improperly installed erosion and sedimentation controls. On August 22, 2019, Respondents Endres/Lima submitted a second ERP application. The Department sent an RAI on September 20, 2019, to which Respondents Endres/Lima responded on December 19, 2019. In addition, Respondents Endres/Lima reserved 0.60 of forested Uniform Mitigation Assessment Method (UMAM) wetland credits from the Lake X Mitigation Bank and provided the Department with an updated site plan and Lake X Mitigation Bank credit reservation letter. The Department issued an NOI on February 7, 2020, which was timely published in the Sanford Herald on February 9, 2020. Respondents Endres/Lima provided timely proof of publication to the Department on February 13, 2020. Consent Order and Compliance A warning letter was issued to Respondents Endres/Lima on January 30, 2019, for the dredging and filling of approximately 0.80 acres of forested wetlands and improper installation of erosion and sedimentation control. The CO, executed on July 18, 2019, required Respondents Endres/Lima to cease any dredging, filling, or construction activities on the Property, submit an application for an Individual ERP within 30 days, and pay $5,599.00 in penalties and the Department's costs and expenses. After the issuance of an ERP, Respondents Endres/Lima were also required to implement the restoration actions outlined in the CO. Respondents’ Endres/Lima’s application, dated August 19, 2020, was submitted to the Department on August 22, 2020. Respondents Endres/Lima paid the CO's penalties and costs, and had multiple meetings with the Department to complete the requirements of the CO. Respondents Endres/Lima’s expert, Mr. Exner, testified that he began working on a restoration plan for the Property, which will be provided to the Department once an ERP is issued. Permitting Criteria The Department reviewed the complete application and determined that it satisfied the conditions for issuance under Florida Administrative Code Rule 62-330.301, and the applicable sections of the ERP Applicant's Handbook Volume I (AH Vol. I). The Department also considered the seven criteria in rule 62-330.302 and section 373.414(1)(a), and determined that implementing the Project would not be contrary to the public interest. Water Quantity, Flooding, Surface Water Storage and Conveyance Respondents’ Endres/Lima's civil engineering expert, Mr. Herbert, testified that according to the drainage design, the Property would have swales on either side of the proposed residence to slope water away from the residence. There would also be a conveyance swale on the north property boundary to convey water from the street area and front yard toward the restoration and wetland areas with ultimate discharge to Long Lake. He stated that the elevation of the road at the front of the Property would be at 47.4 feet, and the elevation at the terminus of the swale would be at 45 feet. This would allow a 2.4-foot vertical fall for the swales to convey water to the lake. The design would preserve pre-development surface water flow over the Property to Long Lake, which is the lowest elevation in the area, and will ensure that storm water does not flood adjacent properties. Mr. Herbert also testified that the Project design would maintain pre-development water storage capacity. The imported fill that is currently on the Property in the flood plain would be removed and reshaped so that the lake elevation would be maintained and water can flow correctly. Elimination or Reduction of Impacts and Mitigation Respondents Endres/Lima provided the Department with design modifications to reduce impacts associated with the Project. These included a 15-foot restoration buffer along the lake front's northern shoreline, an elevated access walkway five feet above the wetland restoration area to the proposed dock, limiting the width of the access walk to four feet, and limiting the boat ramp width to a single-lane. In June 2015, an informal wetlands determination was conducted for the Property. The informal determination concluded that the entirety of the Property were wetlands. However, this was an informal determination and was not binding. In October 2016, before the first permit application was submitted, Mr. Exner did a wetlands delineation flagging prior to the Property being cleared or disturbed. Mr. Exner testified that, in his opinion, the Property was not all wetlands because large pines near the road had no high water marks, adventitious growth around the bases, or evidence of pine borer beetles along with other indicators of upland habitat. This wetland delineation was part of the permit submittal, was shown on the plans, was accepted by the Department, and was used for the preparation of the UMAM scoring. Mr. Exner's wetland delineation line was used by the Department to help determine and map the wetland impacts identified in the CO. The direct impact area was assessed at 0.54 acres with a secondary impact area of 0.02 acres for a total impact of 0.56 acres, and a functional loss score of 0.364. Respondents Endres/Lima reserved 0.6 forested UMAM mitigation credits, almost double the amount of functional loss under the UMAM assessment, agreed to purchase 0.46 credits. The excess mitigation bank credits implement part of a plan that provides regional ecological value and greater long-term ecological value than the area of wetland adversely affected. Secondary and Cumulative Impacts The Project's UMAM analysis assessed 0.02 acres, or 870 square feet, of secondary impacts. These impacts would be fully offset by the mitigation proposed for the Project. Petitioners' expert, Mr. Mahnken, noted three areas where he thought the application was incomplete. The first was that the site plan did not call out the location of the secondary impacts. However, Part III: Plans of Section B of the application, does not require that the site plan show the location of the secondary impacts. The application requirements for "plans" requires only the boundaries and size of the wetlands on the Property and provide the acreages of the upland areas, wetland impact areas, and the remaining untouched area. Second, Mr. Mahnken questioned the calculation performed to determine the secondary impact acreage. However, Mr. Mahnken read the information incorrectly and stated that the secondary impact area was 0.002 acres, or 87 square feet, when the UMAM score sheet clearly showed that the secondary impact area is 0.02 acres, or 870 square feet. In addition, the Department's witness, Ms. Warr, testified that even if the Department were to use Mr. Mahnken's analysis, the result would have been the same, i.e., the requirement to purchase 0.46 mitigation credits. Thus, Petitioners failed to support their claim that the Project would have adverse secondary impacts. Third, Mr. Mahnken asserted that cumulative impacts were not adequately addressed. He testified that the assessment for the Property using spill over benefits, in his opinion, was not enough to fully offset the impacts of the Project. Mr. Mahnken acknowledged, however, that his opinion was open to debate, and that he had not conducted any rigorous hydrologic evaluation in reaching his opinion. Respondents Endres/Lima had submitted a report prepared by Breedlove, Dennis & Associates (BDA Report) with their application in order to demonstrate compliance with section 10.2.8, ERP AH Vol. I, regarding cumulative impacts. The BDA Report utilized peer-reviewed hydrologic data that was reviewed and approved by the South Florida Water Management District, and was accepted by the Department pursuant to section 373.4136(6)(c). This was consistent with the Property's location within the mitigation service area for the Lake X Mitigation Bank. The Project is located within the Econlockhatchee River drainage basin, which is a nested basin within the larger St. Johns River [Canaveral Marshes to Wekiva] drainage basin. The Lake X Mitigation Bank is located outside of the Econlockhatchee River drainage basin, but the Project is located within the Lake X Mitigation Bank service area. The BDA report determined that: In summary, the Lake X Mitigation Bank is a regionally significant mitigation bank site that has direct hydrological and ecological connections to the SJRWMD basins, to include the cumulative impacts basin in which the subject property is located (i.e., SJRWMD Basin 19). The size, biodiversity, and proximity of the mitigation bank site to the SJRWMD basins, and the regionally significant hydrological connection between the mitigation bank site and the contiguous SJRWMD mitigation basins, supports the use of this mitigation bank site “as if in basin” mitigation for the Lima/Endres Wetland Fill Project. Additionally, the evaluation of factors, to include connectivity of waters, hydrology, habitat range of affected species, and water quality, demonstrates the spillover benefits that the Lake X Mitigation Bank has on the St. Johns River (Canaveral Marshes to Wekiva) mitigation basin, which includes the Econlockhatchee River Nested basin, and demonstrated that the proposed mitigation will fully offset the impacts proposed as part of the Lima/Endres Wetland Fill Project “as if in-basin” mitigation. The Lake X Mitigation Bank will protect and maintain the headwaters of two regionally significant drainage basins [i.e., the Northern Everglades Kissimmee River Watershed and the Upper St. Johns River Watershed (to include the nested Econlockhatchee River basin)], and will provide resource protection to both river systems (SFWMD Technical Staff Report, November 29, 2016). Furthermore, the permanent protection and management of the Lake X Mitigation Bank will provide spillover benefits to the SJRWMD basins located within the permitted MSA. Mr. Mahnken stated that his review of the Project did not include a hydrologic study and only looked at basic flow patterns for Long Lake. By contrast, the BDA Report included an extensive hydrologic study, looked at all required factors in section 10.2.8(b), ERP AH, Vol. I, and determined that the Project would be fully offset with the proposed mitigation. Thus, Respondents Endres/Lima provided reasonable assurance that the Project will not cause unacceptable cumulative impacts. Water Quality Rule 62-330.302(1)(e) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely affect the quality of receiving waters such that the state water quality standards will be violated. The conditions of the ERP would require the use of best management practices including a floating turbidity curtain/barrier, soil stabilization with grass seed or sod, and a silt fence. Respondent Endres/Lima's experts, Mr. Herbert and Mr. Exner, testified that there is an existing turbidity barrier in the lake around the property and a silt fence around the east half of the Property. While these items are not required by the Department until construction of the Project, part of the silt fence and the turbidity barrier are already installed on the Property and will be required to be repaired and properly maintained in accordance with the conditions of the ERP and Site Plan SP-2. Mr. Herbert testified that the Property will be graded in a manner that will result in a gentle sloping of the lake bank in the littoral zone, which would allow revegetation of the lake bank. Outside of the restoration area and the undisturbed wetlands, the backyard would be covered with grass to prevent migration of sand and soil discharging into the lake. Mr. Exner testified that the grass swales proposed for the Project would provide a considerable amount of nutrient uptake and filtration of surface water on the Property. Also, in the restoration area next to the lake, the restoration plan includes a dense planting plan with native species that have good nutrient uptake capability. Impacts to Fish and Wildlife Rule 62-330.301(1)(d) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Exner testified that, in his review of the Property, he did not identify any critical wildlife habitat. He visited the Property multiple times and he did not see any osprey nests, deer tracks, animal scat, gopher tortoises, or sand hill cranes. The Department's Ms. Warr testified that the Florida Fish and Wildlife Conservation Commission database was reviewed, and did not show any listed species in the area. Publication of Notice Petitioners argued that the notice published in the Sanford Herald on February 9, 2020, did not meet the requirements of section 373.413(4). Despite the notice having no effect on their ability to timely challenge the proposed ERP, Petitioners argued that the published notice was insufficient because the notice itself did not provide the name of the applicants or the address of the Project, only a link to the Department's permit file. Unlike the notice required in section 373.413(3), where a person has filed a written request for notification of any pending application affecting a particular designated area, section 373.413(4) does not specify the contents of the published notice. Section 373.413(4) does not require the published notice to include the name and address of the applicant; a brief description of the proposed activity, including any mitigation; the location of the proposed activity, including whether it is located within an Outstanding Florida Water or aquatic preserve; a map identifying the location of the proposed activity subject to the application; a depiction of the proposed activity subject to the application; or a name or number identifying the application and the office where the application can be inspected. In response to the published notice, the Department received approximately ten petitions challenging the NOI, including the petitions timely filed by Petitioners. Therefore, Petitioners were not harmed by any information alleged to have been left out of the published notice. Ultimate Findings Respondents Endres/Lima provided reasonable assurance that the Project 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; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Respondents Endres/Lima provided reasonable assurance that the Project complied with elimination and reduction of impacts, and proposed more than adequate mitigation. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse secondary impacts to water resources; and unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quality impacts to receiving water bodies. Respondents Endres/Lima provided reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife, and listed species by wetlands, or other surface waters. Petitioners failed to prove lack of reasonable assurance by a preponderance of the competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Respondents’ Endres/Lima's ERP application. DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. Jay Patrick Reynolds, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 (eServed) Neysa Borkert, Esquire Garganese, Weiss, D'Agresta and Salzman 111 North Orange Avenue Post Office Box 398 Orlando, Florida 32802 (eServed) Tracy L. Kochmann 249 Carolyn Drive Oviedo, Florida 32765 (eServed) Shelley M. Meier 208 Long Acres Lane Oviedo, Florida 32765 (eServed) Brian Hacker 170 Long Acres Lane Oviedo, Florida 32765 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
Findings Of Fact Introduction Respondent, South Florida Water Management District (SFWMD or District), is a creature of the legislature having been created under Chapter 373, Florida Statutes (1985). It has jurisdiction over and administers all "waters in the District", including the regulation of the management and storage of surface waters. According to the map depicted in Rule 40E-1.103, Florida Administrative Code, the SFWMD's jurisdiction appears to extend over all of Monroe, Dade, Broward, Collier, Palm Beach, Martin, Lee, Hendry and Glades Counties and portions of St. Lucie, Okeechobee, Osceola, Charlotte and Orange Counties, Florida. A precise legal description of its boundaries is found in Subsection 373.069(2)(e), Florida Statutes (1985). Under the District's surface water management permitting authority, a permit is required for the construction of any works that impound, impede, obstruct or otherwise impact the flow of water, irrespective of whether the property contains a wetland of any nature. To implement the above jurisdiction, the District has adopted by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a technical manual entitled "Basis of Review for Surface Water Management Permit Application within the South Florida Water Management District" (Basis for Review). The manual was first adopted in 1977 and has been readopted with various modifications since that time. The most recent version became effective in July 1986. The manual contains criteria to be used by the District when reviewing permit applications for the construction and operation of surface water management systems within its jurisdictional boundaries. These criteria specify the manner in which an applicant must provide reasonable assurance that a project meets SFWMD objectives, and include both water quantity and quality considerations as well as environmental standards designed to protect fish and wildlife. One feature of the Basis of Review is a provision allowing an applicant to submit and implement innovative project designs as long as they meet District objectives. Many of the principles embodied in the Basis of Review have been carried forward into the challenged rules. An applicant may apply for a conceptual approval or a construction and operation (C&O) permit. The conceptual approval is a permit for a master plan when the applicant is not ready to submit all detailed drawings necessary to obtain a C&O permit. It is especially appropriate for large projects developed in phases. A conceptual approval does not authorize construction of a surface water management system, but rather authorizes a master plan with which subsequent construction and operation must be consistent. Once a conceptual permit has been issued, the individual C&O permits are then applied for and issued consistent with the terms of the conceptual permit. In 1986 the Legislature enacted Section 373.414, Florida Statutes (Supp. 1986). That section requires the District, not later than March 31, 1987, to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department (of environmental regulation) for purposes of regulation of dredging and filling." The statute goes on to require that the rule include the following: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. The statute further provides that until the District adopts specific isolated wetland rules, its review of fish and wildlife impacts in small isolated wetlands is limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. In response to the foregoing legislation, and after a series of meetings and workshops, on November 7, 1986 the District proposed to amend existing Rules 40E-4.091 and 40E- 4.301, Florida Administrative Code. The text of the amended portion of Rule 40E-4.301 reads as follows: 40E-4.301 Conditions for Issuance of Permits. (1)(m) is not against public policy, and will meet the general and specific criteria in the document described in Rule 40E-4.091(1)(a), and will meet the criteria for isolated wetlands, which are found in Appendix 7 of the document described in Rule 40E-4.091(1)(a) (Underscored words represent the proposed amendment.) In conjunction with the foregoing, the District prepared an economic impact statement (EIS) which read as follows: SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULE: 1. COST TO THE AGENCY: The proposed rule largely reflects existing policy and procedure but enunciates the specific guidelines the District applies in permitting decisions. The rule strikes a balance between specific quantitative guidelines and administrative flexibility with regard to permitting decisions. While there may be some initial implementation costs to the District, a minimal total cost increase to the agency is expected. The specific quantitative guidelines provided in the Appendix are expected to facilitate agency decisions regarding required mitigation- compensation, so that in the long run costs may actually decline as a result of implementation of the new criteria. There are no plans to change the size of District regulatory staff as a result of implementation of the standards in Appendix To the extend that additional staff is required in the future to address the impacts of permitting decisions on wetland habitat on threatened and endangered species, this impact can more correctly be attributed to the adoption of Section 373.414, F.S., by the Florida Legislature than to this rule. COSTS AND BENEFITS TO THOSE DIRECTLY AFFECTED: Appendix 7 provides the applicant with the choice of either meeting specific quantitative project design criteria or proposing a unique project design which will be reviewed by a qualitative standard to ensure that the proposed project complies with the District's objective of protecting isolated wetlands and their associated fish and wildlife functions and values. The requirements that project applications which proposed to impact wetlands provide reasonable assurances, such as mitigation/compensation, maintenance plans, monitoring and a guarantee of performance, is expected to result in some cost increases to permittees. Such require- ments are likely to improve the effectiveness of District protecting the water and related land resources of the District. IMPACT ON COMPETITION AND THE OPEN MARKET FOR EMPLOYMENT: No significant impact on competition and the open market for employment is expected. IMPACTS ON SMALL BUSINESS: The quantitative criteria in the Appendix set differential standards on the basis of isolated wetland size rather than firm size. Large projects are expected to have slightly greater flexibility in meeting the reasonable assurance requirements than small projects; however, the differential impact on small business, as defined in Section 288.703, Florida Statutes, is not expected to be significant. DATA AND METHODS USED: Data from the computer files of the District's Resource Control Department were the primary source of data used. Appendix 7 adopted by reference in amended Rule 40E- 4.301(1)(o) is a document entitled "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District - Appendix 7 - Isolated Wetlands" (Appendix 7). As originally proposed for adoption, the Appendix contained sections 1.0 through 6.0 covering the following subjects: introduction (1.0), glossary (numbered as 2.0 and containing sections 2.1, 2.2, 2.3, 2.4, 2.7., 2.9 and 2.10), size threshold (3.0), review procedures for projects which propose to impact isolated wetlands (numbered as 4.0 and containing sections 4.1-4.5), review criteria (5.0), quantitative design criteria (5.1.1., 5.1.2., 5.1.3, 5.1.4, 5.1.5, 5.1.7 and 5.1.8), qualitative criteria (5.2-5.2.3) and project guarantee criteria (numbered as 6.0 and containing sections 6.1-6.3). For purposes of surface water management permitting, Appendix 7 applies only to activities in isolated wetlands while all other activities are subject to the criteria embodied in the Basis of Review. On November 26, 1986 petitioners, Orlando Central Park, Inc. (OCP), Real Estate Corporation of Florida, N.V. (REC), and National Association of Industrial and Office Parks, Region IV (NAIOP), filed a Petition for Administrative Determination of Invalidity of Proposed Rules wherein they sought to have declared invalid proposed rules 40E-4.091(1) and 40E-4.301(1)(o). In their petition, petitioners generally challenged all or portions of sections 2.0, 3.0, 4.0, 5.0, 5.1., 5.2 and 6.0-6.4 in Appendix 7 as well as the sufficiency of the EIS. In light of the above petition having been filed, the District again considered its proposed rules on January 8, 1987 and amended Appendix 7 in a number of respects. The revised Appendix has been received in evidence as joint exhibit number 2. As a result of those revisions, and as reflected in their post- hearing pleadings, petitioners have limited their attack to sections 2.2, 4.2b, 4.3, 4.4, 5.1.1a, 5.1.1b, 5.1.1d, 5.1.2, 5.1.3 and 5.1.7 in Appendix 7 and the adequacy of the EIS. On January 15, 1987 intervenor/respondent, The Florida Audubon Society (intervenor or FAS), filed a petition to intervene. This petition was granted conditioned upon intervenor proving up at final hearing its standing in the proceeding. Standing In order to challenge a proposed rule, a party must generally demonstrate that its substantial interests will be affected by the challenged rule. To do so, petitioners presented evidence on this issue at final hearing. In the same vein, the standing of intervenor was also questioned, and it too presented evidence to demonstrate its right to have access to this proceeding. REC - REC is the owner and developer of a residential and commercial development consisting of approximately 2,400 acres known as the Buenaventura Lakes Planned Unit Development between Kissimmee and St. Cloud in Osceola County. The project has been subdivided into what is known as Basins 1, 2 and 3, of which the undeveloped acreage lies within the latter Basin. The corporation has plans to develop the remaining acreage into single family and multi-family residential and commercial developments but has not yet obtained the necessary environmental permits for the undeveloped tract. Through the testimony of an REC representative, the undeveloped acreage was described as having open grasslands, wooded areas and low, marshy areas. Some portions of the land were also described as a "wet, marshy, boggy area." However, their specific size was not disclosed, and there was only conjecture on the part of petitioners' expert that the areas were in fact isolated wetlands as defined in the proposed rule. The representative fears that if jurisdictional isolated wetlands are located within Basin 3, and the rules are adopted, it will impact upon REC in that more restrictive permits will be required prior to any further development of the land. The District has previously issued construction and operation permits for Basins 1 and 2 and necessary Department of Environmental Regulation (DER) permits have also been obtained. None have been sought or issued for Basin 3, and there was no evidence that a letter of conceptual approval covering drainage in Basin 3 has been issued by the District. Had one been issued, the project might be grandfathered and exempt from the pending rules. Even so, the record does not support a finding that isolated wetlands as defined in the proposed rule are definitely located within Basin 3 so as to make REC's substantial interest affected by this proceeding. NAIOP - The NAIOP is a national non-profit organization of developers, consisting of some 6,000 members nationwide. In Florida, it has four chapters (Jacksonville, Fort Lauderdale, Orlando and Tampa) and "several hundred" members. As developers of office, industrial and commercial real estate, it is necessary that its members obtain permits from the District on certain projects within the District's jurisdiction. The association monitors all rulemaking proceedings affecting its members, and has actively lobbied the legislature on environmental matters. It has appeared before the District and DER concerning rules and policy, especially those that affect the permitting process. According to an NAIOP representative, Eric B. Eicher, approximately 30 percent of its state members do business in SFWMD jurisdictional territory. However, Eicher had no first-hand knowledge as to how many members owned property within the District, or whether any members are intending to develop isolated wetlands which would be subject to the proposed rule. Indeed, he admitted that only two members had even talked to him about the proposed rules. As such, the NAIOP has not demonstrated any immediate and discernible impact that the proposed rule would have on its members. OCP - The OCP is a wholly-owned subsidiary of Martin-Marietta Corporation, a large corporation with offices in the Orlando area. However, Martin-Marietta is not a party in this proceeding. OCP itself is the owner and developer of an office, industrial and commercial park known as Orlando Center Park in Orange County, Florida. In addition, OCP acts as the developer of certain properties owned by Martin-Marietta. At the present time, OCP has approximately 2,400 acres in its own name which it intends to develop. They are generally located in an area west of the Florida Turnpike, south of Sand Lake Road, north of the Beeline Expressway and east of 1-4. Various aerial photographs and maps of the area were received in evidence as petitioners' exhibits 5, 8 and 9. It is undisputed that this property lies within the territorial jurisdiction of the SFWMD. On November 17, 1977 the District issued a permit granting conceptual approval of a master plan for the development of certain properties owned by OCP. However, the permit itself (petitioners' exhibit 15) did not include a review of impacts on wetlands for OCP's property. Therefore, the project is not grandfathered under proposed rule 4.1, and is subject to the new rules. If the proposed rules are adopted, OCP would have to modify its master plan and reduce the amount of its sellable or developable property. In two jurisdictional determinations performed by DER in 1983 and 1984, DER identified various isolated wetlands on OCP's property not subject to DER jurisdiction. These are located on what are identified as phases 8-B and 9 of the undeveloped tract of land (petitioners' exhibits 8 and 13). Since it is undisputed that OCP intends to develop this land, OCP is substantially affected by the proposed rules. FAS - Intervenor, which supports the rule amendments, is a non-profit association with principal headquarters in Maitland, Florida. Its membership numbers some 30,000, of which a large part live in Southeastern Florida and within the territorial jurisdiction of SFWMD. Although only one member (its president) testified at final hearing, it was the president's contention that "most" of its members support the proposed rules and the perpetuation of the isolated wetland as a function for wildlife. Through documentation offered in evidence as intervenor/respondent's exhibit 1, it was established that FAS owns various tracts of undeveloped land in Lee, St. Lucie and Collier Counties, which lie within SFWMD's boundaries. A part of these lands are isolated wetlands, and other parts are adjacent to wetlands areas. Although FAS expressed a fear that adjacent wetlands may be developed if the proposed rules are invalidated, it offered no proof of impending developments on isolated wetlands, or that such development would occur on properties adjacent to its own. Therefore, any adverse impact is remote and speculative, and has no immediacy or reality. The FAS has entered into a contract with the Game and Fresh Water Fish Commission to administer the Florida Breeding Bird Atlas Program. Under the program, FAS has contracted to establish a baseline of the numbers and types of breeding birds in the State. The FAS fears that if the rule amendments are not adopted, the destruction of wetlands will occur, thereby interfering with its ability to carry out the contract. Again, however, it offered no proof of impending developments on adjacent isolated wetlands, or otherwise established that its substantial interests under the contract would be affected. Economic Impact Statement Other than the introduction of the EIS into evidence as joint exhibit 4, there was no relevant factual evidence presented by the parties concerning the insufficiency or inaccuracy of the EIS. It is noted, however, that the District merely estimated that the proposed rules would "result in some cost increases to the permittees", and did not attempt to precisely identify the economic impact. Respondent offered into evidence various documents upon which it relied in preparing the EIS. However, such documents are hearsay, and it was not shown what competent evidence, if any, they were intended to supplement and explain. The Challenged Rules Petitioners' real concern lies with portions of Appendix 7 which has been adopted and incorporated by reference by Rule 40E-4.301(1)(o), Florida Administrative Code. That document spells out in detail the criteria that will apply to applications for surface water management permits where the proposed activity affects isolated wetlands. As noted earlier, the Appendix is divided into a number of sections, which for ease of discussion will be referred to as "rules." Each challenged "rule" will be dealt with separately. Rule 2.2 - This rule defines an "isolated wetland" as follows: Any wetland not under the jurisdiction of the Department of Environmental Regulation (DER) for the purposes of regulation of dredging and filling. Multiple individual wetlands normally connected by surface flow during a wet season with average rainfall shall be presumed to be an isolated wetland. The first sentence of the rule simply provides that any wetland not subject to DER dredge and fill jurisdiction is to be considered an isolated wetland and subject to Appendix 7 criteria. Conversely, if a wetland is subject to DER jurisdiction, any District regulated activity affecting that land must be considered under the existing Basis of Review criteria. Petitioners' concern is with the second sentence of the rule and is that whenever multiple isolated wetlands are connected by surface flow during the wet season, they believe the rule would confer jurisdiction in SFWMD not only over the isolated wetlands themselves, but also the uplands that lie adjacent to and between the individual wetlands. But, through credible and persuasive testimony, it was established that this is not the intent or result of the proposed amendment. Indeed, it was established that jurisdiction is intended to lie only over the wetlands themselves, and not the connecting uplands. Petitioners also object to the District aggregating small isolated wetlands into a single larger isolated wetland for jurisdictional purposes. However, such aggregation is necessary because of the biological interaction between the small wetlands. Petitioners further voiced some criticism of the provision in the rule that connected wetlands shall be presumed to be an isolated wetland. Even so, the rule allows an applicant to present evidence to contradict this presumption. Finally, despite suggestions to the contrary, there was no evidence of any conflicting DER policy or concept regarding isolated wetlands, how such wetlands are defined by DER, or that DER prefers the District to follow such policy or definition. Rule 4.2b. - This rule prescribes certain information that must be filed by an applicant for a permit whenever the project impacts isolated wetlands. As is pertinent here, Section b. requires the following to be filed with the application: b. A list of all plant and animal species listed as endangered, threatened or of special concern pursuant to 50 Code of Federal Regulations, Section 17.12, and Rules 39-27.03, 39-27.04 and 39-27.05, Florida Administrative Code, which are incorporated by reference and made a part of this rule which utilize the area and an evaluation of the probable significance of the area to the listed species. Petitioners object to the requirement that an applicant submit a list of all plant species of special concern as defined by Rule 39-27.05, Florida Administrative Code. This rule was promulgated by the Game and Fresh Water Fish Commission and designates some forty-three plant "species of special concern". Petitioners' objection is based on the premise that the term "species" does not include plants, and that plant species are accordingly outside the purview of the District's permitting authority. However, they presented no evidence to support this construction of the term. In contrast, through testimony from a National Audubon Society employee, it was established that the term "species" not only includes animals, but plants as well. Mitigation/Compensation Rules - A number of rules within Appendix 7 make reference to mitigation and compensation proposals to be submitted by applicants whose projects impact isolated wetlands. As is relevant here, they include rules 4.3, 4.4, 5.1.1a., b. and d., 5.1.2, 5.1.3 and 5.1.7, all challenged by petitioners. These rules generally require or provide for mitigation when an applicant intends to impact or destroy all non-exempt isolated wetlands 0.5 acre to 5.0 acres in size. It is petitioners' contention that the District has no authority to require or otherwise provide for mitigation or compensation as a permit criterion. Mitigation is defined in rule 2.8 as "remedying isolated wetland impacts by restoring or enhancing affected habitat, or by creating similar habitat of equal or greater function". Compensation is defined in rule 2.9 as the "replacement of isolated wetlands with a mixture of wetland/upland habitat, unique upland habitat, or otherwise provide overall benefits to the natural system". Mitigation is a common practice in environmental permitting and has been routinely used by the District in its existing Basis for Review. Indeed, at the present time ``most'' applicants include a mitigation plan with their applications for permits. Even petitioners' expert conceded that the use of mitigation is "a reasonable practice" and has resulted in "better projects", and "better" protection of the water resources. Rules 4.3 and 4.4 require applicants who propose mitigation or compensation to submit certain information with their applications. This information is necessary to insure that the mitigation/compensation plan will be successful. It is also noted that mitigation is not used or required for every project, and can be avoided where a project has other built-in compensation features. The new rules simply continue existing agency policy. Rules 5.1.1a. and b. provide the following presumptions concerning mitigation and compensation: Mitigation or compensation for elimination of isolated wetlands between 0.5 and 5.0 acres in size, pursuant to Section 5.1.2 below, shall be presumed to maintain wetland functions. There is no presumption that the function of isolated wetlands over 5.0 acres in size can be maintained by measures other than protection as defined in Section 2.4 above. Protection of isolated wetlands over 5.0 acres in size shall be the preferred method of providing the required reasonable assurance, however, other reasonable alternatives proposed by the applicant will be considered. Section a. creates a presumption in favor of the applicant that mitigation or compensation, in ratios specified within the rules, shall be presumed to maintain the functions of isolated wetlands between .5 and 5 acres in size. Section b. eliminates this presumption for isolated wetlands over five acres in size since the District's experience has been that applicants have not generally been successful in mitigating larger wetlands, and that it is more difficult to mitigate and compensate for larger projects. Even so, the rule allows an applicant to present "other reasonable alternatives" to mitigation. Petitioners object to the presumption in Section b. since they contend it reposes in the District the authority to preserve isolated wetlands over 5.0 acres in size. However, this "authority" comes into play only when the criteria cannot be met, and the applicant fails to present "other reasonable alternatives". Rule 5.1.1d. provides as follows: (d) Protection of isolated wetlands or incorporation of isolated wetlands into surface water management systems in favored over isolated wetland destruction and mitigation or compensation. Wetland destruction and mitigation or compensation shall be considered only when there are no feasible project design alternatives for the particular site. Reasonable project design alternatives to isolated wetland impacts shall be considered. This rule essentially favors the protection of isolated wetlands as opposed to their destruction. It goes on to permit destruction and mitigation/compensation whenever there are no "feasible project design alternatives". In other words, the District has established a first priority of preserving wetlands whenever possible, and allowing destruction only when no "reasonable project design alternatives" are available. Under the latter situation, mitigation/compensation will then be required. Petitioners assert the term "feasible project design alternative" is not readily understood, or comprehensible to the average person. However, even their engineer stated he could "apply it", and that he "normally" goes about designing projects consistent with the terms of the rule. It was further established that the District construes the terms "feasible" and "reasonable" to be synonymous, and that the rule would not require an applicant to present a proposal that was prohibitively expensive, or technically unfeasible. Rule 5.1.2 also deals with mitigation/compensation and addresses mitigation ratios to be used by applicants. It reads as follows: Isolated wetland mitigation shall be implemented based upon ratios of acres wet- lands created, or restored to acres of wet- lands destroyed which provide reasonable assurance that the mitigation will be successful. The following ratios shall be presumed to provide such reasonable assurance for type-for-type mitigation: Forested swamp, non-cypress dominated-2. 5:1 Forested swamp, cypress dominated---2.0:1 Freshwater marshes 1.5:1 Ratios for mitigation with unlike habitat, including expanded littoral zones, or compen- sation shall be determined on a case-by-case basis. When type-for-type mitigation is provided as defined in Section 2.8 and accepted by the District prior to isolated wetland impacts, a one-to-one ratio shall be presumed to provide such reasonable assurance. The rule explains that the prescribed mitigation ratios provide reasonable assurance that the creation or restoration will be successful. It is a natural corollary to the District's mitigation/compensation policy. Testimony established that these ratios were reasonable, favor an applicant, and are consistent with the different natural communities to which they apply. Higher ratios of wetlands created to wetlands destroyed are necessary because of the time required for an artificially created replacement system to provide all of the previous native functions. Finally, the use of a one-to-one ratio when type-for- type mitigation is used reduces the amount of land required by an applicant for mitigation, and provides flexibility from the otherwise specified ratios. Rule 5.1.3 prescribes the use of mitigation/compen-sation where disturbed wetlands are impacted by a project. It reads as follows: Disturbed isolated wetlands may be developed and their loss compensated for by: Mitigation at ratios less than those required in 5.1.2, based on the degree of disturbance and the remaining functional qualities. Mitigation through restoration or other disturbed wetlands is preferred over wetland creation. Preservation of unique uplands or in- clusion of developable uplands within an up- land/wetland protected system. Mitigation or compensation shall not be required for isolated wetlands which do not provide fun- ctions and values as expressed above in Sections 1.0 and 5.0. Unlike rule 5.1.2., this rule provides for mitigation ratios based upon the degree of disturbance and the remaining functional qualities of the wetland. It is too is a natural corollary of the District's stated policy. It recognizes that some wetlands have been disturbed, and that the ratios prescribed in rule 5.1.2. are inappropriate and too rigid for a previously disturbed wetland. Rule 5.1.7 - The final rule challenged by petitioners provides for the establishment of "buffer zones" under certain conditions. It is petitioners' contention that, like many of the other cited rules, the District has no authority to adopt the rule because buffer zones in upland areas are not a part of the surface water management system. A buffer zone is defined in rule 2.7 as "an area adjacent to the isolated wetland which protects wetland function and minimizes adverse impacts of upland development on wetland function". The challenged rule reads as follows: Buffer zones may be required around all isolated wetlands that are to be protected or incorporated into a surface water management system to protect wetland function and mini- mize adverse impacts of upland development on wetland function. Actual delineation of the buffer zone may vary according to site specific conditions. Buffer zones which extends (sic) at least fifteen feet landward from the edge of the wetland in all places and averages twenty-five feet from the landward edge of the wetland will be presumed to be adequate. Prior to issuance of Construction and Operation permits, buffer zones shall be field verified and delineated in the field. Buffer zones may consist of undisturbed uplands, open water bodies, wildlife corr- idors or other natural or structural features which serve the purpose stated in Section 2.7 as appropriate for the particular site. Upland areas or wildlife corridors adja- cent to buffer zones may be incorporated as compensation areas, provided they are in excess of the minimum buffer zone and meet all other requirements for compen- sation areas. Under current District policy, buffer zones are required around wetlands whenever they are necessary to maintain the integrity of the wetland. They are a reasonable tool in the District's arsenal to protect water, fish and wildlife resources. Testimony established that they are particularly essential when an applicant proposes to build a project immediately adjacent to a wetland so that erosion or destruction of the wetland may be avoided. The rule merely extends the District's existing policy to isolated wetlands.
The Issue The issue is whether the District should approve Environmental Resource Permit No. 43024788.002 for the construction of a surface water management system to serve the proposed residential subdivision on Westfield’s property in southern Pasco County, and based upon the prior litigation between the parties in DOAH Case No. 04-0003 and the pre-hearing rulings in this case, the issue turns on whether Westfield has provided “reasonable assurances” in relation to the proposed development's potential impacts on Wetland A3 and fish and wildlife.
Findings Of Fact Parties Dr. Blanco is a veterinarian. He grew up on, and has some sort of ownership interest in the property (hereafter “the Blanco property”) immediately to the west of the property on which the proposed development at issue in this case will occur. Dr. Blanco is particularly concerned about the impacts of the proposed development on the ecological health of Wetland A3, a significant portion of which is on the Blanco property. He has spent considerable time over the years observing and enjoying that wetland. Westfield is the applicant for the ERP at issue in this case, and it owns the property (hereafter “the Westfield property”) on which the development authorized by the ERP will occur. The District is the administrative agency responsible for the conservation, protection, management, and control of the water resources within its geographic boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40D. Among other things, the District is responsible for reviewing and taking final agency action on ERP applications for projects within its boundaries. The District includes all or part of 16 counties in southwest Florida, including Pasco County. The Proposed Development (1) Generally The Westfield property consists of 266.36 acres.3 It is located in southern Pasco County on the north side of State Road 54, approximately three miles west of U.S. Highway 41 and less than one-half mile east of the intersection of State Road 54 and the Suncoast Parkway. The Westfield property is bordered on the south by State Road 54,4 on the north by an abandoned railroad right-of- way and undeveloped woodland property, on the east by pastureland and property that has been cleared for development, and on the west by the Blanco property. The development proposed for the Westfield property is a residential subdivision with 437 single-family lots and related infrastructure (hereafter “the Project” or “the proposed development”). The ERP at issue in this proceeding is for the surface water management system necessary to serve the Project. There are 19 isolated and contiguous wetlands on the Westfield property, including Wetland A3, which is partially on the Westfield property and partially on the Blanco property. Wetlands cover 72.69 acres (or 27.3 percent) of the Westfield property. The proposed development will result in 1.61 acres of the existing wetlands -- Wetlands B4 and C4, and a portion of Wetland B12 -- being permanently destroyed. The remaining 71.08 acres of existing wetlands will be preserved. Wetlands B4 and C4 are small (each less than 0.75 acres), shallow, wet depressions in a pasture that have been significantly impacted by livestock grazing and periodic mowing. Wetland B12 is a low-quality, small (0.58 acres), isolated, forested wetland that has been impacted by livestock grazing and the intrusion of exotic species. The proposed development will create 2.89 acres of new wetlands, which means that the Project will result in a net gain of 1.28 acres of wetlands. The created wetlands, referred to as Wetland B2 or the “mitigation area,” are in the northern portion of the property along the abandoned railroad right-of-way and to the east of Wetland A3. The proposed ERP includes a number of special conditions, Nos. 6 through 11, related to the mitigation area. Among other things, the conditions require monitoring of the mitigation area to ensure that it develops into the type of forested wetland proposed in the ERP application. (2) Prior ERP Application The ERP at issue in this case is the second ERP sought by Westfield for the Project. The first ERP, No. 43024788.000, was ultimately denied by the District through the Final Order in Blanco-I. Blanco-I, like this case, was initiated by Dr. Blanco in response to the District’s preliminary approval of Westfield’s ERP application. Administrative Law Judge David Maloney held a three- day final hearing in Blanco-I at which the parties, through counsel, fully litigated the issue of whether Westfield satisfied the regulatory criteria for the issuance of an ERP for the proposed development. On December 17, 2004, Judge Maloney issued a comprehensive, 64-page Recommended Order in which he recommended that Westfield’s ERP application be denied. Judge Maloney determined in his Recommended Order that Westfield failed to provide reasonable assurances as required by the applicable statutes and rules because “[1] it omitted an adequate wildlife survey from the submission of information to the District and [2] it failed to account for seepage from Pond P11 and its effect on Wetland A3 and the Cypress-forested Wetland.”5 In all other respects, Judge Maloney determined that the applicable permit requirements had been satisfied. Dr. Blanco did not file any exceptions to the Recommended Order in Blanco-I. Westfield’s exceptions to the Recommended Order in Blanco-I were rejected by the District, and the Recommended Order was adopted “in its entirety” in the District’s Final Order. The Final Order in Blanco-I was rendered on January 27, 2005, and was not appealed. (3) Current ERP Application On April 29, 2005, approximately three months after the Final Order in Blanco-I, Westfield submitted a new ERP application for the Project. The current ERP application, No. 43024788.002, is identical to the application at issue in Blanco-I, except that the depth of Pond P11 was reduced in certain areas from a maximum of approximately 25 feet to a maximum of approximately 12 feet, an analysis of the potential impact of Pond P11 on Wetland A3 resulting from “seepage” was included with the application, and additional wildlife surveys were included with the application. On July 29, 2005, the District gave notice of its preliminarily approval of the current ERP application. The notice was accompanied by a proposed ERP, which contained a description of the Project as well as the general and special conditions imposed by the District. On August 24, 2005, Dr. Blanco timely challenged the District’s preliminary approval of the current ERP application. The Request for Administrative Hearing filed by Dr. Blanco in this case is identical to the request that he filed in Blanco-I. Disputed Issues Related to the Current ERP Application Impact of Pond P11 on Wetland A3 Dr. Blanco’s primary objection to the Project is the excavation of Pond P11 adjacent to Wetland A3. Wetland A3 is on the western border of the Westfield property and, as noted above, the wetland extends onto the Blanco property. The portion of Wetland A3 that is on the Westfield property is approximately 30 acres, and the portion of the wetland on the Blanco property appears to be slightly larger. Wetland A3 is a large, mature, Cypress-forested wetland. It has been impacted by nearby development and is not a pristine wetland, but it is still a mid to high quality wetland for the area.6 Wetland A3 is part of a larger wetland system that extends northward and westward beyond the abandoned railroad right-of-way that serves as the northern boundary of the Westfield and Blanco properties. Cypress-forested wetlands, such as Wetland A3, are very tolerant of prolonged periods of drought and inundation. The seasonal high groundwater level in Wetland A3 is approximately one foot below the surface in most areas of the wetland. There are, however, areas in Wetland A3 in which water is frequently a foot or two above the surface. The groundwater levels in Wetland A3 have, in the past, been significantly impacted by drawdowns in the aquifer caused by pumping in nearby wellfields. The impact has been less significant in recent years as a result of the reductions in pumping mandated by the Tampa Bay Consolidated Water Use Permit. The planned interconnection of several nearby wellfields is also expected to minimize the drawdowns in the aquifer and should further stabilize the groundwater levels in Wetland A3. Pond P11 will be located adjacent to Wetland A3. There will be a 25-foot buffer between the pond and the wetland. The location of Pond P11 is unchanged from the first ERP application. Pond P11 will have a surface area of approximately 37 acres. The surface area of Pond P11 is unchanged from the first ERP application. Pond P11 is a necessary component of the surface water management system for the Project. It also serves as a “borrow pit” because the soil excavated from the pond will be used on- site as fill for the proposed development. The excavation of Pond P11 to the depth proposed in the current ERP application is not necessary for water storage. The pond could be excavated to the seasonal high water level -- approximately 2.5 feet deep -- and still function as intended as part of the proposed surface water management system. Pond P11 will be used for attenuation, but the pond is also expected to provide at least some amount of water quality treatment, which is an added benefit to Wetland A3 into which the proposed surface water management system will ultimately discharge through Pond P11. The only change made to Pond P11 between the first and current ERP applications was a reduction in the pond’s maximum depth. The pond, which had a maximum depth of approximately 25 feet in the first ERP application, was “shallowed up” in the current ERP application. Pond P11 will now be approximately 12-feet deep at its deepest point, unless the District authorizes excavation to a greater depth in accordance with special condition No. 28. The shallowest area of Pond P11 will be along the western edge of the pond adjacent to Wetland A3 where there will be an expansive “littoral shelf” that will have almost no slope and that will be excavated only to the seasonal high water level.7 There was no change in the design of the surface water management system between the first ERP application and the current ERP application. The reduction in the depth of Pond P11 will have no impact on the operation of the system, which was described in detail in Blanco-I.8 Pond P11 will have a control structure to allow water to be discharged into Wetland A3 near its southern end, which is a more upstream location than water is currently discharged as a result of the ditches that intercept surface water flowing across the Westfield property. This design feature of the surface water management system is intended to mimic historic hydrologic conditions and is expected to increase the hydration of Wetland A3. The ERP includes a special condition, No. 28, relating to the excavation of Pond P11. The condition provides: Maximum depth of excavation will be +38 feet NGVD[9] unless additional field observations and data are provided that support excavation to greater depth, subject to review and approval by District staff. Proposed maximum depths of excavation . . . may be exceeded based upon field observations and approval as specified. Due to the potentially irregular depths to limestone, excavation will be stopped at a shallower depth if confining soils are encountered before reaching the maximum depth specified in Subcondition A, above. A geotechnical field technician will be present on site during the entire excavation process in order to monitor excavated soils. The field technician will be under the supervision of a Professional Geologist or Professional Engineer. For the purposes of the specific project, confining soils are defined as soils with more then 20 percent fines passing a No. 200 sieve. The field technician will be authorized to halt depth of excavation when confining soils are encountered. Excavation may proceed deeper than soils containing 20 percent or more fines if the soils are shown to be an isolated lens of material significantly above underlying confining soils or limestone, as determined by field observations and data subject to approval by District staff. Confining soils do not uniformly overlie the limestone; therefore it is possible that the underlying limestone could be encountered in spite of precautions in Subconditions A and B above. If the underlying limestone is encountered, excavation will be halted in the area of exposed underlying limestone. The area of exposed limestone will be backfilled to a minimum depth of two feet with compacted material meeting the specification of confining soils, having more than 20 percent fines passing a No. 200 sieve. The geotechnical field technician must certify that the backfill material meets this specification. One of the reasons that the ERP application was denied in Blanco-I was that Westfield failed to take into account the potential hydrologic impacts on Wetland A3 caused by “seepage” of water from Pond P11 due to the depth to which the pond was to be excavated and the corresponding removal of the confining layer of soils between the bottom of the pond and the aquifer. After Blanco-I, Westfield retained Marty Sullivan, a professional engineer and an expert in geotechnical engineering and groundwater and surface water modeling, to evaluate the seepage issue and the potential hydrologic impacts of Pond P11 on Wetland A3. Mr. Sullivan developed an integrated or “coupled” groundwater/surface water model to assess these issues. The model was designed to project the change in groundwater levels caused by the proposed development more so than absolute groundwater levels. The model utilized a widely-accepted computer program and incorporated data from topographic and soil survey information maintained by the U.S. Geologic Service; data from soil borings performed on the Westfield property in the vicinity of Wetland A3 in the area where Pond P11 will be located; data from groundwater monitoring wells and piezometers installed around the Westfield property; data from soil permeability tests performed on-site and in the laboratory; data from a rain gauge installed on the Westfield property; and data from the District’s groundwater monitoring wells in the vicinity of the Westfield property. Mr. Sullivan “calibrated” the model based upon known pre-development conditions. He then “ran” the model with the data from the Interconnected Pond Routing (ICPR) model10 used to design of the surface water management system in order to project the post-development groundwater conditions over a simulated ten-year period. Mr. Sullivan’s coupled groundwater/surface water model addresses the shortcoming of the ICPR model set forth in Blanco- I.11 The model projects that the post-development groundwater levels at the western boundary of the Westfield property in Wetland A3 adjacent to Pond P11 will be the same as the pre-development levels during the “wet season” of June to September, and that, on average and during the “dry season” of October to May, the post-development groundwater levels will be 0.3 feet higher than the pre-development levels. Mr. Sullivan summarized his conclusions based upon these projections in a report provided to the District with the current ERP application. The report states that: no adverse hydrologic effects will result from the excavation of Pond P11 and the development of the surrounding area. Particularly, Wetland A3 will be essentially unaffected and will be slightly enhanced by this development. Some additional hydration of wetland A3 will occur due to eliminating the north-south drainage ditch and instead routing runoff to Pond P11, which is adjacent to Wetland A3. The relative differences in the pre- and post- development levels are more important than the absolute levels projected by the model and, in this case, there is almost no difference in the levels. The minimal change in the water levels expected in Wetland A3 will not affect the wetland’s ecological functioning or its viability. A 0.3-foot change in the water level is well within the normal range of hydroperiod fluctuation for Wetland A3. The rate at which water increases and decreases in a wetland can impact wetland ecology and wetland-dependent species. The proposed surface water management system will not increase the surface water discharges from the Westfield property, and in compliance with Section 4.2 of the Basis of Review (BOR),12 the post-development discharge rates will not exceed the pre-development peak discharge rates. There is no credible evidence that there will be an adverse impact on Wetland A3 caused by changes in the discharge rate from the Westfield property through Pond P11 into Wetland A3. The range of error, if any, in Mr. Sullivan’s model is unknown. He has never performed a post-development review to determine how accurately the model predicts the post-development conditions that are actually observed. Nevertheless, the more persuasive evidence establishes that Mr. Sullivan’s model is reasonable, as are his ultimate conclusions based upon the model’s projections. Mr. Sullivan recommended in his report that Pond P11 be excavated no deeper than two feet above the limestone to avoid potential breaches of the confining soils above the aquifer. That recommendation led to the pond being “shallowed up,” and it was incorporated by the District into special condition No. 28. The provisions of special condition No. 28 are reasonable to ensure that excavation of Pond P11 will not breach the confining layer. The standards in special condition No. 28 pursuant to which a geotechnical field technician will monitor the excavation of Pond P11, and pursuant to which the District will determine whether to authorize deeper excavation of the pond, are generally accepted and can be adequately monitored by professionals in the field and the District. There is a potential for the loss of “significant volumes of water” from Pond P11 through evaporation “[d]ue to the sheer size of P11’s open surface area.”13 It is not entirely clear how the evaporation of water from Pond P11 was taken into account in Mr. Sullivan’s model, but it appears to have been considered.14 Dr. Mark Rains, Petitioner’s expert in hydrogeology, ecohydrology, and geomorphology, testified that evaporation from open water is generally about 12 inches more per year than evaporation from a wet meadow or Cypress forest, but he did not offer any specific criticism of the projections in Mr. Sullivan’s model related to the issue of evaporation. In sum, the more persuasive evidence establishes that Wetland A3 is not likely to suffer any adverse ecological or hydrological impacts from the proposed surface water management system and, more particularly, from Pond P11. Westfield has provided reasonable assurances in that regard. (2) Adequacy of the Wildlife Surveys The other reason why the first ERP application for the Project was denied in Blanco-I was that the wildlife surveys submitted with that application were found to be inadequate. Wildlife surveys are not required with every ERP application and, in that regard, Section 3.2.2 of the BOR provides that: [t]he need for a wildlife survey will depend on the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species, and whether the proposed system will impact that use such that the criteria in subsection 3.2.2 through 3.2.2.3 and subsection 3.2.7 will not be met. Westfield conducted a “preliminary” wildlife assessment in 2001. No listed species were observed, nor was any evidence of their presence on the Westfield property. Nevertheless, as detailed in Blanco-I,15 the District requested that Westfield perform a wildlife survey of Wetlands B4, C4, and B12, because all or part of those wetlands will be permanently destroyed by the proposed development. In an effort to comply with the District’s requests, Westfield conducted additional field visits in 2003 and also performed specific surveys for Southeastern Kestrels and Gopher Tortoises. The field visits “confirmed” the findings from the preliminary wildlife assessment, and no evidence of Southeastern Kestrels and Gopher Tortoises was observed during the surveys for those species. Judge Maloney found in Blanco-I that the wildlife surveys conducted by Westfield were inadequate because they “did not employ the methodology recommended by the District: the FWCC methodology.”16 However, the wildlife surveys were not found to be inadequate in Blanco-I because they focused on Wetlands B4, C4, and B12, instead of evaluating the entire Westfield property and/or all of the potentially impacted wetlands, including Wetland A3. After Blanco-I, a team of qualified professionals led by Brian Skidmore, an expert in wetlands, Florida wetlands ecology, and listed species assessment, conducted additional wildlife surveys of the Westfield property. Mr. Skidmore and his team had performed the preliminary wildlife assessment and the supplemental surveys submitted with Westfield’s first ERP application. The “FWCC methodology” referenced in Blanco-I is a methodology developed by the Fish and Wildlife Conservation Commission (FWCC) to evaluate potential impacts to listed species from large-scale projects, such as developments-of- regional impact and new highways. It is not specifically designed for use in the ERP process, which focuses only on wetland-dependent species. Mr. Skidmore adapted the FWCC methodology for use in the ERP process. The methodology used by Mr. Skidmore was reviewed and accepted by the District’s environmental regulation manager, Leonard Bartos, who is an expert in wetland ecology and ERP rules. The surveys performed by Mr. Skidmore and his team of professionals occurred over a five-day period in February 2005. The surveys focused on Wetlands B4, C4, and B12, and were performed at dawn and dusk when wildlife is typically most active. Additional wildlife surveys of the entire site were performed on five separate days between October 2005 and January 2006. Those surveys were also performed at dawn and dusk, and they included observations along the perimeter of Wetland A3 and into portions of the interior of that wetland on the Westfield property. Mr. Skidmore reviewed databases maintained by FWCC to determine whether there are any documented waterbird colonies or Bald Eagle nests in the vicinity of the Project. There are none. Mr. Skidmore contacted the Florida Natural Area Inventory to determine whether there are any documented rare plant or animal species on the Westfield property or in the vicinity of the Project. There are none. The post-Blanco-I wildlife surveys did not evaluate the usage of the Westfield property by listed species during the wetter spring and summer months of March through October even though, as Mr. Skidmore acknowledged in his testimony, it is possible that different species may use the property during the wet season. The post-Blanco-I wildlife surveys, like the original wildlife surveys, focused primarily on the species contained in Appendix 5 to the BOR -- i.e., wetland-dependent species that use uplands for nesting, foraging, or denning -- but Mr. Skidmore testified that he and his surveyors “were observant for any species,” including wetland-dependent species that do not utilize uplands. No listed wetland-dependent species were observed nesting or denning on the Westfield property. Several listed wetland-dependent birds -- i.e., snowy egret, sandhill crane, wood stork, and white ibis -- were observed foraging and/or resting on the property. Those birds were not observed in Wetlands B4, C4, or B12. The parties stipulated at the final hearing that the determination as to whether Westfield provided reasonable assurances with respect to the statutory and rule criteria related to fish and wildlife turns on whether the wildlife surveys submitted by Westfield are adequate.17 BOR Section 3.2.2 provides that “[s]urvey methodologies employed to inventory the site must provide reasonable assurance regarding the presence or absence of the subject listed species.” The wildlife surveys conducted by Westfield subsequent to Blanco-I in accordance with the FWCC methodology meet this standard. Although the surveys could have been more extensive in terms of the species assessed and the period of time over which they were conducted, the more persuasive evidence establishes that the wildlife surveys are adequate to document the presence or, more accurately the absence of listed wetland- dependent species on the Westfield property. The wetlands that will be directly impacted by the proposed development -- Wetlands B4, C4, and B12 -- do not provide suitable habitat for listed species. Those wetlands are small, low-quality wetlands, and Wetland B12 is technically exempt from the District’s fish and wildlife review because it is a small isolated wetland. There is no credible evidence that there will be any other adverse impacts to fish and wildlife from the proposed surface water management system. For example, even if there are undocumented listed species -- e.g., frogs, snakes, snails, etc. -- in Wetland A3, Mr. Skidmore credibly testified that the expected 0.3-foot increase in groundwater levels in that wetland during the dry season is not likely to adversely affect those species or their habitat because the water will still be below the surface. In sum, Westfield has provided reasonable assurance that the proposed development will not adversely affect fish and wildlife.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the District issue a final order approving Environmental Resource Permit No. 43024788.002, subject to the general and special conditions set forth in the proposed ERP dated July 29, 2005. DONE AND ENTERED this 10th day of April, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2006.
The Issue The issues in this case are: (1) whether Respondent, the Department of Environmental Protection (DEP) should grant the applications of Petitioner, John Rondolino, for an Environmental Resource Permit (ERP) and a Sovereign Lands Consent of Use for a proposed single-family dock on his property on the Rainbow River in near Dunnellon in Marion County, Florida; and (2) whether the landward extent of DEP's wetlands jurisdiction on Petitioner's property should be determined in this proceeding and, if so, the landward extent of those jurisdictional wetlands.
Findings Of Fact Procedural Background On February 23, 2000, DEP received an anonymous complaint regarding the clearing and filling of a parcel of property that was subsequently purchased by Petitioner, John Rondolino. Petitioner's property is Parcel Number 34581-001-02, Section 18, Township 16S, Range 19E, Marion County, 7069 South West 190th Avenue Road Extension, Dunnellon, Florida 34432-2827. Comprising approximately 1.159 acres, the pie-shaped parcel is located adjacent to the Rainbow River, which is a Class III Outstanding Florida Water and an Aquatic Preserve. As a result of the anonymous complaint, DEP inspected the site on February 24, 2000, and determined that a fill violation of Chapter 373, Part IV, Florida Statutes, had occurred. During this inspection, DEP delineated an informal wetland jurisdictional line such that approximately 0.47 acre of the property nearest the river was claimed as state jurisdictional wetlands. On March 29, 2000, Petitioner purchased the property upon which the alleged fill violation had occurred. On May 4, 2000, Petitioner and his wife met with DEP staff and indicated that he wanted to construct a structure for water-related activities (SFWRA)(a single-family dock) and make other improvements to the property. During this meeting, Petitioner challenged DEP's informal wetland jurisdictional line. At Petitioner's request, DEP delineated a second informal wetland jurisdictional line on May 23, 2000. The second delineation was somewhat different than the first but still included approximately the same amount of Petitioner's land within the state's jurisdictional wetlands. In discussion with DEP, Petitioner was informed that, in order to construct a SFWRA and make other improvements within the jurisdictional wetlands, he had to submit an application in accordance with Florida Administrative Code Rule 18-20.007 and Chapter 373, Florida Statutes1. It was recommended that, although Petitioner only wanted to build a single-family dock at the time, he might want to apply for all of the activities planned for the future in a single application. Petitioner was concerned that such an application might lead to expenditures which he did not want to incur at the time. During the summer of 2000, Petitioner consulted the Fowler, White law firm and, after approximately two months, had confirmed to him that it would be best for him to file a single application for all the activities Petitioner planned whether now or in the future. Petitioner authorized the law firm to prepare and file such an application. Petitioner's application was submitted in December 2000, and the law firm sent Petitioner a bill for $2,200 for legal services rendered. The application itself was not placed in evidence, but it was possible to infer some of its content from other evidence. DEP responded to Petitioner's application in January 2001 with a Request for Additional Information (RAI). When Petitioner consulted Fowler, White about a response to the RAI, he was informed that it would require another $15,000 to $20,000 of attorney fees and $25,000 to $30,000 of other professional fees to respond and prosecute the application to completion. In response, Petitioner terminated the relationship with Fowler, White and advised DEP to communicate only with him. Petitioner then responded to the RAI himself by letter dated February 22, 2001. He advised DEP that, in view of the costs associated with aspects of his application other than the proposed dock, as well as other factors, he was "withdrawing that portion of our permit application that deals with filling those portions of the property the DEP has delineated as a wetland." However, he continued to dispute the informal jurisdictional wetlands delineation, notifying DEP that he was "refuting the wetland delineation on the basis of section 62-340.550, F.A.C." and was "requesting in writing what would be considered by the DEP as sufficient hydrologic records or site specific hydrologic data of such a duration, frequency, and accuracy to demonstrate that the records or data are representative of the long-term hydrologic conditions, including the variability in quantity and seasonality of rainfall." (Emphasis in original letter.) If there was no such information available, Petitioner requested a meeting or an agreement "to outline the terms of study, including data collection, the specific model, model development and calibration, and model verification as stated in said section 62- 340.550, F.A.C." As for his proposed dock, Petitioner responded separately that he could not provide the requested information until DEP advised him if the proposed dock was in a Resource Protection Area (RPA) 1, 2, or 3. While DEP was preparing a reply to Petitioner's response to the RAI, Petitioner sent DEP several more letters in the succeeding months. Among other things, these letters repeated Petitioner's request for advice as to the RPA status of the location of his proposed dock. Also, by letter dated March 26, 2001, Petitioner made clear that he was not requesting, and refused to agree to, a formal delineation of the jurisdictional wetlands on his property; and yet by letter dated April 30, 2001, Petitioner informed DEP that he was still waiting for a response to his request to challenge DEP's jurisdictional wetland delineation under Rule 62-340.550. As Petitioner's letters kept coming in, DEP never finalized its reply, and Petitioner did not receive a response to his request until May 2001. One draft of a reply stated that DEP would involve its Wetland Evaluation and Delineation section in Tallahassee to assist in the disputed wetlands delineation on Petitioner's property at no cost to Petitioner and would have directed Petitioner to John Tobe, Ph.D., of that office "for more information regarding hydrologic records and site specific hydrologic data necessary to refute the Department's wetland delineation pursuant to 62-340.550, F.A.C." But this letter apparently never was finalized or sent, and there was no evidence that the information in the draft letter ever was imparted to Petitioner. On May 9, 2001, DEP sent Petitioner a letter preliminarily evaluating his application. Notwithstanding Petitioner's attempt to delete portions of the application dealing with fill of delineated wetlands, the evaluation addressed the entire application and presumed that proposed dredge and fill activities would occur in jurisdictional wetlands. As for the proposed dock, DEP's preliminary evaluation notified Petitioner: that it extended more than 20 percent of the width of the river at that location, contrary to Rule 18- 20.004(5)(a)1; that the proposed terminal platform was 225 square feet, contrary to Rule 18-20.004(5)(b)6; and that it extended out from the shoreline to a depth greater than -4 feet, contrary to Rule 18-20.004(5)(b)3. (None of these citations refers to special requirements for docks in an RPA.) DEP then suggested, based on "a thorough evaluation of the project location," how Petitioner could amend his application to cure those defects, including for Petitioner's use a scaled drawing of a proposed dock alignment in relation to a large bed of paspaladium geminatum (also known as knot grass or Egyptian paspaladium) (RPA 1) and some disturbed knot grass (RPA 2) determined by DEP to exist in the river at the project location. In response, Petitioner wrote DEP a letter dated May 21, 2001, stating that DEP's preliminary evaluation ignored prior correspondence amending Petitioner's proposed dock application which Petitioner said cured the very defects cited in the preliminary evaluation. (None of this alleged previous correspondence was placed in evidence or, except as discussed in Petitioner's letter dated May 21, 2001, referenced in other testimony or evidence.) Petitioner's letter then attached a drawing of the amended proposed dock and repeated the substance of the alleged prior amendments to the dock application: reduction of the length of the dock to 40 feet from the waters edge, terminating in water -3 feet deep, to comply with Rule 18- 20.004(5)(a)1 and Rule 18-20.004(5)(b)3; and reduction of the size of the terminal platform to 160 square feet to comply with Rule 18-20.004(5)(b)6 (although the exact dimensions of the terminal platform were left undetermined, and it appeared from the attached drawing that the 160 square foot terminal platform was alongside the end of the access pier). Petitioner's letter dated May 21, 2001, acknowledged that DEP's proposed alternative alignment and dock structure was designed to avoid the RPA 1 and RPA 2 knot grass beds determined by DEP to exist at the project location. But Petitioner pointed out that under DEP's proposed alignment mooring pilings would have to be eliminated from Petitioner's project, or else they either would encroach into the 25-foot setback from the downriver neighbor's riparian line or the dock structure would have to be moved further upriver, which would place it directly over the knot grass bed. Petitioner's letter dated May 21, 2001, also acknowledged that DEP's drawing depicted the area where Petitioner proposed to place the dock as covered with RPA 1 and RPA 2 knot grass. However, Petitioner's letter disputed the accuracy of DEP's depiction, maintaining that "the area described . . . as 'disturbed emergent grassbed' in fact is an area where the weeds have begun to encroach into the existing access channel and cut off access to the property." On June 4, 2001, DEP issued a Consolidated Notice of Denial. Despite Petitioner's attempt to delete portions of his application dealing with fill of delineated wetlands, the Consolidated Notice of Denial addressed and denied Petitioner's original application in its entirety. In so doing, it also addressed at length Petitioner's position that his proposed fill activities were planned to take place in areas upland of and outside DEP's jurisdictional wetlands and that no ERP was required. In response to DEP's Consolidated Notice of Denial, Petitioner requested an administrative proceeding. During the course of this proceeding, Petitioner has made it clear that he has deleted portions of his application dealing with fill of delineated wetlands, leaving only the application for an ERP and consent of use for his proposed dock. However, he also seeks a determination that DEP's jurisdictional wetlands do not extend landward to the areas Petitioner plans to fill. Jurisdictional Wetlands Delineation DEP's first informal jurisdictional wetlands delineation on February 24, 2000, was performed by Blake Meinecke and Brad Rosenblatt. Both had experience performing jurisdictional wetland delineations for DEP. At the time, Meinecke had been a DEP employee for three years; Rosenblatt had been with DEP for about a year and a half. They walked the property, took photographs, took some soil samples, made field notes, and placed seven flags on the property signifying the landward extent of jurisdictional wetlands at those points. They connected the flags to delineate a jurisdictional wetlands boundary line. The field notes and jurisdictional wetlands boundary delineation indicated that the first flag was placed three feet from the downriver property line and 145 feet landward of the river shoreline; the second flag was placed 28 feet upriver from the first flag and 149 feet from the river shoreline; the third flag was placed 53 feet upriver from the second flag and 113 feet from the river shoreline; the fourth flag was placed 75 feet upriver from the third flag and 97 feet from the river shoreline; the fifth flag was placed 102 feet upriver from the fourth flag and 92 feet from the river shoreline; the sixth flag was placed 121 feet upriver from the fifth flag and 108 feet from the river shoreline; and the seventh flag was placed 147 feet upriver from the sixth flag and 111 feet from the river shoreline. It is not clear from those documents whether the seventh flag was placed directly on Petitioner's upstream property line or at some distance inside the property line. The field notes suggested the presence of two sweet gum trees near the landward extent of the jurisdictional wetlands in the vicinity of the second flag, a bay tree within the jurisdictional wetlands closer to the river between the second and third flags, four bay trees2 within the jurisdictional wetlands at approximately the same distance from the river between the fourth and sixth flags, and bay trees and "osmunda" within the jurisdictional wetlands between the sixth and seventh flags. An Enforcement Inspection Report prepared in connection with the informal wetlands delineation added more specifics, indicating the presence of Magnolia virginianica [sic],3 Liquidambar sturaciflua [sic], Acer rubrum, and Osmunda regalis. It also indicated the presence of "[v]egetated tussocks/hummocks," which were referred to as "hydrologic indicators," and a "[m]ucky modified mineral layer present, greater than 2' [sic] within the first 6 inches." The photographs depicted mucky soils near the river shoreline; it is not clear from the photographs how far landward the obviously mucky soils extend. DEP's second informal jurisdictional wetlands delineation on May 23, 2000, was performed by Allen Shuey, who has 16 years of experience doing and teaching jurisdictional wetlands delineations for DEP and its predecessor agency, assisted by Blake Meinecke. Shuey first re-staked the flags in the positions indicated in the first informal delineation and took soil samples. First, samples were taken in areas where confirmation of muck soils appeared likely. Then soil samples were taken in sandier-looking places farther upslope away from the river where wetland species Shuey saw growing made him suspect that the soils had to be mucky under the sand. Altogether at least 6-20 soil samples were taken. They confirmed to Shuey that the soil was indeed mucky, even where covered with a thin layer of sand. Shuey made some field notes and adjusted the placement of the seven flags on the property signifying the landward extent of jurisdictional wetlands at those points. He then connected the flags to delineate an adjusted jurisdictional wetlands boundary line. As indicated by Shuey's field notes and jurisdictional wetlands boundary delineation, Shuey adjusted the first two flags towards the river, the first by 26 feet and the second by 15 feet; he adjusted the next five flags landward, the third by 21 feet, the fourth by 17 feet, the fifth by 28 feet, the sixth by 14, and the seventh by 8 feet; he also moved the seventh flag upriver by 5 feet. Generally, Shuey moved the boundary line closer to the river on the downriver side of the property and away from the river on the upriver side. As a result, the sweet gum trees no longer were within the jurisdictional wetlands,4 and Petitioner had them removed. Shuey's field notes listed numerous plant species, including water hemlock, dogwood (blue), cephalanthis [sic], Jack-in-the-Pulpit, centella, apios (potato Bear), Boja Maria, Woodwardia, royal fern, and climbing hydrangia [sic] (on sides). Like Meinecke and Rosenblatt before him, Shuey failed to list either of the wetland species Shuey says prompted him to take soil samples farther upslope. His best explanation for these failures was that the lists were not meant to be exhaustive, but he also characterized the failures as "unfortunate." As will be seen, one of the species--Saururus cernuus (common name, lizard's tail)--was later listed in answers to interrogatories; the other-osmunda cinnamomea (a/k/a cinnamon fern)--was never mentioned before Shuey's final hearing testimony. Shuey's notes also indicated mucky mineral soils (2 inches within the first 6 inches), ferns on tussocks, and moisture on the bottom layer of wood chip fill on the property. Except for stating that the climbing hydrangea was "on sides," Shuey's notes did not specify the location of the plants, soils, or moist wood chips on the property. Shuey's Enforcement Inspection Report prepared in connection with his informal wetlands delineation indicated the presence of: Magnolia virginianica [sic], Liquidambar sturaciflua [sic], and Acer rubrum in the tree canopy; Boja maria cylindrica, Cutica mexicana, Cephalanthis [sic] occidentalis, and Cornus foemina in the understory; and herbaceous Woodwardia virginica, Arisaema triphylum, Centella spp., and Osmunda regalis. It also indicated the presence of "[v]egetated fern tussocks/hummocks," which were referred to as "hydrologic indicators," and a "[m]ucky modified mineral layer present, greater than 2' [sic] within the first 6 inches." Shuey's Enforcement Inspection Report also noted: "Vegetation on the property has apparently been cleared since the original inspection of the complaint." Meinecke visited Petitioner's property again on April 23, 2001, with DEP Environmental Specialist Pete Slezinski, who manages biological and resource issues in the Rainbow River Aquatic Preserve. However, they traveled by boat and focused on the proposed dock alignment; they did not consider wetland jurisdictional issues on this visit. DEP's Consolidated Notice of Denial issued on June 4, 2001, stated in part: Selective removal of both herbaceous and canopy species appeared to have taken place within the wetland area. Mulched vegetation remnants from the removal activity appears to have been spread within the bayhead. The bottom of the mulch layer appeared to be moist. The canopy of the wetland area is dominated by sweet bay (Magnolia virginianica [sic]), an obligate wetland species, red maple (Acer rubrum) and sweet gum (liquidambar styraciflua) which are facultative wet wetland species. The understory within the wetland area contained false nettle (Boja maria cylindrica), water hemlock (Cutica mexicana) and buttonbush (Cepahalanthis [sic] occidentalis) which are obligate wetland species, along with blue dogwood (Cornus foemina) a facultative wet wetland species. Herbaceous and groundcover species observed within the wetland area were jack-in-the-pulpit (Arisaema triphylum), pennywort (Centella sp.), Virginia chain fern (Woodwardia virginica), which are facultative wet wetland species, along with royal fern (Osmunda regalis), an obligate wetland species. Soil samples taken throughout the wetland area indicated a prevalent mucky mineral layer at least 2 inches thick, and within the first 6 inches. Hyrologic indicators on site include the presence of fern tussocks. DEP's Consolidated Notice of Denial also stated: Maps and topographic aerials obtained by the Department show that the property is located on the inside of a bend in the Rainbow River. Because of the project location on the point bar, and its associated lower water velocities, the shoreline experiences higher siltation rates due [to] the deposition of suspended solids as the water slows. It can also be observed from historic aerials that the limits of the wetland area on the property have remained constant since 1972. Through Shuey's authorship, DEP also responded to Petitioner's discovery interrogatories in this case on the subject of the jurisdictional wetlands delineation. Except as pointed out in subsequent findings, Shuey's testimony supported the interrogatory answers. Apparently not wanting to stumble into an inadvertent admission that there are two separate wetlands on Petitioner's property, DEP declined to accept Petitioner's requests in several of the interrogatories that, in answering them, DEP "[c]onsider the area upland of the row of bay trees and area water ward [sic] of the bay trees separately." DEP responded consistently that there was "no justification" to do so since "[t]he wetland area delineated" was "one wetland area." Shuey testified that he actually does consider different parts of wetlands separately in certain circumstances. For example, in this case, where there was canopy, he considered the canopy vegetation; where the canopy had been cut, he looked at under-story or, if there was no under-story, ground cover; where there was not even any ground cover due to mowing, he looked only at soils. He used different means of analyzing the different areas in the exercise of professional judgment. Shuey's testimony was not always clear as to exactly how he analyzed the different areas so as to arrive at his jurisdictional wetlands delineation. Asked in Petitioner's interrogatories "whether any portions of Petitioner's property is considered . . . 'inundated' or 'saturated'," DEP responded that the wetlands jurisdictional boundary established by DEP on Petitioner's property was based on the "area [being] considered 'inundated' and 'saturated' to the extent that the area supports water dependent vegetation and has soils which have developed 'Hydric Soil Indicators.'" Asked in Petitioner's interrogatories for "any records of hydrologic evidence of regular and periodic inundation and saturation," DEP limited its response to a 1972 topographic map, a 1996 aerial map, and a Soil Survey published in 1979. Asked in Petitioner's interrogatories to explain how DEP applied "reasonable scientific judgment . . . in evaluating all reliable information," DEP responded that it included within the jurisdictional wetlands land "from the river to where two wetland indicators consistently occurred together, the presence of obligate and facultative wetland plants and soils which had hydric indicators such as the presence of peat soils and/or soils which had a mucky layer or texture." DEP also stated that the 1979 Soil Survey confirmed that soils in the area were "labeled a poorly drained soil unit (Pm-Placid sand)." Asked to detail its analysis, DEP stated: Much of the vegetation in the wetland area had been removed by the Petitioner prior to the [sic] any site visits by the Department. Some of the canopy vegetation was removed and virtually all of the under-story and ground cover had been removed. In determining if the area was a wetland the Department was forced to look at the remaining vegetation [in] all three strata and the remains of vegetation (stumps, branches, leaves etc.) plus the soils in determining that this area was a wetland. A compete species list for the wetland area was not compiled . . .. Only dominant species and species which are crucial to determining the upland edge of the wetland were recorded and/or noted specifically. Species noted on site or recorded in notes but not included in the Denial include: At this point in the answer, DEP listed the following plants listed in Florida Administrative Code Rule Chapter 62-340: in the canopy, Quercus laurifolia (laurel oak), Persea palustris (swamp bay), Sabal palmetto (cabbage palm); in the under-story, Cornus foemina (swamp dogwood), Myrica cerifera (wax myrtle); and, as ground cover, Saururus cernuus (lizard's tail). DEP also listed as ground cover Apios americana (groundnut), which is a vine not listed in the Florida Administrative Code but which a wetland plant. (Vines are not listed in Rule 62-340.450 because it can be difficult to determine where they originate.) DEP stated that it could not answer Petitioner's interrogatory asking for percentages of upland, obligate, facultative wet, and facultative vegetation in the canopy, under- story, and ground cover for two reasons: first, "Petitioner had removed part of the canopy" and "virtually eliminated" the under- story and ground cover (although, DEP maintained, "the dominance of wetland species in an area still can be determined by examination of stumps, vegetation re-sprouts, and the remains of vegetation (branches leaves, etc) which remain"); and, second, no specific cover estimates by strata were taken. Notwithstanding DEP's answers to interrogatories, Shuey insisted in testimony at final hearing that he did visually estimate percentage of cover in the canopy (although he did not make a note of his estimate) and applied test (b) of Rule 62- 340.300(2) to delineate the wetlands on Petitioner's property. When Petitioner asked at final hearing, Shuey provided an estimate of greater than 80 percent cover of obligate and facultative wetland species in the canopy, at least in the forested area closer to the river, based on recently-cut stumps. Pressed further by questioning by DEP counsel, Shuey increased the estimate to "probably greater than 85%." It was clear from the testimony, but it appears that Shuey meant to also qualify the 85 percent coverage estimate to apply to canopy in the forested part of the wetlands based on recently-cut stumps. It appears that the recently-cut stumps included in Shuey's canopy cover estimate are the Persea palustris (swamp bay) reintroduced through DEP's interrogatory answers to the list of species in the canopy after having been deleted from earlier lists and replaced by Magnolia virginiana (sweet bay). As reflected in the previous findings, DEP's interrogatory answer was the first mention of any kind of oak being on the property. This interrogatory answer was given after Petitioner took the position that there were several large laurel oaks (Quercus hemisphaerica) on the property. After the interrogatory answer, Petitioner took the position that Shuey used the incorrect scientific name in the interrogatory answer's listing of the canopy vegetation in the wetland area. In testimony at final hearing, Shuey acknowledged that the interrogatory answer's listing of the canopy vegetation in the wetland area was in error in giving laurel oak as the common name of Quercus laurifolia; he testified that he meant to list swamp bay as the common name for that species. Actually, Quercus laurifolia is an incorrect scientific name; swamp bay is one of the common names for the facultative wetland species, Quercus laurifolia Michauxii. (Another common name for that species is swamp chestnut oak.) Perhaps misled by Shuey's errors, Petitioner also erred in contending that swamp laurel oak cannot be used as either an obligate or a facultative wetland species under test (b) because Quercus laurifolia is not listed under Rule 62-340.450. Quercus laurifolia is not listed, but Quercus laurifolia Michauxii is. In addition to the confusion in naming the different oak species, it also is not clear from the evidence whether the oaks considered by Shuey in estimating canopy cover percentages were laurifolia Michauxii or hemisphaerica. Shown photographs of a number of oak trees on the property, Shuey was unable to identify the species with any certainty. As previously indicated, it was not clear that Shuey testified to a canopy cover percentage for the delineated wetlands area as a whole (as opposed to just the forested portion). But Shuey clearly conceded that, if the trees he identified as laurifolia Michauxii were actually hemisphaerica, the percentage of obligate and facultative wetland species in the canopy of the delineated wetlands area as a whole would be less than 80 percent. As reflected in previous findings, DEP's interrogatory answer was the first mention of lizard's tail being on the property. No lizard's tail or cinnamon fern was evident in any of the photographs placed in evidence by Petitioner. But these photographs were taken by Petitioner in February 2001, well after DEP's site visits; and the evidence was that Petitioner now regularly mows the area upland of the line of bay trees on his property. Even if any lizard's tails or cinnamon ferns were there at the time of the photographs, it is not clear whether the photographs would have been taken close enough or with the necessary resolution to detect these plants, depending on their growth stage. As previously indicated, it appears that in applying test (b) Shuey may have estimated canopy coverage based on recently-cut stumps; he also may have "dropped strata" in places where canopy trees had been cut or were nonexistent so as to estimate cover percentages for lower strata. In places where all vegetation was removed and mowed, it appeared that he relied on soil characteristics. Shuey's testimony at final hearing appears to have been the first explicit notice to Petitioner that DEP also applied test (d) of Rule 62-340.300(2) to delineate the wetlands on Petitioner's property (although it is possible to glean from a fair reading of the interrogatory answers that DEP was not only relying on test (b)). Although Shuey's testimony was not clear, it appears that he may have used test (b) for the part of the wetlands closer to the river and test (d) for the part landward of the line of bay trees. It appears that the indicators DEP variously referred to as vegetated or fern tussocks or hummocks and relied on under test (d) were essentially thick root mats. Like elevated patches of soil that allow plants to grow in places frequently inundated or saturated, these elevated root mats similarly allow plants to survive those conditions. It was not clear from the evidence exactly where Shuey saw these vegetated or fern tussocks and hummocks. Shuey conceded that they did not exist throughout the area DEP delineated as jurisdictional wetlands on Petitioner's property. Neither Shuey, Meinecke, or Rosenblatt took any pictures to verify where these indicators were on the property or even specifically noted or reported exactly where they were found. Although Shuey maintained that some of these indicators were seen landward of the line of bay trees on the property, it is not clear from the evidence whether they actually were found on that part of the property. Shuey testified at final hearing that, contrary to the interrogatory answers, he did not use the 1972 topographic map or any aerial photography in delineating jurisdictional wetlands on Petitioner's property and did not see how they would be useful in this wetlands delineation. He thought their only usefulness in connection with this case might have been to determine whether any wetland vegetation had been removed. DEP also re-called William Vorstadt on the subject of DEP's jurisdictional wetlands delineation on Petitioner's property. Vorstadt visited the site twice, the second time in January 2002, and concurred with Shuey's jurisdictional boundary line. Vorstadt took two sample soil borings, one between the boundary line and the line of bay trees and another landward of the boundary line. Both samples revealed wet, hydric soils which Vorstadt considered to be hydrologic indicators of inundation. At the time of Vorstadt's visits, the area between the line of bay trees and the boundary lined had been well-mowed in the vicinity of the flags Shuey placed on the property. Vorstadt was unable to determine much about the vegetation that might have been there; nor could he determine much about vegetation that might have been there in the past. There was no evidence that any holes were dug at any time by any DEP personnel to establish the level of the water table on Petitioner's property. There was no evidence to establish the seasonal high water table on the property. Petitioner contended that development on lots upriver and downriver from Petitioner's property altered the hydrology on Petitioner's property so that hydric soils can no longer form or be sustained, and wetland vegetation adapted for life in saturated soils no longer can be supported there. But, except with respect to narrow strips of land along the boundary lines between Petitioner's property and the adjoining lots upriver and downriver, there was no evidence whatsoever to prove Petitioner's contention in this regard. (In addition, the evidence was clear that there are at least some jurisdictional wetlands on Petitioner's property.) It appeared from photographs introduced into evidence by Petitioner that relatively narrow strips of land along the boundary lines between Petitioner's property and the adjoining lots upriver and downriver are higher than the rest of Petitioner's property, giving the impression of ridges along the property boundary lines, especially the upriver boundary line. These ridges approximately coincide with the land upriver of the seventh flag and downriver of the first flag placed on the property during DEP's informal wetlands delineations. Petitioner suggested that these ridges were formed when the neighboring property owners filled their lots as part of development and that fill material spilled over onto the property Petitioner purchased. Shuey agreed in testimony that, if the ridges were the result of fill that altered the character of the land, so as to no longer be periodically inundated and saturated, and no longer support wetland plant species, the land no longer would be considered jurisdictional wetlands. However, while it appears that the upriver ridge may well have been part of a berm along that boundary line, there was no proof as to how the smaller apparent ridge on the downriver side came to be. In addition, it was not clear from the evidence whether the ridges should be included in the jurisdictional wetlands on Petitioner's property. Petitioner attempted to utilize various aerial photographs to establish that his property had no jurisdictional wetlands because they showed only evergreen trees. But the only witness who spoke to the aerials was Shuey; and, while acknowledging his inability to discern wetlands from the aerials, Shuey refused to agree that the aerials showed only evergreen trees or that they showed only non-wetlands on Petitioner's property. Besides, as previously found, it was clear that there are at least some jurisdictional wetlands on Petitioner's property. Shuey testified persuasively that the aerials are of little or no use in determining where to draw the line between jurisdictional wetlands and uplands on Petitioner's property. Petitioner introduced in evidence several exhibits to establish that in late 1993 the Southwest Florida Water Management District (SWFWMD) delineated jurisdictional wetlands on the adjacent lot upriver from Petitioner's (the Thurman lot) and on a lot four lots downriver from Petitioner's property (the Grant lot). Petitioner contended that the landward extent of those wetlands delineations "approximated Control Elevation A, the top of the bank of the river which approximates the 31 foot contour line known as Control Elevation A the 10 year flood line." But the exhibits themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain those wetlands delineations (except the testimony of Shuey, who refused to agree with all of Petitioner's contentions). It is not even clear from the evidence exactly where Control Elevation A, the 31-foot contour line, and 32-foot contour line are in relation to DEP's jurisdictional wetlands boundary on Petitioner's property. In addition, the relevance of the Grant wetlands delineation four lots downriver is questionable; it seems quite possible that site-specific conditions of Petitioner's property, which is at the center of the inside of a bend in the river, would result in a different wetlands delineation. As for the Thurman lot, it appears from some of the exhibits that Petitioner's property (at least on the upriver side of the lot) is lower than the Thurman lot; and the apparent 31-foot contour line sweeps significantly farther landward as it approaches and enters Petitioner's property. It seems that this might explain why wetlands on Petitioner's lot could be larger than those on the Thurman lot. At best, these exhibits raised suspicions that SWFWMD might have approved a wetlands jurisdictional boundary that approximated Control Elevation A (approximately the 31-foot contour line); if so, it also is possible that those delineations were done in error, or that the wetlands delineation methodology used by SWFWMD in 1993 was somewhat different from the current methodology codified in statute and rule, or both.5 Petitioner also introduced numerous exhibits relating to the construction of the canoe launch ramp, boathouse, and observation deck facilities at Rainbow Springs State Park near the river's head. Given the greater distance from Petitioner's property, these exhibits are even less relevant than the exhibits relating to the Grant lot. As Shuey testified, wetlands jurisdictional delineations are site-specific. In addition, like the Grant and Thurman lot exhibits, the State Park exhibits themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain them (except the testimony of DEP witnesses, who refused to agree with all of Petitioner's contentions). At best, these exhibits raised suspicions that SWFWMD might have approved a wetlands jurisdictional boundary at the State Park that approximated either the shoreline or Control Elevation A (approximately the 31-foot contour line) and that DEP's facilities at the State Park might have been built in part on jurisdictional wetlands. Similarly, Petitioner introduced several generalized topographic and soils maps intended to prove that there are no wetlands on Petitioner's property, or perhaps that Petitioner's property is identical to the Grant and Thurman lots and the State Park property. But these generalized maps were insufficient to prove Petitioner's contentions. The maps themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain them (except the testimony of Shuey, who refused to agree with all of Petitioner's contentions). Petitioner contended that DEP used one of the topographic maps to support a favorable wetlands delineation in its application to SWFWMD for a permit for the facilities at the State Park. But it actually appears that the map was only used as a location map. Proposed Single-Family Dock Neither party introduced into evidence either Petitioner's consolidated ERP/consent of use application or DEP's RAI. As a result, it cannot be determined from the evidence precisely what Petitioner has proposed or what additional documentation DEP requested. No cross-sections or plan views of the proposed project were in evidence. The only document submitted into evidence by Petitioner to illustrate his proposed dock structure was a partial copy of Petitioner's correspondence to DEP dated May 21, 2001. The letter referred to four attached drawings, but only one was attached to Petitioner's Exhibit 3B. The drawing included in the exhibit was not drawn "to-scale." In addition, it is unclear from the drawing whether the 160 square foot "terminal platform" included the four-foot walkway adjacent to the platform. As Petitioner suggested, the square footage of the terminal platform could be clarified in a final order. A more serious matter is the dock alignment. When the proposed dock is superimposed on DEP's drawing showing the existing knot grass beds adjacent to Petitioner's property, the proposed dock appears to cross and terminate over an area that is either an RPA 1 (knot grass beds "of the highest quality and condition for that area") or an RPA 2 (an area where the knot grass is "in transition with either declining resource protection area 1 resources or new pioneering resources within resource protection area 3"). See Florida Administrative Code Rule 18-20.003(54)-(55) for definitions of RPA 1 and RPA 2. Petitioner contended that his proposed dock alignment actually crosses and terminates over an area "characterized by the absence of any significant natural resource attributes" so as to be neither an RPA 1 nor an RPA 2, but rather an RPA 3. See Florida Administrative Code Rule 18-20.003(56) for definition of RPA 3. There was evidence of some hydrilla (an aquatic plant not considered "significant" but rather a harmful, invasive, exotic nuisance plant) in the vicinity of his proposed dock alignment between the water's edge and the knot grass beds, but Petitioner's evidence did not prove that the knot grass in the vicinity of Petitioner's proposed dock alignment is not continuous--i.e., that there is a clear path or channel between two separate beds of knot grass; to the contrary, the evidence was that the knot grass bed in the river adjacent to Petitioner's property is one continuous bed, mostly RPA 1 and some RPA 2. In addition, the evidence was that at least some of the area of declining knot grass in the vicinity of Petitioner's proposed dock alignment was thicker, more vigorous, and of better quality in the not-too-distant past. It is not clear from the evidence when it was thinned out. In addition, citing Joint Prehearing Statement of Undisputed Facts 29 and 30, Petitioner contended that his dock application fell victim to an invalid DEP policy that all resources in an aquatic preserve are "significant" so as to be either RPA 1 or RPA 2. The evidence failed to prove that DEP has such a policy. Indeed, Joint Prehearing Statement of Undisputed Facts 29 and 30 are to the contrary. While there may be room for Petitioner to quarrel with the interpretation of the RPA 1 and RPA 2 definitions given by one of DEP's witnesses (Pete Slezinski, who thought that any area having native vegetation or animals would be either an RPA 1 or RPA 2), Petitioner did not dispute that knot grass beds have "significant natural resource attributes" so as to qualify as RPA 1 or RPA 2. Petitioner also contended that he was singled out for denial of his proposed dock--i.e., that his would be the first and only dock on the Rainbow River to be denied a permit. Other than some aerial photographs indicating that a neighbor's dock may terminate in the vicinity of a spring head, Petitioner introduced no evidence whatsoever about the circumstances of any dock on the river except for DEP canoe launch ramp, boathouse, and observation deck facilities at the Rainbow Springs State Park near the head of the Rainbow River. The aerial photographs were inconclusive as to how close the neighbor's dock was to the spring head. There also was no evidence as to whether the neighbor's dock was permitted under the DEP rules now in effect or, if so, any particulars of the neighbor's dock application. Petitioner introduced a great deal of evidence concerning the DEP facilities at the State Park upriver. There were numerous photographs, some before construction of the facilities and many more during and after construction. There also was testimony from Slezinski, who had raised questions about initial plans for construction of the facilities. But Slezinski testified to his understanding that steps were taken in response to his concerns so as not to place facilities over any RPA 1 or RPA 2. Viewing the photographs, he was unable to conclude, and it is not clear, that any facilities were in fact placed over any RPA 1 or RPA 2 at the State Park. Petitioner also contended that DEP's denial of his dock application is a punitive measure, not supported by the facts, to deny him water access to his property. As evidence, Petitioner cited DEP's preliminary evaluation contained in its letter dated May 9, 2001, which cited some general requirements for docks in an aquatic preserve but did not specify any of the special requirements for docks over RPA 1 and RPA 2. But the preliminary evaluation contained a proposed dock alignment obviously intended to avoid RPA 1 and RPA 2 to the extent possible. The preliminary evaluation suggested that DEP would grant a modified application (minus mooring piling) in the proposed alignment meeting all of the general requirements. Petitioner attempted to modify his application by letter dated May 21, 2001, to address the general requirements cited in the preliminary evaluation, but he declined DEP's suggested dock alignment. As a result, in considering the modified application, DEP was constrained to apply the special requirements for docks in an RPA 1 or RPA 2. Contrary to Petitioner's contentions, these actions by DEP did not prove any intent to punish Petitioner. Finally, Petitioner contended that certain special rules for docks over RPA 1 or RPA 2--namely, those requiring minimum spacing between deck planks and requiring decking to be elevated--should not be applied because the knot grass in the river adjacent to Petitioner's property is "emergent," i.e., it grows from the bottom to and above the surface of the river and, Petitioner contends, "does not need the same concessions to assure . . . light penetration for the continued survival of the plants." Besides being essentially a rule challenge, a matter addressed in the Conclusions of Law, Petitioner introduced no evidence of the facts he alleges in support of his contention. To the contrary, Petitioner called Slezinski on the subject, and Slezinski attempted to explain that, while knot grass is "emergent," much of the plant is below the water surface and provides the functions of submerged aquatic vegetation. It would follow, and Petitioner put on no evidence to disprove, that knot grass also would have some of the needs of submerged aquatic vegetation for light penetration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP a final order denying Petitioner's application for an ERP and Sovereign Lands Consent of Use for his proposed single-family dock and declining to rule on the jurisdictional wetlands delineation issue for lack of jurisdiction. Jurisdiction is reserved for ten days to rule on the pending motions, if necessary. DONE AND ENTERED this 17th day of May, 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 17th day of May, 2002.
The Issue The ultimate issue in this case is whether the South Florida Water Management District (SFWMD) should grant Environmental Resource Permit (ERP) Application No. 970509-10 for conceptual approval of a surface water management system serving a 167.9-acre commercial development in Broward County known as Pembroke Center and issue ERP No. 0600095-S-15 (Permit) to Arthur D. Weiss, Trustee (Weiss). The primary contested sub-issues involve the extent of use of offsite mitigation of the project's wetlands impacts through purchase of credits purchased from Florida Power and Light Company (FPL's) Everglades Mitigation Bank (EMB) 40 miles away in southern Dade County.
Findings Of Fact Some General Background on the Weiss Site The Weiss project site, which includes wetlands and open-water ditches, is located immediately east of Interstate Highway 75 in Broward County, south of Pines Boulevard, and north of the planned Pembroke Road fly-over of I-75. Before the drainage projects of the twentieth century, the Weiss site was a part of the Everglades having “ridge and slough" characteristics. The Atlantic Coastal Ridge extends along Florida's East Coast from Palm Beach County through Miami at a distance of some ten miles or so inland, then continues in a southwesterly direction, and ends in the vicinity of Homestead and Florida City. Before significant development of south Florida, the ridge acted as a dam to surface water flow, containing most of the interior waters of the Everglades. Lower elevations of the ridge, referred to as the “Transverse Glades,” allowed limited surface water to flow to the Atlantic Ocean, creating a southeasterly flow within the eastern portion of the Everglades. The "ridge and slough" provided a complex community structure, varying from the longest hydroperiod wetlands in the deepest sloughs to interspersed tree islands which provided habitat at or above the seasonal high water levels. In the deeper slough areas, vegetation would be predominantly floating and submerged. The deeper slough areas served to preserve aquatic organisms during periods of drought, allowing fish and other aquatic organisms to return to areas as they were re-hydrated. Progressing up the edges toward the ridge area, there would be emergent plants, such as Pontederia or pickerelweed, as well as some sawgrass. The ridges in the ridge and slough communities were primarily sawgrass. Before development, much of the ridge and slough communities was characterized by relatively long hydroperiods. Peat soils accumulated because the long hydroperiod inhibited aerobic respiration, resulting in an accumulation of partially decomposed organic matter/peat soils. Due to the peat soils, the sawgrass in the ridge and slough communities was relatively tall, thick, and lush. As drainage canals were constructed through these low-lying areas, the rate of drainage to the Atlantic Ocean increased, and the water regime changed. The South Broward Drainage District (SBDD) S-3 Basin was issued SFWMD Permit No. 06-00095-S on February 10, 1977, to construct a regional water management system to serve 5,500 acres of agricultural, recreational, residential, and undeveloped lands. SBDD's S-3 Basin includes an internal canal system and two 45,000 gallons per minute pumps discharging into C-9 canal. Both SFWMD's Western C-9 Basin and the Weiss site are within SBDD's S-3 Basin. An east-west SBDD canal approximately bisects the Weiss site. Also receiving water from Century Village, a development of some 9,000 town homes and condominiums, this canal leads to the SBDD's main north-south canal, which leads to the pump station approximately four miles to the south, which drains the entire S-3. East of the Weiss site has become very urbanized, with a nursery, a small office building, warehouses, shopping centers, Century Village, and the City of Miramar Sewage Treatment Plant. The land to the south of the site is undeveloped but is designated and zoned planned industrial. The Weiss project site subject to this permit proceeding is part of a larger Weiss parcel that received a permit in 1988 for construction and operation of a 375-acre cattle ranch. As a result of that permit, ditches and dikes were constructed to interconnect with the backbone surface water management system operated by the SBDD. The Weiss site now consists of these previous agricultural drainage ditches and flood control canals. The onsite wetlands have been degraded by drainage by these ditches and canals, by being actively mowed for cattle pasture, and by invasion of melaleuca, an undesirable invasive exotic species which dominates in the areas not regularly mowed for cattle pasture. Modification Application On May 9, 1997, R.J. Pines Corporation, on behalf of Weiss, submitted Application No. 970509-10 for modification of Permit No. 06-00095-S, to construct a surface water management system to serve 213 acres of residential and commercial development. SFWMD submitted Requests for Additional Information (RAIs) on June 6, 1997, February 6, 1998, February 27, 1998, May 1, 1998, April 15, 1999, June 16, 1999, April 14, 2000, August 24, 2000, October 6, 2000, and February 22, 2001. Responses to the RAI's were received on January 29, 1998, March 30, 1998, April 1, 1998, March 17, 1999, May 13, 1999, May 14, 1999, May 18, 1999, July 28, 2000, September 7, 2000, January 18, 2001, and March 2, 2001. During approximately four years of application review (including RAIs and responses), changes were made to the original application. The overall size of the project was decreased, and various mitigation options were explored. From early on in the process, offsite mitigation was proposed. Various possibilities for offsite mitigation were explored. Some were within SFWMD's Western C-9 Basin; others were outside but relatively close to the Western C-9 Basin. One 86-acre parcel within the Western C-9 Basin known as the "Capeletti" parcel was rejected for having a less-than-ideal operational entity (as well as for being costly); yet, the majority of the Capeletti parcel has been sold to private parties for mitigation projects, and 14 acres remain available for purchase for mitigation. Eventually, all offsite mitigation possibilities were rejected for various reasons except for one--FPL's Everglades Mitigation Bank (EMB), 40 miles to the south in southern Dade County. Ultimately, Weiss decided to purchase wetlands mitigation credits at the EMB for use as offsite mitigation. Different combinations of onsite mitigation and EMB credits were then proposed and considered. At the conclusion of this phase of the application process, the total size of the proposed project was reduced to 167.9 acres. Of the total project, approximately 149 acres were jurisdictional wetlands; the rest was open water ditches and canals. Ultimately, Weiss proposed to preserve and enhance 24.4 acres onsite as partial mitigation; the balance of the proposed mitigation consisted of 50.25 wetlands credits at FPL's EMB, which Weiss agreed to purchase from FPL. On April 25, 2001, SFWMD issued a notice of intent to issue the Staff Report recommending conceptual approval of the ultimately proposed surface water management system to serve the 167.9 acre commercial development known as Pembroke Center, Application No. 970509-10, ERP Permit No. 06-00095-S- 15. Existing Onsite Wetlands There are three classes of wetlands at the Weiss project site: sawgrass prairie; marsh wetlands; and remnant tree islands. The dominant wetland type is the sawgrass prairie. Sawgrass dominates in these areas, but some other wetland species like sedges and rushes and other grasses are mixed in. Marsh wetlands occur in places where elevations are somewhat (just inches) lower. Here are found wetland marsh species such as pickerelweed, duck potato and possibly spike rush (Eleocharis species). Small bay trees exist on the remnant tree islands, as well as wax myrtle. The soils on the Weiss site have retained their hydric characteristics; muck soils exist throughout the site. The soils have enough muck to stay saturated and allow wetland vegetation to grow on the site. But the site has been impacted by drainage and use as a cattle pasture. The vegetation is impacted to varying degrees by cattle grazing. The more highly-disturbed portions of the site, such as those adjacent to ditches, contain dense stands of melaleuca. Were it not for grazing and regular mowing, melaleuca would spread and probably out-compete the wetland vegetation. While it once had a long hydroperiod, the Weiss property's hydroperiod is currently diminished. The depth of the hydroperiod has been most significantly altered by the pump stations operated by SBDD. Today, the depth and duration of the hydroperiod on the Weiss site has been diminished. Proposed Onsite Mitigation Weiss's proposed onsite mitigation consists of preservation and enhancement of 24.4 acres of wetlands. Muck and peat topsoil will be removed, lower soils will be excavated to achieve optimal elevations, and the topsoil will be replaced. By generally lowering elevations, a regular and deeper hydroperiod will be achieved; by choosing different elevations, different types of wetland habitats (cypress stands, marsh, and tree islands) will be produced; by replacing the topsoil, wetland plant species will be able to grow and thrive in the mitigation area. Exotic plants will be removed and minimized through ongoing management of the mitigation area. Water quality will improve when the cows are removed. EMB The EMB is a 13,455-acre wetland preservation, enhancement and restoration project consisting of herbaceous freshwater wetlands with tree islands, saltwater marsh with tree islands, mangrove wetlands with tree islands, and riverine depressional ecological communities. The EMB was undertaken to provide mitigation to offset adverse impacts to wetlands and other surface waters, and is being undertaken in phases. Phase I of the EMB consists of 4,212 acres of the overall project. FPL’s EMB has been permitted under Section 373.4136, Florida Statutes, with a mitigation service area for non- linear projects covering Miami-Dade, Broward, and the southern portion of Palm Beach County south of Southern Boulevard. The Florida Department of Environmental Protection (DEP) issued permits numbered 132622449 and 132637449 in 1996 authorizing the establishment, construction, and operation of the EMB. The U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, and U.S. Fish and Wildlife Service issued a mitigation banking instrument authorizing the establishment, construction, and operation of the EMB in 1998. The U.S. Army Corps of Engineers also issued Permit No. 199500155(IP-GS) authorizing the EMB. The EMB is in full compliance with these state and federal permits and the federal mitigation banking instrument. The EMB has 50.25 mitigation credits available on its mitigation bank ledger to be used to offset wetland impacts on the Weiss property. The 50.25 credits equate to approximately 500 acres of EMB sawgrass, marsh, and tree islands. The EMB Phase 1 is part of the marl prairie of the Southeastern Saline Everglades. The characteristics of Phase 1 of the EMB have not changed substantially from its historic condition. (The EMB's original hydroperiod would have been somewhat longer, but efforts are being made to lengthen the hydroperiod as part of the EMB mitigation project.) The EMB Phase 1 is characterized by sawgrass- dominated marl soils, interspersed with depressional areas where peat soils typically occur. Plants in the marl areas are dominated primarily by sawgrass that is relatively short and sparse compared to a "ridge and slough" area, with other emergent and occasional floating plants in low ponded areas, and thicker sawgrass and tree islands in the areas of peat soils in low areas. The predominance of marl in the EMB results from a historical hydroperiod (generally between one and a half and five months) that is shorter than in a "ridge and slough." The shorter hydroperiod prevents the formation of peat soils through exposure to the air, allowing bacteria to break down the organic matter that is typical of peat soils. Marl forms on the soil when photosynthesis of algae during daylight hours pulls carbon dioxide out of the water and raises the water's pH to the point where calcium carbonate starts to come out of solution. Compared to the structurally more complex peat-based wetland community of the "ridge and slough," the marl prairie of the EMB Phase 1 is a relatively simple community. The ridge and slough community's areas of deep water, marshes, and uplands supported a variety of aquatic organisms and wildlife in a manner that is distinct from that provided in the marl prairie of the EMB Phase 1. Marl prairie is not as conducive to rookeries as ridge and slough communities because the tree islands in marl prairies afford less protection from predation than is characteristic of the ridge and slough communities. Despite these differences, the wetlands in the EMB are similar in many ways to the historic wetlands on the Weiss property. In addition, due to its size and location in relation to other undeveloped land, the EMB retains characteristics that appear to have been lost to the Weiss property, which is relatively isolated by surrounding development and urbanization. The EMB is surrounded by public lands acquired for conservation and preservation including the Biscayne National Park, Everglades National Park, and the District's Southern Glades property. The EMB provides valuable habitat for a number of threatened or endangered species. The EMB also provides foraging, resting, and roosting opportunities for numerous wading birds including little blue herons, snowy egrets, white ibis, great blue herons, and great egrets. Because of the way it provides base flow and detrital export to Biscayne Bay, its connection and relationship to surrounding publicly-owned lands, and its integration into the Everglades Restoration Project, the EMB significantly contributes to a regional integrated ecological network. For example, the EMB can assist other key resources such as the Everglades National Park and provide habitat to some larger top-order consumers that historically also would have used the Weiss property--such as deer, bobcats, panthers, and even bear--something onsite mitigation cannot do. Application of SFWMD Policies and Interpretations Wetland protection is one of three major components of the ERP Program. The intent of the wetlands protection criteria in the ERP Program is to ensure no net loss of wetland function. In other words, SFWMD determines what functions are provided by the wetlands to be developed, which wetland-dependent wildlife benefits from those functions; then taking any proposed mitigation into consideration, SFWMD attempts to ensure that those functions are not diminished. Reduction and Elimination of Wetlands Impacts SFWMD's BOR 4.2.1. provides that design modifications to reduce or eliminate adverse impacts must be explored. After implementation of practicable design modifications, any adverse impacts must be offset by mitigation. In this case, Weiss ultimately proposed to preserve and enhance 24.4 acres of onsite wetlands. This was a modification of earlier proposals for 11 acres of onsite mitigation and then for all offsite mitigation. The evidence did not prove that there were no other practicable design modifications to reduce impacts to wetland functions. However, SFWMD does not necessarily require that all wetland impacts be reduced or eliminated when wetlands are of low quality and the proposed mitigation will provide greater long-term ecological value than the area of wetland to be adversely affected. See BOR 4.2.1.2(a). BOR 4.2.2.3 balances five factors to determine the functional value of wetlands: condition; hydrologic connection; uniqueness; location; and fish and wildlife utilization. The condition of the Weiss site's wetlands is low because past alterations in hydrology have been deleterious. Due to the ditches and canals, not much water quality treatment of the site's runoff occurs onsite. In addition, the Weiss site contains exotic vegetation, which would overrun the wetlands without regular mowing. Even the County's experts agree that the condition is at the high end of low. In evaluating hydrologic connection, SFWMD considers the following parameters: (1) benefits to offsite water resources through detrital export; (2) base flow maintenance; (3) water quality enhancement; and (4) nursery habitat. The Weiss property does not have much opportunity for detrital export, as it is not a saltwater system. The site does not maintain base flow, which is controlled by SBDD's pump station. Since little onsite water quality treatment occurs, neither onsite nor offsite water quality is enhanced; to the contrary, use of the wetlands as cow pasture would tend to reduce water quality both onsite and offsite. (Much greater reductions would be expected if the property were being used as a feed lot instead of for pasture.) There is not much opportunity for nursery habitat. In consideration of these parameters, the hydrologic connection is at least low; and some of the parameters are negative. The County contends that the ditches and canals on the Weiss site provide nursery habitat and serve as refugia for aquatic species in times of drought. However, the ditches and canals themselves are not jurisdictional wetlands. There are some depressions in the wetlands that might stay wet during some drought conditions, but the evidence did not suggest that these areas would serve as significant nursery habitat or refugia. SFWMD measures the uniqueness of wetlands by determining whether the wetland type is underrepresented in the basin or watershed--in other words, the relative rarity of the wetlands. The Weiss wetlands are not unique because drained wetlands converted to a cow pasture are not underrepresented in Broward County. While noting that cow pasture is decreasing in Broward County, even the County's expert agreed that the Weiss wetlands are not unique. As the County points out, the Weiss wetlands have some opportunity to interact with the other water resources in this basin, particularly the other mitigation sites. The County owns conservation easements on mitigation sites in the vicinity and has attempted to work with SFWMD and developers to group mitigation projects near each other to achieve greater benefits. Nonetheless, the opportunity for interaction is limited due to the surrounding development, which includes Interstate Highway 75 and other barriers to land animals. As a result, the parties agree that the location is in the low-to-moderate range. Fish and wildlife utilization of the Weiss wetlands is low. A wetland typically provides the following functions or benefits to wildlife: resting; feeding; breeding; and nesting or denning, particularly by listed species. Due to reduced hydrology and the presence of exotic species, the Weiss wetlands cannot provide this entire suite of functions; instead, it only provides resting and limited foraging for wading birds. SFWMD's determination as to fish and wildlife utilization of the site was based on personal site visits by SFWMD staff and in-house knowledge of the Western C-9 Basin. During the site visits, wading birds were not seen foraging onsite, and there was little evidence of successful foraging or actual use of the Weiss site by wading birds. Even if wading birds attempted to use the site for foraging and were successful to an extent, no witnesses testified to abundant food sources. Most saw no crayfish, a good food source, or any signs of crayfish, such as "chimneys" of tunnels leading into the water table. Several witnesses questioned whether there was enough relatively soft soil over many portions of the site to allow for tunnels into the water table. One Broward County witness testified to seeing limited evidence of crayfish at the site. But overall the evidence was persuasive that the site probably does not have enough food to make it worthwhile foraging for large numbers of birds. Ironically, most foraging on the site would be expected to occur in ditches not actually part of the jurisdictional wetlands. The evidence suggested that relatively little foraging would be expected to occur in the wetlands themselves. In addition, the wetlands would be less suitable for foraging if the cattle pastures were not grazed and mowed on a regular basis. Broward County criticizes SFWMD for not conducting lengthy wildlife surveys and for not visiting the site during the dry season when wading birds might be more likely to use the site for foraging. But SFWMD's review for fish and wildlife utilization on the Weiss site was consistent with the customary review conducted in nearly all ERP applications. A wildlife survey was not necessary to analyze the fish and wildlife utilization of the Weiss wetlands. It should be noted that SFWMD does not use the Wetland Rapid Assessment Procedure (WRAP), the Wetland Benefit Index (WBI), or the Wetland Quality Index (WQI) indices to determine the functional value of wetlands. There was some evidence that the overall quality of the Weiss wetlands could have been rated as high as moderate using some of these methods. But these methods do not necessarily attempt to make the same determination required under BOR 4.2.2.3. In addition, while these methods purport to objectively quantify wetlands evaluations, the evidence was that they are not easily understood or uniformly applied; as a result, they do not eliminate subjectivity and possible manipulation. Giving deference to SFWMD's interpretation of the parameters of BOR 4.2.2.3, it is found that SFWMD correctly assessed the function of the Weiss wetlands as being low. The proposed onsite mitigation clearly would improve the ecological value of the currently low-functioning wetlands on those 24.4 acres. In particular, better foraging opportunities for wading birds as well as other wetland- dependent species will be made available there for a greater portion of the year. However, the evidence also was clear that preservation and enhancement of the 24.4 acres would not replace the wetland function of the entire 149 acres of impacted wetlands. The proposed offsite mitigation through purchase of 50.25 credits at the EMB will be an additional improvement in ecological value over the existing wetlands on the Weiss site. The EMB is managed for exotic species control, has a greater opportunity for wildlife utilization, and has offsite hydrologic connections, both in receiving waters and downstream. Taken together, the proposed onsite and offsite mitigation would be an improvement in ecological value from the current, low-functioning wetlands on the Weiss site. Offsite Mitigation Provides Greater Improvement In Long-Term Ecological Value Than Onsite Mitigation (BOR 4.3.1.2) Due to its location, size, and prospects of effective long-term management, mitigation at the EMB probably has higher likelihood of success than mitigation on the Weiss site. But the evidence was clear that onsite mitigation also has good likelihood of success, comparable to mitigation at the EMB. Onsite mitigation will provide better forage habitat for some of the wading birds than the Weiss wetlands do today, but it is limited by size and location and will never be able to provide all of the functions that the Weiss wetland provided historically. It will provide some forage habitat for wading birds, but not for some of the larger consumers that historically used the site, such as deer, bobcats, panther and bear. No matter how perfect onsite mitigation is, its function still is limited. By comparison, mitigation at the EMB has greater opportunity for improvement and ecological value than mitigation at the Weiss site. The EMB is connected to other water resources, and it is not limited by lack of size or location. For this reason, the purchase of 50.25 credits at EMB has an opportunity to result in greater improvement in ecological value than just onsite mitigation. Unacceptable Cumulative Impacts (BOR 4.2.8) In this case, Robert Robbins conducted SFWMD's cumulative impacts analysis; Weiss and FPL relied on Robbins's analysis. In conducting his analysis, Robbins relied on his knowledge of the Western C-9 Basin, his staff's knowledge of the Basin, aerial pictures of the Western C-9 Basin, and County Exhibits 97 and 98. Robbins also interpreted and applied SFWMD's statutes, rules, and BOR 4.2.8. His interpretations were guided by the "Cumulative Impacts White Paper" ("White Paper"), a memorandum authored by representatives of Florida’s Water Management Districts, including Robbins. Since other rules and regulations require that all wetland impacts be fully mitigated, the cumulative impact analysis only applies when an applicant proposes mitigation outside of a drainage basin. In the context of impacts to wetland functions, SFWMD's cumulative impacts analysis presumes that a particular basin (in this case the Western C-9 Basin) can only tolerate so much loss of wetland function before there is a significant adverse impact on the basin overall; if cumulative impacts reach that point, they are considered unacceptable. The "White Paper" analogizes such a cumulative impact to "the straw that breaks the camel's back." If cumulative impacts of a proposed project would be unacceptable, they would have to be reduced so that impacts would be equitably distributed among the applicant and prospective developers, and there would not be a significant adverse or unacceptable cumulative impact when the basin is fully developed. The cumulative impact analysis presumes that development will continue to the extent that land use and planning and zoning allow such development to continue. It also presumes that how SFWMD permits a development today will set the precedent for like applicants in the future. SFWMD's cumulative impacts analysis does not focus on how much wetland acreage is leaving the basin; rather, it is concerned with the wetland functions that are being lost. In this case, the only functions being lost at the Weiss site are opportunities for resting and limited foraging for wading birds. Neither the statutes, rules, BOR 4.2.8., nor the White Paper further defines unacceptable or significant adverse cumulative impact on wetland functions. Robbins interpreted the terms in the context of this case as being a cumulative impact that would place the wading bird population in a basin in jeopardy of collapse. Collapse would occur when the population no longer is sustainable. Collapse could lead to extirpation of the population from the Basin. In this case, 124.9 acres of low-functioning wetlands will be impacted, and 24.4 acres of higher- functioning mitigation will remain in the basin. The evidence was that the 24.4 of higher-functioning mitigation onsite would not offset all of the feeding and resting functions lost to the Western C-9 Basin by 124.9 acres of impacts. But Robbins expressed the opinion that there would not be a significant adverse impact to the wading bird population which relies on the feeding and resting functions within the Western C-9 Basin if the relatively few remaining wetlands in the Western C-9 Basin are developed in a fashion similar to the Weiss proposal because the wading bird population that utilizes the basin would not be placed in jeopardy. However, the evidence was clear that Robbins viewed 25% in-basin mitigation as the minimum required to avoid unacceptable cumulative impacts and that Robbins based his opinion on an assumption that, under Weiss's mitigation proposal, 25% of the total wetland mitigation required to offset impacts to wetland functions would remain within the Western C-9 Basin. But the evidence also is clear that Robbins's assumption was incorrect. Robbins began to explain his assumption by referencing an earlier proposal by Weiss to mitigate entirely offsite through purchase of 67 credits at the EMB. Robbins testified that he accepted 67 EMB credits as enough to offset wetland impacts. However, in applying his cumulative impacts analysis, Robbins rejected the proposal for all mitigation to be offsite at the EMB; instead, Robbins and SFWMD decided to let Weiss use 75% of the 67 EMB credits but required the balance of the "credit-equivalents" of mitigation to occur onsite. Eventually, Weiss made the proposal eventually accepted by Robbins and SFWMD: 149 acres of impact; 24.4 acres of mitigation onsite; and 50.25 credits of mitigation at the EMB. In further explanation, Robbins later responded to the following questions: THE COURT: So the 24 acres of on-site you said that is equivalent of about 48 credits? THE WITNESS: No, 12. The on-site is the ecological value of about half a credit, so it takes twice as much on-site mitigation to offset one acre of impact as it would take in the bank. THE COURT: So 12 of the 67 leaving 55? THE WITNESS: No, that mixes up apples and oranges. If I can back up, from the starting point of 67 credits that were being proposed, and I said 75 percent of that they could do, 75 percent of 67 is 50.25 credits and that's where the 50.25 comes from and that offsets about 100 acres of impact and that leaves about 24 and half acres of impact to be mitigated and that is the 24.4 acres on-site. (TR454, L25 – TR455, L21 [Robbins]). As the County states in its PRO, Robbins himself "was mixing apples and oranges, by switching between credits and acres, and by subtracting the product of one denominator (75 percent of 67 credits) from a smaller denominator (62.45 credits), he apparently assumed that the resulting product (24.4 acres [or 12.2 credits]) was 25 percent of the denominator (124.9 acres), when it was only 19.5 percent." (County's PRO, p. 8) While the County's math terminology may not be correct, it does appear that Robbins indeed "mixed apples and oranges" by confusing two earlier Weiss mitigation proposals. An earlier SFWMD RAI, dated June 16, 1999, referenced an "overall requirement for 67 credits of wetland mitigation for the 135 acres of proposed wetland impact." Weiss's subsequent application amendment dated March 2, 2001, stated that the wetlands impact would be 124.9 acres, and that the total mitigation credits for the project would be 62.45 mitigation credits. (Exh. 2G, p. 2; Exh. 3L, p. 2). In his analysis, Robbins appear to have taken the number of mitigation credits from the first proposal and the acreage of wetland impacts from second. Under both the proposal referenced in the SFWMD RAI, dated June 16, 1999, and Weiss's subsequent application amendment dated March 2, 2001, EMB mitigation credits were assigned to the wetland impacts of the project on a 0.5:1 ratio; in other words, one EMB credit (which represented ten acres of the EMB Phase 1) offsets the impacts of two acres of wetlands lost through impact. As a result, 50.25 EMB credits offset 100.5 acres of wetlands lost through impact. In addition, each acre of onsite mitigation counted as half an EMB credit and would offset one acre of wetlands lost through impact. As a result, the 24.4 acres of onsite mitigation was the equivalent of 12.2 EMB credits of mitigation and offset 24.4 acres of wetlands lost through impact. As the County asserts, using these numbers, whether credits of impact and offset or acres of impact and offset are compared, only 19.5% of the proposed mitigation appears to be occurring onsite and in-basin. Expressed another way, 62.45 EMB credit equivalents was found by Robbins to be necessary to offset impacts to wetland functions from the Weiss project. To achieve the 25% in-basin mitigation found by Robbins to be the minimum, 15.61 EMB credit equivalents would have to remain in-basin, according to Robbins. Yet under the Weiss's current proposal, only 12.2 EMB credit equivalents remain in-basin (in this case, onsite). To meet the minimum requirement testified to by Robbins, Weiss would have to increase onsite mitigation by approximately 6.8 acres or otherwise increase in-basin mitigation. It should be noted in this regard that the "White Paper" would count as in-basin mitigation "outside the impact basin, but close enough to the impact basin that certain functions 'spill over' and offset impacts in the impact basin to an acceptable level." The County also disputed Robbins's opinion that 25% in-basin mitigation was the minimum required to avoid unacceptable cumulative impacts. The County contended that the percentage of in-basin mitigation would have to be much higher to avoid unacceptable cumulative impacts, at least 50%. In part, the County based its position on the regulatory history in the Western C-9 Basin. The evidence was that approximately 33% of project wetlands remained after development in the County's portion of the Western C-9 Basin and that approximately 85% of the wetland functions remained onsite after mitigation. Robbins explained adequately why 25% in-basin mitigation is enough under current circumstances. The Western C-9 Basin is now largely urbanized and developed with limited potential for new development. The Basin has approximately 4,500-5,000 acres of already preserved, relatively highly functioning wetlands. There remains approximately 250 to 450 (worst case scenario) acres of somewhat degraded wetlands that are yet to be developed. Robbins testimony is accepted that, if at least 25% of mitigation for wetland impacts from future development remains in the Western C-9, adverse cumulative impacts can be avoided. The County also questions the assumption that all 4,500-5,000 acres of relatively highly functioning wetlands in the Western C-9 Basin will be preserved to provide for resting and foraging for wading birds. In support of its position, the County presented evidence that consideration is being given to using the Buffer Strip to the east of U.S. Highway 27 for conveyance and using the Water Preserve Area (WPA) to the west of U.S. Highway 27 for impounding and stacking water up to four feet high for water management purposes, without regard for wildlife or wetland functions. However, Robbins believes, logically, that even if the decision-making authorities (SFWMD, DEP, and the United States Army Corps of Engineers) were inclined to use wetlands to impound water for storage purposes, they would try not to sacrifice highly- functioning wetlands for this purpose, if at all possible. He pointed out that, also militating against use of highly- functioning wetlands in such a way, the relatively high east- to-west transmissivity of groundwater in western Broward County would limit the amount of water that could be "stacked" in the area for any significant length of time. He pointed out that some wetlands in western Broward County have been rejected for use to impound and store water for these reasons. Robbins thinks it is more likely that the Buffer Strip and a good part of the WPA will be restored to marsh-type wetlands and that highly-functioning wetlands will be preserved. Robbins also assumed that, even if highly- functioning wetlands in the WPA were used to impound water, the decision-making authorities would have to obtain a permit from SFWMD, which would require mitigation for impacts to wetlands and require at least 25% of the mitigation to remain in the Western C-9 Basin. As a practical matter, Robbins questioned the feasibility of meeting such a requirement. Finally, the County questions Robbins's definition of unacceptable cumulative impacts. Based on the testimony of several of its witnesses, the County took the position that it is imprudent and risky to set the threshold of unacceptable cumulative impacts at the point where the wading bird population that utilizes the Western C-9 Basin would be placed in jeopardy of collapse. Indeed, such a high threshold is not without risk. The County urges a lower threshold--namely, the point where the ability of the local wildlife population to maintain its current population would be negatively impacted. But such a low threshold would have the effect of allowing practically no cumulative impacts. It is found that, under these circumstances, deference should be given to Robbins's interpretation. His interpretation was reasonable, and none of the County's witnesses had anywhere near Robbins's experience and expertise in interpreting SFWMD's rules and BOR provisions. Secondary Impacts (BOR 4.2.7) Almost the entire Weiss site (except for the proposed onsite mitigation area) will be directly impacted. There is little opportunity for secondary impacts. Construction methodologies for the proposed project do not have an opportunity to cause any secondary impacts to wetland functions. In any event, Weiss will construct a minimum 15-foot, average 25-foot, wide buffer around the proposed onsite wetlands mitigation area to protect wetland functions there. To ensure no adverse impacts to wetland functions after construction, the buffer will be planted with tree species to provide a buffer between the onsite mitigation and the future proposed development. The Weiss project site has only 19 acres that are "nonwetlands." Those are mainly deepwater canals, not uplands. None of the 19 acres are used by wetland-dependant species for nesting or denning. The only archeological site on the Weiss project site is a small one along I-75, and it is being preserved. SFWMD's Staff Report is for a conceptual ERP which covers the entire project site. There will not be additional phases of development. In addition, a conservation easement will ensure against the expansion or phases encroaching into the preserved wetland areas. The evidence was that there will be no adverse secondary impacts from the Weiss project. There was no evidence to the contrary. Public Interest Test (BOR 4.2.3) Prongs (a), (c), and (d) of the "public interest test" (dealing with adverse effects on the public health, safety or welfare or the property of others, navigation, and fishing, recreational values or marine activities) do not apply in this case. Prong (b) of the public interest test deals with the wetland functions relative to fish and wildlife. Due to the mitigation proposed in this case, there will not be a net adverse impact to fish and wildlife or listed species. As found as part of the cumulative impacts analysis, the relatively low functions of the Weiss wetlands are being improved and offset with a combination of onsite and offsite mitigation. Except as to cumulative impact to the basin, the Weiss project will not result in a net adverse impact to fish and wildlife or listed species. Prong (e) considers whether the regulated activity will be of a temporary or permanent nature. The permit at issue in this case is a conceptual approval only and does not authorize any construction. However, it is anticipated that any future construction would be of a permanent nature. Prong (f) considers adverse effects on historical or archeological resources. As indicated under secondary impacts, the only archeological site on the Weiss project site is a small one along I-75, and it is being preserved. Prong (g) considers the current condition and relative value of functions being performed by the areas affected by impacts. As found as part of the cumulative impacts analysis, the relatively low functions of the Weiss wetlands are being improved and offset with a combination of onsite and offsite mitigation. Except as to cumulative impact to the basin, the Weiss project will not result in a net adverse affect in those functions. Standing of Broward County and FPL The evidence was that, in part as a result of the County's work with SFWMD and developers over the years, mitigation projects in Broward County have been grouped so as to coordinate and achieve greater benefits. Collocation and proximity of mitigation areas makes the whole of them function better than the sum of their parts through coordination and interactive effect. Collocation and proximity of mitigation areas helps the mitigation areas to be more easily recognized and utilized by wading birds. Weiss's use of EMB credits for over 75% of the total required mitigation affects the County's substantial interest in the effectiveness of mitigation areas in the County. There also was evidence that mitigation areas within Broward County provide benefits to the citizens of Broward County in terms of improved environmental quality, water quality, wildlife, and quality of life. But as explained in the Conclusions of Law, the County's standing cannot be based on that evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order denying Application No. 970509-10 for modification of Permit No. 06-00095-S, as amended to date. DONE AND ENTERED this 27th day of August, 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 27th day of August, 2002. COPIES FURNISHED: Paul Sexton, Esquire Williams, Wilson & Sexton 215 South Monroe Street Suite 600-A Tallahassee, Florida 32301-1804 Melvin Wilson, Esquire Williams, Wilson & Sexton 110 East Broward Boulevard Suite 1700 Fort Lauderdale, Florida 33301-3503 William L. Hyde, Esquire Ausley & McMullen 227 South Calhoun Street Tallahassee, Florida 32301-1805 William S. Spencer, Esquire Gunster, Yoakley & Stewart, P.A. 500 East Broward Boulevard Suite 1400 Fort Lauderdale, Florida 33394-3076 Frank E. Matthews, Esquire Eric Olsen, Esquire Hopping, Green & Sams 123 South Calhoun Street Tallahassee, Florida 32301-1517 Luna Ergas Phillips, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
