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
Findings Of Fact The Department is the state agency charged with the responsibility of enforcing Chapter 253, Florida Statutes on behalf of the Board of Trustees of the Internal Improvement Trust Fund (Board). The Board holds title to submerged sovereign lands pursuant to Sections 253.03 and 253.12, Florida Statutes, and Article X, Section 11, Florida Constitution. Fraraccio, together with his wife, owns a parcel of real property located in section 13, township 38 south, range 41 east which is commonly known as 26 High Point Road and which is located in Martin County, Florida. The southern boundary of the Fraraccio's property (subject property) borders the St. Lucie and Indian Rivers. In June, 1987, Fraraccio filed an application for permission to alter mangroves which grow along the shoreline of the subject property. It was Fraraccio's intention to cut the tops of the trees in order to promote horizontal growth. This application was filed with and processed by the Department of Environmental Regulation (DER). On September 1, 1987, DER issued a permit for the mangrove alteration. Pertinent to this proceeding is the following specific condition of the Fraraccio permit: 4. "No person shall commence mangrove alteration or other activity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use. Pursuant to Florida Administrative Code Rule 16Q-14, if such work is done without consent, or if a person otherwise damages state land or products of state land, the Board of Trustees may levy administrative fines of up to $10,000 per offense. In October, 1987, the Department's Bureau of Survey and Mapping was asked to survey the west line of the Jensen Beach to Jupiter Inlet Aquatic Preserve (Preserve) at the confluence of the St. Lucie River. Terry Wilkinson, chief surveyor for the bureau, conducted the field survey on October 14-16, 1987. Mr. Wilkinson placed a metal rebar with a cap designating "D.N.R." at a point on the mean high water (MHW) line at the Fraraccio's property. Mr. Wilkinson also staked three points with lathe markers on a line northerly along the MHW line from the rebar monument. It was Mr. Wilkinson's opinion that the Preserve abutted the Fraraccio property from the point marked by the rebar monument northward along the coast. That portion of the Fraraccio property which was south and west of the rebar did not abut the Preserve. Fraraccio disputed the findings regarding the Preserve boundary reached by Wilkinson and did not concede that his property abuts the Preserve. On December 15, 1987, the issue of the Preserve boundary was taken before the Governor and Cabinet sitting as the Board at the request of the Department, Division of State Lands. Fraraccio was represented before the Board by counsel who argued against the staff recommendation. Mr. Wilkinson's interpretation of the boundary line for the Preserve was approved. That area waterward of the MHW line from the rebar monument northerly along the Fraraccio shoreline was, therefore, deemed to be part of the Preserve and sovereign submerged land. Prior to cutting any mangrove trees, Fraraccio telephoned Casey Fitzgerald, chief of the Department's Bureau of State Lands Management, to inquire as to whether Department permission was required to trim mangroves located above the MHW line. Fitzgerald's letter advised Fraraccio "that trimming mangroves located above the MHW line would not be within the purview of this department." Fitzgerald further recommended that Fraraccio "employ the services of a registered land surveyor to specifically identify the individual trees which are so located." Fraraccio did not obtain an independent survey. Instead, he relied upon the rebar monument and the lathe markers placed by Wilkinson, and contracted to have the mangroves landward of that line trimmed. One of difficulties encountered in determining the location of a mangrove in relation to the MHW line is the fact that one tree may have several trunks and prop roots which emanate from the center of the tree. Consequently, there is some uncertainty regarding how to locate the tree. One method used locates the centermost trunk and considers that point the tree location. Another method calculates the greatest percentage of tree mass and considers that point the center of the tree. This calculated center is then matched against the MHW line. Either method results in a judgment based upon visual inspection. This judgment may differ among reasonable men. In January, 1988, Fraraccio supervised the cutting of mangroves based upon the MHW line as established by the Wilkinson survey. Fraraccio did not intend to cut trees waterward of the MHW line. No trees were cut waterward of the Wilkinson line. A number of trees were trimmed landward of the Wilkinson line. There is no evidence that either the rebar monument or the lathe markers placed by Wilkinson were moved either prior to or after the mangrove alteration. Fraraccio was responsible for the direct supervision of the workmen who completed the mangrove trim. No work was done without Fraraccio's authorization. On March 22, 1988, Kalani Cairns, inspected the Fraraccio property. Cairns took field notes of the inspection. One of comments made at that time was that it was "difficult to determine if MHWL stakes have been moved." Based upon his review of the area, Cairns determined approximately 20 mangrove trees below the MHW line had been topped. Subsequently, the Department issued the Notice of Violation and Order for corrective action. Since Fraraccio did not believe he had cut waterward of the MHW line, no corrective measures were taken. Subsequent to the Notice, additional mangroves were not cut. Fraraccio timely sought review of the notice. In preparation for the formal hearing in this cause, the Department contracted with Greg Fleming to prepare a survey of a portion of the Fraraccio property. The purpose of this second survey was to locate the MHW line along the Fraraccio shoreline and to plot mangrove trees which had been trimmed and which were waterward of the line. Approximately 24 trimmed mangrove trees were located waterward of the MHW line as determined by the Fleming survey. The Fleming survey resulted in a MHW line which was upland of the line established by the Wilkinson survey. The trimmed trees in dispute are located between the two lines, as marked on the ground, by the lathes placed by the two surveyors. Mr. Wilkinson did not testify and no credible explanation was given for why the lines, as marked in the field, differ. At the time of the cutting, however Fraraccio believed the Wilkinson lathes marked the MHW line. This belief was based upon the representations that the Department had made regarding the rebar monument marked "D.N.R." and the fact that the placement of the lathe stakes had coincided with placement of the rebar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order dismissing the Notice of Violation against Charles A. Fraraccio. DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Florida. JOYOUS D. PARRISH 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 23rd day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4309 Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, it is accepted Wilkinson put down three lathes and that there is no evidence that those lathes were moved. Otherwise, the paragraph is rejected. Mr. Wilkinson did not testify and, therefore, no evidence was presented on the issue of the lathes. It is clear Fraraccio believed the lathes to be the MHW line. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of the evidence. The MHW line was correctly depicted on the ground and on paper by the Fleming survey which was done after-the-fact. Pertinent to this case is the fact that Fraraccio and DNR treated the Wilkinson survey on the ground (as shown by-the rebar and the three lathes) as the MHW line prior to the cutting. Paragraph 9 is accepted. With regard to paragraph 10, the record shows Fleming was contacted to perform the second survey in December, 1988, and that it was dated February, 1989. With that modification and clarification, paragraph 10, in substance, is accepted. Paragraph 11 is accepted to the extent that the two surveys differed on the ground (as opposed to on paper). Paragraphs 12, 13, and 14 accepted but are irrelevant. With regard to paragraph 15, it is accepted that the workmen were instructed not to cut waterward of the MHW line. The remainder is irrelevant to this proceeding. Paragraphs 16 through 18 are accepted. With regard to paragraph 10, it is accepted Fraraccio cut or trimmed the trees based upon the Wilkinson survey as depicted by the rebar and 3 lathe markers. Otherwise, paragraph 19, is rejected as irrelevant. Paragraph 20 is accepted. Paragraph 21 is rejected as irrelevant to this proceeding. Rulings on the proposed findings of fact submitted by the Department. Paragraphs 1 through 16 are accepted. The first sentence of paragraph 17 is accepted since both surveys coincided at the point of the rebar marked "D.N.R.;" otherwise, the paragraph is rejected as contrary to the weight of evidence since the surveys differed as plotted on the ground. Paragraphs 18 and 19 are accepted. Paragraph 20 is rejected as irrelevant. Paragraph 21 is accepted. Paragraph 22 is rejected as contrary to the weight of the credible evidence. Paragraph 23 is rejected as irrelevant. The number of trees cut waterward of the MHW line as established by the Fleming survey was approximately The size of the trees is irrelevant. Paragraph 24 is rejected as irrelevant. Paragraphs 25 and 26 are accepted. Paragraph 27 is rejected as irrelevant to this proceeding. COPIES FURNISHED: William L. Contole McManus, Wiitala & Contole, P.A. O. Box 14125 North Palm Beach, Florida 33408 Ross S. Burnaman Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Conclusions Background These consolidated cases involve applications by Secret Oaks Owners' Association (Secret Oaks) for a regulatory wetland resource management (dredge and fill) permit (OGC Case No. 95- 1341; DOAH Case no. 98-5290) and a proprietary consent of use for sovereign submerged lands (OGC Case No. 98-2669; DOAH Case No. 98-5190) for the construction of a dock on the St. Johns River, a Class III waterbody, in the Secret Oaks subdivision located on Fruit Cove Road and Secret Oaks Place in St. Johns County, near Jacksonville, Florida. The total square footage of the proposed dock over waters of the state is 3,234 square feet. The proposed dock would have an access pier 5 feet by 520 feet, a terminal platform 10 feet by 16 feet, a covered boat slip 16 feet by 28 feet waterward from the terminal platform, and a catwalk 3 feet by 26 feet at the boat slip. There is an existing dock on Lot 10 in Secret Oaks subdivision owned by Martin and Linda Parlato (the Parlatos). Secret Oaks has an easement along a 20 foot wide strip along one side of the Parlatos' lot to the waterfront. At one time there was an "ancillary dock" connecting the easement, over the water, to the existing dock on the Parlatos' lot. The ancillary dock was removed by the Parlatos and Secret Oaks has no easement to cross Parlatos' lot between the 20 foot easement and the location of the existing dock. The proposed dock would be constructed at the end of the 20 foot wide easement. Secret Oaks' applications for the permit and consent of use are being opposed by the Parlatos who own and reside at Lot 10. The decision to grant a consent of use is also being opposed by Patricia Ward (Ward) who lives at 912 Fruit Cove Road, Florida, immediately adjacent to and south of the Parlatos' property. A hearing on the consolidated cases was held on May 10 and 11, and July 21, 1999, before an administrative law judge (ALJ) with the Division of Administrative Hearings (DOAH). On January 27, 2000, the ALJ submitted his Recommended Order (RO) to the Department of Environmental Protection (Department). The ALJ concluded that the application for the dock satisfied all of the requirements for the regulatory permit, but concluded that the application for the dock did not comply with the proprietary requirement of rule 18-21.004(3) that the dock not interfere with the riparian rights of the adjacent upland owners. The ALJ believed that the concurrent review provisions of section 373.427 and rules 18-21.00401 and 62-343.075 applied to both the applications for the regulatory permit and the proprietary consent of use. Because the concurrent review statutes and rules provide that a regulatory wetland resource management permit may not be issued unless the applicant also meets all the requirements for any required proprietary approval, the ALJ recommended that both the regulatory permit and the proprietary consent of use be denied. A copy of the Recommended Order is attached as Exhibit A. On February 8, 2000, Secret Oaks filed a motion requesting entry of an order extending the time to file exceptions to the Recommended Order to and including February 24, 2000. In support of its motion, Secret Oaks' counsel of record stated that he had not received a copy of the Recommended Order, and that DOAH agreed to mail him a copy on February 9, 2000. On February 9, 2000, Secret Oaks filed a supplemental motion consenting to a corresponding extension of time (i.e., an extension of 15 days) for the Department to enter this final order. On February 10, 2000, the Department's counsel for the hearing below filed a response of no objection to the requested extension of time, and further requested that all parties be granted an extension of time to file exceptions to the Recommended Order to and including February 24, 2000. On February 10, 2000, I entered an order granting the request for extension of time for all parties to file exceptions to the Recommended Order to and including February 24, 2000, and granting a corresponding 15 day extension of time for the entry of this final order. Exceptions to the Recommended Order were filed by Secret Oaks, the Parlatos, and the Department. Patricia Ward did not file exceptions. The Department filed a response to the exceptions of Secret Oaks. No other responses to exceptions were filed. The matter is now before me as the Secretary of the Department for final agency action. Under chapter 373 of the Florida Statutes and chapter 62- 312 of the Florida Administrative Code, I have jurisdiction to enter this final order on the wetland resource management permit. Under rule 18-21.0051 of the Florida Administrative Code, I have delegated jurisdiction to enter this final order on the proprietary consent of use to use sovereign submerged lands. As a preliminary matter, I note that when an ALJ's findings of fact are supported in the record by competent substantial evidence I am bound by those findings and may neither reject them nor reweigh the evidence. See Dunham v. Highlands County School Board, 652 So.2d 894 (Fla. 2d DCA 1995); pietz v. Florida Unemployment Appeals Commission, 634 So.2d 272 (Fla. 4th DCA 1994); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Sec. 120.57(1)(1), Fla. Stat. (1999). Nor may I rejudge the credibility of testimony. See Brown v. Criminal Justice Standards and Training Commission, 667 So 2d 977 (Fla. 4th DCA 1996). However, in an area of law over which the Department has substantive jurisdiction, as long as I state with particularity the reasons for rejecting an ALJ's conclusion of law and find that my substituted conclusion is as reasonable, or more reasonable, I am not bound by the ALJ's conclusions of law. Sec. 120.57(1)(1), Fla. Stat. (1999). See also, Harloff v. Citv of Sarasota, 575 So.2d 1324, 1328 (Fla. 2d DCA 1991), review denied, 583 So.2d 1035 (Fla. 1991). For the reasons discussed in detail below, I concur in and accept the ALJ's recommendation that the consent of use be denied. However, I disagree with and reject the ALJ's recommendation that the wetland resource management permit also be denied. The ALJ's recommendation that the wetland resource management permit be denied was based on the erroneous finding of fact and conclusions of law that the concurrent review provisions of section 373.427 of the Florida Statutes and rules 18-21.00401 and 62343.075 of the Florida Administrative Code applied to these applications (FOF No. 2; COL Nos. 62, 71, 77, and 87). In the proceeding below, the ALJ took official recognition of rules 18-21.00401 and 62-343.075 (RO at 5). The official history notes published in the Florida Administrative Code show that these concurrent review rules did not take effect until October 12, 1995. The applications for the regulatory permit and the proprietary consent of use were received on November 28, 1994, (FOF No. 12, RO at 9), and the Department's intent to issue the wetland resource management permit was noticed on June 7, 1995 (FOF No. 22, RO at 13). Thus, the concurrent review rules took effect after the Department's decision on the intent to issue. With respect to whether the concurrent review rules apply to this case, the issue presented is whether a rule that takes effect after an application is complete--and after the agency's decision to grant or deny the application is made within the 90- day timeframe allowed for final agency action on the application under section 120.60 -- may be applied to the application in a subsequent administrative hearing on the application. Because the application of the concurrent review rules would add criteria for the issuance of the wetland resource management permit, application of the concurrent review rules would be a substantive increase in the requirements for obtaining a wetland resource management permit. The case law on this issue presents an uncertain guide. In Lavernia v. Department of Professional Regulation, 616 So.2d 53 (Fla. 1st DCA 1993), after an application for a medical license was filed--but before the Board of Medicine noticed its intent to deny the license--the applicable licensing statute was amended. The court held that the amended statute applied to the pending application. Lavernia, is not directly on point because in the applications at issue here the concurrent rule took effect after the Department had noticed its final agency action within the 90- day permitting timeframe allowed by section 120.60. Closer to the situation at hand is the case in Central Florida Regional Hospital v. Department of Health and Rehabilitative Services, 582 So.2d 1193 (Fla. 5th DCA 1991). In Central Florida Regional Hospital, after the agency had made a final decision on the application within the timeframe allowed by section 120.60--but before an administrative hearing on the application--an applicable rule was invalidated. Despite the fact that the rule had been invalidated, the court held that the rule should still be applied to the application. In other words, the law as it existed at the time of the decision within the 90-day permitting timeframe of section 120.60 applied. In contrast to Central Florida Regional Hospital, in Agency for Health Care Administration v. Mount Sinai Medical Center of Greater Miami, 690 So.2d 689 (Fla. 1st DCA 1997), the court held that an agency rule invalidated after an application was complete, but before a final decision on the application was made, cannot be applied to the application in a subsequent administrative hearing. In other words, the new law must be applied in the subsequent administrative hearing.1 In both Lavernia and Mount Sinai Medical Center the court recognized an exception when the application of the new law would be unfair. In the case now before me, the application was filed, complete, and the final decision of the agency to grant the regulatory wetland resource management permit was made before the concurrent review rules took effect. This case does not involve the application of a rule that was subsequently invalidated. The issue of whether an invalid rule should be given effect raises its own unique policy issues. Therefore, the holdings in Mount Sinai Medical Center and Central Florida Regional Hospital are not directly applicable. I am guided by the fact in both Lavernia and Mount Sinai Medical Center the court recognized an exception when the application of the new law would be unfair. I note that even though this administrative proceeding is a de novo determination of the final agency action,2 it would be fundamentally unfair to the applicant to change the substantive rules of the game to "raise the bar" after an application is complete, and even more so after a final agency decision on the application is made within the 90-day timeframe allowed by section 120.60. Therefore, I conclude that the concurrent review rules do not apply to this case. In view of all of the above, I find and conclude that the ALJ's conclusion that the concurrent review provisions apply to these applications is contrary to the ALJ's own findings, is not supported in the record by competent substantial evidence, and is erroneous as a matter of law. Based on my review of the applicable case law, on the findings that the application was filed on November 28, 1994, and on the fact that the Department's intent to issue was noticed on June 7, 1995, and based on the official history notes of rules 18-21.00401 and 62-343.075 showing an effective date of October 12, 1995, I find that my substituted conclusion that the concurrent review rules do not apply is as reasonable, or more reasonable, as the rejected conclusion of law. Therefore, I reject the ALJ's finding and conclusions of law that the concurrent review provisions of section 373.427 of the Florida Statutes and rules 18-21.00401 and 62-343.075 of the Florida Administrative Code apply to these applications. Accordingly, I must reject the recommendation that the wetland resource management permit be denied. Although the law as interpreted by this order requires that the regulatory permit be issued even though the proprietary consent of use is denied, I do note that the issuance of the permit will be of little avail to Secret Oaks because it cannot build the dock without the consent of use, which is denied by this order. Rulings on the Exceptions of the Parlatos Parlatos' Exceptions Regarding the Wetland Resource Management Permit The Parlatos filed two exceptions concerning the wetland resource management permit. Parlatos' first exception disputes the ALJ's Finding of Fact No. 5 that before the Parlatos purchased Lot 10, the developer of Secret Oaks had recorded a Declaration, Grant of Easements, Assessments [sic] for the Secret Oaks subdivision. The Parlatos assert that the Declaration was recorded on April 10, 1991 [sic], and that the Parlatos purchased the lot on an earlier date. The Parlatos do not cite to the record in support of their contention that they purchased the lot before the Declaration was recorded. Parlatos' Exhibit No. 6 was admitted into evidence and is a partial summary judgment in Secret Oaks Owners Association v. Parlato, Case No. CA 92-692, Seventh Judicial Circuit (December 29, 1992) (attached as an exhibit to the Recommended Order). Paragraph 3 of the partial summary judgment states that the Declaration was recorded on April 10, 1990.3 Paragraphs 7 and 8 of the partial summary judgment state that the Parlatos were fully aware of the other lot owners' right [under the declaration] to use the [existing] dock before they purchased Lot 10. Also attached as an exhibit to the Recommended Order is a declaratory judgment in the same case, Secret Oaks Owners Association v. Parlato, Case No. CA 92-692, Seventh Judicial Circuit (March 31, 1994). That order states the developer of Secret Oaks signed and delivered a warranty deed for Lot 10 to the Parlatos on March 13, 1991. The order further states that the deed to the Parlatos was recorded on April 13, 1991. Accordingly, the record contains competent substantial evidence in support of Finding of Fact No. 5. Therefore, this exception is denied. Parlatos second exception disputes the conclusion of law in paragraph 56 of the Recommended Order that Secret Oaks has provided reasonable assurance that the project is not contrary to the public interest "as required by section 373.414" of the Florida Statutes. The Parlatos contend that Secret Oaks has not provided reasonable assurance that the dock will not be used for mooring an excessive number of boats, and therefore that reasonable assurance has not been provided that there will not be unacceptable impacts to grassbeds, manatees, and other environmental resources in the area. The Parlatos contend that the railing along the dock will not prevent such excessive use and consequent harm to the resources. The Parlatos do not take exception to the ALJ's Findings of Fact Nos. 17-20 and 25-31 wherein the ALJ found that there would be no adverse impact to manatees; no adverse impact to seagrass beds, that handrails would discourage boaters from mooring in those places where handrails were placed; that the pier would be elevated to five feet above mean high water to discourage excessive mooring of boats; that there would be no long-term adverse impacts to water quality; that short-term turbidity impacts would be mitigated; that there would be minimal impacts on biological diversity; that there would be no adverse effect on public health, safety, or welfare; that the project will not have an adverse effect on the property of others; and that there would be no adverse impact on navigation. Although, as noted above, I am not bound by the ALJ's conclusions of law, in view of the above findings, to which the Parlatos take no exception, I find the ALJ's conclusion of law that Secret Oaks has provided reasonable assurance that the project is not contrary to the public interest is reasonable. Accordingly, I will not disturb that conclusion of law. The exception is denied. Parlatos' Exceptions Regarding the Consent of Use The Parlatos filed four exceptions concerning the consent of use. Parlatos' first exception disputes the ALJ's conclusion of law in paragraph 66 that, for the purpose of deciding whether Secret Oaks should be granted a consent of use to build a dock from its easement, Secret Oaks should be assumed to have no proprietary right to use the existing dock on Parlatos' Lot No. 10. The Parlatos contend that because Secret Oaks asserted that it has a right to use the existing dock on Lot 10 in a petition for an administrative hearing in another case,4 it should be assumed that Secret Oaks has such a right for the purpose of determining whether the present application for another dock is "no more than the minimum length and size necessary to provide reasonable access to navigable water" as required to qualify for a consent of use under rule 18-21.005(1)(a) 1. Even if there was merit in Parlatos' assertion -- which I need not decide -- it is contrary to Finding of Fact No. 15 to which the Parlatos take no exception and must therefore be bound. See, e.g, Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). I do note that the partial summary judgment and the declaratory judgment in Secret Oaks Owners Association v. Parli to (Case No. CA 92-692, Seventh Judicial Circuit) noted above, held that Secret Oaks has an easement right along a 20 foot wide strip perpendicular to the shore line where it once connected to a now removed "ancillary" dock structure that provided access to the Parlato dock. The court also held that Secret Oaks has an easement right to be on the Parlato dock, but that Secret Oaks has no easement right to cross Lot 10 from the 20 foot easement strip to the location of the existing dock. Because of the gap that now exists between the 20 foot easement strip and the location of the existing Parlato dock, and because the declaratory judgment held that members of Secret Oaks have no right to cross Lot 10 to get to the Parlato dock, I cannot agree that the existence of the Parlato dock should be considered in determining whether Secret Oaks proposed dock is "no more than the minimum length and size necessary to provide reasonable access to navigable water." Accordingly, the exception is denied. Parlatos' second exception disputes the ALJ's conclusion of law in paragraph 80 that the dock proposed by Secret Oaks is eligible for a consent of use. The Parlatos contend that When state submerged lands would be preempted by a proposed dock, it cannot be authorized by consent of use [sic]. Under the existing policy of DEP, a dock that preempts an area of state waters can only be authorized under a submerged lands lease. This contention has no merit. Rules 18-21.005(1)(a)1. and 2 of the Florida Administrative Code expressly authorize consents of use for docks under certain conditions, and all docks preempt some sovereign submerged lands. Rule 18-21.003(38) defines "preempted area" as follows: "Preempted area" means the area of sovereignty lands from which the traditional public uses have been or would be excluded to any extent by an activity. The area may include, but is not limited to, the sovereignty lands occupied by the docks and other structures, the area between the docks and out to any mooring pilings, and the area between the docks and the shoreline. If the activity is required to be moved waterward to avoid dredging or disturbance of nearshore habitat, a reasonable portion of the nearshore area that is not impacted by dredging or structures shall not be included in the preempted area. Fla. Admin. Code R. 18-21.003(38) (1999) (emphasis added). Clearly, all docks have a preempted area associated with them, and a consent of use is expressly authorized for some docks under rules 18-21.005(1)(a)1 and 2.5 Accordingly, the exception is denied. Parlatos' third exception disputes the ALJ's conclusion of law in paragraph 81 that the project is not contrary to the public interest under chapter 18-21 of the Florida Administrative Code. The Parlatos contend that Secret Oaks has insufficient financial resources to be financially responsible for the dock, and that should make granting the consent of use contrary to the public interest. Except for special event leases under rule 18- 21.0082, which is not applicable to this case, there is no provision in chapter 18-21 for consideration of financial responsibility in determining whether a consent of use or other proprietary authorization should be granted. Accordingly, this exception is denied. Parlatos' fourth exception disputes the ALJ's conclusion of law in paragraph 84 that the project will not result in significant adverse impacts to sovereign submerged lands. The Parlatos contend that this conclusion is erroneous because of the likelihood of improper mooring along the dock. This exemption is rejected for the same reasons as stated for the second exemption in Part II. A above. Rulings on Exceptions of Secret Oaks Secret Oaks filed six exceptions. Secret Oaks' first exception disputes the conclusion in paragraph 65 that "[o]nly the Parlatos have DEP permission to use that [the existing] dock." Secret Oaks correctly notes that a Department permit under chapter 62312 to construct a dock does not regulate who may use the dock -- it is merely an authorization to construct the dock. To the extent the ALJ's paragraph 65 states otherwise, the exception is granted. The granting of this exception does not alter the outcome of this proceeding. Secret Oaks' second exception disputes the statement in paragraph 66 that "it is not assumed that the Association has any proprietary rights in the dock already in place at Lot 10." Secret Oaks argues that the Department lacks jurisdiction to determine ownership interests in either riparian areas or docks. It is clear from paragraph 56 of the Recommended Order that the ALJ was not implying that the Department had jurisdiction to adjudicate ownership rights in property. As discussed in the response to the exceptions of the Parlatos, Part II.B above, the ALJ's comment relates to whether the proposed dock is "no more than the minimum length and size necessary to provide reasonable access to navigable water" for the purposes of rule 18- 21.005(1)(a)1. Accordingly, the exception is denied. Secret Oaks' third exception disputes the finding in paragraph 75 that the proposed dock would create a preempted area between the proposed dock and the existing dock on Lot 10. Although this statement is in the section of the Recommended Order designated conclusions of law, I agree that it is a finding of fact and should be treated as such. See J. J. Taylor Co. v. Department of Business and Professional Regulation, 724 So.2d 192 (Fla. 1st DCA 1999) (a statement that is a finding of fact must be treated as such regardless of whether it is characterized as a conclusion of law by the ALJ); accord Battaglia Properties v. Land and Water Adj. Commission, 629 So.2d 161, 168 (Fla. 5th DCA 1994). Secret Oaks claims that there is no preempted area between the docks because the proposed dock is limited to one slip, and because members of Secret Oaks have the right to use the existing dock on Lot 10. Secret Oaks misconstrues the meaning and purpose of the preempted area rule provision. The purpose of the preempted area provision is to take into consideration that the general public, for which the sovereign submerged lands are held in public trust, will either lose or suffer a reduction in ability to access the preempted area of sovereign submerged lands. Therefore, it is not determinative whether the docks have one slip or whether Secret Oaks has access rights to both docks. The issue is to what degree is the general public's use of the sovereign submerged lands impaired by the docks. Thus, as noted above, rule 18-21.003(38) defines preempted area as "Preempted area" means the area of sovereignty lands from which the traditional public uses have been or would be excluded to any extent by an activity. The area may include, but is not limited to, the sovereignty lands occupied by the docks and other structures, the area between the docks and out to any mooring pilings, and the area between the docks and the shoreline. If the activity is required to be moved waterward to avoid dredging or disturbance of nearshore habitat, a reasonable portion of the nearshore area that is not impacted by dredging or structures shall not be included in the preempted area. Fla. Admin. Code R. 18-21.003(38) (1999) (emphasis added). If the docks are close enough so that traditional use by the general public would be excluded to any extent, there will be a preempted area between the docks regardless of whether Secret Oaks has access rights to both docks. Accordingly, the exception is denied. Secret Oaks' fourth and fifth exceptions dispute all of paragraph 86 in the Recommended Order. Secret Oaks contends that the Department has no jurisdiction to determine property rights, and that because a court has determined that Secret Oaks has an easement across Lot 10 to the water, the Department cannot take into consideration the provision of rule 18-21.004(3)(c) that the proposed dock may "not restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners." I disagree. In Secret Oaks Owners' Association v. Department of Environmental Protection, 704 So.2d 702 (Fla. 5th DCA 1998), the court held that Secret Oaks, by virtue of its easement, had sufficient title interest under rule 18-21.004(3)(b) "for the purpose of seeking permission to construct a dock." Id., 704 So.2d at 703, 706. The court did not hold that when seeking permission to construct a dock Secret Oaks did not have to comply with the provisions of 18-21 concerning proprietary approval for the construction of a dock on sovereign submerged lands. As noted above, rule 18- 21.004(3)(c) requires the Department to consider whether a proposed structure will "restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners." I agree with the statement in paragraph 56 of the Recommended Order that this administrative proceeding cannot adjudicate real property disputes between Secret Oaks and the Parlatos. See Buckley v. Dept. of Health and Rehabilitative Services, 516 So.2d 1008, 1009 (Fla. 1st DCA 1988); Miller v. Dept. of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987); Hageman v. Carter, 17 F.A.L.R. 3684, 3690 (Fla. DEP 1995); Powell v. Alabama Electric Cooperative,15 F.A.L.R. 325, 326 (Fla. DER 1992). However, absent a controlling court adjudication regarding riparian rights lines and whether a proposed structure would interfere with those riparian rights, the Department is required under rule 18-21.004(3) to consider whether a proposed structure will restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners. Accordingly, I reject these exceptions. Secret Oaks sixth exception disputes the recommendation that the wetland resource management permit be denied. I accept this exception for the reasons stated in Parts I and II.A above, and reject the recommendation that the wetland resource management permit be denied. Rulings or' Exceptions of the Department The Department's first exception objects to Findings of Fact No. 2 and Conclusions of Law Nos. 62, 71, 77, 87, and 79 insofar as they relate to the ALJ's finding and conclusion that the concurrent review provisions of section 373.427 and rules 18- 21.00401 and 62-343.075 are applicable to these applications. For the reasons stated in Part I above, this exception is accepted, and the above findings and conclusions of law are modified accordingly. The Department's second exception takes issue with the statement in Conclusion of Law No. 79 that the Department is authorized under rule 18-21.0051 to consider Secret Oaks' request for a consent of use to use sovereign submerged lands. Department's counsel below notes that rule 18-21.0051 has an effective date of October 12, 1995. Section 253.002(2) of the Florida Statutes expressly notes that -- at the time of the enactment of this provision in 1994 -- the Board of Trustees of the Internal Improvement Trust Fund had certain uncodified delegations to the Department to take actions on requests for authorizations to use sovereign submerged lands. Section 253.002(2) directed that these delegations be codified by December 31, 1995. Rule 18-21.0051 codified these delegations and demonstrates that, prior to the adoption of rule 18-21.0051, the Department had delegated authority to act on this application for a consent of use. Furthermore, the delegation under rule 18-21.0051 is only procedural. Applying the rule to these applications does not affect the substantive rights of the applicant and is not unfair. Therefore, in this de novo administrative proceeding, the application of rule 18-21.0051 at the time of entry of this final order is both appropriate and authorized. See generally Lavernia v. Department of Professional Regulation, 616 So.2d 53 (Fla. 1st DCA 1993). The exception is therefore accepted in part and rejected in part. Conclusion The consent of use must be denied because the proposed dock would restrict or otherwise infringe on the riparian rights of adjacent upland riparian owners in contravention of rule 18- 21.004(3)(c). Because the application for the dock meets all the permitting criteria for a wetland resource management permit, and because the concurrent review provisions of section 373.427 and rules 18-21.00401 and 62-343.075 do not apply, the wetland resource permit must be issued. ACCORDINGLY IT IS ORDERED THAT: Except as otherwise stated in this final order, the Recommended Order is adopted and incorporated herein by reference. The application for a proprietary consent of use for sovereign submerged lands in OGC Case No. 98-2669; DOAH Case No. 98-5190, is DENIED. The regulatory wetland resource management (dredge and fill) permit as described in the intent to issue noticed on June 7, 1995, DEP File No. 552613202, in OGC Case No. 95-1341; DOAH Case No. 98-5290 is APPROVED, and the Department staff is directed to issue the permit forthwith. DONE AND ORDERED this 24th day of March 2000. DAVID B. STRUHS Secretary 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Notice of Rights Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department.
The Issue The issue is whether Walnut Creek's decision to award a landscaping contract to Turf Management is arbitrary or capricious.
Findings Of Fact Effective June 7, 2007, by Ordinance No. 1339, The City of Pembroke Pines, Florida established the Walnut Creek Community Development District (Walnut Creek). By an invitation to bid, entitled Bid Specifications for Landscape Maintenance of Rights-of-Way, Water Management Areas and Similar Planting Areas within the District," dated June 2007 (ITB), Walnut Creek announced that it would accept bids for the work described in the ITB. ITB Section 5 describes the work, which is to furnish all labor and materials "to perform complete maintenance of landscape area " ITB Section 5 details maintenance requirements, such as a mowing height of three inches, the use of rotary mowers with sharp blades, 40 mowings of Floratam grass, all mowing to take place on Thursdays, and specified fertilization schedules based on the type of grass being fertilized. Two ITB provisions were of particular interest at the hearing. ITB Section 10.b.5 addresses annuals and provides: "Annuals shall be replaced three times during the year in the months of October, February and June . . . ." ITB Section 12 provides: "Contractor shall respond to District Resident Project Representative within twenty-four (24) hours to remove storm damage debris." The ITB bid form, on which bidders were to write their prices, contradicts the statement in ITB Section 10.b.5 because it contains a line for "4[-inch] annuals 4 x a year." At a mandatory prebid conference conducted prior to the deadline for submitting bids, a consultant retained by Walnut Creek to assist in the bid process clarified that the contract requires four plantings of 2000 annuals annually, for a total of 8000 annuals per year. Although Walnut Creek did not memorialize this clarification that was announced at the prebid conference, any resulting confusion among prospective bidders has proved to be immaterial. A third ITB provision is also of especial importance. ITB Section 1.08 requires that bidders enclose with their bids a description of the educational background and professional experience of owners, supervisors, and key employees; a list of "similar contracts for landscape maintenance now held by your firm" (with a definition of "similar contracts" as "residential communities, similar or greater in size, the nature, extent and variety of landscaping installed and maintained within the community, to that of Walnut Creek, with annual contract amounts at or in excess of $200,000") and customer contacts for these contracts; an undertaking to assign only "fully trained personnel" to the contract; and other "satisfactory evidence" of "experience in like work" and "the necessary organization, capital, equipment and machinery to complete the work to the satisfaction of the Owner " By written Addendum, Walnut Creek clarified the requirement of "similar contracts" by limiting the comparable landscape maintenance service to "residential or mixed-use developments of similar size to the District or greater and which require a similar level of maintenance and maintenance of plant and landscaping material similar to [that] found on District property " ITB Section 1.10 provides that Walnut Creek reserves the right to reject any and all bids, "with or without cause," and to waive technical errors and informalities." ITB Section 1.11 provides that Walnut Creek will award the contract, if it is awarded, to the: lowest responsive and responsible high quality Bidder whose qualifications indicate the award will be in the best interest of the Owner and whose proposal shall comply with the requirements of these specifications. In no case will the award be made until all necessary investigations have been made into the responsibility of the Bidder to do the work and to have the necessary organization, capital and equipment to carry out the provisions of the contract to the satisfaction of the Owner . . . . ITB Section 2.07(3) states: "In the event that there is a discrepancy on the Proposal Form due to the unit price extensions or additions, the corrected extensions and additions shall be used to determine the project bid amount." ITB Section 2.14.3 provides: The Contract will be awarded to the lowest responsive and responsible high quality Bidder that best serves the interest of the Owner. The following elements, in addition to those noted in the Contract Documents, will be considered: Whether each Bidder: Maintains a permanent place of business; and Has adequate plant, machinery[,] manpower and equipment, and [sic] to do the Work properly, expeditiously and in a high quality manner; and Has suitable financial backing status to allow him to meet the obligations as outlined in and incident to the Work; and Has successful contractual and technical experience in Work in Similar Contracts, size, and scope in Broward County and/or surrounding areas; and Holds all valid necessary state, county, and local licenses or certificates of competency covering all operations of the Bidder and the Work required under the Contract Documents[; and] Has evidence that all the Subcontractors he proposes to use hold all valid necessary state, county and local licenses or certificates of competency covering all operations of said Subcontractors. The amount of Work each Bidder intends to perform with his own organization and the amount of Work he intends to Subcontract. The qualifications of the Subcontractors that the Bidder proposes to use. The Owner also reserves the right to reject the Proposal of a Bidder who has previously failed to perform properly or to complete contracts of a similar nature on and in a competent and high quality manner. ITB Section 2.18 states that the term of the contract will be three years. ITB Section 2.19 provides: The Contractor shall at all times enforce strict discipline and good order among his employees and the employees of any subcontractors, and shall not employ on the Work an unfit person or anyone not skilled in the Work assigned to him. . . . At present, Turf Management has the contract with Walnut Creek to maintain the landscaping under its jurisdiction and has the contract with the Walnut Creek homeowners' association, which is a separate entity, to maintain the landscaping under its jurisdiction. These two areas often exist side-by-side throughout the development. For about four years, Turf Management has had the contract with Walnut Creek, which was unaware, until the subject procurement, of the legal requirement that it obtain these services by competitive bidding. There is no dispute that all bidders timely submitted their bids. The four apparent lowest bids received by Walnut Creek were, in order from lowest to highest, Landscape Service Professionals, Mainguy, Superior Landscaping, and Turf Management. Landscape Service Professionals did not include with its bid any similar contracts, so its bid was found to be nonresponsive. Landscape Service Professionals has not protested the proposed award or intervened in these cases, so its bid is not further considered in this recommended order. On its face, the bid of Superior failed to include references to similar contracts. The references in Superior's bid are an impressive array of governmental agencies and public entities, as well as a single Marriott hotel, but not one is a residential development of any kind. This was a material variance from the ITB that rendered Superior's bid unresponsive. The bid of Turf Management includes one similar contract--that of Walnut Creek. However, of the remaining four references, two are clearly commercial or industrial (Best Equipment and Hugh[es?] Supply), one is unclear as to its nature but does not appear to be residential ("Lesco"), and one is residential, but with no indication as to size ("Pembroke Isles HOA [Homeowners Association]"). The issue of the size of Walnut Creek emerges when considering Mainguy's bid, as Superior's bid contained no residential references and the only potentially similar contract in Turf Management's bid was its existing Walnut Creek contract. Nothing in the ITB supplies the size of Walnut Creek, by population or area to be landscaped. There is an incidental statement by a Board member, as noted below, of 985 homeowners in Walnut Creek. This fact is generally reinforced by the map of Walnut Creek that is ALJ Exhibit 1, which depicts approximately 893 lots. The bid of Mainguy includes one similar contract--that of Inverrary Association, which represents over 8000 units and 17,000 residents. However, of the remaining 12 references, three are commercial (Broward Mall, Lakeside Office Center, and Town Center at Boca Raton) and nine are residential, but either smaller than Walnut Creek (Versailles at Wellington with 450 single family homes and Victoria Grove with 617 single-family homes) or of an unspecified size. Except for some mention of Superior's failure to identify similar contracts in its bid, neither the Board during its deliberations nor the parties and witnesses during the hearing addressed these variances from the ITB, which clearly requires "similar contracts," implying more than one. However, there is a considerable difference between Superior's bid, which, on its face, cites no similar contracts, and the bids of Turf Management and Mainguy, which, on their face, cite one such contract each. Further, the consultant checked Mainguy's references prior to the Board meetings and found similar "contracts." Under the circumstances, the failure of these two bids to cite more than one similar contract were minor irregularities or technical errors that Walnut Creek could, and did, waive. The errors themselves and their correction conferred no competitive advantage on Mainguy and Turf Management. The bid forms submitted by Mainguy, Superior, and Turf Management were also flawed in their treatment of annuals. Mainguy's bid form showed a unit price of $1.75 for the first two years, but multiplied this unit price by 6000 plants each year; for the third year, the total suggested that Mainguy raised the unit price to about $1.79 per plant, which, again, it multiplied by only 6000 plants. Superior's bid form showed a unit price of $2.25 the first year, $2.35 the second year, and $2.45 the third year, but multiplied each unit price by only 2000 plants for each year. Turf Management's bid showed a unit price of $1.25 for the first year, $1.31 for the second year, and $1.38 for the third year, but never multiplied these unit prices by anything. Pursuant to ITB Section 2.07(3), the consultant tabulated the bids by extending the unit prices proposed by each bidder (and correcting a mistake in arithmetic by Superior). As a result, Mainguy's bid was $1,246,494, Superior's bid was $1,249,318, and Turf Management's bid was $1,283,789 Ignoring its own flaw in extending the annual unit prices, Superior cited Mainguy's failure to extend unit prices of annuals as the reason why Superior, as the second lowest bidder, should be awarded the contract rather than Mainguy. Under the circumstances of these cases, however, the errors or omissions of each bidder in failing to extend the unit prices of the annuals correctly were minor irregularities or technical errors that Walnut Creek could, and did, waive. The errors themselves and their correction conferred no competitive advantage on any of the bidders. After the bids had been tabulated, the Board of Supervisors of Walnut Creek (Board) met on July 24, 2007, to conduct its business, which included consideration of the subject bids. At the start of the meeting, the Board recognized their consultant, who recommended that, based on the bids, the Board select Mainguy. The consultant stated that he had contacted two references involving similar contracts, and both customers were satisfied with their landscape maintenance service. At the time, the consultant had not checked the contracts of Superior because Mainguy was the lowest bid. (The consultant testified that, after both Board meetings, he contacted the references of Superior and found that the contracts were not similar; as noted above, it was clear from the face of the Superior bid that the cited contracts could not be similar because none of them was residential in nature.) The minutes of the ensuing discussion at the July 24 Board meeting are Joint Exhibit 9. The discussion covers a wide range of issues. A brief discussion concerned how certain bidders had combined items, but this did not seem to cause any Board member a serious problem, at least until just prior to the award decision, as noted below. The first serious concern was raised by Board member Gross, who said he had a "problem" with bringing another company in to do the landscape maintenance when Turf Management would continue to do the same work for the adjacent homeowners' association property. When the District Manager, who is employed by the same company that employs the consultant, stated that the law required Walnut Creek to go to bid for this work and then to take the lowest bid from a qualified bidder, Board member Gross replied that the cost difference between the Mainguy and Turf Management was $13,000 between "who we prefer to keep and the people who you are recommending." In fact, the annual difference is a little less than $13,000, and the difference over the three-year term of the contract is $37,272. Board member Ross then asked, "the final decision is ours to make?" Walnut Creek counsel replied, "it is but since this is a bidding process, you need to have a rationale for selecting for instance Turf Management over the three other bidders . . .." Board member Gross responded, "Turf Management has been here for six years, we're extremely pleased with their service, we know what we're getting, we know the people who are here, so for $13,000 a year, that's why I'm trying to understand what we have, what can we do, like I said, I don't want to have to bring another company, crew and cross over." After some more discussion, Walnut Creek counsel summarized by noting that they had heard some explanations as to why the bids of Landscape Service Professionals and Superior were not responsive, and, if the Board preferred, they could defer consideration of the matter until the next meeting, at which Mainguy and Turf Management could make presentations. Board member DeFalco then stated that they had just experienced a year of poor landscaping due to the poor performance of a former management company unrelated to these cases, and they did not want to subject the 985 homeowners to another situation like that. The consultant assured the Board member that that was why the ITB and contract were so detailed and agreed with the attorney's suggestion that the Board ask Mainguy and Turf Management to make presentations. After a brief discussion, in which Board member DeFalco expressed concern about having strangers in their property, Board member Gross moved to invite representatives from Mainguy and Turf Management come to the next Board meeting and submit to interviews. The motion passed. The minutes of the next meeting of the Board, on August 7, 2007, are Joint Exhibit 10. The Mainguy representative, who is president and owner of the company, spoke first and gave a short history of his company. In response to a question from Board member Gross about the reasonableness of a bid item regarding tree trimming, the Mainguy representative explained that they do substantial work in tree-trimming, but try not to overbid this item because it is an expensive workers- compensation classification. He later added that palm trimming was under a different category in the bid form. The next question, also from Board member Gross, concerned hurricane response and the presence of two landscape maintenance companies in the development. Halving the difference in cost to $20,000 on a $1.2 million contract, Board member Gross asked what Mainguy's response time would be to check out the development after a hurricane and why should residents have two companies present after the hurricane, especially when Turf Management had been out within four hours after the storm to clear streets so residents could operate their vehicles. The Mainguy representative replied somewhat unresponsively, stressing the quality of the general work that they do. Given a second chance to answer the hurricane-response question (or perhaps because he had been interrupted before finishing his response), the Mainguy representative said that, in advance of each storm season, they ask each customer to instruct them as to whether it wants Mainguy to respond automatically to storms and to provide some financial parameters for the cost of the debris-clearing work that it wants Mainguy to perform. The Mainguy representative stated: "As soon as the wind ceases, you're obviously extraordinarily top priority to us and our shop is about 20 minutes from here." Board member Gross followed up by asking the Mainguy representative how they would gear up, in terms of personnel, to service the Walnut Creek contract. The Mainguy representative said that they would not have to hire significantly, but existing ground crews would handle grounds maintenance, and established trimming crews would handle the tree trimming. Clearly trying to show that the employees to be assigned to Walnut Creek would be trained and experienced because he would draw them from his existing staff, the Mainguy representative assured the Board that Mainguy would "not be placing any new crews on your property, that is not our intention, nor do we have a need to do so." In response to a question from Board member Ross about hurricane response time, the Mainguy representative stated that they would rank customers based on the size of the contract, and Walnut Creek's contract would be of such a magnitude that it would justify an "immediate response." Board member Ross asked whether Mainguy would need to hire additional employees to respond timely to all of its customers, and the Mainguy representative replied that they had sufficient personnel and resources to handle the Walnut Creek property, although it was possible that they would add a small trim crew. Board member DeFalco restated the concern about having two companies onsite and asked what would happen if a tree fell half in Walnut Creek property and half in a resident's property. She added that, in the past, one company had both accounts and just removed the tree without issues. The Mainguy representative responded by observing there was a billing question, perhaps implying that such a distinction would exist whether one or two companies serviced the development. But Board member Gross replied that there was still a question, if there are two companies, about who should be called. Board member DeFalco agreed with Board member Gross, adding that she did not want two lawn companies arguing over whose responsibility it is to remove fallen trees. After the consultant suggested that there was a logical way to allocate these responsibilities, the Mainguy representative added that it would be their intent to try to win the homeowners' association business and they would be highly motivated. Board member Gross then stated that Mainguy did not have its own mulching company, although he conceded that none of the bidders did, but asked whether Mainguy's bid for mulching was just an "estimated bid, a guesstimate for the property?" The Mainguy representative replied that it was a firm bid from a mulching firm. A representative of the property management company then asked the Mainguy representative if they had any contracts where there were two landscape maintenance companies onsite. The Mainguy representative said they did and it was not uncommon. The consultant asked if Mainguy was familiar with FEMA reimbursement procedures, and the representative said they were, although he admitted that they had not participated in a FEMA reimbursement. In response to an irrigation question from Board member Gross, the Mainguy representative said that they were familiar with the requirements and had been at the first site inspection. This concluded the Mainguy presentation. The Turf Management representative, who was the president and owner of the company, gave a brief history of his company, its longstanding employees, and factors that set it apart from other companies--that is, the presence of a certified arborist and landscape designer, experience in fertilizer applications and storm debris cleanup, and an outside supervisor with whom Walnut Creek has worked for most, if not all, of the four years that Turf Management had had the contract. After the Turf Management representative had answered a few questions, counsel to the Board stated that the Board could find that Turf Management was the lowest responsible bidder, as long as they had "rational reasons." Counsel suggested that, if that was what the Board wanted to do, someone should make a motion and "state for the record what you think some of those reasons are that you like to go forward with Turf Management as opposed to Mainguy " Board member Munju, newly appointed to the Board at that meeting, spoke first and said that he has seen the job done by Turf Management, especially after Hurricane Wilma, when they responded very quickly while the rest of the city struggled with storm debris. Because the price difference was small, he preferred Turf Management. Board member Gross spoke next and agreed with Board member Munju. He said that he found Mainguy's treatment of palm maintenance confusing, although it does not appear that he was actually confused as to this part of the Mainguy bid, nor was there anything confusing about it. Mainguy's bid clearly included a reasonable cost for trimming and maintaining the palm trees. Next, the consultant spoke, again naming Mainguy as the most qualified responsible bidder and suggesting that the level of comfort that Board members had with Turf Management is not what Walnut Creek would be paying for. The District Manager spoke next, reminding the Board that the difference between the two bids was about $40,000 over three years. Counsel then confirmed with them that they had made no substantive changes when tabulating the bids. At this point, Board member Ross moved to table the question until they could visit some of Mainguy's properties. Board member Gross said that he was not going to Palm Beach County to see their work. After a comment by the District Manager, Board member Gross said, "There's a motion on the floor right now. You made a motion to approve who?" Board member Munju replied, "Yes, I made a motion to approve Turf Management." Board member Gross answered, "Ok." Without further discussion, the motion carried unanimously to accept the bid and proposal of Turf Management. The minutes reveal that, in response to the advice of its counsel to identify "some" of the reasons for selecting Turf Management over Mainguy, the Board identified two reasons: 1) Turf Management's demonstrated good record in responding to storm damage and 2) a perceived defect in the Mainguy bid as to palm maintenance. Walnut Creek's proposed recommended order identifies the Board's grounds for rejecting the Mainguy bid as: 1) Mainguy could not meet its contractual obligations because it did not intend to hire additional employees; 2) Mainguy did not have sufficient experience in responding to storms and processing claims through FEMA; and 3) two landscape maintenance contractors within the development presented the potential for conflicts and an adverse impact on the residents. The grounds identified in Walnut Creek's proposed recommended order reflect objections raised at various points during the Board deliberations over the bids, although, except for experience in responding to storms, these objections were not voiced during the brief time that the Board actually discussed the two bids after the presentations and before accepting the Turf Management bid. This Recommended Order addresses all of the objections raised at various times to the Mainguy bid, even though the Board did not raise several of them brief discussion preceding its vote to accept the Turf Management bid. Therefore, the grounds for implicitly rejecting the Mainguy bid are: 1) perceived confusion as to the treatment of palm tree maintenance costs; 2) inadequate staffing due to Mainguy's stated intention not to hire new employees (except possibly a small trim crew); 3) insufficient experience responding to storms and processing FEMA reimbursement claims; and 4) the appearance of a second landscape maintenance contractor on the Walnut Creek property with the potential for conflicts and adverse impacts on the residents. As noted above, the Board's ground for rejecting the Superior bid was that it was unresponsive for its failure to include similar contracts. The consultant testified that he later checked the Superior references and confirmed that the contracts were not similar. Notwithstanding the concession by Turf Management in its proposed recommended order that all three bidders were qualified to perform the work, the Board properly concluded that Superior's bid, on its face, was nonresponsive and implicitly rejected it for this reason. The Mainguy bid properly accounted for the expenses associated with maintaining palm trees, and the Mainguy representative clearly explained this fact to the Board. To attempt to justify rejecting the Mainguy bid on this ground is irrational and completely unsupported by the record. It is also irrational and unsupported by the record to reject the Mainguy bid due to the failure of the bid, or the Mainguy representative at the Board meeting, to undertake to hire new employees. The ITB does not require that a bidder hire new employees for this contract. The requirement, in ITB Section 1.08, of trained staff somewhat militates against such a requirement. A bidder may have overstaffed in anticipation of new work or decided to terminate a less profitable contract, if it won the Walnut Creek contract. It is not irrational to prefer a contractor that has substantial experience in responding to storm damage and experience in filing FEMA reimbursement claims. However, the ITB requires neither, although it addresses this subject by requiring only that the contractor respond to Walnut Creek within 24 hours after a storm. Mainguy has accepted this contractual requirement. When asked about it, the Mainguy representative explained, logically enough, that Mainguy could respond quickly because it was located only 20 minutes from Walnut Creek and would respond quickly because the Walnut Creek contract would be a very large one for his company, which would be sufficient motivation to serve Walnut Creek first after a storm has cleared the area. It is not necessary to consider the rationality of preferring that a single contractor serve Walnut Creek and the homeowners' association. The ITB does not contain this requirement, which would limit the potential bidders to one, Turf Management. As noted in the Conclusions of Law, under the present circumstances at least, a requirement of this type by Walnut Creek would essentially permit it to circumvent the statutory requirement to obtain these services by competitive bid. Mainguy and Superior timely protested Walnut Creek's decision to award the contract to Turf Management. Walnut Creek then contracted with the Division of Administrative Hearings to conduct the hearing and issue a recommended order.
Recommendation It is RECOMMENDED that the Walnut Creek Community Development District enter a final order dismissing the protest of Superior Landscaping and Lawn Service, Inc., granting the protest of Mainguy Landscape Services, and taking such further action as is permitted by law. DONE AND ENTERED this 21st day of December, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2007. COPIES FURNISHED: Gerald L. Knight Billing, Cochran, Heath, Lyles Mauro & Anderson, P.A. Post Office Box 21627 Fort Lauderdale, Florida 33335-1627 Michael J. Pawelczyk Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A. 888 Southeast Third Avenue, Suite 301 Fort Lauderdale, Florida 33316 Jeffrey S. Siniawsky Jeffrey S. Siniawsky, P.A. 8551 West Sunrise Boulevard, Suite 300 Plantation, Florida 33322 David Waddell Turf Management 12600 Southwest 125th Avenue Miami, Florida 33186 Mark Dearman Dearman & Gerson, P.A. 8551 West Sunrise Boulevard, Suite 300 Plantation, Florida 33322 Eddie Cora Qualified Representative Superior Landscaping and Lawn Service, Inc. Post Office Box 35-0095 Miami, Florida 33135
Findings Of Fact Trees of Florida, Inc. by its president, Jerry K. Rigsby, contacted Everglades Tree and Plant Farm, Inc. to purchase 30 live oak trees. Rigsby saw the size trees he wanted and requested Petitioner to sell him those trees. Petitioner refused to sell the trees desired because they had not been root pruned. Some 60 to 90 days to recover from root pruning are required before trees can be safely uprooted and replanted. Other live oaks that had been sold by Petitioner to another company, Swanson and Coleman, were on the premises, had been root pruned, and Respondent inquired if it could buy those trees. Petitioner contacted Swanson and Coleman who did not need early delivery and Petitioner told Respondent it would sell Respondent 30 of those trees on a cash only basis. Respondent agreed and sent his truck to pick up the trees. They had not yet been dug and Respondent was advised it would be several days before the trees could be loaded. When the trees were dug, Respondent appeared with $2000 cash and a check for the $1360 balance owed. Despite telling Rigsby the deal was strictly for cash, Beaty accepted the check and Respondent took away the trees. Respondent stopped payment on the check and complained to Petitioner that the trees were below the 16 to 18 feet height Respondent had contracted for. Petitioner had its bank check with the payor bank on whom the check was written and was advised Respondent had insufficient funds on deposit to honor the $1360 check. After some negotiations between the parties, Petitioner agreed to take back the 30 trees and refund Respondent's payment if Respondent would replant the trees and they all lived. Respondent never returned any trees or paid the $1360 balance claimed by Petitioner.
