The Issue The issue in this case is whether, and under what conditions, the Respondent, St. Johns River Water Management District (District), should grant Environmental Resource Permit (ERP) No. 40-109-81153-1 authorizing Respondents, Jay and Linda Ginn (Ginns or Applicants), to construct a 136-unit single-family residential development with associated surface water management system.
Findings Of Fact The Parties and Proposed Project Respondent, the District, is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce the cited statutes and Florida Administrative Code Rules promulgated by the District under the authority of those statutes. (Unless otherwise stated, all Florida Statutes refer to the 2003 codification, and all Florida Administrative Code Rules refer to the current codification.) Respondents, Jay and Linda Ginn, are the owners of 47 acres of land located just west of the City of St. Augustine in St. Johns County, Florida. They are seeking ERP Permit No. 40- 109-81153-1 from the District to construct a 136-acre residential community and associated surface water management facilities on the property, to be known as Ravenswood Forest. The 47-acre project site is predominantly uplands, with a large (10.98-acre) wetland (Wetland 1) located on the eastern boundary and completely separating the uplands on the project site from adjacent properties to the east. While the central portion of the site is mostly a sand pine vegetated community, and the western portion is largely a pine flatwood community, there are six other smaller wetlands scattered within the upland areas lying west of Wetland 1, each numbered separately, 2 through 7. The site is currently undeveloped except for some cleared areas that are used as dirt road trails and a borrow pit or pond excavated in the central part of the site. This clearing and excavation was accomplished in the 1980’s for a project that was never completed. The project site is bordered on the north by Ravenswood Drive. On the east lies an existing residential development probably constructed in the 1970’s; to the west of the project site is a power-line easement; and to the south is a Time Warner cable facility. The land elevations at the project site are generally higher on the west and slope off to Wetland 1 on the east. Under current conditions, water generally drains from west to east into Wetland 1. Some water from the site, as well as some water entering the site from off-site properties to the west, flows into the existing pond or borrow pit located in the central portion of the site. Under extreme rainfall conditions, the borrow pit/pond can reach a stage that allows it to overflow and discharge into Wetland 1. Some off-site water also enters Wetland 1 at its north end. Water that originates from properties to the west of the Ravenswood site is conveyed through ditches to the roadside ditch that runs along the south side of Ravenswood Drive. Water in this roadside ditch ultimately enters Wetland 1 at its north end and flows south. Once in Wetland 1, water moves north to south. Water leaves the part of Wetland 1 that is located on the Ravenswood site and continues to flow south through ditches and culverts ultimately to the San Sebastian River. The Wetland 1 system is contiguous with wetlands located on property owned by Petitioner, Marilyn McMulkin. Mrs. McMulkin lives on Hibiscus Street to the east of the project. Mrs. McMulkin is disabled and enjoys observing wildlife from her home. Mrs. McMulkin has observed woodstorks, kites, deer, cardinals, birds, otter, indigo snake, flying squirrels, gopher tortoises, and (more recently) bald eagles on her property or around the neighborhood. Mrs. McMulkin informed the District of the presence of the bald eagle in 2002, but it was not discovered until November of 2003 that there was an eagle nest on the Ginns property in Wetland 1. Petitioner, Diane Mills, owns a house and property on Hibiscus Street to the east of the Project. The proposed stormwater discharge for the Project is to a wetland system that is contiguous with a wetland system that is in close proximity to Mrs. Mills' property. Petitioners' property is not located in a flood plain identified by FEMA. Nevertheless, Petitioners' property experiences flooding. At times, the flooding has come through Mrs. McMulkin's house and exited out the front door. The flood water, which can be 18-24 inches high in some places on Mrs. McMulkin's property, comes across her backyard, goes through or around her house, enters Hibiscus Street and turns north. The flooding started in the late 1980's and comes from the north and west, from the Ginns' property. The flooding started after Mr. Clyatt Powell, a previous co-owner of the Ravenswood property, started clearing and creating fill roads on the property using dirt excavated from the property. The flooding now occurs every year and has increased in duration and frequency; the flooding gets worse after the rain stops and hours pass. The evidence, including Petitioners' Exhibit 1, indicated that there are numerous other possible reasons, besides activities on the Ginns' property in the late 1980's, for the onset and exacerbation of Petitioners' flooding problems, including: failure to properly maintain existing drainage facilities; other development in the area; and failure to improve drainage facilities as development proceeds. The parties have stipulated that Petitioners have standing to object to ERP Permit No. 40-109-81153-1. Project Description As indicated, water that originates west of the project site currently enters the project site in two ways: (1) it moves across the western project boundary; and (2) it travels north to a ditch located on the south side of Ravenswood Drive and is conveyed to Wetland 1. The offsite water that moves across the western project boundary comes from a 16-acre area identified as Basin C (called Basin 4 post-development). The offsite water that moves north to the ditch and enters Wetland 1 comes from a 106.87-acre area identified as Basin D (called Basin 5 post-development). The project’s stormwater conveyance and treatment facilities include two connected wet detention ponds with an outfall to a wetland on the eastern portion of the project site. Stormwater from most of the project site will be conveyed to a pond, or detention area (DA) DA-1, which will be located near (and partially coinciding with the location of) the existing pond or borrow pit. The water elevation in DA-1 will be controlled at a level of 26 feet. Water from DA-1 will spill over through a control structure into a pipe that will convey the spill-over to DA-2. In addition to the spill-over from DA-1, offsite water that currently enters the project site across the western boundary will be conveyed to a wetland area at the southwest corner of the project site. At that point, some of the water will be taken into DA-2 through an inlet structure. The water elevation in DA-2 will be controlled at level 21. Water from DA-2 will be released by a control structure to a spreader swale in Wetland 1. While some of the water conveyed to the wetland area at the southwest corner of the project site will enter DA-2, as described, some will discharge over an irregular weir (a low area that holds water until it stages up and flows out) and move around the southern boundary of the project site and flow east into Wetland 1. Wetland 1 is a 10.98-acre onsite portion of a larger offsite wetland area extending to the south and east (which includes the wetlands on Mrs. McMulkin's property). For purposes of an Overall Watershed Study performed by the Ginns' engineering consultant, the combined onsite and offsite wetlands was designated Node 98 (pre-development) and Node 99 (post- development). From those areas, water drains south to ditches and culverts and eventually to the San Sebastian River. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers, if needed. In addition, the District's TSR imposed permit conditions that require erosion and sediment control measures to be implemented. The District's TSR also imposed a permit condition that requires District approval of a dewatering plan within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site. Wetland Impacts Onsite Wetlands Wetland 1 is a 10.98-acre mixed-forested wetland system. Its overall condition is good. It has a variety of vegetative strata, a mature canopy, dense understory and groundcover, open water areas, and permanent water of varying levels over the course of a year. These attributes allow for species diversity. Although surrounded by development, the wetland is a good source for a variety of species to forage, breed, nest, and roost. In terms of vegetation, the wetland is not unique to northeast Florida, but in November 2003 an eagle nest was discovered in it. A second wetland area onsite (Wetland 2) is a 0.29-acre coniferous depression located near the western boundary of the site. The overall value of the functions provided by Wetland 2 is minimal or low. It has a fairly sparse pine canopy and scattered ferns provide for little refuge and nesting. Water does stand in it, but not for extended periods of time, which does not allow for breeding of most amphibians. The vegetation and inundation do not foster lower trophic animals. For that reason, although the semi-open canopy would be conducive to use by woodstorks, birds and small mammals do not forage there. A third wetland area onsite (Wetland 3) is a 0.28-acre mixed-forested wetland on the northern portion of the site. The quality of Wetland 3 is low. A 24-inch culvert drains the area into a 600-foot long drainage ditch along the south side of Ravenswood Drive leading to Wetland 1. As a result, its hydroperiod is reduced and, although it has a healthy pine and cypress canopy, it also has invasive Chinese tallow and upland species, along with some maple. The mature canopy and its proximity to Ravenswood Drive would allow for nesting, but no use of the wetland by listed species has been observed. In order to return Wetland 3 to being productive, its hydroperiod would have to be restored by eliminating the connection to the Ravenswood Drive ditch. A fourth wetland area onsite (Wetland 4) is a 0.01- acre portion of a mixed-forested wetland on the western boundary of the site that extends offsite to the west. Its value is poor because: a power line easement runs through it; it has been used as a trail road, so it is void of vegetation; and it is such a small fringe of an offsite wetland that it does not provide much habitat value. A fifth wetland area onsite (Wetland 5) is a 0.01-acre portion of the same offsite mixed-forested wetland that Wetland 4 is part of. Wetland 5 has a cleared trail road through its upland fringe. Wetland 5 has moderate value. It is vegetated except on its upland side (although its vegetation is not unique to northeast Florida), has a nice canopy, and provides fish and wildlife value (although not as much as the interior of the offsite wetland). A sixth wetland area onsite (Wetland 6) is a 0.28-acre wetland located in the western portion of the site. It is a depression with a coniferous-dominated canopy with some bays and a sparse understory of ferns and cord grass that is of moderate value overall. It does not connect with any other wetlands by standing or flowing water and is not unique. It has water in it sufficient to allow breeding, so there would be foraging in it. Although not discovered by the Ginns' consultants initially, a great blue heron has been observed utilizing the wetland. No listed species have been observed using it. Wetland 6 could be good gopher frog habitat due to its isolation near uplands and its intermittent inundation, limiting predation by fish. In addition, four gopher tortoise burrows have been identified in uplands on the project site, and gopher frogs use gopher tortoise burrows. The gopher frog is not a listed species; the gopher tortoise is listed by the State of Florida as a species of special concern but is not aquatic or wetland-dependent. Woodstorks are listed as endangered. Although no woodstorks were observed using Wetland 6, they rely on isolated wetlands drying down to concentrate fish and prey in the isolated wetlands. With its semi-open canopy, Wetland 6 could be used by woodstorks, which have a wingspan similar to great blue herons, which were seen using Wetland 6. However, Wetland would not provide a significant food source for wading birds such as woodstorks. The other surface water area onsite (Wetland 7) is the existing 0.97-acre pond or borrow pit in the southwest portion of the project site. The pond is man-made with a narrow littoral shelf dominated by torpedo grass; levels appears to fluctuate as groundwater does; and it is not unique. It connects to Wetland 1 during seasonal high water. It has some fish, but the steep slope to its littoral shelf minimizes the shelf's value for fish, tadpoles, and larvae stage for amphibians because fish can forage easily on the shelf. The Ginns propose to fill Wetlands 2, 3, 4, and 6; to not impact Wetland 5; and to fill a 0.45-acre portion of Wetland and dredge the remaining part into DA-1. Also, 0.18 acre of Wetland 1 (0.03 acre is offsite) will be temporarily disturbed during installation of the utility lines to provide service to the project. Individually and cumulatively, the wetlands that are less than 0.5-acre--Wetlands 3, 6, 2, 4, and 5--are low quality and not more than minimal value to fish and wildlife except for Wetland 5, because it is a viable part of an offsite wetland with value. While the Ginns have sought a permit to fill Wetland 4, they actually do not intend to fill it. Instead, they will simply treat the wetland as filled for the purpose of avoiding a County requirement of providing a wetland buffer and setback, which would inhibit the development of three lots. Offsite Wetlands The proposed project would not be expected to have an impact on offsite wetlands. Neither DA-1 nor DA-2, especially with the special conditions imposed by the District, will draw down offsite wetlands. The seasonal high water (SHW) table in the area of DA- 1 is estimated at elevation 26 to 29. With a SHW table of 26, DA-1 will not influence groundwater. Even with a SHW table of 29, DA-1 will not influence the groundwater beyond the project's western boundary. DA-1 will not adversely affect offsite wetlands. A MODFLOW model was run to demonstrate the influence of DA-1 on nearby wetlands assuming that DA-1 would be controlled at elevation 21, that the groundwater elevation was 29, and that no cutoff wall or liner would be present. The model results demonstrated that the influence of DA-1 on groundwater would barely extend offsite. The current proposed elevation for DA-1 is 26, which is higher than the elevation used in the model and which would result in less influence on groundwater. The seasonal high water table in the area of DA-2 is 28.5 to 29.5. A cutoff wall is proposed to be installed around the western portion of DA-2 to prevent it from drawing down the water levels in the adjacent wetlands such that the wetlands would be adversely affected. The vertical cutoff wall will be constructed of clay and will extend from the land surface down to an existing horizontal layer of relatively impermeable soil called hardpan. The cutoff wall tied into the hardpan would act as a barrier to vertical and horizontal groundwater flow, essentially severing the flow. A MODFLOW model demonstrated that DA-2 with the cutoff wall will not draw down the adjacent wetlands. The blow counts shown on the boring logs and the permeability rates of soils at the proposed location of DA-2 indicate the presence of hardpan. The hardpan is present in the area of DA-2 at approximately 10 to 15 feet below the land surface. The thickness of the hardpan layer is at least 5 feet. The Ginns measured the permeability of hardpan in various locations on the project site. The cutoff wall design is based on tying into a hardpan layer with a permeability of 0.052 feet per day. Because permeability may vary across the project site, the District recommended a permit condition that would require a professional engineer to test for the presence and permeability of the hardpan along the length of the cutoff wall. If the hardpan is not continuous, or if its permeability is higher than 0.052 feet per day, then a liner will be required to be installed instead of a cutoff wall. The liner would be installed under the western third of DA-2, west of a north-south line connecting the easterly ends of the cutoff wall. (The location of the liner is indicated in yellow on Applicants' Exhibit 5B, sheet 8, and is described in District Exhibit 10.) The liner would be 2 feet thick and constructed of clay with a permeability of no more than 1 x 10-6 centimeters per second. A liner on a portion of the bottom of pond DA-2 will horizontally sever a portion of the pond bottom from the groundwater to negate the influence of DA-2 on groundwater in the area. A clay liner would function to prevent adverse drawdown impacts to adjacent wetlands. The project, with either a cutoff wall or a clay liner, will not result in a drawdown of the groundwater table such that adjacent wetlands would be adversely affected. Reduction and Elimination of Impacts The Ginns evaluated practicable design alternatives for eliminating the temporary impact to 0.18-acre of Wetland 1. The analysis indicated that routing the proposed utility services around the project site was possible but would require a lift station that would cost approximately $80,000 to $100,000. The impact avoided is a temporary impact; it is likely that the area to be impacted can be successfully reestablished and restored; and preservation of Wetland 1 is proposed to address lag-time for reestablishment. It was determined by the Ginns and District staff that the costs of avoidance outweigh the environmental benefits of avoidance. Petitioners put on evidence to question the validity of the Wetland 1 reduction/elimination analysis. First, Mr. Mills, who has experience installing sewer/water pipes, testified to his belief that a lift station would cost only approximately $50,000 to $60,000. He also pointed out that using a lift station and forced main method would make it approximately a third less expensive per linear foot to install the pipe line itself. This is because a gravity sewer, which would be required if a lift station and forced main is not used, must be laid at precise grades, making it is more difficult and costly to lay. However, Mr. Mills acknowledged that, due to the relatively narrow width of the right-of-way along Ravenswood Drive, it would be necessary to obtain a waiver of the usual requirement to separate the sewer and water lines by at least 10 feet. He thought that a five-foot separation waiver would be possible for his proposed alternative route if the "horizontal" separation was at least 18 inches. (It is not clear what Mr. Mills meant by "horizontal.") In addition, he did not analyze how the per-linear-foot cost savings from use of the lift station and forced main sewer would compare to the additional cost of the lift station, even if it is just $50,000 to $60,000, as he thinks. However, it would appear that his proposed alternative route is approximately three times as long as the route proposed by the Ginns, so that the total cost of laying the sewer pipeline itself would be approximately equal under either proposal. Mr. Mills's testimony also suggested that the Ginns did not account for the possible disturbance to the Ravenswood eagles if an emergency repair to the water/sewer is necessary during nesting season. While this is a possibility, it is speculative. There is no reason to think such emergency repairs will be necessary, at least during the approximately 20-year life expectancy of the water/sewer line. Practicable design modifications to avoid filling Wetland 4 also were evaluated. Not filling Wetland 4 would trigger St. Johns County wetland setback requirements that would eliminate three building lots, at a cost of $4,684 per lot. Meanwhile, the impacted wetland is small and of poor quality, and the filling of Wetland 4 can be offset by proposed mitigation. As a result, the costs of avoidance outweigh the environmental benefits of avoidance. Relying on ERP-A.H. 12.2.2.1 the Ginns did not perform reduction/elimination analyses for Wetlands 2 and 6, and the District did not require them. As explained in testimony, the District interprets ERP-A.H. 12.2.1.1 to require a reduction/elimination analysis only when a project will result in adverse impacts such that it does not meet the requirements of ERP-A.H. 12.2.2 through 12.2.3.7 and 12.2.5 through 12.3.8. But ERP-A.H. 12.2.2.1 does not require compliance with those sections for regulated activities in isolated wetlands less than one-half acre in size except in circumstances not applicable to this case: if they are used by threatened or endangered species; if they are located in an area of critical state concern; if they are connected at seasonal high water level to other wetlands; and if they are "more than minimal value," singularly or cumulatively, to fish and wildlife. See ERP-A.H. 12.2.2.1(a) through (d). Under the District's interpretation of ERP-A.H. 12.2.1.1, since ERP-A.H. 12.2.2.1 does not require compliance with the very sections that determine whether a reduction/elimination analysis is necessary under ERP-A.H. 12.2.1.1, such an analysis is not required for Wetlands 2 and 6. Relying on ERP-A.H. 12.2.1.2, a., the Ginns did not perform reduction/elimination analyses for Wetlands 3 and 7, and the District did not require them, because the functions provided by Wetlands 3 and 7 are "low" and the proposed mitigation to offset the impacts to these wetlands provides greater long-term value. Petitioners' environmental expert opined that an reduction/elimination analysis should have been performed for all of the wetlands on the project site, even if isolated and less than half an acre size, because all of the wetlands on the project site have ecological value. For example, small and isolated wetlands can be have value for amphibians, including the gopher frog. But his position does not square with the ERP- A.H., as reasonably interpreted by the District. Specifically, the tests are "more than minimal value" under ERP-A.H. 12.2.2.1(d) and "low value" under ERP-A.H. 12.2.1.2, a. Secondary Impacts The impacts to the wetlands and other surface waters are not expected to result in adverse secondary impacts to the water resources, including endangered or threatened listed species or their habitats. In accordance with ERP-A.H. 12.2.7(a), the design incorporates upland preserved buffers with minimum widths of 15 feet and an average width of 25 feet around the wetlands that will not be impacted. Sediment and erosion control measures will assure that the construction will not have an adverse secondary impact on water quality. The proposed development will be served by central water and sewer provided by the City of St. Augustine, eliminating a potential for secondary impacts to water quality from residential septic tanks or septic drainfields. In order to provide additional measures to avoid secondary impacts to Wetland 1, which is the location of the bald eagles’ nest, the Applicants proposed additional protections in a Bald Eagle Management Plan (BEMP) (App. Ex. 14). Under the terms of the BEMP, all land clearing, infrastructure installation, and exterior construction on homes located within in the primary zone (a distance within 750 feet of the nest tree) is restricted to the non-nesting season (generally May 15 through September 30). In the secondary zone (area between 750 feet and 1500 feet from the nest tree), exterior construction, infrastructure installation, and land clearing may take place during the nesting season with appropriate monitoring as described in the BEMP. Proposed Mitigation The Ginns have proposed mitigation for the purpose of offsetting adverse impacts to wetland functions. They have proposed to provide mitigation for: the 0.18-acre temporary impact to Wetland 1 during installation of a water/sewer line extending from existing City of St. Augustine service to the east (at Theodore Street); the impacts to Wetlands 3, 4 and 7; and the secondary impacts to the offsite portion of Wetland 4. The Ginns propose to grade the 0.18-acre temporary impact area in Wetland 1 to pre-construction elevations, plant 72 trees, and monitor annually for 5 years to document success. Although the easement is 30 feet in width, work will be confined to 20 feet where vegetation will be cleared, the top 1 foot of soil removed and stored for replacing, the trench excavated, the utility lines installed, the trench refilled, the top foot replaced, the area replanted with native vegetation, and re- vegetation monitored. To facilitate success, the historic water regime and historic seed source will give the re-vegetation effort a jump-start. The Ginns propose to restore and enhance a 0.12-acre portion of Wetland 1 that has been degraded by a trail road. They will grade the area to match the elevations of adjacent wetland, plant 48 trees, and monitor annually for 5 years to document success. This is proposed to offset the impacts to Wetland 4. The proposed grading, replanting, and monitoring will allow the area to be enhanced causing an environmental benefit. The Ginns propose to preserve 10.58 acres of wetlands and 3.99 acres of uplands in Wetland 1, 1 acre of upland buffers adjacent to Wetlands 1 and 5, and the 0.01 acre wetland in Wetland 5. The upland buffer will be a minimum of 15 feet wide with an average of 25 feet wide for Wetland 1 and 25 feet wide for Wetland 5. A conservation easement will be conveyed to the District to preserve Wetlands 1 and 5, the upland buffers, and the wetland restoration and enhancement areas. The preservation of wetlands provides mitigation value because it provides perpetual protection by ensuring that development will not occur in those areas, as well as preventing activities that are unregulated from occurring there. This will allow the conserved lands to mature and provide more forage and habitat for the wildlife that would utilize those areas. Mitigation for Wetlands 2 and 6 was not provided because they are isolated wetlands less than 0.5-acre in size that are not used by threatened or endangered species; are not located in an area of critical state concern; are not connected at seasonal high water level to other wetlands; and are not more than minimal value, singularly or cumulatively, to fish and wildlife. As previously referenced in the explanation of why no reduction/elimination analysis was required for these wetlands, ERP-A.H. 12.2.2.1(d) does not require compliance with under ERP- A.H. 12.3 through 12.3.8 (mitigation requirements) for regulated activities in isolated wetlands less than one-half acre in size except in circumstances found not to be present in this case. See Finding 44, supra. The cost of the proposed mitigation will be approximately $15,000. Operation and Maintenance A non-profit corporation that is a homeowners association (HOA) will be responsible for the operation, maintenance, and repair of the surface water management system. An HOA is a typical operation and maintenance entity for a subdivision and is an acceptable entity under District rules. See ERP-A.H. 7.1.1(e) and 7.1.2; Fla. Admin. Code R. 40C- 42.027(3) and (4). The Articles of Incorporation for the HOA and the Declaration of Covenants, Conditions, and Restrictions contain the language required by District rules. Water Quantity To address water quantity criteria, the Applicants' engineers ran a model (AdICPR, Version 1.4) to compare the peak rate discharge from the project in the pre-project state versus the peak rate discharge after the project is put in place. The pre-project data input into the model were defined by those conditions that existed in 1985 or 1986, prior to the partial work that was conducted, but not completed, on the site in the late 1980's. The project’s 1985/1986 site condition included a feature called Depression A that attenuated some onsite as well as offsite stormwater. Because of work that was done on the project site after 1985/1986 (i.e., the excavation of the borrow pit and road-clearing activities in the late 1980's), the peak rate of discharge for the 1985/1986 project site condition was lower than the peak rate of discharge for today’s project site condition. (Flooding at Mrs. McMulkin's house began after the work was performed on the project site in the late 1980's.) Because this partial work conducted in the late 1980's increased peak rate discharge from the site, by taking the pre-project conditions back to the time prior to that work, the peak rate of discharge in the 1985-86 pre-project condition was lower than it would be under today's conditions. The model results indicated that for the 25-year, 24- hour storm event, the pre-project peak rate discharge is 61.44 cubic feet per second (cfs). The post-project peak rate discharge is 28.16 cfs. Because the completed project reduces the pre-project peak rate discharges, the project will not cause any adverse flooding impacts off the property downstream. A similar analysis of the peak rate discharges under pre-project conditions that exist today (rather than in 1986) was compared to peak rate discharges for the post-project conditions. This analysis also showed post-project peak rate discharges to be less than the peak rate discharges from the site using today’s conditions as pre-project conditions. As further support to demonstrate that the project would not cause additional flooding downstream, a second modeling analysis was conducted, which is referred to as the Ravenswood Overall Watershed Model (OWM). The Applicants' engineer identified water flowing into the system from the entire watershed basin, including the project site under both the pre- and post-project conditions. The water regime was evaluated to determine what effect the proposed project will have on the overall peak rate discharges, the overall staging, and the duration of the staging within the basin that ultimately receives the water from the overall watershed. This receiving basin area was defined as the "wetland node" (Node 98 pre- project, and Node 99 post-project). As previously stated, the area within this "wetland node" includes more than just the portion of Wetland 1 that is located on the Ravenswood site. It also includes the areas to the south and east of the on-site Wetland 1 (including properties owned by the Petitioners) and extends down to an east-west ditch located just north of Josiah Street. The project’s surface water management system will not discharge to a landlocked basin. The project is not located in a floodway or floodplain. The project is not located downstream of a point on a watercourse where the drainage is five square miles or more. The project is impounding water only for temporary storage purposes. Based on testimony from their experts, Petitioners contend that reasonable assurances have not been given as to water quantity criteria due to various alleged problems regarding the modeling performed by the Ginns' engineer. Tailwater Elevations First, they raise what they call "the tailwater problem." According to Petitioners, the Ginns' modeling was flawed because it did not use a 19.27-foot SHW elevation in Wetland 1 as the tailwater elevation. The 19.27-foot SHW was identified by the Ginns' biologist in the Wetland 1 near the location of the proposed utility line crossing the wetland and was used as the pre-development tailwater in the analysis of the project site. The post-development tailwater condition was different because constructing the project would change the discharge point, and "tailwater" refers to the water elevation at the final discharge of the stormwater management system. (SW- A.H., Section 9.7) The post-development tailwater was 21 feet, which reflects the elevation of the top of the spreader swale that will be constructed, and it rose to 21.3 feet at peak flow over that berm. For the OWM, the final discharge point of the system being modeled was the east-west ditch located just north of Josiah Street, where the tailwater elevation was approximately 18.1 feet, not the 19.27 feet SHW mark to the north in Wetland 1. The tailwater condition used in the modeling was correct. Petitioners also mention in their PRO that "the Applicants' analysis shows that, at certain times after the 25 year, 24 hour storm event, in the post development state, Wetland 1 will have higher staging than in the predevelopment state." But those stages are after peak flows have occurred and are below flood stages. This is not an expected result of post- development peak-flow attenuation. Watershed Criticism The second major criticism Petitioners level at the Applicants' modeling is that parts of the applicable watershed basins were omitted. These include basins to the west of the project site, as well as basins to the north of the site, which Petitioners lumped into the so-called "tailwater problem." Petitioners sought to show that the basins identified by the Ginns as draining onto the project site from the west were undersized, thus underestimating the amount of offsite water flowing onto the project site. With respect to Basin C, Petitioners' witness testified that the basin should be 60 acres instead of 30 acres in size, and that consequently more water would flow into pond DA-2 and thus reduce the residence time of the permanent pool volume. In fact, Basin C is 16 acres in size, not 30 acres. The water from Basin C moves onto the project site over the western project boundary. A portion of the water from Basin C will be directed to pond DA-2 through an inlet structure, and the rest will move over an irregular weir and around the project site. With respect to Basin D, Petitioners' witness testified that the basin should encompass an additional 20 acres to the west and north. West of Basin D, there are ditches routing water flow away from the watershed, so it is unclear how water from an additional 20 acres would enter the watershed. The western boundary of the OWM is consistent with the western boundaries delineated in two studies performed for St. Johns County. Petitioners' witness testified that all of the water from the western offsite basins currently travels across the project site's western boundary, and that in post-development all of that water will enter pond DA-2 through the inlet structure. In fact, currently only the water from Basin C flows across the project site's western boundary. Post-development, only a portion of water from Basin C will enter pond DA-2. Currently and post-development, the water in Basin D travels north to a ditch south of Ravenswood Drive and discharges into Wetland 1. Petitioners also sought to show that a 50-acre area north of the project site should have been included in the OWM. Petitioners' witness testified that there is a "strong possibility" that the northern area drains into the project site by means of overtopping Ravenswood Drive. The witness' estimate of 50 acres was based on review of topographical maps; the witness has not seen water flowing over Ravenswood Drive. The Ginns' engineer testified that the area north of Ravenswood Drive does not enter the project site, based on his review of two reports prepared by different engineering firms for St. Johns County, conversations with one of those engineering firms, conversations with the St. Johns County engineer, reviews of aerials and contour maps, and site observations. Based on site observations, the area north of the project site drains north and then east. One report prepared for St. Johns County did not include the northern area in the watershed, and the other report included an area to the north consisting of 12 acres. The Ginns' engineer added the 12-acre area to the OWM and assumed the existence of an unobstructed culvert through which this additional water could enter Wetland 1, but the model results showed no effect of the project on stages or duration in the wetland. Even if a 50-acre area were included in the OWM, the result would be an increase in both pre-development and post- development peak rates of discharge. So long as the post- development peak rate of discharge is lower than the pre- development peak rate of discharge, then the conveyance system downstream will experience a rate of water flow that is the same or lower than before the project, and the project will not cause adverse flooding impacts offsite. Petitioners' witness did not have any documents to support his version of the delineations of Basins C and D and the area north of Ravenswood Drive. Time of Concentration Time of concentration (TC) is the time that it takes a drop of water to travel from the hydraulically most distant point in a watershed. Petitioners sought to show that the TC used for Basin C was incorrect. Part of Petitioners' rationale is related to their criticism of the watersheds used in the Ginns' modeling. Petitioners' witness testified that the TC was too low because the distance traveled in Basin C should be longer because Basin C should be larger. The appropriateness of the Basin C delineation already has been addressed. See Finding 71, supra. Petitioners' witness also testified that the TC used for the post-development analysis was too high because water will travel faster after development. However, the project will not develop Basins C and D, and thus using the same TC in pre- development and post-development is appropriate. The project will develop Basins A and B (called Basins 1, 2, and 3 post- development), and the post-development TC for those basins were, in fact, lower than those used in the pre-development analysis. Groundwater Infiltration in DA-2 One witness for Petitioners opined that groundwater would move up through the bottom of DA-2 as a result of upwelling (also referred to as infiltration or seepage), such that 1,941 gallons per day (gpd) would enter DA-2. That witness agreed that if a liner were installed in a portion of DA-2, the liner would reduce upwelling in a portion of the pond. Another witness for Petitioners opined that 200 gpd of groundwater would enter the eastern part and 20,000 gpd would enter the western part of DA-2. Although that witness stated that upwelling of 200 gpd is not a significant input and that upwelling of 20,000 gpd is a significant input, he had not performed calculations to determine the significance. Even if more than 20,000 gpd of groundwater entered DA-2, DA-2 will provide sufficient permanent pool residence time without any change to the currently designed permanent pool size or the orifice size. Although part of one system, even if DA-2 is considered separate from DA-1, DA-2 is designed to provide an additional permanent pool volume of 6.57 acre-feet (in addition to the 20.5 acre/feet provided by DA-1). This 6.57 acre-feet provided by DA-2, is more than the 4.889 acre-feet of permanent pool volume that would be necessary to achieve a 21-day residence time for the 24+ acres that discharge directly into DA-2, as well as background seepage into DA-2 at a rate of 0.0403 cfs, which is more upwelling than estimated by Petitioners' two witnesses. There is adequate permanent pool volume in DA-2 to accommodate the entire flow from Basin C and for water entering through the pond bottom and pond sides and provide at least 21 days of residence time. Water Quality Criteria Presumptive Water Quality The stormwater system proposed by the Ginns is designed in accordance with Florida Administrative Code Rules 40C-42.024, 40C-42.025, and 40C-42.026(4). Wet detention ponds must be designed for a permanent pool residence time of 14 days with a littoral zone, or for a residence time of 21 days without a littoral zone, which is the case for this project. See Fla. Admin. Code R. 40C-42.026(4)(c) and (d). DA-1 and DA-2 contain sufficient permanent pool volume to provide a residence time of 31.5 days, which is the amount of time required for projects that discharge to Class II Outstanding Florida Waters, even though the receiving waterbody for this project is classified as Class III Waters. See Fla. Admin. Code R. 40C-42.026(4)(k)1. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers if needed. In addition, the District proposed permit conditions that require erosion and sediment control measures to be implemented. (Dist. Ex. 1, pp. 8-9, #4; Dist. Ex. 2, p. 1, ##3, 4, and 5, and p. 6, #10). ERP/MSSW/Stormwater Special Conditions incorporated into the proposed permit require that all wetland areas or water bodies outside the specific limits of construction must be protected from erosion, siltation, scouring or excess turbidity, and dewatering. (Dist. Ex. 2). The District also proposed a permit condition that requires District approval of a dewatering plan for construction, including DA-1 and DA-2, within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site. As previously described, Petitioners' engineering witness sought to show that DA-2 will not provide the required permanent pool residence time because Basin C should be 60 acres in size. Petitioners' environmental witness also expressed concern about the capacity of the ponds to provide the water quality treatment required to meet the presumptive water quality criteria in the rules, but those concerns were based on information he obtained from Petitioners' engineering witness. Those issues already have been addressed. See Findings 77-78, supra. Groundwater Contamination Besides those issues, Petitioners raised the issue that groundwater contamination from a former landfill nearby and from some onsite sludge and trash disposal could be drawn into the proposed stormwater management system and cause water quality violations in the receiving waters. If groundwater is contaminated, the surface water management system could allow groundwater to become surface water in proposed DA-1. St. Johns County operated a landfill from the mid-1950s to 1977 in an area northwest of the project site. The landfill accepted household and industrial waste, which was buried in groundwater, which in turn could greatly enhance the creation of leachate and impacted water. Groundwater flows from west to east in the vicinity of the landfill and the project site but there was conflicting evidence as to a minor portion of the property. The Ginns' witness testified that if the landfill extended far enough south, a small part of the project site could be downgradient from the landfill. But there was no evidence that the landfill extended that far south. Petitioners' witness testified that the groundwater flow varies on the south side of the landfill so that groundwater might flow southeast toward the site. Even if Petitioners' witness is correct, the surface water management system was designed, as Petitioners' other witness agreed, so that DA-1 would have minimal influence on groundwater near the pond. In 1989, sewage sludge and garbage were placed in a pit in the central part of the project site, north of the existing pond, which also is the area for proposed DA-1; and at various times refuse--including a couple of batteries, a few sealed buckets, and concrete--has been placed on the surface of the site. In 1989, to determine the amount of sewage and garbage on the project site, the St. Johns County Health Department chose several locations evidencing recent excavation south of Ravenswood Drive, had the areas re-excavated, and found one bag of garbage and debris such as tree stumps and palmettos. In 2001, an empty 55-gallon drum was on the site; there was no evidence what it once contained or what it contained when deposited onsite, if anything. In addition, trespassers dumped solid waste on the property from time to time. Petitioners' witness searched the site with a magnetometer and found nothing significant. On the same day, another of Petitioners’ witnesses sampled with an auger but the auger did not bore for core or any other type sample; it merely measured groundwater level. In 1985, 1999, and 2000, groundwater offsite of the project near the landfill was sampled at various times and places by various consultants to determine whether groundwater was being contaminated by the landfill. The groundwater sampling did not detect any violations of water quality standards. Consultants for the Ginns twice sampled groundwater beneath the project site and also modeled contaminant migration. The first time, in 2001, they used three wells to sample the site in the northwest for potential impacts to the property from the landfill. The second time, they sampled the site through cluster wells in the northwest, middle, and south. (Each cluster well samples in a shallow and in a deeper location.) The well locations were closest to the offsite landfill and within an area where refuse may have been buried in the north- central part of the site. Due to natural processes since 1989, no sewage sludge deposited onsite then would be expected to remain on the surface or be found in the groundwater. The evidence was that the sewage sludge and garbage were excavated. Although samples taken near the center of the property contained substances that are water quality parameters, they were not found in sufficient concentration to be water quality violations. There is an iron stain in the sand north of the existing pond in the area where pond DA-1 is to be located. Based on dissolved oxygen levels in the groundwater, Petitioners' witness suggested that the stain is due to buried sewage, but the oxygen levels are not in violation of water quality standards and, while toward the low end of not being a violation, the levels could be due to natural causes. No evidence was presented establishing that the presence of the iron stain will lead to a violation of water quality standards. Petitioners' witness, Mr. Boyes, testified that iron was a health concern. But iron itself is a secondary drinking water standard, which is not a health-based standard but pertains to odor and appearance of drinking water. See § 403.852(12) and (13), Fla. Stat. Petitioners argued that the Phase I study was defective because historical activity on the project site was not adequately addressed. But the Phase I study was only part of the evidence considered during this de novo hearing. Following up on the Phase I study, the 2001 sampling analyzed for 68 volatile organics and 72 semi-volatile organics, which would have picked up solvents, some pesticides, petroleum hydrocarbons, and polynuclear aromatic hydrocarbons--the full range of semi-volatile and volatile organics. The sampling in August 2003 occurred because some of the semi-volatile parameters sampled earlier needed to be more precisely measured, and it was a much broader analysis that included 63 semi-volatiles, 73 volatile organic compounds, 23 polynuclear aromatic hydrocarbons, 25 organic phosphate pesticides, 13 chlorinated herbicides, 13 metals, and ammonia and phosphorus. The parameters for which sampling and analyses were done included parameters that were representative of contaminants in landfills that would have now spread to the project site. They also would have detected any contamination due to historical activity on the project site. Yet groundwater testing demonstrated that existing groundwater at the project site meets state water quality standards. Based on the lack of contaminants found in these samples taken from groundwater at the project site 50 years after the landfill began operation, the logical conclusion is that either groundwater does not flow from the landfill toward the project site or that the groundwater moving away from the landfill is not contaminated. Groundwater that may enter the stormwater ponds will not contain contaminants that will exceed surface water quality standards or groundwater quality standards. Taken together, the evidence was adequate to give reasonable assurances that groundwater entering the stormwater ponds will not contain contaminants that exceed surface water quality standards or groundwater quality standards and that water quality violations would not occur from contaminated water groundwater drawn into the proposed stormwater management system, whether from the old landfill or from onsite waste disposal. The greater weight of the evidence was that there are no violations of water quality standards in groundwater beneath the project site and that nothing has happened on the site that would cause violations to occur in the future. Contrary to Petitioners' suggestion, a permit condition requiring continued monitoring for onsite contamination is not warranted. J. Fish and Wildlife Except for the bald eagle nest, all issues regarding fish and wildlife, listed species, and their habitat as they relate to ERP-A.H. 12.2.2 through 12.2.2.4 already have been addressed. When the Ginns were made aware in November 2003 that there was an eagle nest in Wetland 1, they retained the services of Tony Steffer, an eagle expert with over 25 years of experience working specifically with eagles and eagle management issues, including extensive hands-on experience with eagles and the conduct of field studies, aerial surveys, and behavioral observations as well as numerous research projects on the bald eagle. Mr. Steffer visited the Ravenswood site on numerous occasions since the discovery of the nest, made observations, and was integral in the drafting of the Ravenswood BEMP. It is Mr. Steffer’s opinion that the proposed project, with the implementation of the BEMP, will not adversely affect the eagles. This opinion was based on Mr. Steffer's extensive knowledge and experience with eagle behavior and human interactions. In addition, Mr. Steffer considered the physical characteristics of the Ravenswood site and the nest tree, the dense vegetation in Wetland 1 surrounding the nest site, and the existing surrounding land uses, including the existing residential community that lies a distance of about 310 feet from the nest site, the existing roadways and associated traffic, and the school (with attendant playground noise) that is to north of the site. In Mr. Steffer's opinion, the eagles are deriving their security from the buffering effects provided by the surrounding wetland. He observed that the nesting and incubating eagles were not disturbed when he set up his scope at about 300-320 feet from the tree. The BEMP requires that Wetland 1, and the upland islands located within it, be preserved and limits the work associated with the water/sewer line to the non-nesting season. With the BEMP implemented, Mr. Steffer expressed confidence that the Ravenswood eagles would be able to tolerate the proposed activities allowed under the BEMP. The Ravenswood project plans and the BEMP were reviewed by the U.S. Fish and Wildlife Service (USFWS). The USFWS analyzed information in their files relating to projects which proposed activities within the primary zone of an eagle nest and reported abandoned nests. None of the reported abandoned nests could be attributed to human activities in and around the nest tree. Based on the project plans, the terms of the BEMP, and this analysis, the USFWS concluded that the Ravenswood project "is not likely to adversely affect" the bald eagles at the Ravenswood site. According to the coordination procedures agreed to and employed by the USFWS and the Florida Fish and Wildlife Conservation Commission (FFWCC), the USFWS takes the lead in reviewing bald eagle issues associated with development projects. In accordance with these procedures, for the Ravenswood project, the USFWS coordinated their review and their draft comments with the FFWCC. The FFWCC concurred with the USFWS’s position that the project, with the implementation of the BEMP, will not adversely affect the Ravenswood eagles or their nest. This position by both agencies is consistent with the expert testimony of Mr. Don Palmer, which was based on his 29 years of experience with the USFWS in bald eagle and human interactions. Petitioners and their witnesses raised several valid concerns regarding the continued viability of the Ravenswood eagle nest during and after implementation of the proposed project. One concern expressed was that parts of the Habitat Management Guidelines for the Bald Eagle in the Southeast Region (Eagle Management Guidelines) seem inconsistent with the proposed project. For example, the Eagle Management Guidelines state: "The emphasis [of the guidelines] is to avoid or minimize detrimental human-related impacts on bald eagles, particularly during the nesting season." They also state that the primary zone, which in this case is the area within a 750 foot radius of the nest tree, is "the most critical area and must be maintained to promote acceptable conditions for eagles." They recommend no residential development within the primary zone "at any time." (Emphasis in original.) They also recommend no major activities such as land clearing and construction in the secondary zone during the nesting season because "[e]ven intermittent use or activities [of that kind] of short duration during nesting are likely to constitute disturbance." But the eagle experts explained that the Eagle Management Guidelines have not been updated since 1987, and it has been learned since then that eagles can tolerate more disturbance than was thought at that time. Another concern was that the Ravenswood eagles may have chosen the nest site in Wetland 1 not only for its insulation from existing development to the north and east but also for the relatively sparse development to the west. Along those lines, it was not clear from the evidence that the eagles are used to flying over developed land to forage on the San Sebastian River and its estuaries to the east, as the eagle experts seemed to believe. Mr. Mills testified that eagles have been seen foraging around stocked fish ponds to the west, which also could be the source of catfish bones found beneath the Ravenswood nest. But it is believed that the confident testimony of the eagle experts must be accepted and credited notwithstanding Petitioners' unspecific concerns along these lines. Finally, Petitioners expressed concern about the effectiveness of the monitoring during the nesting required under the BEMP. Some of Petitioners' witnesses related less-than-perfect experiences with eagle monitoring, including malfeasance (monitors sleeping instead of monitoring), unresponsive developers (ignoring monitors' requests to stop work because of signs of eagle disturbance, or delaying work stoppage), and indications that some eagle monitors may lack independence from the hiring developer (giving rise, in a worst case, to the question whether an illegal conspiracy exists between them to ignore signs of disturbance when no independent observer is around). Notwithstanding these concerns, Petitioners' witnesses conceded that eagle monitoring can be and is sometimes effective. If Mr. Steffer is retained as the eagle monitor for this project, or to recruit and train eagle monitors to work under his supervision, there is no reason to think that eagle monitoring in this case will not be conducted in good faith and effectively. Even if the Ginns do not retain Mr. Steffer for those purposes, the evidence did not suggest a valid reason to assume that the Ginns' proposed eagle monitoring will not be conducted in good faith and effectively. K. Other 40C-4.301 Criteria – 40C-4.301(1)(g)-(k) 40C-4.301.301(1)(g) - No minimum surface or groundwater levels or surface water flows have been established pursuant to Florida Administrative Code Rules Chapter 40C-8 in the area of the project. 40C-4.301.301(1)(h) - There are no works of the District in the area of the project. 40C-4.301.301(1)(i) - The proposed wet detention system is typical and is based on accepted engineering practices. Wet detention systems are one of the most easily maintained stormwater management systems and require very little maintenance, just periodically checking the outfall structure for clogging. 40C-4.301.301(1)(j) - The Ginns own the property where the project is located free from mortgages and liens. As previously indicated, they will establish an operation and maintenance entity. The cost of mitigation is less than $25,000 so that financial responsibility for mitigation was not required to be established. (Costs associated with the proposed BEMP are not included as part of the Ginns' mitigation proposal.) 40C-4.301.301(1)(k) - The project is not located in a basin subject to special criteria. Public Interest Test in 40C-4.302 The seven-factor public interest test is a balancing test. The test applies to the parts of the project that are in, on, or over wetlands, and those parts must not be contrary to the public interest unless they are located in, on, or over an Outstanding Florida Water (OFW) or significantly degrade an OFW, in which case the project must be clearly in the public interest. No part of the project is located within an OFW. Balancing the public interest test factors, the project will not be contrary to the public interest. 40C-4.302(1)(a)1. - The project will not adversely affect the public health, safety, or welfare or the property of others because the surface water management system is designed in accordance with District criteria, the post-development peak rate of discharge is less than the pre-development peak rate of discharge, and the project will not cause flooding to offsite properties. 40C-4.302(1)(a)2. - Mitigation will offset any adverse impacts of the project to the conservation of fish and wildlife or their habitats, and the BEMP is designed to prevent adverse effects on the Ravenswood eagles. Although active gopher tortoise burrows were observed on the site, the impacts to these burrows are addressed by the FFWCC’s incidental take permit. The mitigation that is required as part of that permit will adequately offset the impacts to this species. 40C-4.302(1)(a)3. - The project will not adversely affect navigation or cause harmful shoaling. The project will not adversely affect the flow of water or cause harmful erosion. The project's design includes erosion and sediment control measures. The project's design minimizes flow velocities by including flat slopes for pipes. The stormwater will be discharged through an upsized pipe, which will reduce the velocity of the water. The stormwater will discharge into a spreader swale (also called a velocity attenuation pond), which will further reduce the velocity and will prevent erosion in Wetland 1. The other findings of fact relevant to this criterion are in the section entitled "Water Quantity." See Findings 61-67, supra. 40C-4.302(1)(a)4. – Development of the project will not adversely affect the legal recreational use of the project site. (Illegal use by trespassers should not be considered under this criterion.) There also will not be any adverse impact on recreational use in the vicinity of the project site. Wetlands 1 and 5 may provide benefit to marine productivity by supplying detritus to the marine habitat, and these wetlands will remain. 40C-4.302(1)(a)5. - The project will be of a permanent nature except for the temporary impacts to Wetland 1. Mitigation will offset the temporary adverse impacts. 40C-4.302(1)(a)6. - The District found no archeological or historical resources on the site, and the District received information from the Division of Historical Resources indicating there would be no adverse impacts from this project to significant historical or archeological resources. 40C-4.302(1)(a)7. - Considering the mitigation proposal, and the proposed BEMP, there will be no adverse effects on the current condition and relative value of functions being performed by areas affected by the proposed project. The proposed project is no worse than neutral measured against any one of these criteria, individually. For that reason, it must be determined that, on balance, consideration these factors indicates that the project is not contrary to the public interest. Other 40C-4.302 Criteria The proposed mitigation is located within the same drainage basin as the project and offsets the adverse impacts so the project would not cause an unacceptable cumulative impact. The project is not located in or near Class II waters. The project does not contain seawalls and is not located in an estuary or lagoon. The District reviewed a dredge and fill violation that occurred on the project site and was handled by the Department of Environmental Regulation (DER) in 1989. The Ginns owned the property with others in 1989. Although they did not conduct the activity that caused the violation, they took responsibility for resolving the matter in a timely manner through entry of a Consent Order. The evidence was that they complied with the terms of the Consent Order. Applicants' Exhibit 30K was a letter from DER dated February 13, 1991, verifying compliance based on a site inspection. Inexplicably, the file reference number did not match the number on the Consent Order. But Mr. Ginn testified that he has heard nothing since concerning the matter either from DER, or its successor agency (the Department of Environmental Protection), or from the District. The evidence was that the Ginns have not violated any rules described in Florida Administrative Code Rule 40C- 4.302(2). There also was no evidence of any other DER or DEP violations after 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to Jay and Linda Ginn ERP number 40-109-81153-1, subject to the conditions set forth in District Exhibits 1, 2, and 10. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2004.
The Issue The issue to be determined is whether the applicants, William Guererro and Christina Bang, a/k/a Christina Guerrero (Applicants), are entitled to issuance of a Consolidated Environmental Resource Permit and State Lands Approvals for various structures on the Applicants’ property at 58458 Overseas Highway, Marathon, Florida.
Findings Of Fact The Parties Petitioners Bernard Spinrad and Marian Spinrad are the owners of adjoining parcels of property with the addresses of 58418 and 58420 Overseas Highway, Marathon, Florida. They acquired the property in December 2001. They recently completed construction of two residential structures on the properties. The structure at 58418 Overseas Highway is currently listed for sale. The structure at 58420 Overseas Highway is a vacation rental property. Neither structure is Petitioners’ permanent residence. The DEP is the state agency with the power and duty to regulate activities in waters of the state pursuant to chapter 373, Florida Statutes. The DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on activities on state sovereignty submerged lands under chapter 253. The Applicants, are the owners of adjoining parcels of property with the address of 58478 Overseas Highway, Marathon, Florida (the Property). They purchased the Property in June 2010. The structures that are the subject of the Permit are to be constructed near or waterward of the shoreline of the Property. The Property The Property is located on Grassy Key, an island in the middle Florida Keys, within limits of the city of Marathon, Monroe County, Florida. U.S. Highway 1 passes through Grassy Key. The Property -- as is that of Petitioners -- is situated between U.S. Highway 1 and the open waters of the Atlantic Ocean. In the early part of the 20th century, a portion of Grassy Key was platted as the Crains Subdivision. The properties owned by Applicants and Petitioners are within the Crains Subdivision. During the periods of time directly relevant hereto, the Property has been owned by Burgess Levine, who owned the property during the period prior to the October 2006, landfall of Hurricane Wilma until June 2010, and by Applicants, who have owned the Property since June, 2010. Grassy Key Grassy Key is three-miles long, and has 6800 feet of beaches, none of which are designated as critically eroded. The island fronts the Atlantic Ocean to the east, and the more protected waters of Florida Bay to the west. The waters along the Atlantic Ocean shoreline of Grassy Key in the area at issue are shallow, with an extremely flat bottom having a very gradual slope of approximately 1 to 30, meaning there is a one foot vertical change over 30 horizontal feet. The mean tide range at the Property is about 1.7 feet. Under normal conditions, the stretch of Grassy Key at issue is fairly characterized as a zero-wave energy shoreline. Waves break well offshore and there is negligible wave energy propagating beyond that point. What shoreline energy exists is produced by small tide currents and wind-shear on the water surface that moves water along the shoreline. The direction of the water movement is dependent on tides and wind direction, with the predominant direction being from north to south. Erosive and other significant changes to the shoreline of Grassy Key, including that stretch fronting the Property, are event driven, meaning when there is a coastal storm that causes a rise in the water level, substantially higher than the astronomical tide, waves can propagate onto the shoreline of Grassy Key. The wind and waves can come from virtually any direction depending on the storm. A storm of greater intensity will create higher energy-wave conditions. Although storm conditions may only occur over 1 to 3 percent of a given year, with the rest of the year having zero-wave energy, on average the coastline may be considered to be of moderate-wave energy. The beach sediment along the Grassy Key shoreline in all areas pertinent hereto consists of calcareous material, made up of the breakdown of corals and coralling algae, with a significant fraction of other detrital marine material. The upper beaches of Grassy Key, including that on the Property, generally consist of coarse, calcareous sand with a small fraction of calcareous silt-size particles. The inter-tidal areas along Grassy Key consist of predominantly fine calcareous sand, with a greater fraction of calcareous silt. Extending out into the nearshore area all along Grassy Key, including that fronting the properties owned by Petitioners and Applicants, the sediment becomes a very fine calcareous sand, with a greater fraction of the material being calcareous silts and clays, and with a substantial amount of organic mud of a marine origin, classified as Islamorada muck. Since at least the 1970s, one wading in the nearshore waters along Grassy Key could expect to sink into the surface muck to a depth of anywhere from six inches to two feet. The depth of muck becomes less as one moves further out and approaches the offshore Thalassia beds. Although some areas offer more resistance than others, it is routine to experience difficulty in walking and wading along the coast of Grassy Key because of the high percentage of clays and silts in the substrate. The band of muck narrows as one proceeds towards the northern stretches of Grassy Key, until one reaches the furthest areas to the northeast where the nearshore transitions to exposed rock and hard bottom. The surface muck that exists in the nearshore waters of Grassy Key, having a sizable component of decaying organic material, gives off an odor of hydrogen sulfide when disturbed that some find to be unpleasant. The odor is a naturally- occurring condition of the sediment, and is common in mucky areas all around the southern coasts of Florida. The suggestion that the shoreline in the vicinity of the Petitioners’ property, and that of Applicants, was a naturally occurring white, sandy beach is contrary to the greater weight of the evidence. To the extent the shoreline at Petitioners’ property may have been temporarily altered by the overwash from Hurricane Wilma as discussed herein, Petitioners’ own post-Wilma man-made efforts at beach stabilization, or the redistribution of sediments occasioned by Hurricanes Isaac and Sandy in 2012, the evidence demonstrates the “mucky” condition described herein to be more consistent with the natural and long-standing conditions of Grassy Key. Thus, as Grassy Key exists in the present time, one may expect to encounter six inches to two feet of loose muck anywhere along the nearshore area. Close to shore of Grassy Key are scattered beds of Halodule, a species of seagrass that tends to emerge and grow in shallow waters. The growth of Halodule is influenced by the nature of the sediments, the salinity temperature, and clarity of the water. Storm events have a significant effect on its growth. Given its transient nature, Halodule may vary in any given area from nonexistent, to spotty, to well-established beds. As one moves further offshore, the Halodule transitions to large, continuous beds of Thalassia. Thalassia grows in deeper water, and is common to a depth of about 12 feet. Being deeper and less affected by storm energy, the line of the Thalassia beds off of Grassy Key has not substantially changed over time. As wind and waves come across the grass beds, and as tides ebb and flow, grass blades are cropped. The amount of grass varies seasonally to a degree. The cropped and dislodged seagrasses, along with other organic material entrained therein, are naturally carried by the tides and wind and stranded along the shoreline. The stranded material is known as wrack, and the line of stranded material is known as the wrack line. Grassy Key is well known for the large seagrass wracks that pile up on the shoreline. A wrack line is a normal and natural occurrence in marine environments like that of Grassy Key, and can be a good indicator of the upper edge of the water action at a particular time. The cropping and dislodging of seagrass is accentuated during major or minor storm events. During Hurricane Rita in 2005, a very large seagrass wrack was blown onto the shoreline of Grassy Key. It was subsequently blown back out to sea by the overwash from Hurricane Wilma. The decomposition of the seagrass and other organic materials creates a significant odor that is not uncommon. That odor of decomposing material is well-recognized as being associated with Grassy Key. Areas along the shoreline of Grassy Key have been used by sea turtles for nesting. However, the nature of the substrate in the area of the Property is not optimal for nesting. Generally, sea turtles require a nesting site with 15 to 20 inches of sand above the water table so as to allow them to dig a suitably deep and dry cavity for their eggs. The natural substrate along the section of Grassy Key at issue is coarser and more difficult to dig into, and does not have the depth of sand for the best chance of a successful nest. Despite the nature of the substrate, Petitioner testified as to her observation of turtle nests along her property in each year from 2006 through 2010. Since the SW Groin, the Mid-bulkhead, and the NE Groin were all in existence and functioning during that period, with work to the SW Groin having been completed by 2008, the preponderance of the evidence demonstrates that those structures have no effect on the success or failure of sea turtles to nest along the property. To the extent nesting has been disrupted since 2011, the most logical inference that can be drawn from the evidence is that such disruption is the result of the Mid-Jetty Extension, which is slated for removal under the terms of the Permit. The preponderance of the evidence demonstrates that the structures and activities authorized by the Permit will have no adverse effect on sea turtles. Hurricane Wilma In October, 2005, Grassy Key was pounded by Hurricane Wilma. The storm passed to the north, and created a substantial storm surge that moved from west to east across Grassy Key. The storm surge created a “ridge and runnel” effect on the Atlantic facing shoreline, with the channelization of the storm tide flow creating erosion and gullies on upland shore-adjacent properties. The storm surge and flooding across Grassy Key caused substantial wash-outs of sand; transported a large volume of sandy, upland sediments into the nearshore waters of the Atlantic Ocean; and created washover “fans” of material along the shoreline of Grassy Key. The effects of the Hurricane Wilma storm surge manifested just north of the Property, became substantial at the Property, and continued south down the shoreline for a considerable distance. At the Property, sand was pushed from 50 to 100 feet waterward from the existing shoreline, and a substantial runout was created running parallel and north of the SW Jetty. The sand pushed into the water buried everything in its path, including seagrasses. In short, the post-Wilma shoreline from the Property south along Grassy Key was left in a completely disrupted state. The nearshore waters fronting the properties owned by Petitioners and Applicants were affected by the deposition of sandy, upland sediments, which temporarily created areas of substantially harder-packed sediment. Over time, as the shoreline equilibrated and the sandy sediment distributed through a broader area, more typical shoreline conditions returned. The photographic evidence demonstrates that the Mid- bulkhead and the SW jetty structures were impacted by the Hurricane Wilma storm surge. In addition, the sandy area between the mid-bulkhead and the SW jetty was pushed seaward from its previous location. The scars from Hurricane Wilma remain evident through the most recent aerial photographs received in evidence. It is visually apparent that seagrass, though reappearing in patches, has not reestablished in the nearshore areas along the affected shoreline of Grassy Key -- including the areas in front of the Property and the property owned by Petitioners -- to the extent that it existed prior to the storm. Post-Wilma Activities When Hurricane Wilma hit, the Property was owned by Burgess Lea Levine. Not long after Hurricane Wilma, Ms. Levine shored up the SW Jetty, and performed work in the “beach” area between the mid-bulkhead and the SW jetty. The photographic evidence also supports a finding that the rock outline of the Mid-jetty was reestablished to its pre-Wilma configuration. The repairs to the SW Jetty resulted in a structure that is virtually indistinguishable in size and shape to the SW Jetty as it presently exists. The wrack line at the beach area after it was “worked” following the passage of Wilma, shows the area in which work was done to be generally consistent with -- though slightly seaward of -- the 2005 post-Wilma shoreline. In 2008, Ms. Levine applied for a series of exemptions and for consent of use for state-owned lands for “shoreline repair, replace earthen ramp with a concrete ramp, repair wood deck, replace mooring piles & maintenance dredge existing channel w/in Atlantic Ocean.” On September 19, 2008, the DEP issued a regulatory authorization and proprietary submerged land approval. The Rights of Affected Parties that accompanied the September 19, 2008, notice provided that “[t]his letter acknowledges that the proposed activity is exempt from ERP permitting requirements” and that “this determination shall expire after one year.” The notice of Rights of Affected Parties did not apply to the proprietary authorization. At some time after issuance of the regulatory authorization, Ms. Burgess initiated additional work to repair the SW Jetty. The photographic evidence, which is persuasive, indicates that the work on the SW Jetty, including the concrete cap, was complete by the end of 2008. When Applicants purchased the Property, the determination of exemption issued in 2008 had, by application of the notice of Rights of Affected Parties, expired. Shortly after the Applicants purchased the property, they had the existing family home demolished. Applicants intend to construct a winter vacation home for their personal use on the property. 2012 Storms In August and October 2012, Grassy Key was subject to event-driven conditions as a result of the passage of Hurricanes Isaac and Sandy. Those storms redistributed large areas of sediments that had been moved offshore by the effects of Hurricane Wilma. The Proposed Permit The February 20, 2013, Permit provides that the structures described herein do not require the issuance of an Environmental Resource Permit, subject to the criteria and conditions in Florida Administrative Code Rule 40E-4.051. The Permit provides that the boat ramp is eligible to use the general permit in Florida Administrative Code Rule 62-330.417, the repair and replacement of the dock is exempt pursuant to section 403.813(1)(b), Florida Statutes, the maintenance dredging of the Channel is exempt pursuant to section 403.813(1)(f), and that the repair and replacement of the NW Jetty, the SW Jetty, and the Mid-bulkhead are exempt because the structures are “historic in nature and pre-dates Department regulations.” In addition to the regulatory authorizations, the Permit granted proprietary authorization by Letter of Consent for the dock pursuant to Florida Administrative Code Rule 18- 21.005(1)(c)4., and for the Channel, the NW Jetty, the SW Jetty, and the Mid-bulkhead pursuant to rule 18-21.005(1)(c)7. The Permit established the mean high-water line as that existing in 1974 and depicted on the “Richmond Survey.” Proprietary authorization for the boat ramp was determined to be unnecessary due to its location above the mean high-water line. Finally, proprietary authorization for the “Sandy Area” or beach between the Mid-bulkhead and SW Jetty was granted by Letter of Consent pursuant to rule 18-21.005(1). On September 20, 2013, the DEP filed a Notice of Additional Grounds for Exemption Determination, in which it found each of the structures subject to the regulatory review to “have only minimal or insignificant individual or cumulative adverse impacts on water resources” and to thus be exempt from the need to obtain an Environmental Resource Permit pursuant to section 373.406(6), Florida Statutes. On December 12, 2013, Applicants filed a Notice of Filing Proposed Changes to the Pending Agency Action in which they agreed to certain additional conditions, and which referenced the October 1, 2013, repeal of rule 40E-4.051, and its replacement by the “Statewide ERP rules.” For purposes of this de novo proceeding, the proposed Permit at issue includes the February 20, 2013, Permit; the September 20, 2013, Notice of Additional Grounds for Exemption Determination; and the December 12, 2013, Notice of Filing Proposed Changes to the Pending Agency Action. The Proposed Structures Groins There has been some confusion relating to the names of the structures that are subject to the proposed Permit. Two of the structures are referred to as jetties, the NE Jetty and the SW Jetty, and the middle structure is referred to as the Mid- bulkhead. A jetty is a navigation structure that is constructed at a barrier inlet. Its purpose is to stabilize the inlet and prevent shoaling by “jetting” current and wave-driven sand further offshore, such that the offshore bar is moved into deep enough water to allow navigation in and out of the tidal inlet, and allowing the tidal current between the ocean and the receiving body of water to keep the inlet scoured and open. There are 48 jetties on the open coast of Florida, none of which are in the Florida Keys. A groin is a structure designed for shore protection purposes. A groin is typically aligned perpendicular to the shoreline, or “shore normal.” The structures identified in the Permit as the NE Jetty and the SW Jetty are clearly groins, and not jetties. The mid-bulkhead is a groin, generally for shore confinement, with a channel-facing bulkhead. For purposes of continuity, the structures will be identified by the names given them in the Permit. Since there is negligible wave energy along the shoreline normal conditions, the groins have little or no day- to-day effect on longshore transport. Under storm conditions, the structures affect longshore transport, as evidenced by accretional “fillets,” and function as shoreline protection and confinement structures. The rock groins provide shelter, habitat and structure for corals, sponges, lobster, and fish in the area. The preponderance of the evidence demonstrates that the groins authorized by the Permit will have no adverse effect on fish and wildlife resources. NE Jetty The NE Jetty was originally constructed in the early 1960s, likely concurrent with the dredging of the navigational channel. The quality of the aerial photographs of the period make it difficult to tell if the NE Jetty was a loosely-placed rock embankment or a more well-designed and constructed structure. However, the fillet of sand accreted to the north of the Channel demonstrates that the jetty was in existence and functioning as a shore-protection structure. By the 1970s, the NE Jetty had become overwhelmed by longshore sediment transport from the northeast. Sediment overtopped the NE Jetty and filled in the landward reaches of the Channel. At that point, ability of the NE Jetty to perform as a shore protection structure was compromised to the point that it could no longer hold the shoreline out of the basin or the landward portion of the Channel. The Mid-bulkhead became the dominant structural control over the shoreline and started to accrete the shoreline to the northeast. At some time between 1977 and 1981, the Channel was maintenance dredged pursuant to a permit issued by the Department of Environmental Regulation, DEP’s predecessor agency. The NE Jetty appeared on the plans for the maintenance dredging. Thus, the most reasonable inference that can be drawn from the evidence is that the NE Jetty was repaired and restored in conjunction with the approved maintenance dredging. By 1981, the NE Jetty had been restored as the dominant shore protection structure north of the Channel, and a fillet of accreted material had been reestablished. The aerial photographs from that period are not sufficiently distinct to determine the precise size, shape, and configuration of the NE Jetty at that time. However, there is no evidence of additional work having been performed on the NE Jetty between 1981 and 1985. By 1985, the NE Jetty existed in substantially the size, shape, and configuration as it existed at the time of Hurricane Wilma. Between 1981 and the 2005 arrival of Hurricane Wilma, the evidence is convincing that the NE Jetty was holding up the shoreline to the northeast and preventing sediment from filling in the upper reaches of the Channel. Although the evidence suggests that the NE Jetty had, by 2005, begun to show its age, the continuous presence of an accretional fillet demonstrates that it continued to serve its function as a shore-protection structure. Although the NE Jetty suffered damage from Hurricane Wilma, it continued to perform its shoreline protection function. Aerial photographs taken in 2009 and 2011 show a relatively distinct structure with a well-defined accretional fillet. Thus, the greater weight of the evidence demonstrates that, at the time of its repair in May 2011, the NE Jetty was a functional groin. The NE Jetty, as repaired in 2011, is of substantially the same size, shape, and location as the structure depicted in aerial photographs taken in 1985, 2009, and early 2011. Although the elevation of the structure was increased over its pre-repair elevation, the increase was that reasonably necessary to prevent the function of the structure from being compromised by the effects of age and weather. The work performed on the NE Jetty, consisting of new rock laid on top of the existing rock, constituted repair and maintenance of the existing structure. Since 2005, and at the present time, the shoreline north of the NE Jetty has reached a state of equilibrium and stability, and is not expected to change significantly from its current condition. The preponderance of the competent, substantial evidence demonstrates that the effect of the NE Jetty on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners is minimal and insignificant. The sand and sediment accreted to the north of the NE Jetty since 1981 is in the range of 250 square feet. SW Jetty The aerial photographs from 19647/ demonstrate that some form of structure then existed at the location of the current SW Jetty. The structure is indistinct due to what appears to be sidecast material from a small channel in front of the property to the immediate south of the Property. By 1971, the SW Jetty had become more distinct. From that time forward, the SW Jetty, and its accompanying fillet of accreted material, appears in roughly the size and shape of the structure as it appeared immediately prior to the arrival of Hurricane Wilma. The SW Jetty was heavily impacted by Hurricane Wilma. The overwash from the storm created a substantial runout alongside the SW Jetty, and the post-storm aerials suggest that the jetty boulders were undermined and shifted from their more uniform 2003 appearance. Immediately after Hurricane Wilma, the owner of the Property commenced restoration and repair activities. As part of the activities, the SW Jetty was repaired with the addition of boulders, which were often three feet and every now and then as much as four feet across. The boulders, being irregularly shaped, could not be stacked like Legos®, so the repairs were not neatly within the precise pre-Wilma footprint. However, the repaired SW Jetty was substantially in the length and location as existed prior to Hurricane Wilma, though it may have had a slightly wider cross-section. By 2007, the work on the SW Jetty was complete, and it had assumed its present appearance with the addition of a concrete cap. Its appearance -- i.e. length, width, and location -- in 2007 and 2008 was not dissimilar from its appearance in 2003. As repaired, the SW Jetty effectively constitutes the same structure that it has been since its initial construction. From a coastal engineering perspective, the work that was performed on the SW Jetty, consisting generally of new rock laid on top of the existing rock, constituted repair and maintenance of the existing structure. Dr. Lin testified that between 1974 and 2011, the area to the southwest of the southwest jetty was “about equalized,” though it was “accreting a little bit.” Thus, the effect of the SW Jetty on the shoreline of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners from 1974 to 2011 was minimal and insignificant. Dr. Lin testified that, since 2011, the same area had eroded. The only substantive shoreline change that logically accounts for that subsequent erosion is the Mid-bulkhead extension, which is slated for removal under the terms of the proposed Permit. Petitioner testified that she observed no adverse effects from activities on the Property until after February 2011.8/ Since work on the SW Jetty was complete by no later than 2008, Petitioner’s testimony supports a finding that the SW Jetty has had no measurable effect on the water resources in the vicinity of the properties owned by Applicants and Petitioners. The preponderance of the competent, substantial evidence demonstrates that the effect of the SW Jetty on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners is minimal and insignificant. Mid-bulkhead The structure of the Mid-bulkhead first appeared as part of the sidecast material from the excavation of the navigation channel in 1964. It coalesced into a defined but smaller and more rudimentary structure in the 1971-1972 time period. At that time, it was acting as the predominant shore protection structure due to the overtopping of the NE Jetty with sediment, which also filled in the landward reaches of the Channel. By 1981, after the maintenance dredging of the Channel, the Mid-bulkhead had assumed substantially the size, shape, and location that it has currently. The Mid-bulkhead has a navigation function of protecting the landward extent of the Channel from the collapse of adjacent sand and sediment, and a shore protection and compartmentalization function. Those functions have been consistent since 1981. The Mid-bulkhead appears to have been subjected to the overwash of sand and sediment from Hurricane Wilma, though it maintained its shape and form. The outline of the Mid-bulkhead appears to be more well-defined after the initial post-Wilma repairs. In any event, the configuration and size of the Mid-bulkhead is substantially the same as it had been since 1981. At some point, the interior section of the Mid- bulkhead was topped with soil that is inconsistent with that naturally occurring in the area. That fill was confined, and brought the Mid-bulkhead to a more even grade with the rock outline, but could have had no measurable effect on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners. The preponderance of the competent, substantial evidence demonstrates that the effect of the Mid-bulkhead is minimal and insignificant. Channel In 1961, the Department of the Army authorized dredging of a navigation channel at the Property. The approved channel was to be 700 feet long, 30 feet wide, and to a depth of five feet below mean low water. The Florida Trustees of the Internal Improvement Fund issued a letter of no objection. By 1964, the Channel that is the subject of this proceeding had been dredged, though not to the 700-foot length approved. Rather, the Channel was dredged to a length of approximately 290 feet. Much, if not all of the dredge spoil was sidecast, creating a rock structure alongside the Channel. Measurements taken during the course of this proceeding demonstrate that the initial dredging resulted in near vertical side slopes, which shows that the bailing of the bedrock was accomplished to the limits. The width of the Channel is from 28 feet to 32 feet wide, which is within an acceptable tolerance of the 30-foot approved width. In 1976, the then-owner of the Property sought a permit from the DEP’s predecessor, the Department of Environmental Regulation, to maintenance dredge the Channel to a dimension of 290 feet long and 30 feet wide, to a depth of minus 8-feet mean high water, and to construct a new rock jetty to extend 230 feet waterward from the existing terminus of the NE Jetty. Given the mean tide range of 1.7 feet at the Property, the depth of the proposed dredging would have been minus 6.3 feet mean low water, or 1.3 feet deeper than originally approved. The permit drawings depict the existing NE Jetty, the Channel boundary, the outline of the Mid-bulkhead, and the sidecast rock structure alongside the southern side of the Channel. The permit was denied. In 1977, the owner of the property reapplied for a permit to maintenance dredge the Channel to a dimension of 290 feet long and 30 feet wide, and to a depth of minus 4.0 feet below mean low water nearshore to minus 6 feet below mean low water at the waterward end. The proposal to construct an extension of the NE Jetty was deleted. The permit was issued, and a severance fee for the dredged material was paid based on a projected 700 cubic yards of material removed. The permit drawings and photographs depict the existing NE Jetty, the nearshore Channel boundary, and the general outline of the Mid- bulkhead. By 1981, aerial photographs demonstrate that the maintenance dredging of the Channel was complete, the NE Jetty was in place and functioning to protect the shoreline as evidenced by the accretional fillet, and the Mid-bulkhead had assumed its approximate current shape and configuration. Although the Channel has varied in depth over the years since the maintenance dredging and Hurricane Wilma, the greater weight of the evidence, including photographic evidence, indicates that the Channel was well-defined and remained navigable during that period. The Channel is an open-water exposed channel. Water in the Channel mixes due to direct tidal flow and the sheet flow of water due to shear wind stress. As water passes over the Channel, it sets up gyre, which is a mixing process. The open- water exposed Channel is subject to a high degree of mixing, even on normal waveless conditions, because of the wind transport of water and the tidal transport of water. The Channel is not a semi-enclosed basin. A semi- enclosed basin does not receive the direct forcing functions that an open-water channel receives. A semi-enclosed basin has no direct connection to open waters, but is connected to open waters by a narrower opening. Although a semi-enclosed basin exchanges water via every tidal cycle, the flushing process is one of slow mixing, in which a little bit of water is added to and withdrawn from the larger basin through the narrow opening during each tidal cycle. In such a case, a flushing analysis may be necessary to determine how much time and how many tidal cycles it may take to effect a complete exchange of the water in the semi-enclosed basin, and thus, for example, to dilute a pollutant to an acceptable level. A flushing analysis is not needed in this case because the Channel is an open-water, openly-exposed location subject to a high degree of mixing under normal day-to-day tidal processes. There is no greater basin connected by a restricting connection as with a semi-enclosed basin. Rather, the Channel has direct exposure to the tides, along with wind shear stress moving the water. The evidence in this case is substantial and persuasive, because the Channel is highly exposed to the open water and the tides, and a well-mixed and well-flushed aquatic system, that a flushing analysis is neither required nor necessary. Dock The dock made its first obvious appearance in 1981. It appears in a consistent shape and appearance through 2011. Aerial photographs taken in 2012, after the maintenance dredging of the Channel was conducted, show the dock had been removed. At the time of the hearing, the Applicants had installed new pilings and vent boards for the replacement dock, but the decking had not been installed. Work to complete the replacement of the dock was halted due to the pendency of the litigation challenging the structures. The proposed dock is less than 500 square feet. It is proposed for non-commercial, recreational activities. It is the sole dock proposed on the Property. The proposed dock will not impede the flow of water or create a navigational hazard. Boat Ramp Since the issuance of the 2008 approval, the boat ramp site was graded and stabilized in limerock material. The concrete ramp was not completed due to the pendency of the litigation challenging the structures. However, Applicants propose to pave the ramp with concrete. Based on Mr. Clark’s observations during his site visits, the boat ramp is landward of the mean high waterline depicted on the survey. The preponderance of the evidence demonstrates that the proposed boat ramp will provide access to the Channel, which provides a minimum navigational access of two feet below mean low water to the ramp. Applicants have agreed to install depth indicators at the ramp to identify the controlling depths of the navigational access. The work on the ramp involves no seagrass beds or coral communities. The ramp as proposed will require no more than 100 cubic yards of dredging. The total width of the ramp is to be 20 feet and the ramp surface will be no wider than 12 feet. Beach Area The area between the SW Jetty and the Mid-bulkhead is an accreted beach-type area that has been confined and protected by the Mid-bulkhead and the SW Jetty. The shoreline landward of the mean high water line, from the dry beach and to the upland, is somewhat steeper than adjacent unprotected shorelines, which is indicative of the grooming of the upper beach sediment and the stability of the shoreline between the Mid-bulkhead and the SW Jetty. As a result of the Hurricane Wilma storm surge, a substantial amount of sediment was swept across the Property and into the Atlantic waters. The beach area was inundated with sand and sediment from the overwash, which appears to have moved the shoreline well waterward of its previous position. Along the northern side of the SW Jetty, a substantial channelized gully was created. The configuration of the shoreline post-Wilma suggests that efforts were made by the then-owner of the Property to fill in the gully on the northern side of the SW Jetty, and to groom and restore the shoreline by redistributing sand and sediment on the Property. It is typical, and allowable under DEP emergency final orders, for affected property owners to redistribute overwashed deposits and place them back within the beach system. In that regard, the DEP encourages the redistribution of clean beach sand back onto the beach. The then-owners of the Property were not alone in taking steps to address the effects of Hurricane Wilma on their adjacent shorelines. The photographic evidence demonstrates that Petitioners engaged in similar restorative activities, which included bringing in material purchased from a contractor to fill in a gully created on their property by the overwash. Observation of representative soil samples from the beach area demonstrate that the soils are consistent with those in the upper beach areas found throughout the area. The only areas of inconsistent soils were found in the interior of the rock structure of the Mid-bulkhead, which contained a four to six-inch layer of soil with a different consistency and darker brown color, and small area of similar soil directly adjacent thereto and well above the mean high water line. The greater weight of the competent, substantial, and credible evidence demonstrates that there was no substantial amount of “fill” from off-site placed on or adjacent to the beach area. Rather, the nature, appearance, and composition of the soils suggests that the temporary increase in the size of the beach area after Hurricane Wilma was the result of grooming and redistribution of sand and sediment pushed onto the Property and into the nearshore waters by the Hurricane Wilma storm surge. In the years since Hurricane Wilma, the influence of normal tidal and weather-driven events has returned the beach area between the mid-bulkhead and the SW jetty to roughly the configuration that existed prior to the passage of Wilma, though it remains somewhat waterward of its pre-Wilma location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the February 20, 2013, proposed Permit, as conditioned by Applicants’ December 12, 2013, Proposed Changes to the Pending Agency Action. DONE AND ENTERED this 25th day of July, 2014, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2014.
The Issue The issue is whether an amendment to Conservation Element policy 6.11.3(3) adopted by Respondent, Bay County (County), by Ordinance No. 09-36 on October 20, 2009, is in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. RMA is a non-profit association with approximately 100 members whose mission is "to ensure that future growth [in the County] is properly managed to maintain the quality and productivity of the local estuarine system." See Petitioners' Ex. 6. The parties have stipulated to the facts necessary to establish that RMA is an affected person. The County is a local government that administers its Comprehensive Plan (Plan). The County adopted the Ordinance that approved the text amendment being challenged here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. History and Purpose of the Amendment The County adopted its current Plan in December 1999. Section 163.3191(1), Florida Statutes, requires that every seven years each local government adopt an EAR to "respond to changes in state, regional, and local policies on planning and growth management and changing conditions and trends, to ensure effective intergovernmental coordination, and to identify major issues regarding the community's achievement of its goals." In the spring of 2006, the County began the process of preparing an EAR. On October 17, 2006, it submitted an EAR and Supplement to the Department. On December 21, 2007, the Department found the EAR and Supplement to be sufficient pursuant to section 163.3191(2). See County Ex. 7. After approval of the EAR, section 163.3191(10) requires that the local government "amend its comprehensive plan based on the recommendations in the report." Item 15 in the Recommended Changes portion of the EAR recommended that the Conservation Element be amended in the following respect: "The wetland and surface water buffer requirements should be restructured to recognize site-specific conditions such that pristine systems are afforded greater protection than impacted systems." Petitioners' Ex. 35. A similar recommendation is found in the Issues section of the EAR. Id. To implement these recommendations, the County added a second sentence to subsection (3) of Conservation Element policy 6.11.3. As amended, the subsection now reads as follows: (3) Wetland setbacks will be required as specified in Policy 6.7.4 for development on lots or parcels created after the effective date of this policy. Alternate project design and construction may be permitted in lieu of a required buffer when it can be demonstrated that such alternate design provides equal or greater protections to the wetland or its habitat value. On April 16, 2009, the Local Planning Agency conducted a public hearing and recommended approval of the EAR-based amendments. On May 19, 2009, the Board of County Commissioners (Board) voted to transmit the EAR-based amendments to the Department for its review and comments. On July 31, 2009, the Department issued its Objections, Recommendations, and Comments Report. On October 20, 2009, the Board enacted Ordinance No. 09-36, which adopted the EAR-based amendments, including the amendment to policy 6.11.3(3). See County Ex. 2. On December 15, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See County Ex. 8. Notice of this action was published in the Panama City News-Herald on December 16, 2009. See County Ex. 9. Although section 163.3177(6)(d) requires that the conservation element in a comprehensive plan protect wetlands, nothing in chapter 163 or Department rules requires a local government to adopt buffers. Even so, a 30-foot buffer has been in place since the County adopted its first Plan in 1990. Before it was amended, policy 6.11.3(3) provided that "[w]etland setbacks will be required as specified in Policy 6.7.4 for development on lots or parcels created after the effective date of this policy." Thus, it incorporated by reference the buffer zone requirements established in subsection (6) of policy 6.7.4. That provision reads as follows: (6) No building or structure can be located closer than thirty (30) feet from any DEP wetland jurisdiction line, mean high water line, or ordinary high water line except for piers, docks or similar structures and an attendant ten (10) foot wide cleared path through the wetland for purposes of providing access to such structure, or wet- land crossings required to connect dry, upland parcels. All native vegetation, if any exists, will be preserved within the 30- foot setback area. This requirement, including possible alternatives, may be further addressed in the Land Use Code. In short, this provision (a) requires a 30-foot buffer setback area between structures and DEP jurisdictional wetlands and mean or high water lines; (b) requires the preservation of native vegetation in the setback area; and (c) authorizes a 10-foot wide area to be cleared across the setback area to access the water or a dock. However, pursuant to provisions addressed in the Land Use Code (now renamed the Land Development Regulations (LDRs)), alternative project design and construction may be used in lieu of the required buffers. Except for changing the words "Land Use Code" to "Land Development Regulations," policy 6.7.4(6) was not amended in the EAR process. Therefore, all of its requirements remain in place. To address other "alternatives" to the buffer requirements, in September 2004 the County amended section 1909.3.h of the LDRs to allow alternative project design and construction "in lieu of the required buffer when it can be demonstrated that such alternative method provides protection to the wetland or its habitat value that is equal or greater than the vegetated buffer." Petitioners' Ex. 14, p. 19-11. This regulation authorizes the County Planning Commission, on a case- by-case basis through the site plan and variance process, and subject to final approval by the Board, to reduce the 30-foot buffer provided that the reduced buffer is mitigated based upon site-specific circumstances. The processing of these requests has provided the County with experience in approving buffer modifications through the use of alternative methods that provide "equal or greater" environmental benefits. A small number of variances have been authorized by the County under this process since the adoption of the regulation. See County Ex. 10 and 11; Petitioners' Ex. 15-18. In those cases, the County has granted a variance where, for example, the applicant has chosen to cluster wetland access points, elevate walkways in the buffer, enhance the buffer with vegetation or turf, reduce existing stormwater impacts, use swales, or employ other required mitigation to offset the reduction in the buffer. On the other hand, "numerous" other property owners were advised that, absent "special circumstances," a variance would not be granted because the applicant could not demonstrate that there would be an enhanced environmental benefit by reducing the buffer. Under current Plan provisions, a variance is the only way to modify the buffer requirement. The amendment does not eliminate the minimum 30-foot buffer required by policy 6.7.4(6). See Finding of Fact 10, supra. It does, however, provide the County with greater flexibility in approving requests to modify the required buffers and to consider factors that the current Plan does not address. Even though the function and value of wetlands may vary widely, the current Plan makes no distinction between pristine or impacted wetlands, and it does not allow the County to require a larger buffer for a pristine wetland. Under the new policy, the County may establish buffers based on site-specific conditions that consider factors such as location, wetland quality, surrounding land uses, site habitat, and the presence or absence of listed species. This will enable the County, through alternative design and construction techniques, to preserve higher quality wetlands or vegetation with larger buffers while at the same time reducing the buffer size for impacted wetlands in return for mitigation by the owner. The County will also have the flexibility to establish buffers in non-urban settings based on factors other than just erosion potential. The specific process for approving changes in buffer setbacks under the new policy will be established in the LDRs. However, all LDRs must meet the standard in the policy that the alternative design provides "equal or greater protection to the wetland or its habitat value." Under the process envisioned by the County, when a request is made for a buffer reduction under the new policy, the County will require that an analysis be performed by a qualified professional to justify the need for a buffer reduction. If no alternative to a buffer reduction exists, the owner will be required to have a biotic study prepared indicating the extent to which the encroachment would occur, along with justification for the encroachment. Assuming that justification can be shown, the County will then require some form of mitigation by the owner. The effectiveness of the new policy will be monitored, evaluated, and appraised through the use of geographical information system overlay maps. Finally, members of the public, including Petitioners, will be given access to the process through existing notice requirements for development orders. Petitioners' Objections Petitioners contend that policy 6.11.3(3) is internally inconsistent with Conservation Element objectives 6.7 and 6.11; that it is inconsistent with sections 163.3177(6)(d), (8), and (9)(b), 163.3191(10), and 187.201(9); and that it is inconsistent with Florida Administrative Code rules 9J-5.005(2) and (5) and 9J-5.013(1). The essence of the arguments is that the new policy decreases protection for wetlands, that it conflicts with the specific recommendations in the EAR, and that buffers should be based on studies pertaining to wetland setbacks rather than alternative design and construction. To prevail on these contentions, Petitioners must show that even if there is evidence supporting the propriety of the amendment, no reasonable person would agree that the amendment is in compliance. See Conclusion of Law 28, infra. Data and analysis Petitioners contend that the amendment is not supported by adequate and appropriate data and analysis, that the County did not react appropriately to the data and analyses in the EAR, and that the amendment is therefore inconsistent with rules 9J-5.005(2) and 9J-5.013(1) and section 163.3177(8). The data and analysis in the EAR and Supplement, including the Deer Point Reservoir Hydrologic Study, are incorporated by reference into the Plan. See County Ex. 1, Ch. 1, policy 1.1.4.4. As recommended by the EAR, the County reviewed current published scientific literature relating to wetland and surface water buffers. It also conducted a survey of buffer regulations and setbacks in various jurisdictions in the County and throughout the State. As summarized in the EAR, the data and analysis describe the limitations of wetland buffers, including the existing 30-foot buffer; however, they do not suggest that a larger buffer is necessary. Rather, they support the necessity for flexibility in the application of the existing buffer in order to provide equal or greater protection to pristine wetlands, which is the purpose of the new amendment. Petitioners contend that based on current published literature, the County should have reacted to the data and analysis by adopting a series of specific buffer distances up to 300 meters, depending on the type of habitat and wildlife around the wetlands and streams. While the establishment of larger wetland buffers in the Plan is possible, they are not required by state law or Department rules, and section 163.3184(6)(c) provides that a local government does not have to duplicate or exceed a state agency's permitting program. It is at least fairly debatable that the County reacted to the data and analysis in an appropriate manner by adopting a policy that requires that any request for a deviation from the minimum 30-foot buffer be accompanied by a demonstration that the alternative design will provide at least equal or greater protection to wetlands and their habitat values. Internal Inconsistency with Conservation Element Petitioners next contend that policy 6.11.3(3) violates section 163.3177(9)(b) and rule 9J-5.005(5) because it is internally inconsistent with objectives 6.7 and 6.11. The two objectives were not amended during the EAR process. Petitioners contend that the new policy is internally inconsistent with objective 6.7, which requires that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." Petitioners' evidence does not establish beyond fair debate that the new policy is internally inconsistent with this objective. Petitioners also contend that the policy is internally inconsistent with objective 6.11, which requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." Wetlands vary widely in function and value, and the current one-size-fits-all standard does not adequately address the different values and functions. The new policy provides the County with the flexibility to consider numerous site-specific factors and, when warranted, to establish buffers that vary from the 30-foot standard. The evidence shows that the new policy can also assist with the restoration of degraded natural systems to a functional condition. It is at least fairly debatable that the new policy protects and conserves wetlands and their natural functions. Similarly, the policy does not conflict with rule 9J-5.013 and section 187.201(9), which require or encourage that wetlands and other natural functions of wetlands be preserved, as alleged by Petitioners. Consistency with section 163.3191(10) Petitioners contend that the new policy is inconsistent with section 163.3191(10) because the County failed to "amend its comprehensive plan based on the recommendations in the [EAR] report." As a part of this argument, they also assert that, contrary to recommendations in the EAR, the new policy does not give adequate direction for the LDRs; that it contains none of the recommended site-specific criteria needed to evaluate the alternative design; that it fails to include a defined setback size; and that it does not allow the County to increase the size of a buffer. These arguments are based upon item 15 of the Recommended Changes portion of the EAR, which recommends that the County "restructure" the wetland and surface water buffer requirements "to recognize site-specific conditions such that pristine systems are afforded greater protection than impacted systems." Petitioners' Ex. 35. The new policy does not eliminate the 30-foot buffer. See policy 6.7.4(6)("no building or structure can be located closer than thirty (30) feet from any DEP wetland jurisdiction line, mean high water line, or ordinary high water line"). While the policy allows the required buffer to be modified, an applicant must first demonstrate that the alternative design provides equal or greater protection to the wetland or its habitat value. The policy also provides direction for implementing LDRs by requiring that any adopted LDR adhere to the above standard. Notably, through alternative design, the County may require larger buffers for pristine wetlands, while reducing the buffers for those of lower quality in return for mitigation. This is consistent with the EAR recommendation that the County afford pristine systems greater protection than impacted systems. Petitioners further point out that the new policy is flawed because it does not include every site-specific condition mentioned in the EAR. However, there is no requirement for this level of detail in the Plan, so long as the policy achieves the overall recommendation in the EAR, and it provides adequate standards for implementing LDRs. It is at least fairly debatable that the amendment complies with the requirements of the statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendment to policy 6.11.3(3) adopted by the County by Ordinance No. 09-36 is in compliance. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S 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 31st day of May, 2011. COPIES FURNISHED: William A. Buzzett, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Deborah K. Kearney, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Diane C. Brown 241 Twin Lakes Drive Laguna Beach, Florida 32413-1413 Alfred E. Beauchemin 705 Beachcomber Drive Lynn Haven, Florida 32444-3419 Lynette Noor, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Terrell K. Arline, Esquire Bay County Attorney 840 West 11th Street Panama City, Florida 32401-2336
The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
The Issue Whether the Southwest Florida Water Management District should issue the Individual Environmental Resource Permit (the "Individual ERP," the "ERP" or the "Permit") applied for by Entryway Developers, LLC ("Entryway")? The ERP was preliminarily issued by the District as Draft Permit No. 43024788.000 (the "Draft Permit"). If it becomes final, it will allow Entryway's successor in interest, Westfield Homes of Florida ("Westfield") both to construct a new surface water management system in service of a proposed subdivision, known as Ashley Glen, in southern Pasco County, and to conduct dredge and fill activities on site.
Findings Of Fact The Parties The Petitioner in this proceeding is Dr. Octavio Blanco. A veterinarian, citizen of Florida and a resident of Pasco County, he holds a property interest (described below) in property immediately adjacent to Ashley Glen. One of the three Co-Respondents, the Southwest Florida Water Management District (the "District" or "SWFWMD") is a public entity created by Chapter 61-691, Laws of Florida. It exists and operates under Chapter 373, Florida Statutes (the "Florida Water Resources Act of 1972" or the "Act"). The District is the administrative agency charged with the responsibility to conserve, protect, manage and control the water resources within its geographic boundaries. It does so through administration and enforcement of the Act and the rules promulgated to implement the Act in Chapter 40D, Florida Administrative Code. Entryway, the second of the three Co-Respondents, is a limited liability company and the original applicant for the Permit. Westfield, the third of the Co-Respondents, is a Florida general partnership and the current owner of the Ashley Glen Project. If the Permit is issued by way of a final order, Westfield will be the permit-holder. An application for an Individual ERP must be signed by the owner of the property or the owner's authorized agent. If signed by an agent, a letter of authority must be submitted by the owner. See Fla. Admin. Code R. 40D-4.101(2). Westfield was not the owner of the property on the site of the Project at the time of the filing of the application. Entryway was the owner. Westfield filed with DOAH a letter of authority received from Entryway.2 The letter authorized Westfield to sign the Individual ERP application. Ashley Glen and the Blanco Property "Ashley Glen-Villages 2-5" ("Ashley Glen" or as it is referred to in the Draft Permit, the "Project") is a 266.36-acre residential subdivision planned to be divided into more than 400 lots. Located in southern Pasco County, the subdivision is on the north side of State Road 54, approximately three miles west of US 41 and less than 1000 feet east of the Suncoast Parkway. To the north, Ashley Glen is bounded along an abandoned railroad right-of-way. The right-of-way extends beyond the northwest and northeast corners of the property in both easterly and westerly directions. There are 72.69 acres of surface waters and wetlands on the Ashley Glen site. Among the 19 isolated and contiguous wetlands on the property is a portion of a Cypress-forested wetland system (the "Cypress-forested Wetland"). The Cypress-forested Wetland was described at hearing by one of Westfield's experts as "a large wetland" (tr. 41) that is typical of the area. As with similar wetland systems throughout the state, the Cypress-forested Wetland undergoes "seasonal drawdowns and dry-outs, and in the wet season . . . flood[s] out to the edges and even beyond in certain storm events." (Tr. 43). The portion of the Cypress-forested Wetland that is on the Ashley Glen site is identified by the Permit as "Wetland A3." Wetland A3 is 29.94 acres. The entire Cypress-forested Wetland system south of the railroad bed of which Wetland A3 is a part is at least twice as large. Most of the remainder of the Cypress Wetland south of the railroad right-of-way is on the Blanco Property. It appears from exhibits used during the hearing that the Cypress Wetland originally extended north of where the railroad right-of-way now lies in its abandoned state. The connection was indicated also in the testimony of Mr. Courtney (Westfield's "wetlands" and "ERP" expert3) when he stated that there was potential for contiguity with systems to the north. Aerial photographs used at hearing indicated that the Cypress- forested wetland system was, indeed, part of the contiguous wetland system to the north of the railroad bed. The contiguity between the Cypress-forested Wetland and the system to the north was confirmed by Dr. Baca, Petitioner's wetland ecologist, on the basis of on-site examinations. Dr. Baca believes the Cypress-forested Wetland to be part of a much larger system that extends northward and to the west and that is contiguous with the Gulf of Mexico. He determined that despite the establishment of the railroad bed, the Cypress-forested Wetland remains connected to the contiguous wetland system to the north by way of pipes under and through the bed. Drainage on the Ashley Glen site is primarily from south to north with significant contribution from a drainage basin to the east. Drainage from the south is channelized by a ditch that runs nearly the length of the property from Wetland C12 at the southeastern tip to Wetland A3 near the site's northern boundary. Drainage from the eastern basin toward Wetland A3 is intercepted by the ditch. The result is that the drainage from the east is captured before it reaches Wetland A3 and drainage from the south bypasses Wetland A3 to be discharged northward at the railroad bed so that all of the drainage is "short-circuited by [the] ditch to the actual discharge location of [Wetland] A3." (Tr. 41). The discharge location from Wetland A3 was more precisely described at hearing by Mr. Courtney as "the confluence of [Wetland] A3 and the railroad bed where [the ditch] discharges off-site flows and [the] easterly to westerly flows into pipes that go under [the] old railroad bed " (Tr. 40-41). This testimony supports Dr. Baca's confirmation of the connection between the Cypress-forested Wetland and the contiguous wetland system north of the railroad bed. To the west of the ditch and the Ashley Glen site is the Blanco property. It has been held by Dr. Blanco's family for a period spanning six decades. Its boundaries roughly form an elongated narrow rectangle. From the eastern and western ends of 400 feet of frontage on State Road 54 (the southern boundary of the Blanco Property) the eastern and western boundaries run parallel of each other approximately 8000 feet to the north where the northernmost boundary of the Blanco Property meets the abandoned railroad right-of-way. The majority of the northern half of the Blanco Property is in the Cypress-forested Wetland. In addition to the drainage from the south and the east received prior to the digging of the ditch, the wetland receives drainage from the west which traverses the property between the Blanco Property and the Suncoast Parkway. With the exception of one acre on which sits the house in which Dr. Blanco's mother lives, the Blanco Property is presently the subject of a Land Trust Agreement. Through this unrecorded instrument, dated December 19, 1996, Dr. Blanco has an ownership interest in the property. Dr. Blanco's concern for the property pre-dates his ownership interest conferred by the trust agreement. He lived on the property from the age of three until he left for college. During that time, he "constantly" (tr. 374) observed many species of wildlife in the Cypress-forested Wetland, as he explained at hearing: Starting with mammals, I observed many deer, foxes, coons, coyotes, squirrels, ground squirrels, fox squirrels. And then numerous bird species . . . from the sandhill cranes to various storks and herons and egrets and . . . [m]ostly aquatic birds . . . many hawks [and] an occasional eagle [as well]. A lot of animals, such as frogs and snails. The apple snails particularly I've noticed. I've always admired them and the way they lay their eggs up on the water line. So, I've noticed them for years out there [along with] [m]any snakes [and], alligators. Id. Over the years, Dr. Blanco has observed changes, especially among the wading birds and the aquatic species: You see less and less of them. The periods where there's consistent water to support their life has grown shorter as time goes by. And this time of year where there's water, the life is pretty abundant. But then, in recent years, I've noticed that the time period seems to be getting shorter and shorter. And then . . . when I go out there, I use all my senses, not just my eyes, and the place just sounds different when it's full of life versus when it's, essentially, dried up. (Tr. 374-375). Just as in any typical cypress-forested wetland, during wet periods, the cypress trees in the Cypress-forested Wetland "will be inundated and the ground will be saturated to the edge of the uplands." (Tr. 45). During these times, the majority of the storms that deliver rain are considered small, that is, rainstorms of below half an inch. Much bigger storms, of course, also contribute to the water that stands in the wetland from time to time. "By the same token, in droughts or dry seasons, the water levels . . . typically drop to at or below the ground level." (Tr. 46). The dry periods, if part of the natural cycles between hydro-periods, contribute to the health of the system. For example, during dry periods nutrients are oxidized, one of the functions of a wetland. In 2002, the Cypress-forested Wetland was dried out from mid-March at the end of the dry season until the end of July, a period of drought. The dry season and the occasional drought contribute, of course, to a lowering of the water table below the surface of the wetland. But the water table may also be lowered by the pumping of water from wellfields in the area, one to the northwest of the site, another to the southeast. That pumping is monitored by the District. The District takes action to minimize damage from any lowering of the water table caused by pumping water from the wellfields. Apple snails have been recently observed in the Cypress-forested Wetland. "Apple snails are unique in that they're the sole food of the snail kite, an endangered species." (Vol. III, p. 61). There are snags and dead trees in the Cypress-forested Wetland as well. Used by many birds and mammals, they provide particularly good habitat for woodpeckers. The Cypress-forested Wetland is not a pristine wetland. The establishment of the railroad bed had an impact. In its abandoned state, the railroad bed continues to have an influence on its discharge to the north. The Suncoast Parkway "might have had some impact." (Tr. 53). Cattle grazing on both the Blanco Property and the Ashley Glen site has had an impact on the herbaceous ground cover layer and on the wetland's water quality although it is unlikely that the cows grazed in the Cypress-forested Wetland. ("Generally, [cows] don't graze on . . . wetland plants, because they're either bitter tasting or [have] poor textures . . . .") (Vol. III, p. 58). The well- fields in the area have had historic impacts mitigated, as mentioned, through implementation of an area-wide hydrology restoration plan by SWFWMD. The most significant impact to the Cypress-forested Wetland resulted from the combination of the construction of State Road 54 and the ditch's channelization of stormwater runoff migrating through the center of the Ashley Glen site. Had the property not been ditched, the stormwater runoff and any other migrating water would have been conveyed by sheet flow into the Cypress-forested Wetland. Despite the varied impacts over the years, the Cypress-forested wetland remains ratable today "as a mid to higher level quality wetland for the area." (Tr. 43). The Draft Permit Application for the permit was submitted on February 7, 2003. After eight formal submittals of information in response to questions by the District, a Draft Permit was issued on December 16, 2003. The Draft Permit lists the "Project Name as Ashley Glen - Villages 2-5" and otherwise refers to Ashley Glen as the "Project." The Permit allows the Project to fill 43.75 acre-feet of the 100-year flood plain on the Ashley Glen site. At the same time, the Permit allows 51.98 acre-feet of excavation on- site. Project construction will result in the filling of 1.61 acres of forested and non-forested wetlands and secondary impacts to at least one of the isolated wetlands. The permit speaks to secondary impacts to another of the wetlands and surface waters on-site and finds that there are none: "[O]ne isolated wetland, 0.37 acre in size, and 2.81 acres of surface waters will be impacted, however, since these areas provide no significant habitat functions, no habitat mitigation will be required." District Ex. 5, pgs. 3-4. The mitigation for the impacts that require mitigation, in the District's view, includes creation of 2.89 acres of wetlands and preservation of 65.32 acres of wetlands. The Permit also authorizes the construction of a new surface water management system (the "SWM System") to serve Ashley Glen. The Surface Water Management System The SWM System consists of six wet detention ponds, four isolated wetland treatment systems, an attenuation pond, and an associated conveyance and discharge structure. The wet detention ponds and the isolated wetland treatment systems were designed in accordance with Section 5.2 of the District's Basis of Review. Westfield Ex. 6 depicts the "generalities of the [SWS] [S]ystem in [Ashley Glen's] built environment." (Tr. 56). Key pipe areas are shown in white on the exhibit. For example, the existing ditch is re-located slightly to the east; the exhibit shows in white where water is piped from the northern terminus of the new, re-located ditch into Pond P11. This piped water will consist of drainage from the south that is now conveyed by the existing ditch and drainage from the east that passes through Wetland W2 and Wetland W1. In keeping with the historical drainage pattern that preceded the existence of the ditch, drainage from the basin on the eastern part of the property that passes through Wetland F4, Wetland E4, and Wetland D5 will also be discharged westward into P11 to be discharged at a point toward the southernmost part of Wetland A3, the wetland's headwaters. The discharge from P11 was described by Mr. Courtney at hearing: The discharge of P11 was placed up in the headwaters of A3 [where] . . . the [existing] ditch short-circuited the discharge of . . . waters to the discharge point of A3. [An SWM System] . . . control structure is placed at the headwaters of A3, a much better situation for A3, given that the quantities and quality of water is going to be the same or better, because water is now going to be reintroduced to the headwaters of A3 as opposed to short- circuiting it. (Tr. 57). Mr. Courtney estimated that one-fourth to one-half of the surface water flows on the property coming from the south and the east were routed unnaturally by the ditch to Wetland A3's discharge point at the railroad right-of-way at the northernmost point of the wetland. The project re-routes these waters to a point near the headwaters of Wetland A3 (in its southernmost part). Surficial flow, therefore, that had by- passed Wetland A3 because of ditching will be routed by the SWM System to the headwaters of Wetland A3 after treatment and attenuation provided that the attenuation pond reaches a high enough elevation. Any water discharged to Wetland A3 from the attenuation pond will flow in a northerly direction (the historical flow pattern) through the wetland to the point of discharge at the railroad bed. Provided that the restored flow is of good quality, restoration of the hydrology is a benefit to the system. On this point, Dr. Baca agreed with Mr. Courtney. The Cypress-forested Wetland on the Blanco Property and the wetland system that extends north of the railroad bed "are dependent upon the treatment, the care and the protection afforded the wetland on the Ashley Glen property." (Vol. III, pg. 60). Wetlands B8 and D3, surrounded by developed lots, are served by detention ponds. Internal drainage from the lots is collected from street systems. Pop-off from the systems goes either directly to a detention pond and then a wetland or to a sump and then to a wetland. After treatment, the drainage is conveyed to Pond P11. Pond P10, a relatively small detention pond, is situated at the headwaters of Wetland A3. The pond treats runoff and flows into Wetland A3. Pond P11, although not a stormwater detention pond and for which the applicant receives no treatment credit, is nonetheless "a good backup treatment mechanism for stormwater that is meeting state water quality standards as discharged from all of the drainage systems in the uplands." (Tr. 59). Through the attenuation process, moreover, it will perform some treatment that meets or exceeds the minimal requirements of ERP permitting. After attenuation and whenever the pond reaches a certain elevation, waters are discharged into Wetland A3. A major point of focus of Dr. Blanco's case is the excavation of the attenuation pond and its interaction with Wetland A3. The attenuation pond is designated in the Draft Permit as Pond P11 ("P11"). P11 If excavated according to present plans, P11 will be 25 feet deep at its deepest point (less than one percent of the pond). "[T]he deepest areas run along the corridor that goes between [Wetlands] B6 and D5." (Tr. 166). The shallowest areas of P11 are along the western edge of the pond where a shelf will be constructed. The surface area of the pond will take up approximately 40 acres. (See endnote 4). The Respondents refers to P11 as a "100 year flood plain compensation area." (Tr. 116). The Permit's "Water Quantity/Quality list of ponds denominates P11's "treatment type" as "[a]ttenuation" which would make it an attenuation pond. Dr. Blanco prefers to call P11 a borrow pit asserting that one reason for its excavation is to obtain fill for the development. Dr. Blanco's labeling of P11 as a borrow pit appears to be correct since the District referred to it as a borrow pit and since significant dredging on site is allowed by the Draft Permit. Whether Dr. Blanco's and the District's nomenclature for P11 is accurate or not, there is no dispute that P11 is part of the stormwater management system. The Draft Permit ascribes to it the function of attenuation: the process by which flow is slowed that allows compounds to be reduced in concentration over time. It is a significant component of the SWM System. Conveyance of water of sufficient quality that has undergone attenuation from the pond into a point near the headwaters of Wetland A3, moreover, poses the potential to improve the wetland's hydrology. Dr. Blanco asserts that fill needed by the Project could be obtained off-site. In other words, P11 does not need to be excavated to obtain the fill. But obtaining fill material is not the only purpose of P11 since it also provides retention and attenuation functions. Dr. Blanco's main concern with P11, however, is not its status as a borrow pit. His concern is based on three of its characteristics, the latter two of which relate to its nature as a borrow pit: 1) its placement, excavated directly adjacent to Wetland A-3; 2) its depth, at its deepest point, 25 feet; and 3) its size; close to 40 acres in open surface area.4 Due to sheer size of P11's open surface area, significant volumes of water in P11 will be lost routinely to evapo-transpiration. When the water level in P11 is below the water level in Wetland A3, moreover, the pond will draw water out of the Cypress-forested Wetland. Whenever the water is below its control elevation, it will take a considerable volume of water to raise it to the elevation appropriate to protect Wetland A3 and the rest of the Cypress-forested Wetland. Reaching the control elevation will occur only when all available storage has been filled and contributions of water (from rainfall, stormwater run-off, or by way of conveyance through the SWM System or otherwise) exceed loss through evaporation and seepage, downward and lateral. The parties disagree as to whether the applicant has provided the assurances necessary to justify issuance of the Permit. The most contentious point is about the effect P11 will have on Wetland A3 and the extended Cypress-forested Wetland. Westfield (with the support and concurrence of the District) bases its case for assurances, in the main, on a type of computer modeling. Dr. Blanco, on the other hand, presented testimony that criticized the computer modeling that was done in this case in support of the application. That computer modeling is known as "Interconnected Pond Routing" or "ICPR." ICPR Interconnected Pond Routing ("ICPR") is a type of hydrological computer model that takes into account surface water flows. It does not take into account groundwater flows, downward or lateral seepage or the lowering of the water table by well-field pumping. It models the surface water hydrology of a site as it might be affected, for example, by detention basins and channel pipes. It models pre-design of a site to be developed and then post-design of a site prior to actual development to provide comparative analysis. It is also a predictive tool. As with any predictive tool, its accuracy can only be definitively determined by observation and collection of data after-the-fact, in this case, after development. ICPR modeling is used in particular for stormwater and surface water management systems. For that reason, it was used by Westfield to support the ERP application in this case. Before ICPR modeling of the Ashley Glen site and the surrounding area was conducted, topographic information was collected by survey. The results of the survey and the modeling that followed resulted in several of the exhibits used by Westfield at hearing. For example, the topographic information and ICPR were used to produce a post-development map (Westfield Exhibit 12). In addition to sub-basins reflected in Westfield Exhibit 11 that relate to the hydrology of the site the map shows two pods (a "Southern Pod" and a "Northern Pod") of development. Approximately 400 feet of the Southern Pod will abut Wetland A3 on the pod's western edge. The location of the Southern Pod will necessitate re-location of the existing ditch. The Northern Pod, in contrast, will be separated from Wetland A3 by both P11 and the proposed road. The Northern Pod, the larger of the two proposed pods of development, is farther from Wetland A3 although it is separated from Wetland C2 solely by the proposed road. The sub-basins on Westfield Ex. 12 are reflected in Westfield Ex. 11, the result of pre-design modeling that revealed three off-site basins composed of 218, 544 and 908 acres. Each sub-basin corresponds to a detention pond designed to assist in enhancing the site's post-development hydrology. The modeling was also used to introduce P11, Westfield's proposed 100-year flood compensation area that would act as a detention pond for attenuation. Each sub-basin used in the modeling exercises covers an area for which there is information relative to size, curve number and time of concentration, all of which was entered into the modeling. Kyle Cyr, a registered P.E. in the State of Florida, and an expert in ICPR and stormwater modeling, described at hearing what happened next: The input is then directed towards a node, which we call the wetlands of the node or detention ponds. And then each node is interlinked by either channels, pipes or weirs, swells, drop structures. * * * [W]e check the models for pre and post to make sure there's no adverse impacts to off- site properties. No additional flows are allowed to leave the site. * * * We end up with flows, staging elevations for each node. . . . [The result is] [a] drainage report. [The] drainage report has a pre- and post- analysis in it. * * * [The] drainage report [is used] to design the site, to design the elevations and grading of the roads and [then] the lot and culvert sizes. (Tr. 147, 148). The drainage report and the information with regard to the design was then submitted by Westfield to the District together with a "pond wetland hydrology interaction report" and modeling with regard to "several minor storm events, a one-inch, a two-inch and a mean-annual event run . . . like a normal rainfall in the area." (Tr. 150). Various hydrographs for storm events were prepared by Westfield. In general, storm events should assist the hydrology of Wetland A3. The SWM System poses the potential that in storm events, P11 will discharge water to Wetland A3. The discharge pre-supposes that P11 will be at an appropriate elevation to allow the discharge with the addition of the surface water conveyed by the system into the pond. Hydrographs of the time versus inflow into Wetland A3 for pre-development and post-development conditions for the storm events were prepared by Westfield. For the one-inch storm and the mean-annual events, provided the pond is at an appropriate elevation prior to the storm (a proviso applicable to all of the hydrograph information), it is reasonably expected that there will be slight increases in peak flow after the development than before. For the two-inch storm, it is reasonably expected that there will be a slight drop in peak flow. None of the changes should have a negative effect on Wetland A3 so long as P11 maintains appropriate water elevations so that water has not been drawn out of the wetland that would have sustained the wetland had P11 not been excavated.5 Hydrographs that depict expected volume over a 72-hour time frame were also prepared based on the same storm events. During the applicable time frame for two-inch and mean-annual events, it is reasonably expected that there will be a slight increase in the volume of water entering Wetland A3 after development. As the result of a one-inch storm event, it is reasonable to expect there to be a slight decrease in volume over the 72 hours. None of the changes are expected to have a negative effect on Wetland A3, again, provided that appropriate water elevations are maintained in P11. Finally, hydrographs were prepared for time-versus- inflow for 25-year and 100-year storm events both pre- development and post-development. The modeling showed that, after development, "[a]djacent properties will not experience the higher flood level [that] they have in the past." (Tr. 156). The decrease is due to the holding back of water in detention ponds after development that will flow off at a slower rate than under pre-development conditions. The hydrographs show the difference in water flowing onto the site and Wetland A3 after the development under typical conditions in comparison to before development is slight. Water levels in Wetland A3 at times of typical storm events, after development, therefore will not be affected in any meaningful way by the SWM System so long as P11's water level is maintained at an appropriate elevation. In accordance with Section 4.2 of the District's Basis of Review, the SWM System is designed so that "[o]ff-site discharge is limited to amounts that will not cause adverse off- site impacts." Section 4.2 of the Basis of Review. See District Ex. 4, CHAPTER FOUR, pg. 1. The allowable discharges from the Project were established as a pre-development peak discharge rate from a 25-year, 24-hour storm. The modeling showed that the post-development discharge rates do not exceed the pre-development peak discharge rate. The ICPR modeling did not consider the outfall from Wetland A3 that occurs at the abandoned railroad right-of-way on the northern end of Wetland A3. As explained by Mr. Cyr, "Wetland A3 is . . . [a] boundary condition. That's where our model stops." (Tr. 198). The structure at the outfall at the northern end of Wetland A3 consists of three 42-inch pipes. Had the outfall been considered, Mr. Cyr testified, it would have had no effect on the results of the modeling. The understanding of the effect on the hydrology of the site provided by ICPR modeling conducted by Mr. Cyr, the drainage report and the other aspects of the information (such as the hydrographs and the design and information related to water quality) gathered and produced by Westfield support the District in its decision to issue the Permit. But there is a criticism of the modeling. It was presented by Dr. Blanco's witness: Mr. Vecchioli, an expert in hydrology as it relates to groundwater. The Site's Hydrogeology The area in which Ashley Glen, the Blanco Property and the Cypress-forested Wetland sit was described by John Vecchioli, a licensed geologist in Florida and an expert in hydrogeology, as: a low-lying plain of limited altitude . . . underlain by some 20 to 50 feet of . . . fine to very fine sand, sometimes silty, sometimes containing a clay layer or two. And then beneath that blanket of sand is . . . the upper Floridan [A]quifer, . . . a thick deposit of limestone, which also constitutes the primary source of drinking water for the area. (Tr. 93). Connected with the surface waters of the area so that the aquifer and the surface waters function as a single system, the Floridan Aquifer in Pasco County is known as a "leaky- confined aquifer." Id. Its "leaky-confined" nature means that: [The Floridan is] not firmly capped by thick layers of clay, but rather by sand deposits that although . . . more pervious than the layers of clay, still impede the exchange of water between the two systems. Id. The source of the water in the upper Florida Aquifer is mainly rainfall because the Aquifer "intercept[s] waters from the surface." (Vol. III, Tr. 95). Much of the water in the upper Floridan is recharged, "very young water . . . indicating that it has a good connection with the surface." Id. The interaction between the surface water and ground water was shown by a study that "showed . . . 93% of the water derived from . . . public supply wells [was] primarily from capture of water from the surface environment." (Vol. III, Tr. 94). Furthermore, "[t]here's some 133 million gallons per day pumped from a combination of wellfields in [the] area [of Ashley Glen and the Blanco Property]." Id. The documented adverse impacts of the pumping in the area has been limited to "drying up the surface, capturing water from streams, pulling down . . . wetlands." Id. The interaction between the surface waters and groundwater in and around Ashley Glen leads to Mr. Vecchioli's opinion that the effects of the SWM System on groundwater, and in particular the effect of Pond P11, "is a very important aspect . . . almost totally ignored [by Westfield and the District.]" Id. In other words, ICPR, because it does not account for effects on groundwater, is a flawed model for determining the impact on all water resources in the area. It did not consider "downward leakage as a means for water to escape from the pond [P11]." (Vol. III, p. 96). The omission is critical because the Floridan aquifer system has a potentiometric surface that's some 10 to 20 feet lower than the water table or surface environment most times during the year. The meaning of this was explained at hearing by Mr. Vecchioli: [T]here's a downward gradient where water will flow from the land surface in the vicinity of Pond 11 [Pll] down into the Floridan. When [Westfield's consultants] did the evaluation of the wetland-pond interaction, they ignored this. They essentially said that because we don't intend to penetrate the confining layer, which SWFWMD does not want done, that there won't be any leakage out of the pond vertically. This is not correct . . . . [I]n creating the pond . . . 25 feet or roughly half of the confining bed, or a greater amount, [will be removed], so this makes it much easier for water to move from the water table at land surface down into the Floridan . . . . Id. The failure to account for downward leakage or "vertical seepage" is significant. "[I]t . . . creates the uncertainty as to whether P11 is going to receive enough water to stay saturated to the top for much of the year." (Vol. III, Tr. 96- 97). If the water level in P11 does not stay at the control elevation, "there will be a downward gradient that prevails from the adjacent wetland [Wetland A3] into the pond and part of this will leak out into the Floridan aquifer, in addition to additional water lost by evaporation from the open surface of the pond. [This] . . . will create a deficiency in storage for the pond." (Vol. III, Tr. 97). Furthermore, with the removal of the sand during excavation and the replacement of it with water, "the material the water [that is contributing to seepage] has to move through is less, so you have much less energy lost to frictional forces." (Vol. III, Tr. 115). The result is that vertical seepage will be more likely to occur after the pond is excavated than before. In other words, it will be much easier for water to move from the surface into the Floridan. The seepage, moreover poses difficulties in maintaining elevation in P11. Evaporation from the pond will be greater than evaporation from the wetland. If water in the pond is not at the appropriate elevation, water will be drawn from Wetland A3. The wetland will be drier than under natural conditions. Mr. Vecchioli stopped short of predicting that downward leakage would damage the wetland; he stated only that damage would occur if P11 functions as he thought it "might." (Vol. III, Tr. 106). In essence, Mr. Vecchioli's opinion does not stand as a projection of certainty that the wetland will be damaged. Instead, it presents a factor that was not considered by Westfield in its analysis and by the District in its review. The District counters Mr. Vecchioli's opinion with the fact that the depth of the excavation is in compliance with the District's Basis of Review and that it will not remove what SWFWMD considers to be a "primary retarding material or section," that is, a layer of clay. But it will remove much of the sand. Sand, while it inhibits downward seepage from the surface into the aquifer, is nonetheless not impermeable; it is not an aquitard. Seepage, therefore, will occur despite compliance with the Basis of Review (as explained, below) with regard to depth of excavation and aquitards. Depths of Excavation and Aquitards Subsection 6.4.1.b of the Basis of Review addresses depths of excavation: 6.4.1 Dimensional Criteria (as measured at or from the control elevation). * * * b. Depth - The detention or retention area shall not be excavated to a depth that breaches an aquitard such that it would allow for lesser quality water to pass, either way, between the two systems. In those geographical areas of the District where there is not an aquitard present, the depth of the pond shall not be excavated to within two (2) feet of the underlying limestone which is part of a drinking water aquifer. District Ex. 4, CHAPTER SIX, Pg. 2 The term "aquitard" is not a term that appears in the "Explanation of Terms" section of the Basis of Review. See District Ex. 4, Section 1.7, CHAPTER ONE, pgs. 2-6. The District does not consider sand to be an aquitard. Clay, on the other hand, is an aquitard. As explained by Mr. Ritter at hearing, the term aquitard is "defined as a somewhat impermeable layer that if you were to cut through that, that would be considered a breach." (Vol. III, Tr. 128). If the District were to consider sand an aquitard, there is nowhere in the District that a pond could be excavated in compliance with subsection 6.4.1.b of the Basis of Review. The Ashley Glen proposal for the excavation of Pond P11 to a depth of 25 feet complies with the Basis of Review. The depth of excavation of the pond does not come within two feet of the underlying limestone. Nor does it breach a clay layer or any other aquitard. Compliance with the "depth of excavation" and "aquitard" provisions of the Basis of Review does not cure the problem with the placement of Pond P11: adjacent to Wetland A3. The problem was addressed (although not resolved) by a post- Draft Permit correction that showed more water reaching Wetland A3 by way of the SWM System than had been shown in the original modeling. Post-Draft Permit Correction The modeling described at hearing included a correction after the issuance of the Draft Permit. The correction was made because of "an additional off-site contributing area east of the project that was not considered in the original flood study prepared by the [applicant's] consultant . . . ." (Tr. 222). The model was updated to incorporate the additional contributions that had not been considered prior to the issuance of the Draft Permit. After the additional data was introduced, the modeling suggested changes that Westfield made to its proposal. On the north end of the Project, a conveyance channel had to be enlarged. Additional culverts were proposed beneath the proposed roadway to reduce flood impacts from the additional flows entering from the east that had been overlooked. Further evaluation by the District ensued in the wake of the additional modeling. Ultimately, in the process that preceded the final administrative hearing, the application was determined by the District to "still me[e]t the conditions for issuance and [staff, therefore] recommended approval." Id. In other words, this additional water would not cause too much water to flow into Wetland A3 and cause adverse impacts from flooding. The additional data demonstrates that there will be more water flowing through the SWM System and into Wetland A3 then originally projected but not too much so as to cause adverse flooding impacts. The additional water, however, does not cure the problem that Pond P11 poses for Wetland A3 as explained by Mr. Vecchioli due to the wetland's location, depth and open surface area. Location, Depth and Open Surface Area In the final analysis, while there may be nothing out of compliance technically with the depth of P11 and the size of its open surface area, when these factors are combined with the location of P11, adjacent to Wetland A3, there is a problem: the potential for adverse impact to Wetland A3 and the extended Cypress-forested Wetland of which it is a part. Seepage and evaporation will make it difficult to maintain the water levels in P11 necessary for the pond to discharge into the wetland. Furthermore, when the water table is down, whether due to drought, pumping activities in the region or for some other reason, and P11 is not at an appropriate elevation, it will draw water out of Wetland A3. Seepage and evaporation have the potential to exacerbate the drawdown. Seepage promoted by the presence of Pond P11 was not taken into account in the modeling done for the project. Without consideration of all the factors material to the site that should enter an appropriate calculation, there is not reasonable assurance that Wetland A3 and the Cypress-forested Wetland will not suffer adverse impacts from the SWM System. Monitoring Water Quantity Section 3.2.2.4(c) of the Basis of Review states: Whenever portions of a system could have the effect of altering water levels in wetlands or other surface waters, applicants shall be required to monitor the wetlands or other surface waters to demonstrate that such alteration has not resulted in adverse impacts, or to calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules, and reporting requirements shall be specified in permit conditions. District Ex. 4, Chapter Three, P. 6. The District determined that the routing analysis and volume calculations with regard to the hydrology on-site and the hydrology of the wetlands provided by Westfield show that there will not be significant or frequent negative changes in wetland hydrology on site. The District concluded, therefore, there is no necessity to require monitoring of wetland water levels in the Permit. The District's determination, based as it is on the ICPR modeling provided by Westfield, does not withstand the criticism by Mr. Vecchioli. If the District, in the face of the evidence of record and Mr. Vecchioli's criticism, nonetheless decides that reasonable assurances have been made by Westfield, the District should require monitoring pursuant to the subsection 3.2.2.4(c) of the Basin of Review; without doubt, the excavation of Pond P11 adjacent to Wetland A3 has at least the potential to affect water levels in the wetland system. Water Quality The depth of P11 poses some dangers to water quality. Generally, the deeper a Florida lake, the more anoxic and "the more likely you have . . . nutrients such as phosphorus, binding up in the [waterbody] and then being released later" (vol. III, p. 64) to affect the waterbodies negatively. Wetlands surrounding P11, acting like "sponges" would provide treatment that removes nutrients and locks up chemicals to reduce their toxicity would improve water quality. But the District's rules do not require biological treatment for nutrients as part of the design of a surface water system. Given its nature as an attenuation pond, P11 will act like a secondary sediment sump. This aspect of P11 contributes no treatment credit to the application, as mentioned earlier, but any water entering Wetland A3 from P11 will have been treated by an SWM System so as to meet the District's requirements. Other measures will improve water quality on- site. One of such measures, for example, is that cattle on-site will be removed. Other measures related to water quality were examined by District staff. As he testified on behalf of the District, Mr. Sauskojus "checked to see whether or not . . . erosion control was located between any construction in the wetlands and/or buffers provided." (Tr. 288). He also checked to see that structures through which stormwater flowed into wetlands were equipped with skimmers. The inquiries led him to conclude as an expert in environmental resource permitting that water quality would not be adversely affected by the SWM System. Monitoring of water quality by the District may be done after the Permit has been finally issued and the SWM System is constructed. The District so provides in the Basis of Review. Section 5.13 of the District's Basis of Review states: Staff reports and permits for projects not requiring monitoring at the time of permit issuance will include a statement that water quality monitoring will be required in the future if necessary to ensure that state water quality standards are being met. This should not be construed as an indication that the District is contemplating the implementation of a program of intensive water quality monitoring by all permittees. District Ex. 4, Chapter Five, P. 6. Assurances Other than ICPR P11's Shelf Westfield proposes creation of a shelf along the western boundary of P11. It is approximately 150 feet wide with a slope of "a hundred to one . . . a flat area . . . right around the seasonal high elevation of [the] pond." (Tr. 158). Just as it does not claim treatment credit for P11, Westfield does not claim treatment credit for the shelf. There will not be any planting on the shelf; nor is it designed to serve as a littoral zone. A "shelf is . . . in some cases the final location for . . . the filtration [and] the protection for the wetland[;] . . . it acts as a wetland buffer for the mature forested wetland." (Vol. III, p. 59). But the shelf to be provided by Westfield is "just . . . a secondary shelf to help the interaction between the wetland and the pond." (Tr. 159). Without vegetation, the shelf provided will be of insignificant benefit. Dewatering During Construction To prevent dewatering of Wetland A3 during construction, a dewatering plan must be provided the District before excavation of P11 begins. The Permit contains a general condition that if the contractor "decides to use dewatering" (tr. 223) of a wetland, the District must be notified so that an assessment of adverse effects on the wetland can be made.6 Wetland Impacts: Avoidance, Minimization and Mitigation Direct impacts to wetlands include excavation or filling: events that entail physical construction in the wetland. The Project proposes direct wetland impacts to 1.61 acres of wetlands and 2.81 acres of surface waters or wet ditches. With regard to impacts, an applicant must first attempt to avoid them. If that fails, the applicant must minimize the impact. Finally, the applicant must propose mitigation for impacts. Direct Impacts to Wetlands In addition to the secondary impacts caused by the Project's upland activities to the many wetlands on-site that are buffered or that were not buffered and that have to be offset by mitigation, Wetland B12, a wetland little more than one-half acre in size, will receive both direct and secondary impacts. The direct impact is caused by the proposed road. The direct impact is unavoidable because of road alignment required by the Department of Transportation, "a human health and safety issue [that relates] to State Road 54." (Tr. 64). The direct impact to Wetland B12 takes up .15 acres, leaving .43 acres of the wetland without direct impact. (At the same time, Wetland B9 is avoided by the curve in the proposed road and the road is aligned to avoid direct impact to Wetlands B6 and D5.) Wetland B12 is exempt from fish and wildlife review because it "is not connected by a ditch or overland flow to a larger than half-acre wetland at seasonal high " (Tr. 283). The value of Wetland B12, as an isolated wetland, is not as high as the value of Wetland A3. It has also suffered de-watering and encroachment by exotic species. Wetland C12, just down the proposed road from Wetland B12, will incur direct impact to 0.05 acres. The remainder of the wetland on site, 1.80 acres will be preserved under a conservation easement. Wetland B4 is a small, herbaceous wetland. In the middle of what is now cow pasture slated for excavation if the Project is approved, Wetland B4 will suffer permanent destruction by the creation of Pond P11. The direct impact will cover 0.75 of an acre, the size of the wetland as it now exits. Wetland C4, 0.60 acres in size, will also be permanently destroyed by the establishment of several lots in the Northern Pod of development and excavation of P4, a wet detention pond. The justification offered by Westfield for the permanent destruction of these two relatively small isolated wetlands is economic. Saving them would cost $215,000. Mitigation of the Direct Impacts The project preserves wetlands on site with conservation easements. If the wetland is a good candidate for wetland stormwater treatment, the project attempts to augment its hydrology. The direct impacts of Westfield's planned activities are proposed to be mitigated by the construction of 2.89 acres of non-forested wetlands and by the preservation of 65.32 acres of wetlands on site. Section 3.3.2 in the Basis of Review provides: Subsections 3.3.2[.1] through 3.3.2.2 [of the Basis of Review] establish ratios for the acreage of mitigation required compared to the acreage which is adversely impacted by regulated activity. District Ex. 4, CHAPTER THREE, P. 21. When preservation of wetland and other surface waters is the vehicle of mitigation, it also provides: The ratio guideline for wetland and other surface water preservation will be 10:1 to 60:1 (acreage wetlands and other surface waters preserved to acreage impacted). District Ex. 4, CHAPTER THREE, P. 24. The ratio of wetlands and other surface waters proposed for preservation (65.32 acres) to wetlands proposed to be permanently destroyed (1.61 acres) by Westfield is more than 40 to 1, well within the guideline. The wetland area to be created is designated as Wetland B2. Adjacent to two wetland systems, Wetland A3 and Wetland C2, and lying between them, Wetland B2 will also serve as a wetland habitat wildlife corridor. The 2.89 acres of created non-forested wetlands that will constitute Wetland B2 offset 1.36 of non-forested impact, a ratio of 2.13 to 1. The ratio is within the guidelines for created wetlands in Section 3.3.2.1.1. of the Basis of Review. In the District's view, the applicant's wetland mitigation proposal provides the District with reasonable assurances that impacts to wetland functions will be offset. Put slightly differently by Mr.Sauskojus, in the view of District staff, "weighing the proposed direct impacts, the secondary impacts and the mitigation provided, . . . there will not be adverse impacts on site or offsite . . . ." (Tr. 293). Since downward and lateral seepage from Pond P11 was not taken into account, however, the mitigation plan offered by Westfield is not designed to offset any impacts from the seepage to Wetland A3 and the Cypress-forested Wetland. These impacts are secondary impacts. Secondary Impacts A secondary impact is an impact that follows a direct impact to a water resource. An example of a secondary impact is boat traffic increase because of the installation of a boat ramp or a marina that poses an increased threat of collision with manatees. The construction of the boat ramp or the marina would entail direct impacts to the water resource. The increased boat traffic would constitute impacts secondary to the construction of the ramp or marina. A way to minimize secondary impacts is through buffers. Just as the Cypress-forested Wetland should be buffered from development, so should the isolated wetlands on-site. Isolated wetlands are important for several reasons. They accept the brunt of the discharges from the developed uplands and so are responsible for filtering nutrients, pesticides and chemicals from stormwater and other run off. They also are spots where wildlife congregate. Birds, in particular, will be under siege from the cats that inevitably accompany development. Buffers, particularly vegetated buffers, assist in protection of wetlands whether contiguous or isolated. Section 3.3.7 of the Basis of Review provides: Secondary impacts to habitat functions of wetlands associated with upland activities will not be considered adverse if buffers, with a minimum width of 15' and an average width of 25' are provided abutting those wetlands that will remain under the permitted design, unless additional measures are needed for protection of wetlands used by listed species for nesting, denning, or critically important feeding habitat. District Ex. 4, CHAPTER THREE, Pg. 16. The upland activities of the Project have an average 25-foot buffer. For the bulk of the Project, the buffer is at least 15 feet, a minimum buffer that is normally required. Close to the headwaters of Wetland A3, however, the Southern Pod of development does not have a buffer that is equal to or more than 15 feet. In this area and other areas where there are less than 15 feet of buffer (such as around isolated Wetlands B8 and D3), the Project calls for a double silt fence, that is, a two- rowed fence to hold back silt. The silt fence will protect the wetland from damage during grading of the lots and construction of the residences. But it will not protect the wetland from secondary impacts caused by upland activities after the Project is developed. The buffers are made up of bahaia grass primarily. The import of the buffer's composition was explained at hearing by David Sauskojus, a District employee: If a buffer is made up of pasture grass, it is definitely much less effective relative to protecting habitat functions than . . . an undisturbed upland. . . . [I]n this case, . . . in the past before they made it pasture, [the undisturbed upland would have] consisted of palmettos, bryonia, bushes, [and] shrubs, that would have provided some kind of habitat value to the wetland itself. (Tr. 282). Despite the low quality of the composition of the buffers, the additional width of buffers in other areas that allow the average of the buffers to exceed 25 feet was reasonable assurance in the view of District personnel that the encroachment of development closer than 15 feet in certain areas would not have secondary habitat impacts to Wetland A3. Because of this "offset," the District did not request the applicant to mitigate for the encroachments into the minimum 15 feet of buffer normally required. Cumulative Impacts Section 3.2.8.1 of the Basis of Review provides: Cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities as described in 3.2.8 would then result in a violation of state water quality standards as set forth in subsection 3.1.1(c) or significant adverse impacts to functions of wetlands or other surface waters identified in subsection 3.2.2 within the same drainage basin when considering the basin as a whole. District Ex. 4, CHAPTER THREE, P. 19. The Project will not cause unacceptable cumulative impacts on the wetlands and other surface waters on site. Fish, Wildlife and Listed Species Under the Basin of Review, when a party applies for an ERP, "[g]enerally, wildlife surveys will not be required." District Ex. 4, Basin of Review, Section 3.2.2, CHAPTER THREE, page 4. The Basin of Review details when a wildlife survey is required: The need for a wildlife survey will depend upon the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species, and whether the proposed system will impact that use such that criteria in subsection 3.2.2 through 3.2.2.3 and subsection 3.2.7 will not be met. Survey methodologies employed to inventory the site must provide reasonable assurance regarding the presence or absence of the subject listed species. Id. It is apparent from the record that District staff initially believed that a wildlife survey was needed. The file of record contains a document prepared by District staff entitled "Project Information Review List," (the "First Request for Additional Information" or "1st RAI"). Dated March 7, 2003, it refers to the Application's receipt one month earlier. Under the heading "SITE INFORMATION," the following appears: Has any current wildlife survey been performed on site? In particular, what recent observations have been made of wildlife usage within Wetlands B4, C4 and B12? The submitted wildlife survey not only is almost three years old, but it represents a preliminary effort. (emphasis supplied), Westfield Ex. 19, File of Record,(1st Volume), p. 104. The staff request for additional information continues with recommendations not only to cure the outdated nature of the survey but also for the methodology that should be used: Id. Staff would recommend, for the above three wetlands, that a survey be performed which is consistent with Florida Fish and Wildlife Conservation Commission's methodology, documented within; Standardized State Listed Animal Species Survey Procedures for FDOT Projects by Jim Beaver, revised in 1996, and Wildlife Methodology Guidelines by Mike Alan, 1988. Reference Rules 40D-4.101(1)(c) and (e) and 40D-4.301, F.A.C. and Section 3.2.2, Basis of Review (B.O.R.). The file of record reflects a response to the 1st RAI. With regard to the question as to whether a current wildlife survey has been performed, the criticism of the submitted survey and the recommended methodology to be used in a subsequent survey, Westfield's ERP consultant, King Engineering Associates, Inc., ("King") responds: Site conditions have not changed since King conducted the original preliminary listed species survey. During more recent site visits, King staff have not observed any additional listed species, or evidence of their breeding/nesting activity on the subject property. Onsite wetlands B4 and C4 are essentially shallow, wet depressional areas in the pasture. While these herbaceous wetlands could potentially provide occasional foraging habitat for wading birds, they do not represent suitable habitat for breeding/nesting of any listed species. Wetland B12, a forested wetland, likewise does not represent suitable habitat for breeding/nesting of listed species, and no listed species have been documented in this wetland. As a follow-up effort to King's preliminary listed species survey, and following recommendations made in that report, King has performed additional wildlife surveys. Specifically, a Southeastern Kestrel Survey and Gopher Tortoise Burrow Survey were conducted by King. The results of these follow-up surveys, which were included with Attachment 7 of the original submittal, revealed that neither of these two listed species is currently present on, or breeding/denning on, the subject property. Westfield Ex. 19, File of Record, (1st Volume), p. 123. On May 7, 2003, the District responded by letter to the additional information provided by King with a second Request for Additional Information (the "2nd RAI"). The letter states, "[y]our permit application still lacks some of the components necessary for us to complete our review; the enclosed checklist describes the missing information." District Ex. 19, File of Record, (1st Volume), p. 184). The checklist attached, under the heading "SITE INFORMATION" states: The response to Request for Additional Information (RAI) Comment No. 3, regarding wildlife surveys, does not give the District reasonable assurance that threatened or endangered species do not use the wetlands proposed to be impacted. Many changes have taken place in the vicinity of the project since King performed the preliminary survey three years ago. The construction of the Suncoast Parkway and several nearby residential developments have re-shaped habitat availability within this area. The District strongly recommends performing a wildlife survey to evaluate the usage by threatened or endangered species of Wetlands B4, C4 and B12. The survey should be performed using the previously noted Florida Fish and Wildlife Conservation Commission (FFWCC) methodology. Additionally, when/if the survey is performed, please provide details regarding the actual survey, including but not limited to, dates, times of day, location and methods used. Westfield Ex. 19, File of Record (1st Volume), p. 185. On June 20, 2003, King responded in writing to the 2nd RAI. With regard to the strong recommendation of a wildlife survey that uses the FFWCC methodology, King wrote: The applicant is confident based on the results of the existing Preliminary Listed Species survey and the extended amount of property contact time by field scientists and District staff in the intervening months when hydro-period, wetlands delineation, and permit application work were on-going, that no wetland dependent species are present. Westfield Ex. 19, File of Record, (1st Volume), p. 198. In addition to the time spent on the preliminary survey, the response lists 64 hours of time when the site was visited for purposes of "[w]etland delineation, wetland delineation & [h]ydro-periods," "h]ydro-periods," "[h]ydro-period [r]eview with SWFWMD," "[f]ollow-up Gopher Tortoise/Kestrel [s]urvey" and "[f]ield [v]isit with ACOE staff." Id. On July 18, 2003, a third RAI ("3rd RAI") was issued by staff. Satisfied with the June 20, 2003, response with regard to the earlier inquiries about a wildlife survey, the 3rd RAI makes no reference to the earlier requests with regard to site information or the need for wildlife survey. Dr. Baca, Dr. Blanco's wetlands ecologist, criticized the wetland information provided by Westfield along the same lines as did District staff in the documents in the file of record. For example, Dr. Baca testified with regard to endangered species that a survey should be conducted over several seasons. A great deal of time must be spent studying the particular habitat and looking for particular organisms. "It cannot be an aside to other work . . . with wetlands or soil studies . . . [i]t has to be a focus of [a wildlife survey]." (Vol. III, tr. 33). A survey for endangered or threatened species requires time and focus precisely because of the nature of listed species; in Dr. Baca's words, "they're not around very much and sometimes they're not around very long." (Vol. III, tr. 32). Time of day that a survey is conducted, moreover, has an impact on the likelihood that wildlife will be found on site. As Dr. Baca testified, Most of the time, you'll find more wildlife on-site around the hours of dusk and dawn . . . Other times, especially during cold weather, wildlife will come out during the hottest part of the day, which is around noon . . . [a]ll of these add to the amount of time that would be required to do a proper study. (Vol. III, Tr. 33). There is no evidence of record as to time of day of the visits used by Westfield for credit toward wildlife observation. Finally, it is apparent that the on-site visits following the preliminary species survey three years prior to the submission of the application did not employ the methodology recommended by the District: the FWWCC methodology. Perhaps an equivalent methodology could be employed, but there is no evidence of an attempt to conduct a survey with an acceptable methodology, either that of FWWCC or an equivalent. The District's acceptance of the Kestrel Survey may have been appropriate.7 But the hours spent visiting the site for wetland delineation and purposes other than to survey wildlife were not shown to have employed the FWWCC methodology or its equivalent and do not supplant the need for a wildlife survey that employs an appropriate methodology. The Mitigation Plan When the impacts of a project that requires an ERP permit are such that an applicant is unable to meet the criteria for approval (the "public interest test"), the applicant may propose or accept measures that mitigate the adverse impacts of the regulated activity so that the Project in its entirety can be demonstrated to be "not contrary to the public interest." In other words, "[t]he mitigation must offset the adverse effects caused by the regulated activity." § 373.414(1)(b), Fla. Stat. It is "the responsibility of the applicant to choose the form of mitigation." Id. As explained by the testimony, all of the mitigation proposed by Westfield is on-site.8 The Respondents' Joint Proposed Recommended Order addresses mitigation for the adverse impacts caused by the Project. The proposed findings that relate to mitigation are summed up in paragraph 16 of the proposed order: 16. The mitigation for the project is appropriate and adequately compens[]ates for the unavoidable direct and secondary wetland impacts from the Project. Respondents' Joint Proposed Recommended Order, p. 6. In support of this finding, the proposed order cites to the File of Record, Westfield Ex. 19, testimony from Mr. Courtney at Tr. 66-76 and 120-121 and testimony from Mr. Sauskojus at Tr. 284-286. Mr. Sauskojus' testimony explains how the mitigation plan adequately mitigates for the direct impacts to wetlands on site. But that explanation does not demonstrate mitigation for all of the potential impacts. No effort was offered for how the plan was designed to mitigate for the impact of draw-down from Wetland A3 caused by low elevation of Pond P11 due to seepage, for example, because seepage was not accounted for in the ICPR modeling. Mr. Courtney's testimony is no different with regard to the same critical omission. Westfield, quite simply, did not take into account, as Mr. Vecchioli testified, the effect of seepage in the information it provided the District. Nor was the mitigation plan designed to mitigate for secondary impacts that might have been indicated by a wildlife survey since an appropriate wildlife survey was not conducted. At bottom, Westfield did not provide reasonable assurances as required by the statutes and rules; it omitted an adequate wildlife survey from the submission of information to the District and it failed to account for seepage from Pond P11 and its effect on Wetland A3 and the Cypress-forested Wetland. Its mitigation plan does not make up for Westfield's failure to demonstrate that the Project is otherwise "not contrary to the public interest."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Individual Environmental Resource Permit sought by Entryway and Westfield be DENIED. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 December, 2004.
The Issue The issues are whether IMC Phosphates Company is entitled to an environmental resource permit for phosphate mining and reclamation on the Ona-Ft. Green extension tract, approval of its conceptual reclamation plan for the Ona-Ft. Green extension tract, and modification of its existing wetland resource permit for the Ft. Green Mine to reconfigure clay settling areas, relocate mitigation wetlands, and extend the reclamation schedule.
Findings Of Fact Parties, Phosphate Mining, and Physiography Respondent IMC Phosphates Company, a Delaware general partnership authorized to do business in Florida (IMC), has applied to Respondent Department of Environmental Protection (DEP, which shall include predecessor agencies) for an environmental resource permit (ERP) to mine phosphate rock at the Ona-Ft. Green extension tract (OFG), approval of a conceptual reclamation plan (CRP) to reclaim the mined land at OFG, and modification of a previously issued wetland resource permit (WRP) to relocate and shrink clay-settling areas (CSAs), relocate mitigation wetlands, and extend the reclamation schedule at the Ft. Green Mine, which is an existing mine that is immediately west and north of OFG. Except for the submerged bottom of Horse Creek, which is sovereign submerged land, IMC owns all of the land on which OFG will be located, except for a 1.8-acre parcel owned by Valerie Roberts in Section 16, which is described below with the other sections forming OFG. IMC is negotiating with Ms. Roberts to purchase her land, and she has authorized IMC to pursue mining permits for the entire parcel, including her land. IMC Global, Inc., owns 80 percent of IMC. IMC Phosphates MP Inc., a Delaware corporation, is the managing general partner of IMC. As a successor to International Mining and Chemical Corporation, IMC has been in business for over 100 years. IMC is the largest producer of phosphate in the world. References in this Recommended Order to phosphate mining companies include all forms of business organizations. At present, IMC is operating four phosphate mines in Florida. The largest is the Four Corners Mine, which extends into Hillsborough, Polk, Manatee, and Hardee counties and three river basins. IMC also operates the Hopewell Mine in Hillsborough County, the Kingsford Mine in Hillsborough and Polk counties, and the Ft. Green Mine. Petitioner Charlotte County is located south of Sarasota and DeSoto counties and west of Glades County. The majority of Charlotte Harbor lies within Charlotte County. Charlotte Harbor is a tidal estuary at the mouths of the Peace and Myakka rivers. An Outstanding Florida Water and an Aquatic Preserve, Charlotte Harbor provides critical habitat for a variety of species. Charlotte Harbor is now an estuary of national significance under the U.S. National Estuary Program. Directly or indirectly, Charlotte Harbor supports 124,000 jobs and generates $6.8 billion in sales annually. To protect this unique natural resource, Charlotte County has adopted a local government comprehensive plan directing residential densities away from Charlotte Harbor. Charlotte County has also expended over $100 million in sanitary sewer capital expenditures for, among other things, the protection of Charlotte Harbor, such as by replacing private residential septic tanks with central sewer. Charlotte County's opposition to phosphate mining and reclamation in the Peace River basin is based on concerns about reduced river flows, reduced abundance and diversity of fish species, the loss of wetlands and first-order streams, and degraded water quality. Petitioner Peace River/Manasota Regional Water Supply Authority (Authority) is an agency authorized by Section 373.196(2), Florida Statutes, and created by interlocal agreement among Charlotte, Sarasota, DeSoto, and Manatee counties. The purpose of the Authority is to supply potable water to several suppliers in southwest Florida. Relying exclusively on the Peace River as its source of raw water, the Authority withdraws water from the Peace River two miles downstream of the point that Horse Creek empties into the Peace River. This point is about midway between Arcadia and Charlotte Harbor. As discussed below, the Authority's permit to withdraw water from the Peace River is dependent upon flows at a point upstream of the confluence of Horse Creek and the Peace River. The Authority's current water use permit expires in 2016. From its water treatment plant, which is located near the withdrawal point, the Authority pumps finished water to Charlotte, Sarasota, and DeSoto counties and the City of North Port. Approximately 250,000 persons rely on these suppliers, and, thus, the Authority, for their potable water. At present, the Authority is obligated to supply 18 million gallons per day (mgd), but anticipates demand to increase to 32 mgd by 2015. Petitioner Sarasota County (Sarasota County) owns and operates a water utility system, which currently supplies 24 mgd of potable water to 125,000 persons. Sarasota County obtains potable water from its wellfields, Manatee County, and the Authority, from which it may take up to 3.6 mgd. By 2017, Sarasota County plans to take 13.7 mgd of potable water from the Authority, partly to offset anticipated reductions in the amount of potable water presently being supplied by Manatee County. By 2017, the Authority will supply over half of Sarasota County's potable water. Sarasota County also shares Charlotte County's concerns about the overall environmental integrity of Charlotte Harbor, a small part of which is in Sarasota County. Intervenor Lee County (Lee County) is immediately south of Charlotte County. Nearly half of Charlotte Harbor lies within Lee County. Tourism produced an estimated $1.8 billion to Lee County's economy in 2002. Tourists are attracted to Lee County in part due to the high quality of Charlotte Harbor and its unique chain of barrier islands, passes, sounds, and bays that are integral to local fishing and boating. Lee County shares Charlotte County's concerns about the overall environmental integrity of Charlotte Harbor. Lee County is concerned about, among other things, degraded water quality from the discharge of turbid water, increased pollutant loads to the Peace River and Charlotte Harbor, adversely affected freshwater flows in the Peace River, and the consequences of the phosphate mining industry's inability to restore secondary tributaries, which provide base flow and environmental benefits to Charlotte Harbor. Petitioner Alan R. Behrens (Behrens) resides in Wimauma, Florida, which is in Hillsborough County. He has owned two five-acre tracts along Horse Creek since 1985 and owns a 2.5-acre lot in DeSoto County that fronts Horse Creek for 100-200 feet. The Horse Creek property is 10-15 miles downstream from OFG. Behrens has canoed the entire main stem of Horse Creek from the Peace River to OFG. On May 9, 2004, Behrens canoed up Stream 4w, which is a tributary of Horse Creek on OFG and is described in detail below. Behrens is a founder of Petitioner DeSoto Citizens Against Pollution, Inc. (DCAP), which was incorporated in 1990 as a Florida not-for-profit corporation and has operated in that status continuously since that time. DCAP's purpose is to protect fish, wildlife, and air and water resources; promote public health and safety; increase public awareness of potential environmental hazards; and discourage activities that may be adverse to public health or the environment. DCAP has 52 members, of whom 27 reside in Hardee County, 23 reside in DeSoto County, and two reside in Sarasota County. A substantial number of DCAP's members use Horse Creek for swimming, boating, canoeing, and fossil hunting. At least nine DCAP members own property abutting Horse Creek. Behrens and many DCAP members use wells on their property for potable water. Behrens and DCAP members are concerned that the clay- settling areas described below will increase flooding, the project will adverse affect the timing and volume of the flow and degrade the water quality of Horse Creek, the project will destroy wildlife habitat that--even if reclaimed--will be lost for many years, and the project will cause spills that will destroy fish and wildlife and adversely affect the ability of Behrens and DCAP to enjoy Horse Creek. OFG is in northwest Hardee County, about one-half mile east of the Manatee County line. OFG is about six miles south- southeast of the Four Corners, where Hardee, Manatee, Polk, and Hillsborough counties meet. OFG is about 35 miles east of Bradenton, 12 miles west of Wauchula, several miles south of State Road 62, and 2000 feet north of State Road 64. OFG represents the southernmost extent of phosphate mining in the Peace River basin to date. A nonrenewable resource for which no synthetic substitutes exist, phosphate is an essential nutrient and a major component of manufactured fertilizer. Less important uses of phosphate are for animal feed, soft drinks, and cosmetics. Mining phosphate rock and processing it into phosphoric acid or phosphorus make possible high-yield agriculture, which, by producing more food crop on less land, may reduce worldwide pressure to convert native habitat to improved agricultural land uses. Phosphate is available in limited quantities. Three- quarters of the recoverable phosphate rock in the United States is found in Florida, mostly in discrete deposits ranging from north-central Florida to Charlotte Harbor. Ten to fifteen million years ago, when peninsular Florida was submerged marine bottom, dead marine organisms accumulated as bone and shell on the ocean floor. These accumulations formed the Bone Valley Formation, which, as the seas withdrew and the peninsula emerged, occupies the lower part of the surficial aquifer at the site of OFG. Briefly, the main elements of the proposed activities in these cases, roughly in the order in which they will take place, are relocating wildlife; constructing a ditch and berm system around the area to be mined; removing topsoil from certain donor areas; removing the overburden and depositing it in rows of spoil within the mine cut; removing the underlying phosphate matrix and slurrying it to a nearby beneficiation plant at the Ft. Green Mine for processing to separate the phosphate rock from the sand and clay tailings; slurrying the clay tailings from the beneficiation plant to two CSAs at the southern end of the Ft. Green Mine; slurrying the sand tailings from the beneficiation plant back to the mine cut to backfill the excavation; applying topsoil to certain areas or green manuring areas for which topsoil is unavailable; applying muck to certain areas; contouring the reclaimed land to replicate pre-mining topography; analyzing the post-reclamation hydrology; reclaiming wetlands, streams, and uplands on the reclaimed landscape of OFG; maintaining and monitoring the reclaimed wetlands, streams, and uplands until DEP releases IMC from its ongoing reclamation obligations; correcting any problems in reclaimed areas; and removing the ditch and berm system and reconnecting the reclaimed mined area to the areas adjoining it. In the Findings of Fact, this Recommended Order uses "reclaim" to describe the process by which, post-mining, IMC and its reclamation scientists will construct wetlands, other surface waters, and wetlands at OFG. Likewise, in the Findings of Fact, this Recommended Order uses reclamation and mitigation interchangeably. In the Conclusions of Law, this Recommended Order discusses distinctions in these terms. IMC plans to use multiple draglines to dig a series of long, linear trenches in the mined areas of OFG. Each dragline will first remove overburden and place it in piles parallel to the trench being excavated. After removing the overburden, each dragline will remove the phosphate matrix, which consists of phosphate rock, sand, and clay, and deposit it in shallow depressions. Adding water from the mine recirculation system to the phosphate matrix, IMC will slurry the phosphate matrix to the Ft. Green beneficiation plant, which is about 12 miles from OFG. At the beneficiation plant, the phosphate rock will be separated from the sand and clay tailings, again using water from the mine recirculation system. After recovering the phosphate rock, IMC will slurry the sand tailings, which do not retain water, from the Ft. Green beneficiation plant to OFG for backfilling into the mined trenches with the overburden. Not used in the reclamation at OFG, the clay tailings, which retain water for an extensive period of time, will be slurried to the CSAs O-1 and O-2 on the Ft. Green Mine. CSAs O- 1 and O-2 are the subject of the WRP, which is discussed below. The volume of the clay leaving the beneficiation plant is greater than the clay in situ, pre-mining, because the slurrying process has saturated the clay. The CSAs provide a place to store the saturated clay while it drains and decreases in volume. The clay-settling process takes a long time, extended by IMC's intention to fill the CSAs by stages to make the most efficient use of the areas designated for the settling of clay. By stage-filling the CSAs, IMC will initially install the clay to a considerable height, using an embankment of approximately 50-60 feet. The water that separates from the clay will then drain across the sloped CSA until it enters the mine recirculation system for reuse. The remaining clay will dry and consolidate. After refilling each CSA approximately three times over about ten years, IMC will allow the clay to settle and consolidate a final time. When the clay has consolidated sufficiently to support agricultural equipment, IMC will regrade the area, reduce the side slopes, and remove the embankments, leaving the CSAs at a finished elevation 20-25 feet above the surrounding grade. Given the ongoing nature of IMC's phosphate mining operations, it is likely that some sand and clay tailings from OFG will go elsewhere, rather than return to the OFG mine cuts and CSAs O-1 and O-2, and that some sand and clay tailings from non-OFG mining operations will go to the OFG mine cuts and CSAs O-1 and O-2. However, these facts are irrelevant to the issues raised in these cases, except for consideration of IMC's sand- tailings budget, which is discussed below. Phosphate mining and reclamation practices have changed dramatically in the past 40 years. Although mining operations and reclamation practices are discussed below in detail, one development in mining and one development in reclamation bear emphasis due to the resulting reductions in water losses to the drainage basin. As explained below, mining operations are dependent upon large volumes of water, which flow through the mine recirculation system. Before 1963, phosphate mining pumped roughly 3000 gallons of water for each ton of mined phosphate rock. By the mid-1970s through 1990, the industry had reduced its groundwater consumption to 1500 gallons per ton of mined rock. From 1991 to 1999, the industry again reduced its groundwater consumption from 1200 gallons per ton to 650 gallons per ton, partly by achieving a 97 percent rate of water- recycling in the mine recirculation system. During roughly the same period, phosphate reclamation activities have expanded considerably. Prior to July 1, 1975, reclamation of mined land was voluntary, encouraged only by the availability of state funds to offset reclamation costs. Today, post-mining reclamation is required by law. As a consequence, post-mining reclamation 30 years ago was relatively modest in scope and intensity. One important development in reclamation practices is the phosphate mining industry's transition from early reclamation techniques that relied on relatively inexpensive contouring of the overburden that remained in the mine cuts following the extraction of the phosphate ore. These reclamation practices--aptly called Land-and-Lakes reclamation-- yielded post-reclamation excavations, such as reclaimed lakes or deep marshes, that, compared to pre-mining conditions, retained considerable volumes of surface water. The resulting increase in surface water area, compared to pre-mining surface water area, meant substantial loss of water from the drainage basin due to increased evapotranspiration. More recent reclamation practices, such as those proposed for OFG, feature more extensive backfilling of the mine cuts with tailings to restore pre-mining topography. The result is that less water is lost to evapotranspiration by retention in newly created lakes and deep marshes and more is timely held and passed by the natural drainage conveyances through detention, attenuation, runoff, and base flow--eventually entering the main basin river in volumes, rates, and times (relative to storm events) comparable to pre-mining conditions. Located near the western divide of the Peace River basin, OFG is near a topographical high point marking the divides among five drainage basins. From north to south, the four other basins are drained by the Alafia River, Little Manatee River, Manatee River, and Myakka River. OFG is located toward the bottom of an escarpment where the Polk Uplands descends into the DeSoto Plain. OFG is located almost entirely within a portion of the Horse Creek basin or sub-basin within the Peace River basin. This Recommended Order shall refer to the drainage basins that form the larger Peace River basin as sub-basins. A small portion of the western edge of OFG is within the West Fork Horse Creek (West Fork) sub-basin, and a small portion of the eastern edge of OFG is within the Brushy Creek sub-basin. OFG is toward the upper end of the Horse Creek sub-basin. The West Fork and Brushy Creek sub-basins within OFG contain no streams or stream segments and only, between them, about a half dozen wetlands of one-half acre in size or greater. Obviously, as separate sub-basins, these two areas on OFG are relatively far from Horse Creek. West Fork joins Horse Creek a couple of hundred feet south of OFG and just north of State Road 64. Brushy Creek joins Horse Creek six miles southeast of OFG. Horse Creek joins the Peace River at Ft. Ogden, about 40 miles south of OFG and 15 miles northeast of the mouth of the Peace River at Charlotte Harbor. The Peace River basin comprises about 2350 square miles and extends from its headwater lakes in north Polk County to Charlotte Harbor. By comparison, the Horse Creek sub-basin comprises about 241 square miles, or roughly ten percent of the Peace River basin. At Charlotte Harbor, the average flow of the Peace River is about 1700 cubic feet per second (cfs). By comparison, Horse Creek, at its confluence with the Peace River, flows at an average rate of about 170 cfs--again ten percent of the average rate of flow of the Peace River. West Fork, at its confluence with Horse Creek, flows at an average rate of about 10 cfs. The largest tributary on OFG flows at an average rate of about 0.75 cfs. Forming a little south of Four Corners, Horse Creek is one of five major tributaries of the Peace River. An ecological backbone of this region of Florida, Horse Creek is the only long-term, reliable flowing water system between the Manatee River on the west and Peace River on the east. OFG occupies the upper reaches of Horse Creek. Horse Creek is in good condition, notwithstanding 100 years of nearby cattle ranching. Most of Horse Creek is Class III waters, although a segment near the Peace River is Class I waters. Horse Creek is a moderately incised stream at OFG, especially over its southern two-thirds running through the mine site. Over the little more than three miles that Horse Creek flows through OFG, the streambed drops from nearly 120 feet National Geodetic Vertical Datum (NGVD) at the north end to about 75 feet NGVD at the south end. Within OFG, the valley that Horse Creek occupies is also relatively well-defined. The northern half of the streambed of Horse Creek within OFG is mostly around 100 feet NGVD. The highest adjacent elevations on OFG are about 120 feet NGVD. At least partly for this reason, most of the tributary streams, except in the flat northern portion of OFG, are also well-incised. OFG extends about 4 1/2 miles north to south, and ranges from 2/3 to 2 1/2 miles from east to west, for a total area of about 6 1/2 square miles. Lying entirely within Township 34 South, Range 23 East, OFG, from its northernmost border, occupies three sections, which are, from north to south: Sections 4, 9, and 16. Immediately west of the southern half of Section 9, OFG occupies most of the southern half of Section 8. Immediately west of Section 16, OFG occupies Section 17, as well as, immediately south of Section 17, all of Section 20 and most of the northern half of Section 29. OFG also extends to parts of four other sections: Sections 10 and 15 east of Sections 9 and 16, respectively, and Sections 18 and 19, west of Sections 17 and 20, respectively. The existing surface waters and nearly all of the existing wetlands are on the two columns of sections running north and south: on the east, Sections 4, 9, and 16 and, on the west, Sections 17, 20, the south part of Section 8, and the north part of Section 29. The northernmost extent of OFG, which consists of Section 4 and the north half of Section 9, is known as the Panhandle. Horse Creek enters OFG at the southwest corner of the Panhandle, at a point midway along the west border of Section 9. The stream flows south through the approximate center of OFG for about 1 1/2 miles until it leaves OFG for a very short distance at the southwest corner of Section 16, as it crosses a corner of property owned by the Carlton-Smith family (Carlton cutout). Horse Creek re-enters OFG at the northeast corner of Section 20 and runs just inside the eastern border of Section 20 and the portion of Section 29 within OFG. Horse Creek leaves OFG near the midpoint of the east border of Section 29. Numerous tributary streams enter Horse Creek within OFG, from the east and west sides of the creek. IMC and DEP have assigned to each of these streams or stream segments a number, followed by a letter to indicate if the stream or stream segment enters Horse Creek from the east or west. To the west of Horse Creek, proceeding from south to north, the streams are 0w, 1w, 2w, 3w, 4w, 5w, 6w, 7w, 8w, and 9w. To the east of Horse Creek, proceeding from south to north, the streams are 12e, 11e, 10e, 5e, 9e, 4e, 8e, 7e, 6e, 2e, 3e, and the Stream 1e series, consisting of Streams (sometimes referred to as stream segments) 1ee, 1ed, 1ec, 1eb, and 1ef. All of the streams join Horse Creek on OFG except Stream 2e, which joins Horse Creek a few hundred feet upstream of the point at which Horse Creek enters OFG, and Stream 7w, which empties into a backwater swamp (G185/G186) that, in turn, empties into either Horse Creek or the lower end of Stream 6w immediately before it empties into Horse Creek. The alphanumeric designation of the backwater swamp in the preceding paragraph is based on the Map F-2 series, which assign such a designation to each existing wetland community and then identifies the wetland community. For example, the backwater swamp consists of a wet prairie (G185) surrounded by a mixed wetland hardwoods (G186). If a wetland consists of more than one wetland community, this Recommended Order will refer to it either as a wetland complex with its lowest-numbered wetland community--here, wetland complex G185--or the combination of wetland communities--here, G185/G186. Reclaimed wetlands are identified by Figure 13A5-1, which assigns each wetland an alphanumeric designation and identifies its community. The letter indicates if the reclaimed wetland is east ("E") or west ("W") of Horse Creek. Table 13A5-1 2AI identifies each reclaimed wetland by its alphanumeric designation, community, acreage, and status as connected, isolated, or isolated and ephemeral. Table 13A5-1 2AI identifies 110 wetlands to be reclaimed. The largest wetland is E003, which is a 23.8-acre mixed wetland hardwoods that constitutes the riparian wetland of the Stream 1e series. The next largest is W003, which is a 20.7-acre wet prairie at the headwaters of Stream 9w. Only three other reclaimed wetlands will be at least ten acres: E018, an 11.3-acre wet prairie fringe on the east side of Section 4; E020, an 11.5-acre freshwater marsh at the center of E018; and W039, an 11.2-acre bay swamp at the headwater of Stream 1w. Thirteen reclaimed wetlands are at least five acres, but less than ten acres, and 30 reclaimed wetlands are less than one acre. Table 13A5-1 2AI identifies 44 reclaimed ephemeral wetlands totaling 101 acres. Reclaimed uplands are identified by Map I-2. Although the scales of Map I-2 (one inch equals about 820.5 feet) and the Map F-2 series (one inch equals about 833.3 feet) are larger than the scales of nearly all of the other maps and figures in these cases, acreages derived from these maps for uplands and existing wetlands are very rough approximations and do not approach in accuracy the acreages derived from Table 13A5-1 2AI for reclaimed wetlands. These maps and figures omit one stream segment to be reclaimed. IMC and DEP restricted the designation scheme to streams and stream segments that had once been natural systems, thus excluding artificially created waterways, such as those created by agricultural ditches cut into swales to drain upslope wetlands and uplands. During the hearing, older aerial photographs revealed that, under this scheme, the parties had omitted one stream segment, which they designated Stream 3e?. Stream 3e? is northeast of Stream 3e, from which it is separated by a wetland (G133/G134/G135/G136). Besides the streams, two other areas within OFG require early identification due to their prominence in these cases. The northerly area is the Heart-Shaped Wetland (G138/G139/G140/G141/G143/G143A), which is the large wetland in Section 4 into which the Streams 1e series and Stream 3e empty. The other area of heightened importance is in the center of OFG in Sections 17 and 16 and is called the East Lobe, Central Lobe, and West Lobe or, collectively, the Lobes. Dominated by large bayhead headwaters (West Lobe--G197; Central Lobe--G179; East Lobe--G178), the Lobes and the streams connecting them to Horse Creek are entirely within the no-mine area. The West and Central Lobes connect to the west bank of Horse Creek by Streams 6w and 8w, respectively. The East Lobe connects to the east bank of Horse Creek by Stream 9e. The no-mine areas of the West and East Lobes are much larger than the no-mine area of the Central Lobe, and the East Lobe contains a large area of uplands extending east of, and supporting, the large bayhead. Most OFG wetlands are connected or contiguous, and many of these wetlands are riparian wetlands within the 100-year floodplain of Horse Creek or a floodplain of one of the tributaries of Horse Creek. (As used in this Recommended Order, the floodplain of Horse Creek runs roughly parallel to the banks of Horse Creek and excludes any portion of the floodplain more directly associated with Horse Creek's tributaries or their connected wetlands.) All or nearly all of the isolated wetlands on OFG are ephemeral and permanent, except in very low rainfall periods. The scale of mining is large. The phosphate matrix, which contains the phosphate rock, is overlaid by a layer of sand and clay overburden, which, with topsoil, is projected to range from 20-40 feet, averaging 27 feet, in thickness. The phosphate matrix is projected to range from 25-35 feet, averaging closer to 25 feet, in thickness, although as much as four feet of the matrix may consist of interburden, such as sand, clay, limerock, or gravelly materials. Thus, mining will remove, on average, 52 feet of the earth's surface. In no area will mining extend deeper than the top of the limey clay bed, which is the confining layer dividing the surficial aquifer from the intermediate aquifer, of which the limey clay bed is a part. (Technically, the matrix is part of the confining layer, but it provides so little confinement that it is easier to consider it part of the surficial aquifer. A consequence of this fact is that the removal of the matrix does not increase the rate of deep recharge, at least where the matrix is replaced with cast overburden.) At OFG, the thickness of the surficial aquifer varies from 65-70 feet at the basin divide to 50 feet or less at the riparian wetlands and averages 55 feet. Beneath the intermediate aquifer, which is about 300 feet thick at OFG, lies the Floridan Aquifer. IMC projects OFG to yield 24 million tons of phosphate rock, 26 million tons of clay tailings, and 68 million tons of sand tailings. IMC projects that the no-mine areas, which are discussed below, will result in five million tons of phosphate rock reserves remaining in the ground post-mining. The scale of the environmental impact of mining is correspondingly large. Mining removes all flora and fauna, all the topography, soils, and upper geology, in the path of the electric dragline, which, as long as a football field (including one end zone), removes the uplands, wetlands, streams, and soils covering the matrix. At the depths at which mining will take place, IMC will be removing the entire surficial aquifer. Applications, ERP, CRP Approval, and WRP Modification Preliminary Matters These cases involve permits and an approval of the phosphate mining and reclamation processes. These cases do not involve the processes by which IMC transforms phosphate into end products, mostly fertilizer. With one exception, these cases do not involve the processes by which IMC separates the phosphate ore from the sand and clay (i.e., the beneficiation process). (The exception is that IMC is seeking to extend by ten years the life of the Ft. Green beneficiation plant to separate the phosphate from the matrix slurried from OFG.) These other post- mining processes, which are separately permitted, are not directly involved in these cases because IMC will slurry the phosphate matrix mined from OFG to the existing Ft. Green beneficiation plant, which is already permitted and operating. Even though the WRP modification will authorize the relocating of already-permitted CSAs at the Ft. Green Mine, the WRP modification will not authorize the design or construction of the embankments that retain the water within these CSAs while they are essentially clay ponds. DEP will separately permit the construction and operation of CSAs O-1 and O-2. Application and Proposed Agency Action On April 24, 2000, IMC filed a Consolidated Development Application for an ERP to mine phosphate from the proposed 20,675-acre Ona Mine, approval of the CRP for the Ona Mine following the completion of mining, and modification to the existing WRP for the Ft. Green Mine to install three CSAs in the area of the Ft. Green Mine immediately west of the Ona Mine and extend the life of the Ft. Green beneficiation plant by ten years to process the matrix from the Ona Mine. On January 17, 2003, DEP issued an Intent to Issue an ERP and proposed approval of the CRP. Petitioners in several of the above-styled cases challenged this proposed agency action, and the parties embarked upon an energetic prehearing process of preparation, including extensive discovery and prehearing telephone conferences with the Administrative Law Judge, in anticipation of a final hearing in the fall of 2003. IMC and DEP entered into a Team Permitting Agreement, pursuant to 1996 legislation creating the concept of Ecosystem Management. The Team Permitting Agreement incorporates the concept of "net ecosystem benefit," but, on its face, is not binding on IMC. The obvious purpose of the Team Permitting Agreement was to induce the permitting agencies (i.e., DEP, Florida Fish and Wildlife Conservation Commission (FWC), Southwest Florida Water Management District (SWFWMD), two regional planning councils, the Florida Department of Community Affairs, the Florida Department of Transportation (DOT), Hardee County, DeSoto County, and the U.S. Army Corps of Engineers) to use a common development application and coordinate, to the greatest practical extent, their respective reviews of the proposed activities of IMC. Three weeks prior to the start of the final hearing, on September 15, 2003, DEP issued the Final Order in Charlotte County et al. v. IMC Phosphates Company and Department of Environmental Protection, 2003 WL 21801924, 4 ER FALR 42 (Altman Final Order). The Altman Final Order denies IMC's application for a WRP/ERP and disapproves IMC's proposed CRP for the Altman tract, which is a short distance northwest of OFG. Although the final and recommended orders are detailed and complex, the Altman Final Order essentially concludes that IMC's CRP was inconsistent with applicable law because its basic reclamation concept was "to replace an existing system of high-quality wetlands . . . with a deep freshwater marsh." On the same date of the Altman Final Order, DEP Deputy Secretary Allan Bedwell ordered DEP's Bureau of Mine Reclamation (BMR) to re-examine IMC's application for an ERP and request for approval of the CRP for the Ona Mine to assure consistency between the proposed agency action approving the ERP, CRP, and WRP modification and the Altman Final Order. The Bedwell memorandum specifically directs BMR to verify IMC's classification and characterization of the extent and quality of wetlands on the site; verify that IMC's proposed reclamation activities, including its proposed control of nuisance or exotic species, "maintain or improve the water quality and function" of the biological systems present at the site prior to mining; and verify that IMC meets the financial assurance requirements of law. The memorandum concludes by directing BMR to modify any proposed agency action, if necessary. By memorandum dated January 5, 2004, Richard Cantrell and Janet Llewellyn, Deputy Directors of DEP's Division of Water Management Resources, responded to the memorandum from Deputy Secretary Bedwell. With respect to IMC's classification and characterization of wetlands, the January 5 memorandum states that DEP staff had conducted additional review of available aerial photographs, reviewed field notes from previous field inspections, conducted new field inspections, and received comments from IMC and Charlotte County. To describe better onsite habitats and communities, DEP staff had also revised the DOT Florida Land Use, Cover, and Forms Classification System (FLUCFCS) for use at OFG. The FLUCFCS codes are a three-digit numbering system to classify and identify individual vegetative communities or land uses. With respect to the ability of the proposed reclamation to maintain or improve the water quality and function of biological systems, the January 5 memorandum states that Deputy Directors Cantrell and Llewellyn had recommended to IMC that it consider phasing the mining on Ona, so that it could apply its experience in reclaiming OFG to the remainder of the original Ona Mine; preserving additional onsite natural stream channels and proposing more detailed reclamation plans for mined streams; preserving additional onsite bay-dominated wetland systems; providing additional assurances that upgradient sand/scrub areas will continue to support hydrologically, through seepage, preserved and restored bayheads; providing a plan to control nuisance and exotic species in the uplands, which, if infested, would degrade adjacent wetlands post-mining; and providing assurances that groundwater flows to Horse Creek and its preserved tributaries will be maintained during mining and post-reclamation. With respect to financial responsibility, the January 5 memorandum states that Deputy Directors Cantrell and Llewellyn had advised IMC that it must provide its financial responsibility for the mitigation of all wetlands authorized to be mined, rather than providing its financial responsibility on a phased basis, as it had previously proposed. On January 30, 2004, IMC filed a voluminous amendment to the Consolidated Development Application in a package known as the January submittal. The most evident change made by the January submittal is the reduction of the Ona Mine to OFG, which was the westernmost one-fifth of the original Ona Mine. The introduction to the January submittal highlights the changes that IMC made to the original application. The introduction explains that IMC has employed a revised mapping protocol to ensure that all waters of the State, including wetlands delineated by Florida Administrative Code Rule 62-340.300 and other surface waters delineated by Florida Administrative Code Rule 62-340.600, are classified as wetlands or water, pursuant to the modified FLUCFCS codes. Rejecting the nomenclature of the January 5 memorandum regarding the phasing of mining at the Ona site, the introduction to the January submittal identifies OFG as a 4197- acre, "free-standing" mining tract, not in any way "coupled to or dependent on the development of the remainder of the Ona Tract," from which it was taken. The introduction explains that "free-standing" means that OFG is a "complete mining, reclamation, and mitigation proposal" and that the OFG ERP will be "for a single-phase project." The introduction to the January submittal notes that IMC has enlarged the no-mine area to include "nearly all of the natural stream channel tributaries to Horse Creek present in the portions of the Parcel that have not been converted to improved pasture." The amendments thus avoid disturbing four additional natural stream segments. The introduction explains that IMC considered a series of factors in determining whether to mine a stream segment: "stream segments length, the existing land cover adjacent to the stream and its watershed, the complexity of the channel geometry[,] and historical agricultural impacts." The introduction adds that IMC has added a "state-of-the-art" stream restoration plan for mined natural streams. The introduction to the January submittal states that IMC responded in two ways to the suggestions about bay swamps in the January 5 memorandum. First, IMC modified the conventional mapping protocol for bay swamps. Rather than require that the canopy of the subject community be dominated by loblolly bay, sweetbay, red bay, and swamp bay trees, as prescribed by the FLUCFCS codes, IMC designated as bayheads "depressional, seepage-driven forested headwater wetlands, surrounded, at least in part, by moderately to well drained upland soils, with a defined outlet connection to waterways such that the 'bay head' soils are perennially moist but infrequently inundated." This new mapping protocol did not require the presence of bay trees in the canopy. Second, IMC enlarged the no-mine areas to avoid disturbing all but nine percent of existing bay swamps at OFG, totaling less than ten acres. IMC based its mine/no-mine decisions for particular bayheads on analysis of the hydrological, water quality, and relative functional value provided by these communities to fish and wildlife. The introduction concludes that IMC has also developed detailed plans to mitigate for the few mined bayheads. The introduction to the January submittal states that IMC has added new protections for the sand/scrub areas upgradient from, and providing seepage into, the bayheads in the West and East Lobes. First, IMC will avoid mining certain of these areas, presumably adjacent to the East Lobe. Second, IMC will employ special mining techniques and schedules to reclaim these upland areas quickly and effectively. Additionally, the introduction notes that IMC is proposing to: align the dragline "cut patterns" such that the spoil piles will be aligned with the groundwater seepage path where feasible or, where not feasible, to grade the spoil piles prior to backfilling the mine voids with sand so as not to impede post- reclamation groundwater flow; accelerate the sand backfilling schedule of the mined voids adjacent to avoided "bay heads" to one year following mining disturbance; and create a reclaimed stratigraphy that results in post-reclamation seasonal high and normal water table elevations and hydraulic conductivities in the seepage slopes that will provide the hydrologic support required to sustain these communities. As explained in a later section of the introduction to the January submittal, "stratigraphy" refers to the soil layers or horizons, which are described in detail below. The introduction states: "The majority of the overburden will be placed at depths below the surface soil horizons. As a result, the surface soils will either be comprised of translocated surface soils or a loose mixture of 'green manure organics,' overburden, and sand that both resembles the native soils and provides a suitable growing medium for the targeted vegetative communities." The introduction adds that, at final grade, sand tailings will always overlie overburden by at least 15 inches. The introduction asserts that the overburden underlying the backfilled sand tailings will be "comprised of and have properties which are similar to B horizons (subsoils) and C horizons (substratums) of native Florida soils." The introduction to the January submittal identifies a Habitat Management Plan (also known as the Site Habitat Management Plan) that, with the Conservation Easement and Easement Management Plan discussed below, will guide the revegetation of upland natural systems, control nuisance and exotic species in uplands, and manage all potential listed species that may be present, whether or not observed, in areas to be mined. The introduction also mentions habitat enhancements "to relocate Florida mice" and to manage gopher tortoises. The introduction concludes with IMC's undertaking to ensure that exotic/nuisance cover does not exceed ten percent in all reclaimed wetlands and to provide a 300-foot buffer around wetlands where cogongrass--a highly invasive nuisance exotic described in more detail below--will not exceed five percent coverage. The introduction to the January submittal notes that the proposed activities will maintain groundwater flows to Horse Creek and tributaries in the no-mine areas during mining and post-reclamation. The introduction again mentions IMC's commitment, where feasible, to align spoil piles with groundwater flow and, where not feasible, grade spoil piles before backfilling so as to add a thicker band of sand to these areas. The introduction also cites the ditch and berm system as a means to maintain groundwater seepage during mining. The introduction to the January submittal states that IMC will meet its financial-responsibility requirements for the entire cost of wetland-mitigation at OFG. The January submittal contains a discussion of community-mapping protocol. IMC's methodology for mapping bay swamps is discussed above. The most common vegetative communities and land uses are described in the following paragraphs. Improved pasture is actively grazed pasture dominated by cultivated pasture grasses, such as bahiagrass, but may support native grasses. Improved pasture may contain sporadic shrubs and trees. Pine flatwoods occupy flat topography on relatively poorly drained, acidic soils low in nutrients. The overstory is discontinuous with areas of dense, species-rich undergrowth or groundcover. Longleaf pine and slash pine predominate. Pine flatwoods require frequent fires, which are carried by grasses, and the pines' thick bark helps prevent fire damage to the trees. At one time, about three-quarters of Florida was covered by pine flatwoods. Palmetto prairies typically represent the undergrowth of pine flatwoods. Once the trees are removed, such as by timbering, the resulting community is a palmetto prairie, which is characterized by an often-dense cover of saw palmettos with no or scattered pines or oaks. Occupying dry, sandy, well-drained sites, sand live oak communities feature a predominance of sand live oaks and often succeed in relatively well-drained pine flatwoods after the removal of the pines, conversion to palmetto prairie, and suppression of fire. Sand live oak may also occupy xeric oak communities. Moister soils may support live oak communities, which also may succeed pine flatwoods after the removal of the pines, conversion to palmetto prairie, and suppression of fire. Hardwood-conifer mixed is a blend of hardwoods and pines with trees of both categories forming one-third to two- thirds of the cover. Hardwoods are often laurel oak and live oak, and pines are often slash pine, longleaf pine, and sand pine. The midstory is typically occupied by younger individuals of the overstory communities and wax myrtle. If sufficient light reaches the ground, groundcover may exist. Temperate hardwoods are often a forested uplands transition to a wetland. Temperate hardwoods are usually dominated by laurel oak, but other canopy species may include cabbage palm, slash pine, live oak, and water oak. Mixed hardwoods is a similar community, except that water oak is predominant in the canopy. Two of the three most prevalent forested wetlands on OFG are bay swamps, which have been discussed, and hydric oak forest, which, because of their location in the Horse Creek floodplain, will not be mined. At DEP's request, IMC remapped some of the floodplain that was uplands (and already in the no- mine area) to hydric oak forest. The other prevalent forested wetlands on OFG is mixed wetland hardwoods, which consists of a variety of hardwood species, such as the canopy species of red maple, laurel oak, live oak, sweetbay, and American elm. Slash pines may occur, but may not constitute more than one-third of the canopy. Suitable shrubs include primrose willow, wax myrtle, and buttonbush. Ferns are often present as groundcover. Often immediately downgradient of bay swamps, mixed wetland hardwoods are typically in the hydric floodplains of small streams. Transitioning between uplands, such as palmetto prairies, and the wetter soils hosting bay swamps and mixed wetland hardwoods, wetland forested mixed communities (also known as wetland mixed hardwood-coniferous) often occupy wet prairies from which fire has been suppressed for at least 20 years and, as such, "are largely or entirely an artifact of land use practices during the past sixty years or so that have allowed the conversion of wet prairies . . . to this cover type." The canopy of wetland forested mixed is slash pine, laurel oaks, live oaks, and other hardwoods that tolerate or prefer wetter soils. Wet prairies are a dense, species-rich herbaceous wetland, usually dominated by grasses. Wet prairies occupy soil that is frequently wet, but only briefly and shallowly inundated. Similar to freshwater marshes, but with shorter hydroperiods, wet prairies often fringe marshes, and their border will shift in accordance with rainfall levels over several years. Freshwater marshes consist predominantly of emergent aquatic herbs growing in shallow ponds or sloughs. Typical marsh herbs include pickerelweed, maidencane, and beakrushes. Hydroperiod and water depth drive the presence of species in different locations within a freshwater marsh. Marshes may be isolated or may occupy a slough in which their water flow is unidirectional. Heavily grazed or drained marshes may suffer dominance of primrose willow. Abundant softweed may indicate ditching, and soft rush, which cattle avoid, may indicate heavy grazing. Shrub marshes succeed stillwater freshwater marshes from which fire has been excluded. Shrub marshes form after agricultural ditching or culverted fill-road building. Common shrub species include buttonbush, southern willow, and primrose willow. Hydric trees, such as red maple and swamp tupelo, may occupy the edges of shrub marshes. IMC supplemented the January submittal with submittals dated February 26 and 27, 2004. Collectively, these are known as the February submittal. The February submittal is much less- extensive than the January submittal, although it includes substantive changes. After examining the January and February submittals, on February 27, 2004, DEP issued a Revised Notice of Intent to Issue an ERP for OFG, approved a revised CRP for OFG, and issued a revised WRP modification for the Ft. Green Mine, which now authorizes two CSAs--O-1 and O-2--that have the effect of relocating the previously approved CSAs farther away from Horse Creek and reducing their size due to the reduced scale of OFG as compared to the original Ona Mine; reconfiguring certain mitigation wetlands, necessitated by the relocation of CSAs O-1 and O-2, with a net addition of 2.7 acres of herbaceous wetland area; and changing the reclamation schedule to conform to the already-approved CRP for the Ft. Green Mine. IMC supplemented the January and February submittals with submittals dated March 30, April 18, and April 21, 2004. These submittals, which are known as the Composite submittal, are much less-extensive than the February submittal. DEP expressly incorporated the February submittal into the ERP, CRP approval, and WRP modification dated February 27, 2004. DEP has impliedly incorporated the changes in the Composite submittal into the ERP, CRP approval, and WRP modification. Thus, this Recommended Order uses the latest version of these documents when discussing the relevant permit or approval. The March 30, 2004, submittal updates the following maps, figures, and tables: Map F-2 (to correct legend), Map I-2 (to correct the post-reclamation vegetation in the vicinity of Streams 3e, 1w, 2w, 3w, and 4w), Figures 13A5-1 and 13B-8 (to reflect changes to Map I-2), Tables 12A1-1 and 13A1-1 (revised land uses in several stream locations), and Tables 13A5-1, 345A-1, and 26O-1 (to reflect above changes). The March 30, 2004, submittal also includes the Draft Study Plan for Burrowing Owls and Amphibians and revised Tables A and B for the Financial Responsibility section of the ERP. No material revisions are included in the submittals after March 30, 2004. Submittals after March 30, 2004, include financial responsibility forms, including a draft escrow agreement, and updated information on the temporary wetland crossing at the point that Stream 2e forms at the downstream end of the Heart-Shaped Wetland. The last item, dated April 20, 2004, is a revision of Figure 13B-8, but solely for the purpose of showing that the Heart-Shaped Wetland remains connected to Stream 2e, despite the temporary presence of a crossing. This is the last revision to the CDA prior to the commencement of the hearing. During the hearing, IMC submitted modifications of the mining and reclamation activities, and DEP agreed to all of these modifications. During the hearing, DEP proposed modifications of the mining and reclamation activities, and IMC agreed to all of these modifications. These modifications, such as identifying the annual hydroperiod of bay swamps as 8-11 months and the final changes to post-reclamation topography, are identified in this Recommended Order and incorporated into all references to the ERP or CRP approval. In general, the ERP addresses wetlands, surface waters, and species dependent upon either, and the CRP addresses uplands and species dependent exclusively upon uplands. Later sections of the Recommended Order will discuss the ERP, the CRP approval, and the WRP modification. All of the maps, figures, and tables incorporated into the ERP, CRP approval, or WRP modification are contained in the CDA. Overview of Mined Areas, No-Mine Areas, and Reclaimed Areas The ERP permits IMC to mine 3477 acres and requires IMC to reclaim 3477 acres. The ERP recognizes that IMC will not mine 721 acres, which is about 17 percent of the 4197-acre site. (Most acreage figures are rounded-off in this Recommended Order, so totals may not always appear accurate.) Although various exhibits and witnesses sometimes refer to the no-mine area as the preserved area, this label is true only insofar as IMC will "preserve" the area from mining. However, post-reclamation, the area is not preserved. After the property reverts to the Carlton-Smith family, it will return to its historical agricultural uses, subject to a Conservation Easement that is discussed below. Table 12A1-1 is the Mine Wide Land Use Analysis. Table 12A1-1 identifies, by acreage, each use or community presently at OFG, such acreage proposed to be mined, and such acreage proposed to be reclaimed. When not listed separately, this Recommended Order combines all non-forested wetlands, including mostly herbaceous wetlands and shrub marshes, into the category of herbaceous wetlands. Shrub marshes presently account for only 4.7 acres at OFG and will account for only 10.3 acres, post-reclamation. Ignoring 35 acres that presently are barren or in transportation or urban uses, the present uses or communities of OFG are agricultural (2146 acres), upland forests (904 acres), rangeland (510 acres), forested wetlands (380 acres), herbaceous wetlands (208 acres), and open water (15 acres). Nearly all of the existing agricultural uses are improved pasture (1942 acres); the only other use of significance is 165 acres of citrus. Well over half of the area to be mined is agricultural. Over half of the area to be mined is improved pasture (1776 acres, or about 51 percent of the mined area). Adding the citrus groves, woodland pasture, and insignificant other agricultural uses to the area to be mined, the total of agricultural uses to be mined is 1976 acres, or 57 percent of the mined area. The two most prevalent upland forest communities presently at OFG are sand live oak and pine flatwoods; the next largest community, hardwood-conifer mixed, accounts for about half of the size of sand live oak or pine flatwoods. These upland forests contribute about one-fifth of the area to be mined (731 acres, or 21 percent of the mined area). Cumulatively, then, agricultural land and upland forests constitute 78 percent of the mined area. For all practical purposes, all of the rangeland presently at OFG is palmetto prairie. This unimproved rangeland contributes a little less to the mining area that do upland forests; mining will consume 475 acres of rangeland, which is 14 percent of the mined area. Cumulatively, then, agricultural land, upland forests, and native rangeland will constitute 92 percent of the mined area. The addition of the remaining upland uses--25 acres of roads, 5 acres of barren spoil areas, and one acre of residential--results in a total of 3213 acres, or still 92 percent, of the 3477 acres to be mined. This leaves eight percent of the mined area, or 264 acres, as wetlands and other surface waters. As noted above, the wetlands are divided into forested and herbaceous wetlands. Forested wetlands will contribute 82 acres, or about two percent, of the mined area. Nearly all of the forested wetlands presently at OFG are divided almost equally among mixed wetland hardwoods, hydric oak forests, and bay swamps. Bay swamps total 104 acres. In terms of the forested wetlands present at OFG, mining will consume mostly mixed wetland hardwoods, of which 43 acres, or 36 percent of those present at OFG, will be mined. Mining will eliminate only nine acres, or nine percent, of bay swamps and six acres, or six percent, or hydric oak forests. Mining will eliminate a large percentage-- 67 percent--of hydric pine flatwoods present at OFG, but this is 12 acres of the 18 existing acres of this wetland forest community. Herbaceous wetlands will contribute 168 acres, or about five percent, of the mined area. Nearly all of the herbaceous wetland communities are wet prairies (108 acres) and freshwater marshes (81 acres). Mining will eliminate 95 acres, or 88 percent, of the wet prairie present at OFG, and 67 acres, or 83 percent, of the freshwater marshes present at OFG. IMC will mine 13.5 acres of open water, which consists primarily of cattle ponds and ditches. The only natural water habitat is natural streams, which total 2.2 acres. IMC will mine 0.9 acres of natural streams. Also incorporated into the ERP, Table 13A1-5, provides another measure of the impact of mining upon natural streams. According to Table 13A1-5, IMC will mine 2.8 acres of the 25.6 acres of natural streams. As noted in Table 13A1-5, reclamation of streams, which is discussed in detail below, is based on length, not acreage, and, under the circumstances, a linear measure is superior to an areal measure. Table 12A1-1 also provides the acreage of reclaimed community that IMC will construct. These habitats or uses are listed in the order of the size of the area to be reclaimed, starting with the largest. For agriculture, IMC will reclaim 1769 acres after mining 1976 acres. Adding the 170 acres of agriculture in the no-mine area, agricultural uses will total, post-reclamation, 1939 acres. For upland forest, IMC will reclaim 1055 acres after mining 731 acres. Adding the 173 acres of upland forest in the no-mine area, upland forest habitat will total, post- reclamation, 1227 acres. For rangeland, IMC will reclaim 323 acres after mining 475 acres. Adding the 35 acres of rangeland in the no- mine area, rangeland will total, post-reclamation, 358 acres. For herbaceous wetlands, IMC will reclaim 217 acres after mining 168 acres. Adding the 39 acres of herbaceous wetlands in the no-mine area, herbaceous wetlands will total, post-reclamation, 256 acres. For forested wetlands, IMC will reclaim 106 acres after mining 82 acres. Adding the 298 acres of forested wetlands in the no-mine area, forested wetlands will total, post-reclamation, 404 acres. ERP ERP Specific Condition 3 requires IMC to provide to DEP for its approval the form of financial responsibility that IMC chooses to use to secure performance of its mitigation costs. IMC may not work in any wetland or surface water until DEP has approved the method by which IMC has demonstrated financial responsibility. DEP shall release the security for each individual wetland that has been released by BMR, pursuant to Specific Condition 17. The escrow agreement is a two-party contract between IMC and J.P. Morgan Trust Company, as escrow agent. The escrow agreement acknowledges that IMC will transfer cash or securities to the escrow agent in the stated amount, representing IMC's obligations to perform ERP mitigation plus the ten percent add- on noted in the Conclusions of Law. If IMC fails to comply with the ERP or Section 3.3.7 of the SWFWMD Basis of Review, the escrow agent is authorized to make payments to DEP, upon receipt of DEP's written certification of IMC's default. The escrow agreement may be amended only by an instrument signed by IMC, DEP, and the escrow agent. ERP Specific Condition 3 requires IMC to calculate the amount of the security based on Table B, which is the Wetland Mitigation Financial Summary. Table B lists each forested and wetland community from Table 12A1-1, the acreage for each community, and the unit costs per acre of mitigation. The acreage figures are the acreage figures on Table 12A1-1. The unit costs per acre are as follows with the FLUCFCS codes in parentheses: herbaceous (641, 643)--$7304; forested bay wetland (611)--$11,692; other forested wetland (613, 617, 619, 630)--$11,347; shrub (646)--$8780; hydric palmetto prairie (648)--$9231; and (hydric) pine flatwoods (625)--$10,568. Table B also shows 10,141 feet of streams to be reclaimed at a cost per foot of $37, stream macroinvertebrate sampling at a total cost of $48,100, and water quality/quantity monitoring at a cost of $293,000. Adding the costs of wetland and stream reclamation, sampling, and monitoring, plus ten percent, Table B calculates the mitigation liability of IMC as $3,865,569. IMC has agreed to increase this amount for the reclamation of Stream 3e?. ERP Specific Condition 4 requires IMC to submit to BMR annual narrative reports, including the actual or projected start date, a description of the work completed since the last annual report, a description of the work anticipated for the next year, and the results of any pre-mining surveys of wildlife and endangered or threatened species conducted during the preceding year. The reports must describe any problems encountered and solutions implemented. ERP Specific Condition 5 requires IMC to submit to BMR annual hydrology reports. Relative to initial planting, IMC shall submit to BMR vegetative statistic reports in year 1, year 2, year 3, year 5, and every two years after year 5, IMC must submit to BMR vegetation statistic reports. ERP Specific Condition 6 addresses water quality in wetlands or other surface waters adjacent to, or downstream of, any site preparation, mining, or reclamation activities. Specific Condition 6.a requires, prior to any clearing or mining, IMC to sever the areas to be disturbed from adjacent wetlands. IMC severs or isolates the mining area when it constructs the ditch and berm adjacent to, but upland of, the adjacent wetlands not to be mined. Figure 14E-1 portrays the elements of the ditch and berm system as all outside of the no-mine area (or OFG property line, where applicable). In the illustration, from the mine cut toward the no-mine area (or OFG property line), IMC will construct the ditch, the 15-foot wide berm, the monitoring wells, and the silt fence. ERP Specific Condition 6.b requires the ditch and berm system to remain in place until IMC has completed mining and reclamation, monitoring indicates that no violation of "State Water Quality Standards" are expected, and DEP has determined that "the restored wetlands are adequately stabilized and sufficiently acclimated to ambient hydrological conditions." DEP's decision to allow the removal of the ditch and berm system shall be based on a site inspection and water quality monitoring data. Upon removal of the ditch and berm system, the area that had been within the ditch and berm system shall be restored to grade and revegetated according to the methods and criteria set forth in Specific Condition 14. ERP Specific Condition 6.c requires IMC to use best management practices for turbidity and erosion control to prevent siltation and turbid discharges in excess of State water quality standards, under Chapter 62-302, Florida Administrative Code. Specific Condition 6.d requires IMC daily to inspect and maintain its turbidity-control devices. If the berm impounds water above grade, IMC must daily visually inspect the integrity and stability of the embankment. ERP Specific Condition 7 requires that IMC implement a baseline monitoring program for surface water and groundwater and continue the program through the end of the mine life. The data from this program shall be included in the annual narrative reports described in Specific Condition 4. The locations of the sampling sites are depicted on Map D-4. ERP Specific Condition 7.a identifies three monitoring stations, which are in Horse Creek just upstream of the stream's entrance onto OFG (and possibly just upstream of the offsite confluence of Stream 2e with Horse Creek), in Horse Creek at State Road 64, and in West Fork a short distance upstream of its confluence with Horse Creek. Before and during mining, IMC must monthly monitor 18 parameters, including temperature, pH, dissolved oxygen, total suspended solids, conductivity, turbidity, color, total phosphorous, ammonia, nitrate/nitrite, and chlorophyll a. During mining, IMC must semi-annually monitor 11 additional parameters, including alkalinity, biological oxygen demand, chloride, and iron. ERP Specific Condition 7.b identifies one monitoring station, which is at the junction of Stream 6w and Horse Creek. Before and during mining, IMC must monthly monitor ten parameters, including temperature, pH, dissolved oxygen, total suspended solids, conductivity, and color. During mining operations, IMC must semi-annually monitor the same 11 additional parameters described in Specific Condition 7.a. ERP Specific Condition 7.c identifies two clusters of monitoring wells, one located near the offsite confluence of Stream 2e with Horse Creek and one located near the collecting station on West Fork near its junction with Horse Creek. During mining operations, IMC must semi-annually monitor 23 parameters, including pH, temperature, conductivity, alkalinity, total phosphorous, color, turbidity, chloride, iron, and nitrate/nitrite. ERP Specific Condition 8 requires IMC immediately to cease all work contributing to turbidity violations of "State Water Quality Standards established pursuant to Chapter 62-302, F.A.C." Specific Condition 8 requires IMC to stabilize all exposed soils contributing to the violation, modify work procedures that were responsible for the violation, repair existing turbidity-control devices, and install more such devices. Specific Condition 8 requires IMC to notify BMR within 24 hours of the detection of any turbidity violation. ERP Specific Condition 9 requires IMC to report all unauthorized releases or spills of wastewater or stormwater in excess of 1000 gallons per incident to BMR, as soon as practicable, but not later than 24 hours after detection. ERP Specific Condition 10 addresses water levels and flows in wetlands and other surface waters adjacent to, and downstream of, any site preparation, mining, and reclamation activities. Prior to any clearing or mining activities adjacent to no-mine wetlands and other surface waters, Specific Condition 10.a requires IMC to install monitoring wells and staff gauges and commence monitoring water levels, as required by ERP Monitoring Required, which is a part of the ERP that is discussed below. IMC shall monitor water levels in each of the no-mine streams at the point that it intercepts the 100-year floodplain of Horse Creek. ERP Specific Condition 10.a provides: During mining, recharge ditches adjacent to no-mine areas shall be charged with water or recharge wells shall be installed to maintain base flows and/or minimize stress to the vegetation in the preservation areas. Water levels in the recharge ditches shall be maintained at levels sufficient to support the normal seasonal water level fluctuations in the wetlands as determined from the baseline monitoring included in Table MR-1. Under ERP Specific Condition 10.a, prior to any clearing or mine activities, IMC must install monitoring wells and staff gauges and monitor water levels, as specified in the ERP Monitoring Required. IMC must daily monitor water levels in each of the no-mine streams at the point of its interception with the 100-year floodplain of Horse Creek. During mining, IMC shall charge recharge ditches with water or install recharge wells to maintain base flows and minimize stress to vegetation in no-mine areas. IMC must maintain water levels in the recharge ditches at levels sufficient to support the normal seasonal water level fluctuations in the wetlands, as determined from the baseline monitoring included in Table MR-1, which is described below. IMC must daily check the water levels in the recharge ditches, record this information in logs, and make these logs available to BMR during its quarterly inspections. IMC shall monthly inspect the water levels in adjacent no-mine wetlands and notify BMR in writing if these wetlands show signs of stress. If adjacent no-mine wetlands become stressed, upon DEP's approval, IMC will take additional actions, such as altering mining and reclamation procedures, modifying the recharge ditch, providing additional sources of water, and conducting additional monitoring. During the hearing, IMC hydrologist and engineer Dr. John Garlanger testified: "[IMC] will install a recharge well system along the preserved areas." (Tr., p. 2800) The parties treated recharge wells as a part of the ditch and berm system, both at the hearing and in their proposed recommended orders (DEP, paragraph 75; Charlotte County, paragraph 575; and IMC, paragraph 339.) However, Specific Condition 10.a imposes no such obligation upon IMC, nor does any other provision in the ERP or the CDA. The above-quoted provision of Specific Condition 10.a identifies recharge wells as an alternative. The other option in Specific Condition 10.a is to charge the ditches with water. This condition is confusing because it poses, as alternative requirements, one option of a specific effect--i.e., recharged ditches--and the other option of a means of achieving that effect--i.e., recharge wells. The objective is sufficient water in the ditch. The means of charging the ditch would appear to be limited to direct rainfall, pumping water from the mine cuts, diverting water from the mine recirculation system, or pumping water from the intermediate or Floridan aquifer through recharge wells; at least the first two of these charging options are already incorporated into the OFG ditch and berm system. Confirming that recharge wells are optional is Figure 14E-1, which labels the recharge well depicted at the bottom of the ditch as "Alternate--Recharge Well." Figure 14E-1 illustrates a pump forcing the water from the bottom of the deeper mine cut to the bottom of the recharge ditch. (Figure 14E-1 also illustrates that--in order, running from the mine cut toward the no-mine area (or OFG property line)--the ditch, the 15-foot wide berm, the monitoring wells, and the silt fence will all be located outside of the no-mine area (or within OFG).) ERP Specific Condition 10.b prohibits reductions in downstream flows from the project area that will cause water quality violations in Horse Creek or the degradation of natural systems. IMC shall monitor surface water levels continuously at the above-described points at State Road 64 and West Fork and monthly near the above-described junction of Stream 2e and Horse Creek. IMC shall monitor monthly at the above-described clusters of monitoring well locations and at piezometers located across Section 9 from the no-mine area into the uplands to the east, in the West Lobe and the adjacent uplands to the west, in the East Lobe and the adjacent uplands to the east, and in Horse Creek about one-quarter mile from the southern border of OFG. IMC shall daily monitor rainfalls at a rain gauge near the junction of Stream 2e and Horse Creek. IMC shall report the results of the monitoring in the reports required in Specific Condition 4. ERP Specific Condition 11 requires IMC to obtain authorization from FWC before relocating gopher tortoises or disturbing their burrows. ERP Specific Condition 11 also requires IMC to relocate gopher frogs and other commensals to FWC-approved sites before clearing. At the time of the hearing, FWC had not yet approved IMC's plan to relocate gopher tortoises, but this approval was expected shortly. ERP Specific Condition 12 requires IMC to complete mining, filling, and reclamation activities generally in accordance with the schedule stated in this condition. Specific Condition 12.a prohibits IMC from commencing severance or site preparation more than six months prior to mining, except as approved by DEP for directly transferring topsoil or muck to a contoured mitigation site. IMC must complete final grading, including muck placement, not later than 18 months after the completion of mining operations, which include the backfilling of sand tailings. IMC must conduct its hydrological assessment in the first year after contouring. ERP Specific Condition 12.a provides a timetable for work in wetlands and other surface waters. IMC may not commence severance or site preparation more than six months prior to mining. IMC shall complete final grading, including muck placement, not more than 18 months after the completion of mining operations, including backfilling with sand tailings. IMC shall complete Phase A planting, which is of species that tolerate a wide range of water levels, not more than six months after final grading or 12 months after muck placement. IMC shall conduct the hydrological assessment in the initial year after coutouring. IMC shall complete Phase B planting, which is of species that tolerate a narrower range of water levels, within 12 months after the hydrological assessment and Phase C planting, which is shade-adapted groundcover and shrubs, as well as additional trees and shrubs required to meet the density requirements of ERP Specific Condition 21 [sic; probably should be ERP Specific Condition 16], at least two years prior to release of forested wetlands. ERP Specific Condition 12.b provides that IMC shall clear, contour, revegetate, and reconnect wetlands and watersheds as shown in Tables 3AI-6A and 3AI-10A, Maps H-1, H-9, and I-6, and Figures 13B-8, 13A5-1, and CL-1. Table 3AI-6A lists each reclaimed wetland by number, the last year in which it will be disturbed, the last year in which it will be mined, the year in which grading will be completed, the year in which revegetation will be completed, and the number of years between mining or disturbance and reclamation and revegetation. The span of years between mining or disturbance and reclamation ranges from three (two wetlands) to eight (six wetlands). Table 3AI-10A is the Reclamation Schedule Summary. The table identifies four reclamation units in the Horse Creek sub-basin, one reclamation unit in the West Fork sub-basin, and one reclamation unit in the Brushy Creek sub-basin. For each reclamation unit, Table 3AI-10A shows the period of mining, period of mine operations, period for contouring, and period for revegetation. These years are relative: mining runs four years, mine operations run seven or eight years (starting one year after mining starts), contouring runs seven or eight years (starting within one year of the end of mining), and revegetation runs five or six years (starting one year after the start of contouring). Map H-1 is the Mine Plan. Map H-1 assumes four draglines will operate in OFG for five years of active mining. IMC's tentative plan is first to mine the west side of OFG, which is nearer the Ft. Green Mine at which the draglines are presumably deployed at present, and then to mine adjacent mining blocks. For instance, IMC would mine the northwest corner of Section 4 in Year 1, the southwest corner of Section 4 in Year 2, the northeast corner of Section 4 in Year 3, and the southeast corner of Section 4 in Year 4 before removing the dragline south of Section 4 to mine an unmined area in Year 5. Map H-1 depicts the ditch and berm system running continuously along the edge of the no-mine area from the north end of OFG, south along the no-mine borders that trace the east and west edges of the 100-year floodplain of Horse Creek, to their southern termini. On the east floodplain, the ditch and berm system turns east at the northwest corner of Section 21, near the Carlton cutout, runs to the easternmost extent of OFG, turns north to the northeast corner of Section 4, and runs to the northwest corner of Section 4, where the ditch and berm system ends. On the west floodplain, the ditch and berm system runs to the southernmost extent of OFG near its confluence with West Fork, turns west and north, as it traces the border of OFG along Sections 29, 20, and 19, where it ends at a point about one-quarter mile from the northern boundary of Section 19. For the areas closest to the no-mine area, Map H-1 also depicts the direction of the mine cuts and, inferentially, the spoil piles. These cuts and piles are generally perpendicular to the direction of Horse Creek. Figure 2AI-24 displays the locations of the six reclamation units identified in Table 3AI-10A. The West Fork and Brushy Creek reclamation units occupy the sub-basins bearing their names, so they are at the western and eastern edges, respectively, of OFG. The HC(1) reclamation unit is almost all of Section 4. According to Table 3AI-10A, IMC will mine this reclamation unit from 2006-09, contour it from 2009-15, and revegetate it from 2010-15. Combining the information from Map H-1 for the Stream 1e series, all of it but Stream 1ee, which is the most-downstream stream, will be mined in the first year of the sequence, and Stream 1ee will be mined in the second year. However, Stream 1ee will be disrupted longer because a 200 foot- wide dragline access corridor runs across it, just upstream of the Heart-Shaped Wetland, as shown on Map H-1 and Figure RAI 514-1. Map H-9 is the Tailing Fill Schedule. The tailings are the sand tailings; the clay tailings, which are called waste clays, are deposited in the CSAs. Sand tailings are backfilled into mine cuts starting in year 3, and the process is completed in year 7. Map H-9 reproduces the blocks shown on Map H-1, except for one change in Section 20, and adds two years to each block. An explanatory note on Map H-9 states that IMC will backfill and grade the upland areas immediately west of the West Lobe and east of the East Lobe with sand tailings within one year of mining. Map I-6 is the Post-Reclamation Streams. This Recommended Order addresses streams in detail below. As already noted, at the hearing, DEP identified Stream 3e? as another stream eligible for restoration under the eligibility criterion used in these cases, and IMC has agreed to restore this stream and add it to Map I-6. Figure 13B-8 is the Post-Reclamation Connection Status of the reclaimed wetlands. A map, Figure 13B-8 depicts connected wetlands, isolated wetlands, isolated wetlands that are ephemeral, and cattle ponds. Figure 13A5-1 is the Identification of Created Wetlands. Also a map, Figure 13A5-1 assigns numbers to each reclaimed wetland and identifies the habitat to be reclaimed. These two figures provide a good basis for comparing the reclaimed wetlands to the existing wetlands by type, location, size, and proximity to streams. These two figures confirm the removal of cattle ponds to points considerable distances from Horse Creek, streams, riparian wetlands, or even most isolated wetlands. Thirteen cattle ponds totaling 7.6 acres will be reclaimed on OFG. Generally, these cattle ponds are located as far away as possible from the 100-year floodplain of Horse Creek. Except for the cattle ponds and three connected reclaimed wetlands that drain to the West Fork or Brushy Creek, all of the connected reclaimed wetlands will be connected to Horse Creek, usually by streams, but in several cases directly to the 100-year floodplain of Horse Creek. Connected reclaimed wetlands include the headwater and intermittent wetlands of the Stream 1e series (E003/E006/E007/E008/E009/E013/E015/E016), the headwater wetlands of Stream 3e (E022/E023/E024), and the headwater wetlands of Stream 3e? (E018/E019/E020). The decision at the hearing to reclaim Stream 3e? is not reflected on Figure 13A5-1 or 13B-8, which depicts as isolated the large wetland to the northeast of the headwater wetland of Stream 3e. The Stream 1e series reclaimed wetlands complex totals 44.9 acres. The Stream 1e series existing wetlands complex covers a smaller area, perhaps 10 fewer acres. However, the reclaimed wetlands will be somewhat simpler. IMC will reclaim one freshwater marsh (E006) where five presently exist (G108, G115, G125, G126, and G129). IMC will replace two gum swamps (G123 and G121) and two wetland forested mixed (G102 and G132) with the predominant mixed wetland hardwoods (E003). IMC will replace one of the freshwater marshes with hydric oak forest. Just west of the riparian corridor, IMC will replace a wet prairie (G119) with a little hydric flatwoods (G119A) with another freshwater marsh (E014) and will mine a small wet prairie (G028) to the east of the corridor and not replace it with any wetland. On the plus side, IMC will add two very small bayheads (E008--0.7 acres and E013--0.7 acres) to the west side of the corridor and will relocate and expand a large hydric flatwoods (G107) that is beside a small unreclaimed community--a hydric woodland pasture (G105). The reclamation of the headwater of Stream 3e better re-creates the existing wetlands, in size and type of community. The only change is the conversion of a shrub marsh (G134) in the center of the wetland to a freshwater marsh (E023), essentially enlarging the freshwater marsh (G135) presently in the center of this wetland. The size of the existing and reclaimed wetlands associated with the riparian corridor of Stream 3e and its headwater wetland appear to be the same. The reclamation of the headwater of Stream 3e? provides a more complicated complex of wetland communities than presently exists at that location. The ditch (G019) will be replaced with a natural stream, whose riparian corridor is not depicted due to the fact that IMC agreed to reclaim Stream 3e? at the hearing; however, the reclaimed wetland corridor undoubtedly will be more functional than the present ditch. Presently, the headwater wetland is a large freshwater marsh (G016) fringed by mixed wetland hardwoods (G014) and a wet prairie (G105). A cattle pond (G017) is in the wet prairie, and another cattle pond is at the point where Stream 3e? forms. The north side of this wetland is heavily ditched. The reclaimed headwater wetland, which will be about the same size as the present wetland, will consist of an interior shrub marsh (E019) and freshwater marsh (E020) and a wet prairie fringe (E018). A replacement cattle pond (E026) is moved farther away from the headwater wetland. Reclamation around the Heart-Shaped Wetland results in a more complicated array of wetlands than presently exists. Three ephemeral wet prairies (E021, E026, and E031) will be reclaimed north and west of the Heart-Shaped Wetland and Stream 2e where no wetland exists presently. An isolated freshwater marsh (E034) will be reclaimed south of the Heart-Shaped Wetland where no wetland exists today. Two ephemeral wet prairies (E026 and E037) totaling 4.5 acres will be reclaimed south and east of Stream 2e, close to the no-mine area surrounding Streams 6e and 7e, again where no wetland exists presently. However, IMC will not reclaim a hydric flatwoods (G157) connected to the south border of the headwater wetland of Stream 8e. Reclamation will relocate the headwater wet prairie of Stream 9w closer to Horse Creek. Mining two wet prairies (G047 and G048) and reclaiming them with a single wet prairie of at least the same size (W003--20.7 acres), IMC will also reclaim the downstream portion of Stream 9w with a mixed wetland hardwoods and add a gum swamp (W005--2.4 acres) at the end of Stream 9w, as it enters the no-mine corridor of Horse Creek. IMC will also reclaim an ephemeral wet prairie (W002) just north of the reclaimed segment of Stream 9w. Across Horse Creek from its junction with Stream 9w, IMC will mine the eastern half of a roughly five-acre bayhead (G166), reclaiming the mined part of the bayhead with a mixed wetland hardwoods (E048--6.0 acres). However, where no wetlands presently exist, IMC will reclaim an ephemeral wet prairie (E044) and a larger wetland consisting of a freshwater marsh (E047--9.0 acres) fringed by an ephemeral wet prairie (E046--7.1 acres). In RAI-173 in the CDA, IMC explains that no-mine lines initially ran through some wetlands due to the limited level of detail available in the small scale maps used at the time. IMC representatives have discussed each such bifurcation with DEP biologist Christine Keenan, and IMC made adjustments that satisfied DEP, obviously not eliminating all of the bifurcated wetlands. Alluding to the impracticability of eliminating all bifurcated wetlands, IMC notes in its response to the request for additional information: "A small feature protruding into a mining area is one of the more difficult features to effectively mine around. It requires significant extra distance of ditch and berm systems, which both increases costs and results in greater losses of phosphate ore recovery." Subject to two exceptions, the southernmost extent of reclaimed ephemeral wetlands will be close to the Lobes, especially the West and Central Lobes. Eight such wetlands (W021, W015, W017/W018, W019/W020, W012, W013, W016 and W011) will be west of Horse Creek, and three such wetlands will be east of Horse Creek (E057, E061, and E053). (Although the headwater wetland of Stream 7w, W012 is depicted as ephemeral in Figure 13B-8.) Most of these wetlands will be wet prairies. Three of these reclaimed ephemeral wetlands appear to be in the location of existing wetlands (G093/G094, G091/G092, and G090), and the existing wetlands are freshwater marshes fringed with wet prairies, except that the smallest, G090, is a wet prairie. The last reclaimed wetland on the east side of Horse Creek is just north of the Carlton cutout. In reclaiming Stream 5e, IMC will reclaim a small bayhead (E063--1.3 acres) in the middle of the stream's OFG segment. This replaces a wet prairie/hydric oak forest (G204/G205) in the same location and of the same size. On the other side of Horse Creek and to the south of Stream 5e, IMC will reclaim the headwater wetlands of Streams 5w, 4w, 3w, and 2w. The headwater wetland of Stream 5w is a long freshwater marsh (G210) with a small shrub marsh (G207) that drains an elaborate array of agricultural ditches to the west. These ditches shifted some of the drainage that historically entered Stream 4w into Stream 5w. Reclaiming the stream with a wider wetland forested mixed corridor, as it will do for Streams 4w, 3w, and 2w, IMC will expand the headwater wetland by reclaiming a long freshwater marsh (W024--7.9 acres) fringed on its upgradient side by a small wet prairie (W023--2.2 acres). IMC will also remove a cattle pond (G209) presently abutting the center of the freshwater marsh. IMC will reclaim an ephemeral wet prairie (W026) between Streams 5w and 4w, relatively close to the Horse Creek floodplain. Except for a very small ephemeral wet prairie just west of the headwater wetland of Stream 4w and an ephemeral, largely mixed wetland hardwoods reclaimed in the West Fork sub- basin (W041/W042/W043), W026 is the southernmost reclaimed ephemeral wetland on OFG. The pattern of the reclamation of Streams 4w, 3w, and 2w is otherwise identical: each reclaimed stream, in a reclaimed wetland forested mixed corridor, will receive water from reclaimed freshwater marshes of 3.5 to 5.1 acres in size. Presently, Stream 4w has no headwater marsh, instead receiving water from the elaborate ditching scheme described in connection with Stream 5w. Streams 3w and 2w presently receive water from small headwater wetlands, although Stream 2w also receives water from an agricultural ditch. The last major reclamation on the west side of Horse Creek relates to Stream 1w. Alone of all the streams, Stream 1w is an agricultural ditch throughout its length, except for a short segment just upstream from the no-mine area. However, alone of all the streams at OFG, Stream 1w drains a primarily seepage-supported wetland. This well-defined headwater wetland complex comprises, from upstream to downstream, a cattle pond (G505), freshwater marsh (G506), mixed wetland hardwoods (G507), bay swamp (G513), wetland forested mixed (G512), wet prairie (G514), hydric oak forest (G511), and ditch (G512A). Reclaimed, this headwater will be the largest reclaimed bay swamp (W0399-1.2 acres). In addition to the two small bay swamps in the wetland corridor of Stream 1e series, the small bay swamp in Stream 5e, and the Stream 1w headwater bay swamp, the only other bay swamp to be reclaimed on OFG will be a part of a wetland (W037/W036) that will be in the center of Section 19 and drain into the West Fork. The bay swamp component of this wetland will be 4.4 acres and will replace a similarly sized wetland (H008/H009/H009A) with a smaller bay swamp core. Map CL-1 is the Reclamation Schedule. This map identifies the year in which specific areas within OFG will be reclaimed. With two exceptions, Map CL-1 tracks Map H-9, which is the Tailing Fill Schedule, by identifying the same blocks and adding two years to each of them. One exception may be due to the February 19, 2004, and February 26, 2004, revisions of Map H-9. The latter revision changed the year of backfilling part of northwestern Section 20 from year 7 to year 5. Map CL-1 tracks the older version of Map H-9 and provides for reclamation of this area within Section 20 for year 9, not year 7. This means that part of the northwestern Section 20 would remain backfilled, but not revegetated, for four years. This may be an oversight in Map CL-1 because it was last revised January 22, 2004. The other exception concerns the uplands immediately east of the East Lobe. Map H-9 provides for sand tailings for the northern half of this area in year 6 and for the southern half of this area in year 5, but Map CL-1 provides for both areas to be reclaimed in year 7, so the southern half would remain backfilled, but not revegetated, for two years. This may be intentional, as ERP Specific Condition 12.d requires that IMC backfill and contour the two areas upslope of the bayheads in the West and East Lobes within one year after the completion of mining, but nothing in the ERP requires expedited revegetation of these upland areas. ERP Specific Condition 12.b requires IMC to include mining and reclamation schedule updates in the annual reclamation report that it files, pursuant to Chapter 62C-16, Florida Administrative Code. Specific Condition 12.b warns that "significant changes" to these schedules may require a permit modification. ERP Specific Condition 12.c states, in its entirety: "Mine cuts shall be oriented in the direction of ground water flow, generally perpendicular to Horse Creek as shown on Map H-1." The introduction to the January submittal, witnesses, and parties agree that IMC is required to orient the spoil piles in the direction of groundwater only to the extent practicable, so the unconditional language of ERP Special Condition 12.c is inadvertent. ERP Specific Condition 12.d provides that sand tailings placement and final contouring shall be completed within one year after the completion of mining, as shown on Map H-9, in the two areas upslope from the unmined bayheads (G178 and G197), which are in the East and West Lobes. ERP Specific Condition 13 addresses the construction, removal, and revegetation of the pipeline corridor shown on Figure RAI 514-1. This figure depicts a narrow "Mine Access Corridor (Pipelines, Road, Powerlines)" passing at the point that Stream 2e forms at the downgradient end of the Heart-Shaped Wetland. Specific Condition 13 contains seven subsections governing the pipeline corridor to minimize its impact on the wetlands and other surface waters that it crosses. Figure RAI 514-1 also depicts a 200-foot wide "Dragline Walkpath Corridor" that crosses Stream 1ee and Stream 3e within 100 feet of the Heart-Shaped Wetland. No conditions attach to the construction, operation, removal, and reclamation of this area because, unlike the pipeline corridor as it crosses Stream 2e, all of this portion of the dragline corridor will be mined. ERP Specific Condition 14 states that IMC shall restore as mitigation 322 acres of wetlands, as shown in Maps I-1, I-2, I-3, and I-6; Figure 13A5-1; and the post-reclamation cross-sections. Map I-1 is the Post Reclamation Topo. IMC updated this map with several limited changes at the end of the hearing, and DEP accepted the new Map I-1. Comparing Map I-1 with Map C-1, which is the Existing Topography, the post-mining topography substantially replicates the pre-mining topography, although Table 26M-1 reveals a lowering of some of the highest pre-mining elevations, including the highest elevation by eight feet. Maps I-2 and I-3 are, respectively, Post Reclamation Vegetation and Post Reclamation Soils. As noted above, Specific Condition 14 references these maps, but only in connection with the restoration of 322 acres of wetlands. Maps I-2 and I-3 cover all of OFG, so they cover wetlands and other surface waters, which are properly the subject of an ERP, and uplands, which are properly the subject of a CRP approval. Naturally, the ERP does not incorporate the all of Maps I-2 and I-3 because they include all of the uplands. Unfortunately, as discussed in the next section, the CRP approval likewise fails to obligate IMC to reclaim the uplands in accordance with Map I-2 and the upland soils in accordance with Map I-3. This omission is inadvertent, so the Recommended Order will assume that IMC will reclaim the uplands as depicted in Map I-2 and the upland soils as depicted in Map I-3. Although the upland portions of Maps I-2 and I-3 should be discussed in the next section, they will be discussed in this section because the CRP approval fails to incorporate them and discussing both maps in one place allows for a more coherent presentation. Map I-2 is the Post Reclamation Vegetation. Map I-2 depicts the post-reclamation upland and wetland vegetation on OFG. This map reveals wide edges of roughly one-quarter to one- half mile of reclaimed improved pasture on the east and west edges of OFG. The core of OFG is Horse Creek and its 100-year floodplain, which are always within, but do not always define, the no-mine area. Between the no-mine area and the reclaimed improved pasture are the reclaimed wetlands described above and larger area of reclaimed uplands described below. Map I-2 and Map F-1, which is Pre Mining Vegetation, allow a comparison, by community, location, and area, of reclaimed uplands with existing uplands. In broad overview, IMC will reclaim everything in Section 4 outside the Heart-Shaped Wetland, which is the northernmost extent of the no-mine area, and Stream 2e. From the point that Horse Creek enters OFG, IMC will reclaim a broad area between the no-mine area and reclaimed improved pasture, south to the Carlton cutout. From this point, reclamation will be limited to the west side of Horse Creek, and the area between the no-mine area and reclaimed improved pasture will narrow progressively for the remaining 1 1/2 miles that Horse Creek runs in OFG. The width of the core, or no-mine area, is generally about 750 feet, but widens considerably at different points. Where Horse Creek enters OFG, the no-mine area is approximately 1750 feet wide, but narrows south of Stream 8e to about 750 feet. From the Central Lobe to the East Lobe, the no-mine area expands to nearly 4000 feet across. Except for another expansion at the West Lobe, the width of the no-mine area south of the Lobes remains at about 750 feet until Horse Creek exits OFG. The riparian wetlands of Horse Creek, which are within the no-mine area, are mixed wetland hardwoods for the first mile that Horse Creek flows in OFG and hydric oak forest for the remainder of Horse Creek's passage through OFG. The width of the non-pasture uplands adjacent to the no-mine area also varies. In describing the width of these upland areas between the no-mine area and the reclaimed improved pasture, this Recommended Order will include the reclaimed wetlands described above. These wetland areas are small, except for the headwater wet prairie of Stream 9w, the headwater freshwater marshes of Streams 5w, 4w, 3w, and 2w, and a few isolated wetlands. On both sides of Stream 2e, IMC will reclaim a band of hardwood conifer mixed of about one-half mile in width. At present, this area is occupied by a smaller area of hardwood conifer mixed and nearly a one-half mile wide band of pine flatwoods or, to the south, pine flatwoods and sand live oak. East of Streams 6e, 7e, and 8e, IMC will reclaim a band 1500-3000 feet wide of hardwood conifer mixed, shrub and brushland, and sand live oak, between the no-mine area and the reclaimed improved pasture. This replaces a broader area of pine flatwoods, sand live oak, palmetto prairie, and xeric oak. From Stream 8e south, IMC will reclaim uplands on both sides of Horse Creek. At this point, the reclaimed area between the no-mine area and the reclaimed improved pastures measures about 1750 feet wide on the west of Horse Creek and about 2000 feet wide on the east of Horse Creek. Including the no-mine area in the center, these reclaimed areas average about one-mile wide south to the Lobes. From Stream 8e south to the East Lobe, IMC will reclaim largely hardwood conifer mixed. This replaces a large citrus grove, a larger area of improved pasture, and three smaller areas of palmetto prairie. On the west side of Horse Creek, the vegetation is more varied, both at present and as reclaimed. North of Stream 9w, IMC will reclaim a large palmetto prairie, a sizeable area of sand live oak, and a small area of temperate hardwood. South of Stream 9w, IMC will reclaim a large area of hardwood conifer mixed, areas of pine flatwoods, sand live oak, and palmetto prairie, and a small area of temperate hardwood. The uplands surrounding Stream 9w presently consist of improved pasture along the downstream half of the conveyance and palmetto prairie and sand live oak along and near its upstream reach. South of Stream 9w are a large area of improved pasture, pine flatwoods, and sand live oak and two smaller areas of palmetto prairie. The combination of no-mine area and reclaimed area, exclusive of reclaimed improved pasture, attains its greatest width--about 10,000 feet--from the western edge of the West Lobe to the eastern edge of the East Lobe, although this includes a 1000-foot strip of improved pasture between the bayhead in the East Lobe and sand live oak east of the bayhead. This area narrows to less than 6000 feet, just north of the Carlton cutout. South of this point, at which the reclaimed upland habitat will be found only on the west side of Horse Creek, the total width of the no-mine area and reclaimed area east of the reclaimed improved pasture tapers down from a little over 3000 feet to less than 1500 feet at the south end of OFG. Map I-2 also discloses the communities or habitats that will exist, post-reclamation, on OFG. These communities or habitats include those that will be in the no-mine area and those that will be reclaimed. At present, the West Lobe is mostly bayhead, wet prairie, and wetland forested mixed with smaller areas of hydric woodland pasture and shrub marsh. The West Lobe also includes upland communities of palmetto prairie, temperate hardwoods, and pine flatwoods. A large wet prairie extends from the northwest corner of the West Lobe. IMC will reclaim this wet prairie as improved pasture with a small strip of hardwood-conifer mixed. To the west of the West Lobe is a small strip of improved pasture and a large area of hardwood-conifer mixed. IMC will reclaim the improved pasture with hardwood-conifer mixed and sand live oak and most of the hardwood-conifer mixed with sand live oak. The areas surrounding the no-mine area associated with Stream 6w are currently improved pasture; IMC will reclaim these areas as hardwood-conifer mixed. The Central Lobe is mostly bayhead with small areas of wetland forested mixed and wet prairie. Palmetto prairie is also within the Central Lobe, nearer to Horse Creek. IMC will reclaim the areas around the Central Lobe and Stream 7w with hardwood-conifer mixed and some palmetto prairie. At present, the Central Lobe and Stream 7w are surrounded by palmetto prairie and some pine flatwoods with an area of sand live oak to the northwest of the Central Lobe. Unlike the no-mine areas forming the West and Central Lobes, which incorporate insubstantial areas of uplands, the no- mine area forming the East Lobe, like the no-mine area around Streams 6e, 7e, and 8e, incorporates a substantial area of uplands. Upgradient of the large bayhead forming the western half of the East Lobe is the 1000-foot strip of improved pasture, and upgradient of the pasture is a large sand live oak area. IMC will mine the eastern half of this sand live oak area and reclaim it as xeric oak. IMC will mine a small wet prairie presently at the southern tip of the bayhead in the East Lobe and reclaim the area as hardwood-conifer mixed. From the East Lobe south to the Carlton cutout, the reclaimed uplands will consist of a long area of temperate hardwoods abutting the no-mine area and a wider area of hardwood-conifer mixed abutting the temperate hardwoods. This area is presently improved pasture. On the west side of Horse Creek, south of the Carlton cutout, the area outside the no-mine area is presently improved pasture, except for a large palmetto prairie around and south of the headwater wetland of Stream 1w. Between the no-mine area and reclaimed improved pasture, IMC will reclaim palmetto prairie and a small area of hardwood-conifer mixed between the headwater wetlands of Streams 5w and 3w. Map I-3 is the Post Reclamation Soils. The legend classifies the soils by "[moderately well-drained]--greater than 30"; "[poorly drained]--greater than 30"; "[poorly drained]-- less than 30"; "[poorly drained]--stream"; "[very poorly drained]--muck"; and "[very poorly drained--mineral depression]." The references to "30" are the thicknesses, in inches, of sand tailings over overburden. Maps E-1 and E-2 are, respectively, Detailed Existing Soils and General Existing Soils. Comparisons between these two maps, on the one hand, and Map I-3, on the other hand, reveal specifics of the soil-reclamation process. The most distinctive feature of soils present at OFG is the thin band of Felda Fine Sand, Frequently Flooded, that runs down the center of OFG. As always, this reinforces the most distinctive feature of OFG--Horse Creek. However, the Felda Fine Sand extends beyond the Horse Creek floodplains to Stream 2e, the Stream 1e series, and the headwater wetland of Stream 5w. All of these soils are in the no-mine area except at the Stream 1e series and headwater wetland of Stream 5w. A closely related soil underlies the floodplain of the lower end of Stream 6w, which is also in the no-mine area. These are the only locations on OFG with these soils. The Felda Fine Sand is a "poorly drained soil having layers of loamy and/or spodic materials underlying sandy surfaces at least 20 inches thick on streams terraces and floodplains." Exclusive of the loamy or spodic materials, Map I-3 shows that IMC will reclaim the drainage characteristics of this type of soil at the Stream 1e series, but not at the headwater wetland of Stream 5w. IMC will also reclaim this type of soil at Streams 9w, 5w, 4w, 3w, 2w, and 1w. Another distinctive soil, pre-mining, is "moderately well to excessively drained soils having layers of loamy and/or spodic materials underlying sandy surfaces greater than 30 inches thick on gentle upland slopes and rises." Except for a couple of areas at the eastern end of the East Lobe, these soils presently are all outside of the no-mine area. IMC will reclaim these soils, generally in the areas previously described as sand live oak or xeric oak, as well as in a long band along the southern border of the slough associated with Stream 9w and a large area on the west sides of Sections 29 and 20. These areas correspond reasonably well in area and location to the existing soils with the same drainage characteristics. The two most poorly drained soils, pre-mining, are "very poorly drained to poorly drained mineral soils in depressions" and "very poorly drained soils with organic surfaces on low gradient seepage slopes." The latter are exclusively mucky soils, and the former range from mucky fine sand to fine sand. Most of the mucky soils are in the no-mine area, such as in each of the Lobes and along Streams 6e and 7e. IMC will not reclaim with similar soils the three areas with these mucky soils that are outside the no-mine area. The mucky fine soils are more widely distributed outside the no-mine area. The only significant areas of fine mucky sand presently at OFG underlie the Heart-Shaped Wetland, the headwater wetland of Stream 8e, and parts of the West Lobe. IMC will reclaim these mucky fine soils generally in accordance with their present areas and locations. The most significant reductions in area are from the slough of Stream 9w and the northeast corner of Section 4. Except for another category of poorly drained soil and four small areas of a somewhat poorly drained soil--all within the no-mine area--the remaining soil is "poorly drained soils having layers of loamy and/or spodic materials underlying sandy surfaces predominantly greater than 30 inches thick primarily on gently sloping uplands." The reclaimed counterpart of this poorly drained soil occupies the largest part of OFG, post-reclamation. This represents a substantial expansion of coverage of this type of soil, mostly at the expense of "poorly drained soils having layers of loamy and/or spodic materials underlying sand surfaces less than 30 inches thick primarily on gently sloping uplands." Map I-6 is the Post Reclamation Streams. These are addressed below. Figure 13A5-1 is the Identification of Created Wetlands. These wetlands have already been discussed. ERP Specific Condition 14 states that IMC shall reclaim wetlands in accordance with the schedule contained in Table 3AI-6A, which has been discussed. Specific Condition 14 lists various requirements applicable to the wetlands that IMC will create. ERP Specific Condition 14.a requires IMC to remove "suitable topsoil" prior to mining wetlands. IMC must time the clearing of topsoil donor sites and reclaiming of other sites so that it optimizes the opportunities for the direct transfer of topsoil, without any intervening storage time. If IMC must remove wetland topsoil more than six months before it will be spread at a reclamation site, IMC must store the topsoil in such a way as to minimize oxidation and colonization by nuisance species. Specific Condition 14.a encourages IMC to relocate any endangered or threatened plant species to appropriate mitigation sites. ERP Specific Condition 14.b requires IMC to grade reclaimed forested wetland areas after backfilling them with sand tailings and/or overburden and cap them with "several inches of wetland topsoil." IMC shall use direct transfer of topsoil and live materials, such as stumps, shrubs, and small trees, where feasible. However, Specific Condition 14.b states in boldface: "All reclaimed bay swamps shall receive several inches of muck directly transferred from forested wetlands approved for mining." Specific Condition 14.b provides that wetland topsoil should be reasonably free of nuisance and exotic plant species before application to wetland mitigation areas. ERP Specific Condition 14.c requires IMC to grade reclaimed herbaceous and shrub marsh wetland areas after backfilling them with sand tailings and/or overburden and cap them with "several inches of wetland topsoil when available." Specific Condition 14.c provides that wetland topsoil should be reasonably free of nuisance and exotic plant species before application to wetland mitigation areas. ERP Specific Condition 14.d requires IMC to design marshes and wet prairies "to maintain the diversity of community types that existed prior to mining in order to support a wide range of wildlife species including birds, reptiles, and amphibians." Specific Condition 14.d requires IMC to reclaim marshes and wet prairies with variations in hydroperiod and slope "to provide the greatest diversity of available habitat," with marsh hydroperiods ranging from ephemeral through permanently flooded. Specifying a range of slope values, Specific Condition 14.d adds that most marshes shall have slopes gradual enough to support wide transition zones with a diversity of vegetation. ERP Specific Condition 14.d provides that IMC shall construct ephemeral marshes and wet prairies as identified in Figure 13B-8, which, discussed above, addresses the status of individual wetlands as connected, isolated, or isolated and ephemeral. Although not incorporated into the ERP, Table 13A1-4 indicates that IMC will mine 27 of the 29 ephemeral wetlands or 22 of the 27 acres of ephemeral wetlands, but will reclaim 44 ephemeral wetlands totaling 101 acres, as indicated on Table 13A5-1 2AI discussed above. ERP Specific Condition 14.e provides that at least half of all herbaceous and shrub marshes shall be rim mulched with several inches of wet prairie, pine flatwoods, or palmetto prairie topsoil, and IMC shall use direct transfer, where feasible. ERP Specific Condition 14.f requires IMC to use "several inches" of wet prairie, hydric pine flatwoods, or hydric palmetto prairie topsoil for all wet prairie and hydric palmetto prairie areas, and IMC shall use direct transfer, where feasible. However, instead of topsoiling, IMC may use "[o]ther innovative methods" that are likely to produce the same diversity of wet prairie forbs and grasses. ERP Specific Condition 14.g requires IMC to construct, in forested wetlands, hummocks several inches above the wet-season high water line. The hummocks shall be 8-12 feet long and 3-6 feet wide. To increase habitat heterogeneity, IMC shall place brushpiles, logs, and tree stumps in the reclaimed area, which it shall roughly grade in some areas. ERP Specific Condition 14.h requires IMC to construct streams in accordance with the Stream Restoration Plan. Specific Condition 14.h also requires IMC to employ an experienced stream restoration scientist, subject to BMR approval, to provide project oversight and conduct regular inspections during construction and planting. First appearing in the January submittal, the Stream Restoration Plan is a design document that specifies, in detail, the physical characteristics of each reclaimed stream. For each reclaimed stream or stream segment, the Stream Restoration Plan provides detailed information of physical structure; channel planform or shape; hydrologic characteristics in terms of such factors as storage, conveyance, and attenuation; geomorphic characteristics such as the substrate and floodplain soil types and the effects of flows upon these materials; vegetation along the stream corridor, including the addition of snags and debris dams to re-create natural microhabitats; construction supervision; and monitoring. The Stream Restoration Plan focuses upon the design of the basin, reach, and microhabitat of each reclaimed stream. For microhabitat, the Stream Restoration Plan promises that: the ecology of most of the reaches is expected to be improved through reclamation. For all reaches except 1e and 3e (which are wholly situated in generally native land cover), the forested riparian zone will be substantially increased since improved pasture adjacent to the stream channels will [be] replaced with forested canopy. Acknowledging the importance of small headwater streams to the overall integrity of a large watershed, the Stream Restoration Plan recognizes the hydrological and biological functions of the tributaries and their riparian wetlands--namely, flood conveyance, attenuation, and storage and aquatic and wetland habitat. Among other things, the Stream Restoration Plan repeatedly stresses the importance of achieving "rapid closure of the riparian canopies." In addition to providing habitat, a riparian canopy reduces solar heating of the stream, thus lowering the water temperature and minimizing weedy vegetation on the stream banks. Among the effects of lowering the water temperature is lowering the amount of water lost to evaporation. The installation of trees along and sometimes within the reclaimed channels will facilitate the rapid development of root systems to stabilize the substrate and provide submerged root structure, which is an important microhabitat for macroinvertebrates and fish. Mature trees in the floodplain also provide additional attenuation. In addition to serving as a design document to govern the reclamation of mined streams on OFG, the Stream Restoration Plan is also a descriptive document, detailing the relevant characteristics of the streams presently at OFG. The Stream Restoration Plan uses several classifications that are useful in analyzing streams and their functions. These classifications include the Rosgen classification of stream shape (the Rosgen classification of bottom sediment is irrelevant because all existing and reclaimed streams at OFG have sandy bottoms), the Strahler convention of stream orders, the duration of flow, and the channel morphology. The Rosgen classification of stream shape divides the streams at OFG into type E and type C. Type E streams are well- incised and hydraulically efficient; their width-to-depth ratios are less than 12:1. Shallower and wider than type E streams, as these values relate to each other, type C streams at OFG are often associated with small wetland riparian zones and depressions, which are absent from type E streams at OFG. The Strahler convention classifies streams based on their relative location in the upstream order of conveyances with the most-upstream streams classified as first-order streams. Except for Stream 2e and the Stream 1e series downstream of Streams 1eb and 1ef, all of the tributary streams on OFG are first-order streams, meaning essentially that they are the most upstream channelized conveyance receiving runoff or groundwater flow. Streams 2e, 1ec, 1ed, and 1ee are second- order streams, meaning that they receive flow from at least two first-order streams. In terms of flow, perennial streams receive groundwater flow throughout the year in most years, ephemeral streams flow sporadically in response to rain and typically lack groundwater inputs, and intermittent streams flow during the wet season in response to groundwater and rain inputs and during the dry season sporadically in response to rain inputs only. Most, if not all, of the tributary streams on OFG are intermittent. However, almost all of the streams cease to flow due to low rainfall and overflow their banks due to very high rainfall. Even Horse Creek dried up at State Road 64 during the low-rain conditions in 2000. In terms of morphology, all streams at OFG are either in uninterrupted channels or interrupted channels. Interrupted channels mean that the stream passes through flow-through marshes and swamps. Describing the existing streams in a slightly larger setting, the Stream Restoration Plan divides them into three groups, based on channel morphology and the vegetation and land uses adjacent to the channel. First, Streams 3e and 1e series are "surrounded by native habitat used for low-intensity cattle grazing. These are type C streams with a more diffuse riparian canopy and associated wetlands along the stream channel." Second, the portions of Streams 5e, 1w, 2w, 3w, 4w, 5w, 7w, and 9w within the floodplain forest of Horse Creek are type E streams with oaks and palmettos along, and often crowding, the channel. Third, the portions of the same eight streams that are outside of the floodplain forest of Horse Creek are type E streams, devoid of riparian vegetation and degraded by agricultural land uses, such as improved pasture and cattle grazing. The Stream Restoration Plan describes the Stream 1e series as follows: Reach 1e provides drainage for a series of interconnected flow-through wetlands punctuated by five relatively short stream segments. The segments represent a total of some 2,039 linear feet of channel. They have shallow, sandy banks with little vegetation in the stream channel. A wide riparian canopy of slash pine, laurel oak, dahoon holly and wax myrtle is present along most of this reach. The palmetto edge of the floodplain varies in width, but is generally more than 100 feet from either bank, suggesting frequent inundation. The channel substrate is sandy except where near a swamp, where it becomes increasingly more organic. Each flow-through wetland occurs in shallow depressions which overflow into C-type channels that are typically several hundred feet long. Key components of this conveyance type include the lip elevation at which wetland flow enters the channel and the elevation at which the streams dissipate their discharge to the downstream flow- through wetland. Most of the stream segments in this conveyance system appear to be in good geomorphic condition. Most of these channels typically have wetland and/or upland hardwood trees in the riparian zone with little understory. The Stream Restoration Plan reports that the channel of Stream 3e is in good geomorphic condition. The upper part of the channel flows through a scattered open canopy of trees with herbaceous cover in the riparian zone. The lower part of the channel mostly flows through treeless banks lined with palmettos. The channel has vegetation in it where it is exposed to sunlight. In other respects, Stream 3e is like Stream 1e series, except that the channel is uninterrupted and shorter. The length of Stream 3e is 611-630 feet. Stream 1eb is 486 feet, Stream 1ef is 223 feet, Stream 1ec is 315 feet, Stream 1ed is 283 feet, and Stream 1ee is 732 feet. The 2039-foot length of the Stream 1e series is exclusive of the system's headwater and flow-through wetlands. The Stream 1e series has the most linear feet of any tributary stream on OFG. In addition to the Stream 1e series and Stream 3e, the only other stream on the east side of Horse Creek to be mined is Stream 5e, which is an agriculturally disturbed stream with a narrow riparian canopy. The Stream Restoration Plan states that the lower portion of Stream 5e, which is within OFG, is in better condition than the upper portion, which is frequented by cattle and leads to a cattle pond and agriculturally altered wetland. However, in contrast to the Stream 1e series and Streams 6e, 7e, and 8e, Stream 5e is isolated in a vast monocommunity of improved pasture. The streams on the west side of Horse Creek have all been impacted by agricultural practices, mostly cattle ranching, ditching streams, sloughs, and other wetlands, and excavating cattle ponds in wetlands. The only streams entirely in the no- mine area on the west side of Horse Creek are Streams 8w and 6w, which are part of the Central and West Lobes, respectively. Relative to their surrounding communities, the streams on the west side of Horse Creek fall into three groups. Streams 6w and 8w are integrated into diverse communities of uplands and wetlands. Like Stream 5e, Streams 5w, 4w, 3w, and 2w are lonely departures from the monocommunity of improved pasture and, thus, attractors of thirsty or hot cattle. All of these streams have been impacted, to varying degrees, by ditching, which, with cattle disturbances, has led to unstable banks and erosion. Functionally, Streams 9w, 7w, and 1w are between these two groups. As a stream, Stream 9w is surrounded by improved pasture; however, it drains a large wet prairie surrounded by large areas of palmetto prairie to the south and west and sand live oak to the north and east. Prior to agricultural disturbance, Stream 9w was much higher functioning, at least with respect to flood conveyance, attenuation, and storage. At one time, this stream led upgradient to a long slough. After the slough was ditched to hasten drainage, the channel of Stream 9w suffered from excessive hydraulic forces, resulting in bank instability and a curious channel formation that fits the type E stream, even though the valley slope is consistent with other type C streams at OFG. Stream 9w is the second-shortest stream on OFG at 472 feet. Draining the smallest area of all tributaries on OFG (30 acres), Stream 7w lies between a large palmetto prairie to the north and improved pasture to the south. Stream 7w is the shortest stream on OFG at 456 feet. Stream 7w's upper section is characterized by unstable banks vegetated by pasture grasses. Stream 1w runs from Horse Creek through improved pasture, but enters a large palmetto prairie before draining a wetland that includes a relatively small bayhead. The upper half and extreme lower portions are in good condition with appropriate vegetation, but the channel is eroded in areas where it runs through pasture. IMC will reclaim the headwater wetland of Stream 1w with a large bayhead. ERP Specific Condition 14.i requires IMC to survey the final contours of each mitigation wetland to the precision of a one-foot contour. Within 60 days of final grading, IMC shall submit to BMR, for its approval, a topographic map and representative cross sections for each wetland and extending at least 200 feet into the adjacent uplands. IMC must also submit surveyed profiles and cross sections for all reclaimed streams. All topographic maps must meet the minimum technical standards of Chapter 472, Florida Statutes. ERP Specific Condition 14.j states that IMC shall assess the hydrology of the modeled wetlands through the installation of monitoring wells and staff gauges at mutually agreed-upon sites in these reclaimed wetlands. For at least two years after the final contouring of each wetland, IMC shall monitor the hydrology for the parameters listed in Table MR-2, which is described below. IMC shall submit the analysis to BMR within 30 days of its completion. If BMR does not approve the hydrology, IMC shall have 60 days to submit a remedial plan. ERP Specific Condition 14.k requires that freshwater marsh and ephemeral marsh vegetation shall develop from direct placement of donor topsoil or planting of herbaceous marsh species in the densities and numbers specified in the Freshwater Marsh and Wet Prairie/Ephemeral Marsh planting tables, so as to meet the requirements of ERP Specific Condition 16. Both tables require plantings on three-foot centers, or 4840 plants per acre, and specify suitable water levels for each species. The Freshwater Marsh planting table lists 22 approved species, and the Wet Prairie/Ephemeral Marsh planting table lists 35 approved species. ERP Specific Condition 14.l requires IMC to plant the uplands surrounding wet prairies with collected native grass seed, such as creeping bluestem, sand cordgrass, blue maidencane, bluestem, lovegrass, and eastern gamma grass, to prevent invasion by non-native or range grasses. ERP Specific Condition 14.m provides that IMC shall develop shrub marsh vegetation by directly placing donor topsoil at the location of the reclaimed shrub marsh and planting herbaceous and shrub marsh species in the densities and numbers specified in the Shrub Marsh planting table, so as to meet the requirements of ERP Specific Condition 16. The Shrub Marsh planting table requires IMC to plant herbaceous species on three-foot centers, or 4840 plants per acre, and shrub species at an average density of 900 plants per acre. The planting table lists 18 approved species and requires IMC to plant at least five different shrub species. The planting table also specifies suitable water levels. ERP Specific Condition 14.n provides that IMC shall plant forested wetlands in the densities, species richness, and dominance specified in the Bay swamp/Gumswamp/Hydric Oak Forest/Wet Pine Flatwoods/Mixed Wetland Hardwood/Mixed Forest Swamp, "as appropriate for each community type" to meet the requirements of ERP Specific Condition 16. IMC shall plant appropriate species based on the design elevations, hydrology monitoring, and mitigation goals. ERP Specific Condition 14.o provides that IMC shall plant shade-tolerant herbaceous species after establishing suitable shade, by year 7, in hardwood swamps, mixed forest swamps, and bay and gum swamps. Specific Condition 14.o states: "At least 5 of the species listed in the Tables in n above and others like goldenclub . . . and swamp lily . . . shall be planted." The items listed in Specific Condition 14.n, however, are communities, not species. ERP Specific Condition 15 requires IMC to implement a monitoring and maintenance program to promote the survivorship and growth of desirable species in all mitigation areas. ERP Specific Condition 15.a requires IMC to conduct "quarterly or semi-annual" inspections of wetlands for nuisance and exotic species. IMC shall control these species by herbicide, fire, hydrological, or mechanical means "to limit cover of nuisance species to less than ten (10) percent and to remove exotic species when present in each created wetland." IMC must annually use manual or chemical treatment of nuisance and exotic species when their cover in any area of at least one acre is greater than ten percent or any exotic species are present. IMC must use manual or chemical treatment if cogongrass covers more than five percent within 300 feet of any reclaimed wetland. ERP Specific Condition 15.b allows IMC to control water levels with outflow control structures and pumps, as needed to enhance the survivorship and growth of sensitive taxa. However, IMC must remove all water management structures at least two years prior to requesting release. ERP Specific Condition 15.c requires IMC to make supplemental tree and shrub plantings, pursuant to Specific Condition 14, when tree/shrub densities fall below those required in ERP Specific Condition 16. Specific Condition 15.d requires IMC to make supplemental herbaceous plantings, pursuant to ERP Specific Condition 14, when cover by a "diversity of non- nuisance, non-exotic wetland species as listed in Chapter 62-340.450, F.A.C.," falls below that required in ERP Specific Condition 16. ERP Specific Condition 16 provides the conditions for DEP to release IMC of further obligation for reclaimed wetlands. DEP shall release the 105 acres of reclaimed forested wetlands and 217 acres of herbaceous wetlands when IMC has constructed them in accordance with the ERP requirements; IMC has not intervened, for two consecutive years (absent BMR approval), by irrigating, dewatering, or replanting desirable vegetation; and the remaining requirements of ERP Specific Condition 16 have been met. IMC must indicate in its annual narrative, which is required by Specific Condition 5, the start date for the non- intervention period. ERP Specific Condition 16.A requires that the water quality meet Class III standards, as described in Florida Administrative Code Chapter 62-302. ERP Specific Condition 16.B addresses water quantity. ERP Specific Condition 16.B.1 requires each created wetland to have hydroperiods and inundation depths sufficient to support wetland vegetation and within the range of conditions occurring in the reference wetlands of the same community for the same period, based on the monitoring data developed in accordance with ERP Specific Condition 14.j. Tributary wetlands must have seasonal flow patterns similar to specified reference wetlands for the same period. ERP Specific Condition 16.B.2 states that IMC modeled 24 representative reclaimed wetlands that IMC has modeled during the application process to predict subsurface conditions after excavation and backfilling. Figure 13-3 depicts these modeled wetlands, which are within 13 wetland complexes, and the proposed transects. All of the modeling transects are aligned east-west, which is the direction of groundflow. As discussed in detail below, the primary hydrological model used by Dr. Garlanger requires an input for the length of the upland in terms of the distance from the basin divide to the riparian wetland. Therefore, the transects probably must run in the direction of groundwater flow. Absent an ability to model the hydroperiod and inundation depth of a wetland across a sand tailings valley and cast overburden plateau--i.e., in a north-south direction-- multiple east-west transects in wetlands with long north-south dimensions would better reveal whether the wetland design were adequately accounting for the alternating pattern of sand tailings valleys and cast overburden plateaus. For all the areas for which Map H-1 provides probable orientations of spoil piles--basically, for present purposes, everywhere but Section 4--the spoil piles are oriented in the same alignment as the transects, so the transects will not cross the sand tailing valleys/cast overburden peaks. In other words, each of the transects will run along the portion of each wetland for which the relative depths of sand tailings and cast overburden remain constant, avoiding the potentially more problematic situation of alternating rows of sand tailing valley and cast overburden peak. As noted below, the north-south dimension of W039 assures that one cast overburden spoil pile and part of another will underlie W039. The north-south dimensions of W003 and E046/E047 also are long enough to guarantee significant alterations in geology. ERP Specific Condition 16.B.2 requires that, prior to the construction of the modeled 24 wetlands, IMC shall reassess and, if necessary, modify their design. The modifications shall be based on the targeted hydroperiods and inundation depths set forth in Table 1, which is described below, and updated analysis from an "integrated surface and ground water model that has been calibrated to actual field conditions at the location of the wetland to be constructed." Lastly, ERP Specific Condition 16.B.2 requires IMC to use a similarly calibrated model to design the other reclaimed wetland, so that they achieve the targeted hydroperiods and inundation depths set forth in Table 1. For the 24 modeled wetlands, Table 1 identifies eight types of wetland community, prescribes hydroperiods and inundation depths for each wetland habitat, and projects a hydroperiod for each of the 24 modeled wetlands. As amended at the hearing for bay swamp hydroperiods, the hydroperiods and inundation depths for the wetland communities are: bay swamps-- 8-11 months with inundation depths of 0-6 inches; gum swamps-- 3-12 months with inundation depths of 0-12 inches; mixed wetland hardwoods and wetland forested mix--3-9 months with inundation depths of 0-6 inches; hydric pine flatwoods--1.5-4.5 months with inundation depths of 0-6 inches; freshwater marshes--7-12 months with inundation depths of 6-30 inches; wet prairies--2-8 months with inundation depths of 0-6 inches; and shrub marshes--7-12 months with inundation depths of 6-24 inches. The 24 reclaimed wetlands to be modeled include three bay swamps: W039, which is the headwater wetland of Stream 1w; E008, which is a small part of the wetland into which Streams 1eb and 1ef drain; and E063, which is a small bay swamp in the middle of Stream 5e. The only other bay swamps to be reclaimed are E007, which is a small part of the wetland into which Stream 1ec drains, and W036, which is in the center of Section 19 and drains offsite into West Fork. The only other modeled wetlands that are part of the riparian wetlands of Stream 1e series are E007 and E009, which are near E008 and are the only hydric pine flatwoods to be modeled. The only other hydric pine flatwoods to be reclaimed is E015, which is also part of the riparian wetlands of Stream 1e series. Other modeled wetlands of particular importance are W003, which will be a large wet prairie wetland serving as the headwater wetland of Stream 9w; W031, which will be the freshwater marsh serving as the headwater wetland of Stream 3w; E018, E046, and E057, which are wet prairie fringes; E018, E042, E046, and E057, which are ephemeral wetlands (E042 is the only modeled ephemeral wet prairie that is not a fringe wetland); and all of the connected wetlands of Streams 3e and 3e?: E024, which is a wetland forested mix that is the riparian wetland along Stream 3e; E023, which is a freshwater marsh immediately upstream of E024; E022, which is a mixed wetland hardwoods joining the upstream side of E023; E018, which is a wet prairie fringing the headwater wetland of Stream 3e?; E019, which is a shrub marsh (the only modeled shrub marsh) fringed by E018; and E020, which is a freshwater marsh joining E019 and also fringed by E018. ERP Specific Condition 16.B.3 states the IMC shall monitor the 24 modeled wetlands, as prescribed by ERP Monitoring Required Section D and Table MR-2, which are discussed below. ERP Specific Condition 16.B.4 requires that the ephemeral wetlands shall remain inundated no more than eight months per year during a normal water year, which is between the 20th and 80th percentiles of historical record in terms of total rainfall and major storm occurrence. ERP Specific Conditions 16.C.1 and 2 apply to all mitigation areas within the scope of the ERP. Specific Condition 16.C.1 requires that non-nuisance, non-exotic wetland species listed in Florida Administrative Code Rule 62-340.450 cover at least 80 percent of the groundcover or attain the range of values documented in specific reference wetlands of the target community. Desirable groundcover plant species must be reproducing naturally. ERP Specific Condition 16.C.2 provides that nuisance vegetation species, such as cattail, primrose willow, and climbing hemp vine, shall cover less than 10 percent of the total wetland area. Invasive exotic species, such as melaleuca, Chinese tallow, and Brazilian pepper, shall not be considered as an acceptable component of the vegetative community. For herbaceous marshes, ERP Specific Condition 16.C requires that native species typical of the reference marshes dominate the cover and that they be distributed in zonation patterns similar to reference marshes. Species richness and dominance regimes shall be within the range of values documented within the reference marshes. For wet prairies, ERP Specific Condition 16.C requires that native species typical of the reference wet prairies dominate the cover. Species richness and dominance regimes shall be within the range of values documented within the reference wet prairies. Range grasses, such as bahiagrass and Bermuda grass, shall cover, in total, less than 10 percent of the wet prairie. For shrub marshes, ERP Specific Condition 16.C requires that native species typical of the reference shrub marshes dominate the cover. Carolina willow and wax myrtle shall cover, in total, less than 30 percent of the marsh. For all forested wetlands, ERP Specific Condition provides that the forested canopy shall have an average of at least 400 live trees per acre that are at least 12 feet tall, except for cabbage palms, which shall have a leaf, including the stalk, that is at least three feet long. In the alternative, the forested canopy shall meet or exceed the range of canopy and sub-canopy tree densities in specified reference wetlands. No area greater than an acre shall have less than 200 trees per acre. Hydric pine flatwoods shall average 50 trees per acre. For all forested wetlands, ERP Specific Condition provides that the shrub layer shall average at least 100 shrubs per acre or shall meet or exceed the range of shrub densities in specified reference wetlands. Early successional species, such as Carolina willow, saltbush, and wax myrtle, do not count in meeting this density requirement, but the monitoring reports shall include such species. Hydric pine flatwoods shall have an average density of 350 shrubs per acre, and the primary species shall be typical of hydric pine flatwoods, such as saw palmetto, gallberry, and fetterbush. For all forested wetlands, ERP Specific Condition states that the canopy and shrub strata shall each have the species richness values and dominance regimes within the range of values in specified reference wetlands/floodplains of the target community. Canopy and shrub measurements are limited to those indigenous species that will contribute to the appropriate strata of the mature forested wetlands/floodplains. Up to half of the trees and shrubs in the upper transitional zone may consist of appropriate upland and facultative species, as found in specified reference wetlands. Desirable canopy and shrub species shall be reproducing naturally. For all forested wetlands, ERP Specific Condition provides that herbaceous vegetation shall have the species richness values and dominance regimes within the range of values in specified reference wetlands/floodplains of the target community. In making this evaluation, DEP shall consider the relative age of the mitigation site, as compared to specified reference wetlands. ERP Specific Condition 16.D.1 requires that all stream banks be stable, subject to normal erosion and deposition zones, as evidenced by the conformance of the stream with the applicable Rosgen type C or E, as described in the appropriate reference streams. ERP Specific Condition 16.D.2 requires that the physical characteristics of the reclaimed stream conform to its design. ERP Specific Condition 16.D.3 requires that tree roots, log jams, snags, and other instream structure shall be present at desirable intervals along the reclaimed stream. ERP Specific Condition 16.D.4 provides that species diversity and richness of the macroinvertebrate community shall be within the range of values documented in the reference streams or reported values of similar streams systems in central Florida. Also, all functional feeding guilds of macroinvertebrates found in the reference streams shall be present in the reclaimed streams. In the alternative, IMC may show that the reclaimed stream has met the minimum thresholds for the "good" classification in DEP's Stream Condition Index for macroinvertebrates and habitat quality. ERP Specific Condition 16.E provides that, throughout OFG, at least 105 acres of reclaimed forested wetlands and 217 acres of reclaimed herbaceous wetlands shall be determined to be wetlands or other surface waters. IMC shall achieve the minimum acreage for each wetland, as indicated on Map I-2 and associated figures and tables. However, IMC may make minor changes in the size, shape, or location of individual reclaimed wetlands, subject to BMR's approval. ERP Specific Condition 17 provides that DEP shall release IMC from further obligation regarding mitigation when ERP Specific Condition 16 has been met. IMC initiates the release procedure by notifying DEP that IMC believes the mitigation is ready for release, but this notice may not be earlier than two years after the completion of mitigation. DEP must respond within 120 days. ERP Specific Condition 17.d provides: "[DEP] may release the mitigation wetlands based on a visual evaluation, notwithstanding that all the requirements of Specific Condition 16 have not been met." ERP Specific Condition 18 applies to the surface water management system. The system must conform to the plans, specifications, and performance criteria approved by the ERP. ERP Specific Condition 19 requires IMC clearly to identify all no-mine areas in the field within two years of the issuance of the ERP. ERP Specific Condition 20 states that BMR will review the ERP at the end of the first five-year term after its issuance and at the end of each succeeding five-year term, if any. The purpose of the review is to determine compliance with general and specific conditions, including monitoring requirements. BMR staff shall quarterly inspect the mine for compliance with these requirements. ERP Specific Condition 21 requires IMC to provide a phased Conservation Easement, in favor of DEP, on 525 acres of OFG, as depicted on Figure F-6. Figure F-6 shows two easement areas. Phase A, which is 372 acres, corresponds to the 100-year floodplain of Horse Creek. Phase A is in the no-mine area. Phase B, which is 153 acres, is a wider band running along both banks of the northernmost 1 1/2 miles of Horse Creek and mostly on only the west bank for the southernmost 2 miles of Horse Creek. Phase B consists of part of the reclaimed area. The corridor covered by both phases of the Conservation Easement is generally not wider than 1000 feet and thus does not capture all of the non-improved pasture upland communities reclaimed on either side of Horse Creek and described above. IMC is required to grant the Conservation Easement on the Phase A lands within six months of the issuance of the ERP. IMC is required to grant the Conservation Easement on the Phase B lands within six months of the release by DEP of IMC from further obligations regarding reclamation and mitigation. ERP Specific Condition 21 incorporates the Conservation Easement and Easement Management Plan. The Conservation Easement implicitly acknowledges the fact that IMC is contractually obligated to convey OFG back to the Carlton- Smith family, after IMC has been released from further obligations regarding reclamation and mitigation. Thus, post- mining, OFG will return to its historic agricultural uses-- mostly, cattle ranching. The restrictions and encumbrances included in the Conservation Easement are designed to provide some protection to the wetlands, streams, and uplands within the Phase A and Phase B areas. Granted to the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, for which DEP serves as an agent, the Conservation Easement allows IMC and its successors, including the Carlton-Smith family, to use the encumbered property for cattle ranching, but only to the extent consistent with "sustainable native range management practices." These sustainable native range management practices require, among other things, the natural renewal of the grazing capacity of the land by allowing native grasses and other native forage species to regenerate. The Easement Management Plan contemplates prescribed burns of portions of the corridor. The Conservation Easement also allows IMC and its successors, upon obtaining the necessary permits, to construct a commodious 200-foot wide accessway across the encumbered property for a road, pipelines, draglines, and/or utilities. ERP Specific Condition 22 requires IMC to enhance 80 acres of existing pastureland within several areas of the Horse Creek floodplain, as indicated on Figure F-5, which is Habitat Enhancements. Most of the depicted enhancement areas are on OFG, but two of them are a short distance from OFG. ERP Specific Condition 22 requires IMC to plant 100 longleaf pines and/or oaks per acre within several sites, covering 80 acres of existing pastureland, adjacent to the 100-year floodplain of Horse Creek. Most of the sites are on the west bank of Horse Creek, mostly south of the Lobes, but a couple of sites are on the east bank in the vicinity of the East Lobe. ERP Specific Condition 23 requires that IMC plant these areas within one year of the issuance of the ERP and that the overall survival rate be at least 80 percent, as of the time of the release of the last mitigation parcel. ERP Specific Condition 23 requires IMC to enhance existing xeric and scrub habitats within areas designated as ACI (Area of Conservation Interest)-2, ACI-4, and ACI-6, as depicted on Figure F-5. Specific Condition 23 states that IMC shall enhance the wildlife habitat of these areas by performing controlled burns, cutting overgrown trees, planting desirable species, and controlling nuisance and exotic species. Specific Condition 23 obligates IMC to complete these enhancements within three years of the issuance of the ERP. ACI-2 is about 1 1/2 miles west-southwest of the southern end of OFG, between State Road 64 and the West Fork. ACI-2 consists of about 60 acres of overgrown xeric habitat, featuring 40 acres of sand scrub, predominantly sand live oak. Gopher tortoises occupy ACI-2 at a density of about 1.6 reptiles per acre. Florida mice occupy ACI-2 at a density of 0.4 rodents per acre, meaning that only 15-25 Florida mice may occupy ACI-2. By fence-posting overgrown sand pine and sand live oak and conducting a prescribed burn, IMC will reduce the heavy canopy existing on ACI-2 and enhance the suitability of ACI-2 for gopher tortoises and Florida mice. IMC will also apply herbicides to nuisance exotic species, such as bahiagrass, after which IMC will direct seed the flatwoods on the site with suitable vegetative species. Following this work, IMC may relocate Florida mice from OFG to ACI-2, upon approval from the FWC. ACI-6 is about one mile east of the southern end of OFG. ACI-6 consists of about 421 acres of a mixture of open land and overgrown oak scrub. Gopher tortoises occupy ACI-6 at densities ranging from 0.7 to 1.8 animals per acre. After fence-posting overgrown oaks and sand pine, conducting prescribed burns, installing fencing to exclude cattle and feral hogs, applying herbicide to kill exotic species, and direct seeding appropriate vegetation, IMC may relocate Florida mice from OFG to ACI-6, upon approval from FWC. ACI-4 consists of about 82 acres at the eastern end of the East Lobe and is within the no-mine area. The western end of ACI-4 slopes to the west through a bahia pasture before it enters a large bay swamp at the western end of the East Lobe. This area has been impacted by partial clearing and the depositing of animal carcasses--the latter practice yielding the name assigned to this area, the "boneyard" scrub. ACI-4 is dominated by mature scrub oaks. Gopher tortoises occupy ACI-4 at the rate of 0.85 terrestrial turtles per acre, and gopher frogs frequent the mouths of tortoise burrows at the site, although no signs of Florida mice exist. After conducting enhancement activities similar to those to be conducted on the other ACIs, IMC intends to create and maintain more suitable habitat for Florida mice. Specific Condition 23 states that IMC shall enhance 25 acres of pasture on ACI-4 by planting 100 longleaf pines and/or oak trees, and IMC shall manage these areas to achieve an overall survival rate of 80 percent through release of the final reclamation parcel. ERP Specific Condition 24 notes that IMC has committed to initiate the management and evaluation of amphibians, including the Florida gopher frog, and shall adhere to the management plans outlined in the IMC Minewide Gopher Tortoise and Burrow Conceptual Management Plan that FWC has examined, but not yet approved. IMC shall expend at least $30,000 to compare amphibian use of reclaimed and unmined wetlands. IMC shall include progress reports as to this study with its annual narrative reports required under Specific Condition 4. ERP Specific Condition 25 incorporates Tables 2AI-1 and 2AI-2 to provide assurance that IMC has sufficient sand tailings for the timely reclamation of wetlands contemplated in the ERP. Table 2AI-1 is the IMC Overall Sand Balance. Table 2AI-2 is the [OFG] Sand Balance. Table 2AI-1 shows the sand tailings production of IMC's Four Corners and Ft. Green mines from 2004-2014 and assumes an initial mining year of 2006 for OFG. For each of these 11 years, Four Corners produces 27,000,000 tons of sand tailings. For the first seven of these years, Ft. Green produces 17,000,000 tons of sand tailings. During these 11 years, IMC needs anywhere from 13,300,000 to 54,900,000 tons of sand tailings to meet all of its reclamation obligations. The closest that IMC will come to exhausting its sand tailings stockpile will be in year 6 of the OFG mining operation (2011, if OFG mining starts in 2006). For this and the following year, the sand tailings stockpile will total 300,000 tons. By this time, IMC's requirements for sand tailings begin to taper off, so that, by the final year on the schedule (2014), the sand tailings stockpile increases to 20,600,000 tons. Table 2AI-2 shows that IMC can meet its reclamation obligations for the Ft. Green Mine and OFG without using any stockpiled sand tailings. The next section of the ERP is Monitoring Required. The designations for this section start with a letter. As its name suggests, ERP Monitoring Required describes the monitoring program. The presence of monitoring does not imply the presence of standards or criteria applicable to what is monitored or the presence of a remedy or sanction for noncompliance with any standard or criterion. The existence of this section of the ERP does not mean that other sections of the ERP may impose monitoring requirements, applicable standards and criteria, and remedies or sanctions for noncompliance. ERP Monitoring Required A.1 requires IMC to submit annual narrative reports to BMR detailing the progress of the restoration program identified in ERP Specific Condition 4. As required in ERP Specific Condition 5, IMC shall submit to BMR hydrology reports annually and vegetation reports annually for the first three years and every other year thereafter, until release. At least 60 days prior to sampling, ERP Monitoring Required A.2 requires IMC to submit, for agency approval, vegetation, hydrology, and macroinvertebrate monitoring plans detailing sampling techniques and locations. ERP Monitoring Required A.3 requires IMC to include in its annual hydrology reports the daily rainfall amounts for the Ft. Green and OFG gauges shown on Map D-4. ERP Monitoring Required A.4 states that, if BMR determines that restoration efforts are not trending toward achievement of the release conditions set forth in ERP Specific Condition 16, IMC shall have 30 days from notification to submit proposed corrective actions. IMC shall implement corrective actions within 90 days of their approval. ERP Monitoring Required B states that data compiled in the CDA will be the primary source of reference wetland information. IMC shall then collect additional stage and hydroperiod data from the modeled wetlands. Within one year of the issuance of the ERP, IMC shall submit to BMR, for approval, a proposed sampling plan, including locations, frequencies, and vegetation, hydrology, and macroinvertebrate sampling methods. ERP Monitoring Required B provides that IMC shall select several wetlands of each community and submit them to BMR for approval. It appears that this process has already been completed, and DEP should updated ERP Monitoring Required B by incorporating into the ERP Figure RF-1, which, although not presently incorporated into the ERP, identifies 26 reference wetlands on OFG and nine reference wetlands on the original Ona Mine to the east of OFG. These reference wetlands include the most important components of the Lobes, the Heart-Shaped Wetland, Stream 2e's riparian wetlands, several wetlands in the Stream 1e series, the headwater wetland of Stream 3e, isolated wetlands south and east of the headwater wetland of Stream 3e, parts of the headwater wetland of Stream 1w, and the riparian and headwater wetlands of Stream 8e. As noted below, the riparian and headwater wetlands of Stream 8e, which are selected as reference wetlands, are moderate functioning, but the riparian and headwater wetlands of Stream 7e, which are not selected as reference wetlands, are high and very high functioning. ERP Monitoring Required C is Compliance Monitoring. Monitoring Required C.1 provides that IMC shall submit water quality data with the annual narrative reports submitted pursuant to ERP Specific Condition 7. All monitoring reports must include specified information, such as the dates of sampling and analysis and a map showing sampling locations. ERP Monitoring Required C.2 states that IMC shall submit hydrology data with its annual narrative reports. ERP Monitoring Required C.3 states that IMC shall monitor water levels in wetlands in no-mine areas in accordance with Table MR-1, which is described below. ERP Monitoring Required C.4 notes that IMC shall measure and report surface water flows in accordance with ERP Specific Condition 10. IMC must include in its reports to BMR all U.S. Geologic Service data collected at State Road 64 and State Road 72, which is south of State Road 64, and rainfall data collected by the U.S. Geologic Service, Southwest Florida Water Management District, and IMC. The annual hydrographs for Horse Creek at State Road 64 and State Road 72 "should" be similar. IMC must obtain and report hydrological data from 30 days after the issuance of the ERP until three years after the hydrological reconnection of the last reclaimed area upstream of a water level monitoring location. Within 60 days of the receipt of such data, BMR shall notify IMC of any changes to mining or reclamation that are necessary, and IMC shall have 60 days to respond to this notice. ERP Monitoring Required C.5 grants IMC a 50-meter temporary mixing zone adjacent to construction and in waters of the state; provided, however, this mixing zone is in effect only during the construction of the pipeline crossing just downstream of the Heart-Shaped Wetland. IMC must halt construction if monitoring reveals that turbidity at the site is more than 29 NTUs above upstream locations. ERP Monitoring Required C.6 states: "Compliance Monitoring Summary--See Table MR-1." Table MR-1 is discussed below, in connection with Table MR-2. ERP Monitoring Required D is Release Criteria Monitoring. Applying to vegetation, Monitoring Required D.1 provides that IMC shall conduct all monitoring of herbaceous vegetation during or immediately after the summer growing season. Monitoring Required D.1 requires the reports to include a description of collection methods and location maps. IMC must report data separately for individual wetlands. IMC must report separate density and cover information for trees, shrubs, and groundcover, as well as information about any supplemental planting. Applying to water quantity, ERP Monitoring Required D.2 provides that IMC shall submit water quantity data with its annual narrative reports, as required in ERP Specific Condition 4. IMC shall collect onsite daily rainfall data at OFG. ERP Monitoring Required D.3 requires: "Soils, macroinvertebrates and stream channel integrity/morphology shall be monitored as described in Table MR-2." ERP Monitoring Required D.4 states: "Release Monitoring Criteria Summary--See Table MR-2." Tables MR-1 and MR-2 refer to the monitoring required for compliance and release, respectively. The identification of these tables as "summaries" and the vague references to them in ERP Monitoring Required C.6 and D.4 suggest that the tables do not contain any performance standards and may imply that, except for the asterisked notes in Table MR-1, they summarize all of the performance standards and criteria contained in the ERP. If summaries, the tables should not introduce new elements, but they do just that with respect to the methods, sampling schemes, and frequency of monitoring. For water quantity monitoring, for instance, Table MR-2's promise of weekly readings of monitoring wells and piezometers for part of the year conflicts with the monthly reading required in ERP Specific Condition 10.b. If summaries of performance standards and criteria, the tables should capture all of the compliance and release criteria, but they do not. For water quality, for example, Table MR-2, which is limited to five parameters, potentially conflicts with ERP Specific Condition 16.A's broad assurance of compliance with Class III water quality standards, which encompass a broad range of parameters, including iron. For water quantity, Table MR-2 also omits the enforceable streamflow criteria of ERP Specific Condition 10.b. For soil, Table MR-2 includes one parameter--litter accumulation--for which no corresponding criterion exists and includes substrate-- for which important criteria exist as to the depths of sand tailings, topsoil, green manure, and muck--but omits any release criteria. Addressing two of the most important parts of the ERP--monitoring and performance criteria--these tables must be interpreted as subordinate to the remainder of the ERP, so that if they conflict with another ERP provision, the other ERP provision controls, but if they add a requirement not elsewhere found in the ERP, the requirement applies to the proposed activities. Table MR-1 is the Compliance Monitoring Criteria Summary. Table MR-1 identifies two monitoring parameters: water quality and water quantity. Asterisked notes state that the Table MR-1 requirements for water quality are in addition to those set forth in Specific Condition 7, which are discussed above, and the Table MR-1 requirements for water quantity are in addition to those set forth in Specific Condition 10.b, which are discussed above. For water quality, Table MR-1 addresses only turbidity. The compliance criterion is the Class III standard. The "proposed methods" are for IMC to monitor water, at mid- depth, 50 meters upstream and downstream from the point of severance and reconnection of each wetland. The frequency of monitoring is daily during severance or reconnection or during pipeline corridor construction or removal. The duration of monitoring is at least one wet season prior to mining, during mining, and through contouring. For water quantity, Table MR-1 addresses water levels, flow, hydrographs, soil moisture, and plant stress. The compliance criteria are soils sufficiently moist to support wetland vegetation and prevent oxidation and water levels in recharge ditches sufficient to simulate normal seasonal fluctuations of water in adjacent wetlands and other surface waters. The "proposed methods" are for IMC to install staff gauges, monitoring wells, piezometers, and flow meters in recharge ditches and wetlands in the no-mine area and at the point that the 100-year floodplain of Horse Creek intercepts the unmined portions of Streams 2e, 6e, 7e, 8e, 9e, 6w, and 8w. The frequency of monitoring is to check rainfall and recharge ditches daily, staff gauges in streams "continuously," and monitoring wells and piezometers weekly. The duration of monitoring is at least one wet season prior to mining, during mining, and through contouring. Table MR-2 is the Release Monitoring Criteria Summary. Table MR-2 identifies five monitoring parameters: water quality, water quantity, stream channel integrity and morphology, soils, and vegetation. For water quality, Table MR-2 addresses dissolved oxygen, turbidity, temperature, pH, conductivity, and, for all streams, all of the parameters in ERP Specific Condition 7.a. The compliance criteria are Class III standards. The locations are at or near the connection of wetlands in the no-mine area and at or near vegetative transects in streams and representative wetlands. The frequency is monthly from May to October prior to the reconnection to wetlands in the no-mine area and monthly from May through October of the year prior to the release request. The duration of monitoring is at least two years after the completion of contouring. For water quantity, Table MR-2 addresses water levels, flow, hydroperiod, rainfall, and hydrographs. The release criteria are values within the range of values documented in specified reference wetlands for each community type and, for hydroperiods and water levels, within the range of values predicted by modeling. The "proposed methods" are the same instruments identified for water quantity in Table MR-1. The locations for sampling are at or near the connection to wetlands in the no-mine area and at representative locations, including the deepest depths, of several representative wetlands of each community type. The frequency of monitoring is to check rainfall daily, staff gauges in streams "continuously," monitoring wells and piezometers weekly from May through October and monthly from November through April, and flow at sufficiently frequent intervals to generate rating curves for the streams. The duration of monitoring is at least two years after the completion of contouring. For stream channel integrity and morphology, Table MR-2 addresses channel stability and erosion, channel sinuosity channel profile, and cross sections. The release criteria are: "Stable channel and banks, no significant erosion, or bank undercutting, stream morphology within the range of values appropriate for the designed stream type (Rosgen C or E)." The location of sampling is over the entire channel length and representative cross sections. The frequency of monitoring for channel stability and erosion is after "significant" rain events for at least the first two years after contouring. The frequency of monitoring for channel sinuosity, channel profiles, and cross sections is years 2, 5, and 10. For soils, Table MR-2 addresses substrate description, litter accumulation, and compaction, but lists no release criteria. For vegetation, Table MR-2 addresses the species list and percent cover, FLUCFCS Level III map, percent bare ground and open water, nuisance species cover, upland species cover, tree density, shrub density, tree height, tree breast height diameter starting in year 5, and fruit and seedlings (starting in year 7). The release criteria are 400 trees per acre that are 12 feet tall, 100 shrubs per acre, species richness and diversity within the range of reference forested and herbaceous wetlands, 80 percent groundcover, and less than ten percent nuisance species. The location of sampling is randomly selected sites along several transects across each wetland, and the frequency of monitoring is years 1, 2, 3, 5, and every other year through the year prior to release. For macroinvertebrates, Table MR-2 addresses the number and identity of each taxon, diversity, functional feeding guilds, and the DEP Stream Condition Index. The release criteria are: "Species diversity, richness within range of reference wetlands, all functional feeding guilds or qualify as 'good' or better in the SCI." The location of sampling is in at least one representative 100-meter reach in each stream, and the frequency is at least twice yearly for at least the year prior to the release request for a stream. CRP The introductory CRP narrative describes IMC's plans to reclaim uplands, but does not impose any obligations upon IMC. Instead, the narrative introduces the reclamation project and summarizes the provisions of the general and specific conditions of the CRP. The failure to incorporate Map I-2, whose wetlands were incorporated by the ERP, and Map I-3 is material. CRP General Conditions 8, 9, and 10, discussed below, impose upon IMC certain requirements when reclaiming certain communities, but do not themselves impose the requirement of reclaiming these communities. The same is true for CRP Specific Condition 8. The only subcondition mentioning Map I-2 is Specific Condition 8.c, which alludes to Map I-2 while imposing upon IMC the reclamation technique of backfilling at least 15 inches of sand tailings upon those areas to be reclaimed as temperate hardwoods, live oak, and hardwood-conifer mixed. If this indirect reference imposes upon IMC the obligation of reclaiming these three upland forests pursuant to their depiction on Map I- 2, it is odd that Specific Conditions 8.a and 8.b fail even to mention Map I-2 in their discussion of the sand tailing and topsoil requirements for reclaimed pine flatwoods and sand live oak and xeric oak, especially when these three upland forest communities account for over 400 acres of reclaimed uplands, according to Table 12A1-1, which is also not incorporated into the CRP. The narrative portion of the CRP states that IMC's reclamation plan is to create 1769 acres of pasture, 50 acres of herbaceous, shrub, and mixed rangeland, 273 acres of palmetto prairie, 194 acres of pine flatwoods, 33 acres of xeric oak, 43 acres of temperate hardwood forest, 39 acres of live oak forest, 196 acres of sand live oak forest, and 550 acres of hardwood- conifer mixed forest. The CRP notes that most of the communities in the no-mine area, enhanced areas, and reclaimed communities will form part of a "larger mosaic of diverse upland and wetland habitat associated with Horse Creek and will serve as important wildlife corridors." The failure of the CRP approval to incorporate Map I-2 is an oversight. In the introduction to the January submittal, IMC proposed to reclaim the uplands, by community and area, as enumerated in Table 12A1-1, and, by community and location, as depicted on Map I-2. The failure to incorporate Map I-3 is probably an oversight, based on the second CRP narrative quoted below. The CRP narrative states that IMC has developed a Habitat Management Plan (HMP), which includes detailed pre- mining wildlife surveys and relocation programs. The narrative states that IMC will relocate, disturb the habitat of, and reclaim habitat for Florida mice, gopher tortoises, gopher frogs, and other commensals, pursuant to approvals from FWC. The narrative reports that IMC's Indigo Snake Management Plan has already received approval from the required agencies. Also, IMC will spend at least $30,000 to fund research on the potential of relocating burrowing owls onto reclaimed landscapes and at least $30,000 to analyze amphibian use of natural and reclaimed wetlands. However, the ERP and CRP approval incorporate only parts of the HMP. The CRP narrative adds: In addition to wetlands, a significant portion of the reclamation plan will focus on wildlife habitat through the creation of a diversity of upland habitat types adjacent to the Horse Creek corridor. This will provide a contiguous corridor averaging half a mile wide. IMC has committed to reclaim significant areas of pine flatwoods, palmetto prairie, sand live oak, and other upland habitats well beyond what is required by existing reclamation rules. This will be accomplished mainly through topsoiling and planting of a diversity of native species including shrubs and groundcover species. The use of exotic forage grasses will be minimized and native grass species will be emphasized in the groundcover of reclaimed upland habitat areas. A diversity of shrubs will also be planted in reclaimed upland forest areas. In addition, most of the mitigation wetlands will be created with diverse upland habitats surrounding them, resulting in enhanced wildlife and water quality functions. The CRP narrative addresses reclaimed soils: Special emphasis has also been placed on improving post reclamation soils. . . . Emphasis has been placed on restoring soils to more closely mimic native soils and existing soil horizons by making greater use of native topsoil and incorporating a greater percentage of sand at the surface. Green manure will be incorporated into surface soils where native topsoil is not used. In most cases, existing overburden spoil piles will be graded down and then capped with several feet of sand tailings. The thickness of the sand layer will be determined based on the targeted reclaimed land use with some wetlands requiring additional overburden to restore appropriate hydrology. The CRP narrative acknowledges that IMC has developed an Integrated Site Habitat Management Plan that includes plans for the reclamation of uplands, control of nuisance and exotic species in uplands, and management of all listed species. The CRP narrative asserts that IMC will reclaim and manage over 1378 acres of uplands, such as by removing cogongrass and maintaining it to less than 10 percent coverage, except less than 5 percent coverage within 300 feet of wetlands. The CRP narrative mentions that IMC has "volunteered" the Conservation Easement and Easement Management Plan to encumber not less than 525 acres associated with Horse Creek. CRP General Condition 7 states: "[IMC] is encouraged to implement the Integrated Habitat Network (IHN) concept (where possible) when establishing reclaimed upland and wetland forested areas." As overlaid on OFG, the IHN, which is developed by DEP, is depicted in Figure 12-5. The IHN covers almost all of the no-mine area; the floodplains and headwater wetlands of the Stream 1e series, Stream 3e, and Stream 3e?; much of the non-pasture reclaimed uplands; and a large area of reclaimed improved pasture south and west of the reclaimed sand live oak area immediately west of the West Lobe. The backbone of the IHN is the network of rivers and streams, with their floodplains, that provide multifunctional habitat for wildlife. As noted in the introduction to the January submittal, the HMP helps implement the portion of the IHN located at OFG. Although only selectively incorporated into the ERP and CRP approval, the HMP describes IMC's overall plan for reclaiming OFG. The stated goal of the HMP is "to maintain or improve the biological functions of the wetlands and uplands . . . as an integrated component of the mining and reclamation plans." The HMP adds: "By preserving and managing the highest quality habitats on [OFG], these reserves will serve as source populations to recolonize the remainder of the site following completion of reclamation." Overall, the reclamation plan and HMP try to restore a functional interrelationship of uplands, wetlands, and surface water to replace the reduced functions that result from the agricultural alterations to uplands, wetlands, and most of the surface water, leaving large areas of a patchwork fragmentation of habitats. The HMP covers habitat management prior to land clearing, species-specific management techniques immediately prior to land clearing, species-specific management techniques during mining, habitat management in no-mine areas, reclamation goals for habitat, reclaimed habitat management after release, and, in the second part of the HMP, specific actions for each listed wildlife and plant species. Prior to land clearing, IMC will engage in little active habitat management, apart from surveys, as the Carlton- Smith family continues its agricultural uses of the land, which it is entitled to do under its contract with IMC. Immediately prior to land clearing, IMC will relocate each species, after obtaining the necessary permits, either by capture or, for the more mobile species, controlled burns or directional clearing to encourage wildlife migration into an adjoining refuge area. For listed bird species, IMC will protect their nesting areas or restrict land clearing to non-nesting season. During mining, aquatic- and wetland-dependent species will continue to have access to Horse Creek and its riparian wetlands, which are never isolated by the ditch and berm system. The only permitted direct disturbance of the no-mine area is outside Horse Creek's direct floodplain. During mining, the vast water recirculation system will provide incidental, temporary habitat for many aquatic- or wetland-dependent species. The second part of the HMP identifies management techniques for specific listed species of vertebrates. The HMP states that no listed plants exist on OFG. The HMP addresses 15 listed species observed on OFG and nine listed species that could potentially use OFG. The HMP mistakenly lists the Florida panther in the latter category, rather than the former category, but the error is harmless given the limited use of OFG by the Florida panther and the apparent lack of a breeding population north of the Caloosahatchee River. The following paragraphs describe the HMP's treatment of several listed species using OFG. Noting that the American alligator, which is a species of special concern, occupies freshwater habitats throughout Florida, plenty of such habitats exist around the mining areas, and the alligator is mobile, IMC expects that the American alligator will move out of the way of mining activities, so no management measures will be used for alligators. Presumably well-served by former Land-and-Lakes reclamation and an opportunistic inhabitant of deep wetland reclamation, alligator management is of no importance in these cases. The HMP reports two possible observations on OFG of the Florida panther, which is an endangered species. There is no doubt about one of these observations. On the other hand, there is no doubt that OFG is far from prime panther habitat. Thus, IMC will check for panther signs during pre-clearing surveys and anticipates that the unmined floodplains that are part of the IHM will maintain suitable habitat--presumably, for travel. IMC has already mapped the distribution on OFG of the gopher tortoise, which prefers well-drained, sandy soils characteristic of xeric and mesic habitats. IMC has already prepared a management plan for gopher tortoises, which are a species of special concern, and, upon DEP approval, will engage in several measures to reduce mortality due to mining activities, including, upon receipt of an FWC permit, relocating gopher tortoises, as well as other commensal species found in or near the tortoises' burrows, to appropriate locations, including one or more of the above-described ACIs. The Sherman's fox squirrel, which is a species of special concern, prefers sandhill communities and woodland pastures, and many of these squirrels use suitable areas of OFG. They are mobile, and, during mining operations, they will move to the no-mine areas adjacent to Horse Creek. Prior to land clearing, IMC will survey each area, and, if it finds active nests, these areas will be avoided until the young squirrels have left the nests, pursuant to FWC requirements. The Florida Mouse, which is a species of special concern, inhabits sand pine scrub and other xeric communities and is a commensal of the gopher tortoise. Prior to land clearing of suitable Florida Mouse habitat, IMC will conduct live-trapping. If any such mice are captured, IMC will relocate them to a suitable relocation site, such as to ACI-2, ACI-4, or ACI-6 or to xeric or pine flatwoods/dry prairie habitat that will be reclaimed on OFG. IMC will employ similar procedures for the Florida gopher frog, which is another commensal of the gopher tortoise. A species of special concern, the Florida gopher frog will also be the subject, with other amphibians, of research regarding use of reclaimed habitats and funded by IMC with at least $30,000. The Audubon's crested caracara, which is a threatened species, prefers dry prairie with scattered marshes and improved pasture. They typically nest in cabbage palms or live oak trees. Observers have seen a pair of caracaras on OFG, but attempts to locate a nest onsite have been unsuccessful. Prior to clearing cabbage palms, IMC will again survey the area for nests. If IMC finds a nest onsite or within 1500 feet of OFG, it will develop an FWC-approved management plan. The post- reclamation palmetto prairie and pine flatwoods are good caracara habitat. One of the few listed species whose habitat needs have been well-served by agricultural conversions to improved pasture, the burrowing owl occupies numerous areas on OFG. IMC intends to schedule land clearing in areas with active burrows during non-nesting season, but, if this is impossible, IMC will attempt to empty the burrow prior to clearing the land. Additionally, IMC will spend at least $30,000 to fund research to improve the technology to relocate onto reclaimed land burrowing owls, which are a species of special concern. Although IMC found on OFG no nests of sandhill cranes, which are threatened, or little blue herons, which are a species of special concern, sandhill cranes nest in reclaimed wetlands on the Ft. Green Mine, and IMC expects sandhill cranes to nest in the reclaimed wetlands at OFG. Prior to mining, IMC will survey marshes for sandhill crane and little blue heron nests, and, if it finds any, it will disturb those areas in non- nesting season. Wood storks, which are endangered, use OFG for foraging, but IMC found no evidence of wood stork rookeries on or nearby OFG. The nearest known active rookery is 22 miles from OFG. Prior to landclearing during wood stork nesting season, IMC will survey each wetland with the potential to support stork nesting sites. If IMC finds any nests, it will follow the latest guidelines from FWC or U.S. Fish and Wildlife Service for protecting the site. For the white ibis, snowy egret, and tricolored heron, which are species of special concern, IMC will survey those wetlands that are suitable nesting site prior to landclearing. If any active nests are found, IMC will schedule landclearing during non-nesting season. CRP General Condition 8 provides that groundcover in all upland forests shall include one or more of the following native plants: fruit-bearing shrubs, low-growing legumes, native grasses, and sedges. CRP General Condition 9 provides that IMC shall use native grasses and shrubs when reclaiming grasslands and shrub and brushlands. CRP General Condition 10 provides that IMC shall incorporate clumps of trees in reclaimed improved pasture so that each ten acres has "some trees." CRP General Condition 11 states that IMC shall make "every effort" to control nuisance and exotic species within the mine. CRP Specific Condition 1 is ERP Specific Condition CRP Specific Condition 2 is ERP Specific Condition 23. CRP Specific Condition 3 is ERP Specific Condition 11. CRP Specific Condition 4 is for IMC to obtain authorization from the FWC to trap and relocate Florida mice. Specific Condition 4 requires the trapping and relocation of Florida mice prior to clearing areas inhabited by them. CRP Specific Condition 5 requires IMC to make "every effort" to relocate listed plant species to suitable reclamation sites when such species are encountered prior to or during land clearing. CRP Specific Condition 6 is ERP Specific Condition 12.c. CRP Specific Condition 7 is ERP Specific Condition 12.d. CRP Specific Condition 8.a provides: Areas designated as pine flatwoods . . . and palmetto prairie shall be reclaimed by placing a minimum layer of fifteen (15) inches of sand tailings over the overburden and topsoiling with three (3) to six (6) inches of direct transferred or stockpiled native topsoils from pine flatwoods or palmetto prairie areas as that topsoil is available and feasible to move. Feasible means of good quality, relatively free of nuisance/exotics species, and within 1.5 miles of the receiver site. If topsoil is not available or feasible to move, a green manure crop will be seeded and disked in after it has matured before applying a flatwoods or palmetto prairie native ground cover seed mix to this site. In flatwoods, longleaf pine . . . or slash pine . . . shall be planted in the appropriate areas to achieve densities between 25 and 75 trees per acre. In flatwoods and palmetto prairie, shrubs typical of central Florida flatwoods and palmetto prairies will be recruited from the topsoiling, planting, and/or seeding to achieve a minimum average density of 300 shrubs per acre. The total vegetation covered by hydric flatwoods will be greater than 80 percent, in mesic flatwoods and palmetto prairies will be greater than 60 percent, and in scrubby flatwoods, greater than 40 percent. CRP Specific Condition 8.b provides: Areas designated as sand live oak or xeric oak scrub . . . shall be reclaimed by placing several feet of sand tailings over the overburden and topsoiling with three (3) to six (6) inches of direct transferred or stockpiled native topsoil from scrubby flatwoods or scrub areas. Feasible means of good quality, relatively free of nuisance/exotics species, and within 1.5 miles of the receiver site. If topsoil is not available or feasible to move, a green manure crop will be seeded and disked in after it has matured before applying a scrubby flatwoods or scrubby native ground cover seed mix to this site. Trees and shrubs typical of central Florida scrubs will be recruited from the topsoil, planted, and/or seeded to achieve a minimum density of 600 plants per acre. Vegetative cover in these areas will be greater than 40 percent. CRP Specific Condition 8.c provides: Other upland forest areas, including [temperate hardwoods, live oak, and hardwood-conifer mixed], shall be reclaimed, as illustrated by Map I-2, by placing a minimum layer of fifteen (15) inches of sand tailings over the overburden, capping the area with approximately three (3) inches of overburden and disking the surface to reduce compaction of the upper soil layer prior to revegetation. Other uplands shall be revegetated with a native ground cover, planted with trees to achieve a density of 200 plants per acre, and planted with shrubs to achieve a density of 200 shrubs per acre. CRP Specific Condition 8.d provides that IMC shall incorporate native grass species into the groundcover of all reclaimed uplands. CRP Specific Condition 8.e allows IMC to use bahia grass, Bermuda grass, and exotic grass species as groundcover in native habitats only in "limited amounts" needed for "initial stabilization in areas highly prone to erosion." When using these grasses, IMC must maintain them to prevent their proliferation. CRP Specific Condition 9 is ERP Specific Condition CRP Specific Condition 10 is ERP Specific Condition 21. CRP Specific Condition 11 resembles ERP Specific Condition 11, but requires more of IMC. CRP Specific Condition 11 states that IMC "has committed" to initiate the management and evaluation of amphibians, including the Florida gopher frog, and shall adhere to the provisions of the IMC Minewide Gopher Tortoise and Burrow Conceptual Management Plan. IMC shall pay at least $30,000 to conduct a study of amphibian use of reclaimed and unmined wetlands. IMC shall report its progress in the annual narrative reports that it must file, pursuant to Florida Administrative Code Rule 62C-16.0091. CRP Specific Condition 12 contains similar provisions for the burrowing owl. Related to ERP Specific Condition 15.a, CRP Specific Condition 13 requires IMC to make "every effort" to control cogongrass by eradicating it prior to mining, removing it after it colonizes spoil piles during mining, inspecting donor topsoil sites to prevent infestation by it, and regularly treating it on reclaimed sites to maintain coverage below 10 percent, or 5 percent within 300 feet of any reclaimed wetland. WRP The WRP at issue is for the Ft. Green Mine, not OFG. The basic purpose of the WRP is to permit IMC to dispose of the clay tailings extracted from OFG in CSAs O-1 and O-2, which are located at the southern end of the Ft. Green Mine. In an unchallenged action, DEP, on March 20, 2001, approved a requested modification of the CRP approval for the Ft. Green Mine to permit the changes sought in these cases for the Ft. Green Mine WRP. Thus, the WRP modification sought in these cases is merely a conforming modification. Normally, a WRP/ERP would take precedence over a CRP approval because mining may not start without a WRP/ERP, but may start without a CRP approval. In the unusual situation at the Ft. Green Mine, where the mining has been completed, the analysis of the WRP modification is limited to, primarily, the sufficiency of the changes in mitigation to offset the already- completed mining and, secondarily, the relevant impacts of the mitigation itself. DEP issued the WRP on May 1, 1995. This permit allowed IMC to mine 524.6 acres of wetlands at the Ft. Green Mine. On February 3, 1997, DEP issued an ERP to allow IMC to disturb 1.39 acres of surface water for a utility corridor. Following the receipt of a request by IMC for a major modification of the WRP to permit the mining of 7.6 acres of wetlands, DEP consolidated this request, the utility-corridor ERP, and the original WRP into a new WRP issued July 28, 1999. After a modification to the new WRP in 2000 that is irrelevant to the present cases and other irrelevant permitting activity, IMC has requested the modification that is at issue in these cases. Because this WRP modification follows the completion of mining and the near-completion of backfilling of sand tailings into the mine cuts, a denial would not spare the wetlands and other surface waters from the impacts of mining. Rather, a denial would leave the Ft. Green Mine with greater impacts and less mitigation. In simplest terms, a denial would harm the water resources of the District. Strengthening the already-approved mitigation and diminishing the impacts of the already-approved CSAs, this WRP modification will authorize IMC to reduce the size of the two CSAs (O-1 and O-2) in the southern end of the Ft. Green Mine and relocate them farther from Horse Creek; to relocate several reclaimed wetlands in the vicinity of CSAs O-1 and O-2 and expand their area by 2.7 acres with minor changes to some sub- basin boundaries; and to modify the reclamation schedule to conform to a modification already approved without challenge for the Ft. Green Mine CRP. The record demonstrates that the reduction in size and relocation of the CSAs away from Horse Creek will reduce the hydrological and biological impacts from those already permitted. The record demonstrates that the expansion of the area of reclaimed wetlands will add mitigation to offset the hydrological and biological impacts from already-completed mining activities. The record demonstrates that the relocation of the reclaimed wetlands and modification of the reclamation schedule will not affect the impacts or mitigation. Other Mitigation/Reclamation Projects Introduction The formation of wetlands vegetation, according to IMC biologist Dr. Andre Clewell, is a function of topography, hydrology, soils, and physical environment--to which should be added time. The formation of soils, according to Charlotte County soil expert Lewis Carter, is a function of parent material, time, relief, vegetation, and climate. Hydrology is dependent upon, among other things, topography, soils, geology, vegetation, and climate. Successful reclamation must thus account for the complex interdependency of the dynamic processes involving vegetation, soil, and hydrology. Although actual reclamation follows a clear order-- geology, soils, contouring, and planting--the order of the design process is not so clear. Presumably, in designing a reclamation plan, the biologist, soil scientist, and hydrologist would each prefer to have the final--as in last and authoritative--word. In general, the comparison of older mitigation sites to newer mitigation sites requires caution due to two factors, which somewhat counterbalance each other. The vegetation of the older sites has had longer to establish itself. The importance of this factor varies based on the type of vegetation. Groundcover establishes more quickly than shrubs, and shrubs establish more quickly than trees, but groundcover that requires protection from the tree canopy may not be able to colonize an area until the trees are well-established. Soils take a longer time to recover, generally longer than the timeframes involved in phosphate mining reclamation in Florida. The soils present in Hardee County took 5000 to 10,000 years to form. The A horizon, or topsoil layer, at OFG formed over 300-500 years. However, if the soil and hydrology are suitable at a reclaimed site, an A horizon may start to reform in as little as 10 years, but, even under ideal conditions, it will take several hundred years to reform to the extent and condition in existence prior to mining. The mucky soils underlying bay swamps form at the rate of about one inch per 1000 years. Offsetting the advantage of age for vegetation and soils, the older reclamation sites may suffer from less advanced designs and construction techniques. Newer sites benefit from advances in science and technology that have enabled phosphate mining companies to design and implement reclamation projects that more successfully replace the functions of the natural systems and communities lost to mining. Some of these advances have resulted in dramatic, sudden improvements in reclamation. The assessment of past reclamation projects must account, not only for the age of each project, but also the willingness of the phosphate mining company at the time to employ the then-available science and technology. The ratio of the cost of reclamation to projected revenues depends on the variables of specific mitigation expenses, mining expenses, and the value of the phosphate rock. These economic factors operate against the backdrop of a dynamic regulatory environment. In these cases, for example, IMC's willingness to reduce its mining impacts and expand its mitigation was a direct result of the Altman Final Order and DEP's decision to revisit its earlier decision to permit the Ona Mine. Uplands The uplands at OFG are more amenable to successful reclamation than the wetlands or streams at OFG. Uplands provide crucial functions. Certain uplands, such as those that provide seepage to wetlands or prime recharge to deep aquifers, provide hydrological functions as complex as the hydrological functions of many wetlands. Certain uplands provide irreplaceable habitat. Certain uplands vegetation is as vulnerable to climactic or anthropogenic disturbance as any wetlands vegetation. However, for the most part, the functions of uplands are not as complex or important as the functions of wetlands and other surface waters, when examined from the perspective of the water resources of the District, and these functions are more easily reclaimed. Over 77 percent of OFG and over 90 percent of the uplands at OFG are agricultural (2146 acres) or pine flatwoods, palmetto prairie, or sand live oak (1120 acres). (As noted above, palmetto prairie and sand live oak share many attributes of pine flatwoods, which they often succeed.) In terms of function, tolerance to ranges of hydrology and soils, and robustness of post-reclamation vegetation, these 3266 acres of uplands communities will be easier to reclaim than all of the proposed streams and wetlands, except for deep marshes, although pine flatwoods and palmetto prairies present the greatest difficulties in uplands reclamation due to their soil and hydrological requirements, including access to the post- reclamation water table. Impacts to uplands include the disappearance--even temporarily--of critical habitat for listed species, the susceptibility of uplands to post-disturbance nuisance exotics, and, for upland forested communities, the relatively long period required for restoration of the canopy. However, these impacts can be offset in most cases. Management plans can mitigate the temporary or permanent loss of specific upland habitat, depending on the availability of habitat and the robustness and abundance of the species requiring the habitat. Absent the presence of rare uplands habitat and/or rare species requiring the habitat, a greater problem with uplands reclamation is controlling nuisance exotics. Various grass species, including Bahia, Bermuda, torpedo, centipede, Natal, and cogon, impede progress in the development of a healthy uplands community. One of the world's ten worst weeds, cogongrass is limited to uplands, although it may extend into the higher parts of wet prairies and drier areas within forested wetlands. Although nuisance and exotic species may invade undisturbed areas, the removal of existing upland vegetation exacerbates the problem by removing native competitors and stimulating unwanted germination. However, ongoing maintenance, through a combination of herbicides, manual removal, and fire, controls the nuisance exotics long enough that the native vegetation can colonize the disturbed area. Upland forested communities require protection from grazing and mowing to permit their establishment. Canopy development takes years for any upland forested community and, for slower-growing xeric systems, at least a decade. The timely restoration of an appropriate fire regime is also important for the health of many upland communities. Not surprisingly, the record demonstrates the successful reclamation of uplands at several mitigation sites. In recent years, reclamation scientists have restored uplands structure of uplands by restoring the understory and midstory. Uplands restoration has improved with the introduction of new, more effective reclamation techniques, such as topsoiling and seeding. Until 1987, for instance, restoration biologists did not know that wiregrass--a key component of the understory of pine flatwoods--produced seeds. This knowledge has assisted in the reclamation of a proper understory of pine flatwoods. The favorable prognosis of uplands reclamation means that extensive areas of OFG uplands may be mined. Their functions will be substantially replaced, in a reasonable period of time, upon the establishment of the reclaimed upland community, although the destruction of xeric communities means their absence for relatively long periods of time and the destruction of uplands providing seepage support to wetlands requires the close-tolerance hydrology and soils associated with the most difficult wetlands reclamation. Approved in 1989 and amended in 1994, constructed by 1986, and released in 1994, Best of the West (NP-SWB(1D)) was targeted for 15-18 acres of xeric habitat. Best of the West was constructed on sand tailings overlaying overburden, although this site exhibits some stunted vegetative growth where the sand tailings may not be very thick and the roots of trees may have encountered the hardened overburden. FWC assisted the phosphate mining company in designing the reclamation plan for this site, which has resulted in the successful reclamation of 10 acres of xeric habitat. The CDA provides some background on Best of the West. The West Noralyn Xeric Scrub Reclamation (N-5), which was constructed by 1986, contained "mulched overburden plots" and 60 acres of unmined scrub. Containing a total of 462 acres of reclaimed and unmined land, Noralyn was the first attempt to create a large-scale xeric community. About 120 acres of Noralyn received 12 inches of donor topsoil from a comparable xeric community. Due to a lack of representation in the donor site, supplemental plantings of longleaf pine, sand pine, and rosemary followed. The overall project has been "moderately successful," but the 18 acres that yielded "exceptional results" were dubbed "Best of the West." Best of the West thus illustrates a recurrent feature of much reclamation activity, in which successful projects are actually small parts of the original project area, the rest of which is substantially less successful. The CDA states that, in January 2000, IMC initiated a land management program for Noralyn that includes herbicide applications and prescribed burns. After herbicide was applied to kill cogongrass, IMC conducted the first burn in March 2001. Noralyn is now being managed for four to five families of Florida scrub jays, a listed species. Four Eastern Indigo snakes, 225 gopher tortoises, numerous gopher frogs, and 119 Florida mice have been relocated to Noralyn. Approved in 1988, constructed in 1991, and released in 1992, Hardee Lakes topsoil (FG-PC(1A)) has a 7.9-acre uplands component that was topsoiled with one inch over overburden. Despite receiving no maintenance, the site displays few weeds or nuisance exotics, although cogongrass has invaded the site. The reclaimed site displays saw palmetto, gallberry clumps, creeping bluestem grass, and, in topsoiled areas, flowering milkwood. The site includes an ecotone between pine flatwoods and a wet prairie, which developed due to the appropriate slope and soil. The CDA identifies two one-acre demonstration projects with Hardee Lakes topsoil. The Ft. Green-Hardee Lakes Pine Flatwoods Project, a topsoiled site, has achieved a lower ratio of saw palmetto to pines than is presently typically of fire-suppressed communities and is more typical of historic Florida pine flatwoods. The Ft. Green-Hardee Lakes Palmetto Prairie Site, also topsoiled, has been successfully revegetated with saw palmettos and other appropriate species. An interesting uplands reclamation site, for its different use of soils, is the Bald Mountain complex (KC-LB(2) and LB(4)), which is a 180-acre site. In a reclamation project approved in 1989 and 1996, constructed in 1993, and released in 1994 and 2002, IMC backfilled the Bald Mountain site with sand tailings down to 40 feet, capped the sand tailings with six inches of overburden, and then mixed the soils. Nearby, Little Bald Mountain received only sand tailings. Scrub were planted on both locations, but Bald Mountain also received sandhill plantings. Bald Mountain contains suitable sandhill species, such as sandhill buckwheat, although natal grass has been a problem. Natal grass is an invasive grass that colonizes quickly and often requires manual removal. Little Bald Mountain contains appropriate understory grasses, including short-leaved rosemary, an endangered species; Gopher apple, an important wildlife food; and Ashe's [savory] mint, a listed species. The rosemary and mint are reseeding themselves. The site also contains several large palmettos that were started from seed. Approved in 1996, constructed in 2000, and not yet released, Ft. Green/Horse Creek Xeric (FG-HC(3 & 5)) is a 99-acre uplands site reclaimed as xeric oak. IMC backfilled at least six feet of sand tailings over the overburden and then added topsoil over the sand. Already, this site, which is in the nearby Ft. Green Mine, has developed all levels of structure in the appropriate ecosystem, although, according to the CDA, it received irrigation "frequently" from an irrigation system at the start of the project. The site includes denser vegetation, such as shrub palmetto, grasses, and forbs. The direct transfer of topsoil has added species diversity, such as a Florida spruce and a listed orchid. The site also contains a small number of longleaf pines. IMC has hand-removed natal grass at this site, but has lately been using a new selective herbicide. According to the CDA, though, the presence of invasive exotics throughout the site is limited to 0.4 percent. One of the best upland reclamation sites is MU 15E Topsoil (FCL-LMR(6)), which was approved and constructed in 2002 and has not been released. This is a 30-acre topsoiled site in which IMC transferred topsoil carefully: if topsoil was taken from a depression on the donor site, the topsoil was placed in a depression in the receiving site. This site already displays a rich diverse plant palette with hardly any weedy or exotic species. In this site, palmetto and wet prairies slope down to a flatwoods marsh. This site also contains a reclaimed ephemeral wet prairie--possibly the only known ephemeral wet prairie ever reclaimed after phosphate mining. With modest efforts regarding soils and possibly more strenuous efforts regarding nuisance exotics, the reclamation of uplands is relatively easily attained, provided the sites can be protected for the longer timeframes necessary to establish upland forests and especially upland xeric communities and an appropriately shallow water table is reclaimed for pine flatwoods and palmetto prairies. Wetlands Wetlands reclamation is generally more difficult than uplands reclamation. Successful wetlands reclamation typically requires better command of post-reclamation topography, hydrology, soils, and physical environment. Material deviations in these parameters reduce, or eliminate, many wetlands functions, such as floodplain communication, nutrient sequestration, floodwater attenuation, ecotone transitions, and habitat diversification. The loss of such functions may result in immediate problems with water quality, water quantity, and habitat. Given the greater difficulty in successful wetlands reclamation, experience in wetlands reclamation is, not surprisingly, more mixed than the generally favorable experience in uplands reclamation. The greater difficulty in, and more guarded prognosis of, wetlands reclamation, as compared to uplands reclamation, means that the disturbance of wetlands demands closer analysis of the functions of the wetlands proposed to be mined, the functions of the wetlands proposed to be reclaimed, and the reclaimed soils, hydrology, topography, and physical environment on which the reclamation scientists will rely in reclaiming wetlands functions. The most important factor in wetlands reclamation is hydrology. Wetlands with less rigorous hydrological needs, especially if they also tolerate deeper water over longer periods of time, reclaim much more easily than wetlands with more precise hydrological needs, especially if they require shallower water over shorter periods of time. The phosphate mining industry has repeatedly reclaimed marshes and cypress swamps that are inundated deeply and for extended periods of time, but has had a much harder time reclaiming shallower wetlands requiring shorter hydroperiods or shallower water levels. The two most difficult wetlands of this type to reclaim are bay swamps and wet prairies. Among herbaceous wetlands, deep marshes are the easiest to reclaim. Often a target of Land-and-Lakes reclamation, deep marshes also are the result of reclamation projects that failed to create targeted shallower wetlands. Charlotte County ecologist Kevin Irwin noted that deep marshes are easier to reclaim than forested wetlands, for which the post-reclamation hydrology must be more precise. Similarly, a freshwater marsh, which tolerates 6-30 inches of water from 7-12 months annually, is easier to reclaim that a wet prairie, which tolerates 0-6 inches of water from 2-8 months annually. Among forested wetlands, bayheads or bay swamps, as defined in these cases as seepage forested wetlands, are harder to reclaim than mixed wetland hardwoods, as IMC biologist Dr. Douglas Durbin testified--likely, again, due to the requirement of more precise post-reclamation hydrology. Accordingly, the parties do not dispute the ability of the phosphate mining industry to reclaim deep marsh habitat, including freshwater marshes and shrub marshes, as well as deep swamps--principally cypress swamps. Like wet prairies, which sometimes fringe deep marshes, deep marshes provide habitat, supply food, attenuate floodwaters, and improve water quality. Deep marshes may host large numbers of different plant species. However, like lakes, deep marshes remove larger amounts of water from the watershed, as compared to shallower wetlands with shorter hydroperiods, due to evapotranspiration. The reclamation projects known as Morrow Swamp, Ag East, 8.4-acre Wetland, and 84(5) trace a short history of the reclamation of deep-marsh habitat. Permitted in 1980, constructed in 1982, and released in 1984, 150-acre Morrow Swamp represents a prototype, second- generation wetlands reclamation project. According to the CDA, Morrow Swamp is from an era in which reclamation did not attempt to restore topography: "This ecosystem included the reclamation of 150 acres of wetland (freshwater marsh, hardwood swamp, and open water) and 216 acres of contiguous uplands. The reclamation site was originally pine flatwoods and rangeland before it was mined in 1978 and 1979." Designed and built before reclamation scientists concentrated on soils, the hydrological connection between Morrow Swamp and Payne Creek, into which Morrow Swamp releases water, is a concrete structure in a berm that leads to a swale that empties into Payne Creek. Morrow Swamp reveals one obvious shortcoming of mechanical outflow devices, at least if they depend on ongoing maintenance, because vegetation and sedimentation in the infrequently maintained outflow device have blocked the flow of water and contributed to water levels deeper than designed. The reclamation scientists pushed the row-plantings of trees in Morrow Swamp in an effort to understand the relationship of vegetation and hydroperiod. In doing so, they killed thousands of trees, such as the cypress trees that Authority ecologist, Brian Winchester, found that grew to 6-8 inches in diameter and suddenly died. This tree mortality was likely due to problems with water depths and hydroperiods, as suggested by the healthier cypress trees lining the shallower fringe of the marsh. Morrow Swamp operates as a basin with a perched water table atop compacted, relatively impermeable overburden. Beneath the dry overburden is moist soil, so there is no groundwater connection between the marsh and the surficial aquifer. According to Mr. Carter, sand is 15 times more permeable than overburden. Morrow Swamp presents numerous shortcomings, but not to alligators, who find ample food and habitat in and about the deep marsh. More importantly, the emergent-zone vegetation within Morrow Swamp is sequestering nutrients and thus providing water-quality functions. Unfortunately, the deeper water supports only floating vegetation, which is much less efficient at sequestering nutrients, and less diverse than the shallower emergent vegetation, so the excessive depths of Morrow Swamp limit its water-quality functions. Although short of a model wetlands reclamation project, Morrow Swamp was an important milestone in the development of wetlands reclamation techniques and clearly functions as a deep shrub marsh today. Permitted in 1985, constructed in 1986, and released in 2002, 214-acre Ag East (PC-SP(1C)) was built on the knowledge acquired from Morrow Swamp. At Ag East, which is just northeast of Morrow Swamp, the reclamation scientists, planting a large variety of trees, focused on water levels and hydroperiods. The reclamation scientists engineered a wetland system with less open water than Morrow Swamp. They also inoculated the surface with a layer of organic mulch material 2-4 inches thick. However, the design of Ag East again incorporated mechanical devices to control water levels. A weir at one corner of Ag East contains boards; by removing or adding boards, reclamation scientists could control the water depths behind the weir. The deep marsh within Ag East is excessively deep with an excessively long hydroperiod. In certain respects, Ag East has functioned better than Morrow Swamp, although there is some question as to vegetative mix establishing the site and the associated functions that the vegetation will provide. Again, though, Ag East features a functioning deep marsh. One clear shortcoming of Ag East was the failure to create appropriate upland habitat, such as pine flatwoods, around the wetlands, so that wetland species could find appropriate uplands habitat for breeding, nesting, or feeding. The CDA notes the availability of quarterly water quality monitoring data, over a five-year period, for pH, dissolved oxygen, conductance, and total phosphorus, among other parameters, but the results are not contained in this record. Permitted in 1983, constructed by 1986, and released in 1995, 8.4-Acre Wetland (FG-83(1)), which was targeted for 8.4 acres of wetland forested mixed, represents an early use of topsoil, which was a good seed source for herbaceous species and helped increase the effective depth of overburden. As noted above, shallower overburden discourages tree growth past a certain stage. However, 8.4-Acre Wetland also uses a water- control weir to control water depths on the reclaimed wetland. Despite its smaller size than Morrow Swamp or Ag East, 8.4-Acre Wetland was a more ambitious project hydrologically, as it attempted to replace a seepage wetland with a seepage wetland that would receive water from the surrounding uplands. Unlike Morrow Swamp and Ag East, 8.4-Acre Wetland was designed to reclaim only forested wetlands, not forested wetlands and marsh wetlands. Unfortunately, 8.4-Acre Wetland did not re-create a seepage wetland due to excessively deep water and excessively long hydroperiods. Emphasizing instead the creation of microtopography, the reclamation scientists added sand-tailings hummocks within the deeper marsh, effectively lowering the water table under the mound, and planted wetland herbaceous and forested species that could not tolerate the wetter conditions around the hummock. The evidence is conflicting as to the success of these hummock plantings, but the idea was sound. Parts of 8.4-Acre Wetland are at least half infested with cattails, and sizeable areas within 8.4-Acre Wetland are reclaimed marsh, not swamp--despite the attempt of the reclamation scientists to reclaim forested wetlands only. Permitted in 1985, constructed by 1987, and released in 1998, 84(5) (FG-84(5)) was targeted for 17.1 acres of wetland forested mixed and 2.3 acres of freshwater marsh. This site is notable for its soil characteristics. After two soil borings, Mr. Carter could not find a water table in the first 80 inches beneath the surface. However, he found an A horizon, but the CDA notes that this site received 18 inches of donor topsoil. Even more recent reclamation projects have tended to yield deep marshes. Permitted in 1997, constructed in 2002, and not yet released, 198-acre P-20 (FG-HC(9)) exists behind the berm that remains from the ditch and berm system that existed during mining. The sole outlet of the marsh is a discharge pipe, which, presently clogged with vegetation, appears to be contributing to excessively high water depths and excessively long hydroperiods, resulting in an abrupt transition from marsh to uplands without the zonal wetlands associated with natural transitions from marsh to uplands. Water in the marsh spreads into the surrounding uplands, which are planted with upland trees. The berm also prevents natural communication between the marsh and the floodplain of Horse Creek, which is a short distance to the west of P-20. In the reclamation projects described above, more often than not, the reclamation scientists reclaimed deep marshes while targeting shallower wetland systems or at least shallower marshes or swamps. By the mid-1980s, wetlands reclamation scientists were addressing more closely hydrology, vegetation, topsoil, and surrounding upland design, and DEP was imposing post-reclamation monitoring requirements on the phosphate mining companies. One common feature of most of these deep-marsh reclamations is their reliance upon artificial drainage outlets. Inadequate or nonexistent maintenance of these outlets causes excessive water depths for excessive periods. Additionally, reliance on artificial drainage outlets betrays the choice not to attempt more sophisticated design and more precise contouring of the post-reclamation landscape. Improvements in the design and execution of contouring could produce relief from the deep- marsh tendencies of reclamation practices in at least three ways: by flattening the slopes of the edges of the marshes to encourage the formation of more emergent vegetation and wet prairie fringes; introducing a more irregular microtopography in the submerged bottom, including hummocks, to develop greater habitat diversity; and engineering and grading more closely the topographical outlets of marshes, instead of relying on manmade drainage devices that required more maintenance than they received, to better reproduce pre-mining drainage features and access effectively the reclaimed water table. After 8.4-Acre Wetland, reclamation scientists produced, in addition to the P-20s, other marshes with better fringes, so as to support wet prairie fringes, but the most, and evidently only, successful example of shallow-wetland reclamation over an extensive area is PC-SP(2D) (SP-2D). Permitted in 1988, constructed in 1992, and released in 1998 (wetlands), SP(2D) comprises 97 acres of forested and herbaceous wetlands. According to Mr. Winchester, SP-2D exhibits a more natural hydroperiod than the other reclaimed wetlands that he studied. Mr. Winchester visited SP-2D during the dry season, and the shallow wetland was appropriately dry, even though other reclaimed wetlands at the time were inappropriately wet. Mr. Winchester also found less than ten percent coverage by exotic vegetation. Wet prairie fringes deeper marsh at SP-2D, rather than forming larger areas of isolated or connected wet prairie, but this wetland achieves extensive shallow-water areas. According to Authority ecologist Charles Courtney, the marsh of SP-2D appears fairly healthy and contains appropriate vegetation. SP-2D contains sawgrass and forbs, including maidencane and duck potato. Crayfish occupy the wet prairie fringe and are eaten by white ibis and otter. The marsh zonation found at SP-2D is partly a result of appropriate soil reclamation. Mr. Carter found good communication between the shallow marsh at SP(2D) and the surficial aquifer. In the wet season, Mr. Carter found the water table at eight inches above grade, demonstrating that the dry conditions found by Mr. Winchester during the dry season did not extend inappropriately into the wet season. Mr. Carter determined that the first four inches of the wetland is mulched topsoil overlying at least four feet of sand tailings. The subsurface soils were appropriately saturated. Permitted in 2002, constructed in 2003, and not yet released, 1.3-acre FCL-NRM(1) (Regional Tract O, ACOE #362) also contains wet prairie vegetation, but the value of this site, for present purposes, is limited by two factors: its age and its use of a technique not proposed for OFG. Regional Tract O, ACOE #362, is a new site that showcases the success--one year after planting--of the technique of cutting wet prairie sod at a donor site and laying it at the recipient site. Sod-cutting is a good technique, earlier used at Morrow Swamp, but is more expensive than the topsoil transfer proposed for OFG. The reclamation of forested wetlands has improved in recent years. To some extent, the history of forested-wetlands reclamation tracks the path of herbaceous-wetlands reclamation: deeper water for longer periods followed by instances of shallower water for shorter periods. Early in the forested-wetlands reclamation process, reclamation scientists and phosphate mining companies favored cypress trees due to their tolerance of a wider range of water depths and hydroperiods than other wetland trees. However, cypress trees do not occur naturally in the forested wetlands being mined in this part of Florida. Over time, reclamation scientists deemphasized the number of species of wetland trees and emphasized instead species that corresponded to those in comparable forested wetlands. Herbaceous and forested wetlands present different reclamation challenges due to the time each type of wetland requires for revegetation. An herbaceous wetland takes 1-2 years to revegetate, but a forested wetland may take 1-2 decades to gain "really good structure," as Dr. Clewell testified. In addition to taking longer to establish than herbaceous wetlands, forested wetlands require two stages of plantings because the groundcover cannot be added until 4-5 years after planting the trees, so that the trees provide sufficient cover for the appropriate groundcover to grow. The hydrological requirements of different forested wetlands vary. IMC will be reclaiming mostly mixed wetland hardwoods (44 acres), bay swamps and wetland forested mix (each 18 acres), and hydric pine flatwoods (15 acres). All of these communities require water depths equal to those required by wet prairies. Hydric pine flatwoods have a very short hydroperiod-- shorter even than the wet prairie. Bay swamps have a long hydroperiod, comparable to that of the freshwater marsh. And mixed wetland hardwoods and wetland forested mix have hydroperiods roughly equal to that of the wet prairie. The dryness required by mixed wetland hardwoods, wetland forested mix, and especially hydric pine flatwoods make them difficult to reclaim. At first glance, the longer hydroperiod of the bay swamp would seem to make it easier to reclaim, among forested wetlands, but two factors make the bay swamp the most difficult of forested wetlands to reclaim. First, as defined in these cases, the bay swamp provides a critical seepage function, which is hard to create because of its reliance on a precise reclamation of topography, hydrology, and soils, at least with respect to the soil-drainage characteristics. Second, the mucky soils of the bay swamps are difficult to reclaim, given their slow rate of formation, as noted above. Thus, even without the requirement of the dominance of bay trees within the bay swamp, as defined in these cases, bay swamps are very difficult to reclaim, as reclamation experience bears out. An early reclaimed forested wetland is 4.9-acre Bay Swamp (BF-1), which was created on land that had been cleared, but at least large portions of it were never mined, so, except possibly for a disturbed A horizon, the pre-mining soils and site hydrology were intact. Permitted under a predecessor program in 1979, constructed by 1980, and released in 1982, Bay Swamp earned restrained praise from the Authority as, with Dogleg Branch, one of the two highest-functioning reclamation sites. This praise is quickly conditioned with the warning that Bay Swamp did not reclaim as a bay swamp, but as another type of forested wetland, albeit a relatively high functioning one. For all these reasons, Bay Swamp is of limited relevance in evaluating the success of forested wetlands reclamation projects. However, in commenting upon Bay Swamp, the CDA offers some insight into the evolution of reclamation design standards and objectives and the optimism of reclamation scientists when it notes the difficulty of establishing loblolly bay-dominated swamps, "apparent[ly because they require] perennially moist, or wet, soil that is not inundated. Heretofore, these moisture conditions have not been specified as an objective in reclamation design. If these moisture conditions were targeted for reclamation, loblolly bay swamp creation would likely become routine." Another candidate for a reclaimed bay swamp is Lake Branch Crossing (BF-ASP(2A)). Permitted in 1993 and modified in 1997, constructed in 1996, and not yet released, 13.4-acre Lake Branch Crossing contains numerous sweet bays, loblolly bays, and black gums. However, this site was replanted with 4000 trees in mid-2002, and over one-quarter of these trees are displaying signs of stress, so they may not survive. Lake Branch Crossing is bound by a berm with culverts, which may not share a common elevation. Lake Branch Crossing is another excessively deep wetland with an excessively long hydroperiod. Although Lake Branch Crossing exhibits some seepage, it derives its water from a nearby CSA with a much-higher elevation and thus does not compare to the seepage systems to be reclaimed at OFG. The final candidate for a reclaimed bay swamp is Hardee Lakes (FG-PC(1A)), which is a 76-acre wetland forested mixed at the top of the Payne Creek floodplain. Permitted in 1989 and modified in 1994, constructed by 1991, and released in 2000, Hardee Lakes (which is not Hardee Lakes topsoil--the uplands site described above) contains a narrow seepage slope between the berm along the edge of a reclaimed lake and the natural Payne Creek floodplain. Although Hardee Lakes contains some bay trees and operates as a seepage wetland, the setting is inapt for present purposes, given the narrow slope descending from the nearby reclaimed lake, which provides the water for the seepage system. Like Lake Branch Crossing, Hardee Lakes presents an unrealistically easy exercise in the reclamation of a seepage slope and is therefore irrelevant to these cases. At OFG, broader seepage slopes will receive much of their water from upgradient groundwater that is not derived from a lake or other surface water, so the reclamation scientists must reclaim more accurately the topography, hydrology, and soils, again, at least with respect to soil-drainage characteristics. Reclamation scientists monitored Hardee Lakes following reclamation. Besides the seepage slope described in the preceding paragraph, Hardee Lakes contains shallower wetlands, including productive wet prairie and mixed wetland hardwoods that are growing without the need of hummocks, but these areas appear to be more isolated than extensive. As IMC restoration ecologist John Kiefer noted, shallow swamps are better than deep swamps. Again, the tendency toward deeper reclaimed systems, even recently, has plagued reclaimed forested wetlands, such as Lake Branch Crossing, as it has plagued reclaimed herbaceous wetlands. Permitted in 1992 and modified in 1998, constructed in 2002, and not yet released, North Bradley (KC-HP(3) and PD-HP(1B)) was reclaimed for 12 acres of wetland hardwood forest, 21 acres of wetland conifer forest, and 87 acres of herbaceous marsh. North Bradley suffers from poor communication with its water table, as evidenced by Mr. Carter's discovery of a perched water table under the marshes and an excessively deep water table, at 48 inches, under the forested wetlands, as compared to a water table at 40 inches under the uplands. Although the marsh is present, the forested wetland is largely absent. The SP(2D) of forested reclamation projects is Dogleg Branch (L-SP(12A)). The 19.8-acre wetland component of Dogleg was targeted exclusively for wetland hardwood forest. Another 83 acres of Dogleg was reclaimed as upland hardwood forests. Permitted in 1983, constructed by 1984, and released in 1991 (uplands) and 1996 (wetlands), Dogleg's hydrology is better, as one reclaimed area reveals seepage from a mesic area sheetflowing into the stream channel, which was also reclaimed and is discussed in the following section. Due to its proximity to the reclaimed wetlands, this mesic area was probably part of the reclaimed uplands. According to the CDA, Dogleg received transfers of its own mulch and received several phases of tree plantings over several years. The CDA notes that Dogleg was the first forested wetland mitigation project under Florida's dredge and fill rules. Trees were established in part by the transplanting of rooted tree stumps. Forest herbs and shrubs and mature cabbage palms were transplanted from nearby donor sites. Despite these and other efforts, according to the CDA, "design flaws attributable to a lack of prior restoration experience required costly mid-course corrections." Due to high tree mortality, trees had to be replanted over 11 years. The CDA concludes that the problem was a depressed water table due to nearby ongoing mining operations--if Dogleg had a ditch and berm system, it certainly did not have recharge wells. Following mining, according to the July 1995 semi-annual report, over 30 acres of mine pits immediately east and north of the unmined headwaters of Dogleg were filled with sand tailings, which then released "[c]onsiderable in-bank storage of ground water from this sand[, which] has seeped ever since through Dogleg Preserve and into the replacement stream." Prior to the cessation of mining, though, Dogleg suffered dehydration. According to the CDA, due to the drawdown, the topsoil dried out, and the overburden, on which the topsoil had been placed, hardened in the dry season, retarding root extension. The actual soil conditions are described in greatest detail in the July 1995 semi-annual report, which states that 12 inches of topsoil overlaid the "overburden fill," which was "clayey sand." Repeated and persistent replanting of trees, seedlings, and saplings eventually succeeded in establishing an appropriate wetland forest, which, given the prevalence of hardwoods, would constitute the successful reclamation of a mixed wetland hardwoods community, given the negligible representation of cypress trees and other conifers at the site. As reclaimed, Dogleg hosts 24 different species of wetland trees, including all that occur on OFG. Dogleg's forested wetlands are functioning well, although the reclaimed uplands have a major cogongrass infestation. Permitted in 1985, constructed by 1987, and released in 1998, 19.4-acre FG-84(5) (84(5)) was targeted almost entirely for wetland forested mixed, and small areas within 84(5) have achieved this objective. However, reclamation scientists planted so many cypress trees that their dominance today precludes the application of the wetland forested mixed label to the overall wetland. Nonetheless, 84(5) is a relatively high- functioning forested wetland community today. Engineered to contain hummocks, 84(5) also featured the use of transferred topsoil overlying cast overburden to a depth of at least six feet. Despite the presence of the topsoil layer, the proximity of the cast overburden to the surface, without an intervening sand layer, may have discouraged the formation of an appropriate water table. Although drawing on a lake, 84(5) displayed, in one soil boring during the middle of the wet season, no water table--not even a perched one--through the first 80 inches below grade. A small strip of saturated soil existed at the surface, but the highly compacted and impermeable overburden prevented communication between the wetland and the surficial aquifer. The slopes of 84(5) are also excessively steep. Substantial efforts are required to reclaim the shallow herbaceous wetlands and forested wetlands to be reclaimed at OFG. Deeper marshes and swamps require less effort to reclaim, although they develop more often than targeted when the reclamation scientists overshoot the mark as to hydrology. For shallow wetland systems, which are more important to reclaim, the failures far outnumber the successes, even today, so considerable caution is required in mining high-functioning shallow wetland systems and considerable effort is required in their reclamation. No bay swamps have been reclaimed, except under atypical conditions. Streams The successful reclamation of streams has also proven elusive to reclamation scientists and the phosphate mining industry. Although only one reclamation of a high-functioning, extensive shallow herbaceous wetland exists, fringe and small- scale shallow wetlands have been reclaimed. The difference between the reclamation of shallow herbaceous wetlands and streams is that reclamation scientists have benefited from 25 years of trial and error in engineering shallow wetlands. No similar history exists in the engineering of streams. Only nine stream-reclamation sites are identified in these cases, and, as DEP contends, only one of these sites is successful: Dogleg Branch. And even Dogleg Branch fails to access its floodplain properly and probably never will. The biggest difference between shallow wetlands reclamation and stream reclamation is that, until OFG, the phosphate mining industry has not intensively designed stream-reclamation projects, so IMC and its reclamation scientists have little experience on which to draw. A wetlands-reclamation practice, as found in a Florida Institute of Phosphate Research study described by Mr. Irwin, has been to reclaim wetlands downslope from their pre-mining location. Concentrating reclaimed wetlands downslope facilitates the re-creation of supporting hydrology. For OFG, IMC proposes to relocate wetlands downslope--probably to good effect, given the reversion of OFG to cattle ranching, post- reclamation. However, an adverse aspect of this practice has been the mining of upslope, lower-order tributaries and their replacement with downslope deeper marshes. Although difficult to quantify, this and similar reclamation practices have resulted in the destruction, by phosphate mining, of many lower- order streams and their permanent loss to the watershed and ecosystem. When attempting to reclaim streams, rather than convert them to downslope marshes, the phosphate mining industry and reclamation scientists have enjoyed little success. Two reasons likely explain this poor record: the complexity of the functions of a lower-order stream system, including its riparian wetlands and floodplain, and an excessive reliance on the ability of streams, post-reclamation, to self-organize. The importance inherent in the stream, its riparian wetlands, and its floodplain, as a functional unit, is reflected in the decision of IMC to extend the no-mine area to Horse Creek and its 100-year floodplain. Dr. Durbin accurately observes that IMC and its 100-year floodplain are, respectively, the first and second most important natural resources present at OFG. Horse Creek's tributaries and their floodplains are important for many of the same reasons. Relying upon reclaimed systems to self-organize is an essential element of effective reclamation. Natural and anthropogenic forces shape all of the natural systems present at OFG, and these forces will shape the reclaimed systems. Good reclamation engineering accounts for the dynamic nature of these reclaimed systems by establishing initial conditions, such as natural outfalls instead of weirs and culverts, that can evolve productively in response to the forces to which they are subject and eventually become high functioning, self-sustaining ecosystems. On the continuum between intensively engineered reclamation projects and reclamation projects that rely on self- organization, stream-reclamation projects in the phosphate mining industry have so heavily emphasized the latter approach over the former that they may be said to have reclaimed streams incidentally. That is, reclamation scientists have reclaimed streams by contouring valleys so that the erosive process of flowing water would form a stream channel over time: often, a long time. At DEP's urging after the issuance of the Altman Final Order, IMC has introduced a much more intensively engineered stream-reclamation effort in its Stream Restoration Plan. The main problem in assessing the likelihood of the success of the highly engineered Stream Restoration Plan is its novelty. On the one hand, the incidental reclamation of streams typically has been so slow in restoring functions that a more intensively engineered plan could generate quick gains, at least in the replacement of the functions of low-functioning stream systems, such as those that have been substantially altered by agricultural uses. On the other hand, the Stream Restoration Plan has little success--and no engineered success--on which to build, and misdesigned elements could take longer to correct than the undesigned elements in an incidentally reclaimed stream. Thus, when the uncertainties of successful stream reclamation are combined with the complex functions of lower-order tributaries, their riparian wetlands, and their floodplains, the higher- functioning streams at OFG are less attractive candidates for mining and reclamation than even the shallow wetlands discussed above. Horse Creek's tributaries are not necessarily low- functioning due to their status as intermittently flowing, lower-order streams. Even intermittently flowing, lower-order streams, such as all of the tributaries of Horse Creek, restrict the erosion of sediment into higher-order streams, uptake nutrients, maintain appropriate pH levels, and provide useful habitat for macrobenthic communities, macroinvertebrates, amphibians, and small fish. Intermittently flowing lower-order streams attenuate floodwaters by diverting floodwaters into the streams' floodplains, thus reducing peak flows, extending the duration that floodwater is detained upstream, and increasing groundwater recharge and, thus, streamflow. Intermittently flowing lower-order streams also supply energy for higher-order streams and the organisms associated with these stream systems, as organic material from vegetation, algae, and fungi in the lower-order streams eventually is flushed downstream to serve as food sources to downstream organisms. The functions of streams, including intermittently flowing lower-order streams, become even more complex and difficult to replace when considered in relation to the functions of the riparian forested wetlands associated with many lower-order streams, such as the Stream 1e series. The riparian forested wetlands provide additional attenuation of floodwaters, as the trees impede the flow of floodwater more than would ground-hugging herbaceous vegetation. Mature trees lining the stream provide a canopy that can cool the waters in the warmer months (thus reducing water loss to evaporation), provide downstream food in the form of leaf litter in the seasonal loss of leaves, shield interior water and habitats from the effects of wind, provide habitat for feeding and hiding for wildlife, and protect the channel from the impact of cattle (thus reducing the damage from the production of waste and turbidity and destruction of the channel and vegetation). The riparian forested wetlands are important in the sequestration of nutrients. If accompanied by flow-through wetland systems, such as those present in the Stream 1e series, riparian forested wetlands display a complex interrelationship between the roots and soils that contributes to improved water quality, among other things. The riparian forested wetlands also provide microhabitats whose detail and design would defy the restoration efforts of even the most dedicated of stream- restoration specialists, of whom IMC's stream-restoration scientist, John Kiefer, is one. For some of the stream-restoration projects, DEP explicitly permitted or approved the reclamation of a stream. For other such projects, DEP, at best, implicitly permitted or approved the reclamation of a stream. Four of the projects are tributaries to the South Prong Alafia River and are in close proximity to each other. From upstream to downstream, they are Dogleg Branch, whose forested wetland component has been discussed above; Lizard Branch (IMC-L-SP(10)); Jamerson Junior (IMC-L-CFB(1)); and Hall's Branch (BP-L-SPA(1)). Hall's Branch is about 4-5 miles upstream from the confluence of the South Prong Alafia River and North Prong Alafia River. All four of these reclaimed streams are now part of the Alafia River State Park. As noted above, Dogleg, a 19.8-acre wetland hardwood forest and 83-acre upland hardwood forest, was constructed in 1984 and is the oldest of these four reclamation sites adjoining the South Prong Alafia River. Next oldest is Hall's Branch, which was permitted as a 3.8-acre wetland hardwood forest in 1982, constructed by 1985, and released in 1996. Next oldest is Jamerson Junior, which was permitted as a 4.3-acre wetland forested mixed in 1984, constructed in 1986, and released in 1996. Ten years younger than the others is Lizard Branch, which was permitted in 1983 and modified in 1991, constructed in 1994, and released in 1996; some question exists as to its target community, but it was probably a swamp. The reclaimed stream at Dogleg Branch is part of a second-order stream, although the CDA reports that Dogleg Branch was a first-order stream. Pre-mining, Dogleg Branch and Lizard Branch joined prior to emptying into South Prong Alafia River. Portions of the record suggest that the reclaimed stream lies between unmined stream segments upstream and downstream, although one exhibit, cited below, implies that the mining captured the point at which the stream started. The CDA and the July 1995 semi-annual report state that the headwaters of Dogleg were unmined or preserved. The CDA adds, with more detail than the other sources, that the headwater and first 600 feet of the stream were unmined, and the next 1000 feet, down to the forested riparian corridor of South Prong Alafia River, was mined. Due to its detail, the CDA version is credited, as is the July 1995 semi-annual report: the headwaters of Dogleg Branch are unmined. The July 1995 semi-annual report states that the stream-reclamation component of Dogleg Branch required persistence, as did its forested wetlands component. In 1987, one year after the filling of the mine cuts with sand tailings, as described above, it was necessary to cut a new channel, because the gradient of the old reclaimed channel was too shallow and forced water to back up in the unmined headwaters. Reflective of the age of the reclaimed stream, the understory vegetative species associated with Dogleg Branch are more successional, having replaced the lower-functioning pioneer vegetative species that first predominated after reclamation. As a stream-reclamation project, Dogleg Branch has achieved close to the same success that it has achieved as a reclaimed wetlands forest or that SP(2D) has achieved as an extensive herbaceous shallow water wetland. The slope of Dogleg Branch's reclaimed channel is steeper than the slopes of its unmined channels, and the reclaimed segment, which functions well vertically within the banks of the channel, does not access its floodplain properly, largely due to its entrenched nature. Due to the entrenchment underway, it is unlikely that the reclaimed segment of Dogleg Branch will ever communicate with its floodplain, as its unmined segments do. Entrenchment is a measure of channel incision-- specifically, the width of the floodprone area, at a water level at twice bankfull, divided by the bankfull width. Entrenchment may cause excessive erosion, which may result in adverse downstream conditions, such as turbidity and lost habitat. Proceeding perpendicular to the flow of the water, entrenchment extends the channel into the riparian wetlands or uplands alongside the stream, dewatering any nearby wetlands and disturbing the local hydrology. Especially if entrenchment is associated with head-cutting, which operates up the streambed, the resulting erosion deepens the channel sufficiently that the water in major storm events can no longer enter its floodplain, but rushes instead downstream. Although the failure of Dogleg Branch to access its floodplain would not affect macroinvertebrates, which do not use the floodplains, the failure of the reclaimed stream to access its floodplain harms fish, which cannot access the floodplain during high water levels to forage, spawn, and escape predators or high water volumes, and reduces valuable aquatic-upland ecotones. This failure also reduces the ability of the stream to attenuate floodwaters. By chance, Charlotte County's stream- restoration expert Frederick Koonce visited Dogleg Branch shortly after a June 2003 storm event and saw the water from the stream enter the floodplains adjacent to the unmined segments of Dogleg Branch, but not the reclaimed segment. The less-rigorous approach of incidental stream restoration, at least in the mid-1990s, is evident the summer 1994 semi-annual report on Dogleg Branch, in which Dr. Clewell provides a detailed discussion of the biological aspects of the reclamation of this site. Implying that the incidental stream element of the Dogleg reclamation project may be nine years younger than provided in the parties' stipulation, Dr. Clewell writes: The temporary land use area was abandoned and reclaimed during the autumn of 1993. The perimeter canal was filled and the access road removed between Dogleg marsh and the unmined tip of original Dogleg Branch. Within a few days of a site inspection on December 2, 1993, final grading and revegetation had been completed, and water was discharging from Dogleg marsh into unmined Dogleg Branch for the first time ever. The water was free of turbidity. The entire connection had been sodded with bahiagrass turf. Dogleg Branch enjoys good water quality. On the two days that Charlotte County water quality scientist William Dunson tested its waters, in October 2003 and March 2004, the reclaimed Dogleg Branch had dissolved oxygen of 6.8 and 8.6 mg/l, iron of 325 and 212 ug/l, manganese of 41 and 22 ug/l, and aluminum of 160 and 132 ug/l. The Class III water standard for dissolved oxygen is 5 mg/l, except that daily and seasonal fluctuations above 5 mg/l must be maintained. The Class III water standard for iron is no more than 1.0 mg/l (or 1000 ug/l). There are no Class III water standards for manganese and aluminum. Dogleg Branch also passed chronic toxicity testing for reproductivity and malformation. However, Dogleg Branch is distinguishable from at least one of the OFG streams. Dogleg Branch is a much less complex restoration project because reclamation scientists did not need to re-create headwaters, the first 600 feet of stream downstream of the headwaters, or flow-through wetlands. Also, the mined segment of Dogleg was much shorter than the mined segment of the Stream 1e series: 1000 feet versus 2039 feet for the Stream 1e series. Betraying an emphasis on forested wetlands to the exclusion of streams, Dr. Clewell places Hall's Branch a close second to Dogleg among stream-reclamation projects. However, DEP properly did not add a second stream to its list of successful stream-reclamation projects. Reclaimed Hall's Branch is not close to performing the functions of reclaimed Dogleg Branch, and, because of the large gap between Dogleg and all of the other reclaimed streams, it is irrelevant which of them occupies second place. The most visible shortcoming of the reclaimed stream at Hall's Branch is its color. Parts of the water in the reclaimed stream within Hall's Branch are highly discolored with iron flocculent leaching from the surrounding mesic forest and shrub communities. Mr. Dunson's water quality tests in reclaimed Hall's Branch, in October 2003 and March 2004, revealed iron levels of 117,000 ug/l and 4025 ug/l, which are 117 times and 4 times the Class III water standard. Dissolved oxygen was also well below Class III standards at 1.5 mg/l and 2.1 mg/l. Manganese was 1880 ug/l and 392 ug/l, and aluminum was 226 ug/l and 35 ug/l. Like Dogleg Branch, Hall's Branch also passed chronic toxicity tests for reproductivity and malformation. The hydrological connection between the surficial aquifer and the reclaimed stream at Hall's Branch is probably interrupted. Mr. Carter, who did not visit Dogleg Branch, inspected Hall's Branch and found the water table 12 inches below the surface. A soil sample reveals overburden with a layer of topsoil. The CDA seems to indicate that part of Hall's Branch was backfilled with sand tailings of an unspecified depth and part of it was merely contoured overburden--a pattern suggestive of that planned for OFG. The CDA states that trees were planted in mulched areas. The reclaimed forest is dominated by cypress, not the targeted wetland hardwoods. Jamerson Junior is a 4.3-acre reclamation site permitted as a wetland forested mixed community in 1984, constructed by late 1985, and released in early 1996. Part of the reclaimed stream is a second-order stream. Like Hall's Branch, Jamerson Junior also shows signs of orange-colored water leaching in to the stream from the nearby mesic zone. However, the water quality in Jamerson Junior is closer to the water quality in Dogleg Branch than Hall's Branch. Mr. Dunson's iron readings, in October 2003 and March 2004, were 583 ug/l and 195 ug/l, which are within Class III standards. Dissolved oxygen was slightly higher than at Dogleg Branch: 7.0 mg/l and 8.0 mg/l. Manganese was 136 ug/l and 21 ug/l, and aluminum was 391 ug/l and 101 ug/l. However, Jamerson Junior failed chronic toxicity testing for reproductivity, but passed for malformation. This is the only stream that IMC also tested for toxicity, and IMC obtained similar results, according to Dr. Durbin. Soil samples reveal a highly variable soil structure underlying Jamerson Junior. Subsequent reclamation work on the stream required the addition of material to change the elevation of the stream bed and possibly to change the drainage characteristics of the original backfilled material. On the day that Mr. Carter visited Jamerson Junior on August 14, 2003, he found the stream flowing. During the wet season, the water table should normally be expressed in the stream. Presenting a more interrupted relationship between the surficial aquifer and the stream than at Hall's Branch, Jamerson Junior displays no connection between the stream bed and water table, at least to a depth of 40 inches. A soil boring revealed water immediately underneath the stream bed, but, at about 15 inches beneath the bottom of the bed, the soil dried to moist; at 40 inches, Mr. Carter found the water table under the stream. Likewise, the Jamerson Junior channel was poorly integrated with the surrounding wetlands and uplands. At the banks of the stream, Mr. Carter did not find the water table within 80 inches of the surface, which is additional evidence of a discontinuity between the water table and the stream. Much of the reclaimed forested areas are mesic, not hydric. The reclaimed floodplains are narrower than the floodplains in the unmined adjacent area, and the slope of the reclaimed channel is steeper than the slope of the unmined channel. The reclaimed uplands are infested with cogongrass, although less than is present at Dogleg. Lizard Branch is a 6-acre reclamation site permitted as a swamp community in 1983 and modified in 1991, constructed by 1994, and released in 1996. Few of the planted gums and maples are surviving. The uplands surrounding the reclaimed area are infested with cogongrass, which has penetrated the shallower wetlands. Lizard Branch is one of the lowest- functioning forested wetlands. Lizard Branch joins Jamerson Junior as one of only two of six reclaimed stream sites to fail chronic toxicity testing for reproduction, although it passed for malformation. Lizard Branch had the highest two dissolved oxygen readings of all six sites tested by Mr. Dunson: 12.6 mg/l and 7.1 mg/l. Its iron levels were 547 ug/l and 352 ug/l. Manganese was second lowest, behind only Dogleg Branch, at 71 ug/l and 30 ug/l. Aluminum was second highest at 445 ug/l and 45 ug/l. Lizard Branch is an interesting, recent reclamation site for several reasons. Lizard Branch represents a relatively recent instance of the destruction of a stream without its re- creation and either the failure of the incidental reclamation of a stream or the subsequent permission by DEP to allow the permanent elimination of the stream. Mr. Winchester testified that he could not even find a stream at Lizard Branch. Charlotte County ichthyologist Thomas Fraser treated Lizard Branch as a stream, but grouped it with marshes in his analysis, apparently due to the lack of channel formation. The fact is that, despite any effort to reclaim a stream, little, if any, stream structure is present at Lizard Branch. However, a stream once flowed over the reclaimed portion of Lizard Branch. In the summer 1994 semi-annual report, Dr. Clewell notes that Brewster Phosphate received a dredge and fill permit in 1983 to dredge and fill the "headwaters of two streams, Dogleg Branch and Lizard Branch" in connection with the mining at Lonesome Mine. Dr. Clewell adds: The permit was issued with the stipulation that the streams and their attendant riverine forest would be restored on adjacent physically reclaimed lands, concomitant with mining. The permit further stipulated that restoration would be monitored and that semi-annual reports documenting progress in vegetational restoration would be submitted to [DEP.] In the report, Dr. Clewell notes that reporting on Lizard Branch has been "discontinued" and DEP issued a new permit in 1991. The 1991 permit modification is not part of this record, but the result was the elimination of a stream, or at least any signs of a stream ten years after construction. Three of the remaining reclaimed-stream projects were built at about the same time as Lizard Branch project. For only one of these projects did the reclamation scientists explicitly target a stream. Permitted in 1985 and subject to a consent order in 1996, constructed in 1991-92 and 1995, and not yet released, 9.6-acre Tadpole Wetland (H-SPA(1)) was targeted to be about one-third wetland forested mix and two-thirds freshwater marsh. Much cogongrass has infested Tadpole, whose stream enters the Alafia River floodplain and leads to a ditch that runs the remainder of the distance to a point close to the Alafia River. Tadpole's water passed chronic toxicity testing for reproductivity and malformation. However, its water violated Class III standards for dissolved oxygen, with readings of 2.8 mg/l and 2.1 mg/l, and for iron, with readings of 11,300 ug/l and 1100 ug/l. Manganese levels were 166 ug/l and 20 ug/l, and aluminum levels were 660 ug/l--the single highest reading among the four reclaimed streams tested--and 95 ug/l. Permitted in 1985, constructed by 1996, and not yet released, Pickle Wetland (H-SPA(1)) is a 34-acre site, 0.8 acres of which was to be reclaimed as stream. A deep marsh that requires treatment of its nuisance exotics, such as cattails and primrose willow, Pickle is just northeast of Tadpole and a few miles north of Morrow Swamp and Ag East. Pickle's stream is surrounded by uplands. Pickle is the only reclaimed stream of six tested to fail chronic toxicity testing for malformation, although it passed for reproductivity. Pickle has the lowest dissolved oxygen of the six reclaimed streams tested by Mr. Dunson: 0.8 mg/l and 1.2 mg/l. Its iron levels violated Class III standards in October 2003, with a level of 4230 ug/l, but passed in March 2004, with a level of 786 ug/l. Manganese was 127 ug/l and 72 ug/l, and aluminum was 107 ug/l and less than 5 ug/l. Permitted in 1991, constructed in 1995, and not yet released, Trib A ((BF-ASP(2A)) is a 120-acre site to be reclaimed as a wetland forested mix, but it includes a slough that empties into an unmined channel with streamflow. To the extent that a reclaimed stream channel is discernible on Trib A, nine years after the completion of its reclamation, the channel is much more steeply sloped than the adjacent unmined channel-- steeper than the two percent slope, beyond which sandy stream bottoms begin to erode. Not surprisingly, the reclaimed channel has begun to head cut and entrench. In an adjacent unmined area, a stream exists within a floodplain with a very flat slope. In the mined area, the reclaimed floodplain is steeper, suggestive of impeded communication between the reclaimed stream and its floodplain. The groundwater communication at Trib A is almost as interrupted as it was at Jamerson Junior. At Trib A, the uppermost 20 inches of soil was saturated, at the time of Mr. Carter's site inspection. Beneath a moist soil layer, the water table occurred at 40-50 inches deep. Parts of Trib A were topsoiled, but the next layer down was originally from an area below the C horizon. However, the soil-formation process is underway. Permitted in 1995, constructed by 1998, and not yet released, 17.6-acre File 20-2B and 70-3 Dinosaur Wetland (FG- GSB(7)) was reclaimed as a freshwater marsh. Dinosaur is due south of Morrow Swamp and is a headwater wetland. The site is still undergoing treatment for cattails. The record describes little, if anything, about the status of this stream. The last two stream-reclamation reclamations were built at least five years after the last pair. Again, DEP and the phosphate mining company identified a stream as a target for only one of the projects. Permitted in 1989, 1992, and 1998, constructed in 1999, and not yet released, South Bradley (KC-HP(1A) is a 171- acre site, 1.7 acres of which was to be reclaimed as stream. South Bradley is just north of Pickle. The channel is steeply incised and deep at points. The channel runs through forested and unforested areas. Charlotte County ichthyologist Thomas Fraser found iron flocculent in South Bradley and no fish within this area of the reclaimed stream, but three species of fish in a nearby area. Permitted in 1999, constructed by 2003, and not yet released, MU R Wetland H (KC-HB(1)) is a 4.8-acre site to be reclaimed as wetland hardwood forest. Monitoring has not yet begun for this site. Although a tailwater system receiving water from a ditch running to a lake, rather than a natural stream, the channel that has formed in MU R Wetland H does not join the existing downstream channel; the two channels are offset by 75-100 feet. Also, the reclaimed floodplain of MU R Wetland H is more steeply sloped than the floodplain of the adjacent unmined area. The slope of the reclaimed channel is steeper than the slope of the unmined channel, and, due to poor design parameters, the new channel is headcutting into the floodplain, which does not appear to be communicating appropriately with the stream. Combining a more steeply sloped reclaimed floodplain with a headcutting reclaimed stream means, among other things, substantially less communication between the stream and its floodplain. The hydrology of MU Wetland H appears to have been ineffectively reclaimed. In the forested wetland a short distance from the stream, the soil remained unsaturated until 80 inches deep. Closer to the stream, the soil was saturated at a depth of 18-20 inches, but the underlying overburden remained dry to a depth of 70 inches, indicating again a failure to reclaim the water table at appropriate depths. As with all of the almost countless reclamation sites on which the parties' expert witnesses copiously opined, MU R Wetland H is not well-developed in the record in terms of pre- mining conditions, design elements, construction techniques, and post-reclamation conditions. However, the dislocated stream that has formed within this reclaimed wetland stream reinforces the principle that even incidental stream reclamation requires some engineering. The excessive reliance upon a contoured valley to self-organize into a stream, as noted above, has impeded the progress of the science of stream restoration, as applied to mined land in Florida. This factor is unique to streams and does not apply to uplands and wetlands. However, another factor has impeded progress in reclaiming successful systems--whether uplands, wetlands, or streams. This factor is undue emphasis on the identity of post-reclamation vegetation, as compared to pre- mining or reference vegetation, at the expense of function. Charlotte County and the Authority stressed the process of the identification of vegetative species, at the expense of undertaking complex functional analysis and attempting to situate reclaimed systems in the process of energy consumption and production. In part, their cases relied on showing that past reclamation projects, as well as that proposed for OFG, do not replicate pre-mining or reference-site vegetation. An undue emphasis on species identity suffers from two major flaws. First, as Dr. Clewell and Ms. Keenan testified, reclaimed sites undergo stages of colonization, and, during early stages, less-desirable species, such as Carolina willow and wax myrtle, may predominate at more-desirable canopy-forming species succeed them. Ms. Keenan added that the life expectancy of Carolina willow, in this part of Florida, is about 25 years, and no reclaimed site older than 15 years is dominated by Carolina willow. Second, any measure of species identity risks the elevation of replication over function, as DEP has already recognized. A criterion of replication, for example, discredits a reclaimed site with a lower species-identity score because it has been colonized by a greater share of more-desirable species than occupy the reference site. DEP has wisely discontinued the practice of assessing reclamation success in partial reliance upon the Morisita's Index. This index measures the identity of species between two sites or the same site pre-mining and post-reclamation, as a criterion of successful wetlands reclamation. In a similar vein, DEP has recently recognized that vegetative analysis cannot preemption functional analysis, especially as to streams. This recognition is evidenced by a report entitled, "Riparian Wetland Mitigation: Development of Assessment Methods, Success Criteria and Mitigation Guidelines," which was managed by Ms. Keenan, revised May 10, 2001, and filed with the U.S. Environmental Protection Agency Grants Management Office (Riparian Wetland Mitigation). Riparian Wetland Mitigation notes the unsatisfactory history of stream reclamation projects with their emphasis on vegetation to the exclusion of stream hydrology and geomorphology. Riparian Wetland Mitigation states: The more recent methods [of stream restoration] recognize that streams are not simply water conveyance structures, but are complex systems dependent on a variety of hydrological, morphological, and biological characteristics. It is now recognized that in order to successfully restore or create a stream, hydrology, geology and morphology must be considered in the design. Noting the increasing extent to which the phosphate mining industry is applying for permits to mine more and larger stream systems and reclaim them on mined land, Riparian Wetland Mitigation frankly admits: The success criteria included in permits issued by the Department for these newly created streams have been based primarily on vegetational characteristics as is typical of most permits requiring wetland mitigation. However, vegetation alone is a poor indicator of stream function and community health. The results of regular permit compliance inspections of existing stream mitigation projects . . . have suggested that for several projects, although existing riparian vegetation was meeting or trending toward meeting permit requirements, problems existed with site hydrology and habitat quality of the stream channel itself. DEP thus adopted a rapid bioassessment method known as BioRecon, which tests macroinvertebrates, and added two other components: habitat assessment and physical/chemical characterization. DEP then performed "BioRecon, habitat assessment, and physical/chemical sampling" on eight reclaimed streams. Of the eight sites sampled, "only one passed the BioRecon and Habitat Assessment." (It is unclear whether Riparian Wetland Mitigation intends to imply that this site-- obviously, Dogleg Branch--also passed the physical/chemical composition, but it probably did.) DEP then tested smaller, unmined streams and confirmed that they, too, could pass BioRecon and Habitat Assessment. Riparian Wetland Mitigation states that DEP will collect data from comparable unmined streams and attempt to relate geomorphological, hydrological, and biological data to develop more refined criteria by which to assess proposed stream-reclamation projects. When DEP issues these criteria, the likelihood of success of a specific stream-reclamation project will be easier to assess. Until then, the assessment of a specific stream-reclamation project remains more difficult, in the context of past reclamation projects that have reduced or even eliminated important functions of streams. Although DEP's new guidelines for stream restoration will mark a transition from a predominantly vegetative to a multi-variable analysis of stream function, even a predominantly vegetative analysis of stream function is superior to IMC's analysis of streams predominantly from the perspective of flood control, as set forth in the CDA prior to the Altman Final Order. In a remarkably candid admission of the difficulty of reclaiming the many functions of unaltered stream systems, including their riparian wetlands and floodplains, IMC, in its response to RAI-102 in the CDA, states: Although it is impossible in a reasonable amount of time to expect to restore the functionality of the creek systems and associated uplands which historically occurred on the One site and are proposed for mining, it is reasonable to conclude that the reclamation plan restores the primary functions of the watershed[:] i.e. the capture, storage, distribution, and release of precipitation. IMC's subsequent discussion in RAI-102 emphasizes the efficacy of mitigation, from a biological perspective, but only as to stream systems whose pre-mining condition is substantially altered. For relatively unaltered systems, IMC's message remains that the reclamation of functions, besides water quantity, within a reasonable period of time is "impossible." Summary of Findings on Past Mitigation/Reclamation Any attempt at assessing past reclamation projects is impeded by the general lack of data presently available, for each reclamation site, describing pre-mining hydrological, topographical, soil, and geological conditions; the functions of pre-mining communities; reclamation techniques; post-reclamation hydrological, topographical, soil, and geological conditions; and the functions, as they have evolved over time, of reclaimed communities. For post-reclamation water tables, the auger and shovel work of one or two men substitutes for several years of weekly piezometer readings in the wet season and monthly piezometer readings in the dry season--correlated to daily rainfall data collected at the same site. For post-reclamation water quality, a few preliminary toxicity and a few dozen water quality readings--some under less than optimal conditions-- substitute for systematic water-quality testing of a broad range of parameters, again over years. For post-reclamation soils, one soil scientists finds an A horizon and concludes substantial formation has taken place within 10 years; another finds an A horizon--never the same one at the same place--and concludes topsoil transfer; and both are probably correct. Absent better data, reliable analysis is difficult because a wide variety of factors may have contributed to the successes of SP(2D) and Dogleg and the failures of too many other sites to list. Even so, a few facts emerge. IMC can reclaim extensive areas of uplands, deep marshes, and cypress swamps, although difficulties remain with each of these types of reclamation projects. With greater difficulty, IMC can reclaim pine flatwoods and palmetto prairies. With even greater difficulty, IMC can also reclaim forested wetlands, except bay swamps. Far more difficult to reclaim than the communities mentioned in the preceding paragraph are extensive shallow wetlands, seepage bayheads, and streams. Any finding of present ability to reclaim these systems must uneasily account for the numerous failures littering the landscape, the failure ever to reclaim successfully a bayhead as bay swamps typically occur in the landscape, and the unsettling fact that nearly all reclamation successes of shallow wetlands are small patches-- almost always far smaller than designed. Any finding of present ability to reclaim these systems must rely heavily on SP(2D) and Dogleg Branch and the design of the current reclamation plan. The probability of the successful reclamation of any community, but especially extensive shallow wetlands, seepage bayheads, and streams, requires careful analysis of each community proposed to be mined and each community proposed to be reclaimed. For each such community, it is necessary to assess its ultimate functions of consuming and producing energy within a robust, sustainable ecosystem. Additional Features of OFG, Mining, and Reclamation Introduction The preceding sections detail the ERP, CRP approval, and WRP modification and other mitigation sites involving the reclamation of uplands, wetlands, and streams. This section adds information concerning OFG in its pre-mining condition, the proposed mining operations, and the proposed reclamation. OFG IMC adequately mapped the vegetative communities at OFG. As Doreen Donovan, IMC's wetlands biologist testified, trained persons using the FLUCFCS system of classifying vegetative communities tend to fall into one of two categories: lumpers or splitters. Scale dictates FLUCFCS code in many cases. Where one biologist may designate a larger, more varied area with one code, another biologist may designate the same area with several codes. The purpose of FLUCFCS coding dictates the scale. Subordinating vegetative-identity analysis to functional analysis undermines the arguments of Charlotte County and the Authority for an unrealistic level of precision in this exercise. The discrepancies in vegetative mapping noted by Mr. Erwin were insignificant. Many were the product of scaling differences, as noted in the preceding paragraph. Some were the product of distinctions without much, or any, difference, given the context and extent of the proposed activities. For present purposes, absent demonstrated differences in wildlife utilization, groundwater movement, or soil, distinctions between, for example, xeric oak and sand live oak on ten acres are essentially irrelevant. In total area, as compared to the 4197 acres of OFG, the claimed discrepancies did not rise to the level of noteworthy. As for the wetlands at OFG, DEP's acknowledged expert in wetlands identification, Deputy Director Cantrell, personally visited OFG and confirmed the accuracy of the wetlands determinations made three years earlier in December 2000 when DEP issued a Binding Wetland Jurisdictional Determination, which remains valid through December 2005. Deputy Director Cantrell noted minor omissions that might total a couple of acres, but these are insignificant, again given the scale of the proposed activity. The sole material flaw in IMC's mapping of OFG is in the omission of floodplains of the tributaries from Map C-3, although Dr. Garlanger's hydrological analysis, described below, adequately considered the storage and conveyance characteristics of these floodplains. Proper analysis of the tributaries' functions, besides flood control, and proposals to reclaim them is impeded by IMC's failure to depict graphically the 2.3-, 25-, and 100-year floodplains. The record suggests that BMR may have waived any requirement for maps of the floodplains except for those of Horse Creek, but the record does not suggest that, if BMR actually waived this requirement, it thus insulated the CDA from scrutiny with respect to all the information that would have been contained in floodplain maps or assured IMC of favorable analysis of this missing information. Charlotte County hydrologist John Loper prepared floodplain maps, which are Charlotte County Exhibits 1762 (mean annual floodplain), 1763 (25-year floodplain), and 1764 (100- year floodplain). These are credited as accurate depictions of the floodplains of the tributaries of Horse Creek. Mr. Loper's maps reveal little difference between the 25- and 100-year floodplains over much of OFG, including the Panhandle. The two floodplains of Stream 3e are slightly different, but the two floodplains of the Stream 1e series are less noticeably different. Focusing on the 25-year floodplain, the only wide, lengthy floodplain outside of the no-mine area is the floodplain along the Stream 1e series, which is the widest band of floodplain outside the no-mine area. At places, the floodplain of the Stream 1e series is as wide as the corresponding floodplain of Horse Creek. Even at its narrowest, which is along Stream 1ee, the floodplain of the Stream 1e series is as wide as that of Stream 2e and wider than that of Stream 3e. No 25-year floodplain runs along ditched Stream 3e?. The only other portions of the 25-year floodplain contiguous to the floodplain of Horse Creek, but outside the no-mine area, are the large wet prairie at the head of Stream 9w, the large wet prairie at the head of Stream 5w, and the headwater wetlands of Streams 1w-4w. As already noted and discussed in more detail below, all of these wetland systems, including the headwaters of Streams 1w and 3e, are lower-functioning than the wetland system associated with the Stream 1e series. As noted above, over half of the area to be mined is agricultural and another quarter of the area to be mined is uplands consisting largely of sand live oak, pine flatwoods, and palmetto prairie. Accordingly, OFG is characterized by native flatwoods soils, which exhibit high infiltration rates, but restricted percolation due to underlying hardpan or loamy horizons. About one-fifth of the soils at OFG are xeric soils. The wet season water table in the wetter areas will be 0-2 feet below grade and in the uplands over 3 feet below grade. Nothing in the record suggests that IMC will have much difficulty in reclaiming agricultural land or sand live oak communities. Nothing in the record suggests that any of the sand live oak that will be mined is atypically valuable habitat. As noted above, the pine flatwoods and palmetto prairie are more difficult to reclaim, but the pine flatwoods and palmetto prairie at OFG are not atypical instances of these common upland habitats. Some of these communities have been stressed by the lack of fire, so that hardwoods, such as oaks, have become sufficiently established as to resist thinning by fire. Lack of fire has also resulted in overgrown vegetation in more xeric areas. Among forested wetlands, IMC will mine 43 acres of mixed wetland hardwoods, 12 acres of hydric pine flatwoods, 9 acres of bay swamps, and 6 acres of hydric oak forests. Among herbaceous wetlands, IMC will mine 95 acres of wet prairie and 67 acres of freshwater marsh. Map F-3 depicts these wetlands with color-coding for ranges of wetlands values, under the Wetland Rapid Assessment Procedure (WRAP), which is used by the U.S. Army Corps of Engineers. Following a weeklong investigation of wetlands at the Ona Mine, as well as other IMC mines in the vicinity, the U.S. Army Corps of Engineers expressly approved revisions to WRAP to accommodate local conditions at OFG. DEP used a different assessment procedure, but WRAP remains useful for general indications of wetlands function. The WRAP scoring scale runs from 0-1, with 1.0 a perfect score. For ease of reading, the following sections shall identify wetlands scoring below 0.31 as very low functioning, wetlands scoring from 0.31 to 0.5 as low functioning, wetlands scoring from 0.51 to 0.7 as moderate functioning, wetlands scoring from 0.71-0.8 as high functioning, wetlands scoring from 0.81-0.9 as very high functioning, and wetlands scoring from 0.91-1.0 as the highest functioning. The asymmetry of the labeling scheme is to allow differentiation among the wetlands in the highest three categories, which, at OFG, are disproportionately represented, as compared to the lowest three categories. The purpose of these descriptors is only to differentiate relative values. As already discussed, the Map F-2 series identifies existing wetlands alphanumerically and by community, and Map I-2 similarly identifies all post-reclamation communities. In contrast to all reclaimed wetlands, which, as already noted, start with an "E" or "W," all existing wetlands start with a "G" or "H." The ease with which freshwater marshes are reclaimed obviates the necessity of extensively analyzing the condition of marshes presently at OFG, absent evidence of atypical habitat value. In general, the wetland corridor of Horse Creek, as defined by the no-mine area, ranges in quality from very high functioning in Section 29, which is the southernmost end of Horse Creek in OFG, to high functioning north of Section 29. However, narrow fringes of this corridor north of Section 29 are low functioning. Starting from the south, in Section 29, three wetlands are outside of the no-mine area: H031/H032/H033/H034, the G005 wetland complex, and a fringe of the wetlands running adjacent to Horse Creek--the western edges of G262, G266, and G259A are outside of the no-mine area. H031 is the largest part of the H031 complex and is mixed wetland hardwoods. H032 is a small freshwater marsh, and H033 is a hydric oak forest of the same size. H034 is a slightly larger wet prairie. H033 is low functioning. The remainder are high functioning. IMC will reclaim the same communities, as an ephemeral wetland complex. Pre-mining and post-reclamation, this wetland drains into West Fork Horse Creek. Considerably larger than H031, the G505 wetland complex is the headwater wetland of Stream 1w. G512 is the largest component of the G505 wetland complex and is wetland forested mixed. G513 is the next largest component and is a bay swamp. G514 is a fringe wet prairie. Slightly larger than G514, G511 is hydric oak forest. G507 is mixed wetland hardwoods, G506 is a small freshwater marsh, and G505 is a cattle pond. The mixed wetland hardwoods and fringe wet prairie are very high functioning, the bay swamp is high functioning, and the remaining wetlands are moderate functioning. IMC will reclaim the G505 wetland complex as a single bay swamp. G262 and G266 are wet prairie and hydric rangeland, respectively. G259A is mixed wetland hardwoods. The wet prairie and hydric rangeland are moderate functioning, and the mixed wetland hardwoods is very high functioning. IMC will reclaim these wetlands as wet prairie. Section 20 contains the headwater wetlands of Streams 2w, 3w, 4w, and 5w. These are mostly marshes, and they are all low to moderate functioning. These systems have been heavily impacted by agricultural uses. IMC will reclaim these as headwater systems, mostly marshes. IMC will also create one small and one medium ephemeral wet prairie near the headwater wetland of Stream 4w. Section 19, which drains to West Fork Horse Creek, contains three wet prairies (H002, H005, and H006) and a complex consisting of a bayhead (H009A) surrounded by a mixed wetland hardwoods (H009), which is fringed by a small wet prairie (H008). These wetlands are all low to moderate functioning. IMC will reclaim the H008 complex with a bay swamp buffered by a temperate hardwood, and it will restore a cattle pond at the site of the H002 complex. The reclaimed bay swamp will drain to West Fork Horse Creek. Section 18 contains a very low functioning, small wet prairie (H056), which is the only wetland in one of the three lowest ranges of WRAP scores outside of the wetland corridor of Horse Creek. Section 18 also contains a small part of a large wetland that is mostly in Section 17. The latter wetland is addressed in the discussion of wetlands in Section 17. Section 17 contains the West and Central Lobes. The entire Central Lobe is in the no-mine area, but a large wet prairie (G188) abuts the wetlands in the no-mine area of the West Lobe. IMC will reclaim this wet prairie, which is low functioning, as improved pasture, with a strip of hardwood conifer mixed. Several wetlands unassociated with the West and Central Lobes are outside the no-mine area, but on either side of Stream 6w, which leads to the West Lobe. G183, which is the headwater wetland of Stream 7w, is a freshwater marsh, which is moderate functioning. IMC will not reclaim the existing portion of Stream 7w upstream of the no-mine area, so the connected headwater marsh will be reclaimed as an ephemeral wet prairie. South of Stream 7w is a group of four small wetlands: G089, G090, G091/G092, and G093/G094. G089 and G090 are very small wet prairies. G091 and G093 are freshwater marshes, and G092 and G094 are wet prairie fringes. G090 is low functioning, and G089 and G091 are moderate functioning. G093 is very high functioning, and G094 is high functioning. Even the maps on the February submittal CD are unclear, but it appears that G089 and G090 will be reclaimed as ephemeral wet prairies. IMC will reclaim G091 as a small freshwater marsh fringed by a large mixed wetland hardwood and G093 as a large freshwater marsh fringed on the east by a small mixed wetland hardwood. The last version of Figure 13B-8 depicts the small freshwater marsh as isolated, but the large freshwater marsh as ephemeral. IMC will also create two small ephemeral wet prairies due south of the West Lobe and one small ephemeral wet prairie just east of the north end of the West Lobe. About one mile west of Horse Creek is a large wet prairie surrounding a smaller freshwater marsh that has been ditched for agricultural purposes. Part of this wet prairie extends into Section 18. The portion of this system in Section 18 is low functioning; the rest of it is moderate functioning. IMC will reclaim this entire area as improved pasture, except for replacing a single cattle pond. Section 16 spans Horse Creek, but mostly covers an area east of the stream, including the East Lobe. The only wetland outside the no-mine area on the west side of Horse Creek is G076/G077, a freshwater marsh fringed by a wet prairie. This small wetland is moderate functioning, and IMC will reclaim it as an ephemeral wet prairie. East of Horse Creek lies Stream 5e and its flow- through wetland, G204/G205. Predominantly a wet prairie, G204 is low functioning. IMC will reclaim it as a bay swamp. A small fringe wet prairie (G177) lies at the south end of the East Lobe, outside of the no-mine area, but it is low functioning, and IMC will reclaim it as hardwood-conifer mixed. A mixed wetland hardwood (G096), which is moderate functioning, fringed by a wet prairie (G097), which is low functioning, lie just north of where the no-mine area of the East Lobe joins the main no-mine area along Horse Creek. IMC will reclaim this wetland as a freshwater marsh fringed on the east by a wet prairie, and this wetland will be connected to the wetlands of the Horse Creek corridor. A freshwater marsh (G058) lies outside the no-mine area just north of the northeast tip of the East Lobe. This wetland is moderate functioning. IMC will reclaim this site as improved pasture, but will create a small ephemeral wet prairie just to the west of G058 and a larger freshwater marsh to the west of the created wet prairie. Section 8 contains two large areas of wet prairie (G048 and G047) at the head of Stream 9w. These wet prairies are moderate functioning, as are a couple of small wet prairies in Section 8 at the western boundary of OFG. IMC will reclaim these areas mostly as improved pasture, although it will create a large, connected wet prairie over the southeastern part of G048, but extending farther to the south and east. This reclaimed wet prairie will form the headwater wetland of reclaimed Stream 9w, which, as already mentioned, will be shortened from its current length. The only other wetland in Section 8 and outside the no-mine area is a freshwater marsh (G052). This marsh is high functioning. IMC will reclaim this site with a marsh and wet prairie. Like Section 16, Section 9 spans both sides of Horse Creek. On the west side of Horse Creek is mixed wetland hardwoods (G055) fringed by hydric woodland pasture (G054). The mixed wetland hardwoods is high functioning, and the hydric woodland pasture is moderate functioning. IMC will reclaim this site with a gum swamp fringed by temperate hardwoods upland. On the east side of Horse Creek, a small wet prairie (G167) is outside the no-mine area. This very high functioning wet prairie is connected to a large bay swamp (G166) to the north. The bay swamp, which is high functioning, lies partly within and partly outside the no-mine area and is connected to the wetland corridor of Horse Creek. Although high functioning, G166 is overdrained by a tile drain system that drains the citrus grove immediately upland and east of G166. Two mixed wetland hardwoods, which are outside the no-mine area, fringe the bay swamp; they are high functioning. IMC will reclaim a gum swamp for the wet prairie and all mixed wetland hardwoods for the east side of the bay swamp. Just north of the bay swamp that straddles the no- mine boundary is a much smaller bay swamp (G163) fringed by mixed wetland hardwoods (G164) that also straddle the no-mine boundary. Also connected to the wetland corridor of Horse Creek, these wetlands are very high functioning, and IMC will reclaim them with pine flatwoods. Between these two bay swamps straddling the no-mine boundary and the headwater wetland of Stream 8e is a small wet prairie (G041), which is moderate functioning and outside the no-mine area. IMC will reclaim this site with another ephemeral wet prairie. At the southern tip of the headwater wetland of Stream 8e is hydric flatwoods (G157), which is moderate functioning. IMC will reclaim this connected wetland with sand pine flatwoods. A smaller hydric woodland pasture (G154) also connects to another section of hydric flatwoods, which is in the no-mine area between the headwater wetlands of Streams 8e and 7e. The hydric woodland pasture is moderate functioning, and IMC will replace it with hardwood-conifer mixed, although IMC will reclaim a somewhat larger area of mixed wetland hardwoods just north of the present site of the hydric woodland pasture, where no wetland presently exists. The remaining wetlands outside the no-mine area in Section 9 are six isolated wet prairies. They are small wetlands, except for G039/G040, which is a wet prairie fringing a cattle pond, and G039, which is at the eastern boundary of OFG. However, they are all high functioning, even the wet prairie fringing the cattle pond. In this general area, IMC reclaims three ephemeral wet prairies, much closer to the no- mine area than the sites of the six isolated wet prairies, and a small freshwater marsh fringed by a community that is not listed in the legend in Map I-2. Interestingly, IMC also reclaims a large area of shrub and brushland and larger area of sand live oak, again closer to the no-mine area than the sites of some of the six isolated wet prairies. The remainder of the area will be reclaimed as improved pasture. Section 4 contains no-mine area in its southeast corner: Stream 2e and the Heart-Shaped Wetland. Almost all of the wetlands outside the no-mine area in Section 4 are in the top three scoring categories of functioning. Of the six wetlands complexes on OFG that are, in whole or in part, highest functioning, four of them are in Section 4. The two highest functioning wetlands outside Section 4 are in the no-mine area, and one of the highest functioning wetlands in Section 4 is in the Heart-Shaped Wetland. Three of the highest functioning wetlands are thus to be mined. Outside of Section 4, there are 14 wetlands or wetlands complexes outside the no-mine area that are in the second- and third-highest scoring categories. These are the mixed wetland hardwoods (H031) in Section 29; a small piece of mixed wetland hardwoods (G259A) straddling the no-mine boundary in Section 29; the bay swamp and mixed wetland hardwoods to the north in the headwater wetland of Stream 1w, which straddles Sections 29 and 20; the freshwater marsh partly fringed by wet prairie (G093) south of Stream 6w in Section 17; the freshwater marsh (G052) connected to Stream 9w and straddling Sections 17 and 8; the mixed wetland hardwoods flow-through wetland (G055) in Stream 9w and straddling Sections 8 and 9; the two bisected bay swamps (G166 and G163) and their mixed wetland hardwoods fringes in Section 9; and the six isolated wet prairies in the northeast corner of Section 9. In Section 4, there are only nine wetlands or wetlands complexes outside the no-mine area that are not in the second- or third-highest scoring categories, and all but two of them--a very small wet prairie fringe (G006) and half of a larger hydric woodland pasture (G105)--are at least moderate functioning. The wetlands in Section 4 fall into three categories: connected to the Stream 1e series, connected to Streams 3e and 3e?, and isolated. The long connected wetland of Stream 1e is mixed wetland hardwoods (G110). This wetland is high functioning, except for the headwater wetland of Stream 1ef, which is highest functioning. A narrow strip of wetland forested mixed (G132) runs along Stream 1ee. This wetland is moderate functioning. Proceeding from south to north, upstream the Stream 1e series, a freshwater marsh (G129) immediately upstream of Stream 1ee is high functioning, as is a smaller freshwater marsh (G125) immediately upstream of Stream 1ed. Two gum swamps (G123 and G121) in the flow-through wetland at the head of Stream 1ed are very high functioning, as is a freshwater marsh (G126) in the same wetland complex. Just downstream of Stream 1ef is a small freshwater marsh (G115) that is high functioning. Part of the mixed wetland hardwoods abutting this marsh to the east is very high functioning. Just upstream of Stream 1eb is the largest wetland complex of the Stream 1e series wetlands system. The largest communities forming this complex are hydric flatwoods (G107) and mixed wetland hardwoods (G110). The mixed wetland hardwoods envelope a small freshwater marsh (G108) and are fringed on the north by a strip of wetland forested mixed (G102). At the northernmost end of this complex is hydric woodland pasture. All of these communities are high functioning except the hydric woodland pasture, which is moderate functioning, and the hydric flatwoods and half of the marsh, which are very high functioning. Working back downstream, IMC will reclaim the mixed wetland hardwoods of the stream corridor, neglecting to replace the complexity provided by the three of the four flow-through marshes (G108, G125, and G129), the larger headwater marsh (G126), and the two gum swamps. IMC will also neglect to replace even the wetland function of the large hydric flatwoods (G107) and smaller hydric woodland pasture, as these sites are reclaimed as upland communities: pine flatwoods and temperate hardwoods, respectively. However, IMC will add complexity by adding a small marsh abutting the temperate hardwoods, two small bay swamps along the west side of the upper end of the Stream 1e series, a band of hydric flatwoods on both sides of part of the upper stream and a thicker area of hydric flatwoods east of Stream 1ed, a moderately sized area of hydric palmetto prairie within the thicker area of hydric flatwoods, and a thickened wetland corridor--mixed wetland hardwood--along Stream 1ee. The long connected wetland of Stream 3e (G137), which is wetland forested mixed, connects to a headwater or flow- through wetland, whose southern component (G136) is also wetland forested mixed. These wetlands are moderate functioning. The remainder of the wetland upstream of Stream 3e is marsh (G135), wet prairie (G134), and mixed wetland hardwoods (G133); they are all high functioning. The narrow wetland corridor of Stream 3e? is high functioning. The headwater wetland of Stream 3e? is a freshwater marsh (G016) fringed on the south by wet prairie (G015) and the north by mixed wetland hardwoods (G014). The mixed wetland hardwoods is moderate functioning; the marsh and wet prairie are high functioning. Working downstream along Streams 3e and 3e?, IMC will reclaim a large freshwater marsh/shrub marsh complex, fringed by wet prairie, at the site of the large headwater wetland of Stream 3e?. In place of the ditch, where IMC will restore Stream 3e?, IMC will probably reclaim mixed wetland hardwoods. (At present, Map I-2 shows improved pasture, but that was before IMC agreed to reclaim Stream 3e?.) IMC will reclaim the wetland complex between Stream 3e? and 3e with the same vegetative communities, except that it will eliminate some of the present system's complexity by replacing the wet prairie with freshwater marsh. Although Map I-2 inadvertently omits any reclaimed wetland community along Stream 3e, Figure 13A5-1 shows reclaimed wetland forested mixed. There are four isolated wetlands in the vicinity of Stream 1e series. At the northern boundary of OFG is a small wet prairie (G027), which is high functioning. Just west of Stream 1ec is a small hydric flatwoods (G118), which is moderate functioning. Just south of this hydric flatwoods is a larger wet prairie (G119) with a small area of hydric flatwoods (G119A), which are both high functioning. Just east of Stream 1ec is a small wet prairie (G028), which is high functioning, even though it is ditched. IMC will reclaim the high-functioning wet prairie (G027) with a freshwater marsh, the small, moderate-functioning hydric flatwoods (G118) with hydric flatwoods and possibly part of one of the bay swamps, the high-functioning wet prairie/hydric flatwoods (G119) with rangeland abutting a freshwater marsh, and the small, high functioning wet prairie (G028) also with the upland community of rangeland. There are four isolated wetlands south and east of Streams 3e and 3e?. The two largest are freshwater marshes (G024 and G021) fringed by wet prairies (G023 and G022, respectively). These are all highest functioning, except that G023 is high functioning. The two smaller wetlands are wet prairies (G025 and G026), which are both very high functioning. IMC will reclaim all four of these wetlands at their present sites with the same communities, except that IMC will replace one very high functioning wet prairie (G026) with improved pasture. North of the headwater wetland of Stream 3e? are five isolated wetlands. The largest is a large freshwater marsh (G004) at the northeast corner of OFG. A wet prairie (G005) fringes the southern edge of this wetland complex, which is ditched. The marsh is high functioning, but the wet prairie is moderate functioning. Two smaller ditched marshes (G008 and G010) lie southwest of this large complex; they are moderate functioning. A small mixed wetland hardwoods (G007) fringed by a narrow wet prairie (G006), which are north of the two marshes, are moderate and low functioning, respectively. The final isolated wetland is a freshwater marsh (G012) fringed by wet prairie (G011) and connected by ditch to the G014 wetland complex. The marsh is high functioning, and the wet prairie fringe is moderate functioning. IMC will reclaim improved pasture at the sites of four of these five wetlands. At the site of the large freshwater marsh (G004), IMC will reclaim a freshwater marsh, which will be fringed by wetland forested mixed. The wetland forested mixed will be fringed by hydric oak forest, which will be fringed by palmetto prairie. IMC will mine 10,566 linear feet of streams, reclaiming 10,919 linear feet. The current condition of these streams has already been adequately addressed, largely by Mr. Kiefer's assessment in the Stream Reclamation Plan, described above. All the tributaries are Class III waters, although, as Deputy Director Cantrell testified, they might not meet all Class III water standards. In fact, it is unlikely, given the level of agricultural alteration, for these tributaries, both within and without the no-mine area, to meet all Class III standards. As Deputy Director Cantrell testified, the unditched streams are the Stream 1e series, Stream 3e, and Stream 5e, although upstream of OFG, Stream 5e and its headwater wetlands have suffered extensive agricultural impacts. With the exception of the Stream 1e series and probably Stream 3e, elevated levels of turbidity and nutrients and reduced levels of dissolved oxygen are to be expected in the water of the tributaries on OFG due to the extensive ensuing erosion and low- flowing characteristics of these streams. Mining Ditch and Berm System Six months prior to the commencement of mining of each block, IMC will construct a ditch and berm system between the block and the adjoining no-mine area. The ditch and berm system captures the stormwater runoff that would otherwise leave the mine site and releases the groundwater that would otherwise remain at the mine site. The phosphate mining industry began using ditch and berm systems during mining in the late 1980s and early 1990s. IMC has designed the ditch and berm system to capture the water from the 25-year, 24-hour storm event with several feet of freeboard. For storms not in excess of the design storm, the ditch, which runs between the berm and the mine cut, will carry water around the perimeter of the mining block. During periods of high rainfall, IMC will pump the water in the ditch into the mine recirculation system to prevent unintended discharges. When the mine recirculation system reaches its capacity, it releases excess water into Horse Creek upstream of OFG at two outfalls that have already received National Pollutant Discharge Elimination System (NPDES) permits for use with the Ft. Green beneficiation plant. Maintained during all phases of mining operations, ditch and berm systems have effectively protected water quality during mining operations. The only indication in this record of a breach of a ditch and berm system has been one designed to meet older, more relaxed standards. The other function of the ditch and berm system is to dewater the mine site and restore the water table to nearby wetlands in the no-mine area. The removal of the water from the surficial aquifer at the mine cut effectively lowers the water table by, typically, 52 feet, which is the average depth of the excavation at OFG. Lowering the water table in the mine cut by any sizeable amount creates a powerful gradient, which draws more water from the unmined, adjacent surficial aquifer to fill the void of the removed water. Unchecked, this process would fill the mine cut with water so as to prevent mining operations and empty nearby wetlands of water so as to deprive them of their normal water levels and hydroperiods. To prevent these diversions of the unmined surficial aquifer from taking place, pumps send the groundwater entering the mine cut into the mine recirculation system and ditch. To maintain adequate groundwater flow from the ditch into unmined wetlands, the ditch must maintain adequate water levels. While constructing the ditch and berm system, IMC will construct monitoring wells between the ditch and the wetland or surface water, which will indicate when groundwater flows are less than the pre-mining flows, for which IMC will have already collected the data. Varying permeabilities of adjacent soils or inadequate maintenance of the ditch may cause the system to fail to maintain the proper hydration of nearby unmined wetlands. Due to failures of its ditch and berm system, IMC has several times dewatered nearby wetlands. Recent failures occurred at the East Fork Manatee River in November or December 1999, the North Fork of the Manatee River in March 2000, and two more recent failures at the Ft. Green Mine. To maintain the ditch and berm system, an inspector will daily drive a vehicle along the top of the berm to check the berm and the water level in ditch. However, recharge wells are also necessary to ensure that the ditch and berm system prevents the dehydration of unmined wetlands is recharge wells. Recharge wells would reduce the frequency and extent of wetland drawdowns. Strategically located throughout the length of the ditch, recharge wells would be drilled into the bottom of the ditch to the intermediate or Floridan aquifer. By this means, recharge wells actively maintain appropriate water levels in the ditches and prevent drawdowns. IMC has several alternative sources for the water for these recharge wells: the water pumped from the surficial aquifer during the dewatering of the mine, the groundwater that has returned to areas already backfilled with sand tailings, or the water from the mine recirculation system, provided it is filtered. Notwithstanding testimony to the contrary, neither the CRP approval nor the ERP requires IMC to install recharge wells. These documents fail to impose upon IMC any specific action, if the monitoring wells reveal reduced or eliminated groundwater flows into the wetlands and surface waters. Both documents acknowledge the possibility that IMC may need to install recharge wells to recharge the ditch. In his testimony, Dr. Garlanger recommended the installation of floats on the top of each recharge well to allow the inspector visually checking the ditch and berm readily to check each recharge well at the same time. Clearly, the presence of floats atop recharge wells would allow early identification and repair of malfunctioning recharge wells, prior to the loss of water from the ditch and the dehydration of nearby unmined wetlands. 2. Mine Recirculation System In addition to recycling the water used in mining operations, the mine recirculation system draws on sources deeper than the surficial aquifer, as well as rain. Water leaves the mine recirculation system through evapotranspiration and surface runoff. When water leaves the system as runoff, during or after major storm events, it does so through NPDES outfalls, and the high water volumes associated with the storm generally assure that any contaminants in the discharged water are sufficiently diluted. 3. Sand Tailings Budget For OFG, IMC has presented a reasonable sand tailings budget. Dr. Garlanger, whose expertise in geotechnical matters finds no match on the opposing side, has opined that the supply is ample. Charlotte County and the Authority have challenged the adequacy of the sand tailings budget. In part, Charlotte County and the Authority base their challenge to the sand tailings budget in part on an earlier comment by Dr. Garlanger concerning changing volumes of sand tailings, but he adequately explained that their reliance was misplaced. As noted above, the sand tailings budget at OFG requires sand from the Four Corners and Ft. Green mines. Conjuring up images of a sand Ponzi scheme, Charlotte County and the Authority seem to argue, in part, that there are not enough sand tailings, and DEP has allowed phosphate mining companies that have run out of nearby sand to substitute a Land-and-Lakes reclamation for the more sand-intensive reclamation that had originally been permitted and approved. OFG is early enough in the post Land-and-Lakes reclamation era that, if sand tailings from post-reclamation excavations are being moved around, OFG will get them. The obligation imposed upon IMC to obtain sand tailings backfill is not contingent upon feasibility; IMC must backfill the mine cuts with sand. The possibility that DEP would allow OFG to abandon one of the central tenets of this reclamation project by substituting Land-and-Lakes reclamation for topographic replication is inconceivable. Reclamation BMR Reclamation Guidelines BMR program administrator James (Bud) Cates supervises reclamation by the phosphate mining industry. Mr. Cates and Janine L. Callahan, also of BMR, prepared a document entitled, "Guidelines for the Reclamation, Management, and Disposition of Lands within the Southern Phosphate District of Florida" (Reclamation Guidelines). The document is dated August 2002. Although it is marked, "draft," Reclamation Guidelines is a revision of the first draft, which was prepared in 1993. The Administrative Law Judge commends the authors and DEP for the close attention to detail that has resisted finalization for nine years, but it would be imprudent to disregard the second draft while awaiting the next novennial revision, especially when DEP offered it as an exhibit (DEP Exhibit 37). Consistent with an emphasis on functional analysis and the creation of vegetative, hydrologic, and soils conditions that facilitate self-organization, Reclamation Guidelines defines "reclamation" as: the attempt to identify and replace those components/parameters of a community, resulting in the creation of a functional natural community analog. Emphasis is placed on the creation of functional soil, hydrology, and floral precursors that serve as the basis for food-web development. Because of the ecological need for fully functional communities, analogs are typically designed on a whole habitat basis rather than being designed around the specific needs of one or two species. These analogs are designed to incorporate a maximum initial diversity potential, based upon the premise that with proper management, the initial input will yield, over time, maximum ultimate diversity. Reclamation plans for and the activities used to create these replacement communities will be guided by existing knowledge of earthmoving, soils, hydrology, vegetation, general ecology, and wildlife management. Data in every applicable field should be constantly collected and used to increase knowledge and improve the results of the reclamation of natural community analogs. Focusing on specific reclamation techniques for soils, Reclamation Guidelines adds: The use of Topsoil/Vegetative Inoculum (T/VI) is extremely important to the introduction of organic matter, soil microbes, mycorrhizae, and plant propagules. These factors are critical to the creation of a living soil precursor. The T/VI is also the best known source of plant propagules that will provide the diversity inherent in a given community. Therefore, to the extent of material availability and economic feasibility, T/VI is recommended for use in the replacement of natural community analogs. The goal should be a three to six inch average depth with a minimum depth of no less than one inch over the base of sand, overburden, or sand/overburden mixture. Where T/VI availability problems occur, an artificially created topsoil precursor may be used in combination with all available T/VI or as a replacement for T/VI. Topsoil precursor may be created by incorporating a mixture of overburden, clay, and organics (hay mulch, wood chips, manure, green manure, or combinations thereof). All artificially created topsoil precursors should contain an organic portion and should be treated with microbial and mycorrhizal inoculum. For Sandhill, which has the least burdensome requirements among the three habitats most analogous to sand live oak (sand pine scrub, xeric oak scrub, and sandhill), Reclamation Guidelines notes that the objective is to concentrate a "deep layer of well-drained sands around/upon a topographic high to prove an area of rapid, positive infiltration and positive down-gradient seepage." The reclaimed sandhill habitat is adapted to excessively drained sands and requires "substantial depth to water table (although not as excessive or deep as scrub)." For soils, Reclamation Guidelines offers two options: six to eight feet of sand tailings covered with a layer of T/VI from a suitable donor scrub or eight to ten feet of sand tailings covered with a minimum four inch layer of artificially created topsoil precursor. For sand pine scrub and xeric oak scrub, the soil requirements are the same, except that the first option is for sand tailings eight to ten feet deep, not six to eight feet deep. As already noted, CRP Specific Condition 8.b requires IMC to reclaim sand live oak and xeric oak scrub with "several feet" of sand tailings and three to six inches of topsoiling from donor scrub or, if topsoiling is not feasible, the seeding and disking of a green manure crop. (Although omitted, the feasibility condition presumably qualifies the topsoiling requirement because Specific Condition 8.b defines "feasible.") For Pine Flatwoods and Dry Prairie, Reclamation Guidelines notes that the objective is to locate these communities on moderately to poorly drained soils, so that the depth to the water table is moderate to shallow. Most vegetation of these two communities is adapted to predominantly sand soils. For soils, Reclamation Guidelines offers two options: two to four feet of sand tailings covered with a layer of T/VI from a suitable donor flatwoods/dry prairie area or two to four feet of sand tailings covered with a minimum four inch layer of artificially created topsoil precursor. As already noted, CRP Specific Condition 8.a requires IMC to reclaim pine flatwoods and dry prairie with a minimum of 15 inches of sand tailings and three to six inches of transferred or stockpiled topsoil, if feasible, or, if not, the seeding and disking of a green manure crop. For Wetland Mixed Forest, Reclamation Guidelines notes that this community will occupy the outer limit of the floodplain down to the stream channel and the forested edge of deeper marshes. Likely to receive runoff from major storm events, Wetland Mixed Forest should be designed to contain and slow runoff while maintaining sufficient water for wetland viability. For soils, Reclamation Guidelines offers three options: decompacted overburden to a depth below the dry season water table overlying by a layer of T/VI from an appropriate donor site, two to three feet of sand tailings under a layer of T/VI, or either overburden or two to three feet of sand tailings covered by a minimum of four inches of artificially created topsoil precursor. As already noted, ERP Specific Condition 14.b requires IMC to reclaim all forested wetlands by backfilling with sand tailings or overburden to an unspecified depth under "several inches of wetland topsoil," if feasible. However, for bay swamps, Specific Condition 14.b adds in boldface: "All reclaimed bay swamps shall receive several inches of muck directly transferred from forested wetland approved for mining." Reclamation Guidelines treats Bay Swamp (and Cypress Swamp) separately from other forested wetlands. Noting that Bay Swamps are in areas of significant surficial seepage or high average groundwater elevation, Reclamation Guidelines states that Bay Swamps require sufficient seepage to remain saturated or a deep organic profile at and below the average water table elevation. For soils, Reclamation Guidelines states: "Bay swamps require the placement of one to three feet of organic muck as a depressed lens. The muck should be obtained from a suitable donor wetland." For Non-Forested Wetland, which includes wet prairies and freshwater marshes, Reclamation Guidelines is of value more to identify why the phosphate mining industry and DEP have overseen the routine reclamation of deeper wetlands, but not shallower wetlands. Treating these two very different communities under the same category, Reclamation Guidelines states: "All of the sub-categories may be constructed on overburden, with the exception of sand pond." Although the overburden option for reclaimed forested wetlands seems a stretch, given repeated problems of mature tree growth into overburden relatively close to grade, the overburden option for reclaimed wet prairie, other than fringing deeper marshes when properly sloped, can no longer merit serious consideration, given only one successful, extensive shallow-wetland reclamation site--SP(2D), whose reclaimed soil is four inches of mulched topsoil overlying four feet of sand tailings. However, consistent with its Reclamation Guidelines, DEP did not differentiate between wet prairies and deep marshes in the soil-reclamation requirements contained in the ERP. ERP Specific Condition 14.c allows backfilling with sand tailings or overburden and requires only "several inches of wetlands topsoils when available." Tellingly, Reclamation Guidelines divides aquatic systems into two categories: shallow (less than six feet deep) and deep. Shallow systems comprise swamps, marshes, sloughs, and ponds, but not streams. Nowhere does Reclamation Guidelines explicitly address the reclamation of streams. Comparing the soil-reclamation requirements that DEP has imposed on IMC in the CRP approval and ERP to the soil- reclamation specifications stated in BMR's Reclamation Guidelines, material discrepancies emerge as to the depth of sand tailings underlying four upland communities. If IMC transfers topsoil, sand live oak communities require at least six feet of sand tailings, not "several" feet; if IMC uses green manure, sand live oak communities require at least eight feet of sand tailings. Regardless whether topsoiled or green manured, xeric oak scrub communities require at least eight feet of sand tailings, not "several" feet. Regardless whether topsoiled or green manured, pine flatwoods and palmetto prairie require at least two feet of sand tailings, not 15 inches. There is a material discrepancy between the ERP and Reclamation Guidelines as to bay swamps. Reclamation Guidelines specifies one to three feet of organic muck for reclaimed Bay Swamps. ERP Specific Condition 14.b requires only "several inches of muck." Given the poor record reclaiming bay swamps, DEP, in forming this condition, is not relying on any experience-based knowledge that it has acquired, or, if it is, it did not add this information to the present record. There is no discrepancy as to wet prairies, but this is clearly due to a shortcoming in Reclamation Guidelines, at least as to non-fringe wet prairies. Under Reclamation Guidelines, wet prairies, at best, will continue to reclaim only as fringes, and only then if the edges of deeper wetlands have shallow slopes. Given the otherwise-uniform failure to reclaim extensive shallow wetlands, the actual soil regime at SP(2D) of four feet of sand tailings under four inches of topsoil must set the minimum soil criteria for wet prairie. 2. Geology and Soils For purposes of this Recommended Order, soils occur predominantly in the first two meters of the earth's surface. Below that depth, geologic characteristics predominate, so this Recommended Order refers to these deeper structures as geology. Post-reclamation, all of the soil and the top 45-50 feet of the geology are a product of IMC's reclamation activities. The post-reclamation geologic characteristics follow from the mining process, which deposits overburden within the mine cut in two locations. Most of the overburden is deposited in spoil piles within the cut. Some of the overburden is piled against the sides of the mine cut to reduce the seepage of water from the surrounding surficial aquifer into the cut. Both types of overburden are sometimes called "cast overburden." At OFG, prior to backfilling, the creation of cast overburden spoil piles will either leave alternating bands of sand tailings valleys and cast overburden spoil piles, each 330 feet wide, or each 165 feet wide; the record is not entirely clear on this point. The scenario with the greater hydrological impact is that each valley and the base of each spoil pile is 330 feet wide, but, even under this scenario, relatively little backfilled area would have less than five feet of sand tailings. If each sand tailings valley is 330 feet and each cast overburden spoil pile is also 330 feet at its base, the profile of each cast overburden spoil pile would appear to be a two- dimensional pyramid with its top cut off just below midpoint along its two slopes. The sides of the spoil piles of cast overburden are not perpendicular to the surface, but are sloped at about 1.5:1, according to Dr. Garlanger. Rounding off the depth of the mine cut to 50 feet, this 33-degree slope would travel 50 feet vertically at the point at which it had traveled 75 feet horizontally. Matching this slope with another on the other side of the spoil pile, 150 feet of the 330-foot wide overburden spoil pile would be consumed by the sloped sides, and 180 feet would be a plateau, at a constant elevation of 50 feet above the bottom of the mine pit. Adding 7.5 feet on either side of the plateau gains a depth of 5 feet, so the width of overburden under less than five feet of sand tailings would be 195 feet. Under the less-favorable scenario, for a 660-foot wide band of reclaimed geology, without regard to topsoil additions, the sand tailings, for the above-described 660-foot slice, will be at least 10 feet deep for a distance of 450 feet, or 68 percent of the reclaimed area, and will be at least 5 feet deep for a distance of 475 feet, or 72 percent of the reclaimed area. Adding the U-turns at the end of the rows would add only a little more area to the 28 percent of the reclaimed area with an overburden plateau within five feet of the surface. If the cast overburden spoil piles fill only half of each 330-foot wide cut, then the overburden plateaus would be much narrower. Each sand valley of 165 feet would abut a 33-degree slope that would again run 75 feet horizontal while climbing 50 feet vertical. Two of these slopes would consume 150 feet horizontal, leaving an overburden plateau of only 15 feet, leaving much less land with an overburden plateau within five feet of the surface. The shaping of the overburden that precedes the backfilling, the backfilling of sand tailings, and the transfer of topsoil are aided by substantial technological improvements in earthmoving equipment in recent years. Most importantly, earthmoving equipment has incorporated global positioning systems, so that they can now grade material to a tolerance of two centimeters, as compared to tolerances of six inches and one foot not long ago. This achievement permits the reclamation scientists to supervise backfilling more closely so as to replicate the design topography, which is a necessary, although not sufficient, condition of successful establishment of targeted hydroperiods and inundation levels. IMC soil scientist Joseph Schuster and Mr. Carter both presented detailed, well-documented testimony and are both competent soil scientists. They start from the same point, which is that pedogenesis, or soil formation, is a function of five factors: parent material, relief, climate, vegetation, and time. From there, they travel separate paths in their analysis and conclusions concerning the soil aspects of IMC's reclamation plan. In the successful reclamation of soils, Mr. Schuster highlights the creation of appropriate drainage characteristics, and Mr. Carter highlights the creation of appropriate soil horizons, although both experts acknowledge the importance of both these factors, and others, in soil formation and function. Their reasoning seemed mostly to be a question of differing emphases, although their conclusions were mutually exclusive. As already noted, the A horizon is the topsoil layer. (A mucky wetland may have an O horizon.) There is some variability among horizons--for example, the C horizon, which is described below, may occur immediately beneath the A horizon, especially in sandy material. But, for this part of Florida, typically, the E horizon forms under the A horizon. The E horizon is a leaching zone, through which rainwater transmits substances from the A horizon down to the B horizon, which is the accumulation zone beneath the E horizon. Florida typically has two types of B horizons: the Bh (or spodic) horizon, which is composed of loamy or spodic materials, and the Bt (or argyllic) horizon, which is composed of clayey materials. The spodic horizon is a mineral soil horizon containing aluminum and organic carbon, and possibly iron, which formed in a much colder climate, probably at least 10,000 years ago. Spodic horizons typically occur in the top two feet of the soil profile. Although spodic horizons may occur as deep as 40 feet, they occur at OFG within 20 inches of the surface, sometimes within only 10 inches. Beneath the B horizons is the C horizon, which is the parent material for pedogenesis. For the most part, Mr. Schuster's emphasis on reclaiming appropriate drainage is credited as the single most important factor in reclamation, and his seven drainage categories are ample for guiding the reclamation of the drainage characteristics of soils. More reclamation failures may necessitate the implementation of one of Mr. Carter's suggestions to carefully restore the soil horizons within the top two meters of the mine cut, as it is backfilled, or to use more clayey soils, such as those from drained CSAs, to add more nutrient-retaining capacity to the B and C horizons than nutrient-poor sand tailings provide. Mr. Carter's soil cores from reclamation sites, which reveal overburden close to the surface, presented stark contrasts to soil cores of native soils in the area, although drainage concerns outweigh pedogenic concerns. Mr. Carter correctly points out that, from a soils perspective, pre-mining overburden is not post-reclamation overburden. From a mining perspective, what lies above the unmined phosphate ore is overburden, and what lies in the ground, post-reclamation, is also overburden, which, to a certain depth, is dominated by characteristics of the B horizon and underlying C horizon. However, in a 52-foot deep phosphate mine, as opposed to typical road construction, which Mr. Schuster unpersuasively offered as a comparable, the overburden is ultimately dominated by geologic material from below the C horizon. From a soils perspective, what lies in the unmined ground are soil horizons that took many years to form, and what lies in the ground, post- reclamation, is nothing but an admixture of former soil horizons and geologic material that normally resides a little deeper in the earth's crust. As Mr. Carter notes, the result, post- reclamation, is less like soil and more like unconsolidated soil material with little horizonization even several years after reclamation, and, if an overburden layer is present close to the surface, it typically is tightly compacted. Soil horizons are not an incidental or random characteristic of undisturbed soils; soil horizons are an important component in the formation and functioning of soil. Mr. Schuster himself disclaims reliance upon overburden epipedons--which are organically influenced horizons typically above the B horizon--in the restoration of native ecosystems, although he does not object to the presence of such epipedons in agricultural restoration. If sand were displaced by overburden in the area of the E horizon, the E horizon will be unable to contribute to the formation of the B horizon, as it must, especially after the comprehensive disturbance of all soil horizons contemplated at OFG. Mr. Schuster's disclaimer bodes ill for the ERP provisions allowing overburden as an alternative to sand tailings for forested and herbaceous wetlands. However, Mr. Schuster's disdain for cast overburden near the surface is well-founded. His emphasis on drainage over soil horizons, including even overburden epipedons, may find support at Dogleg, which, according to the CDA, suffered the loss of its 12-inch topsoil layer due to oxidization and was left with overburden of a "clayey sand" texture that may have been more permeable than typical, less permeable overburden. This loss appears to have taken place over sufficient time that other conditions may have commenced to form an A horizon. However, when adjacent mining ended and the water table re-established itself, the reclaimed trees began to survive. Mr. Schuster accounts for the importance of pedogenesis, in addition to drainage characteristics, by identifying the topsoil/green manure, sand, and overburden as analogs of soil horizons. Certainly, the topsoil/green manure is a functional analog, and its thickness is not much of a variable. Sand tailings provide an appropriate texture for an A horizon. But the variability of the depths of sand tailings limits the force of Mr. Schuster's argument for functional analogs. For all wetland communities, overburden may occur at depths of only several inches, and, for pine flatwoods and palmetto prairies, overburden may occur at depths of 15 inches. Or sand tailings may be over 50 feet deep, atop a clay confining layer, not overburden. Setting aside the problem with the variability of depths of sand tailings, it is possible to treat sand tailings as a functional E horizon, through which materials will leach from the A horizon and into the B horizon, which is the zone of accumulation. However difficult it may be to cast the sand tailings in the role of a B horizon, it is impossible to cast them in the role of a C horizon. Ignoring the considerable amount of geologic material contained in cast overburden and possible textural issues, Mr. Schuster plausibly offers overburden as good B and C horizon material because of its higher clay or spodic content. Thus, the apparent impairment of pedogenesis may not be as extensive as first appears, provided overburden remains below the A and E horizons. Still, mining and reclamation, at least as designed for OFG, mean the loss of some soil functions for extensive periods of time, but proper reclamation of drainage characteristics and hydrology sufficiently mitigate these losses of function. Even Mr. Schuster's emphasis on drainage is not unconditional, as he relies on the application of topsoil or the implementation of a green-manure process to provide an immediate A horizon and accelerate the process by which the A horizon continues to form. Endorsed by Mr. Carter as a good idea to increase organic material and loosen the structure of the topsoil, green manure is the process by which a quick-growing cover crop is planted on the finished surface, post-reclamation. The crop is then disked into the soil to provide a quick infusion of nitrogen and organic matter. This approach has not previously been used in reclamation following phosphate mining, but it has been used in other applications and is effective. Post-reclamation, fire too will pump nutrients into the A horizon. Herbaceous wetlands, with their shallower roots, ought to be adequately served by Mr. Schuster's focus on the drainage characteristics of reclaimed soils. Forested wetlands present a different challenge due to their deeper root systems. Past reclamation of forested wetlands has experienced tree loss after several years of growth, possibly indicative of a problem with root development beyond a certain depth. Perhaps the roots cannot penetrate the overburden or cannot find the necessary nourishment, after penetrating the overburden; however, it is at least as likely, given the record of reclamation, that the mitigation site suffered from a poorly reclaimed water table, so that, for example, the water table was too high for too long, perched, or even too low for too long. Given the repeated problems with establishing appropriate water tables, post-reclamation, this factor looms as a likely explanation for tree die-off. However, Mr. Schuster's emphasis on drainage characteristics over pedogenic conditions carries more weight as to herbaceous wetlands and xeric habitats, where sandy soils predominate to relative great depths, and somewhat less weight as to forested wetlands. Mr. Schuster's emphasis on drainage over pedogenesis carries even less weight as to pine flatwoods and palmetto prairies, which are less tolerant to the disturbance of the spodic horizon in reclaimed soils. Obviously, overburden presents different textures and drainage characteristics than do native flatwoods soils. However, pine flatwoods and palmetto prairies are more dependent upon higher water tables than more xeric upland communities, so, again, past problems in reclaiming these upland communities again likely involve the failure to create an appropriate water table, post-reclamation. Differences between Mr. Schuster and Mr. Carter were harder to reconcile regarding the role of pH in soil. Mr. Schuster and Mr. Carter reached different results in field tests of soil pH. However, Mr. Schuster's testimony is credited that most ecosystems tolerate a wide range of pH, and the most important soil characteristic remains its drainage characteristics. Hydrology Introduction Removing and replacing the topography, soils, and geology, including the surficial aquifer, to a depth of 52 feet, under nearly 3500 acres of land necessitates hydrological analysis. Hydrological analysis is necessary to support three sets of projections: the streamflows of Horse Creek, downstream of OFG, during mining and after reclamation; hydroperiods and inundation depths of reclaimed wetlands, as the wetlands created in the reclaimed topography and soils fill and empty with water based on inputs and outputs from runoff and groundwater, inputs from rainfall, and outputs from evapotranspiration; and peak discharges from OFG, during mining and after reclamation. All hydrological analysis must account for the water budget, which balances the inputs and outputs of water. The elements of the water budget are rainfall, runoff, percolation (or infiltration), evapotranspiration, deep recharge (the recharge of the deeper aquifers), and groundwater outflow. Rainfall is the most important factor because it is the sole means by which water enters the system. Equal to the total of the outputs, annual rainfall is a large number, typically measuring in this part of Florida in excess of 50 inches. Rainfall is also a variable number in two respects. It varies from year to year. For the Peace River basin, annual rainfall from 1933 to 2002 has ranged from 35.89 inches to 74.5 inches with an average of 52.4 inches. However, rainfall in the Peace River basin has varied over eras. From 1933 to 1962, average annual rainfall was 55.48 inches. From 1962 to 2002, average annual rainfall was 51.02 inches. For the Peace River basin, the average annual rainfall has decreased about 4 1/2 inches in the past four decades when compared to the preceding three decades. Especially over shorter time intervals, rainfall also varies considerably from location to location within a relatively small area. Subject to these variabilities, especially the distance of the rainfall gauge to the location for which the water budget is constructed, rainfall is easily measured by rainfall gauges. Measurement means straightforward collection of data without elaborate modeling, calculation, or simulation. After rainfall, the most important element in the water budget is evapotranspiration, which is the combined effect of evaporation of water from soil, plant surfaces, wetlands, and open water and transpiration of water through vegetative processes. In this part of Florida, evapotranspiration releases about 75 percent of the rainfall back into the atmosphere, which, by convention, counts as a loss to the system. Unlike rainfall, evapotranspiration typically cannot be measured, except that the maximum evaporation, which is a pan containing water in the direct sun, is subject to direct measurement. Hydrologists have measured evapotranspiration from irrigated golf courses at 58-62 inches annually, and Dr. Garlanger has measured evapotranspiration from reclaimed CSAs at 39-41 inches annually, although both of these measurements may have been somewhat indirect. However, hydrologists widely recognize ranges of evapotranspiration for this part of Florida for different land uses. Annual rates of evapotranspiration for open water is 49-1 inches, for riparian wetlands is 47-49 inches, and for isolated wetlands is 43-44 inches. The annual evapotranspiration for pine flatwoods is 37-39 inches and for xeric uplands is 34-36 inches. Impervious surface, such as pavement or a roof, produces only 8-10 inches annually--absent weeds, all evaporation. In addition to land use, the amount of water available controls the amount of evapotranspiration. Elevations of the water table will affect evapotranspiration. Thus, hydrologists often measure potential and actual evapotranspiration. Anthropogenic impacts may increase or decrease evapotranspiration. Net additions of impervious surface, such as parking lots, roads, and rooftops, increase runoff and decrease evapotranspiration. Net additions of open water, such as lakes, ponds, and streams, decrease runoff and increase evapotranspiration. At the other end of the spectrum, deep recharge removes very little water at OFG. Even during mining, when the impacts would be greatest due to high withdrawals, the increase to deep recharge is 30-60 gallons per minute--insignificant as compared to the average recharge rate in the Peace River basin of 190,000 gallons per minute. In fact, according to RAI-192 in the CDA, rainfall, not deepwell water, is the primary source of water for the mine recirculation system. Deep recharge is typically one inch annually, although Charlotte County hydrologist Phillip Davis, in one of his scenarios, claimed that 2.5 inches of water annually would enter the intermediate aquifer from the surficial aquifer. This range of values for deep recharge is within the specified ranges for most types of evapotranspiration. Deep recharge cannot be directly measured. The record does not suggest much variability in deep recharge, which is controlled by the elevation of the water table and potentiometric surface of the Florida Aquifer, in undisturbed geologic systems in this part of Florida. Although the replacement of part of the confining layer between the surficial and intermediate aquifers could affect deep recharge, the potential impact at OFG appears to be very small due to the permeability of the matrix layer and impermeability of the clay bed beneath it. However, historic anthropogenic disturbances may have increased deep recharge. All groundwater withdrawals induce recharge, at least of the surficial aquifer. Withdrawals from the deeper aquifers, such as those taken by the phosphate mining industry prior to expanded recycling, could have caused increased rates of deep recharge, depending on the confining layers above the Floridan Aquifer within the area influenced by the withdrawals. To the extent that the effect of these deep withdrawals extended to the surficial aquifer, evapotranspiration and streamflow would have been reduced. Groundwater outflow has been measured in this area by Bill Lewelling of the U.S. Geologic Service. (Mr. Lewelling seems to have measured groundwater outflow indirectly by measuring chloride concentrations at different locations.) He found a range of 1.7-17.9 inches annually with an average of 9.2 inches annually. An important component of groundwater outflow, infiltration depends on soil type and antecedent saturation, so it is variable in terms of location and climate. However, it appears to vary within a relatively narrow range at OFG, pre- mining. One combination of water-budget elements that may be measured easily is streamflow, which, as noted above, is a combination of the runoff and groundwater outflow reaching the stream. Streamflow equals rainfall minus evapotranspiration minus deep recharge minus the change in uplands storage. For the purposes of Dr. Garlanger's analysis, uplands are everything, including wetlands, above riparian wetlands, and riparian wetlands are the area adjacent to a stream channel that remain perennially wet and are typically within the 25-year floodplain. Streamflow is not variable like rainfall as to location because the river or stream is fixed and so is the location of the gauge, but streamflow is highly variable as to volume, even from year to year. For Horse Creek at State Road 64, for example, annual streamflow from 1977 to 2001 has averaged 9.7 inches, but has ranged from one inch to 17 inches. For the Peace River at Arcadia, annual streamflow from 1950-1962 was 13.25 inches or 1334 cfs. From 1963 to 2002, average streamflow at the same location was 8.78 inches or 884 cfs. The SWFWMD has not yet set minimum flows and levels for the Peace River, but is presently in the process of setting these values. In these cases, streamflow is most often calculated to compare a model's output in streamflow to measured values for the same period of time, to determine streamflow for locations without a streamflow gauge, or to determine streamflow for locations with a streamflow gauge, but after changes in land use, such as the construction of a ditch and berm system or post-mining reclamation. Another combination of water-budget elements that can be measured, although with more difficulty than streamflow, is the water table. Most water table data are fairly recent, dating from the early 1990s. Mr. Davis testified that the water table data available for OFG were the most limited that he had ever encountered. Varying daily, the water table is the top of the surficial aquifer. The elevation of a non-perched water table, at any given time, is ultimately driven by all of the elements of the water budget, but is immediately reflective of surficial aquifer inputs and outputs and hydraulic conductivity. Hydraulic conductivity is the ability of a porous medium to transmit a specific fluid under a unit hydraulic gradient, so it is highly dependent on the physical properties of the medium through which the fluid is transmitted. Although hydraulic conductivity exists in the horizontal and vertical planes, this Recommended Order considers only horizontal hydraulic conductivity. Hydraulic conductivity is an important hydrological factor that can be measured, at least horizontally, although with difficulty. Hydraulic conductivity varies by location due to the variations in permeability of the geological structure through which the groundwater is passing. The hydraulic conductivity of sand tailings is about 38 feet per day, and the hydraulic conductivity of cast overburden is about one foot per day. Native soils are typically somewhere in between these two extremes. In one area, the matrix, pre-mining, had a permeability of 5-15 feet per day. IMC's assurances concerning streamflow, wetlands hydroperiod and inundation depths, and peak discharges must be assessed against three different backdrops. At one extreme, at least based on the present record, phosphate mining and reclamation, as distinguished from other phases of phosphate processing, have not caused adverse flooding; the sole example of flooding from a failed ditch and berm system--designed to meet more relaxed standards--occurred at the Kingsford Mine on January 1, 2003, and no serious environmental damage occurred. At the other extreme, reclamation after phosphate mining has routinely failed to reclaim targeted hydroperiods and inundation depths for shallower wetlands and many forested wetlands. In between these two extremes, although closer, at least recently, to the industry's flooding experience, is streamflow. Historic impacts to the Peace River are considered below, but an example of the minimal impact on streamflow of recent mining is found in the last 15 years' mining of the upper reaches Horse Creek. During this period, the streamflow of Horse Creek at State Road 64 has remained unchanged. The record does not support Mr. Davis's suggestion that high volumes of groundwater pumping and high volumes of NPDES discharges artificially added streamflow during this period. Resolution of the hydrological evidence in these cases requires close examination of the testimony of Dr. Garlanger, who addressed all three areas for IMC; Mr. Davis, who addressed streamflow and wetland hydroperiods and inundation depths for Charlotte County; and Mr. Loper, who addressed peak discharges for Charlotte County. All three of these witnesses are highly competent and patiently and thoroughly explained their hydrological analyses. Mr. Loper proved adept at finding flaws in IMC's analyses of peak discharges. Dr. Garlanger and his staff several times refined their work, even during the hearing, to incorporate Mr. Loper's findings. Differences remained between Mr. Loper and Dr. Garlanger, and, although it is possible that Mr. Loper is correct on these remaining points, Dr. Garlanger successfully discounted the importance of Mr. Loper's objections in projecting peak discharges. Examining the evidence in the backdrop of a record almost devoid of failures that have resulted in flooding, it proved impossible not to credit Dr. Garlanger's assurances about peak discharges. Mr. Davis was less successful in finding flaws in IMC's analysis of streamflow, or at least in finding material flaws. As detailed below, his theory attributing to phosphate mining a greater share of historic reductions in the streamflow of the Peace River seems less likely than Dr. Garlanger's theory attributing a lesser share of these historic reductions to phosphate mining. Mr. Davis substituted an integrated simulation model for Dr. Garlanger's uplands model and spreadsheet. The advantages of Mr. Davis's model emerged to a greater extent in simulating wetlands hydroperiods and inundation depths, not in simulating streamflows. This is discussed in detail below. The conflict between Mr. Davis and Dr. Garlanger over the ability to reclaim targeted hydroperiods and inundation depths has proved very difficult to resolve. Dr. Garlanger has vast experience in the phosphate mining industry and thus a clear advantage in projecting, as he has since 1974 at several hundreds of projects, peak discharges and streamflow. But this experience is no advantage as to projecting wetland hydroperiods and inundation depths. Dr. Garlanger did not state that he has projected hydroperiods and inundation depths for 30 years at several hundreds of projects. If he has done so, he has contributed to the numerous failures, described above, of reclaiming shallow wetlands. More likely, the phosphate mining industry has infrequently targeted shallow wetlands for reclamation, so Dr. Garlanger does not have extensive experience in creating the necessary hydroperiods and inundation depths for shallow wetlands. The reclamation of specific hydroperiods and inundation depths for shallow wetlands is likely a fairly recent development, perhaps due to the relaxed restoration expectations of earlier eras or the inability of earthmoving equipment to execute fine specifications in finished topography. In the CDA discussion of Bay Swamp, noted above, the author admits that reclamation historically has not attempted to reclaim the kind of interface necessary between shallow wetlands and the water table to support bay swamps. The parties' understandable, but unrealistic, pursuit of findings that all previous shallow-wetland reclamations of any size have failed or succeeded may have discouraged testimony candidly analyzing what hydrologists have learned from the limited successes and the many failures. Especially unfortunate is the omission of any discussion of the success of Dogleg, where, according to the CDA material, persistent replanting of trees over many years in soils with prominent, but perhaps atypically permeable, cast overburden profiles eventually succeeded, after the completion of nearby mining allowed the water table to reestablish itself. The record does not even indicate if Dogleg mining took place behind a ditch and berm system, nor does it adequately describe the texture of the overburden on which the topsoil rested. In addition to different levels of confidence attaching to the demonstrated ability of the phosphate mining industry to avoid adverse flooding and significant reductions in streamflow, on the one hand, and the routine inability of the phosphate mining industry to re-create the hydroperiods and inundation depths required for shallow wetlands, another point of differentiation exists between Dr. Garlanger's streamflow projections and his hydroperiod and inundation depth projections. Although he uses the same uplands model and similar wetlands models for both tasks, certain characteristics of his relatively simple modeling do not work as well in projecting hydroperiods and inundation depths as they do in projecting streamflows. Accurate projections of streamflow, at a discrete point downstream of the 4197 acres constituting OFG, are amenable to averaging, smoothing out input values, and substituting assumed values for calculated values. Accurate projections of hydroperiods and inundation depths require precise analysis of reclaimed wetlands--few over 10 acres, most less than a couple of acres--distributed over the 3477 acres of OFG to be mined. For each wetland, precision means daily accuracy to within a few inches of elevation of topography and water table and no more than a few feet of hydraulic conductivity. Streamflow projections, which have worked in the recent past, will continue to work, whether each projection within an area is accurate or any errors within an analyzed area offset errors in other areas, so that, notwithstanding flow discharge curves, small discrepancies in projected streamflow average out over longer periods of time. Hydroperiod and inundation depth projections, which may have been attempted, if at all, only rarely in the past, must be accurate over very small areas for very specific time intervals. Also, streamflow projections are less sensitive to misallocations between runoff and groundwater flow than are projections of shallow wetland hydroperiod and inundation depth. The record suggests that reclaiming short wetland hydroperiods and shallow inundation depths places new and more difficult demands upon the phosphate mining industry and its reclamation scientists. Although long accustomed to producing projects that did not flood and at least recently accustomed to producing projects that did not reduce streamflow, the phosphate mining industry and its reclamation scientists are only now acclimating to newer regulatory expectations that they produce projects that reliably reclaim shallow wetlands by re-creating functional relationships between these wetland systems and surface runoff and groundwater flow. Streamflow Streamflow in Horse Creek downstream of OFG and the Peace River is reduced during mining because the ditch and berm system captures all of the runoff, at least up to the capacity of the ditch and berm system. The ditch and berm system is designed to handle the 25-year, 24-hour storm event, although additional, unspecified freeboard is built into the system. The capacity of the ditch and berm system may be exceeded by more intense storms or perhaps even lesser storms, unless the 25-year storm design accounts for antecedent water levels, which may be higher in systems with recharge wells than in systems without the recharge wells. In any event in which the capacity of the ditch and berm system is exceeded, IMC pumps the water through the mine recirculation system and releases it through one of two NPDES outfalls upstream at Horse Creek. Because the ditch and berm system captures all of the runoff, under normal conditions, the reduction in streamflow after reclamation is generally less than the reduction in streamflow during mining. The removal of the ditch and berm system allows runoff again to contribute to streamflow. To analyze the impacts upon streamflow, Dr. Garlanger first performed a simplified water budget analysis at three locations: Horse Creek at State Road 72 (near Arcadia), the Peace River at Ft. Ogden (where the Authority withdraws its raw water--downstream of the confluence of Horse Creek and the Peace River), and the point at which the Peace River empties into Charlotte Harbor. Although Dr. Garlanger used uplands exclusively for this simplified exercise in constructing a conceptual water budget, adding the riparian wetlands would not substantially change the result because the wetlands runoff and evapotranspiration would be higher, but the wetlands groundwater outflow would be lower. Either way, Dr. Garlanger's analysis, which is sometimes called an analytic model, was merely a prelude to more sophisticated modeling. For his during-mining analysis, Dr. Garlanger assumed that the ditch and berm system would capture all the runoff from the 5.4 square miles of the Horse Creek sub-basin behind the ditch and berm system. In sequential mining, the ditch and berm system would not capture all of the 5.4 square miles at once. But, assuming the worst-case scenario, Dr. Garlanger assumed the capture of the runoff from entire sub-basin for a period of 25 years. Initially, Dr. Garlanger also assumed that the ditch and berm system would likewise not release any base flow. This is an unrealistic scenario because, as noted above, one of the two purposes of the ditch and berm system is to permit base flow into wetlands and streams. Later, Dr. Garlanger alternatively assumed that the ditch and berm system would release all of the base flow. If the ditch and berm system is equipped with recharge wells, it is reasonable to expect that the system will release all of the base flow. Calculating that the Horse Creek sub-basin upstream of State Road 64 is 39.5 square miles, Dr. Garlanger divided the average streamflow of 29.1 cfs at State Road 64 by the area of the sub-basin and determined that each square mile contributed 0.74 cfs of streamflow. Multiplying this number by the 5.4 miles captured by the ditch and berm system, Dr. Garlanger determined that, during mining, the ditch and berm system would reduce streamflow by 4 cfs, if it removed all base flow (and runoff). This very worst-case scenario would generate the following reductions in streamflow: in Horse Creek at State Road 72, 2.3 percent; in the Peace River at Ft. Ogden, 0.3 percent; and in the Peace River at Charlotte Harbor, 0.2 percent. Dr. Garlanger then calculated the reduction in streamflow in the probable scenario in which the ditch and berm system, with recharge wells, operates properly and releases the base flow, while still retaining all the runoff. Relying principally upon Mr. Lewelling's report on groundwater outflow in various locations within the Horse Creek sub-basin, Dr. Garlanger calculated that the capture rate would decrease from 0.74 cfs per square mile to 0.28 cfs per square mile. Applying a capture rate of 0.28 cfs per square mile times 5.4 miles, the reduction in streamflow, during mining, is more realistically 1.5 cfs. This means that, under the simplified analytic model, the ditch and berm system would reduce streamflow in Horse Creek at State Road 72 by less than one percent, in the Peace River at Ft. Ogden by .13 percent, and in the Peace River at Charlotte Harbor by .09 percent. These figures would represent the same reduction in streamflow caused by a decrease in average annual rainfall of 0.01 inches. Although, as discussed below, Dr. Garlanger also undertook more sophisticated modeling of streamflow during mining, this is a good point at which to address three of Mr. Davis's objections to Dr. Garlanger's during-mining analysis because these objections are more conceptual in nature and are not directed to Dr. Garlanger's model. Mr. Davis contended that the unmined wetlands would become dehydrated because: 1) the ditch and berm system would deprive them of surface flow or runoff from the areas behind the ditch and berm system; 2) the ditch and berm system would deprive them of adequate base flow or groundwater; and 3) water in the ditch would be lost to evapotranspiration. These objections are more applicable to a ditch and berm system without recharge wells. If the only source of water to rehydrate the wetlands is the groundwater running into the mine and rainfall directly on the area behind the berm, the loss of runoff into the area behind the berm and the loss of water to increased evaporation would require additional analysis to assure that adequate water remained to recharge the downstream wetlands through groundwater inputs. However, the recharge wells add additional water, probably from the deeper aquifers, so that adequate water can be supplied the downstream wetlands through groundwater inputs. To the extent that intercepted surface flow reduces water levels in the unmined wetlands, IMC can offset this loss by pumping more water into the ditch and increasing groundwater inputs into these wetlands. Mr. Davis's additional objection about additional evapotranspiration from the riparian wetlands assumes the condition that he claims will not occur--adequate hydration of the riparian wetlands--so it is impossible to credit this concern. Dr. Garlanger next analyzed streamflow by applying a simulation model. More sophisticated than the analytic model discussed in the preceding paragraphs, the uplands portion of this modeling also aided Dr. Garlanger's analysis of the hydroperiods and inundation depths of the wetlands in the no- mine area and the reclaimed wetlands, which are discussed in the next subsection. Dr. Garlanger's simulation model calculates site-specific groundwater outflows based on day-to-day hydrological conditions. Unlike the analytic model, which examined the effect on streamflow only during mining, the simulation model determines streamflow contributions from OFG without any mining disturbance for a 25-year period into the future, during mining, and after reclamation for the same 25- year period used in the no-mining analysis. The modeling proceeded in two stages. First, Dr. Garlanger modeled uplands. Then, inserting the groundwater and runoff outputs from the uplands model into a streamflow model, Dr. Garlanger modeled the riparian system to determine its contributions to streamflow at a point just downstream of OFG. Thus, rainfall is the only addition of water into the uplands system, but rainfall, groundwater outflow from the uplands into the riparian wetlands, and runoff from the uplands into the riparian wetlands are the additions of water into the riparian system. The uplands model is the Hydrological Evaluation of Landfill Performance (HELP) model. Developed for use in analyzing groundwater movement in landfills, HELP generally calculates groundwater outflow based on the hydraulic conductivity of the surficial aquifer divided by the square of the distance from the riparian wetland to the basin divide. In 2001, Dr. Garlanger modified the HELP model (HELPm). The modification multiplies the output from HELP by the square of the maximum height of the water table above the confining layer at the basin divide minus the square of the minimum height of the water table above the confining layer at the riparian wetlands. The only variable in HELPm is the maximum height of the water table above the confining layer; all other values, including those set forth above for HELP, are fixed. The modification improved the HELP model by allowing Dr. Garlanger, among other things, to reduce the extent to which the model is constrained by enabling him to input more realistic hydraulic conductivities. Using HELP, unmodified, Dr. Garlanger had had to input unrealistically high values for hydraulic conductivity. Hydraulic conductivity is either measured in the field or assumed. To simulate OFG without any mining for 25 years into the future, Dr. Garlanger had to obtain an input for hydraulic conductivity. Based on collected data from near the Panhandle as to daily fluctuations in the water table over a two-year period and sub-surface soil composition, as well as other information, Dr. Garlanger determined an average weighted hydraulic conductivity for OFG, pre-mining, of 19 feet per day with a low of 10 feet per day. Dr. Garlanger settled on an initial average weighted hydraulic conductivity of 15 feet per day for the surficial aquifer, but also identified a low-end average of 10 feet per day. As noted above, the contribution of an area of land to streamflow is dependent upon rainfall, evapotranspiration, deep recharge, and the change in storage, which is driven by the elevation of the water table (i.e., the top of the surficial aquifer) as it changes from day to day. Focusing on the vertical components of the water budget, HELPm calculates daily changes in storage, based on water table levels, so as to permit projections of runoff and groundwater outflow from the uplands. For rainfall, Dr. Garlanger relied upon the records of the Wauchula gauge, which is about 10 miles northeast from OFG. Rainfall data for this gauge go back to 1933, although to supplement some missing months, Dr. Garlanger relied on the Ft. Green gauge, which is closer to OFG, but does not go as far back as the Wauchula gauge. To supplement this information on the volume of rainfall, Dr. Garlanger added inputs on the frequency and rate of rainfall. For this calculation, Dr. Garlanger only used rainfall data for the period from 1978 to 2002 because the U.S. Geologic Service has collected streamflow data for Horse Creek at State Road 64 only as far back as 1978. Similar streamflow data for Horse Creek downstream at State Road 72 and for the Peace River go further back. Dr. Garlanger selected this timeframe so he could compare the model output of predicted streamflow to actual streamflow. HELPm calculates evapotranspiration, typically the largest source of water loss, on a daily basis. Dr. Garlanger calibrated evapotranspiration in his simulation by comparing HELPm calculations against average annual values for evapotranspiration for riparian wetlands, uplands, and wetlands in uplands, so as to permit the calculation of an average value of evapotranspiration for the Horse Creek basin above State Road Calibration is the process by which a hydrologist modifies the data inputs to the model based on measured data in order to produce a better match between observed and predicted data. Using generally accepted evapotranspiration values and the standard water-budget formula, Dr. Garlanger calculated average annual evapotranspiration for the Horse Creek basin above State Road 64 of 40.3 inches. He determined the following annual average evapotranspiration rates: riparian wetlands-- 47.5 inches; depressional wetlands--44 inches; seepage wetlands- -47.5 inches; well-drained uplands--34.5 inches; and other uplands--39 inches. Using this information, Dr. Garlanger then found the appropriate average annual evapotranspiration for the OFG uplands that he was modeling, and he reran the model five or six times until it produced outputs for uplands evapotranspiration consistent with this value. For uplands runoff, Dr. Garlanger turned to a well- recognized methodology for estimating the storage available in the uppermost foot of soil, as infiltration is an important factor in determining runoff. For groundwater outflow, Dr. Garlanger uses the one available equation, which is derived from Darcy's Law. Dr. Garlanger then ran his model for the no-mining, during-mining, and after-reclamation options, and he validated the model. In validation, the hydrologist confirms the model's outputs to measured data. In these exercises, Dr. Garlanger compared the predicted groundwater outflows with the empirical values published by Mr. Lewelling and predicted groundwater levels with those measured by IMC near the Panhandle. Dr. Garlanger ran the model with hydraulic conductivities of 10-15 feet per day and drainage times of 5-12 days. He eventually settled on an average hydraulic conductivity of 10 feet per day and an average drainage time of 12 days. Using these values, Dr. Garlanger validated his output by projecting streamflow from the entire 39.5-square mile area upstream of State Road 64, for which data exist. He found that the model produced a reasonable prediction of the flow duration curve. Dr. Garlanger then validated the output by comparing predicted and measured cumulative streamflow from 1978 through 1987, during which time mining in the Horse Creek basin was insignificant. He found a very good matchup between actual data and his model's predictions. Validating the output for average daily and average annual streamflow against actual data, Dr. Garlanger again found that the model performed acceptably. Dr. Garlanger then was prepared to model the 5.4 square-mile area for impact on Horse Creek streamflow at State Road 64 for 25 years without mining, during mining, and for 25 years after reclamation. For during-mining conditions, Dr. Garlanger assumed that the ditch and berm system would capture all of the runoff and none of the groundwater. For post-reclamation conditions, Dr. Garlanger assumed that the cast overburden spoil piles would be parallel to the flow of groundwater or, where that is not practicable, that the top of the spoil piles would be shaved by progressive amounts, ranging from five feet at the groundwater (or basin) divide progressively to 15 feet at the riparian wetland. This is vital to his calculations because of the vast difference in hydraulic conductivity of cast overburden spoil piles as compared to sand tailings. When oriented perpendicular to groundwater flow and unshaved, these spoil piles would act as underground dams, blocking the flow of groundwater. Dr. Garlanger modeled streamflow, in Horse Creek at State Road 64, which is just downstream of the confluence of Horse Creek and West Fork Horse Creek, under two scenarios: hydraulic conductivity of ten feet per day and drainage time of 12 days and hydraulic conductivity of fifteen feet per day and drainage time of five days. For post-reclamation hydraulic conductivity, Dr. Garlanger used 12 feet per day. With the higher streamflow reductions resulting from the lower hydraulic conductivities, Dr. Garlanger projected streamflow reductions, during mining, from 1.07-2.41 cfs and, after reclamation, from 0.10-0.14 cfs. These are average annual values. Generating a flow duration curve for Horse Creek at State Road 64 and using the more adverse data from the lower hydraulic conductivity value, Dr. Garlanger found a slight decrease, during mining, in flow during low-flow conditions, reflecting the mining of the Panhandle tributaries that contributed to groundwater outflow. Generating a stage duration curve, to depict the elevation of the water in the stream during the low-flow condition, Dr. Garlanger demonstrated that the difference is about three inches. After reclamation, as compared to pre-mining conditions, Dr. Garlanger determined that the average flow is decreased by 0.1 cfs, probably due to increased evapotranspiration from the additional reclaimed wetlands. This generates no discernible difference in the two flow duration curves for Horse Creek at State Road 64. Dr. Garlanger thus reasonably concluded that mining would not adversely affect the flow of Horse Creek at State Road 64 or dehydrate wetlands in the no-mine area. He concluded that, after reclamation, the impact would be de minimis as a decrease of 0.1 cfs is beyond the ability to measure flows. Farther downstream, at State Road 72, which is downstream of the confluence of Brushy Creek and Horse Creek, Dr. Garlanger calculated projected streamflow reductions, during mining, from 1.2-2.8 cfs and, after reclamation, from 0.12-0.16 cfs, which are too small to measure. Likewise, there are no discernible differences in the flow duration curves at State Road 72. Downstream of the confluence of Horse Creek and the Peace River, at Ft. Ogden, Dr. Garlanger calculated that the reduction in streamflow caused by mining at OFG would be equivalent to the reduction caused by a decrease of 0.01 inches of rainfall in the Peace River basin. Mr. Davis voiced many objections to Dr. Garlanger's streamflow calculations based on his reliance on HELPm. These objections are addressed at the end of the next section. Mr. Davis also voiced objections to Dr. Garlanger's calculations based on his understatement of the impact of phosphate mining on streamflow. As already noted, Dr. Garlanger made the better case on this issue. Distinguishing between the two rainfall eras in the Peace River basin--1933-1962 and 1969-1998--Dr. Garlanger reported that the measured average streamflow of the Peace River in the latter era was about 4.33 inches lower than the average streamflow of the Peace River in the former era. Finding that decreased average rainfall reduced streamflow by 3.75 inches per year, Dr. Garlanger calculates that the remaining 0.58 inches per year reduction in streamflow was largely due to an increase in deep recharge from 3.37 inches annually in the earlier era to 6.3 inches annually in the latter era. Anthropogenic changes in the Peace River basin have had opposing effects on streamflow. Urbanization, which causes increases in impervious surface, have increased runoff at the expense of evapotranspiration, thus increasing streamflow-- although certain demands of urbanization, such as groundwater pumping for potable water and industrial uses, will increase deep recharge, thus decreasing streamflow. Groundwater withdrawals by agriculture, industrial, utilities, and phosphate mining, net of the returns of these waters, have increased deep recharge, which, as just noted, decreases streamflow. Historically, phosphate mining's profligate use of deep groundwater also released much of the water back to streamflow, although the industry's historic predilection for Land-and-Lakes reclamation increased evapotranspiration and thus reduced streamflow. Converting inches of streamflow to cfs, Dr. Garlanger makes a good case that the streamflow of the Peace River is down about 500 cfs, mostly due to reduced rainfall amounts. About 50 cfs of that reduction is due to anthropogenic effects, and 5-15 cfs of man-caused reductions in the streamflow of the Peace River are due to phosphate mining. By contrast, Mr. Davis unconvincingly attributed a three-inch reduction in streamflow at the South Prong Alafia River to phosphate mining. This reduction in streamflow may be explained by Mr. Davis's failure to apply a lower and more reasonable streamflow assumption, absent mining; a lower and more likely rainfall amount; and a higher and more likely evapotranspiration rate. Wetland Hydroperiods and Inundation Depths 694. In making his groundwater calculations, Dr. Garlanger attempted to predict the behavior of the surficial aquifer, post-reclamation, and the ability of runoff and the water table to support the hydroperiods and inundation depths of the wetlands in the no-mine area and reclaimed wetlands. For this phase of his hydrological work, Dr. Garlanger again used the HELPm for the uplands and a long-term simulation model for the depressional wetlands in the uplands. The long-term simulation model is very similar to the streamflow model used for the riparian-wetland component of the streamflow modeling. Notwithstanding the replacement of the present geology with its more limited vertical permeability with wide bands of sand tailings down to the clay confining layer, Dr. Garlanger believes that deep recharge will remain unchanged by mining and reclamation because groundwater levels will return to their pre-mining elevations. To analyze the ability of the post-reclamation water table to support the reclaimed wetlands, Dr. Garlanger took 12 wetland cross-sections and projected fluctuations in water table and hydroperiod. These are presumably the 13 wetland complexes identified in Figure 13-3, described above. Dr. Garlanger testified about one modeled reclaimed wetland in detail--a freshwater marsh fringed by a wet prairie. This is E046/E047, which is a combined 16.1-acre wetland that is upgradient from E048, which is six-acre mixed wetland hardwoods that will replace the east half of a bay swamp (G166) and mixed wetland hardwoods fringes (G166B and G166C). Dr. Garlanger performs an iterative process based on a post-reclamation topographic map that starts with substantially pre-mining topography. Identifying the HELPm inputs, Dr. Garlanger takes the length of the upland to the riparian system and the assumed hydraulic conductivity based on the relative depths of sand tailings and cast overburden, and he then runs HELPm to determine the daily upland runoff and groundwater outflow. Dr. Garlanger then calculates the maximum height of the water table above the confining layer at any point downgradient from the basin divide to the riparian wetland. To input hydraulic conductivity, Dr. Garlanger testified that he obtains a value "based on the spoil piles and the depth that the spoil pile will be cut down to adjacent to the preserved area." (Tr, p. 2993) Applying the output to a wetlands model that is similar to the streamflow model, Dr. Garlanger then engages in an iterative process in which he adjusts and readjusts the post- reclamation topography to produce the proper elevation of the bottom of each modeled wetland for the hydroperiod that is stipulated for the vegetative community to be created in that location. Besides changing the bottom slope of each seepage wetland, the major adjustments for each wetland are narrowing its outlet or lowering its bottom elevation to extend its hydroperiod and deepen its inundation depth or broadening its outlet or raising its bottom elevation to shorten its hydroperiod and make its bottom elevation more shallow. Dr. Garlanger modeled the iterative process by continuing it late into the hearing, as he and IMC surveyor, Ted Smith, produced a "final" post-reclamation topographic map at the end of the hearing. Actually, even this map is not final, as Dr. Garlanger testified that he and Mr. Smith will produce the final topographic map, for wetlands, after the area is mined, photographed, backfilled, and graded, at which time they will know the location and direction of the cast overburden spoil piles. Dr. Garlanger will then use a calibrated model to account for actual in situ conditions. Due to the flatness of OFG, it is possible, even at this late stage, to regrade the sand tailings, if necessary for hydrological purposes. Monitoring wells will produce substantial data on the hydraulic conductivity of the no-mine area, as well as the hydroperiods of existing wetlands and the frequency with which seepage wetlands release water. Dr. Garlanger and IMC employees will also measure the hydraulic conductivity of the sand tailings and overburden in the reclaimed areas, also to assist their preparation of the final topographic map. As noted above, ERP Specific Condition 16.B.2 requires IMC to model 24 reclaimed wetlands to demonstrate successful water table re-creation and hydroperiod and inundation depth reclamation. Dr. Garlanger applied his models to confirm that, for each of the 24 modeled wetlands, the design topography and hydrology would produce the targeted hydroperiod and inundation depth. Mr. Davis modeled three reclaimed bay swamps. Bay swamps are the hardest wetlands for which to reclaim an appropriate water table due to their long hydroperiod, shallow inundation depths, and seepage characteristics. As noted above, no successful reclamation of bay swamps has ever taken place, except under circumstances inapplicable to OFG. The three reclaimed bay swamps are: E008, a 0.7-acre bay swamp abutting the west side of the Stream 1e series; E063, a 1.3-acre flow-through bay swamp in Stream 5e; and W039, an 11.2-acre bayhead from which Stream 1w will flow. W039 is a very large reclaimed wetland. After the 20.7-acre wet prairie (W003) to be reclaimed at the headwaters of Stream 9w and the 23.8-acre mixed wetland hardwoods (E003) lining the Stream 1e series, W039 is the largest reclaimed wetland at OFG, along with E018/E020, which are the isolated wet prairie fringe and freshwater marsh on the east side of Section 4. Mr. Davis testified as a witness in surrebuttal, which was necessitated by a late change by IMC in post- reclamation topography for these three bay swamps. Mr. Davis implied that he understood these three bay swamps better than he did the other reclaimed wetland systems. The fact is that he did understand these three reclaimed bay swamps better than he did any other reclaimed wetlands. Prior to testifying, at the order of the Administrative Law Judge, Mr. Davis and Dr. Garlanger conferred so that Mr. Davis, in preparing to respond to the "final" post-reclamation topography, would clarify any uncertainty about how Dr. Garlanger was modeling these wetlands and projecting their hydroperiods and inundation depths. Mr. Davis identified Dr. Garlanger's topographical changes to these three bay swamps. For E008, Dr. Garlanger lowered the west end of the wetland by 0.5 feet, extended a 114-foot contour up the channel, just east of an existing 115- foot contour, and possibly adjusted the slope. For E063, Dr. Garlanger lowered the bottom elevation by one foot, so that it can now store 0.3 feet of water, given its overflow popoff elevation. And for W039, Dr. Garlanger removed a slope and flattened the bottom, so that it can store 0.3 feet of water. From Dr. Garlanger's spreadsheets, Mr. Davis found the values for runoff, groundwater, and rainfall entering each wetland. Mr. Davis found that E008 received only 10 percent of its water from runoff, more of its water from rainfall, but most of its water from groundwater inflow. Noting that E008 abuts a reclaimed xeric area, Mr. Davis recalled a 6:1 ratio of groundwater inflow to runoff inflow. Mr. Davis explained that E008 loses most of its water to runoff. Mr. Davis found that the groundwater input for this wetland was consistent with the testimony of biologists, such as Deputy Director Cantrell, that bay swamps are primarily groundwater-driven systems, but questioned the absence of groundwater outflow to the adjacent, down-gradient riparian wetland (E003). For E063, however, Mr. Davis found that inputs from runoff, a more important source of water for this wetland, were about the same as inputs from groundwater. Although he did not testify to this fact, E063 is an unusual reclaimed bay swamp because it is the only one that will serve as a flow-through wetland, situated, as it is, in the middle of Stream 5e. This would seem to explain the larger role of surface water inputs than is typical of bay swamps adjacent to uplands. For W039, Mr. Davis found a small percentage of surface water and larger percentages of groundwater and rainfall as water sources for this wetland. Rainfall inputs would be greater due to the large area of the wetland, according to Mr. Davis. As a headwater wetland abutting uplands, W039 would be expected to have a higher input ratio, than E063, of water from groundwater versus runoff. Mr. Davis noted that W039 lost about half of its water to evapotranspiration, which would also make sense given its large surface area, and half to runoff, which would make sense given its status as a headwater wetland for Stream 1w. Mr. Davis then ran his MIKE SHE model to predict the hydroperiod for each wetland. This model is described in more detail at the end of this subsection. In simulating the hydrology of the reclaimed OFG, Mr. Davis assumed that the overburden spoil piles would be parallel to the direction of groundwater flow and eliminated any differential depressional storage, but he continued to assume two inches of depressional storage. (These assumptions are also discussed in connection with the MIKE SHE model.) Mr. Davis found that the 11.2-acre W039 will have a perfect hydroperiod. Its inundation hydroperiod will range from 8.6 months to 11.0 months, from bottom to top. Its saturation hydroperiod, which is water measured to a depth of 0.5 foot below the bottom of the wetland, will range from 8.8 months to 11.1 months, from bottom to top. Mr. Davis found that the 1.3-acre E063 will have a hydroperiod of 11.9 months, which is 0.9 months too long. Mr. Davis found that the 0.7-acre E008 will have a hydroperiod of 2.7 months for inundation and 4.6 months for saturation, which is about four months too short. 714. Crediting Mr. Davis's testimony, IMC's successful reclamation of an 11.2-acre bay swamp, dependent upon upland surface water and groundwater inputs, would be an unprecedented success. As discussed below, Mr. Davis's depressional assumption is not credited, so the hydroperiod of E063 would be shorter than the 11.9 months that he has calculated. Also, this reclaimed system will be a seepage system that would not permit the build-up of much standing water, so, even crediting Mr. Davis's calculations, Dr. Garlanger has achieved the proper hydrology for its reclamation too. It is more difficult to resolve the conflict in simulated hydroperiods for E008. E008 is a more complicated wetland to model because it is part of a reclaimed complex consisting of nine reclaimed wetlands. No other wetland complex to be reclaimed at OFG approaches this number of different communities in a single complex. Except for E018, which, although 30.7 acres, is a much simpler wetland system because it is an isolated complex of three wetlands, no other wetland complex to be reclaimed at OFG comes close to the area of the Stream 1e series' wetlands complex, which totals 35.1 acres, or over 10 percent of the wetlands to be reclaimed at OFG. Mr. Davis's unjustified depressional assumption generates excessively wet conditions, but, for E008, he found its hydroperiod to be too short by at least 3.4 months. And, of course, E008 is the difficult-to-reclaim bay swamp. The two models invite comparisons at this point. Mr. Davis's model, MIKE SHE, enjoys wide usage for calculating streamflows, hydroperiods, and inundation depths, as it has been used in these cases. MIKE SHE has been used successfully in large-scale settings. On the other hand, HELP was designed for calculating water levels in landfills. For calculating the uplands component of streamflow and hydroperiod, HELPm is used by Dr. Garlanger alone. The author of HELP's routine for lateral drainage and the subroutine for unsaturated vertical flow, Bruce McEnroe, pointed out that this model could accommodate only a regular, homogenous drainage layer, as would be found in a landfill, and could not accommodate the irregular, heterogeneous aquifer layer, which Dr. Garlanger was modeling. Mr. McEnroe also explained that the downstream boundary condition of HELP, which is free drainage, does not resemble the actual downstream boundary condition, in which groundwater cannot typically drain freely, and this limitation applies equally to the pre-mining and post-reclamation scenarios. Mr. McEnroe also found a mathematical error, but Dr. Garlanger later showed that it would alter results inconsequentially. Complaining about Dr. Garlanger's failure to provide comment lines in his source code, where he modified HELP, Mr. McEnroe emphasized that the model, as modified and used by Dr. Garlanger, really was no longer the HELP model. Counterposed to Mr. McEnroe's testimony was the testimony of Mark Ross, an associate professor of civil and environmental engineering at the University of South Florida College of Engineering. Professor Ross has 20 years' experience in hydrological modeling and has worked with the Florida Institute of Phosphate Research model that Mr. Davis helped develop, but which no longer is supported or in much use. Professor Ross conducted a peer review of the HELPm model, spending 20-30 hours in the process, exclusive of time spent discussing the model with Dr. Garlanger. Professor Ross endorsed Dr. Garlanger's use of a single value of .75 for evapotranspiration in riparian wetlands and his use of a weighted hydraulic conductivity. Professor Ross acknowledged that more complex models were available, but correctly opined that the simplest model was best if it could accommodate all of the available data. Although the emphasis in his testimony was on streamflow, Professor Ross addressed wetlands and their hydroperiods sufficiently to assure that his opinion of the sufficiency of the HELPm model covered both tasks. The interplay between the complexity of the model and availability of data emerged more clearly with the testimony of Authority hydrologist Henrik Sorensen, who developed code for the MIKE SHE model. Successful applications of this model range from the Danube River to Kuala Lampur to South Florida. The Danube River project was the construction of a dam, and hydrologists ran MIKE SHE to project the impact of the diverted streamflow on riparian wetlands. The Kuala Lampur project was the construction of a new city, and hydrologists ran MIKE SHE to project the impact of vastly changing land uses on the water level in the peat wetlands. South Florida projects have included a number of analyses of wetlands impacts of proposed activities. At Lake Tohopekaliga, hydrologists used MIKE SHE to project the effects on the water table and nearby wetlands of a 6-7 foot drawdown of the lake to remove muck. Unlike HELPm, MIKE SHE is an integrated model, meaning that all of its components are contained in a single model. Significant for present purposes, MIKE SHE integrates surface water and groundwater analysis in a single model, so as to facilitate the modeling of the interaction between a stream and surficial aquifer. This is especially important for simulating interactions between the surface and shallow water tables. MIKE SHE is a physically based model, meaning that it is based on equations derived from the laws of nature. In using HELPm and the spreadsheet models for streamflow and hydroperiod, Dr. Garlanger of course relies on laws of nature, but also relies on conceptualizations to link equation-driven outputs. As Mr. Sorensen explained, MIKE SHE is based on differential equations, so that it is dynamic as to time and space, but Dr. Garlanger's models are based on analytic equations, so they are limited to state-to-state solutions. The conceptualizations that link outputs and essentially integrate Dr. Garlanger's pairs of models are only as good as the conceptualizer, who, in the case of Dr. Garlanger, is very good, but conceptualizations can become so pervasive that the model loses its reliability and adds little or nothing to a conceptual exercise using an analytic model. Unlike MIKE SHE, HELPm is a lump-parameter model, which necessitates the input of average hydraulic conductivities, evapotranspiration rates, and leaf area indexes over relatively large areas and, in the case of evapotranspiration rates, sometimes at the expense of their calculation. Constraining a model, by inputting, rather than calculating, values to force results within an expected range, may resemble validation, but when the inputs become unrealistic, as Dr. Garlanger's hydraulic conductivity values were before he modified HELP, the model's credibility is impaired, not enhanced, by the process. Conceptualizations can eventually constrain modeled simulations so as to undermine confidence in the model's outputs. Unlike HELPm, MIKE SHE is spatially distributed, so that different land use types may be distributed throughout the model. HELPm may input different land uses for different basins, but MIKE SHE allows the user to input different land uses for different cells, each of the user's choice as to size. As noted by Mr. McEnroe, HELP was developed to simulate a shallow system running to a drain, and it remains well-suited for this task. In tracking the water table, HELPm assumes a constant thickness of the drainage layer, which reflects the design of landfills, not natural systems. As IMC contends, the post-reclamation geology will be far simpler than the pre-mining geology at OFG, but even the post-reclamation hydrology is far more complex than that of a landfill. With a 35:1 ratio of hydraulic conductivities, the surficial aquifer must negotiate the 330-foot wide valleys of sand tailings separated from 180-foot wide plateaus by 33-degree overburden slopes. Overburden peaks would have been simpler than overburden plateaus because the effective depth of sand tailings would have been at least five feet over nearly all of the mined area; as already noted, these overburden plateaus mean that, exclusive of shavings and toppings, overburden at less than five feet finished depth occupies about 28 percent of the surface of the mined area. This geology is much more complicated than the uniform geology of a landfill, especially when trying to project the surface water and groundwater inputs and outputs of shallow wetlands and streams, some of which will span several phases of this unusual geology. Unlike HELPm, MIKE SHE is used for its designed purpose when used for projecting streamflow and wetlands hydroperiods and inundation depths. It is widely used, peer- reviewed and supported with two or three updates annually. Mr. Sorensen made an interesting point when he opined that HELPm does a good job with average flows. This explains HELPm's reliability in calculating streamflows. Notwithstanding the calculation of peak discharge curves, accurate streamflow calculations--at least in this part of Florida--tolerate calculations based on average conditions and approximations much better than do accurate calculations of hydroperiod and inundation depths, especially concerning shallow wetlands in wetland complexes. MIKE SHE is not without its shortcomings, at least as applied in these cases. For his MIKE SHE simulation, Mr. Davis did not simulate first- and second-order streams, perched groundwater flow (i.e., interflow), or shallow concentrated overland flow, and, despite the model's sophistication, he still had to perform conceptualizations, such as of drainage. Mr. Davis's first two post-reclamation runs, prior to his final run of the three bay swamps, suffered from faulty assumptions. First, he assumed depressions and differential depressions based on a settling that Dr. Garlanger, with geotechnical engineering experience that Mr. Davis lacks, testified convincingly would not occur. Second, Mr. Davis assumed that the spoil piles would be oriented perpendicular to the direction of groundwater flow. Mr. Davis likely knew that IMC had agreed on December 23, 2003, to orient the mine cuts parallel to the direction of groundwater flow, to the extent practicable. Mr. Davis modeled the perpendicular scenario presumably due to the vagueness of the assurance, set forth only in the introduction to the January submittal, and thus unenforceable, that IMC would grade or shave the tops of overburden plateaus of spoil piles running perpendicular to groundflow. When performing his modeling, Mr. Davis could not have known of Dr. Garlanger's recommendation, as contained in a letter dated April 29, 2004--less than two weeks prior to the start of the final hearing--that IMC shave 5-15 feet off any perpendicular cast overburden spoil piles or that IMC would accept Dr. Garlanger's recommendation during the final hearing. As agreed to by IMC during the hearing, it will bulldoze any spoil piles oriented perpendicular to the direction of groundwater flow from 5-15 feet: the cut would allow five feet of sand tailings nearest the groundwater divide and would progressively deepen to allow 15 feet of sand tailings nearest the stream. For an average width of overburden of 195 feet with five feet thickness of sand tailings, which is the width calculated above under the less-favorable hydrological scenario with regard to the bases of the sand tailings valleys and cast overburden plateaus, Dr. Garlanger calculated a hydraulic conductivity of seven feet per day. Mr. Davis assumed that IMC would not be able to orient the spoil piles parallel to groundwater flow, but nothing indicates that the proper orientation of these piles will be impracticable over significant areas of land. If a turn of the dragline near Horse Creek leaves a relatively short area of spoil perpendicular to groundwater flow and if IMC will shave this area as it does rows, shaving the pile down 15 feet would substantially improve water table/shallow wetland interaction over the portion of the mined area that is left with an overburden plateau. Conceptualizing the contingency of a spoil pile blocking groundwater flow close to Horse Creek, such as from the U-turn of the dragline at the end of a row, the bulldozing of that spoil pile down to an effective 15-foot depth would leave a depth of at least 15 feet of sand tailings running 1095 feet, as measured alongside of Horse Creek out to a point at which the spoil piles would again run parallel to groundwater flow. If all of the spoil piles turned at Horse Creek and assuming that IMC will cut down the cast overburden piled against the sides of the mine cuts, for the distance equal to the distance between the edge of the no-mine area to the start of the curve, sand tailings would be at least 15 feet deep. The real problem with MIKE SHE, as applied at OFG, is its sophistication. Mr. Sorensen admitted that he had not reviewed the data available for this part of Florida, but claimed that he knew, based on his work in South Florida, that sufficient data existed to run the MIKE SHE model. This is highly unlikely. In addition to Mr. Davis's observation about the lack of data, the record reveals a slimmer universe of data than Mr. Sorensen imagined to exist. Measured values for the hydraulic conductivity of pre-mined or post-reclaimed areas are largely unavailable. For specific reclamation sites, little data exist of pre-mining and post-reclamation soil textures, water tables, and wetland hydroperiods and stage elevations. By volume, the two most critical inputs are rainfall and evapotranspiration, which must be calculated or assumed because, for practical purposes, it cannot be directly measured. A major determinant of evapotranspiration is the water table elevation. The critical inputs of rainfall and water table elevations illustrate the shortcomings of the data for these cases. Rainfall records in the general area cover a long period of time, except that collection points are usually far enough away from the site to be analyzed as to raise the probability of significant daily fluctuations, which average out over time. MIKE SHE inputs rainfall spatially and hourly while HELPm inputs a single daily value. Without regard to any particular application, MIKE SHE is the superior model on this point, but its superiority is wasted when the data of hourly rainfall for individual cells are unavailable and values, often based on much longer intervals at much greater distances, must be interpolated. Records for most surficial aquifer monitoring wells in the area date back only to the early 1990s and are fairly spotty as to locations. MIKE SHE inputs spatially distributed groundwater elevations, while HELPm inputs a single value. If, as Mr. Davis testified, multiple inputs of water table elevations, for which direct OFG data are unavailable, must rely on a hydrologist's knowledge of surficial aquifer responses, MIKE SHE would share the same tendency of HELPm--at least for this variable--of relying on external guidance to produce its output. By contrast, the scientists studying the Danube River had lacked the resources for many years to do much more than collect data, so the data for the Danube MIKE SHE simulation was much richer than the data available at OFG. In such data-rich environments, MIKE SHE is the superior model for wetland hydroperiods and inundation depths. The question in these cases is whether, given the limitations of the OFG data and HELPm in simulating hydroperiods and inundation depths, IMC has still provided reasonable assurance of the reclamation of functional hydroperiods and inundation depths for reclaimed wetlands. IMC's case as to reclaimed hydroperiods and inundation depths is undermined by certain aspects of the use of HELPm in these cases. The scientific method, which lends confidence to analysis-driven conclusions to the extent that others can reproduce the analytic process, is poorly served by computer code that is modified without notation and modeling results that no one can reproduce due to the repeated intervention of the modeler, applying his touch and feel to the simulation. Only at the end of nearly eight weeks of hearing and a conference between Dr. Garlanger and Mr. Davis could Mr. Davis finally gain sufficient understanding of Dr. Garlanger's modeling process to make a meaningful comparison between his conclusions and Dr. Garlanger's conclusions for the hydroperiods and inundation depths of three wetlands. When applied to project streamflow, with its relative amenability to average inputs, and when applied to projecting the hydroperiods and inundation depths of deeper and more isolated wetlands, HELPm, as used by Dr. Garlanger, who, as an experienced and highly competent hydrologist, can adjust and re- adjust inputs and outputs, produces reasonable assurance. However, Mr. Davis's analysis of Dr. Garlanger's work and other factors preclude a finding that Dr. Garlanger has provided reasonable assurance that IMC will reclaim a functional hydroperiod and inundation depths for E008. The finding in the preceding paragraph implies no similar rejection of Dr. Garlanger's modeling of the other wetlands. Most of the modeled reclaimed wetlands are isolated and do not present the challenge of simulating complex interactions among them, where an error in modeling an upgradient wetland will cause an error in modeling a downgradient wetland. A couple of the modeled reclaimed wetlands are headwater wetlands, which Dr. Garlanger has demonstrated his ability to model in W039. Outside of the Stream 1e series, the only wetlands similar in location to E008, as attached to a riparian system, will be E040, E048, E054 complex, and W044, of which only E048 is to be modeled. Mr. Davis also addressed E048 in surrebuttal. A wetland forested mixed, E048 will replace a high-functioning bay swamp abutting, or a part of, the riparian wetlands of Horse Creek. Mr. Davis admitted that he could agree with Dr. Garlanger's analysis of inputs into E048 from isolated reclaimed wetlands upgradient of E048, so that he could agree with Dr. Garlanger's projected hydroperiod for this reclaimed wetland. However, Mr. Davis explained that E008 is located in the flatter Panhandle, but that E048, as well as the other reclaimed wetlands listed in the preceding paragraph, are located in areas characterized by steeper grades and more xeric conditions, which support Dr. Garlanger's emphasis on groundwater inputs over surface water inputs. Peak Discharges During mining, the ditch and berm system prevents adverse flooding. If it operates as intended, the ditch and berm system delays the release of runoff from OFG by re-routing it through one of the NPDES outfalls. This decreases peak discharge downstream of OFG. Presumably, IMC will operate the recharge wells in anticipation of storm events--allowing the water levels to lower in advance of storms and maintaining higher water levels in advance of drier periods--so as not to raise the possibility of flooding by way of accelerated discharges through the NPDES outfalls. Failure of the ditch and berm system is highly improbable. The sole failure reported in this record did not involve a system as engineered as the one proposed for OFG, according to Dr. Garlanger. Another possible source of flooding during mining arises from the designed blockage of flow from unmined areas. IMC plans a single, elevated pipeline crossing across Stream 2e, and Dr. Garlanger explained that the design of the culvert, as part of this temporary crossing, will not result in adverse flooding during mining. Similar design work by Dr. Garlanger will be necessitated, if DEP issues a Final Order incorporating the recommendation below that the Stream 1e series and its 25-year floodplain also be placed in the no-mine area. The riparian wetlands for the Stream 1e series are narrowest along Stream 1ee, so this may be the location that DEP determines for the dragline walkpath corridor, if DEP determines that IMC may maintain a dragline crossing anywhere along the Stream 1e series. The sole issue, during mining, involving peak discharges is a legal question, which is whether IMC's ditch and berm system has the capacity to accommodate the design storm. As noted below, the design storm is the 25-year storm, if the ditch and berm system is an open drainage system, and the design storm is the 100-year storm, if the ditch and berm system is a closed drainage system. The capacity of the proposed ditch and berm system is designed to accommodate the 25-year storm, but not the 100-year storm. The facts necessary to determine if the ditch and berm system is open or closed are set forth above. In its Final Order, DEP must characterize a system that is closed in the sense of the availability of a passive discharge outfall, but open in the sense that, with the intervention of pumps--assuming the availability of electricity during a major storm or alternative sources of power--excessive volumes of water may be moved to an NPDES outfall. This is a minor issue because, even if DEP determines that the ditch and berm is a closed system, IMC may easily heighten the berm as necessary to accommodate the 100-year storm. Post-reclamation, many of the changes that IMC will make to OFG will reduce peak discharges. The agricultural alterations that ditched and drained wetlands accelerated drainage and increased peak discharges downstream, as compared to pre-existing natural drainage rates and peak discharge volumes. The removal of these ditches, the net addition of 24 acres of forested wetlands and 48 acres of herbaceous wetlands, the addition of sinuosity and in-stream structure to the reclaimed streams, and the redesigning of the banks of the reclaimed streams so as to permit communication between the reclaimed streams and their floodplains will attenuate floodwaters, slow the rate of runoff, increase temporary storage, and ultimately reduce peak discharges from their present values. Dr. Garlanger modeled peak discharges using the Channel Hydrologic Analysis Networking (CHAN) model, which is a widely accepted model to simulate peak discharges. As already noted, Mr. Loper found several inconsistencies and flaws in earlier modeling, but Dr. Garlanger, undeterred, re-ran the CHAN simulations, incorporating Mr. Loper's findings, as Dr. Garlanger deemed necessary. The bottom line is that, post-reclamation, very small increases in peak discharges will occur at the Carlton cutout and would occur at some property immediately downstream of the point at which Horse Creek leaves OFG. The owners of the Carlton cutout consented to the very minor flooding of their pasture land, and IMC, of course, has no objection to the very minor flooding of its downstream property. Even absent these consents, the very limited extent and frequency of flooding, given the prevailing agricultural uses in the area, could not be characterized as adverse. Among the points raised by Mr. Loper was the absence of mapping of any floodplain besides the 100-year floodplain of Horse Creek. The omission of other floodplains is of environmental or biological importance, but not direct hydrological importance. If for no other reason than that IMC will replicate pre-mining topography, especially at the lower elevations, there will be no loss of floodplain storage. 4. Water Quality Water quality violations characterize past efforts to reclaim streams, other than Dogleg Branch, but the good water quality at Dogleg Branch means that the phosphate mining industry can reclaim streams and maintain water quality, post- reclamation. The intensive engineering in IMC's Stream Restoration Plan raises the prospect of successfully reclaimed water quality, especially among the simpler, more altered stream systems to be reclaimed. There is little doubt that, during mining, few impacts to water quality take place. The ditch and berm systems in place during the upstream mining in the Horse Creek sub-basin have permitted no degradation of water quality. Given the present condition of most of the tributaries and extensive agricultural alterations of most of OFG, successful reclamation may be expected to result in certain changes to water quality, among already-altered tributaries, at least once the reclaimed communities have established themselves. Successful reclamation of these streams and their channels should lower turbidity, by replacing their incised, unstable stream channels and banks with stable channels and banks. The addition of riffles and structure to the stream bed should raise dissolved oxygen levels in these streams. Excluding cattle from these streams, by placing cattle ponds away from Horse Creek and vegetatively screening Horse Creek and the tributaries, should lower adverse impacts, such as turbidity, due to cattle damage to the banks, and nutrient loading, due to cattle waste discharges. Phosphorus is sometimes temporarily higher after mining, but this may be merely a trophic surge. Water temperature will cool with the addition of forested riparian wetlands, once the canopy develops, where none presently exists. However, none of these effects can be anticipated with the reclamation of the relatively pristine Stream 1e series. Other reclamation activities may also be anticipated to improve water quality. These activities include adding net wetlands area, replacing low-functioning wetlands with wetlands with the potential to achieve high-functioning levels, concentrating wetlands more around streams, adding supportive uplands, and otherwise increasing storage and slowing runoff. These activities will raise the level of natural filtration, compared to the natural filtration presently performed at OFG. Wildlife Management and Habitat The wildlife management plans are reasonable accommodations of wildlife that presently use OFG, based on the frequency of the usage by each species and the degree of protection afforded certain species. It is important that IMC update wildlife utilization information for the period that elapses between the site visits and the commencement of mining; wildlife usage by some species, especially the Audubon crested caracara, was discovered shortly before the hearing and, if later found to be more intense, will require more intensive wildlife management plans. Likewise, DEP will need confirmation of FWC's approval of IMC's gopher tortoise relocation plan. Always of especial concern is the Florida panther. Obviously, the accommodations necessary for one or two male Florida panthers visiting OFG are far less intensive than those necessary if a breeding pair had established themselves at the site. Ms. Keenan testified that the ERP/CRP approval should have incorporated the entire Habitat Management Plan. Although the ERP and CRP approval would be strengthened by the incorporation of the Habitat Management Plan, and DEP may elect to do so in its Final Order, the provisions actually incorporated adequately address wildlife management concerns. The evidence fails to establish that OFG, which has been logged over the years, presently supports red cockaded woodpeckers. Clearly, as is the case with the Audubon's crested caracara, IMC is committed to develop, prior to mining, appropriate management plans that meet the needs of whatever species are found using OFG between the hearing and the start of mining. In general, the reclamation of OFG will improve the value of the area for wildlife habitat. The concentration of reclaimed wetlands reduces induced edge by 36 miles. Induced edges artificially increase predation and decrease the function of the upland/wetland interface for those aquatic- or wetland- dependent species that rely on adjacent uplands during parts of their life cycle. The increased breadth of the riparian wetlands, which has been detailed above, also improves wildlife utilization and habitat values by discourage cattle from using the streams and adjacent wetlands. IMC's reclamation plan slightly increases the area of cattle ponds and locates them farther away from sensitive wetlands and streams. IMC's reclamation plan also serves the often- overlooked needs of amphibians. The creation of isolated and ephemeral wetlands, which will not receive floodwaters from Horse Creek or its tributaries in most storm events, will enable these amphibians to develop sustainable populations and flourish. At present, two factors have led to artificially high levels of predation of these amphibians by small fish. Ditching of formerly isolated wetlands and the proximity of still- isolated wetlands to tributaries and their connected wetlands-- so as to allow runoff to connect the two systems during storm events--allow small fish to enter the habitat of the amphibians and prey upon them at artificially high rates. Mitigation/Reclamation--Financial Responsibility IMC has never defaulted on any of its reclamation or mitigation responsibilities. Its mitigation cost estimates are ample to cover the listed expenses of the proposed wetlands mitigation, with two exceptions. For reasons set forth in the Conclusions of Law, IMC is not required to post financial security at this time for any CRP reclamation, such as the reclamation of uplands not relied upon by aquatic- and wetlands- dependent species, that is not also ERP mitigation. However, the listed expenses omit two important items of ERP mitigation. First, the listed expenses omit Dr. Garlanger's fees for final engineering work on wetlands hydroperiods and inundation depths after backfilling has been completed. This is an expense covered under reclamation, as well as mitigation, pursuant to Chapter 378, Part III, and Chapter 373, Part IV, Florida Statutes, respectively. Second, the listed expenses omit the cost of acquiring sand tailings, transporting them to the mine cut, and contouring them. For the reasons discussed in the Conclusions of Law, the cost of obtaining and transporting the sand tailings is not required under reclamation, pursuant to Chapter 378, Part III, Florida Statutes, but is required under mitigation under Chapter 373, Part IV, Florida Statutes. Charlotte County contends that the cost of obtaining, transporting, and contouring sand tailings is $35,588 per acre, according to Mr. Irwin. This represents $10,588 per acre, as Mr. Irwin's "best guesstimate" for earthmoving, which seems to include the stripping and preserving of the A and B horizons, and $25,000 per acre for the shaping of wetland reclamation units. This testimony includes items for which financial security is not required, such as preserving the A and B horizons, and excludes the third-party cost of acquiring sufficient sand tailings to backfill the OFG mine cuts to the post-reclamation topography and transporting these sand tailings to OFG. The record supplies no information on these costs.
Recommendation It is RECOMMENDED that the Department of Environmental Protection issue a Final Order: Granting the ERP with the conditions set forth in paragraph 884 above. Approving the CRP with the conditions set forth in paragraph 919 above. Approving the WRP modification when the ERP and CRP approval become final and the time for appeal has passed or, if an appeal is taken, all appellate review has been completed. Dismissing the petition for hearing of Petitioner Peace River/Manasota Regional Water Supply Authority for lack of standing. DONE AND ENTERED this 9th day of May, 2005, 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 9th day of May, 2005. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Greg Munson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Douglas P. Manson Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606-2543 John R. Thomas Thomas & Associates, P.A. 233 3rd Street North, Suite 101 St. Petersburg, Florida 33701-3818 Edward P. de la Parte, Jr. de la Parte & Gilbert, P.A. Post Office Box 2350 Tampa, Florida 33601-2350 Renee Francis Lee Charlotte County Attorney's Office 18500 Murdock Circle Port Charlotte, Florida 33948 Alan R. Behrens Desoto Citizezs Against Pollution 8335 State Road 674 Wimauma, Florida 33598 Alan R. Behrens 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Gary K. Oldehoff Sarasota County Attorney's Office 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Thomas L. Wright Lee County Attorney's Office 2115 Second Street Post Office Box 398 Ft. Myers, Florida 33902 Rory C. Ryan Holland & Knight, LLP Post Office Box 1526 Orlando, Florida 32802-1526 Frank Matthews Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Susan L. Stephens Holland & Knight, LLP Post Office Box 810 Tallahassee, Florida 32302-0810 Francine M. Ffolkes Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue There are two main issues in this case. The first is whether Respondent, NNP-Bexley, Ltd. (NNP-Bexley), has provided Respondent, Southwest Florida Water Management District (the District), with reasonable assurances that the activities NNP- Bexley proposes to conduct pursuant to Environmental Resource Permit (ERP) Application No. 43013740.004 (the Permit) meet the conditions for issuance of permits established in Sections 373.413 and 373.414, Florida Statutes (2007), Florida Administrative Code Rules 40D-4.301 and 40D-4.302, and the Environmental Resource Permit Information Manual, Part B, Basis of Review (BOR).1 The second is whether Petitioner, Dr. Octavio Blanco (Blanco), participated in this proceeding for an improper purpose so as to warrant the imposition of sanctions under Section 120.595(1), Florida Statutes.2
Findings Of Fact Blanco is a resident of Pasco County, Florida. Blanco is a trustee and beneficiary of an unrecorded Land Trust Agreement, dated December 19, 1996, known as Trust Number 99. The Trust holds title to real property (the Blanco Property) located to the south of the NNP-Bexley property. The Blanco property is approximately 100 acres and primarily agricultural. It has a narrow frontage along State Road (SR) 54, and is directly east of the Suncoast Parkway. A wetland known as Wetland A3 is partially located on the northern portion of the Blanco property. NNP-Bexley is a Florida limited partnership between the Bexley family and NNP-Tampa, LLC, and is the applicant for the ERP at issue in this case. Newland Communities, LLC, is the project manager for NNP-Bexley under a project management agreement. The ERP at issue in this case would authorize construction of a new surface water management system to serve Phase I of the Bexley Ranch Development of Regional Impact (DRI), which is a 6,900-acre mixed use, residential community. Phase one consists of a 1,717-acre residential subdivision in Sections 7, 8, and 16-20, Township 26 South, Range 18 East, Pasco County, Florida (the Subject Property), with 735 residential units, both single and multi-family, and associated improvements, including widening SR 54 and constructing Sun Lake Boulevard and Tower Road (collectively, the Project). The Subject Property is located North of the Blanco property. Like the rest of the land subject to the Bexley Ranch DRI, the Subject Property is predominantly agricultural land used for raising cattle, sod farming, and tree farming. There is little native vegetation and limited habitat value for wildlife in the uplands. The Subject Property is composed of approximately 654 acres of wetlands and 1063 acres of uplands. Most of the wetlands will be preserved, including many as part of a wildlife corridor along the Anclote River that is proposed to be dedicated to Pasco county. The Bexley Ranch DRI has been extensively reviewed. Including the DRI approval, it has received 23 separate development approvals to date. A Site Conditions Assessment Permit (SCAP) issued by the District established existing conditions on the NNP-Bexley Property for ERP permitting purposes, including wetland delineations, wetland hydroperiods, pre-development flows, drainage flow patterns, and the pre- development flood plain. The SCAP was not challenged and is not subject to challenge in this proceeding. Surface Water Management System The Subject Property accepts off-site drainage flows from the east and from the south. All drainage exits the Subject Property to the west, into property owned by the District. There is a culvert under an abandoned railroad crossing between the Subject Property and the Blanco property that directs surface water flows into the Subject Property. That culvert controls water elevations on the Blanco property. The surface water management system consists of a series of wet detention facilities, wetland creation areas, and floodplain mitigation designed to control water quality, quantity, and floodplain elevations. The design of the surface water management system was optimized and environmental impacts were reduced by using created wetlands for floodplain attenuation. Information from the SCAP was used to create pre- development and post-development Inter-connected Pond Routing (ICPR) computer models of drainage relevant to the Subject Property. The ICPR models were used to design a surface water management system that will avoid adverse on-site or off-site impacts and provide required water quality treatment. The ICPR models showed that the in-flows and out-flows to and from the Project site will not be adversely impacted by the proposed activities. The proposed surface water management system will not cause adverse water quantity impacts to receiving waters or to adjacent land, including Dr. Blanco's property. The Phase I project will not cause adverse impacts to existing surface water storage and conveyance capabilities and will not adversely affect the quality of receiving waters such that state water quality standards will be violated. The proposed water quality treatment system utilizes ponds for treatment and attenuation. Flow will be controlled by outlet structures. During construction, best management practices will be used to control sediment run-off. The surface water management system provides adequate water quantity and quality treatment and is designed to meet the criteria in Section 5.2 and BOR Section 6. Wetlands and Associated Impacts The wetlands within the Subject Property consist primarily of moderate-quality forested wetlands that have been selectively logged in the past. Previously isolated wetlands have been connected by surface water ditches. Through multiple iterations of design, direct wetland impacts from the Project were reduced from 86 to approximately of the 654 acres of wetlands on the Subject Property. Of those 24 acres, almost half are man-made surface water ditches. There will be direct impacts to 13.6 acres of wetlands that will require mitigation, which is approximately two percent of the total wetlands on the Subject Property. Most of the direct wetland impacts are the result of required transportation improvements such as roadway crossings. Secondary impacts also were considered. However, the proposed ERP requires a minimum of 15 feet and an average of 65 feet of buffer around wetlands on the Subject Property. The uplands have been converted into improved pasture or silviculture that lack native vegetation and have limited habitat value. According to the evidence, given buffers that exceed the District's criteria of a minimum 15 feet and average feet, no "additional measures are needed for protection of wetlands used by listed species for nesting, denning, or critically important feeding habitat"; and any secondary impacts from the expected residential development on a large percentage of the uplands on the Subject Property and subsequent phases of the Bexley DRI are not considered to be adverse. See BOR Section 3.2.7. Extensive wildlife surveys were conducted throughout the breeding season at all relevant times for sand hill cranes, wading birds, and all listed species. No colonies of listed bird species, such as wood storks, herons, egrets, or ibises, were found on the Project site; and no listed species was found to utilize the site for nesting. Mitigation Under the proposed ERP for the Project, approximately 80 acres of wetlands are to be created for floodplain attenuation and mitigation to offset unavoidable wetland impacts. The proposed mitigation areas are to be excavated to relatively shallow depths and planted. All the mitigation is on the Subject Property. The State's mandated Uniform Mitigation Assessment Method (UMAM) was used in this case to determine the amount of mitigation "needed to offset adverse impacts to wetlands and other surface waters." Fla. Admin. Code R. 62-345.100(1). Generally, UMAM compares functional loss to wetlands and other surface waters to functional gains through mitigation. In applying UMAM in this case, it does not appear that NNP-Bexley considered any functional loss to wetlands and other surface waters from the use of a large percentage of the uplands on the Subject Property and subsequent phases of the Bexley DRI for residential development. Apparently, impacts resulting in any such functional loss to wetlands and other surface waters were treated as secondary impacts that were not considered to be adverse because they were adequately buffered. See Finding 17, supra. In addition, "the amount and type of mitigation required to offset . . . [s]econdary impacts to aquatic or wetland dependent listed animal species caused by impacts to uplands used by such species for nesting or denning" are evaluated and determined by means other than "implementation of Rules 62- 345.400 through 62-345.600, F.A.C." Fla. Admin. Code R. 62- 345.100(5)(b). In any event, the undisputed evidence was that the uplands have been converted into improved pasture or silviculture that lack native vegetation and have limited habitat value, and there was ample evidence that UMAM was used properly in this case to determine the amount of mitigation "needed to offset adverse impacts to wetlands and other surface waters." Id. Without any evidence to the contrary, the evidence in the record is accepted. Based on the accepted UMAM evidence, wetland impacts resulted in 6.36 units of functional loss. The functional gain of the proposed mitigation calculated using UMAM is 18.19 units, more than offsetting Project impacts to wetlands on the Subject Property. Proposed Excavations for Ponds and Wetland Creation Blanco's expressed concerns focus on a 30-acre wetland to be created in the southwest corner of the Subject Property for mitigation with a secondary benefit of floodplain compensation credit. Referred to as M-10, this wetland is proposed to be created by excavating uplands to a depth of approximately two and one half feet, which is approximately half a foot below the seasonal high water line (SHWL). Because it is controlled by the railroad culvert near the property boundary, Wetland A3 will not be negatively impacted by M-10. It will not lose water to M-10 or any of the proposed excavations except in periods of relatively high rainfall, when those outflows would benefit Wetland A3. In addition, the existing Tampa Bay Water pipeline and the proposed Tower Road, located between the Blanco Property and the Subject Property, would restrict any drawdown effects from impacting Wetland A3. Mr. Marty Sullivan, a geotechnical engineer, performed an integrated ground and surface water modeling study to evaluate the potential for impacts to Wetland A3 from the excavation of a large-sized pond on the adjacent Ashley Glen property as part of a project that also was the subject of an ERP administrative challenge by Petitioner. Petitioner's challenge concerned impacts to Wetland A3 from excavation of an adjacent pond, known as P11. Mr. Sullivan's modeling demonstrated that there would be no adverse impacts to the hydrology of Wetland A3 from the Ashley Glen excavation although P-11 was larger and deeper than M-10, and much closer to Wetland A3. The bottom of P-11 came within 2 feet of limerock, in contrast to the minimum 10 foot separation in M-10. The Bexley and Ashley Glen sites are substantially similar in other respects, and the Ashley Glen modeling is strong evidence that M-10 would not adversely impact Wetland A3 or the wetlands on the Subject Property. Approximately 50 test borings were conducted throughout the 6,900-acre DRI site. The borings were done after considering the locations of wetlands and proposed activities. Test borings in Phase I were performed on the west side of the Subject Property. The findings from the test borings indicate that there is an inconsistent semi-confining layer that overlies the DRI site. Limestone varies in depth from 15 feet to 50 feet below the surface. Based upon the findings from the test borings, excavations for stormwater ponds are a minimum of 10 feet above the top of the limestone layer, meaning the semi-confining unit materials that cover the limestone will not be encountered or breached. Given the excavation depths of the various ponds, no adverse draw-downs are expected that would cause the groundwater table to be lowered due to downward leakance. While initially water would be expected to flow or move through the ground from existing wetlands on the Subject Property to the new M-10 wetland, water levels will stabilize, and there will be enough water for the existing wetlands and for M-10. There will be more water in the southwestern corner of the Subject Property for a longer period of time than in pre- development conditions. NNP-Bexley provided reasonable assurance that there will be no adverse impacts to Wetland A3 or the existing wetlands on the Subject Property from M-10 or any of the proposed excavations. Other Conditions for Permit Issuance The Project was evaluated under the public interest test found in Rule 40D-4.302. The evidence was that the public interest criteria have been satisfied. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The applicant has provided reasonable assurance that the construction, operation, and maintenance of the system will meet the conditions for permit issuance in Rule 40D-4.301 and 40D4.302. Improper Purpose Blanco has a history of opposing projects near his property, with mixed results. In this case, after Blanco learned of NNP-Bexley's application for an ERP, he met with Ms. Brewer on April 20, 2006, to discuss it. At the time, specifics were not discussed, but Blanco let Ms. Brewer know that his successful opposition to an earlier project by Westfield Homes resulted in significant expenditures by the developer and eventually the abandonment of the project by that developer. Blanco warned Ms. Brewer that, if NNP-Bexley did not deal with him to his satisfaction, and he challenged NNP-Bexley's application, NNP-Bexley would risk a similar fate. In August 2006, Blanco arranged a meeting at the University of South Florida (USF) with Ms. Brewer, NNP-Bexley's consultants, Blanco, and USF hydrologists, Drs. Mark Stewart and Mark Rains. At the time, Blanco's expressed concern was the impact of the NNP-Bexley project on Wetland A3. As a result of the meeting, it was agreed that there would be no impact on Wetland A3, primarily because it was upstream and its water elevations were controlled by the downstream culvert to the south of the Bexley property. Nonetheless, Ms. Brewer agreed to limit excavations in the southwest corner near the Blanco property and Wetland A3 to a depth of no more than two and a half feet, instead of the 12 feet being proposed at the time. NNP-Bexley made the agreed changes to the application and proceeded towards obtaining approval by the District. When Blanco learned that the NNP-Bexley project was on the agenda for approval by the District Board at its meeting in March 2008, Blanco took the position that NNP-Bexley had reneged on an agreement to keep him informed and insisted on an urgent meeting. At this third meeting with Ms. Brewer and some of her consultants, Blanco was told that the only change to the application was the one agreed to at the meeting at USF in August 2006. Not satisfied, Blanco asked that the application documentation be forwarded to Dr. Stewart for his evaluation. He mentioned for the first time that he was concerned about an increased risk to the Blanco property and Wetland A3 from wildfires starting on the Bexley property, spreading south, and utilizing dry muck resulting from the dewatering of wetlands in the southwest corner of the Bexley property as fuel. Blanco requested that the approval item be removed from the Board's agenda to give Dr. Stewart time to evaluate the documentation and advise Blanco. Blanco stated that, if forced to challenge Board approval, he would raise numerous issues arising from the entirety of the application, not just the muck fire issue and not just issues arising from activities in the southwest corner of the Bexley property. Ms. Brewer refused to delay Board approval for the reasons given by Blanco. When told that the item would not be removed from the agenda, Blanco stated that he would not challenge an approval that limited the excavations to the SHWL. NNP-Bexley refused because it was necessary to dig the pond to a half foot below the SHWL in order to create a mitigation wetland. At that point, Blanco proposed that he would not challenge a Board approval if: vegetation was removed from the mitigation areas to reduce the risk of wildfires; a fire break was constructed along Tower Road and mowed periodically; NNP-Bexley agreed in writing to never deepen the mitigation pond M-1 in the southwest corner of the Bexley property; and NNP-Bexley paid Blanco $50,000 for him to install a well for use in fighting any wildfire that might approach the Blanco property and Wetland A3 from the north. Ms. Brewer agreed to all of Blanco's demands except for the $50,000 payment. Instead, she offered to pay for construction of the well, which she believed would cost significantly less than $50,000. At that point, the negotiations broke down, and Blanco filed a request for a hearing. The District denied Blanco's first request for a hearing and gave him leave to amend. In the interim, the Board voted to approve NNP-Bexley's application, and Blanco timely- filed an amended request for a hearing. The amended request for a hearing did not mention fire risk. Instead, it resurrected the issue of dewatering Wetland A3, as well as wetlands on the Bexley property, caused by the excavation in the southwest corner of the Bexley property, which would "result in destruction of functions provided by those wetlands that are not accounted for by the District." The amended request for a hearing also raised numerous other issues. After Blanco's former attorney-of-record withdrew without objection, Blanco's present counsel-of-record appeared on his behalf and requested a continuance to give Blanco time to determine whether either Dr. Stewart or Dr. Rains would be willing to testify for him if the hearing were re-scheduled. That request was denied. During a telephonic prehearing conference on September 8, 2008, Blanco asked to add Mr. Patrick Tara, a professional engineer, to his witness list. This request was denied as untimely. Mr. Tara was available but was not permitted to testify at the final hearing; instead, Blanco was allowed to file an affidavit of Mr. Tara as a proffer. Blanco's request to present expert evidence on fire hazards from muck fires in dry conditions was denied as irrelevant under the District's ERP conditions of issuance. Essentially, Blanco presented no evidence to support any of the allegations in his amended request for a hearing. Blanco maintained in his testimony that he filed and persisted in this challenge on the advice of his experts, Drs. Stewart and Rains, and after September 8, 2008, also on the opinions of Mr. Tara. For that reason, Blanco was given the opportunity to file affidavits from Drs. Stewart and Rains, in addition to the affidavit of Mr. Tara, in support of his expressed basis for litigating this case. Respondents were given the opportunity to depose Drs. Stewart and Rains if desired. Drs. Stewart and Rains, as well as Mr. Tara, all told Blanco essentially that the excavation proposed in NNP-Bexley's plans for development probably would have adverse impacts on the surrounding wetlands. However, none of them told Blanco that there would be adverse impacts on Wetland A3; Drs. Stewart and Rains clearly told Blanco that there would be no adverse impacts on Wetland A3. It does not appear from his affidavit that Mr. Tara focused on Wetland A3, and there is no reason to believe that he disagreed with Drs. Stewart and Rains with regard to Wetland A3. As to the wetlands on the Bexley property surrounding the excavation in the southwest corner of the property, any potential impacts from excavation that Drs. Stewart and Rains might have discussed with Blanco prior to the USF meeting in August 2006 were reduced after NNP-Bexley agreed to limit the depth of the excavation to two and a half feet. When asked about the revised excavations again in February or March of 2008, Dr. Stewart essentially told Blanco that even the shallower excavations would make the surrounding wetlands on the Subject Property drier during dry conditions and that any such impacts could be eliminated or minimized by either limiting the excavation to the SHWL or by maintaining a buffer of undisturbed land around the excavation. Dr. Rains agreed with Dr. Stewart's assessment. Contrary to Blanco's testimony at the final hearing, there is no evidence that Dr. Stewart, Dr. Rains, or Mr. Tara ever advised Blanco to file and persist in this challenge. In their depositions, Drs. Stewart and Rains specifically denied ever giving Dr. Blanco such advice. Likewise, there is no evidence that any of them had any opinions to give Blanco about risk of fire hazards. In their depositions, Drs. Stewart and Rains specifically denied ever giving Blanco such opinions. There are additional discrepancies between Blanco's testimony and the deposition testimony of Drs. Stewart and Rains. Blanco swore that Dr. Stewart was unable for health reasons to testify for him. In his deposition, Dr. Stewart denied that his health entered into his decision. He told Blanco from the outset that he would not be willing to testify as Blanco's expert. Dr. Stewart only cursorily examined the materials Blanco had delivered to him and only responded to Blanco's questions in generalities. Most of their conversations consisted of Blanco bringing Dr. Stewart up-to-date on what was happening in the case. Blanco swore that Dr. Rains planned to testify for him at the scheduled final hearing until unexpected events made it impossible. In his deposition, Dr. Rains testified that he never agreed to testify as Dr. Blanco's expert and that his unavailability to testify at the final hearing was made known to Blanco when he was first asked to testify at the scheduled final hearing. He never even opened the box of materials Blanco had delivered to him and barely spoke to Blanco at all about hydrology. Most of Dr. Rains' communications with Blanco had to do with Dr. Rains' unavailability to participate. Based on all of the evidence, it is found that Blanco's participation in this proceeding was for an improper purpose--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." His more recent dealings with Drs. Stewart and Rains and Mr. Tara seem more designed to obtain or infer statements for Blanco to use to avoid sanctions than to obtain actual evidence to support a valid administrative challenge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order issuing ERP No. 43013740.004 to NNP-Bexley. Jurisdiction is reserved to determine the appropriate amount of attorney's fees and costs to be awarded under Section 120.595(1), Florida Statutes, in further proceedings consolidated with NNP-Bexley's requests for Sections 57.105 and 120.569(2)(e), Florida Statutes. DONE AND ENTERED this 17th day of November, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2008.
The Issue The issue is whether Respondent, John Jozsa, should have a $6,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly dredging 0.91 acres of wetlands and filling 0.52 acres of wetlands without a permit on his property located in unincorporated Sumter County, Florida, as alleged in a Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice) issued by Petitioner, Department of Environmental Protection (Department), on March 13, 2008.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The charges Respondent owns an approximate 4.5-acre parcel of land located at 1978 County Road 652A in unincorporated Sumter County, Florida. The parcel identification number is N29A003. The property is generally located east of Interstate 75, west of U.S. Highway 301, and just south of the City of Bushnell. According to aerial photographs, County Road 652A appears to begin at U.S Highway 301 and runs in a westerly direction where it forms the southern boundary of Respondent's parcel and terminates a short distance later. Southwest 80th Street also runs west from U.S. Highway 301 and forms the northern boundary of the property, while Southwest 20th Terrace runs in a north- south direction adjacent to its western boundary. Respondent purchased the parcel on September 27, 1993, and constructed a home on the site several years later. The property is contiguous to Mud Lake, a Class III waterbody lying to the southeast of Respondent's property. According to Respondent's Exhibit 2.b., at least a portion of the property is in the Federal Emergency Management Agency's (FEMA's) 100-year flood zone. While conducting a site inspection near Respondent's property on September 27, 2006, Brian Brown, an Environmental Specialist III in the Department's Tampa District Office, heard "heavy equipment" operating nearby and drove to Respondent's home. There he observed a "tracked vehicle" resembling a bulldozer "knocking down trees" and grading an area that appeared to be wetlands. Mr. Brown took photographs of the cleared land and the tracked vehicle to confirm his observations. See Department's Exhibits 2a. through d. At hearing, Respondent acknowledged that he had borrowed the equipment from a friend, Leo, to "level and smooth" the "uplands" and "other areas." After returning to his office, Mr. Brown first confirmed through information from the Sumter County Appraiser's Office that Respondent owned the property in question. He then reviewed aerial photographs of Respondent's property taken in 1993, 1997, 2002, and 2006 to determine the condition of the property in earlier years. These photographs reflected that before 2006, the parcel had no large cleared area like the one that he had observed on the northern half of the property. Mr. Brown also studied a soil survey of the area to determine the type of soils on Respondent's property, and he reviewed the Florida Wetlands Delineation Manual which is used to determine if property is wetlands or uplands. Finally, information in the Department's database revealed that Respondent had not applied for a permit to conduct the observed activities. Based on this preliminary information, Mr. Brown generated a request for a formal inspection of Respondent's property by filling out a complaint form. (Respondent continues to believe that Mr. Brown was not conducting a "routine" inspection in the area but rather was in the area because a neighbor had filed a complaint; however, the complaint was triggered by Mr. Brown, who filed a complaint form himself based on the observations he made on September 27, 2006.) Mr. Brown then contacted Respondent by letter to set up a date on which the property could be formally inspected to verify "that Wetlands and or Surface Waters of the State are not being impacted." In response to Mr. Brown's letter, Respondent advised the Department that it could inspect his property. Around 1:30 p.m. on November 14, 2006, Mr. Brown and Lee W. Hughes, another Department employee, inspected Respondent's property to determine whether Respondent's activities were conducted within wetlands and to what extent wetlands were impacted. Respondent was present during the inspection. The employees' observations are memorialized in photographs received in evidence as Department's Exhibits 11A through 11N. The two observed a "large" area north of Respondent's home that had been totally cleared and deforested. The center of the cleared property had been dredged or scraped to create a pond-like area several feet lower than the adjoining land, while the soils removed from the pond-like area had been used to create sculptured white side-casting perhaps ten inches high on the edges of the pond, filling additional wetlands. However, the pond was empty because of drought conditions. The Department's inspection revealed that the cleared area was wetlands because of the presence of various plant species which are indicative of wetlands, including Swamp Tupelo, Red Maple, American Elm, Swamp Dogwood, Dahoon Holly, Buttonbush, Swamp Laurel Oak, Carolina Willow, Elderberry, Soft Rush, Smartweed, and Dayflower. Also, there were hydrologic indicators such as water stain lines, elevated lichen lines, and hypertrophied lenticels. Finally, there were hydric soils found on the property. This was confirmed by ground-truthing (an on- site evaluation of the wetlands and their parameters to verify the on-site conditions), which revealed dark top soil at least four inches thick and the presence of muck. Collectively, these indicators are sufficient to make a finding that the impacted area was wetlands. See Fla. Admin. Code R. 62-340.200 and Department's Exhibit 9. The fact that the "home-site ha[d] [not] been delineated [as wetlands] by any other governmental agency," as asserted by Respondent in his Proposed Recommended Order, is not dispositive of the issue. Respondent's assertion that no dredged materials were taken off-site, and no fill was brought onto the property, was not challenged. A second inspection was conducted by Mr. Brown and Lindsay L. Brock, then a Department employee, on December 19, 2006, for the purpose of mapping the actual size of the impacted area with Global Positioning Satellite (GPS) equipment.6 The second inspection was necessary since the Department's GPS equipment was inoperative during the first inspection. Based on Ms. Brock's GPS calculations, which have been received in evidence as Department's Exhibit 19, the Department determined that the total area dredged was 0.91 acres, while the filled area was 0.52 acres. The total impacted area was 1.4 acres of wetlands. This amount was calculated by measuring the size of the pond, 0.91 acres, with the side-casting accounting for the remaining 0.52 acres. During the inspection, the area was also photographed a second time, and these photographs have been received in evidence as Department's Exhibits 12A through 12K. An Enforcement Inspection Report (Report) was later prepared by Mr. Brown summarizing the findings of the two inspections. That Report has been received in evidence as Department's Exhibit 10 and Respondent's Exhibit 1.e. At hearing, Mr. Brown reaffirmed that the findings in the Report were correct. Specifically, the wetlands in the disturbed area were characterized as having a dominance of Obligate and Facultative Wet species and numerous hydrologic indicators, as well as soils typically found in wetlands. A jurisdictional determination established that the impacted property was wetlands; that there were adverse impacts caused by the violations, i.e., impacts described in Sections 3.2.3.2, 3.2.3.3, 3.2.3.4(a), and 3.2.3.7 of the Basis of Review of the Southwest Florida Water Management District; and that there were cumulative and secondary impacts associated with the violations, i.e., the actual loss of 1.4 acres of forested hardwood wetlands (Gum Swamp-613), habitat loss, the alteration in the normal flow of detrital material to Mud Lake, and the reduction in the system's ability to cycle and control nutrient and pollutant levels. Because the impacted lands were wetlands, a permit is required in order to perform any dredging and filling. See Fla. Admin. Code 62-343.050. The Report recommended that a Notice be issued. On February 13, 2007, the Department's Tampa District Office sent Respondent a Warning Letter advising him "of possible violations of law for which [he] may be responsible, and to seek [his] cooperation in resolving the matter." Department's Exhibit 22 and Respondent's Exhibit 1.h. The letter also requested that Respondent meet with Mr. Brown to discuss the alleged violations. A meeting was held at the District Office on March 12, 2007, but efforts to resolve the matter were unsuccessful. During the informal discussions between the parties, and prior to the issuance of a Notice, Respondent requested an exemption under Section 373.406(1) and (6), Florida Statutes.7 The first subsection provides that no Department rule, regulation, or order affects the right of any person to capture, discharge, and use water "for purposes permitted by law." The second subsection provides that the Department may exempt "those activities that the . . . department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district." At hearing, Mr. Brown indicated that he did not respond to the exemption request because Respondent did not qualify. This is because dredging and filling of wetlands is not "permitted by law" without first obtaining a permit, and because, for the reasons cited in its Report, the Department construed the activities as having more than "minimal or insignificant" impacts. Given these circumstances, the statutory exemptions do not apply. The Notice was not issued until a year later on March 13, 2008. The reason for the delay is not of record. Besides contending that Mr. Brown's testimony was not credible, through examination of witnesses and the submission of various exhibits, Respondent raised numerous points to support his contentions that (a) the property is not wetlands, (b) no dredging or filling occurred, and (c) the activities are exempt from Department permitting requirements under several statutes.8 He also argued that the Department's decision to initiate an enforcement action against him was flawed or biased. The latter argument has been considered and rejected. Respondent first asserts that the wetlands on his property were already stressed and in bad condition, and that clearing the area and replanting vegetation in and around the pond area created a healthier environment for the vegetation and plants. While Mr. Brown conceded that the wetlands may have been stressed, that in itself does not cause the impacted property to lose its wetlands character, and a permit to dredge and fill the site is still required. Respondent also pointed out that the impacted area was dry before and after the activities occurred, and therefore the wetlands determination was incorrect. He further points out that the Department's representatives agreed that no water or moisture on the ground surface were observed during their two inspections. Given the number of wetland indicators found on the site even during drought conditions, the argument that the property is not wetlands has been rejected. See Finding of Fact 6, supra. Respondent also argued that an authoritative source (Hydric Soils of Florida Handbook) indicates that the soils in that area of the County are not the type typically found on wetlands. Specifically, the predominant soil on his property is identified as "Kanapaha sand, bouldery subsurface (25)," which is not considered a hydric soil. Mr. Brown explained, however, that notwithstanding what another source may state, it is necessary to verify the type of soil by performing field tests at the site. Ground-truthing performed during the first inspection confirmed the presence of soils typically found in wetlands. See Finding of Fact 7, supra. Respondent also questioned the accuracy of the Department's Exhibit 18, which is an aerial of Respondent's property created by Mr. Brown in February 2008 depicting a pond filled with water in the middle of the cleared area. Respondent contended that the map could not be accurate since the pond area was dry in February 2008 due to drought conditions. In response to this criticism, Mr. Brown noted that the map was not supposed to represent an actual aerial photograph taken in 2008. Rather, it was created for the purpose of superimposing on the property the pond-like area (with water added) observed during the 2006 inspections and was intended only to demonstrate the pond's size in relation to the size of the entire parcel. The exhibit was not tendered for the purpose of proving that the dredging and filling had occurred. Through examination of Mr. Brown, Respondent attempted to show that he qualified for a stormwater exemption under Section 403.813(2)(q), Florida Statutes, on the theory that his activities fell within the purview of that law. The statute exempts from permitting requirements the construction, operation, and maintenance of a stormwater management facility which is designed to "serve single-family residential projects, including duplexes, triplexes, and quadruplexes, if they are less than 10 acres total land and have less than 2 acres of impervious surface and if the facilities" satisfy three conditions. One condition is that the facility must "discharge into a stormwater discharge facility exempted or permitted by the department under this chapter which has sufficient capacity and treatment capability as specified in this chapter and is owned, maintained, or operated by a city, county, special district with drainage responsibility, or water management district . . . ." Id. Therefore, even if the pond-like area could be characterized as a stormwater facility, Respondent still does not meet the requirements of the statute since his "facility" does not discharge into another exempt or permitted facility as defined in the statute. In this case, the waters eventually discharge into Mud Lake, which was not shown to be an exempt or permitted stormwater facility. Respondent also questioned the manner in which the Department calculated the size of the impacted area for purposes of assessing an administrative penalty. See Department's Exhibit 21 and Respondent's Exhibit 1.j., in which penalties are assessed based on the dredged and filled areas each being "greater than one-half acre but less than or equal to one acre." Specifically, he argues that the combined dredged and filled areas exceed one acre in size, and under the terms of Section 403.121(3)(c), Florida Statutes, the administrative penalty schedule in the cited statute does not apply. To support this contention, Respondent noted that in responding to discovery, the Department acknowledged that the total impacted area was 1.4 acres. Section 403.121(3)(c), Florida Statutes, provides in relevant part that "the administrative penalty schedule shall not apply to a dredge and fill violation if the area dredged or filled exceeds one acre." In assessing penalties under the statute, the Department considers the dredging and filling as two separate violations. See Counts I and II, Notice. Therefore, it did not combine the two impacted areas for purposes of calculating a penalty under the administrative penalty schedule. While the statute is inartfully drawn and is arguably susceptible to more than one interpretation, the Department's interpretation is a reasonable and permissible one, and its computation is hereby accepted. (If Respondent's construction of the statute was approved, and the two impacted areas were combined, this would not mean that the Department could not assess a penalty. Rather, it appears the Department would then have the choice of (a) filing an action in circuit court seeking the imposition of civil (rather than administrative) penalties, or (b) assessing an administrative penalty under Section 403.121(9), Florida Statutes, which did not exceed $5,000.00 per violation or $10,000.00 for all violations.) Respondent also contended that he was simply performing landscaping and gardening activities with a tracked vehicle, and that no "excavation" within the meaning of Section 373.403(13), Florida Statutes, occurred. That statute defines dredging as "excavation, by any means, in surface waters or wetlands."9 On the other hand, "filling" is defined in Section 373.403(14), Florida Statutes, as "the deposition, by any means, of materials in surface waters or wetlands." On this issue, the evidence shows that Respondent used a tracked vehicle to remove, scrape, and/or push soils from the wetlands to create the pond-like area and then deposited those materials in other wetlands around the sides of the pond to create the side casting. This activity constituted dredging and filling, as defined above. The remaining arguments of Respondent have been carefully considered and rejected. The preponderance of the evidence supports a finding that Respondent engaged in dredging and filling in wetlands without a permit, as alleged in the Notice, and that the charges have been sustained. Mitigation In its Proposed Final Order, the Department contends that Respondent presented no mitigation and therefore the administrative penalties should not be reduced. Mitigating circumstances include, among other things, "good faith efforts [by the violator] to comply prior to or after discovery of the violations by the department." § 403.121(10), Fla. Stat. After the area was dredged and filled, Respondent replanted some trees and plants while landscaping his back yard. Also, prior to hearing, he engaged the services of two experts to prepare an evaluation of the charges in the Notice, inspect the property, and submit suggested corrective actions for restoring the impacted area to its original condition. Although the two experts did not appear at hearing, they did render reports which contained proposed corrective actions, and their work should arguably be construed as a good faith effort by Respondent to comply with the Department's requirement that the property be restored to its original condition. Corrective Actions The Department has proposed extremely lengthy and detailed corrective actions which are contained in paragraphs 17 through 31 of the Notice and are designed to restore the property to its original condition. (Presumably, these are standard corrective actions imposed in cases such as this for restoring dredged and filled wetlands.) At hearing, Mr. Brown described the nature and purpose of these conditions, which can generally be summarized as (a) requiring that the entire 1.43-acre area be filled and/or regraded to its original contour elevation so that the replanting efforts will be successful, and (b) requiring a rigorous replanting and five-year monitoring schedule. Paragraphs 17 through 31 are set forth below: Respondents [sic] shall forthwith comply with all Department rules regarding dredging and filling within a surface water or wetland. Respondent shall correct and redress all violations in the time periods required below and shall comply with all applicable rules in Fla. Admin. Code Chapter 62-343 and 62-340. Within 30 days of the effective date of this Notice of Violation, the Respondent shall attend a pre-construction conference with a representative of the Department's Environmental Resources staff to review the work authorized by this Notice of Violation. Prior to the commencement of any earthmoving authorized in this Notice of Violation, the Respondent shall properly install and maintain Erosion and Sedimentation Control devices around the impacted area to prevent siltation and turbid discharge in to adjacent wetlands and surface waters (See Figure 2 attached hereto and incorporated herein). The Erosion and Sedimentation Control devices (i.e. staked silt screen) shall be installed no further than one-foot from the toe of the impacted area and shall remain in place until the restoration actions are completed to the Department's satisfaction. The Respondent shall re-grade the approximate 1.43 acres of impacted wetland to a grade consistent with the adjacent, unaltered wetlands, as illustrated in Figures 1 and 2 attached hereto and incorporated herein. (a) Only fill material excavated from the impacted area shall be used in the restoration of the site. If it is determined that there is an insufficient amount of the fill to obtain the required grade, the Respondent shall cease all work and notify the Department so an alternative restoration plan can be developed, if necessary. During and after re-grading, Respondent shall stabilize all side slopes as soon as possible to prevent erosion, siltation, or turbid run-off into waters of the State, but, in any event, no later than 72 hours after attaining final grade. Any re-grading or filling of the restoration areas shall be conducted so as not to affect wetlands and surface waters outside the restoration area. Within 30 days of completing the requirements outlined in paragraph 20 above and prior to planting, the Respondent shall submit a certified topographic survey of the 1.43 acres of restored wetlands to the Department for review and approval. The Department shall notify the Respondent if the re-grading is acceptable and whether the re- grading is at the correct elevation to ensure that the restoration area will function as a wetland as defined in Chapter 62-340, Florida Administrative Codes (sic). If the re- grading is unacceptable to the Department, Respondent shall have 21 days in which to correct the problems identified by the Department and shall submit a new survey upon completion of the required work. The survey shall include the following information for the restoration area: The boundary lines of the Respondent's property. Restoration area on the Respondent's Property (in total square footage or acres of restored wetlands)[.] Topographic survey of the restoration area completed by a certified land surveyor. The survey shall illustrate one-foot interval on 25 foot transects throughout the restoration area. The transects shall commence and terminate 30 feet beyond the limits of the restoration area. Once grading has been approved by the Department, the Respondent shall plant 270 of the following species in any combination throughout the 1.43-acres of restored wetlands: Swamp Tupelo (Nyssa syvatica), Red Maples (Acer rubrum), American Elm (Ulmus Americana L.), Swamp Dogwood (Cornus amomum Mill.), [and] Dahoon Holly (Ilex cassine L.). The tree species shall be planted on 15 foot- centers throughout the restoration area and shall be 3-gallon, well-rooted, nursery grown stock. Within 30 days of completion of the planting outlined in paragraph 24 above, the Respondent shall submit a "Time Zero" Monitoring Report, which includes the following information: Respondent's name, address, and OGC Case number; Date the Corrective Actions were completed; Enough color photographs to accurately depict the completion of the wetland restoration actions outlined in paragraphs 20 through 24 above. The photographs shall be taken from fixed reference points shown on a plan-view drawing; Nursery receipts for all plants used in the Restoration Action; Number, size and spacing of each species planted; and Description of any exotic vegetation removal or control conducted to date including the acreage of exotic vegetation removal and how vegetation removal or control was conducted. Subsequent monitoring reports shall be submitted for a period of 5 years following completion of the Corrective Actions: semi- annually for the first year and annually for year two through five. The purpose of the monitoring shall be to determine the "success of the restoration." The monitoring reports shall include the following information: Respondent's name, address, and OGC Case number; Date the inspection was completed; Color photographs taken from the same fixed reference points previously established during the Time-Zero monitoring report so Department personnel can observe the current site conditions and evaluate the success of the restoration plan; The percentage of each planted tree species within the restoration area that has survived; The average height of the planted tree species; The percent canopy cover by planted tree species within the restoration area; a tree shall be defined as a woody species that has a diameter at breast height (DBH) of at least 1.5 inches and a vertical height of 10 feet as measured from the substrate; The percent cover within the restoration area by planted and naturally recruiting native, "non-nuisance," wetland species, as defined in Chapter 62-340, Florida Administrative Code; The percent cover of Brazilian Pepper (Schinus terebinthifolius), Water Primrose (Ludwigia peruviana) and other nuisance species including those species listed or not listed in Chapter 62-340, Florida Administrative Code; and A written summary describing the success of the restoration area including steps needed and/or taken to promote future success such as replanting and/or nuisance or exotic species removal. Description should also include water levels observed within the restoration area. "Success of the Restoration" means at the end of the monitoring schedule the following success criteria are met in the restoration area: The total percent cover within the restoration area by native wetland vegetation exceeds 85 percent; Average height of the planted tree species exceeds 10-feet; The total percent canopy cover by planted and naturally recruited native wetland trees exceeds 30 percent; The total contribution to percent cover by nuisance, non-wetland or species not listed in Rule 62-340, Florida Administrative Code is less than 10 percent; and The Department has inspected the restoration area and the Department has informed the Respondent in writing that the restoration area meets the definition of a wetland as defined in Rule 62-340.200, Florida Administrative Code. If it is determined by the Department, based on visual inspection and/or review of the monitoring reports, that the restoration area is not meeting the above specified success criteria, an alternative Restoration Plan shall be submitted to the Southwest District Office and shall meet the following requirements: Shall submit the plan within 30 days of notification by the Department of failure to meet the success criteria. Shall implement the alternative plan no later than 90 days after receiving Department approval. Shall restart monitoring and maintenance program. Should the property be sold during the monitoring period, the Respondent shall remain responsible for the monitoring and notify the new owners of the Respondent's obligation to continue the monitoring and maintenance until the Department has determined that the success criteria has been met. The Respondent shall notify the new owner(s) of this in writing and shall provide the Department with a copy of the notification document within 15 days of the sale of the property. Prior to the submittal of each required monitoring report, the Respondent shall remove all exotic and nuisance vegetation from the restored wetland area. Nuisance and exotic vegetation removal shall include but not be limited to Brazilian Pepper (Schinus terebinthifolius) and Water Primrose (Ludwigia peruviana). All exotic vegetation shall be removed from the restoration area using hand-held equipment in a manner that will minimize impacts to the existing wetland plants and will not cause ruts in the wetland soils, which will impede or divert the flow of surface waters. More than any other aspect of this case, Respondent questions the nature and extent of the corrective actions being proposed by the Department on the ground they are too extensive, complex, and unnecessary and will cost tens of thousands of dollars. When asked to quantify or estimate the cost of the corrective actions, Mr. Brown could not. It is fair to infer, however, that the cost of the restoration work will be expensive and probably far exceed the amount of the proposed penalties. The two experts' reports, which are hearsay and cannot be used as a basis for a finding of fact, essentially corroborate Respondent's argument that the corrective actions may be onerous and too far-reaching. The difficulty, however, in evaluating Respondent's claim is that the record is limited to Mr. Brown's testimony justifying the conditions, the hearsay reports of the two experts, and a few exhibits tendered by Respondent. A precise description of the impacted area before the work was undertaken is not a part of the record at hearing. Therefore, the original condition is not known. Through the submission of exhibits and the questioning of Mr. Brown, Respondent contended that a natural depression existed in the area where the pond now sits, that he was merely leveling off the depression while removing dead trees and plants, and that very little soil was actually removed from the pond area. Given these circumstances, he contends that there are insufficient fill materials on site to bring the pond to grade. In his Exhibit 3, Respondent estimates that just to fill the pond area and bring it to the grade of the surrounding land, he would be required to haul in approximately 4,200 cubic yards of sand or fill material. Also, Respondent's Exhibit 2.c. purports to be a copy of an elevation survey of the property containing elevations at different points on the property. The handwritten numbers on the exhibit, which Respondent represents were taken from a certified survey (which is not otherwise identified), reflect the property (presumably before the work was undertaken) gradually sloping from a higher elevation on the southern boundary (around 67 feet) to the road on the northern boundary (around 66 feet), with a lower elevation of around 64 feet in the middle of the parcel, indicating a slightly lower elevation in the middle of the property. Also, a part of the property lies within the FEMA 100- year flood zone. Thus, it is fair to infer that the pond area replaced an area with a slight depression and on which water would accumulate during heavy storm events. This circumstance would logically reduce the amount of fill necessary to restore the pond area to its original contour elevation. Therefore, in implementing the corrective actions, the Department should give consideration, in the manner it deems appropriate, to the fact that the area contained a natural depression before the illicit activities occurred. The evidence supports a finding that the proposed corrective actions, although extensive and costly, should be approved. To the extent Respondent has replanted the impacted area with trees and plants that fit within the Department's restoration scheme, he should also be credited for this work. Reasonable costs and expenses The Department established at hearing that its Tampa District Office employees incurred expenses of more than $500.00 while investigating this matter. This is based upon the number of hours devoted to the case times the hourly salary rate of the employees. Therefore, the Department is entitled to be reimbursed in the amount of $500.00 for reasonable investigative expenses and costs. Respondent has not disputed the amount of time expended by the employees or their hourly compensation but contends in his Proposed Recommended Order that the matter could have been cleared up by a "simple phone call and a few minutes of effort." Respondent's argument is hereby rejected.
