The Issue The issues are whether to (a) issue an Environmental Resource Permit (ERP) to the Department of Transportation (DOT) and Martin County (County) authorizing construction and operation of a surface water management system to serve a project known as the Indian Street Bridge; (b) issue DOT a letter of modification of ERP No. 43-00785-S authorizing roadway and drainage modifications to the Kanner Highway/Indian Street intersection; and (c) issue DOT a letter of modification of ERP No. 43-01229-P authorizing roadway and drainage modifications to Indian Street between the intersections of Kanner Highway and Willoughby Boulevard.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Citizens for Smart Growth, Inc., is a Florida 501(c)(3) corporation with its principal place of business in Palm City, Florida. It was formed by Odias Smith in August 2001, who serves as its president. The original directors were Kathie Smith, Odias Smith, and Craig Smith, who is the Smiths' son. The composition of the Board has never changed. According to the original Articles of Incorporation, its objectives are "preserving and enhancing the present advantages of living in Martin County (Quality of Life) for the common good, through public education, and the encouragement of reasonable and considered decision making by full disclosure of impacts and alternatives for the most appropriate use of land, water and resources." The exact number of members fluctuates from time to time. There are no dues paid by any member. At his deposition, Mr. Smith stated that no membership list exists; however, Kathie Smith stated that she currently has a list of 125 names, consisting of persons who at one time or another have made a contribution, have attended a meeting, or asked to be "kept informed of what's going on or asked to be on a mailing list or a telephone list, so they could be advised when we have meetings." No meetings have been held since 2006. Therefore, the Petitions filed in these cases have never been discussed at any meetings of the members, although Ms. Smith indicated that telephone discussions periodically occur with various individuals. Kathie Smith believes that roughly 25 percent of the members reside in a mobile home park north of the project site on Kanner Highway on the eastern side of the St. Lucie River, she does not know how many members reside on the western side of the St. Lucie River, and she is unaware of any member who resides on the South Fork of the St. Lucie River immediately adjacent to the project. Although the three Petitions allege that "seventy percent of the members . . . reside and/or recreate on the St. Lucie River," and in greater detail they allege how those members use that water body or depend on it for their livelihood, no evidence was submitted to support these allegations that 70 percent (or any other percentage of members) use or depend on the South Fork of the St. Lucie River for recreational or other activities. Petitioners Odias Smith and Cathie Smith reside in Palm City, an unincorporated community just south of Stuart in Martin County. They have opposed the construction of the new bridge since they moved to Palm City in 2001. It is fair to infer that Mr. Smith formed the corporation primarily for the purpose of opposing the bridge. Their home faces north, overlooking the South Fork of the St. Lucie River, from which it is separated by Saint Lucie Shores Drive and a narrow strip of common-ownership property. A boat dock extends from the common-ownership property into the St. Lucie River, providing 5 slips for use by the Smiths and other co-owners. The home is located three blocks or approximately 1,000 feet from the proposed western landfall of the new bridge. Due to the direction that the house faces (north) and the site of the new bridge, the surface water management system elements associated with the bridge will not be visible from their property. Mr. Smith believes, however, that when looking south through a veranda window on the second floor of his home, he will be able to see at least a part of the new bridge. From the front of their house, they now have an unobstructed view of the existing Palm City Bridge, a large structure that crosses the St. Lucie River approximately six- tenths of a mile north of their home, and which is similar in size to the new bridge now being proposed by the Applicants. The Smiths' home is more than 500 feet from the Project's right- of-way, and they do not know of any impact on its value caused by the Project. While the Smiths currently engage in walking, boating, running, fishing, and watching wildlife in the neighborhood or the South Fork of the St. Lucie River, there was no credible evidence that the Project would prevent them from doing so after the bridge and other improvements are constructed. Also, there was no evidence showing that the ERP Letter Modifications will cause them to suffer any adverse impacts. In fact, as noted below, by DOT undertaking the Project, the neighborhood will be improved through reduced flooding, improved water quality, and new swales and ponds. The County is a political subdivision of the State. It filed one of the applications at issue in this proceeding. DOT is an agency of the State and filed the three applications being contested. The District has the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Part IV, Chapter 373, Florida Statutes, and Title 40E of the Florida Administrative Code. The Department of Environment Protection (DEP) has delegated certain authority to the District, including the authority to authorize an applicant to use sovereign submerged lands via a public easement within the District's geographic jurisdiction. The Project Construction of a new bridge over the St. Lucie River has been studied extensively by the Applicants for over twenty years. DOT has awarded the contract and nearly all of the right-of-way has been purchased. The Project will begin as soon as the remaining permits are acquired. The Project is fully funded through the American Recovery and Reinvestment Act of 2009 and County funding. The Project is located in the County and includes 62.06 acres of roadway bridge development and 12.45 acres of sovereign submerged lands. The Project begins on the west side of the St. Lucie River on County Road 714, approximately 1,300 feet west of Mapp Road in Palm City and ends on the east side of the St. Lucie River approximately 1,400 feet east of Kanner Highway (State Road 76) on Indian Street. It includes construction and operation of a surface water management system to serve the road and bridge project. The total length of the Project is approximately 1.96 miles (1.38 miles of roadway and 0.58 miles of bridge) while the total area is approximately 74.51 acres. After treatment, surface water runoff will discharge to the tidal South Fork of the St. Lucie River. The Project encompasses a bridge crossing the South Fork of the St. Lucie River and the Okeechobee Waterway. Both are classified as Class III waters. The bridge transitions from 4 to 6 lanes east of the Okeechobee Waterway and will require a 55-foot vertical clearance and a 200-foot horizontal clearance between the fender systems at the Okeechobee Waterway. The bridge will cross over a portion of Kiplinger Island owned and preserved by the County. A part of the island was donated to the County in 1993-1994 by The Kiplinger Washington Editors, Inc., and the Kiplinger Foundation, Inc. Audubon of Martin County owns another part of the island. The transfer of title to the County does not include any restriction on the use of the island for conservation purposes only. Documentation submitted at hearing refers to a "two hundred foot wide road right-of-way" easement that the bridge will cross and allows the County to designate where on the island parcel such an easement would be. Therefore, spanning the bridge over a portion of the island owned by the County is clearly permissible. The Project also includes the roadway transition and widening/reconstruction of (a) County Road 714 from the beginning of the Project to Mapp Road from 2-lane to a 4-lane divided roadway; (b) Southwest 36th Street from Mapp Road to the beginning of the bridge from a 2-lane rural roadway to a 4-lane divided roadway with wide roadway swales; and (c) Kanner Highway (along Indian Street) from a 4-lane to a 6-lane divided urban roadway. Drainage improvements on both sides of the St. Lucie River are associated with the roadway construction. DOT proposes to provide both on-site and off-site mitigation for wetland and surface waters impacts pursuant to a mitigation plan approved by the District. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. Besides these rules, certain related BOR provisions which implement the rules must also be considered. The conditions for issuance primarily focus on water quality, water quantity, and environmental criteria and form the basis of the District's ERP permitting program. The parties have stipulated that the Project either complies with the following rule provisions or they are not applicable: Rules 40E-4.301(1)(a), (b), (g), (g), (h), and (k), and 40E- 4.302(1)(a)3. and 6. All other provisions remain at issue. Where conflicting evidence on these issues was submitted, the undersigned has resolved all evidentiary conflicts in favor of the Applicants and District. Based on the parties' Stipulation, the following provisions in Rule 40E-4.301(1) are in dispute and require an applicant to provide reasonable assurances that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any anti-degradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated; will not cause adverse secondary impacts to the water resources; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; These disputed criteria are discussed separately below. Surface Water Storage and Conveyance Rule 40E-4.301(1)(c) requires that an applicant provide reasonable assurances that a proposed activity will not cause adverse impacts to existing surface water storage and conveyance capabilities. Through unrefuted evidence, this requirement was shown to be satisfied. The evidence also establishes that the surface water in and around the Project will actually improve if the Project is constructed as permitted. Further, it will create improved and upgraded surface water management and treatment in areas that now lack features such as swales, retention/detention ponds, curbs and gutters, and improve the overall surface water storage and conveyance capabilities of the Project and surrounding areas. In its current pre-development condition, flooding has occurred in certain areas adjacent to and within the Project area due to poor conveyance, low storage volume, and high tailwater conditions that result from high tides. The Project will remedy historic flooding issues in the Old Palm City area which lies adjacent to a portion of the Project alignment. Surface water runoff will be captured, controlled, and treated by a system of swales, weirs, and retention/detention facilities for pretreatment prior to discharging into the South Fork of the St. Lucie River. Reasonable assurances have been given that existing surface water storage and conveyance capabilities will not be adversely affected. Value of Functions to Fish, Wildlife, and Species Rule 40E-4.301(1)(d) requires that an applicant provide reasonable assurances that a proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. BOR Section 4.2.2 further implements this provision. For the following reasons, the rule and BOR have been satisfied. The evidence shows that the existing functions to fish and wildlife were assessed and analyzed by a number of federal and state fish and wildlife agencies. There were extensive review and site inspections by the District, DOT, United States Fish and Wildlife Service, United States Army Corps of Engineers, and National Marine Fisheries Commission to assess the existence of, and potential impact on, fish and wildlife that may result from the Project. These studies revealed that while portions of the South Fork of the St. Lucie River provide potential habitat for aquatic or wetland-dependent or threatened species of special concern, no nesting or roosting areas within the vicinity of the Project were observed. The evidence further supports a finding that "other surface waters" over and under the Project will not receive unacceptable impacts due to their current condition, the detrimental influences of Lake Okeechobee discharges, and tidal impacts. Many of the wetlands to be impacted by the Project were shown to have been impacted by historic activities, and they provide diminished functions to fish and wildlife. The wetland functions were assessed through the Uniform Mitigation Assessment Methodology (UMAM). The UMAM is a standardized procedure for assessing the functions provided by wetlands and other surface waters, the amount that those functions would be reduced by a proposed project, and the amount of mitigation necessary to offset that loss. Detailed UMAM assessments were prepared by the Applicants and the District. They demonstrate that while certain functional units will be lost, they will be fully offset by the proposed mitigation. No credible evidence to the contrary was presented. Water Quality of Receiving Waters Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that a project will not adversely affect the quality of receiving waters such that State water quality standards will be violated. BOR Section 4.2.4 implements this rule and requires that "reasonable assurances regarding water quality must be provided for both the short term and long term, addressing the proposed construction, . . . [and] operation of the system." The receiving water body is the South Fork of the St. Lucie River, which is designated as an impaired water body. The evidence establishes that the Applicants will avoid and minimize potential short-term impacts to water quality by using silt screens and turbidity barriers, and implementing other best management practices to contain turbidity during construction of the Project. They will also use a temporary trestle rather than barges in the shallow portions of the South Fork to avoid stirring up bottom sediments. Finally, a turbidity monitoring plan will be implemented during construction and dewatering activities for all in-water work. All of these construction techniques will minimize potential impacts during construction. The evidence further establishes that water quality standards will not be violated as a result of the Project. In fact, in some cases water quality will be enhanced due to the installation and maintenance of new or upgraded surface water management features in areas where they do not exist or have fallen into disrepair. Over the long term, the Project is expected to have a beneficial effect on water quality. By improving existing surface water management and adding new surface water treatment features, the Project will provide net improvement to water quality. Wetland Delineation and Impacts The Project includes unavoidable impacts to wetlands and other surface waters. A total of 18.53 acres of wetlands and other surface waters within the Project site will be impacted by the Project, including 3.83 acres of wetlands that will be directly impacted and 14.7 acres of wetlands and other surface waters that will be secondarily impacted. The delineated wetlands are depicted in the Staff Report as wetlands 2a, 19a, 19b, 22, 25-29, 30a, 30b, and 30c, with each having a detailed UMAM assessment of its values and condition. (Impacts to wetland 25 are not included in this Project because they were accounted for in a separate permit proceeding.) Using a conservative assessment and set of assumptions, the District determined that, with the exception of wetlands 19a, 19b, 22, and 27, all wetlands would be impacted by the Project. However, the wetlands that would be impacted suffer from varying historical adverse impacts that have compromised the functions and values they provide to fish, wildlife, and species. This is due to their proximity to urban development, vegetative connectivity, size, historic impacts, altered hydroperiod, and invasive plant species. Likewise, even though the wetlands to be impacted on Kiplinger Island provide certain resting and feeding functions for birds, the value of these functions is comparatively lower than other wetlands due to the presence of invasive species and lack of management. The preponderance of the evidence supports a finding that the Applicants provided reasonable assurances that the Project will not cause adverse impacts to fish, wildlife, or listed species. See Fla. Admin. Code R. 40E-4.301(1)(d). Secondary Impacts Rule 40E-4.301(1)(f) and BOR Sections 4.1.1(f) and 4.2.7. require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources, both from a wetlands and water quality standpoint. Secondary impacts are those that occur outside the footprint of the project, but which are very closely linked and causally related to the activity to be permitted. De minimis or remotely-related secondary impacts, however, are not considered unacceptable. See § 4.2.7.(a). There will be secondary impacts to 6.83 acres of freshwater wetlands and 7.87 acres of mangroves, or a total of 14.7 acres. To address these secondary impacts, the Applicants have established extensive secondary impact zones and buffers along the Project alignment, which were based in part on District experience with other road projects and another nearby proposed bridge project in an area where a State Preserve is located. While Petitioners' expert contended that a 250-foot buffer on both sides of the roadway's 200-foot right-of-way was insufficient to address secondary impacts to birds (who the expert opines may fly into the bridge or moving vehicles), the greater weight of evidence shows that bird mortality can be avoided and mitigated through various measures incorporated into the Project. Further, the bird mortality studies used by the expert involved significantly different projects and designs, and in some cases involved projects outside the United States with different species concerned. Engineering and Scientific Principles Rule 40E-301(1)(i) requires that an applicant give reasonable assurance that a project "be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Unrefuted evidence establishes that the proposed system will function and be maintained as proposed. Financial, Legal and Administrative Capability Rule 40E-4.301(1)(j) requires that an applicant give reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms of the permit. The evidence supports a finding that Applicants have complied with this requirement. Elimination and Reduction of Impacts Before establishing a mitigation plan, Rule 40E- 4.301(3) requires that an applicant implement practicable design modifications to eliminate and reduce wetland and other surface water impacts. In this case, there are unavoidable, temporary wetland impacts associated with the construction of the Project, as well as unavoidable wetland impacts for direct (project footprint), secondary, and cumulative impacts of the Project. The record shows that the Applicants have undertaken extensive efforts to eliminate and reduce wetland and other surface water impacts of the Project. For example, DOT examined and assessed several innovative construction techniques and bridge designs to eliminate and avoid wetland impacts. To eliminate and reduce temporary impacts occurring during construction, DOT has reduced the effect of scour on the pier foundation and reduced the depth of the footing to minimize the amount of excavation on the mangrove island. Also, during construction, the contractor is prohibited from using the 200- foot right-of-way on the mangrove island for staging or stockpiling of construction materials or equipment. The majority of the bridge width has been reduced to eliminate and avoid impacts. Also, the Project's alignment was adjusted to the north to avoid impacts to a tidal creek. Reasonable assurances have been given that all practicable design and project alternatives to the construction and placement of the Project were assessed with no practicable alternatives. Public Interest Test Besides complying with the requirements of Rule 40E- 4.301, an applicant must also address the seven factors in Rule 40E-4.302(1)(a)1.-7., which comprise the so-called "public interest" test. See also § 373.414(1)(a), Fla. Stat. In interpreting the seven factors, the District balances the potential positive and negative effects of a project to determine if it meets the public interest criteria. Because Petitioners agree that factors 3 and 6 of the rule are not at issue, only the remaining five factors will be considered. For the following reasons, the Project is positive when the criteria are weighed and balanced, and therefore the Project is not contrary to the public interest. Public Health, Safety, and Welfare The Applicants have provided reasonable assurance that the Project will not affect public health, safety, and welfare. Specifically, it will benefit the health, safety, and welfare of the citizens by improving traffic conditions and congestion, emergency and hurricane evacuation, and access to medical facilities. In terms of safety, navigation markers are included as part of the Project for safe boating by the public. See Fla. Admin. Code R. 40E-4.302(1)(a)1. Conservation of Fish and Wildlife The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The mitigation projects will offset any impacts to fish and wildlife, improve the abundance and diversity of fish and wildlife on Kiplinger Island, create mangrove habitat, and add to the marine productivity in the area by enhancing water quality. See Fla. Admin. Code R. 40E-302(1)(a)2. Fishing or Recreational Values The Project has features that allow for pedestrian and bicycle utilization and observation areas which should enhance recreational values. The Old Palm Bridge, approximately one mile north of the Project, has had no adverse impact on the fishing recreation along the South Fork of the St. Lucie River. Navigation will not be affected due to the height and design of the new bridge. Finally, the bridge is expected to be a destination for boating, kayaking, fishing, and bird watching. See Fla. Admin. Code R. 40E-4.302(1)(a)4. Whether the Activity is of a Permanent Nature The parties have stipulated that the Project is permanent in nature. No future activities or future phases of the project are contemplated. Temporary and permanent impacts are all being fully mitigated. See Fla. Admin. Code R. 40E- 4.302(1)(a)5. Values of Functions Being Performed in Affected Areas Due to historic impacts to the areas affected by the Project, the current condition is degraded and the relative value of functions is minimal. Although Kiplinger Island will have temporary impacts, that island is subject to exotic species and has no recreational use or access by boaters or members of the public. The Applicants propose mitigation which will improve and enhance these wetland functions and values in the areas. See Fla. Admin. Code R. 40E-4.302(1)(a)7. Summary The evidence supports a finding that the Project is positive as to whether it will affect the public health, safety, welfare, or property of others; that the Project is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the Project is positive as to conservation of fish, wildlife, recreational values, marine productivity, permanency, and current values and functions. When weighed and balanced, the Project is not contrary to the public interest. Cumulative Impacts Rule 40E-4.302(1)(b) requires that an applicant give reasonable assurance that a project will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in BOR Sections 4.28 through 4.2.8.2. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. An analysis is geographically based upon the drainage basins described in BOR Figure 4.4.1. Petitioners' contention that Figure 4.4.1 is inaccurate or not representative of the basin in which the Project is located has been rejected. In this case, the North St. Lucie Basin was used. To assess and quantify any potential unacceptable cumulative impacts in the basin, and supplement the analyses performed by the Applicants, the District prepared a Basin Map that depicted all the existing and permitted wetland impacts as well as those wetlands under some form of public ownership and/or subject to conservation restrictions or easements. The District's analysis found that the wetlands to be mitigated were of poor quality and provided minimal wildlife and water quality functions. Cumulative impacts from the Project to wetlands within the basin resulted in approximately a four percent loss basin-wide. This is an acceptable adverse cumulative impact. Therefore, the Project will not result in unacceptable cumulative impacts. Mitigation Adverse impacts to wetlands caused by a proposed activity must be offset by mitigation measures. See § 4.3. These may include on-site mitigation, off-site mitigation, off- site regional mitigation, or the purchase of mitigation credits from mitigation banks. The proposed mitigation must offset direct, secondary, and cumulative impacts to the values and functions of the wetlands impacted by the proposed activity. The ability to provide on-site mitigation for a DOT linear transportation project such as a bridge is limited and in this case consists of the creation of mangrove and other wetlands between the realigned St. Lucie Shores Boulevard and the west shore of the St. Lucie River, north and south of the proposed bridge crossing. BOR Section 4.3.1.2 specifically recognizes this limitation and allows off-site mitigation for linear projects that cannot effectively implement on-site mitigation requirements due to right-of-way constraints. Off-site mitigation will offset the majority of the wetland impacts. Because no single on-site or off-site location within the basin was available to provide mitigation necessary to offset all of the Project's impacts, DOT proposed off-site mitigation at two established and functioning mitigation areas known as Dupuis State Reserve (Dupuis), which is managed by the County and for which DOT has available mitigation credits, and the County's Estuarine Mitigation Site, a/k/a Florida Oceanographic Society (FOS) located on Hutchinson Island. Dupuis is outside the North St. Lucie Basin and was selected to offset direct and secondary impacts to freshwater wetlands. That site meets the ERP criteria in using it for this project. The FOS is within the North St. Lucie Basin and was selected to offset direct and secondary impacts to estuarine wetlands. Like Dupuis, this site also meets the ERP criteria for the project. The preponderance of the evidence establishes that the on-site and off-site mitigation projects fully offset any and all project impacts, and in most instances before the impacts will actually occur. Sovereign Submerged Lands and Heightened Public Concern Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. For purposes of granting a public easement to the Applicants, the District determined that the Project is not contrary to the public interest and that all requirements of the rule were satisfied. This determination was not disputed. The only issue raised by Petitioners concerning the use of submerged lands is whether the application should have been treated as one of "heightened public concern." See Fla. Admin. Code R. 18-21.0051(5). If a project falls within the purview of that rule, the Board of Trustees of the Internal Improvement Trust Fund (Board), rather than the District, must review and approve the application to use submerged lands. Review by the Board is appropriate whenever a proposed activity is reasonably expected to result in a heightened public concern because of its potential effect on the environment, natural resources, or controversial nature or location. Id. In accordance with established protocol, the ERP application was sent by the District to DEP's review panel in Tallahassee (acting as the Board's staff) to determine whether the Project required review by the Board. The panel concluded that the Project did not rise to the level of heightened public concern. Evidence by Petitioners that "many people" attended meetings and workshops concerning the Project over the last 20 years or so is insufficient to trigger the rule. Significantly, except for general project objections lodged by Petitioners and Audubon of Martin County, which did not include an objection to an easement, no adjacent property owner or other member of the public voiced objections to the construction of a new bridge. Revised Staff Report On October 20, 2010, the District issued a Revised Staff Report that merely corrected administrative errors or information that had been previously submitted to the District. Contrary to Petitioners' assertion, it did not constitute a material change to the earlier agency action either individually or cumulatively. Therefore, it was properly considered in this proceeding. Letter Modifications The Letter Modifications were used as a mechanism to capture minor alterations made to previously issued permits for Kanner Highway and Indian Street. Neither Letter Modification is significant in terms of water quality, water quantity, or environmental impacts. Both were issued in accordance with District rules and should be approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application Nos. 091021-8, 100316-7, and 100316-6. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2010. COPIES FURNISHED: Carol Ann Wehle, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 Jeffrey W. Appel, Esquire Ray Quinney and Nebeker, P.C. 36 South State Street, Suite 1400 Salt Lake City, Florida 84111-1401 Bruce R. Conroy, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 John J. Fumero, Esquire Rose, Sundstrom & Bentley, P.A. 950 Peninsula Corporate Circle Suite 2020 Boca Raton, Florida 33487-1389 Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road Mail Stop 1410 West Palm Beach, Florida 33406-3007
The Issue The issue in this matter is whether Respondent, Polk County Board of Commissioners (Polk County or County) has provided Respondent, Southwest Florida Water Management District (SWFWMD), with reasonable assurances that the activities Polk County proposed to conduct pursuant to Standard General Environmental Resource Permit (ERP) No. 4419803.000 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, and 40D-40.302, Florida Administrative Code. (All rule citations are to the current Florida Administrative Code.)
Findings Of Fact Events Preceding Submittal of ERP Application The Eagle-Millsite-Hancock drainage system dates back to at least the 1920's, and has been altered and modified over time, especially as a result of phosphate mining activities which occurred on OFP property in the 1950's-1960's. The system is on private property and is not owned and was not constructed by the County. Prior to 1996, the Eagle-Millsite-Hancock drainage system was in extremely poor repair and not well- maintained. The Eagle-Millsite-Hancock drainage system originates at Eagle Lake, which is an approximately 641-acre natural lake, and discharges through a ditch drainage system to Lake Millsite, which is an approximately 130-acre natural lake. Lake Millsite drains through a series of ditches, wetlands, and ponds and flows through OFP property through a series of reclaimed phosphate pits, ditches and wetlands and ultimately flows into Lake Hancock, which is an approximately 4500-acre lake that forms part of the headwaters for the Peace River. The drainage route is approximately 0.5 to 1 mile in overall length. The Eagle-Millsite-Hancock drainage system is one of eight regional systems in the County for which the County and SWFWMD have agreed to share certain funding responsibilities pursuant to a 1996 letter agreement. To implement improvements to these drainage systems, Polk County would be required to comply with all permitting requirements of SWFWMD. During the winter of 1997-1998, Polk County experienced extremely heavy rainfall, over 39 inches, as a result of El Nino weather conditions. This unprecedented rainfall was preceded by high rainfalls during the 1995-1996 rainy season which saturated surface waters and groundwater levels. During 1998, Polk County declared a state of emergency and was declared a federal disaster area qualifying for FEMA assistance. Along the Lake Eagle and Millsite Lake drainage areas, septic tanks were malfunctioning, wells were inundated and roads were underwater. The County received many flooding complaints from citizens in the area. As a result of flooding conditions, emergency measures were taken by the County. The County obtained SWFWMD authorization to undertake ditch cleaning or vegetative control for several drainage ditch systems in the County, including the Eagle-Millsite-Hancock drainage system. No SWFWMD ERP permit was required or obtained for this ditch cleaning and vegetative control. During its efforts to alleviate flooding and undertake emergency ditch maintenance along the Eagle-Millsite-Hancock drainage route, the County discovered a driveway culvert near Spirit Lake Road which was crushed and impeding flow. The evidence was unclear and contradictory as to the size of the culvert. Petitioner's evidence suggested that it consisted of a 24-inch pipe while evidence presented by the County and by SWFWMD suggested that it was a 56-inch by 36-inch arched pipe culvert. It is found that the latter evidence was more persuasive. On February 25, 1998, the County removed the crushed arched pipe culvert at Spirit Lake Road and replaced it with two 48-inch diameter pipes to allow water to flow through the system. The replacement of this structure did not constitute ditch maintenance, and it required a SWFWMD ERP. However, no ERP was obtained at that time (although SWFWMD was notified prior to the activity). (One of the eight specific construction items to be authorized under the subject ERP is the replacement of this culvert.) Old Florida Plantation, Ltd. (OFP) property also experienced flooding during February 1998. OFP's property is situated along the eastern shore of Lake Hancock, and the Eagle- Millsite-Hancock drainage system historically has flowed across the property before entering Lake Hancock. In the 1950's and 1960's, the property was mined for phosphate. The mining process destroyed the natural vegetation and drastically altered the soils and topography, resulting in the formation of areas of unnaturally high elevations and unnaturally deep pits that filled with water. OFP purchased the property from U.S. Steel in 1991. The next year OFP initiated reclamation of the property, which proceeded through approximately 1998. In 1996, OFP applied to the County for approval of a development of regional impact (DRI). OFP blamed the flooding on its property in 1998 on the County's activities upstream, claiming that the property had never flooded before. But upon investigation, the County discovered a 48-inch diameter pipe on OFP property which, while part of OFP's permitted drainage system, had been blocked (actually, never unopened) due to OFP's concerns that opening the pipe would wash away wetlands plants recently planted as part of OFP's wetland restoration efforts. With OFP and SWFWMD approval, the County opened this pipe in a controlled manner to allow flowage without damaging the new wetlands plants. Following the opening of this blocked pipe, OFP property upstream experienced a gradual drop in flood water levels. When the water level on OFP's property stabilized, it was five feet lower and no longer flooded. Nonetheless, OFP continues to maintain not only that the County's activities upstream caused flooding on OFP property but also that they changed historic flow conditions. This contention is rejected as not being supported by the evidence. Not only did flooding cease after the 48-inch pipe on OFP's property was opened, subsequent modeling of water flows also demonstrated that the County's replacement of the crushed box culvert at the driveway on Spirit Lake Road as described in Finding 8, supra, did not increase flood stages by the time the water flows into the OFP site and did not cause flooding on OFP property in 1998. (To the contrary, OFP actions to block flows onto its property may have contributed to flooding upstream.) On October 6, 1998, the County entered into a contract with BCI Engineers and Scientists to initiate a study on the Eagle-Millsite-Hancock drainage system, identify options for alleviating flooding along the system and prepare an application for an ERP to authorize needed improvements to the system. Prior to the County's submittal of an ERP application, SWFWMD issued a conceptual ERP to OFP for its proposed wet detention surface water management system to support its proposed DRI on the OFP property. OFP's conceptual permit incorporated the Eagle-Millsite-Hancock drainage system and accommodated off-site flowage into the system. Before submitting an ERP application to SWFWMD, the County had communications with representatives of OFP concerning an easement for the flow of the drainage system through OFP property. In March 1999, the County reached an understanding with OFP's engineering consultant whereby OFP would provide the County with an easement across OFP lands to allow water to flow through to Lake Hancock. In turn, the County would: construct and pay for a control structure and pipe east of OFP to provide adequate flowage without adversely affecting either upstream or downstream surface waters; construct and upgrade any pipes and structures needed to convey water across OFP property to Lake Hancock; and provide all modeling data for OFP's review. The ERP Application Following completion of the engineering study, the County submitted ERP Application No. 4419803.000 for a Standard General ERP to construct improvements to the Eagle-Millsite- Hancock drainage system on August 18, 1999. Eight specific construction activities are proposed under the County's project, at various points along the Eagle- Millsite-Hancock drainage system as follows: 1) Add riprap along channel bottom; 2) Modify culvert by replacing 56-inch by 36- inch arch pipe by two 48-inch pipes (after-the-fact, done in 1998, as described in Finding 8, supra); 3) Add riprap along channel bottom; 4) Add box, modify culvert by replacing existing pipe with two 48-inch pipes, add riprap along channel bottom; 5) add riprap along channel bottom; 6) Add weir, modify culvert by replacing existing 24-inch pipe with two 48-inch pipes, add riprap along channel bottom; 7) Add box and modify culvert by replacing existing 24-inch pipe with two 48-inch pipes; 8) Modify existing weir. Under the County's application, construction activities Nos. 6, 7, and 8 would occur on OFP property. In addition, it was proposed that surface water would flow across OFP's property (generally, following existing on-site drainage patterns), and it was indicated that flood elevations would rise in some locations on OFP's property as a result of the improvements proposed in the County's application. (Most if not all of the rise in water level would be contained within the relatively steep banks of the lakes on OFP's property--the reclaimed phosphate mine pits.) In its application, the County stated that it was in the process of obtaining easements for project area. As part of the ERP application review process, SWFWMD staff requested, by letter dated September 17, 1999, that the County clarify the location of the necessary rights-of-way and drainage easements for the drainage improvements and provide authorization from OFP as property owner accepting the peak stage increases anticipated in certain OFP lakes as a result of the County's proposed project activities. On September 28, 1999, OFP obtained a DRI development order (DO) from the County. In pertinent part, the DRI DO required that OFP not adversely affect historical flow of surface water entering the property from off-site sources. Historical flow was to be determined in a study commissioned by the County and SWFWMD. The DO appeared to provide that the study was to be reviewed by OFP and the County and approved by SWFWMD. Based on the study, a control structure and pipe was to be constructed, operated and maintained by the County at the upstream side of the property that would limit the quantity of off-site historical flow, unless otherwise approved by OFP. OFP was to provide the County with a drainage easement for this control structure and pipe, as well as a flowage easement from this structure, through OFP property, to an outfall into Lake Hancock. The DO specified that the flowage easement was to be for quantitative purposes only and not to provide water quality treatment for off-site flows. The DO required OFP to grant a defined, temporary easement prior to first plat approval. In its November 11, 1999, response to SWFWMD's request for additional information, the County indicated it would obtain drainage easements and that it was seeking written acknowledgment from OFP accepting the proposed increases in lake stages. During the ERP application review process, the County continued efforts to obtain flowage easements or control over the proposed project area and OFP's acknowledgment and acceptance of the increase in lake stages. At OFP's invitation, the County drafted a proposed cross-flow easement. But before a binding agreement could be executed, a dispute arose between OFP and the County concerning other aspects of OFP's development plans, and OFP refused to enter into an agreement on the cross- flow easement unless all other development issues were resolved as well. On August 4, 2000, in response to SWFWMD's request that the County provide documentation of drainage easements and/or OFP's acceptance of the increased lake stages on OFP property, the County submitted a proposed and un-executed Perpetual Flowage and Inundation Easement and an Acknowledgment to be signed by OFP accepting the increased lake stages. On August 7, 2000, the OFP property was annexed by the City of Bartow (the City). On October 16, 2000, the City enacted Ordinance No. 1933-A approving OFP's DRI application. The City's DO contained essentially the same provision on Off- Site Flow contained in the County's DO. See Finding 18, supra. However, the City's DO specified that the historical flow study was required to be reviewed and approved by OFP (as well as by the County and by SWFWMD). OFP has not given formal approval to historical flow studies done to date. On October 6, 2000, SWFWMD issued a Notice of Final Agency Action approving Polk County ERP No. 4419803.000. Permit Specific Condition No. 7 provides that "all construction is prohibited within the permitted project area until the Permittee acquires legal ownership or legal control of the project area as delineated in the permitted construction drawings." As a result of this permit condition, the County cannot undertake construction as authorized under the Permit until any needed easement or legal control is obtained. Precise Easement Route Approximately two months before final hearing, a dispute arose as to the precise cross-flow easement route proposed by the County. OFP had understood that the County's proposed route was based on a detailed survey. But closer scrutiny of the County's proposed route indicated that it cut corners of existing lakes on OFP's property, crossed residential lots proposed by OFP, and veered north into uplands (also proposed for residential use) in the western portion of the route before looping south and then north again to the outfall at Lake Hancock. Information subsequently revealed in the course of discovery suggested that the County's proposed route may have been based on pre-reclamation topography of OFP's property. After OFP recognized the implications of the cross- flow easement route being proposed by the County, OFP provided the County with several different alternative easement routes through the OFP property. While agreement as to the precise route has not yet been reached, the precise route of the easement is not significant to the County, as long as water can flow across OFP property to Lake Hancock and so long as the County does not have to re-locate existing ditches. Such adjustments in the location of the proposed flowage easement would not affect SWFWMD staff's recommendation for permit issuance, as long as it covered the defined project areas. In addition, OFP's current site plan is a preliminary, conceptual plan subject to change before it is finalized. Regardless what cross-flow easement route is chosen, it will be temporary and subject to modification when OFP's development plan is finalized. If the County is unable to not negotiate a flowage easement across OFP property, it could obtain whatever easement is required through use of the County's eminent domain powers. The County's acquisition of an easement to accommodate a flowage route and anticipated increased stage on OFP property gives reasonable assurance that any stage increases will not cause adverse impacts to OFP property and gives reasonable assurance that the County will have sufficient legal control to construct and maintain the improvements. Project Area The County applied for a Standard General Permit and specified a total project area of 0.95 acre. This acreage reflects the area required for actual construction and alteration of control structures and drainage ditches in the preexisting Eagle-Millsite-Hancock system. It does not reflect the entire acreage drained by that system (approximately 1,800 to 2,000 acres). It also does not reflect the area of the cross-flow easement, which the County has yet to obtain. When determining project size for purposes of determining the type of permit applicable to a project, SWFWMD staff considers maximum project area to be limited to the acreage owned or controlled by the applicant. In addition, since this is a retrofit project for improvement of an existing drainage system not now owned or controlled by the County, SWFWMD staff only measured the area required for actual construction and alteration of control structures and drainage ditches. Future easements necessary for future maintenance of the system were not included. When OFP applied for its conceptual ERP for its proposed DRI, the project area was considered to be the acreage owned by OFP. The rest of the basin draining through OFP's property to Lake Hancock (again, approximately 1,800 to 2,000 acres) was not considered to be part of the project area. Water Quantity Impacts The County's project will retrofit certain components of the same drainage system which OFP will utilize for surface water management and treatment pursuant to its conceptual ERP. Modeling presented in the County's application demonstrates that there will be some rises and some lowering of some of the lake levels on OFP's property during certain rain events. Anticipated rises are lower than the top of banks authorized in OFP's conceptual permit; hence the system will continue to function properly. While there are some differences in the County's permit application and OFP's conceptual permit application concerning modeling estimates of flow rates through OFP property, the differences are minor and are attributed to differences in modeling inputs. The County used more detailed modeling information. Any such differences are not significant. Differences in flow rates provided in the County's proposed permit and in OFP's conceptual permit do not render the permits as incompatible. If the County's permit were issued, any modeling undertaken in connection with a subsequent application by OFP for a construction permit would have to be updated to include the County's improvements to the system. This outcome is not a basis for denial of the County's permit. While the rate at which water will flow through the system will increase, no change in volume of water ultimately flowing through the drainage system is anticipated as a result of the County's proposed improvements. The increased lake stages which are anticipated to occur on OFP property as a result of the County's project will not cause adverse water quantity impacts to the receiving waters of Lake Hancock or adjacent lands. The project will not cause adverse flooding to on-site or off-site property. The project will not cause adverse impacts to existing surface water storage and conveyance capabilities. The project will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Chapter 373.042, Florida Statutes. Water Quality Impacts No adverse impacts to water quality on OFP property are anticipated from the County's proposed drainage improvements. The project will not add any pollutant loading source to the drainage system and is not expected to cause any algae blooms or fish kills in OFP waters or cause any additional nutrient loading into OFP's surface water management systems. As reclaimed phosphate mine pits, the lakes on OFP's property are high in phosphates. Meanwhile, water quality in upstream in Millsite Lake and Eagle Lake is very good. Off-site flow of higher quality water flushing the OFP lakes will improve the water quality on the OFP site. The County's project will have no adverse impact on the quality of water in the downstream receiving of Lake Hancock (which currently has poor water quality due in large part to past phosphate mining). Upstream of OFP, the project will not cause any adverse water quality impacts and is anticipated to result in positive impacts by lessening the duration of any flooding event and thereby lessening septic tank inundation from flooding. This will have a beneficial impact on public health, safety, and welfare. Thus, there is a public benefit to be gained in having the County undertake the proposed drainage and flood control improvements now, rather than waiting for OFP to finalize its plat and construct its development project. The County's proposed improvements do not require any formal water quality treatment system. The improvements are to a conveyance system and no impervious surfaces or other facilities generating pollutant loading will be added. Upstream of OFP, the Eagle-Millsite-Hancock drainage system flows through natural lakes and wetlands systems that provide natural water quality treatment of the existing drainage basin. OFP expressed concern that the County's improvements to drainage through these areas (including the ditch maintenance already performed in 1998) will increase flow and reduce residence time, thereby reducing natural water quality treatment. But ditch maintenance does not require an ERP, and the County gave reasonable assurances that reduction in natural water quality treatment will not be significant, especially in view of the good quality of the water flowing through the system out of Eagle Lake and Millsite Lake. As a result, it is found that the County's proposed project will not adversely affect the quality of receiving waters such that any applicable quality standards will be violated. Indeed, OFP's expert consultant conceded in testimony at final hearing that OFP has no reason to be concerned about the quality of water at present. Rather, OFP's real concern is about water quality in the future. Essentially, OFP is asking SWFWMD to require the County to guarantee OFP that future development in the area will not lead to any water quality problems. Requiring such a guarantee as a condition to issuance of an ERP would go far beyond SWFWMD requirements and is never required of any applicant. Besides being speculative on the evidence in this case, future development in the area will be required to meet applicable SWFWMD water quality requirements. SWFWMD permitting required for such future development would be the proper forum for OFP to protect itself against possible future reduction in water quality (as well as possible future increase in water quantity). Environmental Impacts The drainage ditches to be improved by the County's project were originally constructed before 1984. These upland cut ditches were not constructed for the purpose of diverting natural stream flow, and are not known to provide significant habitat for any threatened or endangered species. The County provided reasonable assurance that the proposed project will not change the hydroperiod of a wetland or other surface water, so as to adversely affect wetland functions or other surface water functions. The functions of the wetlands and surface waters to be affected by the proposed project include conveyance, some water quality treatment, and possibly some wildlife movement or migration functions between the wetlands served by the ditches. Wetland impacts from the project consists of .63 acre of permanent impacts and .21 acre of temporary impacts, for a total of .84 acre of impact. The permanent impacts consist of the replacement of pipes with new structures in the ditches and the addition of rip rap in areas to prevent sedimentation and erosion. The proposed project's anticipated increase in the rate of flow is expected to lessen the duration of any flooding event at the upper end of the drainage system, and at the downstream end is expected to create a subsequent rise in some of the lakes and storage areas on the OFP property during certain rain events. The anticipated rise in some of the reclaimed lakes on OFP property is not anticipated to have any adverse impact on the functions that those surface waters provide to fish, wildlife or any threatened or endangered species. The reclaimed lakes subject to rise in water levels for certain rain events are steep-sided and do not have much littoral zone, and little, if any, loss of habitat will result. The County's application provides reasonable assurance that the anticipated stage increase in affected wetlands or surface waters will not adversely affect the functions provided by those wetlands or surface waters. The County provided reasonable assurance that the proposed project will not violate water quality standards in areas where water quality standards apply, in either the short- term or the long-term. Long-term effects were addressed in Finding 43-51, supra. Short-term water quality impacts anticipated during the construction of the proposed improvements will be addressed through the use of erosion and sediment controls. The proposed project also will not create any adverse secondary impacts to water resources. The project will not cause any adverse impacts to the bird rookery located to the north on OFP property. The project will not cause any adverse impacts to the bass in OFP's lakes, a concern expressed by OFP relatively recently. To the contrary, since the project will improve water quality in OFP's lakes, the impact on OFP's bass is expected to be positive. OFP raised the issue of a bald eagle nesting site located on its property. The evidence was that a pair of bald eagles has built a nest atop a Tampa Electric Company (TECO) power pole on the property in October of each year since 1996. Each year the pair (which is thought to be the same pair) has used a different TECO power pole. Most of the nests, including the one built in October 2000, have been on poles well south of any construction proposed under the County's ERP and clearly outside of the primary and secondary eagle management zones designated by the U.S. Fish and Wildlife Service. But one year, a nest was built on a pole farther north and possibly within the secondary eagle management zone. OFP presented testimony that U.S. Fish and Wildlife would require OFP to apply for an "incidental take" in order to build homes within the primary eagle protection zones around any of the four poles on which eagles have built nests since 1996; timing of construction of homes within the secondary protection zones may be affected. Even accepting OFP's testimony, there was no evidence as to how U.S. Fish and Wildlife would view construction of the County's proposed drainage improvements on OFP property within those zones. In addition, the evidence was that, in order to accomplish its DRI plans to build homes in the vicinity of the TECO power poles that have served as eagle nests in recent years, without having to apply for an "incidental take," OFP plans to place eagle poles (more suitable for eagle nests than power poles, which actually endanger the eagles) in another part of its property which is much more suitable habitat in order to encourage the eagles to build their nest there. The new location would put the County's proposed construction activity far outside the primary and secondary eagle management zones. Other Permitting Requirements The County's proposed project is capable, based on generally accepted scientific engineering and scientific principles, of being effectively performed and of functioning as proposed. The County has the financial, legal, and administrative capability of ensuring that the activity proposed to be undertaken can be done in accordance with the terms and conditions of the permit. No evidence was presented by Petitioner that the Project will cause adverse impacts to any work of the District established under Section 373.086, Florida Statutes. No evidence was presented by Petitioner that the project will not comply with any applicable special basin or geographic area criteria established under Chapter 40D-3, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Standard General Environmental Resource Permit No. 4419803.000. DONE AND ENTERED this 17th day of September, 2001, 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 September, 2001. COPIES FURNISHED: Linda L. McKinley, Esquire Polk County Attorney's Office Post Office Box 9005, Drawer AT01 Bartow, Florida 33831-9005 Gregory R. Deal, Esquire 1525 South Florida Avenue, Suite 2 Lakeland, Florida 33803 Margaret M. Lytle, Esquire Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E. D. Sonny Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issues to be resolved in this proceedings concern whether Environmental Resource Permit (ERP) No. 4-109-0216-ERP, should be modified to allow construction and operation of a surface water management system (project) related to the construction and operation of single-family homes on "Marshall Creek" (Parcel D) in a manner consistent with the standards for issuance of an ERP in accordance with Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.
Findings Of Fact The Project The project is a 29.9-acre residential development and associated stormwater system in a wetland mitigation area known as "Parcel D." It lies within the much larger Marshall Creek DRI in St. Johns County, Florida, bounded on the northeast by Marshall Creek, on the south and southeast by a previously permitted golf course holes sixteen and seventeen, and on the north by the "Loop Road." The project consists of thirty residential lots of approximately one-half acre in size; a short segment of Loop Road to access Parcel D; an internal road system; expansion of previously permitted Pond N, a wet detention stormwater management pond lying north of the Loop Road and wetland mitigation areas. Approximately 1.15 acres of wetlands are located on the Parcel D site. The project plan calls for filling 0.63 acres of the wetlands for purposes of constructing a road and residential lots for Parcel D. Part of that 0.63-acre impact area, 0.11 acres, is comprised of a 760-foot-long, narrow drainageway, with 0.52 acres of adjacent wetland. Downstream of the fill area, 0.52 acres of higher quality wetland is to be preserved. Hines proposes to preserve 4.5 acres of existing wetland and 2.49 acres of upland, as well as to create .82 acres of forested wetland as mitigation for the proposed impact of the project. Additionally, as part of the project, Hines will implement a nutrient and pesticide management plan. The only pesticides to be used at the project will be approved by the Department of Agriculture for use with soil types prevailing at the site and only pesticides approved by the Environmental Protection Agency may be used on the site. All pesticides to be used on the project site must be selected to minimize impacts to ground and surface water, including having a maximum 70-day half-life. Stormwater Management System The majority of surface runoff from Parcel D will be diverted to a stormwater collection system and thence through drainage pipes and a swale into Phase I of Pond N. After treatment in Pond N, the water will discharge to an upland area adjacent to wetlands associated with Marshall Creek and then flow into Marshall Creek. The system will discharge to Marshall Creek. In addition to the area served by Pond N, a portion of lots fourteen though twenty drain through a vegetated, natural buffer zone and ultimately through the soil into Marshall Creek. Water quality treatment for that stormwater runoff will be achieved by percolating water into the ground and allowing natural soil treatment. The fifty-foot, vegetated, natural buffer is adequate to treat the stormwater runoff to water quality standards for Lots 14, 15 and 20. Lots 16, 17, 18 and 19, will have only a twenty-five foot buffer, so additional measures must be adopted for those lots to require either that the owners of them direct all runoff from the roofs and driveways of houses to be constructed on those lots to the collection system for Pond N or placement of an additional twenty-five foot barrier of xeriscape plants, with all non- vegetated areas being mulched, with no pesticide or fertilizer use. An additional mandatory permit condition, specifying that either of these measures must be employed for Lots 16, 17, 18 and 19, is necessary to ensure that water quality standards will be met. Pond N is a wet detention-type stormwater pond. Wet detention systems function similarly to natural lakes and are permanently wet, with a depth of six to twelve feet. When stormwater enters a wet detention pond it mixes with existing water and physical, chemical and biological processes work to remove the pollutants from the stormwater. Pond N is designed for a twenty-five year, twenty-four- hour storm event (design storm). The pre-development peak rate of discharge from the Pond N drainage area for the design storm event is forty cubic feet per second. The post-development peak rate of discharge for the design storm event will be approximately twenty-eight cubic feet per second. The discharge rate for the less severe, "mean annual storm" would be approximately eleven cubic feet per second, pre-development peak rate and the post-development peak rate of discharge would be approximately five cubic feet per second. Consequently, the post-development peak rate of discharge does not exceed the pre- development peak rate of discharge. Pond N is designed to meet the engineering requirements of Rule 40C-42.026(4), Florida Administrative Code. Because the pond is not designed with a littoral zone, the permanent pool volume has been increased by fifty-percent. Additionally, because Pond N discharges to the Class II waters of Marshall Creek, an additional fifty-percent of treatment volume is included in the pond design. The system design addresses surface water velocity and erosion issues through incorporation of best management practices promulgated by the District to prevent erosion and sedimentation, including; designing side slopes of 4:1; siding and seeding disturbed areas to stabilize soil; and the use of riprap at the outfall from Pond N. During construction, short- term water quality impacts will be addressed through installation of silt fences and hay bales. The majority of the eighteen-acre drainage basin which flows into the Parcel D wetland lies to the south and southwest of Parcel D. In accordance with the prior permit, water from those off-site acres will be intercepted and routed to stormwater ponds serving golf course holes sixteen and seventeen. The system design will prevent adverse impacts to the hydroperiod of remaining on-site and off-site wetlands. The remaining wetlands will be hydrated through groundwater flow. Surface waters will continue to flow to the wetlands adjacent to lots fourteen through twenty because drainage from those lots will be directed across a vegetated, natural buffer to those wetlands. There is no diversion of water from the natural drainage basin, because Pond N discharges to a wetland adjacent to Marshall Creek, slightly upstream from the current discharge point for the wetland which is to be impacted. This ensures that Marshall Creek will continue to receive that fresh-water source. An underground "PVC cut-off wall" will be installed around Pond N to ensure that the pond will not draw down the water table below the wetlands near the pond. Pond N has been designed to treat stormwater prior to discharge, in part to remove turbidity and sedimentation. This means that discharge from the pond will not carry sediment and that the system will not result in shoaling. There will be no septic tanks in the project. The system is a gravity flow system with no mechanical or moving parts. It will be constructed in accordance with standard industry materials readily available and there will be nothing extraordinary about its design or operation. The system is capable of being effectively operated and maintained and the owner of the system will be the Marshall Creek Community Development District (CDD). Water Quality Water entering Pond N will have a residence time of approximately 200 days or about fifteen times higher than the design criteria listed in the below-cited rule. During that time, the treatment and removal process described herein will occur, removing most of the pollutants. Discharge from the pond will enter Marshall Creek, a Class II water body. The discharges must therefore meet Class II water quality numerical and anti-degradation standards. The design for the pond complies with the design criteria for wet detention systems listed in Rule 40C-42.026(4), Florida Administrative Code. In addition to meeting applicable design criteria, the potential discharge will meet water quality standards. The pond will have low levels of nitrogen and phosphorous resulting in low algae production in the pond. The long residence time of the water in the pond will provide an adequate amount of time for pesticides to volatilize or degrade, minimizing the potential for pesticide discharge. Due to the clear characteristics of the water column, neither thermal stratification nor chemical stratification are expected. Periodically, fecal coliform and total coliform levels are exceeded under current, pre-development conditions. These are common natural background conditions. Because the detention time in the pond will be an average of 200 days, and because the life span of fecal coliform bacteria is approximately seven to fourteen days the levels for coliforms in the pond will be very low. Discharges from the pond will enhance water quality of the Class II receiving waters because the levels of fecal coliform and total coliform will be reduced. The discharge will be characterized by approximately 100 micrograms per liter total nitrogen, compared with a background of 250 micrograms per liter presently existing in the receiving waters of Marshall Creek. The discharge will contain approximately three micrograms per liter of phosphorous, compared with sixty-three micrograms per liter presently existing in Marshall Creek. Total suspended solids in the discharge will be less than one-milligram per liter compared with seventy-two milligrams per liter in the present waters of Marshall Creek. Biochemical oxygen demand will be approximately a 0.3 level in the discharge, compared with a level of 2.4 in Marshall Creek. Consequently, the water quality discharging from the pond will be of better quality than the water in Marshall Creek or the water discharging from the wetland today. The pollutant loading in the discharge from the stormwater management system will have water quality values several times lower than pre-development discharges from the same site. Comparison of pre-development and post-development mass loadings of pollutants demonstrates that post-development discharges will be substantially lower than pre-development discharges. Currently, Marshall Creek periodically does not meet Class II water quality standards for dissolved oxygen. Construction and operation of the project will improve water quality in the creek concerning dissolved oxygen values because discharges from Pond N will be subjected to additional aeration. This results from design features such as discharge from the surface of the system, where the highest level of dissolved oxygen exists, and the discharge water draining through an orifice and then free falling to a stormwater structure, providing additional aeration. Discharges from the system will maintain existing uses of the Class II waters of Marshall Creek because there will be no degradation of water quality. Discharges will not cause new violations or contribute to existing violations because the discharge from the system will contain less pollutant loading for coliform and will be at a higher quality or value for dissolved oxygen. Discharges from the system as to water quality will not adversely affect marine fisheries or marine productivity because the water will be clear so there will be no potential for thermal stratification; the post-development discharges will remain freshwater so there will be no change to the salinity regime; and the gradual pre-development discharges will be replicated in post-development discharges. Several factors minimize potential for discharge of pesticide related pollutants: (1) only EPA-approved pesticides can be used; (2) only pesticides approved for site-specific soils can be used; (3) pesticides must be selected so as to minimize impacts on surface and groundwater; (4) pesticides must have a maximum half-life of 70 days; and (5) the system design will maximize such pollutant removal. Archaeological Resources The applicant conducted an archaeological resource assessment of the project and area. This was intended to locate and define the boundaries of any historical or archaeological sites and to assess any site, if such exists, as to its potential eligibility for listing in the National Register of Historic Places (National Register). Only a portion of one archaeological site was located on the project tract. Site 8SJ3473, according to witness Anne Stokes, an expert in the field of archaeological assessment, contains trace artifacts dating to the so-called "Orange Period," a time horizon for human archaeological pre-history in Florida dating to approximately 2,300 B.C. The site may have been only a small campsite, however, since only five pottery fragments and two chert flakes, residuals from tool-making were found. Moreover, there is little possibility that the site would add to knowledge concerning the Orange Period or pre-history because it is a very common type of site for northeast Florida and is not an extensive village site. There are likely other campsites around and very few artifacts were found. No artifacts were found which would associate the site with historic events or persons. The applicant provided the findings of its cultural resource assessment, made by Dr. Stokes, to the Florida Division of Historical Resources. That agency is charged with the responsibility of reviewing cultural resource assessments to determine if significant historic or archaeological resources will be impacted. The division reviewed the survey techniques used by Dr. Stokes, including shovel testing, sub-surface testing and pedestrian walk-over and investigation. The division determined that the site in question is not of a significant historical or archaeological nature as a resource because it does not meet any of the four criteria for inclusion in the National Register.1 Thus the referenced agency determined that the site in question is not a significant historical or archaeological resource and that construction may proceed in that area without further investigation, insofar as its regulatory jurisdiction is concerned. Wetlands The wetlands to be impacted by the project consist of a 1,000 foot drainage-way made up of a 0.11 acre open-water channel, approximately four feet wide, and an adjacent vegetated wetland area of approximately 0.52 acres containing fewer than 30 trees. The open-water channel is intermittent in that it flows during periods of heavy rainfall and recedes to a series of small, standing pools of water during drier periods. The Parcel D wetland is hydrologically connected to Marshall Creek, although its ephemeral nature means that the connection does not always flow. The wetland at times consists only of isolated pools that do not connect it to Marshall Creek. Although it provides detrital material export, that function is negligible because the productivity of the adjacent marsh is so much greater than that of the wetland with its very small drainage area. Because of the intermittent flow in the wetland, base flow maintenance and nursery habitat functions are not attributed to the wetland. The Parcel D wetland is not unique. The predominant tree species and the small amount of vegetated wetland are water oak and swamp bay. Faunal utilization of the wetland is negligible. The wetland drainage-way functions like a ditch because it lacks the typical characteristics of a creek, such as a swampy, hardwood floodplain headwater system that channelizes and contains adjacent hardwood floodplains. The location of the wetland is an area designated by the St. Johns County comprehensive plan as a development parcel. The Florida Natural Areas Inventories maps indicate that the wetland is not within any unique wildlife or vegetative habitats. The wetland is to be impacted as a freshwater system and is not located in a lagoon or estuary. It contains no vegetation that is consistent with a saltwater wetland. The retaining wall at the end of the impact area is located 1.7 feet above the mean high water line. Wetland Impacts The proposed 0.63 acre wetland impact area will run approximately 760 linear feet from the existing trail road to the proposed retaining wall. If the wetland were preserved, development would surround the wetland, adversely affecting its long-term functions. Mitigation of the wetland functions is proposed, which will provide greater long-term ecological value than the wetland to be adversely affected. The wetland to be impacted does not provide a unique or special wetland function or good habitat source for fish or wildlife. The wetland does not provide the thick cover that would make it valuable as Black Bear habitat and is so narrow and ephemeral that it would not provide good habitat for aquatic-dependent and wetland-dependent species. Its does not, for instance, provide good habitat for woodstorks due to the lack of a fish population and its closed- in tree canopy. Minnow sized fish (Gambusia) and crabs were seen in portions of the wetland, but those areas are downstream of the proposed area of impact. Mitigation Mitigation is offered as compensation for any wetland impacts as part of an overall mitigation plan for the Marshall Creek DRI. The overall mitigation plan is described in the development order, the mitigation offered for the subject permit and mitigation required by prior permits. A total of 27 acres of the more than 287 acres of wetlands in the total 1,300-acre DRI tract are anticipated to be impacted by the DRI. Approximately 14.5 acres of impacted area out of that 27 acres has already been previously authorized by prior permits. The overall mitigation plan for the DRI as a whole will preserve all of the remaining wetlands in the DRI after development occurs. Approximately one-half of that preserved area already has been committed to preservation as a condition of prior permits not at issue in this case. Also, as part of prior permitting, wetland creation areas have been required, as well as preserved upland buffers which further protect the preserved wetlands. The mitigation area for the project lies within the Tolomato River Basin. The development order governing the total DRI requires that 66 acres of uplands must also be preserved adjacent to preserved wetlands. The overall mitigation plan for the DRI preserves or enhances approximately 260 acres of wetlands; preserves a minimum of 66 acres of uplands and creates enhancement or restores additional wetlands to offset wetland impacts. The preserved wetlands and uplands constitute the majority of Marshall Creek, and Stokes Creek which are tributaries of the Tolomato River Basin, a designated Outstanding Florida Water (OFW). Preservation of these areas prevents them from being timbered and ensures that they will not be developed in the future. The overall DRI mitigation plan provides regional ecological value because it encompasses wetlands and uplands they are adjacent to and in close proximity to the following regionally significant resources: (1) the 55,000 acre Guana- Tolomato-Matanzas National Estuarine Research Reserve; (2) the Guana River State Park; (3) the Guana Wildlife Management Area; (4) an aquatic preserve; (5) an OFW; and (6) the 22,000 acre Cummer Tract Preserve. The mitigation plan will provide for a wildlife corridor between these resources, preserve their habitat and insure protection of the water quality for these regionally significant resources. The mitigation offered to offset wetland impacts associated with Parcel D includes: (1) wetland preservation of 0.52 acres of bottom land forest along the northeast property boundary (wetland EP); (2) wetland preservation of 3.98 acres of bottom land forest on a tributary of Marshall Creek contained in the DRI boundaries (Wetlands EEE and HHH); (3) upland preservation of 2.49 acres, including a 25-foot buffer along the preserved Wetlands EEE and HHH and a 50-foot buffer adjacent to Marshall Creek and preserved Wetland EP; (4) a wetland creation area of 0.82 acres, contiguous with the wetland preservation area; and (5) an upland buffer located adjacent to the wetland creation area. The wetland creation area will be graded to match the grades of the adjacent bottomland swamp and planted with wetland tree species. Small ponds of varying depths will be constructed in the wetland creation area to provide varying hydrologic conditions similar to those of the wetland to be impacted. The wetland creation area is designed so as to not de-water the adjacent wetlands. All of the mitigation lands will be encumbered with a conservation easement consistent with the requirements of Section 704.06, Florida Statutes. The proposed mitigation will offset the wetland functions and values lost through the wetland impact on Parcel D. The wetland creation is designed to mimic the functions of the impact area, but is located within a larger ecological system that includes hardwood wetland headwaters. The long-term ecological value of the mitigation area will be greater than the long-term value of the wetland to be impacted because; (1) the mitigation area is part of a larger ecological system; (2) the mitigation area is part of an intact wetland system; (3) the wetland to be impacted will be unlikely to maintain its functions in the long-term; and (4) the mitigation area provides additional habitat for animal species not present in the wetland to be impacted. Certain features will prevent adverse secondary impacts in the vicinity of the roadway such as: (1) a retaining wall which would prevent migration of wetland animals onto the road; (2) a guard rail to prevent people from moving from the uplands into wetlands; and (3) a vegetated hedge to prevent intrusion of light and noise caused by automotive use of the roadway.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered granting the subject application for modification of Permit 4-109-0216A-ERP so as to allow construction and operation of the Parcel D project at issue, with the addition of the inclusion of a supplemental permit condition regarding the vegetated natural buffers for Lots 16 through 19 described and determined above. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2001.
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact 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 Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue The issues to be determined in these consolidated cases are whether All Aboard Florida – Operations, LLC (“the Applicant”), and Florida East Coast Railway, LLC (“FECR”), are entitled to an Environmental Resource Permit Modification authorizing the construction of a stormwater management system and related activities to serve railway facilities, and a verification of exemption for work to be done at 23 roadway crossings (collectively referred to as “the project”).
Findings Of Fact The Parties Petitioners Martin County and St. Lucie County are political subdivisions of the State of Florida. Petitioners have substantial interests that could be affected by the District’s proposed authorizations. Intervenor Town of St. Lucie Village is a political subdivision of the State of Florida. Intervenor has substantial interests that could be affected by the District’s proposed authorizations. The Applicant, All Aboard Florida – Operations, LLC, is a Delaware limited liability company based in Miami. All Aboard Florida is part of a group of corporate entities formed for the principal purpose of developing and operating express passenger train service in Florida. Co-applicant Florida East Coast Railway, LLC, is a Florida limited liability company based in Jacksonville. FECR owns the existing railway corridor the passenger train service will use between Miami and Cocoa. South Florida Water Management District is a regional agency granted powers and assigned duties under chapter 373, part IV, Florida Statutes, including powers and duties related to the regulation of construction activities in wetlands. The proposed activities are within the boundaries of the District. Background The objective of the All Aboard Florida Project is to establish express passenger train service connecting four large urban areas: Miami, Fort Lauderdale, West Palm Beach, and Orlando. Most of the passenger service route, including the portion which will pass through Martin County and St. Lucie County, will use an existing railroad right-of-way used since the late 1800s. The FECR rail corridor runs along Florida’s east coast from Miami to Jacksonville. It supported passenger and freight operations on shared double mainline tracks from 1895 to 1968. The passenger service was terminated in 1968 and portions of the double track and certain bridge structures were removed. The freight service continued and remains in operation today. The passenger service will use the FECR right-of-way from Miami to Cocoa and then turn west on a new segment to be constructed from Cocoa to Orlando. The railway corridor will be operated as a joint facility, with passenger and freight trains sharing the double mainline tracks. The Applicant is upgrading the portion of the corridor between Miami and Cocoa by, among other things, replacing existing railroad ties and tracks, reinstalling double mainline tracks, and improving grade crossings. The Applicant is also installing Positive Train Control systems which provide integrated command and control of passenger and freight train movements and allow the trains to be directed and stopped remotely or automatically in the event of operator error or disability, or an obstruction on the track. The All Aboard Florida Project is being developed in two phases, Phase I extends from Miami to West Palm Beach, and Phase II from West Palm Beach to Orlando. This proceeding involves a segment within Phase II, known as Segment D09, which runs from just north of West Palm Beach to the northern boundary of St. Lucie County. The railway corridor in Segment D09 passes through Jonathan Dickinson State Park in Martin County and the Savannas Preserve State Park, parts of which are in both Martin County and St. Lucie County. Surface waters within these state parks are Outstanding Florida Waters (“OFWs”). The railway in Segment D09 also passes over the St. Lucie River using a bridge that can be opened to allow boats to pass. The Applicant plans to run 16 round trips per day between Miami and Orlando, which is about one train an hour in each direction, starting early in the morning and continuing to mid-evening. In 2013, the District issued the Applicant an exemption under section 373.406(6), which exempts activities having only minimal or insignificant adverse impacts on water resources. The 2013 exemption covers proposed work in approximately 48 of the 65 miles which make up Segment D09, and includes replacement of existing tracks and re-establishment of a second set of mainline tracks where they were historically located. The 2013 exemption covers all but 24 of the roadway crossings within Segment D09 where work is to be done in connection with the All Aboard Florida Project. In 2015, the District issued the Applicant a general permit under rule 62-330.401, which authorizes activities that are expected to cause minimal adverse impacts to water resources, for the installation of fiber optic cable along the rail bed within Segment D09. The 2013 exemption and 2015 general permit were not challenged and became final agency action. The Proposed Agency Actions The ERP Modification covers work to be done in approximately 17 of the 65 miles which make up Segment D09. The work will consist primarily of replacing existing tracks, installing new tracks, making curve modifications in some locations to accommodate faster trains, culvert modifications, and work on some fixed bridge crossings over non-navigable waters. The 2017 Exemption at issue in this proceeding covers improvements to 23 of the 24 roadway crossings that were not covered by the 2013 exemption. Proposed improvements at Southeast Florida Street in Stuart will be permitted separately. The improvements covered by the 2017 Exemption include upgrading existing safety gates and signals; installing curbs, guardrails, and sidewalks; resurfacing some existing paved surfaces; and adding some new paving. Petitioners argue that, because the District’s staff report for the ERP Modification states that the ERP does not cover work at roadway crossings, track work at roadway crossings has not been authorized. However, the staff report was referring to the roadway improvements that are described in the 2017 Exemption. The proposed track work at the roadway crossings was described in the ERP application and was reviewed and authorized by the District in the ERP Modification. “Segmentation” Petitioners claim it was improper for the District to separately review and authorize the proposed activities covered by the 2013 exemption, the 2015 general permit, the ERP Modification, and the 2017 Exemption. Petitioners contend that, as a consequence of this “segmentation” of the project, the District approved “roads to nowhere,” by which Petitioners mean that these activities do not have independent functionality. Petitioners’ argument is based on section 1.5.2 of the Applicant’s Handbook, Volume 1,1/ which states that applications to construct phases of a project can only be considered when each phase can be constructed, operated, and maintained totally independent of future phases. However, the activities authorized by the four agency actions are not phases of a project. They are all parts of Phase II of the All Aboard Florida Project, which is the passenger railway from West Palm Beach to Orlando. Section 1.5.2 is not interpreted or applied by the District as a prohibition against separate review and approval of related activities when they qualify under the District’s rules for exemptions, general permits, and ERPs. Much of Phase II is outside the District’s geographic boundaries and, therefore, beyond its regulatory jurisdiction. The District can only review and regulate a portion of Phase II. The District is unable to review this portion as a stand-alone railway project that can function independently from other project parts. The Proposed Stormwater Management System Where the Applicant is replacing existing tracks or re- establishing a second set of tracks, it will be laying new ties, ballast, and rail on previously-compacted earth. In those areas, no stormwater management modifications were required by the District. The Applicant’s new proposed stormwater management system will be located in a five-mile area of the corridor where an existing siding will be shifted outward and used as a third track. In this area, swales with hardened weir discharge structures and skimmers will be installed to provide stormwater treatment beyond what currently exists. The weir discharge structures will serve to prevent erosion at discharge points. The skimmers will serve to capture any floating oils or refuse. Because the FECR right-of-way is not wide enough in some three-track areas to also accommodate swales, the proposed stormwater management system was oversized in other locations to provide compensating volume. The District determined that this solution was an accepted engineering practice for linear systems such as railroads. Petitioners argue that the Applicant’s proposed stormwater management system is deficient because some of the proposed swales do not meet the definition of “swale” in section 403.803(14) as having side slopes equal to or greater than three feet horizontal to one foot vertical (3:1). The statute first defines a swale to include a manmade trench which has “a top width-to-depth ratio of the cross-section equal to or greater than 6:1.” The swales used in the proposed stormwater management system meet this description. Petitioners showed that the plans for one of the 46 proposed swales included some construction outside the FECR right-of-way. In response, the Applicant submitted revised plan sheets to remove the swale at issue. The Emergency Access Way The ERP application includes proposed modifications to portions of an existing unpaved emergency access way which runs along the tracks in some areas. The access way is a private dirt road for railroad-related vehicles and is sometimes used for maintenance activities. At the final hearing, Petitioners identified an inconsistency between an application document which summarizes the extent of proposed new access way construction and the individual plan sheets that depict the construction. The Applicant resolved the inconsistency by correcting the construction summary document. Petitioners also identified an individual plan sheet showing proposed access way modifications to occur outside of the FECR right-of-way. This second issue was resolved by eliminating any proposed work outside the right-of-way. Petitioners believe the proposed work on the access way was not fully described and reviewed because Petitioners believe the access way will be made continuous. However, the access way is not continuous currently and the Applicant is not proposing to make it continuous. No District rule requires the access way segments to be connected as a condition for approval of the ERP. Water Quantity Impacts An applicant for an ERP must provide reasonable assurance that the construction, operation, and maintenance of a proposed 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. The District’s design criterion to meet this requirement for water quantity management is a demonstration that the proposed stormwater system will capture the additional runoff caused during a 25-year/3-day storm event. The Applicant’s proposed stormwater system meets or exceeds this requirement. Petitioners argue that the Applicant failed to provide reasonable assurance because the ERP application materials did not include a calculation of the discharge rates and velocities for water discharging from the swales during the design storm. The ERP application contains the information required to calculate the discharge rates and velocities and the Applicant’s stormwater expert, Bruce McArthur, performed the calculations and testified at the final hearing that in the areas where there will be discharges, the discharge rates and velocities would be “minor” and would not cause adverse impacts. The District’s stormwater expert, Jesse Markle, shared this opinion. Petitioners argue that this information should have been provided to the District in the permit application, but this is a de novo proceeding where new evidence to establish reasonable assurances can be presented. Petitioners did not show that Mr. McArthur is wrong. Petitioners failed to prove that the proposed project will cause adverse water quantity impacts, flooding, or adverse impacts to surface water storage and conveyance capabilities. Water Quality Impacts To obtain an ERP, an applicant must provide reasonable assurance that the construction, operation, and maintenance of a regulated project will not adversely affect the quality of receiving waters, such that state water quality standards would be violated. The District’s design criteria for water quality required the Applicant to show that its proposed stormwater system will capture at least 0.5 inches of runoff over the developed area. To be conservative, the Applicant designed its proposed system to capture 1.0 inch of runoff in most areas. Under District rules, if a stormwater system will directly discharge to impaired waters or OFWs, an additional 50 percent of water quality treatment volume is required. The proposed stormwater system will not directly discharge to either impaired waters or OFWs. In some locations, there is the potential for stormwater discharged from the proposed stormwater system to reach OFWs by overland flow, after the stormwater has been treated for water quality purposes. The Applicant designed its proposed stormwater system to provide at least an additional 50 percent of water quality treatment volume in areas where this potential exists. To ensure that the proposed construction activities do not degrade adjacent wetlands, other surface waters, or off-site areas due to erosion and sedimentation, the Applicant prepared an Erosion and Sediment Control Plan. Temporary silt fences and turbidity barriers will be installed and maintained around the limits of the construction. The District’s design criteria for water quality do not require an analysis of individual contaminants that can be contained in stormwater, except in circumstances that do not apply to this project. Compliance with the design criteria creates a presumption that water quality standards for all potential contaminants are met. See Applicant’s Handbook, V. II, § 4.1.1. Although not required, the Applicant provided a loading analysis for the proposed swales which could potentially discharge overland to impaired waters or OFWs. The analysis compared pre- and post-development conditions and showed there would be a net reduction in pollutant loading. Petitioners believe the pollutant loading analysis was inadequate because it did not specifically test for arsenic and petroleum hydrocarbons. However, the analysis was not required and adequate treatment is presumed. Petitioners did not conduct their own analysis to show that water quality standards would be violated. Petitioners’ expert, Patrick Dayan, believes the compaction of previously undisturbed soils in the emergency access way would increase stormwater runoff. However, he did not calculate the difference between pre- and post-construction infiltration rates at any particular location. His opinion on this point was not persuasive. Petitioners failed to prove that the proposed project will generate stormwater that will adversely affect the quality of receiving waters such that state water quality standards would be violated. The preponderance of the evidence shows the project complies with District design criteria and will not cause water quality violations. Soil and Sediment Contamination Petitioners argue that the ERP Modification does not account for the disturbance of existing contaminants in soils and sediments that could be carried outside of the right-of-way and into OFWs. Petitioners’ argument is based on investigations by their geologist, Janet Peterson, who collected soil, sediment, and surface water samples at 13 sites along the FECR rail corridor in the vicinity of OFWs, or surface waters that eventually flow into OFWs. During her sampling visits, Ms. Peterson saw no visual evidence of an oil spill, fluid leak, or other release of hazardous materials. Ms. Peterson compared her soil sample results to the Residential Direct Exposure Soil Cleanup Target Levels (“SCTLs”) established in rule 62-777. The SCTLs are the levels at which toxicity becomes a human health concern and the residential SCTLs assume soil ingestion of 200 mg/day for children, and 100 mg/day for adults, 350 days a year, for 30 years. Some of the soil sampling results showed exceedances of SCTLs, but the SCTLs are not applicable here because none of the sample sites are locations where children or adults would be expected to ingest soil at such levels for such lengths of time. Petitioners did not show that the contaminants are likely to migrate to locations where such exposure would occur. Ms. Peterson compared her soil sample results to the Marine Surface Water Leachability SCTLs, but she did not develop site-specific leachability-based SCTLs using DEP’s approved methodology. Nor did she show that the proposed project will cause the soils to leach the contaminants. Ms. Peterson collected sediment samples from shorelines, but not where construction activities are proposed. She compared her sediment sample results to the Florida Department of Environmental Protection’s (“DEP”) Sediment Quality Assessment Guidelines (“SQAGs”). These guidelines are not water quality standards. Any exceedance of these guidelines requires further analysis to determine potential water quality impacts. Ms. Peterson did not conduct the analysis. Ms. Peterson acknowledged that there are numerous sources for these pollutants at or near her sample sites, such as high-traffic roads, vehicular bridges, commercial and industrial facilities, boatyards, and golf courses. She did not establish baselines or controls. Ms. Peterson collected surface water samples at seven sites, some of which were located outside the FECR right-of-way. The results showed levels of phosphorous and nitrogen above the criteria for nutrients at some locations. Phosphorous, nitrogen, and the other nutrients are prevalent in the waters of Martin County and St. Lucie County and come from many sources. Petitioners’ evidence focused on existing conditions and not expected impacts of the proposed project. The evidence was insufficient to prove the proposed project will cause or contribute to water quality violations. Functions Provided by Wetlands and Other Surface Waters An applicant for an ERP must provide reasonable assurance that a proposed project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Petitioners claim the Applicant and District should not have relied on Florida Land Use Cover and Forms Classification System (“FLUCCS”) maps to identify and characterize wetlands and other habitat areas because the maps are too general and inaccurate. However, the FLUCCS maps were not used by the Applicant or District to evaluate impacts to wetlands or other habitats. The Applicant began its evaluation of impacts to wetlands and other habitat areas by field-flagging and surveying the wetland and surface water boundaries in the project area using a GPS device with sub-meter accuracy. It then digitized the GPS delineations and overlaid them with the limits of construction to evaluate anticipated direct impacts to wetlands and other surface waters. The District then verified the delineations and assessments in the field. The Applicant and District determined that there are a total of 4.71 acres of wetlands within the FECR right-of-way, including tidal mangroves, freshwater marsh, and wet prairie. They also determined the proposed project will directly impact 0.35 acres of wetlands, consisting of 0.09 acres of freshwater marsh and 0.26 acres of mangroves. Petitioners contend that the Applicant failed to account for all of the project’s wetland impacts, based on the wetland delineations made by their wetland expert, Andrew Woodruff. Most of the impacts that Mr. Woodruff believes were not accounted for are small, between 0.01 and 0.05 acres. The largest one is acres. The Applicant’s delineations are more reliable than Mr. Woodruff’s because the methodology employed by the Applicant had greater precision. It is more likely to be accurate. Petitioners argue that the 2013 exemption and the 2015 general permit did not authorize work in wetlands and, therefore, the impacts they cause must be evaluated in this ERP Modification. However, Petitioners did not prove that there are unaccounted-for wetland impacts associated with those authorizations. Any impacts associated with best management practices for erosion control, such as the installation of silt fences, would be temporary. The District does not include such temporary minor impacts in its direct, secondary, or cumulative impacts analyses. Most of the wetlands that would be directly impacted by the ERP Modification are degraded due to past hydrologic alterations and soil disturbances from the original construction and historical use of the FECR railway corridor, and infestation by exotic plant species. Most of these wetlands are also adjacent to disturbed uplands within or near the rail corridor. The functional values of most of the wetlands that would be affected have been reduced by these disturbances. The Applicant provided 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. Secondary Impacts Section 10.2.7 of the Applicant’s Handbook requires an applicant to provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonably expected uses of a proposed activity (a) will not cause or contribute to violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters; (b) will not adversely impact the ecological value of uplands for bald eagles, and aquatic or wetland-dependent listed animal species for nesting or denning by these species; (c) will not cause impacts to significant historical or archaeological resources; and (d) additional phases for which plans have been submitted, and closely linked projects regulated under chapter 373, part IV, will not cause water quality violations or adverse impacts to the functions of wetlands or other surface waters. The proposed work will be entirely within the limits of the existing railway corridor where secondary impacts to wetlands and other surface waters caused by noise, vibration, fragmentation of habitats, and barriers to wildlife have existed for decades. The preponderance of the evidence shows that any increase in these kinds of impacts would be insignificant and would not reduce the current functions being provided. Because the affected wetlands are not preferred habitat for wetland-dependent, endangered, or threatened wildlife species, or species of special concern, and no such species were observed in the area, no adverse impacts to these species are expected to occur. Petitioners contend that adverse impacts will occur to the gopher tortoise, scrub jay, and prickly apple cactus. These are not aquatic or wetland-dependent species. However, the preponderance of the evidence shows any increase in impacts to these species would be insignificant. When the train bridges are closed, boats with masts or other components that make them too tall to pass under the train bridges must wait for the bridge to open before continuing. Petitioners contend that the current “stacking” of boats waiting for the bridges to open would worsen and would adversely impact seagrass beds and the West Indian Manatee. However, it was not shown that seagrass beds are in the areas where the boats are stacking. The available manatee mortality data does not show a link between boat stacking and boat collisions with manatees. Mr. Woodruff’s opinion about increased injuries to manatees caused by increased boat stacking was speculative and unpersuasive. The preponderance of the evidence shows that the adverse effects on both listed and non-listed wildlife species, caused by faster and more numerous trains would be insignificant. The activities associated with the 2013 exemption and the 2015 general permit for fiber optic cable were based on determinations that the activities would have minimal or insignificant adverse impacts on water resources. These determinations are not subject to challenge in this proceeding. The Applicant provided reasonable assurance that the secondary impacts of the project will not cause or contribute to violations of water quality standards, adversely impact the functions of wetlands or other surface waters, adversely impact the ecological value of uplands for use by listed animal species, or cause impacts to significant historical or archaeological resources. Elimination and Reduction of Impacts Under section 10.2.1.1 of the Applicant’s Handbook, if a proposed activity will result in adverse impacts to wetlands and other surface waters, the applicant for an ERP must implement practicable design modifications to eliminate or reduce the impacts, subject to certain exceptions that will be discussed below. Petitioners argue that this rule requires the Applicant and District to evaluate the practicability of alternative routes through the region, routes other than the existing railway corridor in Segment D09. As explained in the Conclusions of Law, that argument is rejected. The evaluation of project modifications to avoid impacts was appropriately confined to the railway corridor in Segment D09. The Applicant implemented practicable design modifications in the project area to reduce or eliminate impacts to wetlands and other surface waters. Those modifications included the shifting of track alignments, the elimination of certain third-track segments, and the elimination of some proposed access way modifications. However, the project qualified under both “opt out” criteria in section 10.2.1.2 of the Applicant’s Handbook so that design modifications to reduce or eliminate impacts were not required: (1) The ecological value of the functions provided by the area of wetland or surface water to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value; and (2) the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and provides greater long-term ecological value. Mitigation The Applicant proposes to mitigate for impacts to wetlands by purchasing mitigation credits from four District- approved mitigation banks: the Bluefield Ranch, Bear Point, Loxahatchee, and F.P.L. Everglades Mitigation Banks. Each is a regional off-site mitigation area which implements a detailed management plan and provides regional long-term ecological value. The number of mitigation credits needed to offset loss of function from impacts to wetlands was calculated using the Modified Wetland Rapid Assessment Procedure (“MWRAP”) or Wetland Assessment Technique for Environmental Review (“WATER”), as prescribed in the state permit for each mitigation bank. Applying these methods, the Applicant is required to purchase mitigation credits. The Applicant proposed to mitigate the adverse impacts to freshwater marsh wetlands by purchasing 0.01 freshwater herbaceous credits from the Bluefield Ranch Mitigation Bank, and 0.06 freshwater herbaceous credits from the Loxahatchee Mitigation Bank. The adverse impacts to tidal mangrove wetlands would be mitigated by purchasing 0.12 saltwater credits from the Bear Point Mitigation Bank, and 0.02 saltwater credits from the F.P.L. Everglades Mitigation Bank. The Applicant committed to purchase an additional 0.29 freshwater herbaceous credits from the Bluefield Ranch Mitigation Bank, for a total of 0.50 mitigation credits. The proposed mitigation implements a plan that will provide greater long-term ecological value than is provided by the wetlands that will be impacted. The Applicant proved by a preponderance of the evidence that the project complies with the District’s mitigation requirements. Cumulative Impacts To obtain an ERP, an applicant must provide reasonable assurance that a regulated activity will not result in unacceptable cumulative impacts to water resources. This assurance can be provided by proposing to fully mitigate the impacts within the same basin. However, when an applicant proposes mitigation in another drainage basin, the applicant must demonstrate that the regulated activity will not cause unacceptable cumulative impacts. The proposed project will adversely impact 0.02 acres of freshwater marsh wetlands and 0.21 acres of tidal mangrove wetlands in the St. Lucie River basin. The impacts to the freshwater marshes must be mitigated out-of-basin because there are no mitigation banks in the basin which offer freshwater herbaceous mitigation credits. The proposed project will adversely impact 0.07 acres of the freshwater marshes and 0.05 acres of the mangrove wetlands in the Loxahatchee River basin. Those impacts must also be mitigated out-of-basin because there are no mitigation banks in the Loxahatchee River basin. Because some of the Applicant’s proposed mitigation must be provided out-of-basin, the ERP application included a cumulative impact analysis. The analysis evaluated whether the proposed project, when considered in conjunction with other possible development within the St. Lucie River and Loxahatchee River drainage basins, would result in unacceptable cumulative impacts considering each basin as a whole. There are approximately 10,068 acres of freshwater marshes within the St. Lucie basin, of which an estimated 4,929 acres are not preserved and would be at risk of potential future development. The proposed project will adversely impact 0.02 of those acres, which is only 0.0004 percent of the total at-risk acreage. There are about 34,000 acres of freshwater marshes within the Loxahatchee River basin, of which an estimated 7,463 acres are at risk of future development, and approximately 564 acres of tidal mangrove wetlands, of which an estimated 75 acres are at risk of future development. The project will adversely impact 0.07 acres of the freshwater marshes (0.0009 percent), and 0.05 acres of the tidal mangrove wetlands (0.0667 percent). Petitioners contend the Applicant’s analysis did not account for impacts from proposed activities authorized in the 2013 and 2015 general permit. However, Petitioners failed to prove there are unaccounted-for wetland impacts. The preponderance of the evidence supports the District’s determination that the proposed project will not cause unacceptable cumulative impacts to wetlands and other surface waters. Public Interest When an applicant seeks authorization for a regulated activity in, on, or over wetlands or surface waters, it must provide reasonable assurance that the activity will not be contrary to the public interest, or if the activity is within or significantly degrades an OFW, is clearly in the public interest, as determined by balancing the following criteria set forth in section 373.414(1)(a): Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources; and The current condition and relative value of functions being performed by areas affected by the proposed activities. The proposed work is not within an OFW, but entirely within the FECR corridor. The potential for overland flow and indirect impacts to OFWs is addressed by additional treatment of the stormwater prior to discharge. The proposed project would not significantly degrade an OFW. Therefore, the applicable inquiry is whether the project is contrary to the public interest. Factor 1: Public Safety, Safety, and Welfare Petitioners contend that the proposed project will adversely affect public health, safety, and welfare by impacting water quantity, water quality, and certain non-environmental matters such as emergency response times, traffic congestion, and potential train collisions with pedestrians and vehicles. Potential environmental impacts have been addressed above and, by a preponderance of the evidence, the District and the Applicant showed that such impacts would be insignificant or would be mitigated. As to the potential for non-environmental impacts associated with train operations, it is explained in the Conclusions of Law that the public interest test does not include consideration of non-environmental factors other than those expressly articulated in the statute, such as navigation and preservation of historical or archaeological resources. However, because evidence of non-environmental impacts was admitted at the final hearing, the issues raised by Petitioners will be briefly addressed below. The regulatory agency with specific responsibility for railroad safety is the Federal Railroad Administration (“FRA”). The FRA reviewed the safety features associated with the proposed passenger train operations, and approved them. Public safety will be enhanced at roadway crossings because of the proposed improvements and the use of modern technology in monitoring and managing the movement of trains. Petitioners contend that the addition of the passenger rail service will impede emergency response times in Martin County and St. Lucie County due to more frequent roadway closures. However, freight trains currently impede emergency response times due to their length and slow speed. The passenger trains will be much shorter in length and faster so that roadway crossing closures for passing passenger trains will be much shorter than for freight trains. The ERP Modification and 2017 Exemption do not affect freight train operations. The preponderance of the evidence shows that passenger rail service is unlikely to cause a material increase in the occurrence of circumstances where an emergency responder is impeded by a train. The current problem must be addressed through changes in freight train operations. Petitioners also contend that the passenger rail service will interfere with hurricane evacuation. The persuasive evidence does not support that contention. Train service would cease when a hurricane is approaching. Petitioners contend the trains will have to be “staged” on either side of the two moveable bridges while other trains cross, thereby blocking road intersections. However, this was a matter of speculation. The Applicant does not propose or want to stage trains at the bridges. Petitioners contend that the project will cause hazards to boaters on the St. Lucie River because there will be more times when the train bridge will be closed to allow the passage of passenger trains. Although there were many statistics presented about the number of boats affected, the evidence was largely anecdotal with respect to the current hazard associated with boaters waiting for the passage of freight trains and speculative as to the expected increase in the hazard if shorter and faster passenger trains are added. Factor 2: Conservation of Fish and Wildlife As previously found, the proposed activities will not adversely affect the conservation of fish and wildlife, including threatened or endangered species. The preponderance of the evidence shows the project will have only insignificant adverse impacts on water resources and wildlife. Factor 3: Navigation of the Flow of Water Petitioners claim the project will hinder navigation on the St. Lucie and Loxahatchee Rivers because of the increase in bridge closures if passenger trains are added. The U.S. Coast Guard is the agency with clear authority to regulate the opening and closing of moveable train bridges over navigable waters in the interests of navigation. Petitioners’ insistence that the District address the bridge openings is novel. No instance was identified by the parties where this District, any other water management district, or DEP has attempted through an ERP to dictate how frequently a railroad bridge must open to accommodate boat traffic. The Coast Guard is currently reviewing the project’s potential impacts on navigation and will make a determination about the operation of the moveable bridges. It has already made such a determination for the moveable bridge which crosses the New River in Ft. Lauderdale. Petitioners point to section 10.2.3.3 of the Applicant’s Handbook, which states that the District can consider an applicant’s Coast Guard permit, and suggest that this shows the District is not limited to what the Coast Guard has required. However, Section 10.2.3.3 explains the navigation criterion in terms of preventing encroachments into channels and improving channel markings, neither of which encompasses the regulation of train bridges. The preponderance of the evidence shows the project would not cause harmful erosion or shoaling or adversely affect the flow of water. Factor 4: Fishing, Recreational Values, and Marine Productivity The preponderance of the evidence shows that there would be no adverse impacts or only insignificant impacts to fishing or recreational values and marine productivity. Factor 5: Permanent Impact The proposed project will have both temporary and permanent impacts. The temporary impacts include the installation of silt fences and turbidity barriers designed to reduce water quality impacts and impacts to functions provided by wetlands and surface waters. The impacts due to track installation, construction and rehabilitation of the non-moveable bridges, at-grade crossing improvements, and stormwater system improvements are permanent in nature. The permanent impacts have been minimized and mitigated. Factor 6: Historical or Archaeological Resources Petitioners do not contend that the project will adversely affect significant historical or archaeological resources. Factor 7: Wetland Functions in Areas Affected Because the proposed work is within the limits of an existing railway corridor where impacts have been occurring for decades, and the majority of the wetlands to be affected are of a low to moderate quality, there would be only a small loss of functional values and that loss would be fully mitigated. Public Interest Summary When the seven public interest factors are considered and balanced, the proposed project is not contrary to the public interest. Even if Petitioners’ non-environmental issues are included, the project is not contrary to the public interest. Compliance With Other Permit Conditions The project is capable, based on accepted engineering and scientific principles, of performing and functioning as proposed. The Applicant demonstrated sufficient real property interests over the lands upon which project activities will be conducted. It obtained the required consent for proposed activities relating to bridge crossings over state-owned submerged lands. The Applicant provided reasonable assurance of compliance with all other applicable permit criteria. Exemption Verification for Roadway Crossings The Applicant’s ERP application included a mixture of activities which required an individual permit, as well as activities in roadway crossings which the Applicant claimed were exempt from permitting. Pursuant to section 5.5.3.4 of the Applicant’s Handbook, the Applicant requested a verification of exemption as to certain work to be done within 23 of those 24 roadway crossings. The District determined that the improvements for which an exemption was sought were exempt from permitting under rule 62-330.051(4)(c) for minor roadway safety construction, rule 62-330.051(4)(d) resurfacing of paved roads, and rule 62-330.051(10) for “construction, alteration, maintenance, removal or abandonment of recreational paths for pedestrians, bicycles, and golf carts.” The preponderance of the evidence shows the proposed work qualifies for exemption under these rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order that: approves Environmental Resource Permit Modification No. 13-05321-P on the terms and conditions set forth in the District’s Corrected Proposed Amended Staff Report of May 11, 2017; and approves the Verification of Exemption dated March 31, 2017. DONE AND ENTERED this 29th day of September, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2017.
Findings Of Fact The land here involved is located at the southern end of the Acme Improvement District. The northeastern portion of the tract is owned by Petitioner Leonard H. Tolley, and comprises some 15 percent of the total acreage of the tract. The remainder of the tract is owned by Petitioner Strazulla Brothers. The entire tract includes Sections 3 and 4, Township 455 Range 41E and a parcel of land in The Township 44 1/2 S Range 41E adjacent to Sections 3 and 4 and comprises some 1400 acres. The Strazulla property was acquired by Warranty Deed from the Trustees, Internal Improvement Trust Fund, by Philip Strazulla and subsequently conveyed to Petitioner. In 1978 real property taxes on the Strazulla property here involved was $17,453.42. The tract is bounded on the west by the L-40 levee and canal, on the north by Acme Improvement District Dike and C-27 Canal; on the east by property owned by Miller American Industries and on the south by property owned by the South Florida Water Management District. By this application Petitioner proposes to place levees with their borrow canals on the east and south sides of the tract and to construct a 240 acre reservoir adjacent to the L-40 levee by erecting a reservoir retention levee some 1400 feet eastward of the L-40 levee. By installing a 100,000 gallon per minute pump station at the southeast corner of the proposed reservoir, the water presently standing on the property could be drained allowing the eastern portion of the tract to be converted to agricultural use and the remainder converted into 2.5 acre residential sites. The 1972 Palm Beach County land use plan recommended the area here involved be zoned Preservation/Conservation, which effectively precluded development of the property. At that time, Strazulla attempted to sell the property or trade it to a governmental agency for property that could be developed, but without success. In 1978, the Palm Beach County Land Use Advisory Board changed the 1972 land use recommendation to Residential Estate to allow a reasonable use of the property. (Exhibit 7). The property abutting Petitioners' property to the north has been drained and thereon is located an orange grove and, west of the orange grove, 5- acre residential homesites. The property to the east is being developed as residential homesites. The property west of the C-40 canal comprises the Loxahatchee National Wildlife Refuge consisting of some 221 square miles of traditional Everglades wetlands. The property to the south is owned by the South Florida Water Management District and is of a character similar to Petitioners' property. Some two to three miles south of Petitioners' property is an east-west canal. In 1900 the property here involved was located in the eastern part of the Florida Everglades and received the sheet flow that characterized the natural Everglades. This historic hydroperiod has been disrupted by levees at Lake Okeechobee and by various drainage and irrigation canals constructed to render the large tracts of land thereby drained suitable for agriculture. In the immediate vicinity of the property, the L-40 levee and canal, which enclose the Loxahatchee National Wildlife Refuge (hereafter referred to as the conservation area) form a barrier to any sheet flow from this property onto the conservation area. This levee and canal bars practically all interchange of waters between Petitioners' property and the conservation area and is in the process of destroying part of the historical eastern boundary of the Everglades. Erection of the proposed levee on the east and south boundaries of the property would effectively stop the drainage now coming to this property from the east and the drainage from this property to the southeast. The South Florida Water Management District (SFWMD) owns a right-of- way to the east of the L-40 levee which is located in the area proposed by Petitioner for its reservoir. Petitioners' application to encroach on this right-of-way with the proposed reservoir was denied by SFWMD. This denial was based on the environmental impact, county zoning regulations (since changed) and the as yet undetermined effect of back pumping into the conservation areas. (Exhibit 17). Specifically, SFWMD Staff Report (Exhibit 17) found the environmental impact of the project will be: This proposed truck farming operation and residential development will destroy approximately 1100 acres of valuable wetland habitat by drainage. The impact on the 240 acres (60 acres of SFWMD right-of-way) of emergent marsh within the proposed reservoir will be determined by the water level management of the impoundment. A drastic change in water depth or inundation period could result in severe alterations of the present wetlands. An additional 50 acres of marsh will be lost due to dredge and fill operations for levee construction. The entire tract is poorly drained and is under water for considerable portions of the year, with the westernmost portion containing the longest periods and greatest depths of standing water. The soil in the eastern portion of the property is predominantly sandy, with a gray sandy loam layer at depths of 20 to 40 inches. The soil in the central portion of the tract is predominantly sandy, with a gray sandy loam layer at depths greater than 40 inches. The soil in the western portion of the tract is sandy, with a black organic surface layer (muck) 8 to 15 inches thick, underlain by gray sandy layers. Vegetation in the property goes from some pine and cypress in the eastern portion to sawgrass marshes in the western portion, with numerous varieties of plants associated with wet soil and marshy areas. During the proposed construction adequate safeguards can be imposed to prevent excess turbidity from entering State waters. This property comprises a large tract of pristine Everglades habitat for both plants and animals, and is of great value to the ecology of the state. In its undeveloped state it provides a buffer zone of up to two miles eastward for the conservation area. Water presently on the property is predominantly rainwater and of better quality than the water in the C-40 or C-27 canals adjacent to the property. Use of the land for agricultural purposes would increase the risk of water quality degradation caused by water runoff carrying fertilizers, herbicides and pesticides into the proposed reservoir and/or perimeter canals. If excess water on the property is pumped into the C-40 or C-27 canals, degradation of those waters could occur. The proposed development was opposed by the Florida Game and Fresh Water Fish Commission, not only because it would remove these fresh water marshes from the ecosystem and take away an essential habitat for birds and aquatic life, but also would remove a surface water retention basin and vegetation filtration of runoff from adjacent uplands. (Exhibit 16). The Permit Application Appraisal Report (Exhibit 15) which recommended denial of the application found the property acts as a buffer between the agricultural lands to the east and the conservation area and development as proposed would remove this buffer; and that water quality standards may be degraded due to agriculture runoff from the developed property being pumped into C-40 canal. Specifics of how runoff from property would be controlled were not obtained by the Environmental Specialist who prepared Exhibit 15. Pumping the surface waters on the property into a reservoir would reduce the diurnal variation in dissolved oxygen levels in the water and thereby improve water quality from that aspect. Water in the reservoir would be of greater depth than presently exists, thereby reducing photosynthesis and its concomitant benefits to the water quality. On the other hand, the greater depths could result in fewer grasses and more open surface water, thereby allowing more aeration of the water by wind action. Herbicides degrade fairly rapidly, and holding them in a reservoir would allow time to degrade. Many pesticides are water insoluble and would settle to the bottom of the reservoir.
The Issue Petitioners challenge the South Florida Water Management District’s (the District) proposed action to issue Individual Environmental Resource Permit (ERP) 50-06558-P to authorize conceptual approval of a surface water management (SWM) system to serve 1,919 acres of a phased, multiple-use development referred to as the Palm Beach County Biotechnolgy Research Park (BRP) and to authorize construction and operation of Phase 1A of that proposed project. The ultimate issue is whether the Applicants provided reasonable assurances that the proposed activities will not be harmful to the water resources of the District; will not be inconsistent with the overall objectives of the District; and will comply with the water quantity, environmental, and water quality criteria of the District’s ERP regulations, which are set forth in Part IV of Chapter 373, Florida Statutes, Florida Administrative Code Chapter 40E-4, et. seq.; and the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District – September 2003 (BOR).1
Findings Of Fact THE PARTIES The Florida Wildlife Federation, Audubon Society of the Everglades, and Jupiter Farms Environmental Council, Inc. (d/b/a Loxahatchee River Coalition) are not-for-profit corporations in existence prior to 2003 with more than 25 members in Palm Beach County. Palm Beach County Environmental Coalition was formed in 1997 and is a private, county-wide, non-profit citizen’s organization. Ms. Ketter, Mr. Bell, Ms. Larson, and Mr. Christensen are individuals affected by the proposed BRP. The Respondents stipulated that the parties who remained Petitioners after Mr. Silver’s withdrawal as a Petitioner have standing to bring this proceeding. The District, a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, operates pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district with its principal office in West Palm Beach, Florida. The County is a duly-constituted governmental entity. THE PROJECT SITE AND ADJACENT LANDS The site of the project is generally referred to as the Mecca Farms, which is a contiguous tract of 1,919 acres of land. At present, the Mecca Farms is used for farming and mining operations. There presently exists a permitted, SWM system on the Mecca Farms that was first permitted in 1979, and has been modified from time to time since then. The existing SWM system includes 73 acres of ditches and a 272-acre above-ground impoundment area. The Mecca Farms site is located within the C-18 Basin. There are no jurisdictional wetlands or delineated surface waters on the Mecca Farms. The following, which is taken from the Staff Report (SFWMD Ex. 1), accurately describes the project site and its adjacent lands: The project site consists of 1,919 acres presently supporting an active orange grove with approximately 73 acres of associated drainage and irrigation ditches/canals and a 30-acre active sand mining operation. The ditches/canals are presently maintained at an elevation of approximately 17 feet NGVD.[3] These ditches/canals provide drainage conveyance to a 272-acre above- ground impoundment located in the northeast corner of the site utilizing four (4) 22,000 gpm pumps. The above-ground impoundment discharges to the west leg of the C-18 Canal via gravity discharge. Project site ditches and canals also connect directly to the C-18 Canal through an 18,000 gpm pump. An additional 224-acre agricultural area east of the 1,919 acres of orange groves is connected to and drains into the canal/ditch system on the project site. This adjacent area was leased from the adjacent land owner by the grove owner for use as row crops and was connected to the grove canal/ditch system for better control of drainage and irrigation. The area is no longer used for row crops. There is also a small area on the site that contains caretaker housing and an equipment maintenance building for the orange groves. These facilities were originally permitted in 1979 under Surface Water Management Permit No. 50-00689-S and subsequent modifications. The citrus grove and primary drainage facilities have been in existence since the 1960s. The Hungryland Slough is located north of the project site, separated from the project site by the C-18 Canal. This area is comprised primarily of publicly-owned natural areas, including an area referred to as Unit 11, which is owned in the majority by Palm Beach County. To the west is the J.W. Corbett Wildlife Management Area (CWMA) owned and managed by the Florida Fish and Wildlife Conservation Commission (FFWCC). To the east, a large area of low-intensity agricultural land exists under the ownership of Charles Vavrus and within the City of Palm Beach Gardens. These lands contain extensive wetlands that are adjacent to the Loxahatchee Slough to the east. The Acreage, a low-density residential area, is located directly to the south of the project site. The only access to the site at this time is an unpaved extension of Seminole Pratt-Whitney Road (SPW), connecting the site at its southwestern corner to the Acreage. THE PROPOSED PROJECT The subject application is for conceptual approval of the SWM system for the BRP and for construction and operation of Phase 1A of the project. All of the proposed Phase 1A construction will occur on the Mecca Farms site. The following, taken from the Staff Report, accurately describes the proposed project: The [BRP] is a phased multiple use development planned for approximately 1,919 acres and will consist of land uses related to science and technology, biotechnology, biomedical, and other related research and development industries and manufacturing. Additionally, proposed support and complementary land uses include educational, institutional, residential, commercial, and recreational facilities, along with utilities and a large created natural area. THE PROPOSED SWM SYSTEM The proposed SWM system will consist of several interconnected lakes that will provide wet detention for storm water runoff from the property site and from 39 acres of off- site flows from SPW Road and a proposed Florida Power and Light (FPL) Substation. The lakes will collect, store, and treat the runoff. The storm water will pass through the lakes, through a 247-acre area referred to as the “Natural Area” (which will be created as part of the mitigation plan), and discharged to the C-18 Canal. To provide additional water quality treatment, these lakes will include planted littoral zones and the southern lake will include a filter marsh. The Natural Area will, in subsequent construction phases, be constructed on the western boundary of the Mecca site with discharge to the C-18 canal, which is adjacent to the northern boundary of the Mecca Farms. The southern boundary of the Natural Area will be the north boundary of the lake that is to be constructed on the southern end of the property. This is the area that is available for use as a flow-way (which will be discussed in greater detail in a subsequent section of this Recommended Order). The Natural Area will be a wetland type system that will move water slowly through that system providing additional storage and water quality benefits prior to discharging through a gravity control structure into the C-18 Canal. The C-18 Canal discharges to either the Northwest or Southwest Fork of the Loxahatchee River, depending on how structures are operated downstream. Discharges travel in the C-18 Canal for approximately nine miles before reaching the Loxahatchee River. The existing SWM system for the Mecca Farms currently discharges to the C-18 Canal, as will the proposed SWM system. The proposed project will not discharge to the CWMA or the Hungryland Slough. The Grassy Waters Preserve and the Loxahatchee Slough are several miles from the project site and will not be affected by the project’s proposed activities. The following, which is taken from the Staff Report, accurately describes the proposed SWM system. The proposed conceptual surface water management system which will serve the 1,919-acre site will consist of site grading, storm water inlets and culverts which will direct all runoff to a series of interconnected lakes for water quality treatment and attenuation of the peak runoff rate. Pumps will control the runoff rate from the developed site into the adjacent onsite BRP natural area. The BRP natural area will discharge into the C-18 canal via a gravity control structure. The system has been designed to accommodate 39 acres of off-site flows from SPW [Road] and a proposed Florida Power and Light (FPL) Substation. The existing control elevation of the citrus grove is 17.0’ NGVD. The proposed control elevations are 18.0’ NGVD for the developed area and 19.0’ NGVD for the natural area. The control elevations are being raised to provide a “step down” of water elevations from wetlands to the north, west and east of the site (20.5’ to 21.0’) to lower elevations to the south (17.0’). PHASE 1A CONSTRUCTION The following, which is taken from the Staff Report, accurately describes the proposed Phase 1A construction: The Phase 1A construction activities will allow the applicant to proceed with lake excavation, clearing and site grading of 536 acres in the southern portion of the site. No permanent buildings or parking areas are proposed at this time. Stormwater from Phase 1A and the remainder of the site, to remain in agricultural use, will be treated in the Phase 1A lakes and then pumped into the existing impoundment for additional water quality treatment and attenuation prior to discharging to the west leg of the C-18 Canal via the existing weir structures. The existing 18,000 gpm pump that connects the on-site ditches and canals directly to the C-18 Canal will remain, but will only be used if the impoundment is full. (See Special Condition No. 21). Approval of Phase 1A authorizes the use of the existing, previously permitted surface water management facilities, therefore, the previous permit no. 50-00689-S is superceded by this permit. The 224 acre agricultural area east of the existing grove that is connected to the grove canal/ditch system will be severed as part of Phase 1A. The pipe connecting this area will be removed and portions of the berm around this area will be regraded so the area will sheetflow into the adjacent pasture land’s canal/ditch system as it did previously [sic] to being connected to the grove system. Of the 536 acres involved in the Phase 1A construction, 87 acres will become lake bottom and 449 acres will remain pervious area, subject only to grading. CONCEPTUAL APPROVAL Pertinent to this proceeding, Florida Administrative Code Rule 40E-4.021(5) defines the term “conceptual approval” to mean an ERP issued by the District which approves a conceptual master plan for a surface water management system or a mitigation bank. Florida Administrative Code Rule 40E-4.305, pertains to conceptual approvals and provides, in relevant part, as follows: Conceptual approvals constitute final District action and are binding to the extent that adequate data has been submitted for review by the applicant during the review process. A conceptual approval does not authorize construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system or the establishment and operation of a mitigation bank. * * * For phased projects, the approval process must begin with an application for a conceptual approval which shall be the first permit issued for the project. An application for construction authorization of the first phase(s) may also be included as a part of the initial application. As the permittee desires to construct additional phases, new applications shall be processed as individual or standard general environmental resource permit applications pursuant to the conceptual approval. The conceptual approval, individual and standard general permits shall be modified in accordance with conditions contained in Chapters 40E-4 and 40E-40, F.A.C. Issuance of a conceptual approval permit pursuant to Chapter 40E-4, F.A.C., shall not relieve the applicant of any requirements for obtaining a permit to construct, alter, operate, maintain, remove, or abandon a surface water management system or establish or operate a mitigation bank, nor shall the conceptual approval permit applicant be relieved of the District’s informational requirements or the need to meet the standards of issuance of permits pursuant to Chapters 40E-4 or 40E-40, F.A.C. . . . PERMITTING CRITERIA In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. The conditions for issuance focus on water quantity criteria, environmental criteria, and water quality criteria. Florida Administrative Code Rule 40E-4.301 contains the following permitting conditions applicable to this proceeding: In order to obtain a standard general, individual, or conceptual approval permit ... an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters ...; will not cause adverse secondary impacts to the water resources; will not adversely impact the maintenance of surface or ground water levels or surface water flows ...; will not cause adverse impacts to a work of the District ...; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and will comply with any applicable special basin or geographic area criteria established in Chapter 40E-41 F.A.C. Florida Administrative Code Rule 40E-4.302 provides the following Additional Conditions for Issuance of Permits applicable to this proceeding: In addition to the conditions set forth in section 40E-4.301, F.A.C., in order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system: Located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 4.2.3 through 4.2.3.7 of the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District: Whether the activity will adversely affect the public health, safety or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the Basis of Review. . . . THE BASIS OF REVIEW The District has adopted the BOR and incorporated it by reference by Florida Administrative Code Rule 40E- 4.091(1)(a). The standards and criteria found in the BOR are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Section 1.3 of the BOR provides, in part, as follows: . . . Compliance with the criteria established herein [the BOR] constitutes a presumption that the project proposal is in conformance with the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302, F.A.C. WATER QUANTITY The term “control elevation” describes the level of freshwater water bodies established by a SWM system. The existing SWM system has a control elevation of 17’ NGVD. The control elevation for the proposed lake system will be raised to 18’ NGVD, and the control elevation for the proposed Natural Area will be raised to 19’ NGVD. Raising the control elevations will permit more treatment of storm water prior to discharge and will permit a more controlled discharge. In addition, raising the control elevation will lessen seepage onto the project site from adjacent wetlands. The Applicants provided reasonable assurances that the proposed project will not cause adverse water quantity impacts to receiving waters and adjacent lands, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E- 4.301(a). The Applicants provided reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E-4.301(b). The Applicants provided reasonable assurances that the proposed project will not cause adverse impacts to existing surface water storage and conveyance capabilities, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E-4.301(c). VALUE OF FUNCTIONS OF WETLANDS AND SURFACE WATERS Florida Administrative Code Rule 40E-4.301(d), requires the Applicants to establish that “. . . the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system . . .” “. . . will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters.” The District established that the term “value of functions,” as used in the rule, refers to habitat and life support functions. Because there are no wetlands or delineated surface waters on the Mecca Farms site, there are no direct adverse impacts to the functions that wetlands provide to fish and wildlife. The Applicants have provided reasonable assurances to demonstrate that the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters will not be adversely affected. The existing project site does not contain nesting areas for wetland-dependent endangered or threatened wildlife species or species of special concern. The potential for use of the existing project site for nesting by such species is minimal. The existing project site does contain habitat for the American Alligator and foraging habitat for wading birds and birds of prey. The primary foraging habitat on the existing site is around the perimeter of the existing 272-acre impoundment area in the northeast portion of the site. The existing impoundment will be replaced by on-site storm water treatment lakes and the BRP Natural Area that will have shallow banks planted with wetland plant species common to the area. Wildlife is opportunistic; and wading birds commonly feed in areas where there is water, wetland vegetation and wetland plants. The end result will be that the proposed project will have more and better foraging habitat acreage than the existing site. The Natural Area will provide a wetland buffer between the developed area and CWMA that will prevent any adverse impacts both to the wetlands and other surface waters in CWMA and to the value of the functions those wetlands and other surface waters provide to fish, wildlife, and listed species. The Natural Area will provide a wetland buffer between the developed area and Unit 11 that will prevent any adverse impacts both to the wetlands and other surface waters in Unit 11 and to the value of the functions those wetlands and other surface waters provide to fish, wildlife, and listed species. There was no competent evidence that the proposed project would impact the ability of the Florida Fish and Wildlife Conservation Commission to manage the CWMA through control burns or otherwise, thereby adversely affecting the diversity or abundance of fish and wildlife (including endangered species and their habitats). Petitioners attempted to raise the issue of mosquito control in their Petitions and at the Final Hearing. The allegations pertaining to mosquito control were struck by the District and Special Condition Number 26 was added before the Petitions were referred to DOAH. Petitioners made no attempt to amend their Petitions and have not challenged Special Condition 26. The Addendum to Staff Report (SFWMD Ex. 2) contains the following Special Condition Number 26: “Upon submittal of an application for construction of any buildings, the permittee shall submit a mosquito control plan for review and approval by District Staff.” Since there will be no buildings containing people or other facilities which would encourage the use of mosquito spraying, it is appropriate for the mosquito control condition to apply to only future phases of construction. There was no competent evidence of impacts attributable to pesticides associated with the application for the SWM system or for Phase 1A construction and operation that would adversely affect the diversity or abundance of fish and wildlife including endangered species and their habitats. The Applicants have satisfied the criteria set forth in Florida Administrative Code Rule 40E-4.301(d). WATER QUALITY The primary concern during Phase 1A construction will be erosion control. Best Management Practices (“BMPs”) are operational and design elements used to either eliminate or reduce the amount of pollutants at the source so they do not get into a SWM system or move downstream. To contain erosion in Phase 1A, the Applicants will use the following BMPs: Silt screens and turbidity barriers within existing ditches and around the perimeter of property. Planned construction sequencing to reduce movement and stock piling of material; Slope stabilization and seeding or sodding of graded areas; and Containment of construction materials with berms. All erosion and turbidity control measures will remain in place until the completion of the on-site construction and approval by the District’s post-permit compliance staff. The Applicants provided reasonable assurances that the proposed Phase 1A construction activities will not adversely impact the quality of receiving waters and that those activities will not violate State water quality standards. Section 5.2.1, BOR, requires that a SWM system provide wet detention for the first one inch of runoff. The proposed SWM system will provide wet detention for one and one-half inches of runoff. The Applicants provided reasonable assurances to demonstrate that the technical criteria in the BOR will be met. Under Section 1.3 of the BOR, compliance with the criteria in the BOR constitutes a presumption that the Proposed Project is in conformance with the conditions for issuance. This presumption was not rebutted by the Petitioners. The lake system will include planted littoral zones to provide additional uptake of pollutants. A filter marsh is also included in the southern lake. All of the storm water runoff from the lakes will pass through the filter marsh, which will be planted with wetland plants. The filter marsh will provide additional polishing of pollutants, uptake, and filtering through the plants. The discharge will then go into the BRP, which will provide the discharge additional uptake and filtering. BMPs utilized during the Operations and Maintenance phase will include regular maintenance inspections and cleaning of the SWM system, street-sweeping, litter control programs, roadway maintenance inspections and repair schedule, municipal waste collection, pollution prevention education programs, pesticides, herbicides and fertilizer storage, and application training and education. The littoral zones, filter marsh, BRP natural area, and BMPs were not included in the water quality calculations and are over and above rule requirements. The Applicants provided reasonable assurances to demonstrate that the proposed project will not adversely affect the quality of receiving waters. Therefore, Rule 40E- 4.301(1)(e), F.A.C., will be satisfied and water quality standards will not be violated. HAZARDOUS SUBSTANCES Pursuant to Section 5.5.5 of the BOR, commercial or industrial zoned projects shall provide at least one-half inch of dry detention or retention pretreatment as part of the required retention/detention, unless reasonable assurances can be offered that hazardous materials will not enter the project's SWM system. The Addendum to Staff Report reflects the following Special Condition 25 pertaining to hazardous materials: Upon submittal of an application for construction of commercial or industrial uses the permittee shall submit a plan that provides reasonable assurances that hazardous materials will not enter the surface water management system pursuant to the requirements of section 5.2.2(a) of the Basis of Review. Applicable permitting criteria does not require the Applicants to present a hazardous substances plan at this point because no facilities that will contain hazardous materials are part of the Phase 1A construction. SECONDARY IMPACTS Florida Administrative Code Rule 40E-4.301(1)(f) and Section 4.1.1(f) of the BOR, require an applicant to provide reasonable assurances that the proposed activities will not cause adverse secondary impacts to the water resources. A secondary impact is an indirect effect of a project resulting in adverse effects to wetlands or other surface waters. The District considers those adverse effects that would not occur "but for" the activities that are closely linked and causally related to the activity under review. This standard is discussed further in the Conclusions of Law section of this Recommended Order. The County’s Exhibit 3 is a secondary impact analysis identifying the secondary impacts that may potentially result from the proposed project. These impacts are: 1) the widening of SPW Road; 2) the construction of an FPL substation; 3) the extension of PGA Boulevard; and 4) the potential relocation of a runway at North County Airport. The secondary impact analysis performed pursuant to the Uniform Mitigation Assessment Method (UMAM) contained in Florida Administrative Code Chapter 62-345 reflects that up to 153.3 acres of wetlands may be partially or completely impacted by these secondary impacts, resulting in approximately 71.21 units of functional loss. Where future activities are expected to directly impact wetlands, secondary impacts were assessed based on the loss of all current functional value within the direct footprint of that activity. Additionally, an assessment was conducted to determine the degree of partial functional loss where impacts beyond the footprint of these activities are anticipated. SPW Road is an existing dirt road which is in the County's five-year road plan to widen as a four-lane paved road. Because the widening of the existing dirt road to a four-lane paved road is part of the five-year road plan, the impacts of that widening are not attributable to the subject project. However, as part of the proposed project, it is proposed to widen SPW Road to a six-lane paved road. The additional impacts associated with the widening from four to six lanes will be caused by, and are linked to, the proposed project. These impacts amount to approximately 2.2 acres. The FPL substation, which is proposed to service the proposed project, may result in 1.6 acres of potential direct impacts to wetlands. In addition, 1.0 acre of potential indirect secondary impacts may occur to wetlands that are not going to be dredged and filled. Those indirect secondary impacts may have some adverse impact on the functional value to those wetlands for wildlife utilization. The extension of PGA Boulevard to the Mecca Farms site has the potential to result in 45.6 acres of direct impacts to wetlands and 56.6 acres of indirect secondary wetland impacts which will not be dredged or filled, but will be in close proximity to the road. The secondary impact assessment for PGA Boulevard assumed the incorporation of wildlife crossings to minimize habitat fragmentation. If the airport runway needs to be shifted, potential direct wetland impacts to an additional 22.7 acres may occur. Indirect impacts to 23.6 acres of wetlands in close proximity could also occur. Runway relocation may or may not be necessary due to the PGA Boulevard extension; however, the analysis assumed the need for the relocation. Each of the projects listed above as potential secondary impacts will require a separate construction and operation permit from the District. The issuance of this permit does not in any way guarantee the issuance of permits for any of these identified potential secondary impacts. MITIGATION PLAN The Applicants provided a conceptual mitigation plan using UMAM to demonstrate how potential secondary impacts could be offset. Mitigation options have the potential to provide more than twice the functional gain than the functional loss from the identified secondary impacts. The conceptual mitigation options include: 194 acres of the land that had been acquired for future mitigation needs in Unit 11. 227 acres of the BRP natural area. 32.6 acres in the southern lake wetland along with proposed upland habitat. Sufficient mitigation is available in these options to offset the potential secondary impacts. The mitigation for the four potential secondary impacts is not required to be implemented now because the impacts are not occurring now. Section 4.2.7 of the BOR requires that the District consider those future impacts now and that a conceptual mitigation plan be provided to demonstrate and provide reasonable assurances that those impacts, in fact, can be offset in the future. The Governor and Cabinet sitting as the Board of Trustees considered and approved a request for public easement of approximately 30 acres to use a portion of CWMA for SPW Road, an FPL substation, and the land area that may be needed by District in the future for the connection to the flow-way. As consideration in exchange for the public easement over 30 acres, the County will transfer fee simple title of 60 acres to the State. This public easement also provides a benefit for CERP as it includes the small portion that the District is going to need for its future CERP project to connect to the flow-way on the proposed project site. The Applicants provided reasonable assurances that mitigation will offset secondary impacts to wetlands and other surface waters. UNIDENTIFIED SECONDARY IMPACTS Testimony at the final hearing raised a question as to whether there is nesting or roosting by listed wading bird species in adjacent off-site wetlands outside the eastern boundary of the project site. Evidence was inconclusive on nesting or roosting in these areas. Because the status of adjacent listed wading bird nesting or roosting is uncertain, the District suggested in its Proposed Recommended Order that a special condition requiring a wildlife survey prior to construction near the eastern project boundary be added to the permit as follows: Prior to application for construction within 1000 feet of the eastern boundary of the above-ground impoundment, the applicant shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. The District represented in its Proposed Recommended Order that the County has no objection to adding the foregoing condition. CUMULATIVE IMPACTS Pursuant to Section 373.414(8), Florida Statutes, the District is required to consider cumulative impacts upon wetlands and other surface waters delineated in Section 373.421(1), Florida Statutes, within the same drainage basin. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. The cumulative impact analysis is geographically based upon the drainage basins described in Figure 4.2.8-1 of the BOR. Cumulative impacts are unacceptable when they would result in unacceptable adverse impacts to the functions of wetlands and surface waters within a drainage basin. There are no wetlands or other surface waters delineated pursuant to Section 373.421(1), Florida Statutes, on the Mecca Farms site. Therefore, no cumulative impacts are created by the direct impacts of the project. Cumulative impacts may be created by a project's secondary impacts. If a wetland impact has been appropriately mitigated on-site within the drainage basin, there is no residual impact, and therefore no cumulative impact. The PGA Boulevard extension, a portion of the SPW Road widening, and the airport runway relocation are located within the C-18 Basin. The proposed mitigation options are all located in the C-18 Basin and will offset those impacts. Those potential secondary impacts are considered to meet the cumulative impact requirements of Section 373.414(8), Florida Statutes. The Applicants provided reasonable assurances that the proposed project will not result in cumulative impacts to the C-18 Basin. The FPL substation is located within the L-8 Drainage Basin. The majority of the SPW Road expansion is located within the C-18 Basin, but a portion is located on the basin line between the C-18 Basin and the L-8 Basin. Because the mitigation for the L-8 impacts are proposed in a different basin, the Applicants were required to conduct a cumulative impact analysis for the L-8 Basin impacts. Based on the Florida Land Use Cover Classification System, there are 43,457 acres of freshwater wetlands within the L-8 Basin. Approximately 41,000 acres of the wetlands in L-8 Basin are in public ownership. This total constitutes approximately 95 percent of all the wetlands in the L-8 Basin. Public ownership of these wetlands provide a high level of assurance that these lands will be protected in perpetuity. The Respondents established that proposed mitigation can fully offset the potential impacts from the SPW Road expansion and the FPL substation and the approximately four acres of impacted wetlands in the L-8 Basin. The Applicants provided reasonable assurances that there are no unacceptable adverse cumulative impacts on the L-8 Basin.4 GROUND WATER FLOWS, SURFACE WATER FLOWS, AND MINIMUM FLOWS AND LEVELS Florida Administrative Code Rule 40E-4.301(1)(g) requires an applicant to provide reasonable assurances that the proposed activity will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The term "maintenance of surface and groundwater levels or surface water flows" in Florida Administrative Code Rule 40E-4.301(1)(g) means that a project will not adversely impact the maintenance of surface water flows that contribute to meeting the minimum flow for the water body. An adverse impact to the maintenance of surface or groundwater levels or surface water flows may occur when a project discharging to a water body with a designated minimum flow level is proposed to be diverted. An analysis was done to compare the peak discharge rate from the existing SWM system on the Mecca Farms site with the projected peak discharge rate from the proposed SWM system. The analysis showed that the peak discharge rate under the proposed system will be less than that of the existing system. That result was expected since the proposed system will have higher control elevations, which, as noted above, will provide better treatment and permit a better control of the discharge into the C-18 Canal. Under the existing SWM system, storm event water in a dry period is frequently stored in the existing impoundment for future irrigation purposes. Under the proposed SWM system such storm event water will be discharged downstream, which will benefit those downstream areas during dry periods. The proposed system will also provide better control over pulse discharges during heavy storm events. The Applicants provided reasonable assurances that the proposed activities will not adversely impact the maintenance of surface or ground levels or surface water flows as required by Florida Administrative Code Rule 40E-4.301(1)(g). THE DISTRICT’S OBJECTIVES Sections 373.414 and 373.416, Florida Statutes, require an applicant to provide reasonable assurances that a regulated activity will not be harmful to the water resources and will not be inconsistent with the overall objectives of the District. Congress initially authorized the Central and Southern Florida (“C&SF”) Project in 1948. Thereafter extensive work was undertaken pertaining to flood control; water supply for municipal, industrial, and agricultural uses; prevention of saltwater intrusion; and protection of fish and wildlife. The work included construction of a primary system of 1000 miles each of levees and canals, 150 water-control structures, and 16 major pump stations. Unintended consequences of the C&SF Project have included the irreversible loss of vast areas of wetlands, including half of the original Everglades; the alteration in the water storage, timing, and flow capacities of natural drainage systems; and the degradation of water quality and habitat due to over-drainage or extreme fluctuations in the timing and delivery of fresh water into the coastal wetlands and estuaries. In 1992, Congress authorized the C&SF Project Comprehensive Review Study, which is generally referred to as the “Restudy.” The objective of the Restudy was to reexamine the C&SF Project to determine the feasibility of modifying the project to restore the South Florida ecosystem and provide for the other water-related needs of the region, such as water supply and flood protection. In April 1999, the U.S. Army Corps of Engineers issued the Central and Southern Florida Project Comprehensive Review Study Final Integrated Feasibility Report and Programmatic Environmental Impact Statement (“Restudy Report”). The Restudy Report recommends a comprehensive plan for the restoration, protection, and preservation of the water resources of Central and South Florida. The resulting plan is known as CERP. The North Palm Beach County Part I project, which includes restoration of the Northwest Fork of the Loxahatchee River (“NWFLR”), is a component of CERP. The successful completion of CERP and the successful restoration of the NWFLR are high-priority objectives of the District. The Loxahatchee River is an important feature of the South Florida ecosystem, nationally and internationally unique, and an important natural and economic resource. Rules pertaining to MFL for the NWFLR and for the recovery of the NWFLR are found at Florida Administrative Code Rule 40E-8.011; 40E-8.221(4); and 40E-8.421. Recovery goals, which are not presently being met, have been established; and strategies to meet those goals have been identified. The Mecca Farms site is located within the boundaries of the CERP North Palm Beach County Part I project and has the potential to affect CERP and the restoration of the NWFLR. Projects that potentially would affect or would be within or adjacent to a CERP project are evaluated on a case-by- case basis to determine whether a proposed project would not be inconsistent with CERP and other District objectives. There was a dispute between Respondents and Petitioners as to whether the proposed project was inconsistent with the District’s objectives, including CERP and its goals pertaining to the restoration of the NWFLR. Petitioners contend that the District has insufficient evidence that the Mecca Farms will not be needed for the construction of a reservoir. That contention is rejected. The greater weight of the credible evidence established that sufficient storage is available at a superior site known as the Palm Beach Aggregates (PBA) site in the L-8 Basin, which is a unique geological site that will provide in-ground storage of water.5 Water from the PBA storage site can be conveyed to the NWFLR to increase dry season flows. Water can be stored at the PBA site in the wet season to prevent potentially damaging high flows. The L-8 Basin, which is adjacent to the C-18 Basin, receives more water during the wet season than it uses. This means that at present a significant amount of water must be discharged to tide (lost) during the wet season to provide for flood protection in this area. As envisioned, the water currently lost to tide could be stored at the PBA site for use during the dry season. By combining the water storage in the L-8 Basin with connective flow-ways to the C-18 Canal, water demands within the C-18 Basin, including the NWFLR, can also be met by the PBA storage site.6 An increase in freshwater flows to the NWFLR will further the District’s restoration goals for the NWFLR. Storage at PBA has regional benefits for other significant natural areas because it will provide additional flows to the Loxahatchee Slough and Grassy Waters Preserve. Those additional flows will further the District’s CERP goals. Since October of 2003, County staff and the District’s ERP staff have coordinated review of the subject project with the District’s CERP Planning and Federal Projects Division and other District staff working on projects in this region. The County asked the District to determine if the Mecca Farms’ site could in some way accommodate CERP objectives, and three alternatives were considered: 1) no action; 2) a reservoir; and 3) a flow-way. As opposed to a reservoir, the more valuable and the more practical, use of the Mecca Farms site would be as part of the system to convey the stored water to the areas that would most benefit from its discharge. The proposed flow-way in the BRP Natural Area would be an integral part of that conveyance system and would provide the District with greater flexibility in managing and directing the discharge of the water stored at the PBA site. Prior to the development of the flow-way concept as part of the proposed development, CERP identified a single route to take water from PBA to the NWFLR. The flow-way will provide an additional route from PBA to the NWFLR. That additional route will provide the District with greater operational flexibility. The flow-way will complement the L-8 Basin flow- way and help reduce peak flows to the NWFLR and the Estuary. The flow-way also provides a potential route allowing excess water to be brought back from the C-18 Basin to the PBA site for storage. There are no other potential routes that allow water to be directed from the C-18 Basin in the wet season to the PBA site. The flow-way provides a feature that was not part of the CERP original plan and is therefore an unanticipated benefit for CERP. The Applicants provided reasonable assurances that the proposed project is not inconsistent with the District’s objectives.7
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the District issue the subject ERP for the conceptual approval of the SWM system for the BRP and the Phase 1A construction and operation subject to the general and special conditions set forth in the Staff Report and the Amended Staff Report. It is further RECOMMENDED that the District add the following special condition: Prior to application for construction within 1000 feet of the eastern boundary of the above-ground impoundment, the applicants shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. DONE AND ENTERED this 3rd day of December, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2004.
The Issue The issues are whether Respondent Centex Homes is entitled to the issuance of an environmental resource permit to construct a 2665 square-foot boat dock and authorization of a lease of 7807 square feet of sovereign submerged land in the portion of the Intracoastal Waterway known as Lake Worth Lagoon in Palm Beach County.
Findings Of Fact In this case, Respondent South Florida Water Management District (District) has proposed to issue to Respondent Centex Homes (Centex) an environmental resource permit (ERP) and authorization to lease sovereign submerged land. The purpose of the ERP and lease authorization is for Centex to construct a dock to serve a multifamily development known as Ocean Cay. Ocean Cay is a 56-unit townhouse development located on a five-acre parcel in Hypoluxo, Florida, bordered on the west by U.S. Highway 1, on the east by the Lake Worth Lagoon, and on the north and south by developed residential areas. At the time of the hearing, Centex had closed on the sale of 50 of the residential units, was finishing construction of the final six units, and had entered into contracts to sell three of these six units. The Lake Worth Lagoon is a Class III water and is not an aquatic preserve. The Intracoastal Waterway channel is in the middle of the lagoon. The proposed dock would be about 1.5 miles north of the South Lake Worth Inlet (a/k/a Boynton Inlet) and 13 miles south of the Lake Worth Inlet (a/k/a Palm Beach Inlet). As measured from the project location to the opposite shoreline, the length of the dock is more than 25 percent of the width of the waterbody. Petitioner Michael C. Brown resides at 131 Las Brisas Circle, Hypoluxo, Florida. Intervenor O'Brien resides at 124 Park Lane East, Hypoluxo, Florida. Intervenors Evlyn and Vern Hakes reside at 140 Park Lane East, Hypoluxo, Florida. As stipulated by Respondents, Petitioner and Intervenors have standing, so this Recommended Order will not restate the substantial evidence in the record of the standing of Petitioner and Intervenors. Three of the objections raised by Petitioner and Intervenors involve procedural issues that are easily dismissed on factual grounds. The first objection is that Centex lacks the requisite equitable interest in the upland to obtain a lease of sovereign submerged land. The second objection is that the Ocean Cay Homeowners' Association lacks the financial, legal, and administrative resources to ensure the performance of all permitting obligations, as they may arise in the future. The third objection is that District staff, not the Governing Board of District, issued the proposed agency action on the ERP. As for the first procedural objection, Centex acquired the parcel by special warranty deed, which vests fee simple interest in Centex and contains all the customary warranties of title. The title insurance policy obtained by Centex for the parcel insures fee simple interest in Centex, subject to undescribed reservations contained in the deed from the Board Trustees of the Internal Improvement Trust Fund (Trustees), any part of the parcel lying below the mean high water line, and public rights "to use the waters over the submerged land lying adjacent to or within the Intercoastal [sic] Waterway for boating, fishing, swimming and other public purposes, together with the rights of the State of Florida and United States to regulate the use of the navigable waters." Not only does Centex enjoy full beneficial ownership of the upland, subject to the rights of its grantees who have purchased townhouse units, but Centex's title extends approximately 250 feet waterward of the mean high water line by operation of a deed from the Trustees to a predecessor in interest of Centex. If the ownership of submerged land between the submerged land for which an applicant seeks a lease and adjacent uplands also owned by an applicant has any effect at all, it only emphasizes the legitimate, nonspeculative interest of such an applicant in obtaining the sought-after lease. As for the second procedural objection, Centex is a sophisticated land-development entity with ample financial, legal, and administrative resources to ensure the satisfaction of any permitting obligations imposed upon it in connection with this case. At present, Centex controls the Ocean Cay Homeowners' Association. So, at present, the concerns of Petitioner and Intervenors about the ability of the homeowners' association to satisfy its obligations are unfounded. It is true that, upon the closing of the sale of sufficient units, Centex will transfer control of the homeowners' association to the homeowners. The record does not describe the financial, legal, and administrative resources of the homeowners' association following the withdrawal of Centex, but they will presumably not approach the substantial resources of Centex. District claims that Centex may not transfer the ERP without District's approval; however, ERP Special Condition 2 identifies the operating entity responsible for the docking facility as Ocean Cay Homeowners' Association, even though the ERP identifies the applicant as Centex. Fatal to the argument of Petitioner and Intervenors, though, are the facts that the proposed lease of sovereign submerged land is for only five years, a failure to discharge permit obligations that should be incorporated verbatim into the lease militates against any lease renewals, and the removal of the dock would substantially cure any deficiencies in its maintenance. As for the third procedural objection, District staff, on November 21, 2003, proposed to issue a standard general ERP for the construction and operation of a 2665 square-foot docking facility with nine boat slips for use by the residents of Ocean Cay and to approve the lease of 7807 square feet of sovereign submerged land under and surrounding the docking facility. Staff issues a proposed standard general ERP when a permit does not conflict with existing law or policy or a work of the District. District's Governing Board issues a proposed standard individual ERP in the relatively rare case in which a permit conflicts with existing law or policy or a work of the District. Again, the objections of Petitioner and Intervenors lack factual support. Here, the Governing Board, not staff, will receive the Recommended Order and issue the Final Order. So, as Petitioner and Intervenors wish, the Governing Board, not staff, will take the final agency action in this case. Under these circumstances, the record reveals no harm in the fact that District staff issued the proposed agency action. The remainder of the ERP provisions bears on the substantive objections raised by Petitioner and Intervenors. As amended at the final hearing by District and accepted by Centex, ERP Special Condition 9 provides: A permanent sign shall be installed at the docking facility entrance to notify boat owners that mooring at the docking facility shall be limited to no more than a total of nine vessels. Vessels moored in slips 1-2 and 7-9 shall be limited to outboard powered vessels, not more than 27 feet in length as reported by the manufacturer exclusive of engines and any bow pulpit. Vessels moored in slips 3 and 6 shall be limited to not more than 27 feet in length as reported by the manufacturer exclusive of engines and any bow pulpit. Vessels moored in slips 3 and 6 are not limited to outboard power. Vessels moored in slips 4 and 5 shall be limited to 36 feet in length, as reported by the manufacturer exclusive of engines and any bow pulpit. Vessels in slips 4 and 5 are not limited to outboard power. Slips are identified by number in the discussion below. As amended at the final hearing by District and accepted by Centex, ERP Special Condition 10 provides: "Dock, walkway, and seagrass sign pilings shall be constructed of plastic, concrete or greenheart, non-CCA treated wood or wood wrapped in 30 to 60 mil pvc." ERP Special Condition 11 provides that construction of the dock shall be in accordance with the locations and dimensions shown on the enclosed exhibits. The referenced drawings depict the adjacent upland, submerged bottom, and proposed dock. The drawings describe sufficient detail of the adjacent upland. The north and south property lines of the 190- foot wide parcel run due east and west. At mean high water, the parcel's shoreline runs about 210 feet in a south-southwesterly direction from the north property line. Waterward of the mean high water line is a thin band of sand, varying portions of which are exposed between mean high water and mean low water. The drawings describe the submerged bottom in great detail as to seagrass and reasonable detail as to water depths. Waterward of the beach is a band of Halodule wrightii (shoal grass). The drawings describe the shoal grass in this area as "sparse." The drawings depict mean low water depths along three transects at 25-foot intervals, starting roughly at the landward commencement of the shoal grass. (All water depths are based on mean low water.) If the property lines were extended into the water, the north transect is 25 feet south of the north property line, and the south transect is 25 feet north of the south property line. The middle transect is an equal distance between the north and south transects. Along the north transect, the band of shoal grass is about 25 feet wide. Along the south transect, the band narrows to about six feet wide. Along the middle transect, the band is about 50 feet wide. Waterward of the band of sparse shoal grass, according to the drawings, is a band of "mixed Halodule and sparse Johnson's." The reference to "Johnson's" is to Halophila johnsonii (Johnson's grass), which is a rare species of seagrass that is listed by the U.S. Environmental Protection Agency as threatened. 50 C.F.R. § 17.12(h). Johnson's grass is found only on the east coast of Florida from the Indian River Lagoon to Biscayne Bay and is a fragile species of seagrass. The band of mixed shoal grass and sparse Johnson's grass reflects the same pattern as the shoal grass closer to shore: thinner at the north and south ends and wider in the middle. Along the north transect, the band of the two species is about 162 feet wide. Along the south transect, the band is about 212 feet wide. Along the middle transect, the band is about 240 feet wide. Waterward of the middle band of mixed shoal grass and sparse Johnson's grass, according to the drawings, is "scattered isolated blades of H. Decipiens and [Johnson's grass]." "H. Decipiens" is Halophila decipiens (paddle grass). Waterward of the north and south ends of the mixed shoal grass and sparse Johnson's grass are triangular-shaped areas of "sparse Johnson's." Along the north transect, this band of sparse Johnson's grass is about 75 feet wide. Along the south transect, this band of sparse Johnson's grass is about 50 feet wide. Waterward of these bands of sparse Johnson's grass is "scattered, isolated blades of H. Decipiens and [Johnson's grass]." Measured from the mean high water line, the band of mixed shoal grass and sparse Johnson's grass extends about 275 feet along the north transect, 312 feet along the middle transect, and 300 feet along the south transect. Water depths are shallow throughout almost the entire project area. Starting from shore, water depths are almost entirely less than 1.0 feet within the area of sparse shoal grass, although depths reach 1.2 feet along the middle transect. Proceeding waterward along the north transect, the depths within the area of mixed shoal grass and sparse Johnson's grass range from 0.7 feet at the landward end to 2.2 feet at the waterward end. Proceeding waterward along the middle transect, the depths within the area of mixed shoal grass and sparse Johnson's grass range from 1.2 feet to 4.2 feet. Proceeding waterward along the south transect, the depths within the area of mixed shoal grass and sparse Johnson's grass range from 1.0 feet to 2.7 feet. The water continues to deepen in the triangular-shaped areas of sparse Johnson's grass, through which the north and south transects run. Along the north transect, the water depths range from 2.2 feet to 3.1 feet. Along the south transect, the water depths range from 2.7 feet to 3.6 feet. The drawings depict depths waterward of the start of scattered, isolated blades of paddle grass and Johnson's grass. These reported depths extend to a point roughly parallel to the end of the proposed dock along the north transect, about 12 feet waterward of the end of the proposed dock along the middle transect, and about 37 feet waterward of the end of the proposed dock along the south transect. Along the north transect, the depths remain constant, at about 3.5 feet, until the most waterward 25 feet, along which the water deepens 0.5 feet to 4.1 feet. Along the middle transect, the depths deepen about 0.5 feet to around 5.0 feet for about 75 feet, then deepen to 5.4 feet a few feet landward of the most waterward portion of the dock. About 10 feet waterward of the end of the dock, the depth reaches 5.7 feet, which is the deepest reported depth in the project area. Along the south transect, the depths deepen about one foot over the first 100 feet waterward from the start of the scattered, isolated blades of paddle grass and Johnson's grass. From a point parallel to the end of the dock, the water along the south transect deepens another 0.5 feet to about 5.2 feet. The drawings also describe the proposed dock in great detail. The dock, oriented due east and west, runs a distance of 420 feet from its landing, at the mean high water line, to its waterward terminus. The dock is four feet wide, except for a 10-foot long section, at about midpoint, that is six feet wide to facilitate wheelchair access. At the urging of District, to reduce seagrass impacts, Centex moved the dock ten feet south and extended it ten additional feet into deeper water. Because of the former of these modifications, the dock runs ten feet south of the middle transect. The main deck of the dock is grated, so as to allow at least 46 percent of the light to pass through it, from the waterward extent of the sparse shoal grass to the waterward extent of the mixed shoal grass and sparse Johnson's grass, which is a distance of about 250 feet. Although the drawings specify only a value of 46 percent light transmissibility, testimony established that this criterion would require the use of fiberglass decking material. Perhaps the most prominent feature of the dock, in addition to its length, is its height. The deck is five feet above mean high water. Mean high water is 1.7 feet National Geodetic Vertical Datum (NGVD). Mean low water is -0.8 feet NGVD. Five decks run perpendicular to the main deck--three on the south side and two on the north side--to form the slips at the waterward terminus of the dock. The most landward of these decks is four feet wide and 30-feet long and runs south of the main deck, at a point about 330 feet waterward of the landing. Two more decks, both of the same dimensions as the first deck, join the main deck at a point about 375 feet waterward of the landing. Thirty-eight feet separate the two southern decks, so that the two slips created between them (Slips 9 and 8, from landward to waterward) each is 18-19 feet wide. The most landward slip formed north of the main deck (Slip 1) is also 18-19 feet wide. Two pilings north of the main deck and two pilings south of the main deck define these first three slips. The remaining perpendicular decks form the terminus of the entire dock. These decks are eight-feet wide and run 38 feet north and 38 feet south of the edges of the main deck. The four slips immediately landward of these decks are 18-19 feet wide. Moving clockwise from the northwest corner, these slips are Slips 2, 3, 6, and 7. The remaining two slips are waterward of the eight-foot wide deck. The northern slip is Slip 4, and the southern slip is Slip 5. According to the drawings, the waterward extent of the proposed lease is 18 feet waterward of the waterward end of the dock. The waterward extent of the proposed lease is 425 feet from the landward end of the Intracoastal Waterway channel (the 415 feet shown in the drawings is wrong), which, as established by testimony, is 125 feet wide at this location. The drawings also depict a 42-inch high handrail running from the landing to the most landward perpendicular deck. The purpose of the handrail, whose vertical slats are eight inches apart, is to discourage mooring of vessels to the main dock landward of the slips. Every 50 feet, at the base of the handrails on either side of the dock, is a sign prohibiting docking, mooring, loading, or unloading of vessels. At the terminus of the dock, the drawings show a rock crib structure that rises about one foot from the submerged bottom along the entire 80-foot length of the eight-foot wide perpendicular deck. Apparently, the rock crib is eight-feet wide, so that it extends, beneath the surface of the water, under the entire area of the eight-foot wide perpendicular deck. Extending above the rock crib, along this 80-foot long deck, is a wave attenuator. The drawings also depict a couple of seagrass warning signs north and south of the dock, about 20-30 feet waterward of the waterward extent of the sparse Johnson's grass, at the north and south portions of the project area, and the mixed shoal grass and sparse Johnson's grass, in the middle of the project area, just a few feet north of the dock. The drawings also show pilings at a minimum of 10-foot intervals along the entire length of the main deck, as well as pilings for the perpendicular decks at the dock's terminus. Special Condition 12 prohibits fueling facilities or hull-painting or -cleaning at the dock. Special Condition 13 prohibits liveaboards. Special Condition prohibits subleasing of the docking facilities and limits their use to residents of Ocean Cay. Special Conditions 14 and 15 detail various manatee- protection provisions. Special Condition 19 requires the implementation of a turbidity-control plan during construction. Special Condition 18 prohibits construction under the ERP until the Department of Environmental Protection has issued a submerged land lease. As amended at the final hearing by District and accepted by Centex, Special Condition 20 requires Centex to maintain at least one trash receptacle at the terminus of the dock. The District staff report states that Centex has minimized the impacts of the project by reducing the length of the dock from 550 feet and its capacity from 22 slips. The staff report notes, as mentioned above, the relocation of the dock ten feet to the south and ten feet waterward, both changes to reduce impacts on seagrasses. The District staff report states that manatees probably use the area of the project for travel and foraging nearshore seagrass beds. Concerning the lease of sovereign submerged land, the District staff report acknowledges the waterward extent of Centex's ownership of submerged lands. As for the sovereign submerged land, the District staff report states, without explanation, that the docking facility is not more than 25 percent of the width of the "navigable portion of the waterbody," pursuant to Florida Administrative Code Rule 18-21.004(4)(a)3, and is more than 100 feet from the federal navigation channel, as required by Florida Administrative Code Rule 18-21.004(4)(a)4. The District staff report attaches "Recommended Special Lease Conditions for Ocean Cay." These include a restriction that vessels moored at the dock clear the submerged bottom by at least one foot at all times while moored. Other provisions correspond to the special conditions attaching to the ERP, as described above. As discussed in the Conclusions of Law, analysis of the proposed activity requires three determinations: first, does the proposed activity, unmitigated, adversely impact surface waters; second, if so, has Centex reduced or eliminated all such impacts through design modifications to the extent practicable; and third, if so, but if net impacts remain, has Centex adequately mitigated these net impacts? Absent mitigation, the construction of a 420-foot dock covering 2665 square-feet of water adversely impacts the water resources, most obviously by the immediate destruction of the seagrasses occupying the area in which at least 80 pilings will be installed and by the gradual destruction of the seagrasses that will be shaded by the dock and lose the light necessary for survival. Centex has incorporated into the proposed dock design all practicable modifications that could eliminate or reduce these adverse impacts to the surface waters. Centex has proposed a dock that is narrow, high, translucent, and nontoxic. To minimize the risk of prop dredging of the seagrass and bottom sediments, the dock's length and railings would limit mooring to relatively deeper water, and the boat-length restriction would effectively limit the reach of prop dredging. Even after these design modifications, however, adverse impacts to the surface waters remain that Centex must mitigate. The ultimate issue, then, is whether Centex has adequately mitigated the remaining impacts of the proposed activity by proposing sufficient affirmative acts to offset the remaining adverse impacts. Strictly speaking, mitigation consists of activities that are unnecessary for the desired activity--here, the construction of a dock--but are performed to offset the adverse impacts of the desired activity. In this case, Centex proposes three mitigation activities: the construction of a rock crib, the installation of a wave attenuator, and the erection of two seagrass warning signs. The adequacy of this proposed mitigation requires identification of the specific impacts to the surface waters and the efficacy of the mitigation in offsetting these impacts. As cited in the Conclusions of Law, the public-interest criteria set forth the elements requiring consideration. Except to the extent discussed in navigation, the dock will not adversely affect the public health, safety, or welfare or property of others. The narrow, long dock, which restricts mooring activity to its terminus over 400 feet from the shoreline, has no impact on the riparian rights of adjacent or nearby upland owners. Thus, no mitigation is necessary for this criterion. Even after mitigation, the dock will adversely affect the conservation of fish and wildlife, including listed species, and their habitats. The most immediate impact of the dock is upon the seagrasses that presently grow on the bottom. Seagrasses, which are among the most productive communities known to nature, are vital to the health of the Lake Worth Lagoon. Seagrasses perform numerous functions important to the surface waters and, specifically, the conservation of fish and wildlife and their habitats: shelter for small fish and shellfish; food for a variety of small and larger organisms, including manatee and sea turtles; stabilization of bottom sediments, which improves water clarity; recycling of nutrients, including nitrogen--an important function for the water quality of the nitrogen-limited Lake Worth Lagoon; and formation of a substrate on which epiphytes may attach and provide food for a variety of organisms, including manatee and sea turtles. The mitigation activities offset some, but not all, of the functions provided by the seagrass that are lost by the construction of the dock. The rock crib probably will replace the function of the seagrass in stabilizing sediments. The rock crib probably will replicate some of the shelter function of the seagrass, although nothing in the record would support a finding that the crevices of the rock crib provide exactly the same shelter as the seagrass patches that will be destroyed by the dock. Thus, there is no basis to assume that the shelter functions of the seagrass are replaced by the shelter functions of the rock crib. Undoubtedly, the rock crib will not replace the food function of the seagrass. Some predators may find the same juvenile fish in the rock crib as they have found in the seagrass, and some organisms may find the same epiphytes attaching to the rock crib as they have found attaching to the seagrass. However, the organisms, such as manatee and sea turtles, that eat the seagrass itself will find the rock crib a poor food substitute. Additionally, the rock crib will perform none of the nutrient-fixing that seagrasses perform. The rock crib thus fails to perform the vital functions of seagrass in providing food for important species, such as the manatee, and fixing nutrients, which is important to improving or maintaining water quality. The wave attenuator is a potentially useful form of mitigation. Although a slight over-generalization, the seagrass thins to the point of near disappearance at a point in which the slope of the submerged bottom breaks--very roughly at about three feet deep. Centex's witnesses offered the better explanation of this phenomenon by linking it to the strong wakes produced by vessels motoring in the Intracoastal Waterway. Although the area of the proposed project is permanently slow speed, no wake, the Intracoastal Waterway channel has no speed limit, and the wakes from vessels in the channel pound the shallows, focusing considerable energy upon the rising bottom at the point at which the water depth reduces to three feet. The main problem with the wave attenuator as mitigation is one of scale. Nothing in the record suggests that the attenuator, even in conjunction with the rock crib beneath it, will attenuate the incoming waves along the entire length of the dock. The attenuator will absorb the energy of the waves, whether from passing vessels or storms, but the interrupted waves will rejoin a short distance landward of the attenuator, possibly waterward of the first appearance of significant seagrass. The wave attenuator is thus inadequate in preserving or enhancing the remaining seagrass following the construction of the dock. The signs suffer two shortcomings. First, they are as likely to attract fishers as they are to deter recreational boaters, so the record permits no finding as to their efficacy in preserving or enhancing the remaining seagrass following the construction of the dock. Second, the record discloses little prop dredging of the seagrasses in the proposed vicinity of the dock, so the effect of the signs is not to ameliorate the damage historically done in this area by boats. To the contrary, at best, the signs may reduce some of the prop dredging that would occur in the future by boats drawn close to shore by the presence of the dock, which will attract fish and, thus, fishers. For these reasons, the signs are inadequate mitigation. Considered in conjunction with each other, the three mitigation activities fail to address the important food and nutrient-fixing functions of the seagrass that would be destroyed by the dock. Ignoring the failure of the proposed mitigation to address two of the most important functions of the seagrass, District and Centex contend that the mitigation is adequate for other reasons. District and Centex contend that the loss of seagrass is de minimis, consisting of not more than .03 acres of destroyed seagrass, or about 2.2 percent of the seagrass in the project area. Although the east-west orientation of the dock results in more shading than an identical dock oriented north- south, the shading loss could be less due to commendable design modifications involving the width, height, and translucent materials of the dock. Adding to the loss of seagrass from shading is the loss from the "halo effect," which is the wider area of seagrass loss probably resulting from the effect of the dock in artificially attracting and retaining seagrass consumers, like parrot fish. The record thus affords no basis for a finding of a loss of less than .03 acres. Nor does the record afford any basis for determining that the seagrass loss is de minimis. If Lake Worth Lagoon has seagrass to spare, the record does not support such a finding. If the lost functions of the seagrass--primarily, providing food and fixing nutrients--are not de minimis, the question remains whether practicable mitigation for these functions exists. Although transplantation of seagrass may be impracticable due to poor water clarity, even one of Centex's experts noted the importance of filling holes for seagrass recruitment, given the inability of seagrass to extend roots laterally up or down slopes. District's expert identified backfilling submerged holes and scraping spoil islands as two means of encouraging natural seagrass recruitment. District's expert noted a practical consideration favoring rock cribs versus more elaborate, higher-maintenance mitigation. Rock cribs are low- or no-maintenance projects that require no monitoring, enforcement, or enhancement. However, these same considerations underscore the complexity of the functions provided by seagrass lost to the proposed activity. Mitigating the loss of these functions may be difficult and high-maintenance, if the mitigation is to offset the loss. On this record, a finding of impracticability of such mitigation activities would be speculative, given the absence of evidence of impracticability, such as in the form of the absence of nearby depressions with suitable recruitment conditions or seagrass restoration projects in which Centex could participate. An unusual factor militating against a finding of adequate mitigation is that one of the seagrasses is itself a protected species. Johnson's grass is rare and fragile. The dock would displace Johnson's grass in a location less than one mile north of one of ten federally designated Critical Habitats for Johnson's Seagrass and one of two such habitats in Lake Worth Lagoon. 50 C.F.R. § 226.213(h). In contrast to the permit conditions directly protecting the manatee, the record is silent as to any effort by District to coordinate this permit with the work of the federal government and possibly the state and local governments to preserve Lake Worth Lagoon's seagrass, including the threatened Johnson's grass. On balance, even after mitigation, the dock will adversely affect the conservation of fish and wildlife, including listed species, and their habitats. The dock will not adversely affect navigation, the flow of water, and erosion or shoaling. Located only 1.5 miles from the inlet, tidal flows are good in the project area. The rock crib and wave attenuator, which tend to restrict east-west flows and waves, will have little impact on the tidal flows, which are predominantly in a north-south direction. The dock will not cause any erosion or shoaling. The dock will be lighted and should not present a navigation hazard. Larger vessels will remain a safe distance from the dock as they travel in the Intracoastal Waterway channel. Under normal boating conditions, small boats, such as kayaks, canoes, and small motorboats, can safety navigate under the five-foot deck and between the pilings spaced at a minimum distance of ten feet apart. The dock will not adversely affect the fishing or recreational values in the vicinity. To the contrary, the structure provided by the dock will probably attract and concentrate fish, making them easier to catch. In the longer term, even after mitigation, the dock will adversely affect marine productivity for the reasons discussed in connection with the conservation of fish and wildlife and their habitat. The dock will not adversely affect any historical or archaeological resources. Even after mitigation, the dock will adversely affect the current conditions and relative value of functions for the reasons discussed in connection with the conservation of fish and wildlife and their habitat. For the reasons set forth above, Centex has failed to provide reasonable assurance that the proposed activity, even after mitigation, is not harmful to the District's water resources, is not inconsistent with District's overall objectives, is not contrary to the public interest, will not adversely impact the value of functions provided to fish and wildlife and listed species by surface waters, and will not cause adverse secondary impacts to the water resources
Recommendation It is RECOMMENDED that the South Florida Water Management District enter a final order denying Centex Homes' request for an environmental resource permit and approval to lease sovereign submerged lands for the purpose of constructing the above- described dock at Ocean Cay in the Lake Worth Lagoon. DONE AND ENTERED this 2nd day of August, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2004. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida Marcy I. LaHart 33416-4680 Marcy I. LaHart, P.A. 711 Talladega Street West Palm Beach, Florida 33405 Ashley D. Foster South Florida Water Management District 3301 Gun Club Road Mail Stop Code 1410 West Palm Beach, Florida 33406 J. Kendrick Tucker Huey, Guilday, Tucker, Schwartz & Williams, P.A. Post Office Box 12500 Tallahassee, Florida 32317-2500
The Issue Whether the activities conducted on respondent's property required a dredge/fill permit and whether respondent violated the conditions of the permit issued on February 15, 1985.
Findings Of Fact Respondent is the record holder of a parcel of land located within Section 35, Township 45, South, Range 21 East, in Lee County, Florida. Respondent's property is contiguous to Pine Island Sound, a Class II, Outstanding Florida Water. Maureen Powers, an Environmental Specialist with the Department initially inspected respondent's property on May 23, 1984, after the Department received an anonymous complaint that someone was clearing away mangroves on the property. Ms. Powers-discovered that an earthen-fill road had been constructed on the property, and a portion of the road, 24' x 43'; was located within the landward extent of the state's waters. The determination that the portion of the road was within the Department's jurisdiction was based on the dominance of black and white mangroves. There had been recent mangrove cutting in the area, and a pile of vegetative debris, the result of the cutting, had been placed in the jurisdictional wetlands contiguous to Pine Island Sound. On June 1, 1984, Ms. Powers met with respondent in Langley Adair's office to discuss the violations observed on May 23, 1984, and to discuss the resolution of these violations. Respondent agreed to remove all of the earthen fill and vegetative debris that he had deposited within the jurisdictional wetlands. He agreed to refrain from any further work within the jurisdictional area prior to receiving a permit from the department. He also agreed to open up a flow channel in the berm along Pine Island Sound to restore circulation to the area. On July 11, 1984, Ms. Powers conducted an on-site inspection and discovered that the vegetative debris and the fill material had not been removed. Further, it was apparent that respondent's proposed home site, outlined by string and stakes, was submerged and directly connected by water to Pine Island Sound. The water standing on the property covered a portion of the fill area. On August 8, 1984, another inspection was performed, and it was discovered that respondent still had not removed the fill materials. The condition of the property was essentially the same as it had been on July 11, 1984. By letter dated August 20, 1984, respondent was again notified of the violations and reminded that he had agreed on June 1, 1984, to remove the vegetative and earthen fill. Respondent was informed that he needed to remove the fill materials within 30 days of receipt of the letter in order to avoid further enforcement action. On September 5, 1984, Ms. Powers again inspected the property and found that the proposed homesite and a portion of the fill were still submerged, that the water connected directly with Pine Island Sound and the fill materials had not been removed. Also apparent was a flume of milky white water which originated at the toe of the fill and continued into Pine Island Sound. Water samples were taken which revealed that the erosion of the unauthorized fill was resulting in a violation of state surface water quality criteria, specifically, turbidity1 greater than 29 Nephelometric Turbidity Units above natural background. The background sample, taken upstream from the site of the discharge, had a value of 5.2 turbidity units. The water sample taken two feet from the toe of the fill had a value of 69 turbidity units, and the sample from Pine Island Sound waterward of the mangrove fringe had a value of 46 turbidity units. On October 9, 1984, a letter was sent to respondent which pointed out that the earthen and vegetative fill had not been removed and notifying respondent that erosion of the earthen fill into the waters of Pine Island Sound had resulted in violation of surface water quality criteria. Respondent was requested to immediately cease and desist from all unauthorized. activity under the Department's jurisdiction. To clarify the situation, original photos of the site were sent with the letter which showed the earthen fill, the vegetative debris, and the turbid water leaving the site. A diagram of the site was also included to show the location fill materials that were to have been removed. On October 25, 1984, Ms. Powers met with Mr. Decker at the site. Ms. Powers showed respondent the earthen fill and vegetative debris that should have been removed. Ms. Powers noted that the waterward 23' x 24' section of the earthen fill had become heavily colonized by black mangrove seedings and, therefore, excepted that portion of the fill from the removal requirement so that the seedlings would not be disturbed. Mr. Decker stated that he would remove the unauthorized fill within two weeks. Meanwhile, apparently in September, respondent had submitted a permit application. Mr. Beaver was the field inspector assigned by DER to evaluate the application and make a recommendation on the feasibility of the project to the dredge and fill supervisor. On October 8, 1984, Mr. Beaver performed the field inspection at the site, and on October 23, 1984, issued his permit application appraisal recommending that the application be denied. Mr. Beaver recommended that the project be reconsidered for a permit if, among other things, the house site were removed from the landward extent of the state waters and located in the uplands, the septic tank were removed from the low lying portions of the site, and previously cut areas were allowed to regrow in native vegetation. On November 15, 1984, Mr. Beaver met with Mr. Decker and Mr. Cantrell, the district supervisor of dredge and fill, to discuss the project. Mr. Cantrell asked how the project could be modified so that Mr. Decker could have his house in the location where he wanted it. Mr. Beaver suggested a stilt, elevated house with a small fill pad that would allow access to the entrance of the house. The house would have to be elevated -enough so that revegetation of wetland plants could occur underneath the house structure and water flow could be maintained. On November 19, 1984, Ms. Powers and Mr. Beaver met Mr. Decker at the property. Ms. Powers and Mr. Beaver staked the DER jurisdiction line and marked the proposed location of Mr. Decker's boardwalk. Mr. Decker asked about placing wood chip mulch on the wetlands on his property in order to beautify the area. Mr. Decker was informed that wood chip mulch was considered vegetative fill and would require modification of his permit application. Subsequent to the meeting of November 15 and the on- site inspection of November 19, Mr. Decker modified his project. However, wood chip mulch was not mentioned. On December 7, 1984, Mr. Beaver recommended that the application be approved subject to specified conditions, which were ultimately incorporated into the permit. On December 11, 1984, Ms. Powers inspected the site and discovered that a large pile of wood chips had been placed on the northeast end of the fill road waterward of the jurisdiction line. The vegetative debris and earthen fill that had previously been on the project had not been removed. Respondent was notified of the violations by a Cease and Desist letter dated January 4, 1985. The letter pointed out that respondent had been told specifically that wood chip mulch was considered vegetative fill and that dredge/fill permit would be required prior to the placement of any fill material. On February 5, 1984, respondent met with DER, officials to discuss the violations. Mr. Decker stated that the fill had been removed as requested. The Department informed Mr. Decker that an inspection would be performed and, if the fill had not been removed, the Department would pursue formal enforcement action. On February 7, 1985, the site was inspected none of the fill material had been removed. A subsequent inspection on February 20, 1985, revealed that the wood chips had been spread throughout the jurisdictional wetlands. On February 15, 1985, respondent received a permit to fill and to construct a dock and boardwalk. The specific conditions of the permit include the following: 2. A 20' x 16' - 4" fill pad shall be the only fill placed waterward of the jurisdictional line. This fill pad will be composed of clean sand and have the banks stabilized by a riprap revetment with a slope not greater than 2H:1V. * * * The house and all associated structures shall be built upon stilts with concrete footings and/or wooden pilings. On-site turbidity control devices shall be installed and properly maintained to localize turbidity impacts to the construction area. * * * All vegetative debris, trash and spoil material resulting from concrete footing placement shall be removed from the landward extent of State Waters as defined by the jurisdiction line staked by the DER. Upon completion of construction, non- filled areas beneath the stilt house and associated structures shall be returned to original grade if they were altered by construction. Wetland vegetation shall be planted in the previously cleared area and mangroves removed by construction activities shall be replaced on a 2 for 1 basis with 80% survival over a three year period. * * * 11. The project shall comply with applicable State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria 17-3.111 - Criteria - Class II Waters Shellfish Propagation or Harvesting, Surface Waters General Conditions 2 and 5 of the permit provide: 2. This permit is valid only for the specific processes and operation applied for and indicated in the approved drawings or exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for 81' filled area was located within the landward extent of the state waters. 19. Respondent has violated several conditions of the permit issued February 15, 1985. Specific Condition #2 provided that the 20' x 16' fill pad would be "the only fill placed waterward of the jurisdictional line." Instead, respondent filled an area approximately 78' x 81' to an average height of about 2\', totaling approximately 585 cubic yards of fill. The fill was non-native fill brought onto the site. The permit did not authorize fill for a septic tank in the revocation and enforcement action by the department. 5. This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant or aquatic life or property and penalties therefor caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, unless specifically authorized by an order from the department. On March 19, 1985, an inspection of the property revealed that Mr. Decker had totally ignored the conditions of his permit. Rather than a fill pad of 20' x 16', respondent had filled an area approximately 78' x 81'.2 The fill was unstabilized, and no turbidity control devices were in place. Fill material had been used to construct a earthen berm across a natural flow channel, blocking the flow of water onto the property. Further, the vegetative debris resulting from the construction of the boardwalk had been deposited in the mangrove wetlands. On March 22, 1985, a Notice of Violation and. Orders for Corrective Action was sent to the respondent. Respondent received the notice on or about March 26, 1985. The landward extent of the state waters on respondent's property, the area in which a DER permit is required for dredging and filing, was determined by the presence of red mangroves (Rhizophora mangle), black mangroves (Avicennia germinans), and saltwort (Basis maritime) as the dominant species. The jurisdiction line was originally staked on November 19, 1984, and was reestablished on April 23, 1985, from remaining landmarks, due to the original markers being removed. The 78' x81' filled area was located within the landward extent of the state waters. Respondent has violated several conditions of the permit issued February 15, 1985. Specific Condition #2 provided that the 20' x 16' fill pad would be "the only fill placed waterward of the jurisdictional line." Instead, respondent filled an area approximately 78' x 81' to an average height of about 21/2', totaling approximately 585 cubic yards of fill. The fill was non-native fill brought onto the site. The permit did not authorize fill for a septic tank in the jurisdictional wetlands, but respondent placed a septic tank and drainfield in that area.3 By filling an area several times the size of the area authorized, respondent has seriously violated the conditions of the permit. A fill area of the size that now exists eliminates the habitat and water quality functions that the area historically performed. Respondent has violated Specific Condition #4, which required that the house and associated structures be built on stilts. The purpose of such a requirement is to preserve undisturbed the existing substrate, which constitutes the base of the food chain, and to allow for a free flow of water across the site, which is essential to the health of the mangrove system. Respondent not only filled an area larger than his proposed house, he poured a solid, continuous, concrete foundation on top of the fill, which would prevent the flow of water should the water rise high enough to come onto the filled area.4 By filling the area, destroying the substrate, and preventing the flow of water into the area, respondent has violated Specific Condition #4 of the permit. Respondent violated Specific Condition #5 of his permit in that respondent failed to install any turbidity control devices. Turbidity control devices of some sort are necessary in a fill area such as the one in this case. Turbidity screens or staked hay bales could have been used. Respondent also violated Specific Condition #8. Construction debris and vegetative debris were located throughout the area. Although respondent technically has not violated Specific Condition #9, in that it requires acts to be performed "upon completion of construction", respondent has made compliance with that provision an impossibility because he has filled the "non- filled areas beneath the stilt house" and therefore there are no "non-filled areas" to return to original grade. Respondent has never requested that his permit conditions and requirements be modified. By his actions, respondent has repeatedly shown a complete disregard for the requirements of the law, and he has totally ignored the conditions set forth in the permit. Mr. Decker was not qualified as an expert and I did not find him to be a credible witness. The reasonable costs and expenses incurred by the Department in relation to the enforcement aspects of this action are $866.17. These costs and expenses were incurred by the Department in its effort to control and abate pollutants and to restore the waters and property of the state to their former condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the respondent's permit, number 360902245, be revoked that the respondent be ordered to make payment to the Department in the amount of $866.17 for costs and expenses incurred by the state and that the following corrective action be ordered: Respondent shall within thirty (30) days, remove all unauthorized fill material placed within the area of Department jurisdiction. Prior to initiating the fill removal respondent shall arrange for Department personnel to stake the area to be restored. All areas shall be restored to the elevation and soil conditions which existed prior to the placement of fill material. Respondent shall take all necessary precautions to ensure that state water quality standards are not violated during the restoration work. Respondent shall not disturb adjacent areas within the jurisdiction of the Department unless approved by the Department in writing. DONE and ENTERED this a 24th day of January, 1986, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 24th day of January, 1986.
