The Issue The issues in this case are: whether the Petitioner, Lake Region Audubon Society (LRAS), a not-for-profit corporation, has filed a petition challenging the issuance of Environmental Resource Permit (ERP) No. 44025789.001 to Spanish Oaks of Central Florida, L.C.C. (Spanish Oaks); whether LRAS has standing to challenge the ERP; whether the Southwest Florida Water Management District (District, or SWFWMD) should issue the ERP to Spanish Oaks; and whether Spanish Oaks should be awarded attorney's fees and costs.
Findings Of Fact Application and ERP On or about January 23, 2004, Spanish Oaks submitted to SWFWMD an application for an ERP to construct a surface water management system (the System) to serve a 30.878-acre, 47-lot single-family residential development in the vicinity of Lakeland, Polk County, Florida. SWFWMD requested additional information on February 20, 2004, to which Spanish Oaks responded on or about February 27, 2004. The application was deemed complete on March 26, 2004. On April 27, 2004, SWFWMD issued the Spanish Oaks ERP. The Spanish Oaks ERP describes the System as follows: The proposed surface water management system includes storm drains with associated piping and three interconnected retention ponds (Pond A, Pond B, and Pond C). The system is designed to accommodate the runoff from the activities associated with the construction of the 47-lot subdivision with paved roads. The project site is located on the south side of State Road 33, just east of Lake Luther Road in Polk County. The project is located within a hydrologically closed drainage basin. The consultant utilized a design storm based on a 100-year, 24-hour rainfall event of 10.0 inches. The ponds are designed to retain the post-development runoff volume for the 100-year, 24-hour rainfall event without surface discharge. Project runoff will be conveyed to the proposed retention ponds. . . . No adverse off-site/on-site water quantity impacts are expected. Compliance with Chapter 40D-4, F.A.C., water quality requirements is assured; the retention ponds will treat the first one- half inch of runoff from the contributing drainage area and recover this volume through natural infiltration within 72 hours. This is consistent with Part B, Environmental Resource Permitting Information Manual Section 5.2(c). No adverse on-site/off-site water quality impacts are expected. There is 0.11 acre of herbaceous wetlands within the project area. Permanent wetland impacts are proposed to the 0.11 acre herbaceous wetland. No mitigation is required for this impact. LRAS' Amended Petition On June 6, 2005, LRAS filed a Petition signed by Paul Anderson, Mae Hartsaw, Carrie Plair, and Chuck Geanangel. SWFWD dismissed the Petition without prejudice. On July 11, 2005, an Amended Petition was filed, clarifying that LRAS was orally informed about the Spanish Oaks ERP by one of its members, since identified as Donna Stark, on May 10, 2005. The Amended Petition was signed by LRAS Steering Committee/Acting President Carrie Plair. The District determined that the Amended Petition was timely filed and substantially complied with the requirements for a petition. The Amended Petition alleged the following as disputed issues of material fact: the Permit allows construction of a retention pond in a sinkhole in the southeast portion of the site; construction of a retention pond in a sinkhole creates a danger to public health and safety; and Spanish Oaks failed to notify SWFWMD that it was beginning construction of the clay cores of certain berms surrounding the retention ponds, as required by a permit condition so that SWFWMD could inspect during the construction.3 The Amended Petition asserted that LRAS member Donna Stark observed firsthand a sinkhole collapse that allegedly occurred in the southeast portion of Spanish Oaks site during construction of Retention Pond A. The Amended Petition alleged that on January 25, 2005, Donna Stark, along with a state employee (since identified as Timothy King), observed a "very large cone-shaped depression with smooth steeply-sloping sides – so steep that Donna Stark was nervous that the front-end loader driving up and down the slopes could end up in the aquifer if he lost traction in the loose unconsolidated sands. In the center of the depression was a lake perhaps 50 feet in diameter." The Amended Petition further alleged that “Donna Stark judged the distance from the top of the ground surface to the water surface to be about 15 feet.” The Amended Petition also asserted that “[o]n November 13, 2004, LRAS member Donna Stark was informed by a man who had worked on the Spanish Oaks site that the retention ponds were 30 feet deep.” As to any specific rules or statutes requiring reversal or modification of the proposed agency action, LRAS’ Amended Petition asserted that the Spanish Oaks development violates Chapter 62, Florida Administrative Code,4 which, LRAS contends, disallows the use of a sinkhole to discharge contaminated water, citing Rule 62-522.300(1) and (3). See Conclusion 90, infra. Standing LRAS did not allege or present any evidence to prove that the substantial interests of a substantial number of its members would be affected by issuance of the ERP to Spanish Oaks. The Amended Petition alleged that, if LRAS failed to oppose the ERP, it would not "fulfill it's [sic] objectives and hence adversely affect the corporation and disappoint it's [sic] membership." But LRAS did not present any evidence at the final hearing to prove that its own substantial interests would be affected by the ERP. LRAS alleged that it has standing under Section 403.412(6), Florida Statutes. See Conclusions 74, infra. LRAS was formed as a Florida not-for-profit corporation in 1962. The evidence was sufficient to prove that LRAS has at least 25 current members residing in Polk County, where Spanish Oaks' ERP is proposed. Not only was there testimony in the depositions introduced into evidence as Spanish Oaks Exhibits 1, 2 and 3 that there were over 500 members of LRAS, most of whom would reside in Polk County, exhibits attached to those depositions included a partial membership list with at least 25 current members residing in Polk County,5 in addition to other members residing in Polk County who testified during the final hearing. Article II of LRAS' Articles of Incorporation states that LRAS was formed "to promote an understanding and interest in wildlife and the environment that supports it and to further the cause of conservation." It also includes language generally empowering the corporation to "have and exercise all of the powers of like corporations not for profit and to do all and everything necessary, suitable or proper for the accomplishment of any of the purposes, the attainment of any of the objects or the furtherance of any of the powers herein set forth, . . . and to do every other act or acts, thing or things incident or pertinent to or growing out of or connected with the aforesaid objects, purposes or powers or any of them." Finally, it includes the admonition that enumeration of specific "powers and objects . . . shall not in anyway be construed as any limitation or derogation of any power or object herein specifically named or any general power which this corporation might otherwise have." Spanish Oaks6 contends that LRAS has no standing in part because the Petition and Amended Petition was "ultra vires"-i.e., that, although there was no evidence that LRAS was dissolved or otherwise not in good standing as a duly- organized not-for-profit corporation, the signers did not have the legal authority to sign or file either the Petition or the Amended Petition on behalf of LRAS under its articles of incorporation and by-laws. At the time of its formation in 1962, LRAS had eleven charter members, six officers, and ten directors. Article VI of the Articles of Incorporation provided, in pertinent part: The affairs of the corporation shall be managed by a board of directors of "not less than five members of the officers provided for in this charter and the Board of Directors shall elect a president, a first vice president, a second vice president, a secretary and a treasurer. The number of directors shall be fixed by the by-laws of the corporation, but in no instance shall the number of directors be less than five. The Board of Directors may establish an Executive Committee from the members of the Board of Directors by resolution and may provide for the setting up of advisory boards or councils. The Board of Directors shall be elected from the voting members of the corporation at an annual meeting to be held in June of each year at a date to be determined by the Board of Directors at least fifteen days prior to such meeting. A quorum for the purpose of transacting business shall consist of those present. The officers and directors herein provided for shall serve until the next general election of the corporation, provided, however, that in the event of any vacancies prior to that time the Board of Directors may fill such vacancies by majority vote. There was no evidence of any amendment to those provisions in the articles of incorporation. Article I of LRAS' By-Laws, as last revised on April 7, 2002, provided for a president to: "(a) preside at meetings of the Society and of the Board of Directors; . . . ; (c) decide all questions of order, and act as judge in elections and declare the results; (d) appoint, subject to the Executive Committee's approval, the chairmen of the Standing Committee, and the chairmen of such special committees as may be authorized by the Board; (e) perform such other duties as the Board or the By-Laws may from time to time assign." It also provided for: a first vice-president, who was to preside and perform the duties of the president in the absence or inability of the president; a second vice-president, who was to preside and perform the duties of the president in the absence or inability of the president and first vice- president; a third vice-president to coordinate all field activities; a fourth vice-president to coordinate all membership activities; a fifth vice-president to be the newsletter editor; a recording secretary to keep an accurate record of all meetings, act as secretary of the board of directors, keep a record of attendance at meetings of the board of directors, and act as custodian of all records and papers; a corresponding secretary, who was to perform the duties of the recording secretary in the absence or inability of the recording secretary; and a treasurer. Article II of the By-Laws provided for the board of directors to "be composed of all officers and committee chairmen, and other members who may be appointed by the President." It also provided that the board of directors had the "power to fill vacancies in the list of officers." It also provided: "A majority of officers shall have the power to carry on the affairs of the Society in the event of emergency, between Board Meetings." Article III of the By-Laws provided for committees to be established by the president as deemed necessary as well as apparently for appointment of individuals with special responsibilities. Article IV provided for elections, including: "A Nominating Committee, consisting of a Chairman and two other members appointed by the President and announced at the January Board Meeting, shall submit a slate of officers at the March meeting for approval by the Board, to be voted on at the Annual Meeting of the Society in April. . . . A majority of the votes cast shall constitute an election. If there are no nominations from the floor, the slate of officers shall stand as presented." It also provided: "Elected officers shall be elected for a term of one year, and shall hold office until their successors have been elected." The president was limited to two consecutive terms, or a third consecutive term upon majority vote of the board of directors. Article V of the By-Laws provided for: open meetings of the board of directors to be held on the second Wednesday of each month September through May, unless changed on ten days notice to each board member; special meetings at the call of the president or written request of five members, with "due notice"; and one annual meeting to be held in April, unless changed by direction of the board. Article VI provided that a majority of the board would constitute a quorum, provided at least two officers were present, and that 15 members, including at least four Board members, would be a quorum for the annual meeting. Article VIII provided that membership in National Audubon, Florida Audubon or LRAS would constitute membership in all three levels for anyone living within the LRAS area. As indicated above, there are inconsistencies between the Articles of Incorporation and the By-Laws. For example, the Articles of Incorporation provide for an annual meeting in June, while the By-Laws provide for the annual meeting to take place in April, unless changed by the board of directors. In addition, the By-Laws provide for more officers than the Articles of Incorporation. Finally, the Articles of Incorporation provide that a quorum at the annual meeting shall consist of those present, while the By-Laws provide for a quorum of a majority of the board, provided at least two are officers, and that 15 members, including at least four board members, would be a quorum for the annual meeting. Under Section 617.0206, Florida Statutes, by-laws must be consistent with the articles of incorporation. Even allowing for the inconsistencies between the Articles of Incorporation and the By-Laws, the evidence suggested that, notwithstanding the formal and detailed (if somewhat inconsistent) provisions in the Articles of Incorporation and By-Laws, LRAS has operated less formally and with less attention to those details at least in recent years, in part because it is a totally-volunteer organization and seems always to be looking for members to share in the tasks of continued operation. Any member who expresses interest in the business of the organization is welcome to volunteer to be on the board of directors. Any volunteer is virtually assured of becoming a board member. There certainly are no contested elections. Spanish Oaks questions whether the process used results in the legitimate election of members of the board of directors and appointment of officers in accordance with the Articles of Incorporation and By-Laws. The evidence presented by Spanish Oaks as to status of LRAS' board of directors and officers was unclear. It consisted of the deposition testimony of Paul Anderson, Carrie Plair, and Chuck Geanangel, along with minutes attached as exhibits to the Anderson deposition. In addition, while not actually introduced in evidence at the final hearing, the minutes of the May 2005 meeting of the board of directors were attached to and formed part of the basis for the Motion for Summary Recommended Order which was filed by Spanish Oaks and joined by SWFWMD. In addition, the PRO filed by Spanish Oaks cited to these attachments to the Motion for Summary Recommended Order.7 The evidence indicates that, notwithstanding provisions in the Articles of Incorporation and By-Laws, for the last two years LRAS has operated using a five-member steering committee (also referred to as an executive board) instead of a president. Designed to relieve the burden on long-serving volunteer president, Pat Herbert, the idea was that the steering committee would rotate responsibility for conducting board meetings, so that each committee member would conduct two meetings a year. Anderson and Plair testified that they were on the LRAS Steering Committee, along with Geanangle, Bill Karnofsky and Mae Hartsaw. Plair testified that all members of the Steering Committee are members of the board of directors, along with all other officers. Anderson also named several other officers from memory--Liz Purnell, Paul Fellers (a vice- president), Gary McCoy (membership chair), and Herman Moulden (newsletter editor). He deferred to a list of board members, which he did not have with him and which was not placed in evidence. Plair named a few other board members--Bob Snow, Gina Lucas, Gil Lucas--along with Fellers. The minutes placed in evidence by Spanish Oaks all state that they are minutes of board of directors meetings and do not refer to an annual general membership meeting. However, Anderson testified that a board of directors meeting is combined with the annual general membership meeting. He believed it was in December but was not sure. Geanangel testified that the annual general membership meeting was in the spring, which was consistent with Plair's recollection, and was noticed as such. Plair testified that there generally were meeting agendas for all board of directors meetings (one of which, according to the testimony, would be the annual general membership meeting). No notices or agendas of meetings were placed in evidence. The minutes placed in evidence started with the September 2003 meeting of the board of directors. According to the minutes, Karnofsky conducted the meeting and also presented a treasurer's report, indicating that he also was the Treasurer at the time. Herbert, Louise Lang, Hartsaw, Plair, Paul and Janet Anderson, Ann Pinner, Gil and Gina Lucas, Paul Fellers, and Rae Bourqueim also attended. Bourquein announced a newsletter deadline. Pinner was looking for volunteers. Under old business, the rotation for conducting the next several meetings was announced: Karnofsky for October 2003, Plair for November and December 2003, Paul Anderson in January and February 2004, and Hartsaw in March and April 2004. Janet Anderson was congratulated on the job she was doing as "Publicity Chairperson." A December 2003 Christmas party was announced. Motions were made or seconded by Gil Lucas, Paul Anderson, Bourqueim, Fellers, and Hartsaw (suggesting that they were members of the board of directors). The minutes were recorded by Gina Lucas, as "Secretary Pro Tem." There was no other indication in those minutes as to who the officers and board members were. The minutes of the October 2003 meeting indicate that the meeting was conducted by Herbert, not Karnofsky, who was unable to attend due to illness. Nine others attended, including the Andersons, Plair, the Lucases, Fellers, Bourquein, Herbert, and Purnell, who was the Recording Secretary. The November 2003 minutes indicate that Plair conducted the board meeting. Hartsaw, Bourquein, Geanangel, Karnofsky, the Lucases, Fellers, Marvel Loftus, the Andersons, Ron Butts, Herbert, and three others also attended, along with Purnell, the Recording Secretary. Motions were made or seconded by Paul Anderson, Hartsaw, Fellers, Herbert, Geanangel, and Janet Anderson. The minutes of the January 2004 meeting of the board of directors indicate that Paul Anderson conducted the meeting, Karnofsky presented a treasurer's report, and Purnell was the Recording Secretary. Hartsaw and Geanangel attended the meeting, along with the Andersons, the Lucases, Herbert, Lang, Loftus, and two others. A motion was made by Herbert and seconded by Loftus. According to the minutes of the February 2004 meeting of the board of directors, it was conducted by Paul Anderson again, again included Karnofsky's treasurer's report, and again was recorded by Purnell. Janet Anderson, Lang, Plair, Hartsaw, the Lucases, Geanangel, and three others also attended. The minutes indicate that Chuck Geanangel would conduct the March 2004 meeting. They also included the reports of several others, including Plair and Hartsaw, without specifying whether they were officers. The minutes indicated that the slate of candidates would be the same as the current officers, but they do not specify who the current officers were, or whether the reference to "officers" was meant to include board members. The minutes of the March and April 2004 meetings, which were conducted by Geanangel and also attended by Hartsaw, the Andersons, Bourquein, Karnofsky, Purnell, Loftus, Pinner, Plair, Fellers, and others. Motions were made or seconded by Herbert, Paul Anderson, Hartsaw, and Loftus. These minutes do not reveal any more information about who the officers were but do reflect that Ron Butts was willing to be on the board of directors and would be contacted about the position. The minutes indicate that a board of directors meeting was held on May 12, 2004, and that it was conducted by Anderson again and was attended by 13 people, including Plair, Hartsaw, Butts, and Geanangel. The minutes do not mention its being a general membership meeting, do not mention any voting, and do not mention any nominations from the floor for membership on the board of directors. They indicate that a new membership chair volunteer was called for and that Karnofsky would be asked to conduct the next meeting in September 2004. Motions were made or seconded by Hartsaw, Butts, Geanangel, and Loftus. The September 2004 minutes indicate that the board meeting was conducted by Geanangel, not Karnofsky, who was absent and did not present his treasurer's report. Plair, the Andersons, Butts, and Ann Pinner attended. Motions were made or seconded by Janet Anderson, Geanangel, Butts, Plair, Paul Anderson, and Pinner. A House Interior Committee was formed, with Plair, Susie Brantley, and Gina Lucas as members. Janet Anderson recorded the minutes in Purnell's absence. According to the minutes, Geanangel also conducted the October 2004 meeting of the board, which was also attended by Bourquein, Karnofsky (who gave the treasurer's report), Pinner, Plair, the Andersons, Paul and Donna Fellers, Butts, the Lucases, and Purnell, the Recording Secretary. Gina Lucas reported for the House Interior Committee. Motions were made or seconded by Butts, Loftus, and Paul Fellers. According to the minutes, Plair conducted the November 2004 meeting of the board, which was also attended by Karnofsky (who gave the treasurer's report), Pinner, the Andersons, Hartsaw, Butts, one other person, and Purnell, the Recording Secretary. It was announced that Bourquein was resigning from her position as Newsletter Editor. There was no replacement yet. The next minutes were for a board meeting in January 2005. Paul Anderson conducted the meeting, which also was attended by Geanangel, Plair, Karnofsky (who gave the treasurer's report), Hartsaw, Gary McCoy, Pinner, Paul Fellers, the Lucases, Butts, one other person, and Purnell, the Recording Secretary. McCoy was introduced as the new Membership Chairman, and it was announced that Herman Moulden had accepted responsibility for the newsletter and website. Geanangel reported on Polk County's desire to use the Saddle Creek property owned by Audubon of Florida for water storage, flow, and quality purposes. Leadership vacancies for Nature Faire and Corresponding Secretary were announced. A motion was made by Pinner and seconded by Hartsaw. According to the minutes, the February 2005 meeting was conducted by Paul Anderson. Plair, Karnofsky, Butts, McCoy, Hartsaw, the Andersons, Moulden, Geanangel, Pinner, Paul Fellers, and Purnell attended. Moulden solicited articles for the newsletter. It was suggested that an invitation to serve on the board be extended to Bob Snow. Motions were made or seconded by Butts, Janet Anderson, Plair, and Pinner. Purnell recorded the minutes. According to the minutes, the March 2005 meeting was conducted by Hartsaw. The Andersons, Paul Fellers, Moulden, McCoy, Butts, Karnofsky, Plair, Geanangel, and one other person also attended. McCoy presented a membership report, and Moulden reported on the newsletter. Geanangel reported on negotiations with Polk County on the Saddle Creek property. Motions were made or seconded by Paul Anderson, Fellers, and Karnofsky. Hartsaw would chair the April meeting. Paul Anderson recorded the minutes in Purnell's absence. According to the minutes, the April 2005 meeting was conducted by Hartsaw. Pinner, McCoy, Karnofsky, the Andersons, Moulden, the Lucases, Butts, Plair, Paul Fellers, Purnell (the Recording Secretary), and one other person also attended. Karnofsky gave his treasurer's report, Moulden asked for newsletter articles, and a nominating committee was appointed, consisting of Paul Anderson, Karnofsky, and Plair. A motion was made by Karnofsky and seconded by Loftus. The real need for a corresponding secretary was discussed. According to the minutes,8 the May 11, 2005 meeting was conducted by Karnofsky. Plair, Butts, the Andersons, Pinner, McCoy, Moulden, Geanangel, Purnell (the Recording Secretary), Donna Stark, and one other person also attended. Motions were made by Paul Anderson and seconded by Pinner. The minutes reflect a nominating committee report which included: a five-member Steering Committee of Karnofsky, Hartsaw, Geanangel, Plair, and Paul Anderson; Hartsaw as Vice- President for Programs; Geanangel as Vice-President for Conservation; Paul Fellers as Vice-President for Field Trips; McCoy as Vice-President for Membership; Moulden as Vice- President for News Letter; Karnofsky as Treasurer; and Purnell as Recording Secretary. Also nominated as members of the board of directors were: Janet Anderson, Louise Lang, Marvel Loftus, the Lucases, Butts, McCoy, Moulden, Snow, Pinner, and six others. No voting or nominations from the floor are reflected in the minutes. While the evidence was not clear, it appears from the testimony and minutes that all those attending the board of directors meeting on May 11, 2005, except for Donna Stark and one other person, were officers or otherwise members of the board of directors under the Articles of Incorporation and the By-Laws. The minutes of the February 2004 board meeting state that the "LRAS Candidate slate will be the same as the current officers." It appears that they included at least Karnofsky, Bourqueim, and Purnell and that Karnofsky, Plair, Paul Anderson, Hartsaw, and Geanangel were on the steering committee. Assuming the use of the word "officers" in the minutes meant to include the current board members who were not officers, it appears that they also would have included Herbert, Lang, Janet Anderson, Pinner, the Lucases, Fellers, Loftus, and Butts. There are no minutes mentioning a noticed general membership meeting or election of the board of directors in the spring of 2004. If there was one, the minutes do not indicate that there were nominations from the floor. If there was a noticed general membership meeting for purposes of electing the board of directors, with a quorum, and there were no nominations from the floor, either the slate of current officers (and, probably, directors) "stood," or the officers and board of directors would continue to serve until the next general election, under Article VI of the Articles of Incorporation. In either case, vacancies prior to that time could be filled by the board of directors by majority vote, and it would appear that, at the beginning of the board meeting on May 11, 2005: the officers included at least Karnofsky, Purnell, McCoy, and Moulden; the steering committee still consisted the same five; and other board members included at least Lang, Janet Anderson, Pinner, the Lucases, Fellers, Loftus, and Butts. Only 12 individuals appearing to be board members attended the meeting on May 11, 2005. While this would not be a quorum under the By-Laws, it would be a quorum under the Articles of Incorporation, which would control over inconsistent By-Laws.9 Assuming the May 2005 meeting was the noticed general membership meeting, since the minutes do not reflect any nominations from the floor, the slate stood as presented under Article IV of the By-Laws. If not, (or if the By-Laws established the necessary quorum), under Article VI of the Articles of Incorporation, the current officers and board of directors would serve until the next general election. In either case, it appears that authorized officers and directors were in place and in attendance at the board meeting on May 11, 2005, and that there was a quorum for transacting business under the Articles of Incorporation. In any event, Spanish Oaks did not prove the contrary. According to the May 2005 minutes, as well as the testimony at the final hearing, Donna Stark made a presentation asserting that Spanish Oaks was using at least three sinkholes to collect runoff water, instead of digging retention ponds, contrary to legal requirements and polluting the underlying aquifer. She asked LRAS to consider filing an administrative challenge to the ERP. After the presentation, the board decided that the Steering Committee would continue to investigate and make a decision as to what role LRAS should have in the future. Although the minutes do not reflect a vote on a resolution, the assigned task of the Steering Committee was like the role of the "Executive Committee" referred to in Article VI of the Articles of Incorporation. The Steering Committee reviewed the information presented by Starks, decided to file a challenge, and invited Starks to help draft the Petition, which was signed by four members of the Steering Committee between May 31 and June 2, 2005, as well as the Amended Petition signed by "LRAS Steering Committee/Acting President Carrie Plair" on July 6, 2005. Starks actually drafted almost all of the Petition and Amended Petition. The subject of the challenge in the Petition and Amended Petition is virtually identical to a challenge to Spanish Oaks' ERP that was filed by Starks on behalf of her not-for-profit corporation, Central Florida EcoTours, in early May 2005 but was time-barred and dismissed because Starks and Ecotours got mailed notice of the issuance of the ERP to Spanish Oaks. Spanish Oaks implied that Starks told LRAS about the fate of the EcoTours challenge and asked LRAS to file its Petition and Amended Petition at her behest to block the Spanish Oaks development for her ulterior motives. But those allegations were denied by LRAS and were not proven. Alleged Sinkholes The principal concern raised by LRAS, both in its Amended Petition and at hearing, is that one or more of the retention ponds constructed on Spanish Oaks is located over a sinkhole. LRAS is of the view that this alone should mandate that the ERP application be denied. Retention ponds are often located in depressional areas since these land features are generally the lowest spots on a property and allow the engineers designing a surface water management system to utilize the land’s natural drainage configuration. A relic sinkhole, as contrasted to an active sinkhole, has either been sealed or has self-sealed, so that there is no connection between the sinkhole and the underlying aquifer. An active sinkhole provides a direct connection-- referred to by both LRAS’ and Spanish Oaks' experts as a “good communication”--between the surface and the aquifer. Retention ponds are intended to allow infiltration of water through the soils underlying the pond bottom. This infiltration through soil layers provides water quality treatment, and it is necessary to ensure that the bottom surface of a retention pond is sufficiently separated by soils from the top of the aquifer. If an active sinkhole develops in a retention pond, SWFWMD requires that some corrective action be taken. Generally, this involves refilling the cavity formed by the sinkhole. However, because retention ponds are designed to allow infiltration through the pond bottoms, care must be taken to ensure that any fill does not impede this infiltration function. The bottoms of the retention ponds at Spanish Oaks are approximately seven feet below natural grade. The Floridan Aquifer in the Spanish Oaks vicinity is approximately 75 feet below grade. The separation between the pond bottoms and the limestone that is part of the aquifer is sufficient to provide adequate water quality treatment. Soil borings done around the perimeter of each of the ponds indicate the presence of clays and clayey sands between the pond bottoms and the aquifer. These soil layers act as an aquitard that impedes the migration of water into the bedrock (and upper soils into lower cavities, voids, or ravel zones, which are areas of loose, unconsolidated soils capable of further downward subsidence). In each instance, the depth at which the aquitard occurs is below the bottom depth of the retention ponds. There was no competent evidence admitted at hearing to suggest that there are active sinkholes in or under any of the three retention ponds on Spanish Oaks. To the contrary, the SWFWMD personnel who have been on the site testified that they saw nothing on the site that indicated the presence of an active sinkhole. Contractors and engineers who were on the site prior to and during construction of Spanish Oaks stated that they were not aware of any active sinkholes. Nonetheless, because LRAS made the allegation that there were sinkholes on the site, Spanish Oaks retained a geotechnical engineer with expertise in sinkholes, Sonny Gulati, to conduct a sinkhole investigation of the three retention ponds. Mr. Gulati used testing protocols that are generally utilized to determine whether sinkhole activity has caused damage to a building or other structure. Mr. Gulati observed no damage to the retention ponds and his investigation revealed no sinkhole activity onsite. (LRAS’ expert also was unaware of any damage to the retention ponds.) Mr. Gulati used both ground penetrating radar (GPR) and standard penetration testing (SPT) during his investigation. GPR makes use of repetitive, short-duration, electromagnetic waves, which are deflected back to a receiver by interfaces between materials. GPR detects subsurface features such as sinkholes and voids through the reflected radar signal. GPR must be conducted with the transmitter in contact with the ground surface. It cannot be used over a water surface. Mr. Gulati took GPR readings around each of the three retention ponds, in two circles, one contained within the other. GPR data collected on the Spanish Oaks site revealed no subsurface anomalies. SPT is described in Mr. Gulati’s report as: a widely accepted method of in-situ testing of foundation soils (ASTM D-1586). A two- foot long, two-inch outside diameter, split barrel (“spoon”) sampler, attached to the end of drilling rods, is driven 18.0 inches into the ground by successive blows of a 140-pound hammer freely dropping 30.0 inches. The number of blows needed for each six (6) inches of penetration is recorded. The sum of the blows required for penetration of the second and third six-inch increments of penetration constitutes the test result or N-value. LRAS Exhibit 5, p. 23. An N-value of less than 2 indicates the presence of a ravel zone, a subsurface area with voids or loose soils into which soils from upper strata can travel and which acts as a conduit between strata. An N-value of less than 4, in combination with a loss of drilling fluid,10 may also indicate a ravel zone. Solutioned calcareous ravel zones are those ravel zones that occur in the limestone that forms the top of the Floridan Aquifer. Based on his investigation, Mr. Gulati concluded as follows: Our investigation did not reveal the existence of specific conditions such as cavities or voids, solutioned calcareous ravel zones, or the presence corroded bedrock conditions located above the dense bedrock stratum indicative of sinkhole activity at the subject site. Based on the interpretations of our recent subsoil investigation, site reconnaissance, available background and geologic data, it is our opinion that the subject site has not been impacted by a sinkhole related activity. In our professional opinion, the scope of work included in this analysis is of sufficient scope to eliminate sinkhole activity at the subject site within a reasonable professional probability. LRAS-5 at 18 (emphasis in original). SWFWMD's expert agreed that there is no direct connection to the Floridan Aquifer. Marc Hurst, a geologist who testified for LRAS, opined that Mr. Gulati’s sinkhole investigation was insufficient to demonstrate whether or not the Spanish Oaks retention ponds were constructed over sinkholes.11 However, Mr. Hurst offered no opinion as to whether the retention ponds are located over active sinkholes. Nor did Mr. Hurst specifically disagree with Mr. Gulati’s conclusion that the Spanish Oaks retention ponds have not been impacted by active sinkholes.12 To the contrary, Mr. Hurst admitted that the retention ponds were holding water on the day that he observed them--indicating that to him that the ponds were not acting as a strong conduit to the aquifer. Mr. Gulati also noted the significance of the presence of water in the ponds, stating that, if there were active sinkholes in the ponds, they would not hold water.13 The only suggestion of any sinkhole-related damage to the retention ponds came from Donna Stark, who testified that George Wilt--a heavy equipment operator at the site incorrectly identified by Ms. Stark as “an employee of Spanish Oaks”--told her that there had been a sinkhole collapse during the excavation of Pond A. This hearsay testimony was directly contradicted by Mr. Wilt himself, who testified that he made no such statement. Despite the allegation in LRAS’ petition regarding observations of collapse of sinkhole by Donna Stark, Ms. Stark herself admitted at hearing that she did not witness any actual collapse. Rather, she testified that, on January 25, 2005, she saw what she believed to be the aftermath of a sinkhole collapse. Stark may have been confused by the amount of excavated material being stored on the ground surface around the pond. 43,906 cubic yards of dirt was excavated from Pond A alone and was stacked to a height of 8-10 feet higher than the natural ground elevation. Others who observed the site on January 25, 2005, saw no evidence of a sinkhole collapse. Tim King, a Florida Fish and Wildlife Conservation Commission employee who was with Ms. Stark on January 25, 2005, merely reported seeing pond excavation in process. Laura Howe, a SWFWMD employee who inspected the site on that date, observed that “[i]t appears depth of ponds are [p]robably close to permitted depth.” Moreover, Ms. Stark admits that, on February 10, 2005, she observed the ponds to be “[s]even and a half feet, or six and a half, whatever it should be.” Ms. Stark’s suggestion that the collapse was filled in between January 25 and February 10, 2005, is belied by testimony that repairing a sinkhole collapse of the size suggested by Ms. Stark would have required much more material than was available. (No dirt was imported onto the site.) The evidence admitted at hearing requires a finding that there was no sinkhole collapse onsite. Spanish Oaks provided reasonable assurance that the System was designed and constructed to include sufficient separation between the pond bottoms and the Floridan Aquifer to prevent groundwater contamination. Construction of Berms LRAS contended in its Amended Petition that Spanish Oaks failed to give notice prior to constructing clay cores in some of the berms onsite, as required as a condition of the ERP, and that this failure constituted failure to provide reasonable assurances.14 The interconnection of the three ponds that are part of the System will allow them to function as one pond, while a perimeter berm around the entire Spanish Oaks project will ensure that surface water runoff is retained onsite and directed toward the ponds. Ponds A and C are located, respectively, at the southeast and northeast corners of Spanish Oaks.15 The design plans submitted with the ERP application indicated that the berms alongside the eastern side of Ponds A and C are to include clay cores, a design feature that was included as a specific condition in the ERP. The purpose of the clay cores was to prevent offsite impacts caused by lateral movement of water. The specific conditions of the ERP also required that Spanish Oaks notify SWFWMD's "Surface Water Regulation Manager, Bartow Permitting Department [William Hartmann], at least 48 hours prior to commencement of construction of the clay core, so that District staff may observe this construction activity." LRAS proved that Mr. Hartmann did not personally receive a phone call prior to the construction of the clay cores, as required by the ERP, and that SWFWMD staff did not observe the construction. Mr. Hartmann explained that this constituted a permit condition compliance issue which would prevent the ERP from being transferred to the operation phase until SWFWMD was assured that the clay core was, in fact, constructed as required. To confirm proper construction of the clay core, Spanish Oaks undertook soil borings. SWFWMD staff engineer Sherry Windsor was onsite to observe the soil borings. Spanish Oaks also submitted a report from its engineering consultant certifying that the clay cores had been properly constructed in accordance with the ERP. SWFWMD typically relies on a project engineer’s signed and sealed certifications of compliance matters. SWFWMD staff observations and the certification provided by the Spanish Oaks engineer satisfactorily resolved the issue of proper clay core construction. Failure to notify Mr. Hartmann prior to construction, as required by the ERP, does not undermine Spanish Oaks' provision of the necessary reasonable assurance for issuance of the ERP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that SWFWMD issue a final order approving the issuance of ERP 44025789.001 to Spanish Oaks. Jurisdiction is retained to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order. DONE AND ENTERED this 10th day of November, 2005, 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 10th day of November, 2005.
Findings Of Fact The dredge/fill project sought to be permitted involves a proposed residential lot located on Lake Padgett in Pasco County. The tract is also adjacent to a canal dug by the Applicant and his father. The Applicant, Michael Millen, acquired this property from his father, Otis Millen, who continues to own other property in this area. Petitioner is an adjoining landowner, and also acquired his property from Otis Millen. DER prematurely issued the proposed permit 1/ on August 9, 1984. If reissued, this permit would allow the Applicant to develop a residential lot by filling a portion of a cypress swamp and creating compensating wetland elsewhere on his property. Additionally, the Applicant agrees to dedicate a three acre "conservation easement" and to install a culvert to improve drainage. The advantages of this project include the creation of a homesite where none is available now, acquisition by the State of three acres of dedicated wetland (conservation easement) and improved drainage through the culvert installation. There would be no net loss in cypress swamp area. The disadvantages include temporary turbidity in surrounding waters and some tree removal in the construction area. The Applicant would replace any trees removed through replanting. The Applicant also seeks permits to build a "summer kitchen" over jurisdictional wetlands and to fill the lakefront area with white sand. These "add-on" permit requests are not properly a part of this proceeding, however, and were not contemplated in the application at issue here. DER's expert witness gave only limited testimony on their feasibility during the rebuttal phase of this hearing. Petitioner has raised numerous objections to all the proposed projects, but principally to the one at issue here. He was not notified of DER's intent to grant the dredge and fill permit, and became aware of the project only after he observed construction activity. It was determined that DER had failed to notify him through an oversight of that agency or the Applicant. Petitioner points out that lot development is not being done in accordance with the (proposed) permit. He noted that trees have been cut down, fill was dumped in the canal and work on canal banks was taking place, all in contravention of permit conditions. Petitioner believes DER has acted improperly in tolerating the Applicant's unpermitted construction activity. To support this charge, he called as a witness a neighbor who had placed white sand on his lakefront property, but was required to remove it by DER enforcement personnel. The Applicant, on the other hand, has placed white sand on his beachfront property without a permit, and DER is assisting him in obtaining an after the-fact permit. Petitioner proved, through a series of aerial photographs, and the testimony of both expert and lay witnesses, that the canal which separates his lot from the Millen properties was constructed between 1976 and 1977. DER had jurisdiction at that time, 2/ but no permit was ever sought or obtained. The canal was dug as a "joint venture" of the Applicant and his father. It connects Lake Padgett with a drainage pond several hundred feet behind the lake. This canal has changed area drainage causing one nearby resident to experience periodic property flooding as a result. Prior to the canal's construction, a small drainage ditch with an earthen or cement dam did exist in the general area. However, the canal construction removed the dam and greatly enlarged the size and capacity of the previous ditch. Expert interpretation of aerial photographs revealed that a substantial number of mature cypress trees were removed in conjunction with the Millens' canal project. Some cypress trees were also cut for the recent (unpermitted) construction of the "summer kitchen" by the Applicant. He also constructed a dock which was later determined to be exempt by DER. Again, the Applicant had not obtained DER approval for the dock and had, in fact, been advised to stop construction until a determination of permitting requirements, if any, was made. Petitioner attempted to show a conflict of interest within DER. However, the fact that one DER field representative knew Otis Millen did not demonstrate such a conflict. Rather, DER's enforcement policies have been lax or inconsistent primarily due to a shortage of field personnel.
Recommendation From the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation reissue Permit No. 510852383 to Michael A. Millen. DONE and ENTERED this 24th day of September, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1985.
The Issue The issue in this case is whether sanctions, including attorney's fees and costs, should be assessed against Respondent, the Lake Region Audubon Society, Inc. (LRAS), and awarded to Petitioner, Spanish Oaks of Central Florida, LLC (Spanish Oaks), under Sections 57.105, 120.569(2)(e), and 120.595(1), Florida Statutes,1 after LRAS unsuccessfully challenged the Southwest Florida Water Management District's (SWFWMD's) issuance of Environmental Resource Permit (ERP) Number 44025789.001 to Spanish Oaks.
Findings Of Fact LRAS' Amended Petition SWFWMD issued ERP 44025789.001 to Spanish Oaks on April 27, 2004. On May 11, 2005, Donna Stark, a member of LRAS, made a presentation to the LRAS board of directors asserting that Spanish Oaks was using one-to-three sinkholes to collect runoff water, instead of digging retention ponds, contrary to legal requirements and was polluting the underlying aquifer. She asked LRAS to consider filing an administrative challenge to the ERP. After the presentation, the LRAS board decided that its five-member Steering Committee--which took the place of a president, rotated responsibility for conducting board meetings, and functioned like an executive committee--would continue to investigate and make a decision as to what role LRAS should have in the future. The Steering Committee reviewed the information presented by Starks, decided to file a challenge, and invited Starks to help draft a Petition for Administrative Proceeding (LRAS Petition), which was signed by four members of the Steering Committee between May 31 and June 2, 2005, and was filed with SWFWMD on June 6, 2005. Because the timeliness of the LRAS Petition could not be ascertained from the allegations, SWFWD dismissed the Petition without prejudice. On July 11, 2005, an Amended Petition was filed, clarifying that LRAS was orally informed about the Spanish Oaks ERP by one of its members, later identified as Donna Stark, on May 10, 2005. The Amended Petition was signed by LRAS Steering Committee/Acting President Carrie Plair on July 6, 2005, and filed with SWFWMD, which determined that the Amended Petition was timely filed and substantially complied with the requirements for a petition and referred it to DOAH, where it was given DOAH case number 05-2606 and scheduled for a final hearing on September 22-23, 2005. The Amended Petition alleged in ¶5: The following evidence of the karst nature of the site is submitted: On February 3, 2005, in a meeting of Donna Stark, a member of [LRAS], with Sherry Windsor and biologist Jeff Whealton, the District personnel called in their geologist Tom Jackson for his professional opinion on this issue. Based on his training in karst geology and years of field observation at this site (prior to current ownership), Mr. Jackson referred to this structure as a fracture (an elongate sinkhole). Another individual who has graduate training in karst topography and who has studied this site for several years also has informed [LRAS] that this sinkhole has a vertical pipe and was an active "surface-to- ground water system" (Affidavit of Charles Cook - Ex. 8) Petitioners have consulted professionals who specialize in geological and geotechnical engineering and who are well recognized for their work in the state. Based on the available information they have expressed concern and have indicated that a thorough and detailed investigation consisting of geophysical and geotechnical methods should be performed to address the concerns of this Petition. Donna Stark, a member of [LRAS], observed first-hand the sinkhole in the southeast portion of Spanish Oaks collapsed during construction of the retention pond (perhaps due to heavy equipment or due to heavy rains of the fall 2004 hurricanes). Refer to Affidavit - Ex. 9. Paragraph 5. iv) of the Amended Petition continued and asserted that “[o]n November 13, 2004, LRAS member Donna Stark was informed by a man who had worked on the Spanish Oaks site [later identified as George Wilt] that the retention ponds were 30 feet deep.” It also asserted that LRAS member Donna Stark observed firsthand a sinkhole collapse that allegedly occurred in the southeast portion of Spanish Oaks site during construction of Retention Pond A. The Amended Petition alleged that on January 25, 2005, Donna Stark, along with a state employee (later identified as Timothy King), observed a "very large cone- shaped depression with smooth steeply-sloping sides – so steep that Donna Stark was nervous that the front-end loader driving up and down the slopes could end up in the aquifer if he lost traction in the loose unconsolidated sands. In the center of the depression was a lake perhaps 50 feet in diameter." The Amended Petition further alleged that “Donna Stark judged the distance from the top of the ground surface to the water surface to be about 15 feet.” It also asserted: "On February 4, 2005, Donna Stark went to the District office in Bartow to discuss this issue with the engineer in charge of the project, Sherry Windsor, biologist Jeff Whealton and geologist Tom Jackson. The engineering worksheet in the file shows a required depth of 6.5 feet from pond bottom elevation (136.5') to top of bank elevation (143.0')[.] It was suggested by one of the District scientists that the retention pond had collapsed during construction to create the observed depth. This is the only logical explanation in the opinion of Petitioner since [that would be a violation and grounds for revocation, as well very expensive, and would serve no useful purpose]." It also alleged that, "[w]hen Donna Stark returned on February 10, 2005, the area had been filled with sand to the required elevation and was flat-bottomed." On the clay core issue, paragraph 5. iv) of the Amended Petition alleged: "When Donna Stark spoke to William Hartmann, [SWFWMD] Surface Waters Regulation Manager, on April 21, 2005 he indicated that he had received no phone call from Permittee and that District staff had not inspected the clay core construction. At that time, the 'As-Built' inspection had been requested." The "Concise Statement of Ultimate Facts Alleged" included the statement: "Permittee also did not inform the District, as required, when (and if) a clay core was constructed in the berms. Serious impacts on adjacent property may be expected if the clay cores were not properly constructed." The Amended Petition in ¶6 alleged the following as disputed issues of material fact: the Permit allows construction of a retention pond in a sinkhole in the southeast portion of the site; construction of a retention pond in a sinkhole creates a danger to public health and safety; Spanish Oaks failed to notify SWFWMD that it was beginning construction of the clay cores of certain berms surrounding the retention ponds, as required by a permit condition so that SWFWMD could inspect during the construction; and Spanish Oaks failed to follow SWFWMD rules by neglecting to provide for permanent erosion control measures. LRAS’ Amended Petition asserted in ¶7. ii) that the Spanish Oaks development violated Florida Administrative Code Rule 62-522.300(1) and (3),2 which provided in pertinent part: (1) . . . [N]o installation shall directly or indirectly discharge into ground water any contaminant that causes a violation in the . . . criteria for receiving ground water as established in Chapter 62-520, F.A.C., except within a zone of discharge established by permit or rule pursuant to this chapter. * * * (3) Other discharges through wells or sinkholes that allow direct contact with Class G-I, Class F-I, or Class G-II ground water shall not be allowed a zone of discharge. It was alleged that this violation required reversal or modification of the proposed agency action. It was later revealed that the professionals referred to in paragraph 5. iii) of the Amended Petition included three engineers, one named Larry Madrid, and "many, many professionals of different government agencies." The attached "affidavit" (actually, an unsworn statement) of Charles Cook set out the basis of his knowledge of karst geology in general, and the Spanish Oaks site in particular, and his "conclusion that three depressional features existed on the subject parcel and I personally explored a subterranian [sic] void in a depressional sinkhole located in the southern part of the parcel in question, and believe it was an active recharge conduit connecting with subsurface aquifers." The attached "affidavit" (actually, an unsworn statement) of Donna Stark included the statement: "I hereby certify that the information submitted to [LRAS] concerning Spanish Oaks is true and accurate to the best of my knowledge." It also repeated some of the allegations in the Amended Petition and gave her "qualifying credentials for the above observations and interpretations" including: Ph.D. in Ecology from the University of Minnesota - 1971 with thesis title "Paleolimnology of Elk Lake, Itasca State Park, Northwestern Minnesota" Post-doctoral Research at Limnological Research Center, University of Minnesota 1972-1973 - published 1976 Science teaching at Southeastern College in Lakeland 1973-1974. Full Professor. The Amended Petition also was buttressed with citations cited to several scientific publications about karst geology, sinkholes, and stormwater retention ponds. It is clear that LRAS relied heavily on Donna Stark and her educational background and scientific knowledge, her alleged personal knowledge, and her alleged discussions with various professionals, including District personnel. Starks actually drafted almost all of the Petition and Amended Petition for the LRAS Steering Committee. Proceedings in Case 05-2606 LRAS was represented in Case 05-2606 by Paul Anderson, a member of LRAS' Steering Committee. By letter filed July 27, 2005, LRAS requested that the ALJ enter an order requiring a halt to all work on Spanish Oaks. On August 1, 2005, Spanish Oaks filed a Motion to Dismiss, or in the Alternative, Motion to Strike. The grounds were that there was no jurisdiction to enforce compliance with permit conditions, which the prayer for relief in the Amended Petition seemed to seek, and that allegations of non-compliance with ERP conditions should be stricken as irrelevant to issuance of the ERP. Discovery was initiated in Case 05-2606. In addition, in response to concerns expressed in the Amended Petition, Spanish Oaks hired Sonny Gulati, a professional engineer and expert in the field, to undertake a sinkhole investigation on the Spanish Oaks property using ground penetrating radar (GPR) and standard penetration testing (SPT). Mr. Gulati concluded that there were no active sinkholes on the site and prepared a report to that effect. Spanish Oaks presented the report to LRAS in August 2005; Spanish Oaks also served LRAS with a Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes (Motion), and informed LRAS that Spanish Oaks would file the Motion within 21 days if LRAS did not drop its opposition to the ERP. The Motion specifically alleged the impropriety of the sinkhole and clay core issues raised in the Amended Petition but did not mention the erosion control issue. LRAS' first attempt at discovery was defective in that its interrogatories and requests for production were directed to witness Tom Jackson instead of SWFWMD. SWFWMD moved for a protective order, which was granted on August 17, 2005. LRAS promptly served interrogatories and requests for production on SWFWMD and Spanish Oaks. Also on August 17, 2005, an Order was entered explaining to LRAS the procedure for obtaining qualified non- attorney representation, and an Order on Motion to Dismiss or Strike and Request for Stop-Work Order was entered. The latter Order recognized that the peculiar procedural posture of the case (namely, that LRAS' Amended Petition was timely even though it challenged an ERP purportedly issued in April 2004) contributed to the incorrect wording of LRAS' prayer for relief; placed a gloss on LRAS' prayer for relief as seeking denial, not revocation, of the ERP; and declined to strike allegations of non-compliance with the ERP, as they could be relevant to LRAS' challenge to the provision of reasonable assurance by Spanish Oaks. The stop-work request was denied for lack of jurisdiction to give injunctive relief in an enforcement matter. (Unbeknownst to the ALJ, on July 22, 2005, SWFWMD approved the transfer of the ERP to the operation phase, with responsibility for future operation and maintenance transferred to the Spanish Oaks of Central Florida Homeowners Association (HOA), notwithstanding the requirement of Section 120.569(2)(a), Florida Statutes, that SWFWMD take no further action on the ERP except as a party litigant.) By letter dated August 26, 2005, LRAS requested that Spanish Oaks allow its retained engineer to enter, inspect, and conduct investigations on the Spanish Oaks site. Spanish Oaks denied this request. At the end of August and in early September 2005, the parties exchanged hearing exhibits and witness lists in accordance with the Order of Pre-Hearing Instructions. When LRAS followed the procedure for obtaining approval of qualified, non-attorney representation by Mr. Anderson, Spanish Oaks objected to Mr. Anderson's qualifications. On September 7, 2005, an Order Authorizing Qualified Representation was entered. It recognized the short- comings in Mr. Anderson's qualifications, and the possibility that representation by a Florida attorney would benefit LRAS and make the proceeding fairer to all (including LRAS). Also on September 7, 2005, Spanish Oaks filed its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes. Cf. Finding 14, supra. On September 12, 2005, LRAS filed a request for permission to add Mr. Madrid to its witness list. On September 14, 2005, an Order Denying, without Prejudice, Request to Add Witness was entered because the request did not indicate whether LRAS had conferred with the other parties. On September 15, 2005, Spanish Oaks filed a Response in Opposition to Request for Entry upon Land for Inspection and Other Purposes and Motion for Protective Order. Spanish Oaks asserted that it no longer had control over the retention ponds, which were controlled by the HOA, and that home construction was in progress, making timing and coordination of the request problematic, if not impossible. Spanish Oaks also asserted that, if the inspections were allowed, multiple issues would have to be addressed, including potential liability and insurance issues, and that more detail would be required to ensure that LRAS' inspection, which could include drilling sample borings in the retention ponds, would not compromise the integrity of the stormwater system and retention ponds. By letter dated September 19, 2005, LRAS requested that Spanish Oaks agree to the addition of Mr. Madrid as a witness. By another letter dated September 19, 2005, LRAS requested that Spanish Oaks produce back-up documentation supporting Mr. Gulati's sinkhole investigation report, including site maps of GPR test locations, the uninterpreted GPR raw data, the GPR strip charts, as well as the actual SPT soil borings, because LRAS' retained expert geologist, Marc Hurst, had advised LRAS that the information was necessary for him to determine the reliability of Mr. Gulati's report and conclusions. A telephone hearing was held on September 20, 2005, on LRAS' requests to add Mr. Madrid to its witness list, for Mr. Hurst to be allowed entry on the Spanish Oaks site to inspect and investigate, and for Mr. Hurst to be allowed to review the back-up documentation and SPT borings supporting Mr. Gulati's report. No party ever requested a continuance of the final hearing (set to begin in just two days), and the request to add Mr. Madrid as a witness was denied as too late. It is not known what Mr. Madrid's testimony would have been. LRAS dropped its request for entry on land in the face of the opposing arguments from Spanish Oaks. As to the back-up documentation supporting Mr. Gulati's report, Mr. Gulati was required to bring the documents to the final hearing but Spanish Oaks was not required to produce the SPT borings, which were represented to be numerous and a large quantity of soil. Immediately before the start of the final hearing, Spanish Oaks filed both a Motion in Limine, which was denied, and a Motion for Summary Recommended Order. Ruling on the pending motions was deferred. Spanish Oaks' Motion for Summary Recommended Order Motion was based on arguments that LRAS' filing of the Amended Petition was "ultra vires" and that LRAS had no standing. These issues (which ultimately were resolved in favor of LRAS and against Spanish Oaks) were the focus of much of the effort of Spanish Oaks in discovery and in the final hearing, as reflected in the Recommended Order in the case. Recommended and Final Orders in Case 05-2606 After the final hearing, Spanish Oaks filed a proposed recommended order suggesting that jurisdiction to rule on its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, should be retained. A Recommended Order that ERP 44025789.001 be issued to Spanish Oaks was entered in Case 05-2606 on November 10, 2005. Jurisdiction was retained to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order. On November 30, 2006, SWFWMD entered a Final Order adopting the Recommended Order in its entirety and issuing ERP 44025789.001 to Spanish Oaks. As to the ERP criteria, the Recommended Order found in pertinent part: Alleged Sinkholes * * * Marc Hurst, a geologist who testified for LRAS, opined that Mr. Gulati’s sinkhole investigation was insufficient to demonstrate whether or not the Spanish Oaks retention ponds were constructed over sinkholes.11 However, Mr. Hurst offered no opinion as to whether the retention ponds are located over active sinkholes. Nor did Mr. Hurst specifically disagree with Mr. Gulati’s conclusion that the Spanish Oaks retention ponds have not been impacted by active sinkholes.12 To the contrary, Mr. Hurst admitted that the retention ponds were holding water on the day that he observed them--indicating that to him that the ponds were not acting as a strong conduit to the aquifer. Mr. Gulati also noted the significance of the presence of water in the ponds, stating that, if there were active sinkholes in the ponds, they would not hold water.13 EN. 11 - Notably, Mr. Hurst has only participated in four sinkhole investigations and reviewed the reports of approximately six other such investigations, while Mr. Gulati has conducted between 700 and 800 during the past ten years. EN. 12 - The anecdotal testimony of Charles Cook and Tom Jackson regarding their observations of depressions and “cracks” at the site several years earlier did not support a finding that there is an active sinkhole. Mr. Jackson, a geologist for SWFWMD, was not willing to draw such a conclusion. EN. 13 - Mr. Gulati acknowledged that, in areas where the aquifer is under artesian pressure, an active sinkhole will hold water. However, that aquifer condition does not exist in the vicinity of Spanish Oaks. T. 358. The only suggestion of any sinkhole- related damage to the retention ponds came from Donna Stark, who testified that George Wilt--a heavy equipment operator at the site incorrectly identified by Ms. Stark as “an employee of Spanish Oaks”--told her that there had been a sinkhole collapse during the excavation of Pond A. This hearsay testimony was directly contradicted by Mr. Wilt himself, who testified that he made no such statement. Despite the allegation in LRAS’ petition regarding observations of collapse of sinkhole by Donna Stark, Ms. Stark herself admitted at hearing that she did not witness any actual collapse. Rather, she testified that, on January 25, 2005, she saw what she believed to be the aftermath of a sinkhole collapse. Stark may have been confused by the amount of excavated material being stored on the ground surface around the pond. 43,906 cubic yards of dirt was excavated from Pond A alone and was stacked to a height of 8-10 feet higher than the natural ground elevation. Others who observed the site on January 25, 2005, saw no evidence of a sinkhole collapse. Tim King, a Florida Fish and Wildlife Conservation Commission employee who was with Ms. Stark on January 25, 2005, merely reported seeing pond excavation in process. Laura Howe, a SWFWMD employee who inspected the site on that date, observed that “[i]t appears depth of ponds are [p]robably close to permitted depth.” Moreover, Ms. Stark admits that, on February 10, 2005, she observed the ponds to be “[s]even and a half feet, or six and a half, whatever it should be.” Ms. Stark’s suggestion that the collapse was filled in between January 25 and February 10, 2005, is belied by testimony that repairing a sinkhole collapse of the size suggested by Ms. Stark would have required much more material than was available. (No dirt was imported onto the site.) The evidence admitted at hearing requires a finding that there was no sinkhole collapse onsite. Spanish Oaks provided reasonable assurance that the System was designed and constructed to include sufficient separation between the pond bottoms and the Floridan Aquifer to prevent groundwater contamination. Construction of Berms LRAS contended in its Amended Petition that Spanish Oaks failed to give notice prior to constructing clay cores in some of the berms onsite, as required as a condition of the ERP, and that this failure constituted failure to provide reasonable assurances.14 EN. 14 - The Amended Petition actually alleged that this was a permit condition violation requiring revocation of the ERP. However, it was ruled prehearing that "the Petitioner's request for revocation actually is a request for a final order denying Spanish Oaks' application for a permit" and that "the allegations of non- compliance with permit conditions should not be stricken but instead should be considered only as they might relate to Spanish Oaks' provision of required reasonable assurances for issuance of a permit." See Order on Motion to Dismiss or Strike and Request for Stop-Work Order, entered August 17, 2005. The interconnection of the three ponds that are part of the System will allow them to function as one pond, while a perimeter berm around the entire Spanish Oaks project will ensure that surface water runoff is retained onsite and directed toward the ponds. Ponds A and C are located, respectively, at the southeast and northeast corners of Spanish Oaks.15 The design plans submitted with the ERP application indicated that the berms alongside the eastern side of Ponds A and C are to include clay cores, a design feature that was included as a specific condition in the ERP. The purpose of the clay cores was to prevent offsite impacts caused by lateral movement of water. EN. 15 - Pond B is centrally located in the Spanish Oaks’ interior. The specific conditions of the ERP also required that Spanish Oaks notify SWFWMD's "Surface Water Regulation Manager, Bartow Permitting Department [William Hartmann], at least 48 hours prior to commencement of construction of the clay core, so that District staff may observe this construction activity." LRAS proved that Mr. Hartmann did not personally receive a phone call prior to the construction of the clay cores, as required by the ERP, and that SWFWMD staff did not observe the construction. Mr. Hartmann explained that this constituted a permit condition compliance issue which would prevent the ERP from being transferred to the operation phase until SWFWMD was assured that the clay core was, in fact, constructed as required. To confirm proper construction of the clay core, Spanish Oaks undertook soil borings. SWFWMD staff engineer Sherry Windsor was onsite to observe the soil borings. Spanish Oaks also submitted a report from its engineering consultant certifying that the clay cores had been properly constructed in accordance with the ERP. SWFWMD typically relies on a project engineer’s signed and sealed certifications of compliance matters. SWFWMD staff observations and the certification provided by the Spanish Oaks engineer satisfactorily resolved the issue of proper clay core construction. Failure to notify Mr. Hartmann prior to construction, as required by the ERP, does not undermine Spanish Oaks' provision of the necessary reasonable assurance for issuance of the ERP. Endnote 3 at Finding of Fact 4 in the Recommended Order in Case 05-2606 stated: "The Amended Petition also alleged that Spanish Oaks failed to follow SWFWMD rules by neglecting to provide for permanent erosion control measures, but no evidence was presented by LRAS on this issue, which appears to have been abandoned." As to the ERP criteria, the Recommended Order concluded in pertinent part: The applicable criteria for the issuance of a standard general ERP for the Spanish Oaks project are set forth in Rules 40D-4.301 and 40D-4.302, as well as SWFWMD's Basis of Review (BOR), which is made applicable pursuant to Rule 40D-4.301(3). LRAS’ challenge to the ERP alleges the presence of a sinkhole or a sinkhole collapse in one or more of the retention ponds for the Spanish Oaks subdivision, and the impact that such alleged sinkhole or sinkhole collapse would have on conditions for issuance relating to groundwater quality. LRAS’ case reflects a basic misperception of the permitting criteria applicable to surface water management system retention ponds. Section 6.4.1.b. of the BOR, which establishes specific design criteria for retention areas, requires as follows: 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. As found, the Spanish Oaks retention ponds comply with this criterion. LRAS also contends that the Spanish Oaks retention ponds violate Rule 62- 522.300, a rule which, in LRAS’ view, prohibits the location of a stormwater retention pond in or over a sinkhole. LRAS’ reading of the rule is incorrect. Rule 62- 522.300(1), with certain exceptions not relevant here, provides that no installation shall directly or indirectly discharge into ground water any contaminant that causes a violation in the . . . criteria for receiving ground water as established in Chapter 62-520, F.A.C., except within a zone of discharge established by permit or rule pursuant to this chapter. The purpose of a zone of discharge is to provide a mixing zone “extending to the base of the designated aquifer or aquifers, within which an opportunity for the treatment, mixture or dispersion of wastes into receiving ground water is afforded.” Fla. Admin. Code R. 62-520.200(23). No evidence introduced at hearing suggests that the surface water runoff that infiltrates through the bottom surfaces of the Spanish Oaks retention ponds, and then travels approximately 70 feet through soil before reaching the Floridan aquifer, will exceed applicable ground water criteria when it reaches the aquifer. For that reason, the Spanish Oaks retention ponds do not need a zone of discharge. Rule 62-522.300(3) provides that Other discharges through wells or sinkholes that allow direct contact with Class G-I, Class F-I, or Class G-II ground water shall not be allowed a zone of discharge. (Emphasis supplied). Classes F-1, G-1, and G-II groundwaters are designated for potable use and are located within an aquifer. Fla. Admin. Code R. 62-520.410. “Aquifer” is specifically defined as “a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to wells, springs or surface water." Fla. Admin. Code R. 62- 520.200(2). Unless the alleged sinkholes allowed "direct contact" with the Floridan Aquifer, a zone of discharge would be permitted, assuming one were needed. No evidence introduced at hearing suggests that discharges from the retention ponds will come into direct contact with Class G-1, Class F-1, or Class G-II groundwaters. Instead, the discharges from the Spanish Oaks ponds only indirectly contact a drinking water aquifer, after infiltrating through tens of feet of separating soil layers. LRAS has not identified any applicable rule that prohibits the location of a retention pond in or over a relic sinkhole. Indeed, the record establishes that the presence of a sinkhole in or under a retention pond is problematic only if sinkhole activity affects the approved design of the retention pond. See Findings 47 and 49, supra. LRAS’s assertion of a sinkhole collapse at Spanish Oaks during the time frame alleged is contrary to the greater weight of the evidence, which established that the ponds have been constructed and are operating as designed and that there is no active sinkhole on the Spanish Oaks site that adversely affects the quality of receiving waters such that state water quality standards would be violated, or that otherwise affects Spanish Oaks’ ability to provide reasonable assurance of meeting applicable permitting conditions. LRAS offered no evidence to establish that water percolating through the Spanish Oaks retention ponds will come into direct contact with a drinking water aquifer or that a state water quality standard would be violated by the project. The greater weight of the evidence established that the Spanish Oaks retention ponds comply with the applicable construction requirement as stated in BOR Section 6.4.1.b. There is more than sufficient soil underlying the Spanish Oaks retention ponds to assure compliance with this requirement. As found, Spanish Oaks' failure to notify Mr. Hartmann before beginning construction of the clay core berm does not prevent Spanish Oaks from providing reasonable assurance that permit criteria will be met. As a result, Spanish Oaks has met its burden of proof and persuasion that all conditions for issuance of the permit have been satisfied and that it is entitled to the requested ERP. As suggested in the proposed recommended order filed by Spanish Oaks in Case 05-2606, the Recommended Order retained jurisdiction to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order. Spanish Oaks "renewed" the motion by filing its Petition in this case. SWFWMD's Final Order adopted the Recommended Order in its entirety. Petition in Case 05-4644F The Petition in this case asserts essentially that LRAS had no competent substantial evidence: that there was an active sinkhole under the retention ponds on the Spanish Oaks site; that the required clay core was not installed; or that erosion control measures were not used. As to the sinkhole allegations, Spanish Oaks asserts that, even if there were a reasonable basis for filing the Amended Petition in Case 05- 2606, it should have been withdrawn upon receipt of Mr. Gulati's report and Spanish Oaks' Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes. As indicated in the findings of fact and conclusions of law in Case 05-2606, Donna Stark and Charles Cook did not testify precisely as LRAS had been led to believe from their "affidavits" in the Amended Petition that they would. Likewise, the testimony of Timothy King and George Wilt was not supportive of Donna Stark's "affidavit" as to a sinkhole collapse during construction on the site, or her testimony as to Mr. Wilt's statements to her. The testimony of Tom Jackson and Charles Cook also did not completely support Donna Stark's "affidavit" as to the existence of sinkholes on the site. But while the use of "discovery" to establish the testimony of those individuals before the hearing certainly might have alerted LRAS to problems with the "affidavits" it was relying on, it was not incumbent on LRAS to undertake such "discovery" in order to avoid sanctions. It is not found that LRAS's prosecution of its Amended Petition in reliance on those "affidavits" was frivolous, for an improper purpose, or to needlessly increase the costs to Spanish Oaks of having its ERP approved. LRAS' prosecution of the Amended Petition after receiving Mr. Gulati's report and notice of Spanish Oaks' intention to file its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, also was not proved to be frivolous, for an improper purpose, or to needlessly increase the costs to Spanish Oaks of having its ERP approved. LRAS attempted to follow up on Mr. Gulati's report so as to enable its retained expert, Mr. Hurst, to verify whether it should be accepted as conclusive proof of the hydrogeology of the site, and perhaps assure LRAS that its Amended Petition could be withdrawn, but LRAS' attempts were unsuccessful. As a result, LRAS was left to presentation of Mr. Hurst's testimony based on the information he had. Mr. Hurst testified to the likely existence of at least three sinkholes at the site. He based this testimony on his knowledge of the area's stratigraphy, aerial photographs and topographical maps showing unexplained surface depressions, and evidence reported in Mr. Gulati's report. In addition, there are two documented sinkholes in the "immediate vicinity" of the site and about a dozen more within two-to-three miles. Based upon his review of all of the pertinent data, Mr. Hurst testified that the surface depressions on the site probably are part of a "lineament"--i.e., a fracture in the limestone formation below the earth's surface along which sinkholes tend to form. While he was unable to testify that an active sinkhole existed at the site, he maintained that the information presented to him was insufficient to disprove the existence of an active sinkhole at the site. He also testified to his opinion that relic sinkholes probably existed under the retention ponds. As found in the Recommended Order in Case 05- 2606: A relic sinkhole, as contrasted to an active sinkhole, has either been sealed or has self-sealed, so that there is no connection between the sinkhole and the underlying aquifer. An active sinkhole provides a direct connection--referred to by both LRAS’ and Spanish Oaks' experts as a “good communication”--between the surface and the aquifer. Mr. Hurst testified that, even if no active sinkhole existed at the site, the likely relic sinkholes made it more likely that active sinkholes would open there and create a direct conduit to the aquifer. At the final hearing and in its proposed recommended order in Case 05-2606, LRAS argued that the Spanish Oaks retention ponds violated Rule 62-522.300, even if they were not constructed over active sinkholes but rather only over relic sinkholes. As concluded in the Recommended Order and Final Order in Case 05-2606, such an interpretation of the Rule would be "incorrect" and a "misperception." But LRAS' primary argument was that Spanish Oaks did not provide reasonable assurance that there were not active sinkholes at the site, and the "fall-back" argument was not unreasonable to make based primarily on Mr. Hurst's testimony. The Petition also asserted that LRAS had no evidence in support of its allegation that the required clay core was not installed, or that required erosion control measures were not provided. But facts supported a finding that Spanish Oaks did not notify SWFWMD, as required, which was ruled to be relevant to the provision of reasonable assurance in general, and the erosion control issue was a minor feature of the Amended Petition, and the Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, filed in Case 05-2606 did not mention it. Evidence was presented during the final hearing in Case 05-2606 that the challenge in LRAS' Petition and Amended Petition was virtually identical to a challenge to Spanish Oaks' ERP that was filed by Donna Starks on behalf of her not-for- profit corporation, Central Florida EcoTours, in early May 2005 but was time-barred and dismissed because Starks and Ecotours received mailed notice of the issuance of the ERP to Spanish Oaks on April 27, 2004. Spanish Oaks implied during the final hearing in Case No. 05-2606 that Donna Starks told LRAS about the fate of the EcoTours challenge and asked LRAS to file its Petition and Amended Petition at her behest to block the Spanish Oaks development for leverage to accomplish her ulterior motive- -namely, purchase of the property by EcoTours. But those allegations were denied by LRAS and were not proven during the hearing in Case 05-2606.
The Issue Whether Petitioners’ installation of ditch plugs on their property qualifies for an agricultural exemption from the requirement to obtain an environmental resource permit pursuant to section 373.406(2), Florida Statutes.
Findings Of Fact Petitioners, Paul and Kathleen Still (Petitioners), own a parcel of property comprised of 118 acres located within Section 33, Township 6 South, Range 21 East, in Bradford County, Florida, approximately six miles southwest of Starke, Florida (the Property). The Department is the state agency authorized under section 373.407, Florida Statutes, to make binding determinations at the request of a water management district or landowner as to whether an existing or proposed activity qualifies for an agricultural-related exemption from environmental resource permitting, pursuant to section 373.406(2). The Property is classified as agricultural by the Bradford County Property Appraiser. A county-maintained dirt road, Southwest 101st Avenue, forms the western boundary of the Property, and Lake Sampson forms the eastern boundary of the Property. Petitioners have owned the Property since 1996, and currently reside on the Property. A drainage ditch runs through the Property from Southwest 101st Avenue to Lake Sampson. The evidence suggests that it was originally constructed in the 1960s, was dug through wetlands and uplands, and serves to drain the area west of Southwest 101st Avenue. The ditch had the effect of draining some of the wetlands that had previously existed on the Property. The drainage ditch ends in the Northwest corner of the wetland above ditch plug 3, at which point water flows east and then north, eventually flowing into Lake Sampson north of the Property. The wetland above ditch plug 3 was a natural wetland which was likely part of Lake Sampson before Lake Sampson was partially drained in 1887. At some point, a low berm was pushed around parts of this wetland. Prior to Petitioners’ ownership, the berm was breached and the wetland drained. Ditch plug 3 was installed in this breach. Ditch plug 3 restored water to the same level as was present when the wetland was part of Lake Sampson. The Property contains stands of planted and naturally- regenerating pine, natural cypress, and a stand of cypress trees planted by Petitioners. Cypress is present on 43 acres of the Property, with more than 50 percent of that area having been planted. The density at which the cypress was planted will require that the stand be thinned. Most of the thinned cypress trees will be sent off to be turned into mulch. Some will be of a size that it can go into saw timber. Silviculture has been defined in several ways: The United States Department of Agriculture and the Department have, on their websites defined silviculture as “the art and science of controlling the establishment, growth, composition, health, and quality of forest and woodland vegetation to meet the diverse interests of landowners and a wide variety of objectives.” The United States Forest Service website defines silviculture as “the art and science of controlling the establishment, growth, composition, health and quality of forests and woodlands to meet the diverse needs and values of landowners and society on a sustainable basis.” Florida Administrative Code Rule 5I-2.003(29) defines silviculture as “a forestry operation dealing with the establishment, development, reproduction, and care of forest flora and fauna.” The Department’s Silviculture Best Management Practices, adopted in rule 5I-6.002, defines silviculture as “a process, following accepted forest management principles, whereby the trees constituting forests are tended, harvested and reproduced.” Production of cypress for lumber and mulch is a silvicultural and agricultural activity. Petitioners’ production of cypress for lumber and mulch constitutes a silvicultural operation. The production of cypress is enhanced by periodic inundation to control hardwood species of competing trees. Starting in 2004, Petitioners began to plan for the installation of ditch plugs on the Property, and shortly thereafter installed ditch plug 3, which is not in wetlands. That plug was short-lived, being removed prior to 2006 when Petitioners started getting groundwater infiltration into their shallow drinking water well. At some time in 2006 or 2007, Petitioners reinstalled ditch plug 3. In 2009, at the request of Petitioners, a preliminary field review was conducted by staff of the District to discuss the potential to install ditch plugs on the Property. Based on the preliminary investigation, it was determined that additional analysis would be needed to make sure that the proposed plugs would not have offsite and upstream drainage problems. Ditch plugs 1 and 2 were installed in stages beginning in 2011. Construction of the ditch plugs was done in stages to ensure that no offsite impacts would occur. There is no evidence in this case to suggest that the ditch plugs have resulted in any offsite and upstream drainage problems. Petitioners assert that the ditch plugs were installed to return water to wetlands that had been drained so as to enhance the production of cypress in those wetlands. Petitioners also admit that the ditch plugs will also have the effect of mitigating for sediment eroding from Southwest 101st Avenue. On November 5, 2014, the District notified Petitioners that it had come to the attention of the District that the ditch plugs may have been installed on the Property without proper authorization. At some time after November 5, 2014, Petitioners requested that the District provide notification of the applicability of one or more of the exemptions in section 373.406 to the installation of the ditch plugs on their Property. On April 24, 2015, the District requested additional information in support of Petitioners’ request, and advised Petitioners that the ditch plugs were not exempt under section 373.406(2) because the predominant purpose of the ditch plugs was to impede or divert the flow of surface water. The District further advised Petitioners that the ditch plugs may be eligible for exemption under section 373.406(9), which exempts measures having the primary purpose of environmental restoration or water quality improvement on agricultural lands where these measures have minimal or insignificant adverse impact on the water resources of the state. On June 4, 2015, as a result of the District’s April 24, 2015, letter, Petitioners requested a binding determination as to the applicability of the section 373.406(2) agricultural exemption. On June 18, 2015, the Department conducted a site visit. According to Mr. Lamborn, the county forester for Baker and Bradford counties, who wrote the Stewardship Forest Management Plan for the Property and has visited the Property several times, the Property is not a typical timber operation. Mr. Lamborn noted that Petitioners were the only landowners during his time as a county forester that identified soil and water conservation as their primary management goal for a forest stewardship plan. Mr. Vowell has never seen ditch plugs used in a silvicultural operation in the manner that Petitioners have used them on their Property. Mr. Bartnick testified that the Department has never issued an agricultural determination providing an exemption for ditch plugs in wetlands. In coming to its Binding Determination, the Department reviewed, among other information, correspondence between the District and the Petitioners; the Silvicultural Best Management Practices manual (2008); current and historical aerial photography of the Property; a USDA Soil Survey map; the 2015 Bradford County Property Appraiser Information Card; the National Wetland Inventory Map; and the Florida Forest Service Stewardship Management Plan. The review of the request for a Binding Determination substantially complied with the requirements of Florida Administrative Code Chapter 5M-15. On September 14, 2015, the Department applied the three-part test in rule 5M-15.005, and issued its Binding Determination which concluded that Petitioner’s activities did not meet the requirements for an agricultural exemption. Under the heading "Application of Statutory Criteria,” the Binding Determination provided that: Pursuant to Section 373.406(2) F.S., all of the following criteria must be met in order for the permitting exemption to apply. "Is the landowner engaged in the occupation of agriculture, silviculture, floriculture, or horticulture?" YES. FDACS-Florida Forest Service finds that Mr. Paul Still is engaged in the occupation of silviculture. "Are the alterations (or proposed alterations) to the topography of the land for purposes consistent with the normal and customary practice of such occupation in the area?" NO. FDACS-Florida Forest Service finds that the construction of the ditch plugs are not a normal and customary practice for silviculture being conducted in the area. Normal and customary silviculture would typically not include the plugging of existing ditches. In fact, silviculture in Florida often necessitates some level of drainage to make wetter sites more accessible and therefore more productive. Based on his experience, Mr. Lamborn explained that “conservation of soils and water resources”, as the main component of a Stewardship Plan is not customary. Moreover, the 2008 Silviculture Best Management Practices manual does not list ditch plugs installed in wetlands or in large ditches connected to wetlands, as a viable practice. The reference to ditch plugs in the 2008 Silviculture Best Management Practices manual is for “road-side” ditches and has to do with the entrapment and dispersion of sediment and the reduction of ditch- flow velocity, not hydrologic restoration. "Are the alterations (or proposed alterations) for the sole or predominant purpose of impeding or diverting the flow of surface waters or adversely impacting wetlands?" Because the exemption in section 373.406(2), F.S., requires an affirmative answer to all these criteria, and we have already found that the alterations are not consistent with normal and customary practice of such occupation in the area (see (b) above), there is no need to address this issue. In sum, the Binding Determination concluded the installation of ditch plugs in Petitioners’ particular circumstance did not qualify for the agricultural exemption under section 373.406(2), because such is not a normal and customary practice for silviculture being conducted in the area. Petitioners asserted that the Department’s determination reflected a “bias” towards pine production, and did not consider the requirements of cypress production. Much of the testimony regarding customary silvicultural practices was provided by Mr. Vowell. Mr. Vowell has worked with hundreds of small, private, non-industrial forest owners, and was clearly well-versed in pine production. He described his experience with the production of cypress as “very little.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Agriculture and Consumer Services enter a final order finding that the activities on Petitioner’s Property addressed in this case are not exempt pursuant to section 373.406(2), Florida Statutes. DONE AND ENTERED this 2nd day of February, 2016, in Tallahassee, Leon County, Florida. S 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 2nd day of February, 2016. COPIES FURNISHED: Lauren Brothers, Esquire Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 (eServed) Paul Still Kathleen Still 14167 Southwest 101st Avenue Starke, Florida 32091 (eServed) Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Live Oak Plantation No. 1, Ltd. (Live Oak) through Stanford Development Group filed application number 4-117-0464AC-ERP with the St. Johns River Water Management District (SJRWMD) in April 1997, seeking a conceptual approval environmental resource permit. After SJRWMD issued its notice of intent to grant the permit, the Petitioners filed their petitions challenging the intended agency action. The central issue in this proceeding is whether the permit should be issued pursuant to Chapter 373, Florida Statutes, and Chapters 40C-4, 40C-41 and 40C-42, Florida Administrative Code, including specific provisions of the Applicant's Handbook adopted by rule and identified in the parties' prehearing stipulation filed July 8, 1998.
Findings Of Fact The Parties Michael D. Rich is a former resident of Seminole County who lived on the property contiguous to the Live Oak site. He is the legal representative of his mother who still resides on the property and he is president of C-RED. C-RED is a Florida non-for-profit corporation with members from the City of Oviedo and unincorporated areas of Seminole County who are interested in assuring that development is done without improper impact on the taxpayers and the rural character of the area. Mr. Griffin is a resident of Seminole County living on Horseshoe Lake, which adjoins the Live Oak site. Live Oak is a Florida Limited Partnership which intends to develop the project that is the subject of this proceeding. SJRWMD is a special taxing district created by Chapter 373, Florida Statutes, and charged with responsibility for various permitting programs, including the one at issue here. The Project Live Oak proposes to develop a large multi-phased single family project with two small commercial sites. The project, to be known as "Live Oak Reserve," will be on approximately 1,041 acres on the south side of county road 419 in southeastern Seminole County in the City of Oviedo. The project site is located near the confluence of the Econlockhatchee River (Econ River) and Little Econlockhatchee River. The Live Oak Reserve property includes approximately half of Horseshoe Lake, as well as a small creek, Brister Creek, which flows from Horseshoe Lake across the property to the Econ River. The Econ River, a class III water and designated an Outstanding Florida Water (OFW), crosses the southwestern corner of the Live Oak Reserve property. The Econ River is the receiving water body of Live Oak Reserve. The Live Oak Reserve property is located within the Econlockhatchee River Hydrologic Basin. A portion of the Live Oak Reserve property lies within the Econlockhatchee River Riparian Habitat Protection Zone (RHPZ). The Live Oak property lies within a 1,500 acre drainage basin; approximately 450 acres off-site drain through Live Oak Reserve. Horseshoe Lake has approximately 500 acres that drain through it, then through the wetlands and into the Econ River. Historically, the Live Oak Reserve property has been used for agricultural practices, including siliviculture and cattle production. Some areas of the property have been logged and some areas have been converted to pasture. Cattle have grazed in wetlands, thereby decreasing the amount and diversity of groundcover vegetation on portions of the property. Additionally, on-site drainage ditches have had a major impact on the hydrological characteristics of the wetlands on the property, including the reduction of surface water elevations. The Live Oak Reserve property is currently vacant and undeveloped. The Application Process In April 1997, Live Oak submitted to the SJRWMD an Environmental Resource Permit Application, N4-117-0464AC-ERP, for conceptual approval of a master stormwater and floodplain management system for the development of Live Oak Reserve. A conceptual permit is utilized in complex multi-phased projects which are expected to have a longer build-out period than a single phase project. A conceptual permit does not allow any construction activity, but provides the outline for final engineering calculations and construction drawings. Further permits are required before any sitework or construction is undertaken. In conjunction with its permit application Live Oak submitted detailed technical information, including but not limited to charts, maps, calculations, studies, analyses and reports necessary to show that the conceptual development plan was consistent with the permitting criteria of the SJRWMD found in Chapter 40C-4, Florida Administrative Code, and the Applicant's Handbook. The master plan for the Live Oak project was designed by Donald W. McIntosh Associates, Inc.(McIntosh) using input from: (a) land planners who were required to consider issues related to the comprehensive plans, open space requirements and related issues; (b) landscape architects who were responsible for the proposed park systems and landscape treatments throughout the project; (c) geotechnical engineers responsible for evaluating the soil and groundwater conditions; and (d) environmental consultants, Modica and Associates, who were responsible for wetland delineation and flagging and wildlife surveys. The first version of the Live Oak Reserve site plan prepared for the project by McIntosh included development of all upland areas and filling several portions of the mixed forested wetlands to maximize lot yield. This included development of the upland adjacent to the Econ River and development of an upland parcel on the west side of the river. After much consideration and revision by the developer and its consultants, a site plan was developed which minimizes impacts to wetlands and other surface water functions, particularly as it relates to the Econ river, and maximizes the benefits to wildlife by establishing a series of wildfire corridors across the site. The final plan submitted to the SJRWMD at the time of the application includes the preservation of the entire Econ River floodplain and two adjacent developable upland areas, a large mixed hardwood forested wetland which traverses the site from the northeast to the southwest, and upland and wetland areas in the southern portion of the site that provide a corridor between a large undeveloped parcel to the east and the Econ River to the west. After submission of its application, Live Oak participated in a review process with SJRWMD staff to further eliminate and reduce wetland impacts. Specifically, SJRWMD requested changes to the site plan which included reductions in impacts to various wetlands and additional buffers to other wetlands. Several changes to the site plan were made to accommodate the SJRWMD's concerns relating to reducing impacts to wildlife, particularly the Florida sandhill crane. The reductions in wetland impacts and other design changes resulted in a revised site plan which the SJRWMD staff recommended to the district's governing board for approval. The staff recommendation of approval, with associated conditions, is set forth in Technical Staff Report dated February 10, 1998. On July 14 and 16, 1998, the SJRWMD revised the technical staff report to reflect changes to the project design and mitigation plan, as well as to add conditions inadvertently omitted from the earlier technical staff report. Condition no. 8 was mistakenly added to the July 16 technical staff report and by stipulation of all the parties, this condition was removed from the technical staff report. (See transcript, page 521) Stormwater Analysis McIntosh utilized information from different sources in preparing the stormwater calculations submitted to the SJRWMD. The developer provided information regarding proposed lot sizes and types so as to determine the impervious surface area for developable lots. The geotechnical consultants, Universal Engineering Sciences, (Universal) provided McIntosh with preliminary, interim, and final geotechnical reports, soil boring logs, and groundwater table estimates. The input from Universal primarily involved the establishment of seasonal high and seasonal low groundwater elevations for the pre-development and post-development conditions on the site. The estimated seasonal high and seasonal low groundwater levels refer to the range of levels the groundwater is expected to attain on the site during the wetter (high) and dryer (low) periods of a normal year. These elevations were then utilized in the stormwater calculations prepared by McIntosh. Topography on Live Oak Reserve consists of elevations ranging from 48 feet to 25 feet NGVD. In its pre-development condition, Live Oak Reserve has 6 distinct drainage patterns. Off-site drainage basins also contribute runoff to the property. The conceptual post-development design will modify the project's on-site drainage patterns into 28 drainage basins. At the request of the SJRWMD, Live Oak prepared seasonal high and seasonal low groundwater elevation contour maps. Live Oak performed approximately 200 borings on the Live Oak Reserve property. From the borings, Live Oak determined the soil types present and the existing groundwater elevations. Live Oak also used the borings to assist in establishing the estimated seasonal groundwater elevations. With the exception of several shallow borings in wetland areas, all borings were taken by split spoon sampling. Seventy-nine piezometers were installed next to bore holes to measure groundwater levels. In establishing the seasonal high groundwater levels, Live Oak evaluated the groundwater level at the time of boring; the time of year the groundwater level was measured; the time span of the investigation and its relationship to normal rainfall patterns; soil indicators such as coloration, mottling, and particle size; site specific topography; USGS quadrangle maps depicting site topography; Soil Conservation Service (NSCS) estimates of the expected seasonal high groundwater levels; and vegetative indicators. It is not essential to evaluate rainfall data when determining the seasonal water levels because the historical seasonal water levels are recorded in the soils. The estimated seasonal high groundwater level can be determined during the dry season. The range of the estimated seasonal high groundwater level on the Live Oak Reserve property is from standing water on the ground to five feet below the existing grade. In evaluating Live Oaks estimated seasonal groundwater levels, the District reviewed Live Oak's submittals, and also reviewed the NSCS soil survey to confirm that the estimated seasonal groundwater levels were reasonable. Wetland seasonal surface water levels were estimated using biological indicators such as lichen lines, buttressing, water lines, and sand lines. Lichen lines were apparent on the Live Oak Reserve properly and reflective of normal rainfall conditions. Seasonal high water levels are expected at the end of September. Seasonal low water levels are expected in May. The wetland surface water levels encountered in January 1997, when the seasonal levels were estimated, were neither exceptionally low nor exceptionally high. The water levels were representative of a period of normal rainfall. Water quantity attenuation and stormwater treatment will be accomplished through wet detention ponds and vegetative natural buffers. Due to the location of Live Oak Reserve in the Econlockhatchee River Hydrologic Basin, special basin criteria apply this project. The special basin criteria, also known as the "Econ Rule," is more stringent than the stormwater management criteria set forth in Applicant's Handbook sections 9 and 10. The special basin criteria, as it relates to the surface water management systems, requires Live Oak to control its discharge from two design storms: the mean-annual design storm, and the 25-year, 24-hour design storm. A design storm is a hypothetical storm with a predetermined rainfall amount, a predetermined intensity and 24 hour-duration. Designing the system to control the peak discharge during the mean-annual storm will prevent erosive velocities that would be harmful to Brister Creek and the Econ River. The conceptually proposed system is designed to limit peak rates of discharge to those of pre-development for the mean-annual and the 25-year, 24-hour design storm events. The system, as conceptually proposed, will limit post-development discharge rates to the same as or lower than the pre-development discharge rates. Each stormwater management area will pre-treat its respective post-development basin's pollution volume prior to discharge downstream. Live Oak proposes to use vegetative natural buffers for a portion of the rear lots within the post- development condition to fulfill treatment requirements. Live Oak Reserve is designed for the retention of the first inch of runoff from the total area of the post-development basins or the total runoff from 2.5 inches times the post- development basin's impervious area, whichever is greater. Furthermore, because Live Oak Reserve conceptually discharges to the Econ River, an OFW, the system is designed to provide an additional 50 percent of treatment. For discharges to an OFW the system must treat to a 95 percent removal standard. The outfall structures within each wet detention system are designed to draw down one-half the required treatment volume between 60 to 72 hours following storm event, but no more than one-half of this volume will be discharged within the first 60 hours. Each wet detention pond is designed with a permanent pool with a 31.5-day residence time during the wet season. Residence time is the time that the water within a pond will stay in the pond prior to discharge. The residence time includes the 14-day residence time required of all wet detention systems, an additional 50 percent residence time (7 days) for discharging into an OFW, for a total of 21 days. In addition, each system has been designed to provide an additional 50 percent residence time (10.5 days) because Live Oak has elected not to plant littoral shelves within each pond. As conceptually designed, Live Oak reserve's post- development drainage pattern will have no effect on the drainage patterns of Lake Eva or Horseshoe Lake. As conceptually designed, Live Oak Reserve's post-development drainage pattern will reduce the rate of flow during the storm events, which is a positive effect on the drainage pattern of Brister Creek. The reduction in flow velocity reduces the erosiveness of the storm. Live Oak has demonstrated that the 25-year and 100- year, 24-hour storm events' post-development peak stages for Lake Eva and Horseshoe Lake are not changed as a result of this conceptual project. Based upon Live Oak's calculations, the Live Oak Reserve project will not cause any restriction to the flow of water as it outfalls from Horseshoe Lake to Brister Creek. The conceptual wet detention systems within Live Oak Reserve are proposed to have a maximum depth of 12 feet. However, Live Oak requested consideration at the time of final engineering for each phase of development to maximize selected stormwater management areas for maximum depths of up to 25 feet. That consideration will be made in subsequent application review and is also subject to the City of Oviedo's approval. The conceptual wet detention ponds are designed with an average length to width ratio of two to one, and are configured to minimize the occurrence of short circuiting. As such, they will meet the criteria of the applicable rules. Tailwater conditions for the project were based on published flood elevations. Live Oak analyzed the tailwater condition for the mean-annual, 25-year 24-hour, and the 100-year 24-hour design storms. Live Oak completed a 100-year flow analysis for Live Oak reserve. Pre-development floodplain elevations for Lake Eva, Horseshoe Lake, and the Econ River were referenced from previous studies (Seminole County) and the Federal Emergency Management Agency. Live Oak determined that the 100-year floodplain elevations effecting Live Oak Reserve to be 40.2 feet NGVD from Horseshoe Lake, 45.0 feet NGVD for Lake Eva, and 32.5 feet NGVD for the Econlockhatchee. The U.S. Geological Survey (USGS) has produced a map of flood prone areas which indicates that the elevation delineating the flood prone area for Horseshoe Lake is 40.14, not 40.2, and for Lake Eva is 43.38, not 45.0. Therefore, the area indicated by USGS as the flood prone area is included in the 100-year floodplain analysis of Live Oak. Live Oak, in its conceptual design, has demonstrated that it will provide compensating storage for any encroachments into the 100-year floodplain. Live Oak has conceptually proposed to fill approximately 18.69 acre- feet within the 100-year floodplain. Live Oak will compensate the filling of the floodplain by providing a cut with the 100-year floodplain of approximately 27.09 acre-feet. By meeting the criteria in the "Econ Rule" the project conceptually meets all other relevant standards for stormwater management as the basin rule is more stringent. Live Oak has provided reasonable assurance that the development will not affect surrounding property or raise stagewater elevations of any surrounding property; the development will not displace the 100- year flood plain area; and the development will not restrict or impede the natural flow from Horseshoe Lake. Wetland and Wildlife Impacts Approximately 430 acres of wetlands cover the project site. Two general types of wetlands on found on the Live Oak reserve property: herbaceous wetlands and forested wetlands. Twenty-three herbaceous wetlands are classified as freshwater marshes. These wetlands range in size from 0.2 acre to over 8 acres. Wetlands 10 and 16, the largest on the property, are mixed hardwood forested wetlands. Approximately 525 acres of the Live Oak Reserve property are located within the RHPZ. Of this area, approximately 410.5 acres are wetlands, and the remainder are uplands that are predominantly pine flatwoods and xeric scrub. A few of the wetlands on site are considered RHPZ wetlands, not "isolated," solely because they are connected to floodplain wetlands by ditches. These wetlands and 50 feet of the uplands surrounding them are considered part of the RHPZ. The wetlands within the RHPZ are intact with little disturbance, especially in the Econ River corridor that is a part of wetland 16. Wetland 10 has been logged and the species composition in that wetland has changed. Wetlands 12 and 14 have ditch connections to the Econ River, but these ditch connections do not appear to have adversely impacted the wetlands hydrologically. Wetlands 2,3, and 8 have ditch connections to the Econ River. These wetlands have been adversely affected (drained) by the ditching. The RHPZ uplands are in good condition and provide very valuable habitat, except for 12 acres that are adjacent to upland cut drainage ditches. These 12 acres have no habitat value. The portion of the Live Oak Reserve property within the RHPZ provides good habitat important to fish and wildlife, and is part of the Econ River floodplain. The upland areas outside the RHPZ on the Live Oak Reserve property primarily consist of pine flatwoods and pasture. The pine flatwoods have been logged and are overgrown. The pasture appears to have been cleared many years ago and planted with bahia grass. Twenty-two isolated wetlands, which total approximately 17.9 acres, are located on the Live Oak reserve property. The isolated wetlands are intact and in good condition, except for temporary impacts due to cattle grazing and logging. The isolated wetlands provide habitat for wading birds, frogs, toads, and other wildlife. Ephemeral wetlands are wetlands that are seasonally inundated, but not necessarily inundated every year. Ephemeral wetlands provide important functions to wildlife, including gopher frogs and other amphibians for breeding, wading birds and sandhill cranes for foraging, and invertebrates. Ephemeral wetlands or "seasonal" wetlands occur on the Live Oak Reserve property. Although Live Oak did not separately address any of the wetlands as ephemeral, the value and functions of ephemeral wetlands were assessed by SJRWMD staff-person, David Eunice. While several small ephemeral wetlands are being impacted by the proposed development, several others are being preserved. Live Oak conducted wildlife surveys of the Live Oak Reserve property in accordance with the Florida Game and Fresh Water Fish Commission's approved Wildlife Methodology Guidelines. Based on the surveys, Live Oak determined that three listed species occurred on-site: the Florida sandhill crane, the gopher tortoise, and the Sherman's fox squirrel. The Florida sandhill crane is a threatened species. Live Oak found no evidence that the property hosts Florida panthers. Although the wildlife surveys did not identify gopher frogs, a species of special concern, the SJRWMD recognized the potential for the gopher frog to use the wetlands, including the ephemeral or seasonal wetlands, on the Live Oak Reserve property. Florida sandhill cranes have been observed foraging in a few areas on the Live Oak reserve property. In the spring of 1997, Live Oak identified two active nests in freshwater marshes (wetlands 21 and 29). There is no evidence that the sandhill cranes are currently nesting in wetland 29; however, Florida sandhill crane nests have been located in wetlands 14 and 21 this year. The typical critical nesting habitat for Florida sandhill cranes is a large, isolated marsh, generally either dominated by maidencane or pickerel weed. The marsh must maintain a surface water level between 12 and 24 inches so that the birds can construct a suitable nesting platform in the marsh. Nesting success, in part, depends upon wetland type used and water depths. The Florida sandhill crane also requires a certain amount of pasture-like upland habitat in which to forage. However, the crane forages in both uplands and wetland. Upland pasture is the sandhill crane's preferred foraging habitat. The sandhill crane's second most preferred foraging habitat is freshwater marsh. When the sandhill cranes have chicks and fledglings, the birds forage in the wetlands. After a period of three to four months, the juvenile and adult sandhill cranes will move to open pasture to forage. The Econ River floodplain wetlands and their associated upland habitats on the Live Oak reserve property are regionally ecologically significant. Overall, the Live Oak Reserve property provides good ecological value. It is part of the river corridor, has a tributary that runs through it and has uplands that have had little disturbance. Live Oak has eliminated certain wetland impacts and reduced others during the design of the Live Oak Reserve project. Live Oak eliminated some road crossings, and redesigned the pond configuration to eliminate or reduce encroachments into wetlands. Live Oak's site plan that was submitted as part of the initial April 14, 1997, application reflects Live Oak's initial attempts to eliminate or reduce impacts. Live Oak, in its application, proposed a project design with 46 acres of wetland impacts. The site plan has changed since Live Oak made the initial application to the SJRWMD. The initial project design called for the removal of the southern one-half of wetland 29 for the construction of a stormwater pond. Live Oak redesigned the project to preserve wetland 29 with a 50-foot upland buffer around it to eliminate direct impacts to the sandhill cranes nesting there. Live Oak further reduced impacts by preserving wetlands 14 and 15, and by placing upland buffers around them to protect sandhill crane habitat. The revised design of the surface water management system reduced wetland impacts by approximately 7 acres. The SJRWMD February 10, 1998, technical staff report includes the design plans reducing impacts by 7 acres. After the SJRWMD issued its February 10, 1998, technical staff report, Live Oak once again redesigned the project to preserve wetland 12. This redesign reduced wetland impacts by an additional 3 acres. In this case, SJRWMD staff worked with Live Oak to reduce or eliminate its impacts. Nonetheless, staff believed Live Oak's proposed mitigation qualified for the exception under Section 12.2.1.2b, that is, the on-site preservation of the Econ River floodplain and associated uplands, in concert with Live Oak's contribution to acquiring a conservation easement over the Yarborough parcel, discussed below, provides regional ecological value and provides greater long term ecological value then the areas impacted. Live Oak proposes practicable design alternatives, but it is not required to reduce or eliminate all impacts. Some design alternatives, such as whether to use a bridge or culverts for the Brister Creek crossing, must be addressed and considered at a later permit application stage and not at this conceptual permit stage. The proposed design includes dredging or filling of approximately 35.9 acres of wetlands and construction in approximately 38 acres of RHPZ uplands. Of these 35 wetlands on the Live Oak Reserve property, Live Oak will completely impact 23 of the wetlands (17.64 acres of wetland impact); partially impact 5 wetlands (18.28 acres of wetland impacts out of 370.15 acres of wetlands); and will avoid impacts to 7 wetlands (40.63 acres). The impacts are mostly limited to the small isolated wetlands, the upland/wetland transitional edges of the floodplain wetlands, and portions of RHPZ already degraded by a ranch roadway and ditch placement. Live Oak focused its impacts on areas, including wetlands, that were historically disturbed. SJRWMD staff considered that the isolated wetlands less than 0.5 acre were used by sandhill cranes and other threatened or endangered species. Therefore, staff required Live Oak to offset impacts to the small isolated wetlands. In addition to physical impacts to wetlands and RHPZ, the habitation of the proposed subdivision, which will result in noise and intrusion into wildlife habitat by humans and their pets, will cause secondary impacts. Those secondary impacts are offset in part by the upland buffers proposed by the applicant (a total of 10 acres of 25 foot buffers and 47.86 acres of 50- foot buffers.) After considering the type of impact proposed; past, present and future activities that may occur in the Econ River Hydrologic Basin; and that Live Oak off-site mitigation of adverse impacts is located within the same hydrologic basin; SJRWMD staff appropriately determined that Live Oak Reserve would not have an adverse cumulative impact. Mitigation Live Oak's mitigation plan consists of both on-site and off-site preservation. The proposed on-site component of the mitigation plan entails the preservation of 19.3 acres of herbaceous marsh, 373.2 acres of forested wetlands, and 124.9 acres of uplands. The mitigation plan preserves approximately 5.65 acres of isolated wetlands on-site, and approximately 386.86 acres of RHPZ wetlands on-site. The cornerstone of Live Oak's on-site mitigation is the preservation of the Econ River forested floodplain swamp, as well as two upland areas, in the southwestern corner of the property. One of the upland areas is a 15-acre upland scrub island on the east side of the river that is surrounded by forested wetlands. The other upland area is 24 acres of uplands located near the Econ River on its west side. Portions of both uplands are within the RHPZ. Both the forested floodplain and the associated upland areas provide habitat of regional ecological significance. The forested floodplain wetlands and the uplands that are part of the RHPZ are protected to a large degree by SJRWMD regulations. These regionally significant wildlife communities, however, can be temporarily, but chronically, impacted, if not permanently degraded, by timbering and other activities that are relatively unregulated. Live Oak proposes to protect and preserve these areas by placing them in a conservation easement. Placing Econ River forested floodplain wetlands and the upland RHPZ areas in a conservation easement will provide a greater level of protection and assurance that they will mature to an "old growth" condition, which will benefit many wildlife species. The Econ River floodplain wetlands, the upland scrub island and the small isolated wetland in the scrub island will accommodate the smaller wildlife species that currently use the Live Oak Reserve property. Live Oak has preserved most of the larger isolated wetlands with high ecological value. The large isolated wetlands preserved on-site will continue to maintain a high level of ecological function even with the surrounding development. Wildlife, such as frogs, toads, snakes, and wading birds will continue to use those wetlands. The on-site portion of the mitigation plan preserves approximately 71.87 acres of upland buffers, of which 2.04 acres are located in 25-foot buffers and 69.83 acres are located in 50- foot RHPZ buffers. The buffer areas will be placed in a conservation easement. The wildlife values of the uplands on this property that are not within the RHPZ are protected to some degree by local government regulations; they are, however, largely unprotected by the existing regulations of SJRWMD. Without the proposed conservation easements, this habitat may be developed or significantly degraded by other activities. As a component of its on-site sandhill crane nesting site management plan, Live Oak preserves a 6.83-acre upland buffer next to wetland 21, which hosts a sandhill crane nest. Additionally, Live Oak provides enhancement of 3.88 acres on the southside of wetland 21 within the 6.83-acre buffer area by converting this area to improved pasture for sandhill crane foraging habitat. The mitigation plan sufficiently offsets the impacts to the smaller isolated wetlands, even if these wetlands have more than a typical resource value. When evaluating impacts and mitigation, Applicant's Handbook Section 12.2.3.7 requires the SJRWMD to evaluate the predicted ability of the wetland or other surface water to maintain their current functions as part of the proposed system once the project is developed. Many of the smaller isolated wetlands, when located in a natural setting such as a pine flatwood, are very critical and provide very high ecological value. However, once a project is developed and the small isolated wetland is surrounded by homes, the resource value of the small isolated wetland is diminished. Many of the smaller wildlife species, such as frogs and snakes, will be extirpated from the developed area of property, whether or not the smaller isolated wetlands remain. SJRWMD considered the value of the off-site mitigation to offset the adverse impacts to the smaller isolated wetlands. In determining the adequacy of the preservation component of the mitigation plan, SJRWMD staff did not rely upon any specific rule, regulation, or comprehensive plan of the City of Oviedo. However, the staff did consider the overall protections afforded by the regulatory and comprehensive plan requirements of the city and determined that preservation of the mitigation areas by conservation easement provided greater assurance that these areas will be protected than the local government rules, regulations, and comprehensive plan. The off-site component of the mitigation plan is the contribution of $160,525 towards participation in the SJRWMD acquisition of a conservation easement over the 3,456 acre Yarborough parcel. The Yarborough parcel is located in the northeastern corner of the Econ River Hydrologic Basin. The Yarborough parcel encompasses property north and south of the Econ River. A portion, mostly sovereign lands, lies within the Puzzle Lake/Upper St. Johns River Hydrologic Basin. The Yarborough parcel is part of a large working ranch. The parcel contains improved and unimproved pasture, significant cabbage palm hammocks, pine flatwood communities, and freshwater marsh. Live Oak's participation equates to the acquisition of a conservation easement over 200 acres of the Yarborough parcel. However, Live Oak is not purchasing any particular 200 acres with the Yarborough parcel. Live Oak's contribution is applied to 200 acres of the Yarborough parcel within the Econ River Hydrologic Basin. SJRWMD estimates that of the 200 acres, 165 acres are wetlands and 35 acres are uplands. This assessment is based on the composition of wetlands and uplands on the Yarborough property within the Econlockhatchee River Hydrologic Basin. SJRWMD has purchased development rights over the Yarborough parcel. Yarborough is authorized to continue its cattle operation on the Yarborough parcel for 20 years in accordance with the conditions of the conservation easement. However, Yarborough is not permitted to increase the amount of improved pasture or further develop the parcel. On the contrary, the conservation easement requires Yarborough to decrease the number of cattle on the parcel over the next 20 years. Purchase of the conservation easement over the working ranch has positive environmental benefits. The conservation easement will protect the wildlife species that use the ranch. This environmental benefit can be used to offset adverse impacts on the Live Oak Reserve property. To participate in this type of mitigation, the acquisition must be imminent so that the SJRWMD is reasonably assured that the purchase will go forward. Participation is precluded for a parcel after its acquisition is concluded. Live Oak's mitigation plan, with its on-site and off- site components, offsets Live Oak Reserves adverse impacts. SJRWMD calculates the mitigation ratio and compares it to the guidelines in the Applicant's Handbook to determine if mitigation is adequate. SJRWMD however, is not required to adhere to any set ratio. The upland preservation ratio (area preserved to area impacted), excluding the 12 acres of uplands along the upland cut ditches and the Yarborough parcel uplands, is 6 to one. The rule guidelines for upland preservation is from 3 to one to 20 to one. The wetland preservation ratio is 15.5 to one. The rule guidelines for wetland preservation is from 10 to one to 60 to one. Public Interest Criteria Live Oak Reserve will not have any effect on the public health, safety or welfare or property of others. Because the mitigation plan adequately offsets all adverse impacts, Live Oak reserve will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. Because of the benefits of lowering the discharge rates in the post-development condition and reducing the velocity of stormwater in Brister Creek, Live Oak Reserve will reduce the potential for erosion. Live Oak Reserve will not have any affect on the fishing or recreational values or marine productivity in the vicinity of the site. Live Oak Reserve will be of permanent nature. However, its adverse impacts have been offset by mitigation. The permanence of the project is beneficial in that it provides treatment of untreated off-site runoff from county road 419 by the Live Oak surface water management system and it reduces the discharge rate of stormwater down Brister Creek. Therefore, the permanence of the project is not contrary to the public interest. In accordance with Section 373.414, Florida Statutes, the Florida Department of State Division of Historical Resources determined that the Live Oak Reserve project will have no possible impact to historic properties listed, or eligible for listing, in the National Register of Historical Places, or otherwise of historical or architectural value. Furthermore, the Division of Historical Resources determined that the project is consistent with Florida's Coastal Management Program and its historic preservation laws and concerns. The current condition and relative value of functions being performed by the various vegetative communities on the Live Oak Reserve property is good. However, there is no guarantee that the value and functions would remain good if the property is not managed for species like the sandhill crane or if agricultural and silvicultural practices continue to occur on the property. The mitigation plan, preserving regionally ecologically significant wetland and upland communities on both the Live Oak Reserve and Yarborough parcel by conservation easement, should provide a greater protection of those communities than what currently exists.
Recommendation Based on the forgoing, it is RECOMMENDED That a final order be entered granting Live Oak's application for a conceptual approval environmental resource permit with the conditions set forth in the SJRWMD technical staff report dated July 16, 1998, with the exception of condition 8, deleted by stipulation. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998 COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Scott M. Price, Esquire J.A. Jurgens, P.A. 505 Wekiva Springs Road Longwood, Florida 32779 Charles H. Griffin, pro se 250 West 7th Street Chuluota, Florida 32766 Michael L. Gore, Esquire Meredith A. Harper, Esquire Ken W. Wright, Esquire Shutts and Bowen, LLP 20 North Orange Avenue Suite 1000 Orlando, Florida 32801 Anthony J. Cotter, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
The Issue The issue in this case is whether the Southwest Florida Water Management District (District) should approve applications to renew consumptive use permits filed on behalf of the West Coast Regional Water Supply Authority (Authority), Pinellas County (County), and Freeman F. Polk (Polk), and if so, what conditions should be included in the permits. The District proposes to issue renewed permits to these applicants with specified conditions, but Polk seeks certain additional condition; to the permits sought by the Authority and the County, and similarly, the Authority and County seek the imposition of additional conditions on Polk's permit. The parties seek these additional conditions to insure that the permitted uses will not interfere with any legal use of water existing at the time of the applications, and will also not cause the water table to be lowered so that lake stages or vegetation are adversely and significantly affected on lands other than those owned, leased or controlled by the applicants.
Findings Of Fact The following findings are based upon relevant stipulations of the parties: The Authority is a special taxing district of the State of Florida encompassing Pasco, Pinellas and Hillsborough Counties, which was created by interlocal agreement on October 25, 1974. It is responsible for the design, construction, operation and maintenance of facilities in locations, and at times, necessary to insure that an adequate supply of water will be available to all persons residing within its boundaries. The District is an agency of the State of Florida which is charged with regulating consumptive uses of water in a sixteen county area, including Pinellas, Pasco and Hillsborough Counties. It has implemented a permitting program that requires all persons seeking to withdraw water in excess of an annual average daily rate of 100,000 gallons, and a maximum daily rate of 1,000,000 gallons, to obtain a consumptive use permit. The Cypress Creek Wellfield is located on a 4,895 acre site in central Pasco County, lying east of U.S. 41 between State Roads 52 and 54. The District owns 3,623 acres of this Wellfield, and the remaining 1,272 acres are owned by the City of St. Petersburg. Construction on the Cypress Creek Wellfield commenced in 1974, and it currently consists of thirteen production wells, numerous monitor wells, several thousand feet of transmission lines, two 5 gallon storage tanks, a pump station and several buildings. The City of St. Petersburg, Pinellas and Pasco Counties, and the District have transferred their rights and privileges in this Wellfield, as well as the Wellfield facilities, to the Authority by contracts entered into in November, 1973, and August 1974. Water produced at the Cypress Creek Wellfield is sold at cost by the Authority to users which include the City of St. Petersburg and Pinellas County. The water produced at this Wellfield comprises 29% of the County's total water system demand (20 million gallons a day), and 25% of the City of St. Petersburg's total system demand (10 million gallons a day). These water systems serve approximately 470,000 and 330,000 persons, respectively. In March 1978, the District issued a six-year consumptive use permit to the Authority, the City of St. Petersburg, and the County authorizing an annual average and maximum daily withdrawal of 30 million gallons a day from the Cypress Creek Wellfield. The Authority also began a detailed ecological monitoring program in, and around, this Wellfield in 1978. A three-year permit was then issued to the Authority in December, 1982, authorizing withdrawals of 30 million gallons a day, annual average, and 40 million gallons a day, maximum daily, from the Wellfield. The District determined by Order No. 82-28, dated December 1, 1982, that an average annual daily rate of withdrawal of 30 million gallons, and a maximum daily rate of withdrawal of 40 million gallons from the Cypress Creek Wellfield was a reasonable-beneficial use, was consistent with the public interest, and would not interfere with any legal use of water existing at the time of that application. An application for renewal of the Cypress Creek Wellfield consumptive use permit at the quantities permitted in 1982 was filed with the District on November 7, 1985, by the Authority, the County and the City of St. Petersburg. The continued withdrawal of water from the Cypress Creek Wellfield at an annual average daily rate of 30 million gallons, and a maximum daily rate of 40 million gallons is needed in order to meet the water supply demands of the residents of Pinellas and Pasco Counties, is in the interest of residents of Pinellas County, and will not cause the rate of flow of a stream or other watercourse to be lowered below the minimum rate of flow established by the District. The regulatory level of the potentiometric surface established by the District for the Cypress Creek Wellfield has never been exceeded by prior withdrawals of water at permitted rates. Continued withdrawal of water from the Cypress Creek Wellfield at an annual average daily rate of 30 million gallons, and a maximum daily rate of 40 million gallons will not cause the potentiometric surface level to be lowered below sea level, or any regulatory level established by the District, will not cause the surface level of water to be lowered below any minimum established by the District, and will not significantly induce salt water encroachment. The Cross Bar Ranch Wellfield is located on a 8,060 acre site in north central Pasco County, lying approximately one mile south of the Pasco-Hernando County line, and immediately east of U.S. 41. The Cross Bar Ranch Wellfield property has been owned by Pinellas County since 1976. Wellfield construction was completed in 1981. By agreement entered into on April 11, 1979, the Authority is obligated to sell the County water produced from the Cross Bar Ranch Wellfield, but any excess not currently being used by the County may be sold to other members of the Authority. A significant amount of water produced at Cross Bar Ranch is pumped to the Cypress Creek Wellfield where it is combined with that Wellfield's water, and then distributed to Pinellas and Hillsborough Counties, as well as the City of St. Petersburg, for further distribution. The water produced at these two Wellfields in combination accounts for about 60% of the County's total water system demand. Following pump tests performed from 1977 to 1979, as well as an ecological monitoring program, the District issued a modified consumptive use permit to the Authority by Order 80-9, dated February 6, 1980, for Cross Bar Ranch Wellfield. The District determined that withdrawals at an average daily rate of 30 million gallons, and a maximum daily rate of 45 million gallons from Cross Bar Ranch Wellfield was a reasonable beneficial use, was consistent with the public interest, and would not interfere with any legal use of water existing at the time of that application. On November 7, 1985, the Authority and County jointly applied to the District for renewal of the consumptive use permit for Cross Bar Ranch Wellfield at the current permitted quantities of an annual average daily rate of 30 million gallons, and a maximum daily rate of 45 million gallons. These withdrawal rates are needed in order to meet present and future water supply demands of the residents of Pinellas, Pasco and Hillsborough Counties, provide water for environmental mitigation, and make up water when one or more production facilities cannot pump at their permitted levels. The withdrawal of water from Cross Bar Ranch Wellfield at permitted rates will not cause the level of the potentiometric surface to be lowered below sea level, or any regulatory levels established by the District, and will not significantly induce salt water encroachment. Jumping Gully is the only stream or watercourse in the vicinity under the influence of this Wellfield, and the District has not established a minimum rate of flow for Jumping Gully. Hydrologic data collected from monitor wells located at the Cross Bar Ranch Wellfield show the potentiometric surface has been above mean sea level during the operation of this facility. The District has renewed consumptive use permits for a period of ten years for the City of St. Petersburg, and the City of Lakeland Power Plant. The Authority owns, leases or otherwise controls the area within both the Cypress Creek and Cross Bar Ranch Wellfields. Polk owns, leases or otherwise controls the property identified in his amended permit application of July 26, 1988. Both the Authority's and Polk's permit applications were filed on the proper forms, and otherwise comply with the District's procedural requirements for consumptive use permits. Each party has standing to participate in this case. The proposed uses of water which are the subject of these proceedings are reasonable beneficial uses, and in the public interest. The only permit criteria that remain at issue in this case are set forth in Rules 40D-2.301(1)(c) and (2)(e), Florida Administrative Code. The following findings of fact are based upon the evidence presented at the hearing: Polk was first issued a consumptive use permit for Ft. King Ranch in August, 1981, after both the Cypress Creek Wellfield and Cross Bar Ranch Wellfield had each been permitted to withdraw 30 million gallons per day. Polk's permit authorized him to withdraw ground water at an average annual rate of 420,000 gallons per day, and a maximum rate of approximately 1.94 gallons per day for irrigation of pasture grass and citrus, and cattle drinking water. A temporary consumptive use permit issued to Polk in August, 1981, was signed by him and states on its face that these additional groundwater withdrawals were necessary because of drought conditions. A modified permit was issued to Polk by the District in July, 1982, authorizing him to increase his withdrawals to an average annual rate of approximately 1.94 gpd, and a maximum rate of 5.9 gpd. Polk's wells are not metered. Prior to August, 1981, Polk did not have man made surface or groundwater withdrawal on his property. As it relates to this proceeding, the property owned, leased or otherwise controlled by Polk is known as the Ft. King Ranch, which is generally located between the Cross Bar Ranch and Cypress Creek Wellfields, and consists of approximately 6,000 acres. The Ft. King Ranch is comprised of five tracts which were separately acquired by Polk commencing in January, 1969, and ending in 1984. By 1978, Polk had acquired two of these five tracts. He leased a third tract beginning in 1971, before acquiring an ownership interest in 1981. These three tracts were designated parcels A, B, and C, and are located in the eastern and northern portion of the Ranch. These three parcels were the only tracts owned, leased or otherwise controlled by Polk at the time the first Cypress Creek and Cross Bar Ranch Wellfield permits were issued in 1978. The western tracts were acquired in 1982 and 1984, and were also referred to as the AL-BAR Ranch at hearing. Polk uses the Ft. King Ranch for a cow-calf operation, and also sod farming and seeding. From 1969 to approximately 1978, there was sufficient surface water on the Ft. King Ranch for these farming activities to be carried out without irrigation or wells. Water holes used by cattle were always wet, and lakes on the property were used for swimming and fishing. His pasture, hay, seed and sod grasses received moisture solely from rainfall. However, Polk did not establish the amounts of water used in his operations prior to the issuance of Wellfield permits. In 1976, parcels A, B, and C were used for these purposes, although Polk has frequently changed the specific size and location of acreages devoted to these land uses. In order to correct flooding that occurred on portions of the Ft. King Ranch during times of heavy rainfall, Polk sought the advice of the Soil Conservation Service in the mid-1970's. He was advised to construct a series of dikes and swales to control the flow of surface water on his property. During 1980 and 1981, Polk constructed a network of swales and ditches to divert and control the flow of surface water from portions of the Ranch needing less water to those requiring wetter conditions, such as his sod and seed operation. The swales interconnect lakes and ponds on his Ranch. He also constructed a levee on the property, and installed a lift pump. These activities have converted most of the eastern portion of his ranch to improved pasture and sod grasses, and virtually eliminated native vegetation. Polk had no professional help in the construction of his ditch-swale systems, or the levee. Beginning in approximately 1980, drier conditions were experienced at the Ranch. One of the ten driest years on record in this area occurred in 1980, and continued drought conditions in 1981 caused the District's Governing Board to declare a water shortage, and impose water conservation measures throughout the District. Some lakes and cypress swamps dried completely and failed to recharge to pre-1980 levels after rainfall. Due to reduced water availability since 1980, including drought conditions in 1985, Polk's calf weights have decreased, while the number of non-breeding cows has increased. Feed bills have increased due to reduced hay and grass production at the Ranch. Polk's bahia seed and sod crops have also declined since 1980 due to reduced surface water levels. Adequate and stable moisture is essential for seed production, and while such conditions did exist on the Ft. King Ranch prior to 1980, they have been absent since 1980. Due to the drier conditions which he noted in 1980 and 1981, Polk filed a formal complaint with the District in 1981. A site visit and pump test were conducted, and the District concluded that the Wellfields were causing less than a one foot drawdown in the Ft. King Ranch water table, and that dry conditions at his ranch were due primarily to drought. In 1985, Polk complained to the District again, and requested that it augment two lakes within the Ranch. After review of surrounding lake conditions, the District declined his request since Polk's lakes had not experienced water level declines atypical of lakes well beyond the influence of the Authority's Wellfields. Studies of water level elevations in the area indicate that the effect of Cypress Creek Wellfield pumpage is quite small when compared to natural changes in water levels due to variable rainfall and evapotransporation. Rainfall in this region is variable, and there has been a significant negative trend over time in surficial and potentiometric water levels that predates Wellfield pumpage. According to J. B. Butler, who was accepted as an expert in hydrology, the swales, dikes and levees constructed by Polk have not caused the water table or surface water level reductions experienced since late 1981. Rather, these are an attempt to divert and retain water on the property, and even in their absence, there would be no significant flow of surface water across Ft. King Ranch from an east to west direction. In addition, Butler testified that a fence line berm constructed along the northern border of the Ranch is an insignificant obstacle to the flow of surface water from the north to south across the Ranch when compared to topographic features, and has had no impact on the water tables of the Ranch. However, evidence introduced at hearing established that as early as 1981, the staff of the District concluded that the swales and elevated fence lines could be aggravating low water conditions by increasing evaporation and leakance, and by excluding surface water which would have entered the Ft. King Ranch from the north. The Authority offered competent substantial evidence to rebut the Butler testimony. Thomas Schanze, who was accepted as an expert in agricultural engineering, testified that Polk's elevated berm along his northern fence line has significantly restricted the flow of surface water onto Ft. King Ranch, and has contributed to the eastern portion of the Ft. King Ranch becoming a closed watershed. Between 1984 and 1986, approximately 700 million gallons of surface water have been excluded by Polk's water control and diversion activities. This exclusion has resulted in a diminished water table within the Ft. King Ranch of about one half foot compared with the water table on the northern side of the berm. Surface water cannot flow onto Polk's property until water levels immediately north reach flood stage. Aerial photographs of the Ft. King Ranch and surrounding properties show that the Polk property is significantly drier than surrounding properties, which include predominant wetlands. If the dry conditions experienced by Polk had been due to pumpage, the same dry conditions should be observed on surrounding properties and lands nearer the Wellfields. However, aerial photos show that lands closer to the Wellfields than Ft. King Ranch are less dry than the Ranch itself. This supports the position of the District and the Authority that Polk's own activities have had a significantly greater impact than pumpage on surface and groundwater levels. The reduction in productivity of Polk's farming activities is reasonably related to his northern berm which serves as a dike, preventing water from flowing onto Ft. King Ranch, as well as drought conditions existing in 1980, 1981 and 1985. The cumulative effect of water excluded from this property and dry weather conditions is significant, and accounts for decreased production. It was not established through competent substantial evidence that Polk's decreased production has resulted from any hydrologic impact of Wellfield pumpage. The District's expert in hydrology and ground water modeling, Robert G. Perry, concluded that significant water table declines on Ft. King Ranch due to pumping from Cypress Creek and Cross Bar Ranch Wellfields could not be confirmed. Through groundwater flow modeling and statistical analysis, he concluded that a one foot water table drawdown contour resulting from withdrawals at the rate of 30 mgd for 30 days without any recharge would not reach the Ft. King Ranch. Even in a worse case scenario of 120 days without recharge and pumpage at Cypress Creek of 30 mgd for 30 days, then 40 mgd for 30 days, and finally 30 mgd for 60 days, Perry concluded that the one foot water table drawdown contour would not reach Polk's Ranch. There is some evidence that under a worse case condition, pumpage at the Cross Bar Ranch Wellfield could result in the one foot water table drawdown contour intersecting a small portion of the western tract of the Ft. King Ranch, but this tract was not owned or leased by Polk in 1978, when the first Wellfield permits were issued. Conflicting evidence based upon steady state modeling by Craig Hutchinson of the United States Geological Survey was introduced on behalf of Polk to establish that the cumulative impact of the Wellfields could induce a significant drawdown in the water table in the area between the Wellfields, including the Ft. King Ranch. However, this evidence is rejected as less credible than the analysis conducted by Park and Phillip Davis, who was also accepted as an expert in hydrology and groundwater flow modeling. The steady state approach used by Hutchinson is inappropriate for analyzing the effects of wellfield withdrawals on the water table, because the water table is a dynamic system which is never at steady state. The transient groundwater simulation model used by the District is better suited for an analysis of impacts to the water table, although it does tend to overpredict such impacts, since it accounts for changes in rainfall. The Hutchinson analysis is also unreliable since it is based upon artificially derived antecedent water levels, rather than observed levels. Finally, he did not have required predevelopment water table data, and thus, could not verify water table predictions derived from his steady state model. A transient groundwater flow computer model used by Terry Bengtsson to estimate greater potentiometric surface and water table declines due to withdrawals from the Wellfields than predicted by Park or Davis was discredited, and shown to be unreasonable, by the results of a 28 day pump test in September and October, 1988. According to Rick Stebnisky, who was called on behalf of Polk and accepted as an expert in groundwater hydrology, the combined effect of pumping at the Cross Bar Ranch and Cypress Creek Wellfields has resulted in a significant reduction in water table and potentiometric surface levels at Ft. King Ranch, with such reductions being greater in the southern areas than northern portions of Polk's property. He testified that drawdowns have been noted since pumping began at Cypress Creek in April, 1976, with greater drawdowns occurring closest to the Wellfields, and for this reason drawdowns appear to be related to pumping rather than drought conditions. However, Stebnisky's conclusions were drawn from an overly simplistic hydrographic analysis which ignored factors other than pumpage, such as reduced rainfall, regional trends, surface drainage and non-wellfield pumpage, according to Robert G. Perry, an expert in hydrology and groundwater modeling. Stebnisky was not accepted as an expert in groundwater flow modeling. It was also established that some of the basic assumptions used by Stebnisky in predicting drawdowns were inaccurate, and not based upon accepted hydrologic principles. Therefore, when weighed and considered against other expert testimony, including that of Perry and Dr. J. I. Garcia-Bengochea, Ph.D., an expert in hydrology and environmental engineering, the testimony of Stebnisky is found to lack credibility. While Dr. Garcia-Bengochea agreed with the testimony of Stebnisky that the potentiometric surface and water table levels on the Ft. King Ranch had been somewhat reduced due PAGE 18 MISSING individual well meters, regardless of whether on-site wetlands are being augmented, and is sufficiently accurate for use in evaluating the impact of withdrawals on the water table and Floridan Aquifer. As a condition for renewal of the Authority's permits, the District has required that flow measuring devices or methods be installed for each augmentation discharge point, although generally augmentation of lakes and wetlands within wellfields is not metered. The allowable drawdown levels of potentiometric surface for the Cypress Creek Wellfield established by the District have never been reached. The lowest levels occurred during severe drought conditions in 1981 and 1985. However, even during these times, the lowest potentiometric surface level was 8.53 feet above regulatory levels. Notwithstanding the testimony of Philip Waller, an expert in hydrology, pumping from Polk's irrigation Wellfields have not had a significant impact on the Cypress Creek Wellfield because Waller's model assumptions are extreme, according to Robert G. Perry, whose field of expertise includes groundwater modeling. These unrealistic assumptions included that Polk would operate his irrigation wells at maximum capacity for 120 days, and that there would be no recharge, even though irrigation, like rainfall, would be expected to result in some recharge. Even under these extreme assumptions, Waller's modeling only produced a one foot drawdown at Cypress Creek Wellfield, which would still be well within regulatory levels established by the District, based upon data for the drought years of 1981 and 1985. Since 1979, Cypress Creek Wellfield has averaged approximately 30 million gallons per day, with the maximum withdrawal occurring in May, 1983, when it averaged 34.2 mgd. From 1981 to 1985, the average withdrawals from Cross Bar Ranch Wellfield remained stable at 13 mgd, but since 1986, the pumpage has increased to over 15 mgd due, in part, to the use of water from Cross Bar to compensate for contaminated wells shut down at the Eldridge-Wilde Wellfield. For purposes of Rule 40D-2.301(1)(c), Florida Administrative Code, the District does not consider the use of water that occurs naturally, without pumping or diversion, for use on crops or other agricultural purposes to be, an existing legal use of water, because it does not require a permit. The District does not apply Rule 40D-2.301(2)(e) to protect agricultural crops, but rather to protect naturally occurring vegetation. When an application to renew a consumptive use permit is reviewed by the District, and that renewal does not seek an increase in the quantity of water withdrawals, "legal users" are those present prior to the original permit. On May 17, 1988, a Final Order was entered in DOAH Case No. 88-0693R declaring the District's Rules 40D-2.301(3)(b), (c), and (d), Florida Administrative Code, which otherwise would apply in this proceeding, to be an invalid exercise of delegated legislative authority. The Authority's applications were declared complete by the District on June 18, 1987, and the District staff recommended issuance of these permits on August 14, 1987. Modifications to the draft permit were made by the District on December 28, 1988, and these modified draft permits are acceptable to the Authority. The latest draft permits contain stated conditions which include the requirement that the Authority directly measure the amount of water it uses to augment the water level of on-site wetlands. On February 22, 1989, the Authority and the District filed a Joint Notice of Settlement in Case Number 87- 4644 by which they settled their dispute as to the duration of consumptive use permit renewals for the Wellfields, and provided for a ten year permit for Cypress Creek, and a six year permit for Cross Bar Ranch Wellfield. Polk submitted his original permit application on April 13, 1987, and then amended his request on July 26, 1988. The District has proposed to issue a draft permit to Polk, with stated conditions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order approving the consumptive use permit applications of the West Coasts Regional Water Supply Authority and Pinellas County for the Cross Bar Ranch and Cypress Creek Wellfields, with conditions proposed by the District, and also approving the consumptive use permit application of Freeman F. Polk, with conditions proposed by the District. DONE AND ENTERED this 10th day of July, 1989, in Tallahassee, Florida. 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 10th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-4644, 87-4645, 87-4647, & 88-1169 Rulings on the District's Proposed Findings of Fact: Adopted in Findings 6, 21. Rejected as unnecessary. Adopted in Finding 6. Adopted in Finding 38. Adopted in Finding 21. Adopted in Finding 11. Adopted in Finding 38. 8-11. Adopted in Finding 20. 12. Adopted in Finding 21. 13-14. Adopted in Finding 22. Adopted in Finding 27. Adopted in Finding 25. 17-19. Adopted in Findings 25, 26. 20-22. Adopted in Findings 26, 28. 23-48. Adopted in Findings 31 through 35. 49-60. Adopted in Findings 28 through 30. 61-64 Adopted in Finding 36. 65-68. Adopted in Finding 37. Rulings on the Authority's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 4, 10. Adopted in Finding 2. 4-6. Adopted in Finding 39. Adopted in Finding 18. Adopted in Findings 21, 22. Adopted in Finding 40. 10-11. Adopted in Finding 3. 12-14. Adopted in Finding 36. Adopted in Findings 6, 38. Adopted in Finding 5. 17-19. Adopted in Findings 6, 21. 20. Adopted in Findings 7, 16. 21-23. Adopted in Finding 41. 24-25. Adopted in Finding 9. 26-27. Adopted in Finding 36. Adopted in Findings 11, 38. Adopted in Finding 10. Adopted in Finding 11. 3132 Adopted in Findings 11, 21. 33. Adopted in Findings 12, 16. 34-36. Adopted in Finding 41. Adopted in Finding 21. Adopted in Finding 24. Adopted in Finding 29. Adopted in Finding 24. 41-42. Adopted in Finding 22. 43-45. Adopted in Finding 25. Adopted in Finding 26. Adopted in Finding 25. Adopted in Finding 26. Adopted in Findings 26, 28. 50-53. Adopted in Finding 20. Adopted in Findings 20, 21. Adopted in Finding 20. Adopted in Finding 37. Rejected as not based on competent substantial evidence. Adopted in Finding 41. Rejected as unnecessary. 60-62. Adopted in Finding 35. 63. Adopted in Finding 36. 64-70. Adopted in Findings 34, 35. 71-76. Adopted in Findings 33 through 35. 77-78. Rejected as unnecessary and irrelevant. 79-80. Adopted in Finding 34. 81-87. Adopted in Finding 32. 88-91. Adopted in Findings 26 through 35. 92-96. Adopted in Findings 29, 30, but otherwise Rejected as unnecessary and cumulative. Adopted in Finding 28. Adopted in Finding 29. 99-100. Adopted in Finding 30. 101-102. Adopted in Finding 37. Rejected as unnecessary and cumulative. Adopted in Finding 37. Rejected in Finding 37. Adopted and Rejected in part in Finding 37 Ruling on Pinellas County's Proposed Finding of Fact: (The County also adopted the Authority's Proposed Findings.) 1. Rejected since the statement proposed by the County is not a finding of fact, but simply a statement on the evidence. Evidence which was not admitted at hearing has not been considered. Rulings on Polk's Proposed Findings of Fact: Adopted in Finding 3. Adopted in Findings 9, 10. Adopted in Finding 21. Rejected in Findings 6, 11, 21. Adopted in Finding 22. Adopted and Rejected in part in Findings 25 through 27. 7-8. Rejected in Findings 25 through 27. Adopted in Finding 25. Adopted in Finding 24. 11-13. Rejected in Findings 24, 29, 30. Adopted in Finding 37. Rejected as argument on the evidence and not a proposed finding of fact. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire Douglas M. Wyckoff, Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Thomas E. Cone, Jr., Esquire 202 Madison Street Tampa, Florida 33602 John T. Allen, Jr., Esquire Chris Jayson, Esquire 4508 Central Avenue St. Petersburg, Florida 33711 Bram D. E. Canter, Esquire 306 North Monroe Street Tallahassee, Florida 32302 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34699-6899
The Issue The issues in this case are: (1) whether the Florida Department of Transportation, (DOT) is entitled to a Management and Storage of Surface Waters (MSSW) permit to authorize the construction and operation of a surface water management system to serve eight bridge replacements on State Road 5 in Volusia County, Florida; (2) whether the Florida Department of Transportation is entitled to a Wetland Resource Management (WRM) permit for the placement and excavation of fill material in waters of the state in connection with the replacement and widening of said bridges and their approaches; and, if so, (3) what conditions should apply. APPLICABLE STATUTES AND RULES In 1993 the Florida Legislature enacted Chapter 93-213, Laws of Florida, (the Florida Environmental Reorganization Act) which, among other things, repealed Sections 403.91-403.929, Florida Statutes (F.S.)(1991), and substantially revised Section 373.414, F.S., adding to that section a public interest test nearly identical to the language formerly found in Section 403.918, F.S. (1991). 30 and 45, Chapter 93-213, Fla. Laws, respectively. The Department of Environmental Protection and the water management districts were directed to adopt rules implementing the revised Section 373.414, F.S. Section 373.414(9), F.S.; See Fla. Electric Coordinating Group, et. al. v. Suwannee River Water Management District. et. al. 17 FALR 3242 (DOAH Final Order 7/24/1995) aff'd, 674 So.2d 141 (Fla. 4th DCA 1996). These rules became effective October 3, 1995. See history notes to Rule 40C-4.302, Florida Administrative Code (F.A.C.) After the effective date of these rules, permits issued pursuant to Part IV of Chapter 373, F.S., were to be know as Environmental Resource Permits 14, Chapter 93-213, Fla. Laws. In 1994, the Legislature enacted Chapter 94-122, Laws of Florida, adding Subsection 14 to Section 373.414, F.S. Subsection 373.414(14), F.S., provides that applications for permits pursuant to Sections 403.91-403.929, F.S., (1991) and Part IV of Chapter 373, F.S., which are submitted and complete prior to the effective date of rules adopted pursuant to Subsection 373.414(9), F.S., (October 3, 1995) shall be reviewed under the rules adopted pursuant to Sections 403.91-403.929, F.S., (1991) and part IV of Chapter 373, F.S., in existence prior to the effective date of the rules adopted pursuant to Subsection 373.414(9), F.S. (October 3, 1995). The WRM permit application which is the subject of this proceeding was submitted pursuant to the authority under Sections 403.91-403.929, F.S., (1991) and was submitted and complete prior to October 3, 1995. The MSSW permit application which is the subject of this proceeding was submitted pursuant to the authority under Part IV of Chapter 373, F.S., and was submitted and complete prior to October 3, 1995. Thus, the Petitioner is entitled to have these two applications reviewed under the relevant rules as they existed before October 3, 1995. Subsection 373.414(1), F.S., as amended by Chapter 93-213, Laws of Florida, was not self executing. This subsection did not become effective until the rules adopted pursuant to Subsection 373.414(9), F.S., became effective. Thus, the MSSW permit application which is the subject of this proceeding is to be reviewed under the statutory language of Part IV of Chapter 373, F.S., it existed before Chapter 93-213, Laws of Florida. Specifically, this review does not include the public interest test that now exists in Subsection 373.414(1), F.S. In Conclusion of Law 130, the Hearing Officer reviews the MSSW permit application which is the subject of this proceeding under the public interest test of Subsection 373.414(1). The Governing Board may reject conclusions of law which have been proposed by a hearing officer. Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2nd DCA 1991) rev. den., 583 So.2d 1035 (Fla. 1991). For the reasons stated above, this review is incorrect, and Conclusion of Law 130 is rejected to this extent. The WRM permit application which is the subject of this proceeding is governed by Chapter 62-312, F.A.C., as such rule existed before October 3, 1995. Chapter 62-312, F.A.C., existing before October 3, 1995, implemented Sections 403.91-403.929; F.S. (1991), including Section 403.918, F.S. (1991). Thus, any WRM permit application reviewed under Chapter 62-312, F.A.C., existing before October 3,1995, must also be reviewed under Section 403.918, F.S.(1991). Section 373.414(1), F.S. (1995), does not apply to such application. In Conclusions of Law 130, 131, 143, and 143, the Hearing Officer reviews the WRM permit application which is the subject of this proceeding under the public interest test of Section 373.414(1), F.S. For the reasons stated above, the Hearing Officer's review of this WRM permit application under Section 373.414(1), F.S., is incorrect and is rejected. Harloff, supra This WRM permit application is reviewed under Section 403.918, F.S. (1991). HARM TO THE WATER RESOURCES AND OBJECTIVES OF THE DISTRICT In its Exception No. 3, the District argues that, in Conclusion of Law 139, the Hearing Officer has incorrectly combined the harm to the water resources permitting criteria of 40C-4.301(2)(a) with the objectives of the District permitting criteria of 40C-4.301(1)(a). The District asserts that the harm to the water resources permitting criteria of 40C-4.301(2)(a) are not susceptible to balancing one criteria against another to determine whether overall the activity will not result in harm to the water resources of the District. But rather, reasonable assurance must be provided by D.O.T. for each criteria. Thus, the District argues, that in Conclusion of Law 139, the Hearing Officer incorrectly balances all of the criteria 40C-4.301(2)(a) and 40C-4.301(1)(a) to determine that this project satisfies the all of the requirements of 40C-4.301 without making specific determinations as to whether the individual requirements of 40C- 4.301(2)(a) are met. This exception is accepted in part. As a background reference, Section 373.413, F.S., provides that the District may permit activities regulated under Part IV of Chapter 373, F.S., to ensure that such activities will not be harmful to the water resources of the district. Section 373.416, F.S., allows the District to permit the operation and maintenance of activities regulated under Part IV of Chapter 373, F.S., to ensure that these activities will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. The criteria which must be met to ensure that an activity requiring a permit under Part IV of Chapter 373, F.S., is not inconsistent with the overall objectives of the district are set forth in former Rule 40C-4.301(1)(a), F.A.C. (See 9.0 Applicant's Handbook: Management and Storage of Surface Waters effective 11/22/94.) Former Rule 40C-301(1)(a), F.A.C., provided: (1)(a) To obtain a general or individual permit for operation, maintenance, removal or abandonment of a system or to obtain a conceptual approval permit each applicant must give reasonable assurance that such activity will not: Adversely affect navigability of rivers and harbors; Adversely affect recreational development or public lands; Endanger life, health, or property; Adversely affect the maintenance of minimum flows and levels established in chapter 40C-8, F.A.C.; Adversely affect the availability of waters for reasonable beneficial purposes; Be incapable of being effectively operated; Adversely affect the operation of a Work of the District established in chapter 40C-6; F.A.C.; Adversely affect existing agricultural, commercial, industrial, or residential developments; Cause adverse impacts to the quality of receiving waters; Adversely affect natural resources, fish and wildlife; Induce saltwater or pollution intrusion; Increase the potential for damages to off-site property or the public caused by: Floodplain development, encroachment or other alteration; Retardance, acceleration, displacement or diversion of surface water; Reduction of natural water storage areas; Facility failure; Increase the potential for flood damages to residences, public buildings, or proposed and existing streets and roadways; or Otherwise be inconsistent with the overall objectives of the District. Because a proposed system may result in both beneficial and harmful effects in terms of various individual objectives, in determining whether the applicant has provided evidence of reasonable assurance of compliance with Rule 40C-4.301(1)(a), F.A.C., the District may consider a balancing of specific effects to show the system is not inconsistent with the overall objectives of the District. In determining whether an activity meets the overall requirements of former Rule 40C-4.301(1)(a), F.A.C., each of the specific requirements of 40C- 4.301(1)(a)1.14 must be evaluated. See e.g. Florida Wildlife Federation v. Admiral Corporation, DOAH No. 86-3272, SJRWMD FOR 86-471 (SJRWMD Final Order February 12, 1987). Where this evaluation indicates that the activity may result in both beneficial and harmful effects, the District may consider a balancing of specific effects to show that the activity is not inconsistent with the overall objectives of the District. Former Rule 40C-4.301(1)(b), F.A.C. The criteria which must be met to ensure that an activity requiring a permit under Part IV of Chapter 373, F.S., will not be harmful to the water resources of the district, are set forth in former Rule 40C-4.301(2)(a), F.A.C. (See 10.0 Applicant's Handbook: Management and Storage of Surface Waters effective 11/22/94) Former Rule 40C-4.301(2)(a) provides: (2)(a) To obtain a general or individual permit for construction, alteration, operation, or maintenance of a system or to obtain a conceptual approval permit, each applicant must give reasonable assurance that such activity meets the following standards: Adverse water quantity impacts will not be caused to receiving waters and adjacent lands; Surface and ground water levels and surface water flow, including the minimum flows and levels established in chapter 40C-8, F.A.C., will not be adversely affected; Existing surface water storage and conveyance capabilities will not be adversely affected; The system must be capable of being effectively operated The activity must not result in adverse impacts to the operation of Works of the District established in chapter 40C-6,F.A.C.; The quality of receiving waters will not be adversely affected such that the water quality standards set forth in chapters 17-2, 17-4,17-302, and 17-550, F.A.C., will be exceeded; Wetland functions will not be adversely affected; Otherwise not be harmful to the water resources of the District. In determining whether an activity meets the overall requirements of former Rule 40C-4.301(2)(a), each of the specific requirements of 40C-4.301(2)(a)1.- 8. must be met. There is no balancing of the specific requirements of 40C- 4.301(2)(a) 1. though 8. as there is for the specific requirements of 40C- 4.301(1)(a)1.-14. In this case, ,the Hearing Officer correctly lists the applicable permitting criteria of former Rule 40C-4.301, F.A.C., in Conclusions of Law 136. However, in Conclusion of Law 139, the Hearing Officer summarily balances these criteria as a unit to determine that the Petitioner is entitled to the permit. As stated above, there is no balancing of the criteria of 4OC-4.301(2)(a), and a balancing of the criteria 40C-4.301(1)(a) only occurs after an evaluation of the individual criteria of 40C-4.301(1)(a)1.-14. indicates that the activity may result in both beneficial and harmful effects. The Hearing Officer also states that some of these criteria are met in paragraph 116 of the Recommended Order under the title Factual Conclusions, but these statements are conclusions of law that these criteria are met with no analysis of how the facts found demonstrate that the enumerated criteria are satisfied. Thus the Hearing Officer has failed to correctly evaluate this activity under the individual criteria of former Rules 40C-4.301(1)(a) and 40C- 4.301(2)(a). The Governing Board may reject an erroneous legal interpretation of an administrative rule. Section 120.57(1)(6)(10), F.S.; Alles, supra. The Hearing Officer's Conclusions of Law 116 and 139 are rejected. CLEARLY IN THE PUBLIC INTEREST, INCONSISTENT WITH THE OBJECTIVES OF THE DISTRICT, AND HARMFUL TO THE WATER RESOURCES OF THE DISTRICT. This project is located within Spruce Creek and Rose Bay. (Finding of Fact 6) Spruce Creek and Rose Bay are designated Outstanding Florida Waters (OFW) under Rule 62-302.700(9)(i), F.A.C. Since this project is located within OFWs, the project must be clearly in the public interest for the Petitioner to receive its WRM permit. Section 403.918, F.S. (1991). In Finding of Fact 100, the Hearing Officer states that removal of the causeway will restore Rose Bay's natural flow pattern, and allow dispersion of the bay's sediment over a larger area. Finding of Fact 122 provides that nothing short of complete removal of the causeway will restore Rose Bay's natural flow patters or prevent accumulation of sediments in the causeway's shadow. In this same finding of fact, the Hearing Officer declares that removal of the impediments to-tidal flow in Rose Bay will be necessary in the future to balance tidal forces with freshwater inputs after the freshwater discharges have been reduced and the accumulated muck eliminated. In Finding of Fact 52, the Hearing Officer states that this bridge will last for 75 years which is, in essence, permanent. The essence of the Hearing Officer's reasoning in the Conclusions of Law is that other activities are also contributing to the degradation of Rose Bay, and that it is more important to correct these activities than to remove the causeway. Thus, the Hearing Officer found the project to be clearly in the public interest, even though it will permanently restrict the natural tidal flow into Rose Bay. We disagree. While neither party has filed exceptions on this point, the Governing Board's authority to modi the Recommended Order is not dependent on the filing of exceptions. Westchester General Hospital v. DHRS, 419 So.2d 705 (Fla. 1st DCA 1982). The OFW clearly in the public interest test is more stringent that the contrary to the public interest test for a non-OFW. Florida Keys Citizen Coalition v. 1800 Atlantic Developers, 8 F.A.L.R. 5564, 5572 (DER Final Order 1986), rev'd on other grounds, 552 So 2d 946 (Fla. 1st DCA 1989), rev. denied, 562 So 2d 345 (Fla. 1990). The weight to be accorded to the factors in Section 403.918(2), F.S. (1991) in determining compliance with the clearly in the public interest test are questions of law and policy reserved to this agency, not the hearing officer. 1800 Atlantic Developers v. DER, 552 So.2d 946 (Fla. 1st DCA 1989), rev. denied, 562 So.2d 345 (Fla. 1990); Fla. Power Corp. v. Fla. DER, 14 FALR 4156, 4163 (DER Final Order 1996), aff'd, 638 So.2d 545 (Fla. 1994). If the dredge and fill permit is issued, there will be no foreseeable opportunity to correct the tidal restriction created by the causeway. The bridge and causeway will remain a permanent obstruction to the natural tidal flow into Rose Bay, and thus a permanent barrier to the complete restoration of Rose Bay. See 403.918(2)-(a)3. and 403.918(2)(a)5, F.S. (1991). Addressing the other activities contributing to the degradation of Rose Bay will never result in its complete restoration because the facts establish that the causeway will permanently prevent natural tidal flow. Petitioner has failed to show that other public interest considerations of Section 403.918(2), F.S. clearly outweigh the permanent loss of the natural flow patterns of Rose Bay. Thus, while we fully recognize that other activities are contributing to the degradation of Rose Bay, we hold that it is not clearly in the public interest to permanently prevent the natural tidal flow of Rose Bay, an OFW. Any conclusions of law in the Recommended Order to the contrary are rejected. Harloff, supra. For the same reasoning we hold that the Petitioner has not provided reasonable assurance that this project is not inconsistent with the objectives of the District and not otherwise harmful to the water resources of the District. See Rules 40C-4.301(1)(a)14. and 40C-4.301(2)(a)8., F.A.C. Because Rose Bay is an OFW, it is not consistent with the objectives of the District to authorize a permanent project that will prevent the complete restoration of Rose Bay even after the other activities contributing to the Bay's degradation are addressed. Similarly, approving this project will otherwise harm the water resources of the District in violation of Rule 40C-4.301(2)(a)8, because it will permanently forgo the opportunity restore the natural tidal flow to a degraded OFW waterbody, although we recognize that other forces are contributing to that waterbody's degradation. Any conclusions of law in the Recommended Order to the contrary are rejected. Harloff, supra. RULINGS ON THE DISTRICT'S EXCEPTIONS The District's Exception No. 1 is not necessary to the final determination of this proceeding because we conclude that this project is not clearly in the public interest. The District's Exceptions Nos. 2 and 5 are accepted in that the Hearing Officer's determination that the proposed project will not cause significant degradation to Rose Bay is not sufficient to satisfy the requirements of Rule 62-4.242(2)(a)2.b., F.A.C. However, this project also does not meet the requirements of Rule 62-4.242(2)(a)2.b., F.A.C., because it is not clearly in the public interest. The District's Exception No. 3 is accepted to the extent described above. However, the suggestion of remand contained within Exception No. 3 is rejected. The District's Exception No. 4 is accepted to the extent described in provisions above regarding applicable rules and statutes. ORDER OF DENIAL WHEREFORE, based upon the foregoing, the MSSW and WRM permit applications which are the subject of this proceeding are hereby DENIED. To receive approval, the Petitioner must submit new permit applications which contain a plan for removal of the causeway through Rose Bay sufficient enough to restore natural tidal flow. DONE AND ORDERED this 10th day of July 1996, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT BY: WILLIAM SEGAL CHAIRMAN RENDERED this 6th day of August 1996. BY: PATRICIA C. SCHULTZ DISTRICT CLERK
Findings Of Fact THE APPLICATIONS Petitioner applied to Respondent for a MSSW permit to authorize the construction and operation of a surface water management system (system) for four dual bridge replacements and the required approach reconstruction for State Road 5 (U.S. 1) in Volusia County, Florida. The project requires a MSSW permit because it traverses a flowing system which has an upstream drainage area that is greater than five square miles. Petitioner also applied for a WRM (dredge and fill) permit to authorize the placement of fill material in and excavation of material from waters of the state or the replacement and widening of the same bridges addressed in the MSSW permit application. The original application requested permission to dredge 0.076 acres and fill 0.104 acres in jurisdictional waters of the state. The project site is located south of Port Orange, Florida, north of New Smyrna Beach, Florida, and adjacent to the Halifax River in Volusia County, Florida. The project limits include the four dual bridges and their approaches which are approximately 350 feet north and south of each structure. The four dual bridges are northbound and southbound pairs for a total of eight bridges. Six bridges are located over Spruce Creek and its north and south relief channels. Two bridges are located over Rose Bay. The proposed project is within the area of Spruce Creek and Rose Bay both of which are designated as an Outstanding Florida Water (OFW) under Rule 62-302.700(9)(i), Florida Administrative Code. Construction of the approach roadways to the proposed bridges will encroach in 0.19 acres of marsh along the causeway side slopes. Currently the 0.19 acres of marsh are disturbed areas that do not provide significant habitat for fish or wildlife. However, these areas do provide some erosion control and serve as a visual screen between the road and wildlife foraging in the open- water area. There will be an additional 0.02 acres of encroachment in open waters for placement of proposed bridge pilings. EXISTING SITE The existing roadway, State Road 5, crosses a wide expanse of wetlands consisting of tidal marsh and creeks associated with Spruce Creek and Rose Bay. It is a major transportation corridor consisting of a four lane, divided highway with a forty-foot grass median and ten-foot grass shoulders. Existing roadway drainage is primarily sheet flow over the grass shoulders to the waterways. Existing medians drain to the north and south sides of the bridges by either catch basins or concrete spillways at ends of the bridges. The distance across Rose Bay on State Road 5 is approximately 900 feet in length. The causeway is 700 feet in length. The Rose Bay bridges span the remaining 200 feet of open water. The causeway side slopes drop off steeply into the salt marsh. A typical salt marsh contains vegetation which is usually a productive area for wildlife. In this case, portions of the causeway side slopes lack vegetative cover and are subject to erosion. Other portions of the side slopes are vegetated with a mixture of marsh species such as sea-oxeye, marsh elders, mangroves and cordgrass. Some areas are densely vegetated by wax myrtle or Brazilian Pepper, a nuisance species. The roadway and the bridges are centered in a 200-foot right-of-way with a fifty-five mile per hour posted speed limit. The Rose Bay causeway has been in place since at least the early 1940s. Aerial photographs of Volusia County dated February 1943 show the existing causeway with a single bridge and the old US 1 causeway. Bridges with causeways have existed at these locations for over 50 years. The current bridges were constructed in 1957 and 1958 of twenty-foot concrete slab spans. At that time the bridges were designed for a normal life expectancy of fifty years. They met all design and safety standards when Petitioner constructed them. The bridges vary in length: (a) Rose Bay bridges, 200 feet; (b) Spruce Creek North Relief bridges, 200 feet; (c) Spruce Creek bridges, 360 feet; and (d) Spruce Creek South Relief bridges, 260 feet. Each of the existing bridges have two twelve-foot travel lanes with two-foot inside sidewalks for a total width of twenty-eight feet curb to curb. The bridges do not have shoulders but they do have three-foot outside sidewalks. The bridges currently have a posted speed limit of fifty-five miles per hour but they do not conform with Petitioner's current design criteria. Presently, surface drainage on the bridges is provided by four-inch diameter open scuppers at approximately eight-foot spacing along the gutter lines on both sides of the twin bridges, with the exception of the Spruce Creek north and south relief structures which drain to the low side of their super- elevation. Concrete spillways exist at bridge corners to handle overflow. Scuppers are holes in the bridge through which storm-water runs off directly into the open water below without any treatment. The project site currently provides no treatment for stormwater runoff. The existing bridges show severe deterioration. The two Rose Bay bridges and the two Spruce Creek South Relief bridges are in especially poor condition. The bridges are only five or six feet above salt water which is very corrosive. This environment has accelerated the deterioration of the bridges. The structural supports of the Rose Bay and Spruce Creek South Relief bridges are in such bad shape that Petitioner inspects them every six months instead of every two years. In 1993, Petitioner made emergency repairs to the southbound Rose Bay bridge and to the northbound Spruce Creek South Relief bridge. These repairs consisted of encasing eleven pilings in concrete jackets. The concrete pile jackets will only last five to seven years because they will not arrest the deterioration of the steel inside the piling. Petitioner has not included further repairs to the bridges in its work program pending resolution of this case. Sufficiency ratings for bridges are based on the condition of their structural elements. A bridge with a sufficiency rating below fifty is structurally deficient and qualifies for federal bridge replacement funding. A sufficiency rating between fifty and eighty qualifies a bridge for replacement using only state funds. Bridges with sufficiency ratings over eighty meet all safety and structural load carrying requirements. A bridge is structurally deficient if one or more structural elements have deteriorated to such an extent that they impact the serviceable life of the bridge. The most recent bridge inspection reports for the existing bridges show sufficiency ratings from 42.9 and 45 for the two Rose Bay bridges to 68.7 for the northbound Spruce Creek North Relief bridge. The existing bridges are functionally obsolete. They do not meet current design and safety standards because they are too narrow. The bridges also have low load capacity ratings (H20-S66-44). Their pile bents are in poor condition and cracking is evident in several pile caps. Reinforcing steel is exposed in some areas due to concrete spalling. Additionally, their safety barriers are inadequate. Petitioner initially placed this project into its work plan in 1989. In 1991 Petitioner gave replacement of the bridges a higher priority. Petitioner subsequently added construction dollars for the project to its work program. At that time, Petitioner expected construction to take place in 1995 and 1996. However, in 1993 and 1994, other bridges were given a higher priority. Petitioner rescheduled the proposed construction in its current work program for 1998 and 1999 with construction dollars budgeted at $9,700,000. If the construction of the project does not begin as scheduled in 1998, the bridges will require major repairs and rehabilitation within two years at a cost of approximately $750,000. They will also require load and weight limitations resulting in trucks making a ten-mile detour. PROPOSED PROJECT Petitioner intends to replace the bridges on their existing alignment within the existing right-of-way. The roadway sections will have two twelve- foot travel lanes, eight-foot median shoulders, ten-foot outside shoulders (four-feet paved), and a forty-foot median. Construction will be phased so that the public can use one roadway while the bridges on the opposite roadway are being replaced. Phased construction will eliminate the need for temporary fill in adjacent wetlands. The existing bridges will be replaced with wider structures for safety reasons. The proposed bridges will have two twelve-foot travel lanes, six-foot wide inside shoulders and ten-foot wide outside shoulders for a total width of forty feet curb to curb. The new bridges will have fewer pilings. Currently there is a row of four 14-inch square pilings for every twenty feet of bridge span. The proposed construction will place a row of four 24-inch square pilings for every thirty feet of bridge span. The number of pile bents for each set of bridges will be reduced as follows: (a) Spruce Creek South Relief bridges from fourteen to ten; (b) Spruce Creek bridges from nineteen to fourteen; (c) Spruce Creek North Relief bridges from eleven to eight; and (d) Rose Bay bridges from eleven to eight. Petitioner will reduce impacts to the creek and bay by using fewer pile bents and by using pile bents instead of piers. Petitioner does not propose to increase the length of the bridges or the number of travel lanes. The new bridges will have increased weight and load capacity (HS20-44) and a design speed of seventy miles per hour. Petitioner proposes to raise the vertical alignment of the bridges over Spruce Creek North Relief, Spruce Creek South Relief and Rose Bay by one and one half to two feet to accommodate the fifty-year flood and allow for small boat passage under the structures. There will be no change in the vertical clearance for the Spruce Creek bridges. Petitioner expects to raise the roadway approaches to the proposed grade of the new bridges. The project will not cause a change in land use. Highway capacity and pollutant loading will not increase. Petitioner does not propose to reduce the length of the causeway or provide openings in it. However, the project is not a simple in-kind bridge replacement because of the necessary construction to widen the bridges and roadways, raise the bridge approachments, and recontour the causeway's side slopes. Petitioner designed the project's stormwater management system to maximize stormwater quality treatment. The wetlands along the project corridor limit Petitioner's alternatives in this regard. Petitioner's own regulations relative to roadway base clearance limit the use of swales and retention basin storage. Additionally, seasonal high water table elevations limit the efficient use of exfiltration systems. Shoulder gutters and inlets will collect all runoff from the proposed bridges and route it to median exfiltration systems prior to discharge. Runoff from super-elevated pavement areas will flow to median exfiltration trenches and roadside swales. Where practical, Petitioner intends to route the remaining runoff to the median exfiltration trenches, roadside swales and dry retention basins for some water quality treatment prior to discharge. Runoff from portions of the project will sheet-flow into the bay. In these areas, Petitioner will plant supplemental vegetation along the embankment. Because the existing vegetation is sparse, the post-development planting will stabilize the berms, reduce erosion, and provide some water quality treatment that currently is nonexistent. The total planting area will include 0.7 acres. Prior to planting, Petitioner will remove all Brazillian Pepper from the planting area. Petitioner will subsequently control all nuisance vegetation by approved methods so that it constitutes no more than ten percent of the cover in each stratum. The proposed planting plan is necessary to mitigate the loss of the fringe marsh along the causeway. Petitioner's mitigation plan includes recontouring the steep side slopes of the causeway to lessen the grade and prevent erosion. After analyzing alternative best management practices for efficacy and cost, Petitioner correctly determined that an exfiltration trench system is the most appropriate stormwater treatment for the proposed project. Wet ponds are not feasible because there is not enough land area within the project site and Petitioner's right-of-way to meet pond width and depth criteria. Space requirements and potential for significant wetland impacts limit the use of dry ponds. Petitioner proposes to use roadside swales in only two areas. The exfiltration trenches or "French drains" run the entire length of the proposed project. This type of drain is a pipe with holes in it which is surrounded by rocks and filter fabric. The pipe and the spaces between the rocks provide storage for water as they fill up. The system recovers as the water percolates into the ground water. The exfiltration trench system will decrease the peak runoff rate for the site because it will eliminate the direct discharge of runoff from the new impervious area (3.25 acres). However, the project will result in treatment of only fifty-six percent of the runoff from the project site. The proposed treatment system will collect more water than it is designed to assimilate. Petitioner plans to control erosion and turbidity problems directly related to the construction phase by using hay bales, silt fences, turbidity barriers and other appropriate sediment control measures. Respondent cannot use construction barges to replace the bridges at Rose Bay, Spruce Creek North Relief, or Spruce Creek South Relief because the water at those locations are too shallow. However, the Spruce Creek bridges have enough clearance to allow the use of a sectional barge provided it is off- loaded from the existing road. The project meets the 100-year and 10-year floodplain criteria because of the increased elevations of the bridges and their approaches. The parties have agreed to permit conditions which ensure protection of manatees in the project vicinity during construction. The long term maintenance and operation of the project will not harm endangered or threatened species. The project's impact on the conservation of other fish and wildlife and their habitats is discussed below. The public currently uses the surrounding waterways for navigational and recreational purposes. The proposed project will allow greater access for navigation because the vertical clearance of some of the bridges will be higher. Leisure activities such as fishing have never been very good in Rose Bay. The proposed project will not cause significant additional restrictions on recreational opportunities. The proposed project does not raise concerns about the preservation of any significant archeological or historical resources. The proposed bridges will have a life span of 75 years. Accordingly, the project is permanent in nature. PROBLEMS WITH ROSE BAY Rose Bay is a relatively small, shallow embayment. Like most estuaries, its depth averages a meter to a meter and one half. The bay is microtidal in that the tide heights vary only by one foot. Rose Bay is related to the adjacent southern, eastern, and northwestern marshes. The southern marsh is a high-marsh. These marshes produce the detritus and all the plants and animals that a healthy estuarine system needs. Historically, the marshes and their small creeks have served as drainage areas for the surrounding watershed. They have always been important as flood storage areas. Before urban development of the watershed, the marshes and creeks gradually released freshwater into the saline waters of Rose Bay. During normal tides, these marshes are connected. When the tide is extremely high, the marshes and the bay become a single sheet of water from the causeway (located between the east and west lobes of the bay) to the railroad (located on the western shore of the bay's west lobe) and extending south to Strickland Bay (located west and south of the Spruce Creek bridges.) Ponce Inlet opens to the Atlantic Ocean. It is located approximately three and one half miles to the south and east of Rose Bay. The Halifax River is part of the Intercoastal Waterway to the east of Rose Bay. It flows south between the ocean and the bay. Spruce Creek merges with the Halifax River and wanders down to Ponce Inlet. The flow continues south where it becomes the Indian River. Rose Bay's fish and wildlife habitat is currently degraded and biologically inactive. Its diversity of wildlife is more limited than other estuaries with more healthy ecosystems. As an estuary, Rose Bay should serve as a nursery for fish and a habitat for benthic organisms. It should also serve as a food source for higher organisms such as egrets, herons, ospreys, and other wading birds. At present, Rose Bay's ability to perform these functions is very limited. The water in Rose Bay is turbid. Sunlight cannot penetrate it. A shallow estuary like Rose Bay should have sunlight and oxygen for the aquatic plants that live at the bottom. SOLUTIONS The ongoing degradation of Rose Bay is attributable to two major problems: (a) the input of freshwater carrying pollutants and sediments from the developed upland areas; and (b) the accumulated volume of unconsolidated sediment. As discussed below, man-made obstructions to circulation are not causing significant problems in the bay. Unless the first two problems are corrected, Rose Bay will continue to deteriorate. In that event, the degradation will spread to the surrounding populations of wildlife further reducing diversity. Freshwater has always drained into Rose Bay through surface runoff and subsurface flow. However, in its undeveloped state, the watershed did not discharge enough freshwater to disturb the salinity regime in the bay. Public and private development of Volusia County has altered the natural landscape. Since the turn of the century, Rose Bay's watershed areas have become highly urbanized. The urban areas are major sources of untreated stormwater runoff and associated pollution. The freshwater inputs have altered the natural conditions of the bay's salinity regime. The developments use drainage canals to funnel runoff directly into Rose Bay. The canals are open ditch systems which have no stormwater controls at their outfalls. When the water table elevation is high, the canals discharge fresh groundwater into the bay. They convey sediment as suspended material into Rose Bay. Several tributaries are responsible for the input of freshwater to Rose Bay. The largest contributors of freshwater are: (a) the Nova Canal System at the Halifax Canal outfall which drains part of Daytona Beach and Port Orange to the north; (b) the Cambridge Canal which drains part of Port Orange; and (c) and the Harbor Oaks Canal which drains the residential subdivision on the bay's northern shore between the existing causeway and the old highway island. Freshwater Inputs: Volume and Sediment Loading The first and most important step in the restoration of Rose Bay is to control the volume of freshwater inputs and reduce the sediment loading of runoff through these canals. There is not enough energy in Rose Bay's currents, with or without the causeway, to wash out the incoming material at the rate the surrounding watersheds are presently discharging it. If Petitioner removes the causeway and old highway island before the sediment loading of freshwater inputs is reduced, muck will still accumulate in the bay. There is no persuasive evidence that removal of the causeway alone will reduce the net sediment deposition in Rose Bay. More likely than not, causeway removal will result only in localized variations of sediment accumulation. To the extent that the causeway currently impedes the downstream movement of sediment, its removal presents a potential danger to the Halifax River and other downstream ecosystems. Reducing the sediment loading from the runoff of the surrounding watersheds will require a cooperative effort by federal, state and local governmental entities. These entities include, without limitation, Respondent, Volusia County, and municipalities such as the City of Port Orange. The record contains some evidence that the City of Port Orange is planning to make retrofit improvements for the treatment of stormwater in the Cambridge Canal basin with construction to begin in 1997. Volusia County is in the planning and budgeting stage for a stormwater box which will remove silt from the Harbor Oaks canal. Volusia County also has a conceptual plan and cost estimate for a detention facility in two places along the Nova Canal. There is no persuasive evidence that the entities involved in restoring Rose Bay will successfully accomplish their goals. The time frame in which they might achieve their objective of reducing the sediment inputs is entirely speculative and beyond Petitioner's control. Existing Sediment The second step in restoring Rose Bay requires the removal of the accumulated muck, cohesive materials that flocculate and settle out. This will ameliorate the damage done by decades of excessive freshwater input. It will also eliminate any danger that existing muck will travel downstream to the Halifax River if and when Petitioner agrees to remove the causeway and/or the old highway islands. Freshwater slows down when it enters the broader area of the bay allowing sediment to settle on the bottom. The muck in Rose Bay is high in organics and metal concentrations. Over the years, this silt or muck has accumulated to a greater degree in some areas than others. There is no accumulation of sediment in areas where the flow of water is constricted causing the current to have an increased rate of velocity. For instance, the bottom is firm where water flows under the railroad trestle bridge on the western side of the bay. The bottom is also firm where the water flows under the Rose Bay bridges. The tidal flow sours these areas. There is a minimal amount of muck on the seaward side of the causeway to the southeast of the spoil islands or old US 1 causeway. There is no impediment to tidal flushing in this area. The sediment ranges from 3.78 to 6.4 feet deep on the western side of the causeway and south of the Rose Bay bridges. The dredge hole for the new causeway is now level with silt to a depth of about two and half to three feet. In some areas of the central bay at low tide, there is a foot and a half of water over the muck. Below the water, the muck ranges between three and six feet deep. Areas along the northern shore of the bay's west lobe have hard bottoms where there is good circulation. On the other hand, muck in areas along the southern shore of the west lobe extends above the water level at low tide. In the middle of the bay's west lobe, at the midpoint between the causeway and the railroad trestle, the mud is four to five feet deep with less than a foot of water at mean-low tide. On the northwestern side of the bay near the isthmus, sediment has accumulated to the mean-water level. Therefore, mud is exposed at any tide below the mean high. In the eastern lobe of Rose Bay, the elevation of the water over the mud is almost three feet at mean-low tide and over four feet at mean-high tide. The muck in the middle of the eastern lobe is 8.79 feet deep. Sediment has accumulated to a depth of over six feet in places along the northern shore of the east lobe. Natural ecosystems generally have firm bottoms which allow animals like oysters and other shellfish to build communities. In their free swimming larvae stage, shellfish seek and anchor on hard bottoms so that they will not be washed away by tidal currents as they begin their life. They also need relatively silt-free tidal water to provide them with a plankton component because they are filter feeders. Other animals that depend on firm bottoms are marine worms, mussels and crown snails that move around on hard bottoms. Clams need a firm bottom so they can burrow into it and put up their siphon tube to get food. The bottom of Rose Bay is too soft for these types of animals to find attachment points or to support themselves. The accumulated silt in Rose Bay reduces the habitat for shrimp and crabs that move along the bottom. Crabs can move across softer substrates but the muck inhibits the growth of oysters on which the crabs can feed. One would expect to find redfish in parts of Rose Bay where the flow is constricted. However, the muck reduces the feeding habitat of the redfish. Live oysters and clams are only found in areas of the bay which have no sediment accumulation. Oysters have not been commercially harvested from Rose Bay since the 1960s. At that time, water quality tests showed high bacteriological counts which resulted in closure of the bay for purposes of commercial shellfishing. The accumulated silt in Rose Bay could be removed hydraulically or by traditional dredging. The muck is high in organics but contains no industrial wastes or hazardous material. Therefore, the material could be disposed of in a landfill or used for some beneficial purpose. The sediments can also be removed by bioremediation which injects nutrients and oxygen into the muck. Bioremediation would cause the muck to oxidize in place. Removal of the muck is a reasonable engineering alternative after its source is reduced. Once the demucking process begins, removal of the muck could take from five to ten years depending on the method used. The City of Port Orange has identified city property adjacent to Rose Bay as a location for a staging facility to remove the muck. The record contains no evidence of a commitment by the City of Port Orange or any other governmental entity to study the effects of removing sediment buildup much less to actually implement a plan to demuck the bay. Impediments to Flow Rose Bay's tidal force is naturally restricted by the distance it must travel from the ocean. It is hydraulically connected to the Halifax River which runs parallel to the coast east of the bay. In order to reach Rose Bay, the tide meanders through shallow creeks and around mangrove islands between Rose Bay and the main channel of the Halifax River. The tide's velocity and amplitude is already attenuated by the time it reaches the causeway. Even with no obstructions to flow, Rose Bay is too shallow and wide to cause a balanced flushing action. The greater weight of the evidence indicates that Rose Bay did not really "flush" in its undeveloped state. The causeway acts like a dam to some extent. It constricts the uniform flow of water in and out of the western lobe of Rose Bay. The only opening in the causeway is the 200 foot span of the Rose Bay bridges. The narrow opening causes the velocity of the current to increase dramatically as it passes under the bridge. However, there is no persuasive evidence that the causeway actually reduces the quantity of water that passes under the bridge. The old highway island in the bay's eastern lobe also redirects the flow of water. The narrow openings on either side of the island increase the velocity of water as it passes through those areas creating circular flow patterns in the eastern lobe. During the application review process, Petitioner proposed a memorandum of understanding in which it agreed to consider removal of the old highway island and the man-made spoil islands at the mouth of Rose Bay for inclusion in an mitigation bank as credits for Petitioner's other projects. The parties were unsuccessful in concluding their negotiations regarding these matters. The record contains no other evidence as to what entity owns and controls the old highway island. Therefore, it is highly speculative whether Petitioner or any other entity will be able to remove this obstacle, and if so, when such a task might be completed. The railroad trestle on the bay's western shore is another constriction to flow. However, it is not a major obstruction because it has little or no causeway. Together, the causeway and old highway island alter the circulation patterns in the bay to some extent. They create circulation dead zones. Silt accumulates in their shadow. Removal of the causeway will eliminate some of the dead zones. Removal of the causeway and the old highway island will restore the bay's natural flow pattern and allow dispersion of the sediment over a larger area. Nevertheless, the causeway alone is not making a significant contribution to the process which is slowly changing the bay from an estuarine system to a freshwater system. The most significant factor that affects circulation in Rose Bay is related to the large volume of freshwater that is discharged into the bay from the drainage ditches. Tidal flows, with or without the causeway, are much less important than the freshwater flows in determining the bay's circulation regime. This flow of freshwater has created two-layer flow. With two layers of flow, one layer is isolated from the other and vertical mixing between the two does not occur. Mixing of the layers is important for the exchange of dissolved oxygen to the bottom layers. Without oxygen, the sediments at the bottom become anaerobic. Two-layered flow is common for an estuary with strong freshwater inputs and minor tidal forces. The influence of the freshwater flow in Rose Bay is so strong that, even after the removal of the obstacles, the direction of the residual current will be downstream in the top layer and upstream in the more saline bottom layer. The net direction for the residual velocity will always be downstream unless the freshwater inputs are reduced to the level that eliminates two-layer flow. It will be impossible to reduce all freshwater inflows to the bay; therefore, it will be necessary to reduce the suspended solids in the freshwater inputs substantially and to remove existing accumulations of muck before making any improvements that return the circulation regime to its natural condition. Otherwise, the downstream flow will transport the incoming sediment and the existing muck into the Halifax River. The circulation dead zones and places with circular flow patterns correspond to areas of accumulated sediment. Removal of both flow impediments will change the directional flow patterns in the eastern and western lobes of the bay to some extent--more in the former than the latter. However, there is no persuasive evidence that the change in flow patterns for either of the lobes will cause a significant reduction in the sediment accumulation except in localized areas. Installing a thirty foot opening or two ten by six foot culverts in the causeway will not create a significant improvement in the circulation of Rose Bay. Any thing less than complete removal of the causeway and the old highway island will not provide a noticeable change in the bay's circulation patterns. Wind is an important factor in the circulation of Rose Bay. The causeway impedes wind-driven flow. There have been no studies to document the impact of wind on the circulation regime in the bay with or without the causeway. Sediment accumulation will continue as long as the watersheds discharge suspended solids into the bay. Estuaries are depositional environments by nature; they naturally accumulate silt to some degree. Rose Bay is typical in this regard. As an open water system, Rose Bay and the mangrove detrital system in the marsh adjacent to the bay may be able to assimilate a higher level of sediment input than normal and still support a healthy estuarine system. However, the record does not document what the normal level of sediment absorption is or what higher level of sediment input the mangrove swamp might have to absorb to retain a healthy estuarine system after removal of the causeway. Evidence indicating that removal of the causeway alone will result in the slow, safe resuspension and assimilation of the muck over fifty years is not persuasive. Replacement of the causeway with a bridge span would add two and a half million dollars to the cost of the proposed project in bridge construction costs alone. That figure does not include the costs associated with: (a) redesign of the project; (b) causeway removal; (c) removal of the old highway island; and (d) all related activities. Redesign of the project to accommodate causeway removal will take two and a half years. The long term operation and maintenance of the Rose Bay bridges and causeway will not cause significant adverse impacts in the bay. The existing causeway is a minor hydraulic restriction. The greater weight of the evidence indicates that removal of the causeway will have no beneficial effect on the restoration of the bay without: (a) a substantial reduction in the freshwater inputs and sediment loading; (b) removal of the existing muck; and (c) removal of the old highway island. MITIGATION Petitioner initially proposed to install two ten by six foot side-by- side box culverts in the causeway as mitigation for the project's 0.2 acre of wetland impacts at an additional cost of approximately one hundred thousand dollars. Petitioner subsequently withdrew its proposal to install the culverts because of the difficulty in quantifying the long term effect the culverts would have on the bay, i.e. effects on water quality, downstream erosion, and flushing of accumulated sediments. The record now contains persuasive evidence that construction of the culverts alone will not benefit Rose Bay. Petitioner submitted a revised mitigation plan to reestablish a vegetated buffer of marsh species in those areas that will be disturbed and for areas which are unvegetated and susceptible to erosion. The total area of marsh plantings will be 0.7 acres along eleven shoreline lengths. Additionally, Petitioner plans to plant shrubs along upland portions of the causeway to further buffer the wetlands from the roadway. Respondent found this planting scheme insufficient to offset adverse impacts of the project. Respondent took the position that the impacts and effects of the proposed project extend beyond the immediate project vicinity. Respondent suggested that Petitioner consider removal of the causeway and construction of a bridge across Rose Bay. Petitioner did not find this alternative acceptable. The parties also considered development of a mitigation bank in which Petitioner could earn credits for other projects in exchange for performing mitigation in Rose Bay. These negotiations between the parties were unsuccessful. FACTUAL CONCLUSIONS Petitioner has provided reasonable assurances that the construction, maintenance and operation of the project will not adversely impact: (a) the quality of receiving waters; (b) navigation; (c) recreational opportunities; (d) conservation of fish and wildlife and their habitats; (e) wetland functions; (f) existing surface water storage and conveyance capacity; and (g) Respondent's overall objectives for the district. Instead, the project will provide a net improvement to these factors over existing conditions. Concerns related to the project's discharge of untreated stormwater, constrictions which alter the bay's circulation patterns, and accumulation of sediment in the causeway's shadow are negligible when compared to the damage currently being caused by freshwater inputs loaded with sediment and total sediment accumulation. There is no persuasive evidence that the project will exacerbate the ongoing degradation of Rose Bay. The project's proposed design and best management practices are appropriate for the existing site specific conditions. The probable efficacy and costs of alternative plans, such as removal of the causeway and the old highway island, are not reasonable until such time as the freshwater inputs, sediment loading, and accumulated muck can be reduced and/or eliminated. Additionally, it is not reasonable to require Petitioner to make further expensive repairs to the existing causeway and bridges pending correction of the primary problems which may or may not ever occur. Even though the project is permanent in nature, it is, on balance, clearly in the public interest to proceed with the project as designed at this time. The project provides a net improvement to the current condition and relative value of functions being performed by areas affected by the proposed activity. The increased elevation of the bridges will enhance navigational and recreational opportunities for many years to come. The new bridges will have fewer pilings thereby reducing adverse impacts to Spruce Creek and Rose Bay. Treatment of stormwater where none currently exists will improve the quality of water that the existing site is discharging, untreated, directly into the bay. The revised mitigation plan will be especially effective in offsetting the project's wetland impacts and reducing the potential for soil erosion in the immediate project vicinity. The totality of the record indicates that the current ambient water quality in Rose Bay is severely degraded and slowly continuing to deteriorate. This degradation is primarily due to factors not related to the existing causeway and bridges. The project will discharge some untreated stormwater due to unavoidable site limitations. However, this discharge of untreated stormwater will not significantly lower the existing ambient water quality or result in significant violations of water quality standards. To the contrary, the proposed project will result in a net improvement to the quality of the bay's receiving waters over time. The project provides for enhanced public use of Rose Bay. It facilitates the maintenance of a major transportation corridor that existed prior to the effective date of Rose Bay's designation as an OFW. Petitioner's design implements appropriate management practices and suitable technology for site specific conditions. There is no record evidence of a viable alternative to the proposed activity, including complete causeway removal or undertaking no change, except at an unreasonably higher cost. Nothing short of complete removal of the causeway and the old highway island will restore the bay's natural flow patterns or prevent the accumulation of sediment in their shadow. Petitioner has removed parts of causeways on other projects permitted by Respondent. Removal of the impediments to flow may at some point in the future be necessary to help balance tidal forces with freshwater inputs after the latter has been reduced and accumulated muck is eliminated. In the mean time, Petitioner is entitled to MSSW and WRM permits
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that Respondent enter a final order granting Petitioner a MSSW and a WRM permit for the subject applications in accordance with the terms and conditions as recommended in the technical staff reports presented at hearing. DONE AND ENTERED this 13th day of June, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, 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 13th day of June, 1996. APPENDIX The following constitutes specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1-4. Accepted in Findings of Fact (FOF) 1-5. Accepted in FOF 18. Accepted in FOF 33. 7-8. Accepted in FOF 35-37. Accepted in FOF 6. Accepted in FOF 9. 11-13. Accepted in FOF 11-13. 14-16. Accepted in FOF 7-8. 17. Accepted in FOF 63, 69, & 74-83. 18. Accepted in FOF 9-10. 19-20. Accepted in FOF 19-20. 21. Accepted in FOF 3 & 5. 22. Accepted in FOF 16-17. 23. Accepted in FOF 18 & 27. 24. Accepted in FOF 14 & 16. 25. Accepted in FOF 21-22. 26. Accepted in FOF 23 & 27. 27. Accepted in FOF 24. 28. Accepted in FOF 26. 29-30. Accepted in FOF 25. 31. Accepted in FOF 27. 32. Accepted in FOF 29 & as restated in FOF 28. Accepted as subordinate to FOF 27-30. Accepted in FOF 30. 35-39. Accepted in FOF 31-37. 40-46. Accepted in FOF 38-45. Accepted in FOF 50. Accepted in FOF 15. 49-53. Accepted in FOF 7, 9, 12-13, & 42. 54-107. For the most part, these proposed findings of facts are repetitious of Petitioner's proposed findings of fact 1-53. To the extent they are not repetitious, the are accepted in part as subordinate to FOF 7-52, 112-115, & 116-122. Specifically reject any proposed finding of fact stating that the project will not result violations of water quality standards or lower the existing ambient water quality. However, any such impacts will not be significant. The project will result in a net improvement to the quality of receiving waters over existing conditions. See FOF 116-122. 108-144. Accepted as subordinate to 53-111, 112-115, & 116- 122. 145-154. Accepted as subordinate to 53-122. 155-202. Accepted in part and rejected in part. See FOF 53- 122. The hydrodynamic modeling analysis was persuasive evidence that the causeway alters the bays's circulation regime and that sediment accumulates in the shadow of the causeway. It was not persuasive evidence that the causeway restricts the quantity of water flowing in and out of the bay's west lobe. The greater weight of the evidence indicates that the freshwater inputs, loaded with sediment, are primarily responsible for the bay's degraded condition. The causeway is a minor hydraulic restriction. Respondent's Proposed Findings of Fact 1-30. Accepted as restated in FOF 1-52. 31-58. Accepted in part and rejected in part. See FOF 53- 111. Specifically reject proposed findings 34 & 37. The causeway is not a major cause for the lack of circulation and flushing in the bay. The man-made obstructions to flow are not causing significant problems. Removal of the causeway and the old highway island will eliminate circulation dead zones and prevent the accumulation of sediment in their shadow. However, there is no persuasive evidence that removal of these obstructions to flow will significantly improve the habitat of Rose Bay as a whole. Reject proposed findings 38-40 because there is no persuasive evidence that creating an opening in the causeway would: create more flow; diminish the bay's bacterial problem; reduce the impact of freshwater inputs; or quickly restore the bay's biological system. Reject first sentence of proposed finding of fact 43 because the extent to which the bay can be restored is speculative. Reject the second sentence of proposed finding of fact 43 as not supported by persuasive evidence. Reject proposed findings of fact 45-58 in part because the extent and effect of commitment by Volusia County and the City of Port Orange to restore Rose Bay is vague and speculative. There is no persuasive evidence that either of these entities will ever achieve their alleged goals. 59-96. Accepted in part and rejected in part. See FOF 63- 93. Proposed findings of fact 61 is overbroad. The first sentence of proposed findings of fact 84 is over broad. Reject proposed finding of fact 88-95 because no persuasive evidence as to which method should be used to remove accumulated sediment or how long it will take to complete the job after that decision is made. There is no evidence that any entity will be able to secure the necessary permits and funding to remove the sediment. Proposed findings of fact 96 is rejected as contrary to more persuasive evidence. 97-152. Accepted in part and rejected in part. See FOF 94- 111. Reject any proposed finding that the causeway restricts the quantity of water flowing in and out of the bay's west lobe as contrary to more persuasive evidence. Proposed findings of fact 103-104 rejected as contrary to more persuasive evidence. Rose Bay does not and never did really "flush." Removing the causeway and the old highway island would restore a natural circulation pattern but would not cause the bay to flush. Proposed findings of fact 110-144 accepted but subordinate to FOF 94-111. Reject proposed findings of fact 145 because Rose Bay will always be a depositional environment. Reject proposed findings of fact 146 as overbroad and not supported by persuasive evidence. Proposed findings of fact 147 is misleading because removal of the causeway will have only a localized effect on sediment accumulation. Proposed finding of fact 152 is rejected as not supported by persuasive evidence. 153. Not a finding of fact. 154-176. Accepted in part as subordinate to FOF 31-52, 112- 115, 116-122. 177-178. Not findings of fact. 179. Rejected as overbroad and not supported by persuasive evidence. 180-181. Not findings of fact. 182. Rejected as not supported by persuasive evidence. 183. Not a finding of fact. 184-205. Rejected to the extent of any conflict with more persuasive evidence in support of FOF 116-122. 206-219. Accepted as subordinate to 112-115. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Nancy B. Barnard, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
The Issue The issue is whether the Respondent, Kingsley Service Company, should be granted an operating permit to increase the capacity of its Fleming Oaks Waste Water Treatment Plant from .490 MGD to .720 MGD.
Findings Of Fact The Fleming Oaks Waste Water Treatment facility is located on Fleming Island, at the south end of Bahia Road. (T 25). It includes three units, a .180 MGD, a .150 MGD and a .490 MGD plant. (T 49). The facility is owned and operated by Kingsley Service Company, the largest utility in Clay County. (T 24) Kingsley has operated in Clay County for more than 26 years and presently services the equivalent of over 17,000 homes. (T 23). Fleming Island is a relatively large piece of land bounded on the east by the St. Johns River, on the south by Black Creek, and on the north by Doctors Lake. On the west, Black Creek and Doctors Lake are connected by Swimming Pen Creek and a swampy marsh area. (T 25-26). In 1982, a .080 MGD sewage treatment plant was built at the present Fleming Oaks location. In 1984, a .0150 MGD plant was added, bringing the total facility capacity to .230 MGD. Effluent from those plants was discharged through a pipe to the St. Johns River. On February 25, 1986, Kingsley received permit No. D010-115962 authorizing continued operation at the Fleming Oaks facility of the 0.080 MGD and 0.150 MGD sewage treatment plants. This operation permit expired on February 25, 1991. (RE #1). On October 8, 1987, the Department issued permit No. DC10-139744 to Kingsley to expand "the existing 0.230 MGD...Sewage treatment plant by constructing a separate 0.490 MGD extended aeration sewage treatment plant with a total design capacity of 0.720 MGD." (RE #2). On January 25, 1990, the Department issued permit No. D01-104228 to Kingsley, "[t]o operate a 0.490 MGD extended aeration sewage treatment plant." This permit required Kingsley to apply for an operation permit for the full capacity of the plant, 0.720 MGD, when the new plant, 0.490 MGD reaches a load of approximately 90% of its capacity. The operation permit for the .490 MGD expires on January 25, 1995. (RE #3). Pursuant to the permit requirement referenced in the preceding paragraph, Kingsley applied to the Department on January 17, 1991 for an operation permit to "[p]lace [the] existing 0.230 MGD WWTP into service raising treatment capacity to 0.720." (RE #5). After reviewing that application, the Department executed a notice of permit issuance, authorizing Kingsley to operate a parallel 0.490 MGD extended aeration waste water treatment plant ("WWTP"), a 0.150 MGD contact stabilization WWTP and a 0.080 MGD contact stabilization WWTP having a combined design capacity of 0.720 MGD serving Fleming Island and authorizing discharge of the treated effluent into the St. Johns River, via an existing 500-foot pipe, 8 inches in diameter. (RE #7). This permit allowed the previously-constructed 0.230 MGD plant to be placed back in service. It is this permit which the Petitioners challenge. The system in question was designed by a qualified engineering firm with substantial experience in the design of waste water treatment plants (R 46, 47 & 48) and in compliance with Department regulations. (R 63-64). The system, as designed and constructed, is being operated by qualified personnel and consistent with Department regulations. (R 280, R 124, 131, 132). The 0.490 MGD plant consists of an aeration tank, a digester, and a clarifier. (RE #8; T 51). Raw sewage is pumped from lift stations into a "surge tank," where it falls through a bar screen and grid chamber which take out large items and sand which accumulate in the sewage system. (T 55-56). Raw sewage is then pumped from the surge tank to the aeration portion of the plant. (T 56). In the aeration tank, solids and liquids, called "mixed liquor," are evenly distributed throughout the depth of the liquid in the aeration tank, where the breakdown process occurs. (T 65). A control box is located between the aeration tank and clarifier which allows waste water from the aeration tank to flow into the clarifier once it reaches a certain level in the aeration tank. (T 56-57). The flow moves through the control box and into the portion of the clarifier called an "annular weir." The annular weir is approximately 18 inches from the outside wall of the clarifier and looks like the outer ring of a bull's-eye target from above. The purpose of the annular weir is to distribute flow evenly into the clarifier. At the center of the circular clarifier is a rectangular-shaped structure called an "effluent weir." (T 57). In the part of the clarifier outside the rectangular effluent weir, undigested solid material settles out onto the bottom. The liquid portion which remains after the solids settle out flow over the top of the effluent weir into the interior of the rectangular structure. The interior of the effluent weir can only be reached from the top. There are no entry points at the bottom, where the solids are. (T 66). The clear liquid that flows over the effluent weir and the sludge that settles to the bottom of the clarifier undergo further, separate treatments. The clarified effluent that flows over the top of the effluent weir is piped to the chlorine contact chamber for disinfection. (T 52). Chlorine is fed into the effluent to destroy pathogens which may be present. (T 81). The final 2-1/2 feet of the chlorine contact chamber is where dechlorination takes place. (T 62). Dechlorination is required so that the chlorine level in the effluent is reduced. (T 54). Dechlorination occurs when sulfur dioxide is mixed with the chlorinated effluent. Discharge monitoring takes place in the chlorine contact chamber. (T 62). The treated and dechlorinated effluent is pumped to the St. Johns River through an outfall which is 500 feet from shore. (T 53, 63). The sludge which settled to the bottom of the clarifier is drawn off at the bottom of the clarifier and directed into the "digester" where, under aerobic conditions and without additional food, bacteria die-off occurs. (T 59). The sludge is actually a liquid substance, approximately 97% water and 3% solids. (T 98-99). The digester is an ancillary process separate from the treatment of waste water. (T 57). The digester stabilizes and further reduces the organic content of the sludge. (T 51). Tanker trucks regularly remove the sludge from the digester and transport it to dairy farms where it is applied to the land. (T 98-101; RE #11 for invoices). The 0.490 MGD plant "has been designed and constructed to meet all the requirements currently posted or regulated by the State of Florida." (T 64). The construction and operation of the Fleming Oaks plant, when compared with the other 600 in the Department's Northeast District, is "very good." (T 131). Although the BOD and TSS limits are 20, the Fleming Oaks plant consistently gets better than 10 and many times less than 5 for these parameters. (T 131). Sampling of the St. Johns River at the end of the outfall pipe has shown that the water quality standards have been met for each sample. (T 141). The Monthly Operating Reports show that required parameters are almost always met. (RE #11). On June 7th, a machine sampled sewage coming into the plant and sewage that was leaving the plant. Two samples were taken, one where raw sewage comes in and one the final effluent. The raw sewage had a BOD of 205 and the treated effluent had a BOD of 1. (T 283-286). TSS was run the same way. Raw sewage had a TSS of 182 while the treated sewage had a TSS of 1. (T 287). Petitioners' concerns about the permitting of the 0.230 MGD capacity center around the buildup of "muck" in the river in the vicinity of the existing outfall. Petitioners assert that Kingsley pumped sludge through the outfall which "polluted" their waterfront as "muck." Donald Loop, who lives 4,000-5,000 feet to the south of the outfall, described the muck buildup as starting 18 months ago "at two to three inches and over a period of time increas[ing] to 18 inches in some places and other places over 24 inches." In conjunction with the muck buildup was "extreme devastation of all greenery, starting with cattails and many other green plants that grew out there." (T 153-154). During this time frame, the rainfall was 25% below the annual average and "the river flows were much less than normal." (T 153, 270). Damon Loop, Donald Loop's brother, lives on a canal, 350-400 feet off the St. Johns River. The canal is approximately 1,000 feet north of the outfall of the Fleming Oaks facility. (T 233). He noticed a muck buildup "when Kingsley Service Company first started putting the effluent into the river." (T 228). At that time, the end of the canal area started filling up with muck. The muck now covers almost 4-1/2 feet and has been there for six or seven years. (T 228). Two or three hundred feet out in the St. Johns River, where it is 10 feet deep, there is a black silt one foot to 15 inches deep. (T 229). Other witnesses also described the muck. Saxton Weir, who lives approximately one-half mile to the north of the outfall, described the muck as being 43 or 44 inches thick. (T 200, 204). The muck extended along his shoreline "over 500 feet" and extended out into the water "from 5 feet to over 100 feet." (T 212-213). Mr. Weir actually saw muck extending as far out as "485 feet from the shoreline." (T 214). The accumulated muck was blown away after three days of rain and a storm. (T 205). A video tape of the conditions caused by the muck was received and viewed. There are tons and tons of muck in this area. Petitioners believe that the muck was actually sludge or TSS illegally discharged from the Fleming Oaks facility. This belief was based upon the mistaken conclusion that the 0.430 MGD treatment process was requiring an inappropriately large amount of chlorine. Petitioners concluded that there was excessive chlorine in the water because of the death of barnacles on pilings in the area. Chlorine kills bacteria and oxidizes other organic materials. (T 116). Small amounts of organic matter which have not been completely digested by the treatment process can be oxidized by chlorine. (T 102). Chlorine is increased to treat unoxidized organic material. (T 83). The MOP/11 operation waste water manual, characterized by Mr. Loop as the "Bible of waste water treatment," indicates that about three parts per million chlorine is appropriate. (T 176). For June of 1990, the average chlorine feed was actually 3.3 parts per million. (T 297-298). The chlorine levels were within normal limits. The barnacles were killed by some other factor, perhaps the drought which occurred at about this time. Because of the muck-related complaints, a sample of sludge was taken by a Department employee from an unknown location in the area and analyzed at the Department laboratory, where it was microscopically determined that the sample was decaying vegetation. (T 138). Without intentionally discharging large amounts of sludge over a period of time, the chance of even noticing any buildup along the shoreline is very, very small. The particles left in the effluent are very small and very light. The ability of this material to settle in a water flowing at even low velocity is difficult. The velocity of the current at the outfall is sufficient to prevent any particles from settling out. (T 96). The "muck" in the river in front of the houses of the Petitioners was not shown to be sludge from the Fleming Oaks Waste Water Treatment Plant after testing by the Petitioners. (R 252). The capacity at issue in this proceeding, 0.230 MGD capacity, consists of 0.080 MGD plant, composed of two tanks, and a 0.150 MGD plant that is composed of three tanks. (T 49-50). Both of these plants are contact stabilization plants. ( T 67). Although permitted until February of 1991, these two plants ceased operating in April of 1989. (T 37). The St. Johns River is Class III waters of the State of Florida. Secondary treatment, which is required for these plants, is sufficient to maintain the water quality standards for the St. Johns River. (T 124-125, 130). When the 0.080 and 0.150 MGD plants were operational, they operated within the limits of the permit at issue here. (T 67). They will meet the requirements for issuance of the permit. (T 124). When the .230 MGD capacity is brought on line, raw sewage entering the surge tank will be routed to each of the three plants rather than just to the aeration plant alone, as it is at present. (T 88). Waste water will be pumped proportionately to the separate plants through variable speed pumps. (T 89). After appropriate treatment in the 0.80 MGD and 0.150 contact stabilization plants, clear liquid effluent will be transferred from them to the chlorine contact chamber where it will be chlorinated, dechlorinated and then pumped to the St. Johns River through the existing outfall. (T 90).
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the application of the Kingsley Service Company for the waste water treatment operating permit at issue be granted, on the terms and conditions set forth in the Department's Draft Permit, in evidence as Respondents' Exhibit 7. DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1992.
