The Issue The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.
Findings Of Fact Background The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines." In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of 186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”). The proposed dock will terminate where the water will be four feet deep at mean low water. Navigating in and Near the Tidal Creek To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water. Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is 1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide. Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide. Therefore, the tidal creek (with a bottom elevation of 1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
Findings Of Fact On August 1, 1979, Petitioner issued a Notice to Show Cause to Respondent, which notice alleged, inter alia, that Respondent had violated Chapter 498, Florida Statutes, in failing to complete, as promised, certain access roads in Miami Green Acres and therefore material change had been effected without prior notification to and approval by the Petitioner. After the conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes, a Hearing Officer of the Division of Administrative Hearings issued a Recommended Order, which found, inter alia, that Respondent's Public Offering Statement promised that graded access roads within Miami Green Acres Unit II would be completed at the time deeds were required to be delivered to purchasers; that the Respondent did not adhere to its representations; and that the lack of graded access roads in Miami Green Acres Unit II constituted a material change, alteration, or modification of Respondent's offering for which no notice to the Petitioner had been given and no approval from the Petitioner had been obtained. By Final Order entered June 4, 1980, Petitioner adopted that Recommended Order and concluded that Respondent was guilty of the statutory violations alleged relating to the noncompletion of promised roads. Among its other mandates, that Final Order required that: the Respondent shall submit to the Petitioner within thirty (30) days of the date of this Order a new estimate from a duly licensed engineer of the cost of constructing all roads promised in the Florida Public Offering Statement; the Respondent shall enter into an improvement trust account based upon the estimated cost of completion of the pro- mised road work within sixty (60) days of the date of this Order . . . Miami Green Acres Unit II is a subdivision registered with the Petitioner pursuant to Chapter 498, Florida Statutes. As part of that registration, Respondent's Public Offering Statement promised lot purchasers completion of graded access roads by the time a deed is delivered to the purchasers. Warranty deeds have been delivered to purchasers and have been recorded for a substantial number of lots in Miami Green Acres Unit II, which does not have completed roads as promised in said Public Offering Statement. Subsequent to the June 4, 1980 Final Order, Respondent submitted to Petitioner an engineer's estimate of the cost to complete improvements in Miami Green Acres Unit II. That cost estimate did not include any cost of obtaining any required construction permits necessary for completion of the developer promised roads. That information has still not been provided. Subsequent to the June 4, 1980 Final Order, Petitioner and Respondent entered into negotiations for the establishment of the required improvement trust account based upon the partial cost of completion contained within the engineer's estimate. Respondent failed to accept any of Petitioner's proposals for funding that trust account, including proposals for full funding and proposals for installment payments. No improvement trust account has been established or funded for the road improvements in Miami Green Acres Unit II. In order to construct the promised roads, certain permits from the Army Corps of Engineers are required. Respondent filed an application for the necessary permits. The Corps deemed Respondent's application to be incomplete and requested additional information. Respondent declined to provide that information, and Respondent's application was deactivated by the Corps. No reasonable effort was made by Respondent to obtain permits for the promised roads, and Respondent's inability to obtain those permits was caused solely by Respondent's lack of diligence in pursuing the permits. In July, 1981, a cease and desist order was issued by the Army Corps of Engineers. Pursuant thereto, no road construction can be done in Miami Green Acres Unit II until the cease and desist order has been lifted and a permit for the work has been obtained. Respondent has made no request to the Corps to have the cease and desist order lifted. Respondent has not applied for permits. The parties have stipulated in their Prehearing Stipulation that no material change approval request has been submitted to the Petitioner by the Respondent for the incomplete improvements in Miami Green Acres Unit II.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing counts (1) and (2) of the Notice to Show Cause due to settlement of those issues; finding Respondent guilty of the allegations contained in counts (3), (4) and (5) of the Notice to Show Cause; requiring Respondent to submit to Petitioner a material change approval request for delay of completion of improvements within 30 days; and suspending Respondent's registration of Miami Green Acres Unit II until such time as (a) a full and complete improvement cost estimate, including the cost of obtaining any construction permits, is filed with the Petitioner, (b) the required improvement trust account is established and funded by the Respondent in accordance with Petitioner's directives, and (c) all improvements promised by Respondent in its Florida Public Offering Statement for Miami Green Acres Unit II are completed. DONE and RECOMMENDED this 17th day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1982. COPIES FURNISHED: Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles S. Domina, Esquire 250 Bird Road, Suite 104 Coral Gables, Florida 33146 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent's statements as set forth in the First Amended Petition to Determine Validity of Agency Statements Defined as Rules are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner alleges that the following constitute agency statements defined as rules but not properly adopted as rules by the District: The District considers a particular parcel of property to be located within a "floodway" within the District's regulatory jurisdiction for Works of the District (WOD) permitting on the basis of the parcel being located within a floodway established pursuant to a currently-approved Federal Emergency Management Agency (FEMA) Flood Insurance Study (FIS). The District will not accept any alternative floodway boundaries that are inconsistent with those established in the FIS unless FEMA confirms that the alternative boundaries are more accurate than those obtained from the existing FIS, and FEMA approves the alternative boundaries through a formal approval process, such as a Letter of Map Revision that also requires local government concurrence. If the District determines the parcel to be within its regulatory floodway, it will require an Environmental Resource Permit (ERP) application for any development activities within the floodway, other than those entitled to a general permit under Rule 40B-4.3010, Florida Administrative Code. The District will require an ERP for the activities described in paragraph "c" notwithstanding the fact that the Department is evaluating those same activities as part of an ERP application that has been submitted to the Department of Environmental Protection (Department) for the same activity in the same location under the terms of the Operating Agreement.1/ The District will evaluate an application to conduct development activities as described in paragraph "c" based upon the full range of ERP permitting criteria contained in the District's rules, even though the Department is processing an ERP application for the same activities pursuant to the Operating Agreement between the District and the Department. The District's policy is to deny or to object to the issuance of any permit application to conduct commercial mining operations in the WOD composed of the Alapaha River floodway. It is the policy of the District to consider any proposed development activity in a WOD, other than those eligible for a general permit under Rule 40B-4.3010, Florida Administrative Code, to have an adverse impact on the regulatory floodway, and thereby to be unpermittable by the District. The District's policies against allowing development activities in WODs apply even if a professional engineer certifies under Rule 40B-4.3030, Florida Administrative Code, that the activity will not violate the conditions of issuance set forth in the rule. The policies apply because the District will consider the development activities to violate ERP permitting rules applicable to all development activities, not just those within WODs. It is also the District's policy to ask the Department to deny ERP applications for development activities proposed in WODs that require ERPs even though the Department is processing the application pursuant to the Operating Agreement. The District's policy is to deny ERP applications to conduct commercial mining activities in WODs as determined by the FIS, and to recommend to the Department that ERP applications to the Department for such projects be denied, unless the applicant goes through the FEMA amendment process described in paragraph b to remove the area from the FEMA- determined floodway. Each party requests that it be granted costs and attorney's fees pursuant to Section 120.595(4), Florida Statutes. Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. Respondent is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an ERP issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between Suwannee River Water Management District and Department of Environmental Protection (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the WOD impacts. It is the District's position that the District's review of any ERP application to undertake development activities in a WOD would be based upon all of the ERP criteria, and not just those criteria relating to floodway conveyance referenced in Rule 40B-4.3030, Florida Administrative Code. On or about November 30, 2001, the District published in the Florida Administrative Weekly a notice of its intent to adopt the FEMA Flood Insurance Rate Maps (FIRM) to delineate floodways for the purpose of its works of the district regulatory program. Facts Based on Evidence of Record Background/Events leading up to this dispute The total amount of the subject property owned by Petitioner is approximately 560 acres. The property is generally a rolling terrain. A significant feature is a man-made berm which was placed around the perimeter of the property by a former owner, presumably to keep water off of the land during floods of the Alapaha River. Dennis Price is a self-employed registered professional geologist. At one time, he was employed by the District and at another time, he was employed by Petitioner. For purposes of this proceeding, he was hired by Petitioner as a consultant for certain permitting projects including the project that gave rise to this dispute. Mr. Price met with and corresponded with the District as well as staff from the Department over a period of two years regarding this mining project. In June of 1999, the Department wrote to Mr. Price in response to a meeting. The letter noted that Petitioner intended to expand mining operations. In addition to informing Mr. Price of the Department's permit requirements, the letter referenced the District's permitting requirements: Mr. Still provided us with an aerial photograph showing the SRWMD's regulated floodway in the area of your mine. A copy is enclosed with the floodway line highlighted in orange. A substantial portion of your proposed expansion area will be within this floodway. The SRWMD has adopted the Alapaha River and its floodway as a works of the district. The Department adopted the SRWMD's regulations pertaining to the environmental resource permit; however, this did not include the regulations pertaining to projects within works of the district. If your permit application only includes areas outside of the floodway, a single application will have to be provided to this bureau. If you intend to expand within the floodway, a separate application will also have to be provided to the SRWMD for a works of the district permit. In either situation, the Department's Jacksonville office will review any modifications to your industrial wastewater permit. (emphasis supplied)2/ In response, Mr. Price wrote to the Department in July of 1999 and stated in pertinent part: Dear Mr. Neel, this letter is in response to your June 22, 1999 letter "RE: Permits for Mining Operation". Angelo's currently has a Sand and Limestone General Permit from DEP - General Permit Number FLA011635. That permit is based on a 5 year mining plan that was presented to the DEP on January 11, 1999. The permit, my letter and the 5 year mining plan presented to DEP are enclosed. Another attachment is an aerial photo of the property showing the Regulatory Floodway line and the location of the areas to be mined under that 5 year mining plan. The aerial photograph has superimposed upon it the location of the floodway of the Alapaha River, as determined by FEMA maps. Please note that the 5 year mining plan and the associated storage and processing areas are outside the regulatory floodway. Therefore, no works of the district permit will be needed at this time. See FAC Rule 40B-4.300(1)(a) [sic]. Future mining beyond the five year mine plan will not occur without first applying for and obtaining permits from the appropriate regulatory agency. At the present time we will only mine areas within the 5 year mine plan. We will have an engineer field locate the floodway line on the property to ensure that no mining or associated storage and process activities occur within the floodway. We are requesting that the ERP permitting process remain within the DEP bureau of Mine Reclamation since the DEP has already issued a general permit for this activity and the DEP normally handles ERP's for mining operations. We have determined that the mining area will be less than 100 acres, and based on Rule 40B-4.2020(2)(B) FAC a general permit may be applied for. We will notify you when we have a draft application prepared and would like to meet with you at your earliest convenience after that to discuss the permit application. (emphasis supplied) In response to information which Mr. Price provided to the Department, the Department wrote to Mr. Price in December of 1999 and again addressed concerns about the area of the project in relation to the floodway line: Specific Item: FLOODWAY Information submitted in response to the request for additional information (RAI) dated August 12, 1999, indicates that Angelo's proposed project boundary and activities extend up to and coincide with the Floodway Line. There appears to be no set-back or buffer from the Floodway (or any other) Line. Chapter 40B-4, Florida Administrative Code (F.A.C.), contains the rules for the Suwannee River Water Management Area which were adopted by the Department of Environmental Protection. Section 40B-4.2010(2)(b)(3)(b) provides that a General Permit may be issued for construction, operation, and maintenance of a surfacewater management system servicing a total project area less than 120 acres provided the system will not be located in, cross or connect to a work of the district. Information submitted with this (November 12, 1999) submittal indicates that the proposed activities within the proposed project coincides with, or is so closely located to, the Floodway Line so as to indicate that the proposed activities would be considered to be connected to a work of the district. This is based upon examination of the plan views and [sic] well as cross section information that has been provided. Please provide a discussion, and drawings as may be needed, that addresses all activities along the established Floodway Line. This information should address all aspects of all operations along this line through the completion of reclamation activities. Be sure to address best management practices, and any proposed setbacks in the response to this request. (emphasis in original)3/ Mr. Price described the proposed project as part of the permit application which was submitted to the Department: Describe in general terms the proposed project, system, or activity. Angelo's Aggregate Materials, Ltd. (AAM) owns approximately 341 acres of land. The current mining site, known as the Jasper Pit, is located on a 160 acre parcel of land. Of the 160 acres, only 82.45 acres are available for mining since the remainder of the property falls within the floodway boundary of the Alapaha River. The 160 acre parcel has an existing berm around the entire perimeter of the property constructed in the 1950's by the previous owner. The Alapaha flood study conducted for FEMA did not take into account this berm. AAM is proposing to construct a 20' wide access road between NW 8th Boulevard and the Jasper Pit, encompassing approximately 7.22 acres. This roadway will be constructed within the limits of property owned by AAM. The stormwater management system for the roadway will consist entirely of grassed swales as covered under FDEP's swale exemption. The Jasper Pit is a sand and limestone mining operation. (emphasis supplied) On August 28, 2001, David Still, the District's Director of Resource Management, wrote a letter to the Department in response to a request received by e-mail from the Department for technical assistance. Mr. Still responds to requests for technical assistance from other agencies as a matter of routine and as contemplated by the operating agreement between the Department and the District. The letter reads as follows: The floodway along the Alapaha River was identified and mapped as part of a Federal Emergency Management Association (FEMA) flood study performed by the United States Army Corps of Engineers, subsequently approved by FEMA and adopted as part of the local government (Hamilton County) ordinance. Based on the above, Suwannee River Water Management District (SRWMD) then adopted the floodway as a Work of the District (WOD). There is only one floodway. SRWMD recognizes and accepts the FEMA flood study performed by the U.S. Army Corps of Engineers and local government (Hamilton County) floodway boundary as the best available information to identify the floodway boundary. There is a formal process whereby change can be made to the FEMA boundary with additional or improved information. If FEMA and Hamilton County approve a revised floodway delineation and boundary, so be it, SRWMD will recognize it, however, SRWMD will not unilaterally change a boundary resulting from a detailed federal flood insurance study. We have informed Mr. Thompson and his client of this. We consider the kind of work contemplated by the applicant (at least based on our earliest discussions with them) will cause an adverse impact to the WOD (the floodway) which of course is in conflict with the requirements of 40B-400.103(1)(h) and SRWMD 40B-4, Part III, Florida Administrative Code (F.A.C.). The District will object to the issuance of any permit in direct conflict with District rules. We feel the rule is clear and any conflict with 40B-400.103(1)(h), F.A.C. which the Florida Department of Environmental Protection has adopted by reference requires denial of the Environmental Resource Permit (ERP) application. Any work of this nature within a WOD is subject to the additional permitting requirements of 40B-4, Part III, F.A.C., even if the District needs to implement such requirements with a separate WOD permit. Mr. Still's reference to "the applicant" in the August 28, 2001, letter is to Petitioner. While Mr. Still is not the agency head, his August 28, 2001, letter clearly communicates the District's policy. Given his position in the agency and the manner in which he discussed this issue, the letter describes and communicates the District's policy on what constitutes a floodway and its boundary. Mr. Still does not have final authority to make decisions on permitting within the District, as that authority rests with the governing board. In a letter written on October 10, 2001, in response to a letter from Petitioner's counsel, Mr. Still stated that District staff would recommend to their governing board that Petitioner's proposed activity is an activity within a floodway that is regulated under Chapter 40B-4, Part III, Florida Administrative Code, and that the proposed activity would adversely impact the floodway: "Therefore, as staff, we would recommend our governing board consider this activity adverse to our rules." This letter is case specific to Petitioner. Within a few days of Mr. Still's October 10, 2001, letter, Petitioner filed its Petition to Determine Validity of Agency Statements Defined as Rules. Other facts established by the evidence of record The District uses FEMA FIRM maps as evidence of the location of the floodways in the works of the district. The District communicated this policy in Mr. Still's letter dated August 28, 2001. The District will not unilaterally change the floodway delineation and boundary established by FEMA. In order for an applicant to persuade the District that a proposed activity within the FEMA floodway line is not within the District's floodway, an applicant must apply to FEMA for a map amendment or revision. The District will acknowledge that a proposed activity is not within the floodway of a work of the district only if the applicant is successful in obtaining a map amendment or revision showing that the proposed activity indeed is not within the floodway. The District has applied this policy to another company which applied for a permit. That is, the District required the permit applicant to apply to FEMA for a map revision or amendment as a condition of issuance of a permit because its proposed activity was within the FEMA floodway as established by the FEMA maps. Petitioner has not filed a permit application with the District regarding the proposed mining project. It is Petitioner's position that to do so would be futile.
The Issue Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Sierra Club is a national nonprofit organization with 67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment. The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and chapter 163, part II. The subject property is located within the City’s jurisdiction. Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding. The Subject Property The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school. The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School. The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision. The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation. The School Board Property is bounded on the east by 200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek. The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level. The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species, interspersed with pine, holly and other species. The 10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development. The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the 10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR. The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision. Maritime Forest/Maritime Hammock There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.” The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species. Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’” There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock. The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway. The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway. There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan. Egans Creek Greenway The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas. Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve. The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.” The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.” The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel. Procedural History of the Amelia Bluff Subdivision In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property. Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision. On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24. On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals. On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and (ii) Resolution 2017-123, which approved the MOU. On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff. On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and 0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively. On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval. On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision. On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018 (SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements. In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements. On October 18, 2018, Amelia Bluff applied for final subdivision plat approval. The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR. On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property. City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019. On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26). On February 19, 2019, the Commission approved the FLUM Amendment on first reading. On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request. On April 16, 2019, the Commission adopted: (i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat. Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)” Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective. Other Governmental Authorizations On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on February 15, 2018. On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs. The Proposed Subdivision The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs. The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development. The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction. After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized. The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff. Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations. The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded. Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse. Work Completed to Date In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development. Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.” As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly 3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018. On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018. On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request, the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed. City Commission FLUM Amendment Meetings The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.” The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge. The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission. The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019, meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/ The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment. Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data. Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data. When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc. Challenges to the Plan Amendment Small Scale Development Amendment Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size. The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part. Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding, Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein. The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment. Internal Inconsistency In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows: Policy 5.07.09. The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns. Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD. As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater. The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day. Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater. Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order. The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its pre-development state. The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards. Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second (“CFS”), while post-development outfall is expected to be 0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS. Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.” Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/ The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to rebut the presumption that state water quality standards would be met. The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan. The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09. Policy 5.07.12. The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters. Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy. Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12. Objective 5.08. - Wetlands Protection and Preservation Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water. Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.08.05. The City shall continue to ensure the protection and mitigation of wetlands, consistent with existing state and federal regulations, and shall ensure the following: Land uses which will have little or no adverse impact on wetlands; Standards and criteria for wetlands which possess significant functional value; and Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands. Policy 5.08.06. The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code: Proper siting of development structures and infrastructure, including clustering of development away from wetlands; Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and Setback of buildings and other structures from wetlands and water bodies. Policy 5.08.08. In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used. The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer. Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08. Objective 5.10. - Wildlife Planning. The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A. Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.10.01. When reviewing development proposals for public or private development, the City shall take into account the following strategies: * * * Preserve native vegetation and habitat types; Preserve forested areas, the understory and native soil associations; and Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies. Policy 5.10.02. The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species. The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . . Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.” The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low- density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies. Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However, Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience. The data and analysis was adequate to establish that the stormwater management system would not result in adverse impacts resulting from the system, including dehydration of landscape features. As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02. Objective 5.11. - Tree Preservation and Urban Forestry. The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation. Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.” Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height. In addition to the foregoing, the City Land Development Code has a provision that allows for up to 50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above. As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees. Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11. Objective 6.05. - Open Space. Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands. Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policy: Policy 6.05.03. Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements. There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy. Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy 6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment of the FLUM after plat approval would not have been problems. This appears to be one. It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated open space lands would not be encroached upon. That scenario does not present here. The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.” Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy 6.05.03. was supported by data and analysis as described above. Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable. Objective 6.10. - Egans Creek Greenway. The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat. The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway. The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer. As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City. While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10. Policy 1.02.04. Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors: Type and density or intensity of surrounding uses; Zoning districts in the surrounding area; Demonstration of adequate water supply and water supply facilities; Appropriateness of the size of the parcel compared to the proposed use; Physical condition of the site, and the suitability of soils and topography for the proposed use; Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources; Compatibility factors; Impact on adopted levels of service standards and quality of service standards; and Location in a Coastal Upland Protection Zone (CUPZ). Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendment creates an internal inconsistency with the policy. As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04. Data and Analysis Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added). Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition: Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes. Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3). Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes. Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added). Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt, Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff. Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2019.
The Issue The issues to be determined in this proceeding are: (1) whether the small scale development amendment to the Franklin County Comprehensive Plan's Future Land Use Map (FLUM), adopted by Ordinance No. 2019-10 on November 19, 2019 (Ordinance), is "in compliance" under section 163.3184(1)(b), Florida Statutes; and (2) whether the Ordinance was adopted in conformity with the requirements of section 163.3187(3).
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and Standing Petitioner owns land within the County that is directly adjacent to the Ward property. Petitioner submitted objections during the period of time beginning with the public notice and hearing on the proposed Ordinance and ending with the adoption of the Ordinance. Petitioner is an affected person under sections 163.3184(1)(a) and 163.3187(5)(a). The County is a local government with the duty and authority to adopt and amend a comprehensive plan under section 163.3167. Intervenor Ward owns the currently vacant property located at 1015 U.S. Highway 98, Eastpoint, Florida, directly adjacent to Petitioner's property. Background The Ward property is bisected by U.S. Highway 98, bounded on the east by State Road 65, on the north by CC Overland Road, on the south by the waters of St. George Sound, and on the west by Petitioner's property. The property consists of approximately 7.68 acres with 0.74 acres located south of U.S. Highway 98, and 6.94 acres located north of U.S. Highway 98. At the U.S. Highway 98 and State Road 65 intersection, and across from the Ward property, is a parcel also designated as Commercial on the County's FLUM. The Ward property is located within an approximate one-mile radius of the County's landfill, a County consolidated K-12 public school, a sand mine, the Humane Society Animal Shelter, two commercial RV parks, and a small restaurant, and is across State Road 65 from approximately 13 acres of commercially zoned property. The Ward property is also within 1,000 feet of St. George Sound. The waters of St. George Sound are part of the Apalachicola National Estuarine Research Reserve (Apalachicola NERR) and are designated as Outstanding Florida Waters (OFW). The County planner, Mr. Curenton, testified that some portions of the Ward property south of U.S. Highway 98 could be developed under the Ordinance and concurrent rezoning, the County's Comprehensive Plan, and land development regulations (LDRs). This testimony conflicted with the parties' stipulation that the County would disallow any development on that area. See Joint Prehearing Stipulation at page 19, ¶20. This stipulation may not bind the County’s future actions, and, as such, the Ordinance must be reviewed without considering that stipulation. On September 4, 2019, Mr. Ward applied for a small scale development amendment to change the future land use (FLU) designation of his property from Residential to Commercial, which was approved on November 19, 2019, by the Ordinance. The application also included a request to rezone the property from Single Family Residential/Single Family Home Industry (R- 1/R-4) to Commercial Business (C-2), which was approved on November 19, 2019, by Ordinance No. 2019-11. That rezoning request was not challenged in this administrative proceeding. The Commercial FLU designation is described in the Comprehensive Plan as follows: Commercial: This category of land use shall provide suitable location for commercial activities. There is no minimum lot size, width, or depth; however, existing lots may not be subdivided. Commercial land adjacent to waters of Apalachicola Bay shall be developed as a last resort and shall be reserved for water dependent activities. Commercial land may have residential structures so long as the development protects the residential land from any detrimental impact caused by the surrounding commercial land. Protective measures may include additional setbacks, buffers, or open space requirements. The location of these lands is mapped on the Future Land Use Map series. All commercial structures or accessory structures shall conform to the applicable standards established in the Franklin County Zoning Code, Critical Shoreline District Ordinance, Flood Hazard Ordinance, or the Coastal Construction Code Ordinance. The intensity standard for commercial land shall be a floor-to area ratio (FAR) of not more than 0.50. On St. George Island the floor-to-area ratio shall not exceed 1.0, except in Block 6 East where the floor-to-area ratio shall not exceed 2.0, as long as the following four criteria are met: (1) at least 33% of the floor area will be strictly commercial space, (2) this 2.0 floor-to-area ratio shall not be applied to waterfront properties, (3) the advanced wastewater treatment plant to serve the development will be constructed above the Category 4 storm surge elevation, and (4) all stormwater must be contained and treated on site. The County’s application form is titled "Application For Re-Zoning & Land Use Change." Thus, the County’s policy is to review and consider both requests concurrently and to obtain a concept plan showing the property owner’s intentions for the site. This is consistent with the purpose of this type of FLUM amendment, which proposes a land use change "for a site-specific small scale development activity." Mr. Ward also submitted a draft site plan laying out his concept for potential development of the property. The draft site plan was provided in response to a request from the County as part of the application review process. The draft site plan depicted a convenience store, pump islands with 12 gas pumps, 24 fueling stations, a parking lot with 66 parking spaces, dumpster pads and dumpsters, a car wash, possibly with above ground storage tanks, and a number of unspecified retail uses on the property. The area of the County where the Ward property is located was de-designated as an area of critical state concern under the premise that the County's Comprehensive Plan and LDRs are sufficient to protect the area’s important state resources. It is, therefore, particularly important for the County to enforce its Comprehensive Plan and LDRs as written, since the state land planning agency found that doing so is necessary to protect critical state resources. Petitioner's Challenge Petitioner challenged the Ordinance on the grounds that: (1) the Ordinance was not adopted in accordance with the requirements applicable to small scale development amendments in rural areas of opportunity; (2) the Ordinance was not based on relevant and appropriate data and analysis; and (3) the Ordinance was inconsistent with applicable provisions of the County's Comprehensive Plan.2 Rural Area of Opportunity Petitioner alleged that the Ordinance was not adopted in accordance with the requirements of section 163.3187(3) regarding property located in a 2 Petitioner argued that consistency with the County's LDRs was at issue. However, consistency with LDRs is not specific to section 163.3177(2). Further, consistent with the undersigned's ruling during the final hearing, whether the Ordinance constituted spot planning, spot zoning, or strip zoning was not at issue in this plan amendment compliance determination under section 163.3184(1)(b). designated rural area of opportunity. The statutory requirements include the making of certain certifications by the County to the state land planning agency "that the plan amendment furthers the economic objectives set forth in the executive order issued under s. 288.0656(7)." An additional statutory requirement is that "the property subject to the plan amendment shall undergo public review to ensure that all concurrency requirements and federal, state, and local environmental permit requirements are met." The statutory language does not allow the required "public review" to occur at a later date than the adoption of the small scale development plan amendment. Executive Order 15-133 recognizes that the subject rural communities, which include Franklin County, "are stewards of the vast majority of Florida’s land and natural resources, upon which the State’s continued growth and prosperity depend[.]" The economic objectives set forth in the executive order include job-creating activities, education, and critical government services, such as infrastructure, transportation, and safety. The executive order recognizes that the rural area of opportunity designation is contingent on the execution of a memorandum of agreement between the state land planning agency, the counties, and municipalities. The uncontroverted evidence established that a memorandum of agreement does not exist between the County and the state land planning agency. During the pendency of this proceeding, and after the adoption date of the Ordinance, the County submitted a written certification to the state land planning agency on January 23, 2020, as amended on February 3, 2020. The undisputed evidence established that the County did not subject the proposed small scale development plan amendment "to public review to ensure that all concurrency requirements and federal, state, and local environmental permit requirements are met." The preponderance of the evidence established that because the contingency of a memorandum of agreement was not accomplished, the rural area of opportunity designation is without legal effect. Petitioner did not prove beyond fair debate that the County is a designated rural area of opportunity and was required to comply with the requirements of section 163.3187(3). Relevant and Appropriate Data and Analysis "To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." § 163.3177(1)(f), Fla. Stat. Specific types of data and analysis are relevant for this small scale development FLUM amendment. See § 163.3177(6)(a)2. and 8., Fla. Stat. The character of undeveloped land. The County considered data from professionally accepted sources and applied an analysis based on the data and the expertise of County staff. The County considered the character of the undeveloped Ward property, the soils, the topography, the natural resources, and the historic resources. The County's planner and expert witness, Mr. Curenton, has worked in the County's planning department for more than 30 years. He testified that he analyzed the small scale development amendment application, gathered relevant data, and prepared the staff recommendations. Mr. Curenton considered the topography of the Ward property and concluded that while the parcel generally slopes to the south, the parcel itself is without any excessive topographic relief. Mr. Curenton consulted the National Wetlands Inventory (NWI) produced by the United States Fish and Wildlife Service. He concluded that there were no natural drainage features on the Ward property, but there may be a wetland along part of the southwest corner of the parcel. Based on his review of the NWI, Mr. Curenton concluded that there would be sufficient uplands to support a future commercial development on the Ward property. However, a formal wetlands delineation and compliance with applicable setbacks from wetlands would be required for any future site plan approval. Mr. Curenton reviewed the Florida Fish and Wildlife Conservation Commission’s Bald Eagle Nest Locator and determined that no bald eagle nests were shown on the Ward property. He also considered his local knowledge of the Ward property. The parcel was clear-cut of trees, except for a small buffer strip of trees along its western border. He determined that it was not a habitat suitable for black bear or the red-cockaded woodpecker. The Franklin County Soil Atlas was reviewed by Mr. Curenton. He concluded that the predominant soil conditions were poor, a fact that is true throughout Franklin County. Thus, the soil conditions for the Ward property were equally suited for residential or commercial development. Mr. Curenton testified that the Ward property generally slopes to the south. He also considered that there are existing drainage ditches in the right-of-way of State Road 65 along the eastern boundary of the parcel, as well as a drainage ditch in the right-of-way of U.S. Highway 98 along the southern boundary of the parcel, and a culvert that runs under U.S. Highway Mr. Curenton took into consideration that any future commercial development would be required to treat its stormwater onsite and would be prohibited from directly discharging to St. George Sound. Mr. Curenton considered the Franklin County Flood Hazard Ordinance, as well as the Northwest Florida Water Management District flood maps. He concluded that the Ward property was buildable on grade, though, depending upon an actual future site plan, some parts of the structure may have to be floodproofed. The Franklin County Hazard Mitigation–Wildfire Hazard Level of Concern Map was reviewed by Mr. Curenton. He concluded that the level for the area of the Ward property was very low, which is suitable for future development. Mr. Curenton checked the Florida Master Site File and found that it did not contain any identifiable cultural resources on the Ward property. The availability of water supplies, public facilities, and services. The availability of public water and sewer to serve a future commercial development upon the Ward property was considered by Mr. Curenton. He had personal knowledge that the Eastpoint Water and Sewer District (EWSD) had both a water and sewer line along the northern boundary of the Ward property. In addition, his review included a letter from EWSD stating that it had existing capacity to provide both water and sewer services to a future commercial development on the subject parcel. Mr. Curenton reviewed the Franklin County level of service adopted in the Comprehensive Plan for State Road 65 and U.S. Highway 98. He also evaluated the 2018 traffic counts shown on the Florida Department of Transportation’s (FDOT) website, and the relationship between the level of service and the traffic counts contained in the 2012 FDOT Quality/Level of Service Handbook for State Road 65 and U.S. Highway 98. He concluded that any approved future commercial development on the subject parcel would not adversely impact the traffic level of service for either State Road 65 or U.S. Highway 98. The need for job creation, capital investment, and economic development. Mr. Curenton considered that the construction of future approved development on the Ward property would provide construction jobs. In addition, future commercial uses would provide stable employment. He also considered that future commercial uses would generate sales tax revenues and increased ad valorem taxes. The discouragement of urban sprawl. Mr. Curenton testified that he did not have specific experience in evaluating what does and does not constitute urban sprawl development. However, he testified that he did rely on the EWSD letter regarding availability of public water and sewer lines along the northern boundary of the Ward property. Other undisputed facts include that this is a small scale development FLUM amendment involving one parcel of approximately 7.68 acres. The parcel is located in the Eastpoint Urban Service Area (USA). This USA was specifically created for potential commercial uses since it is the only area in unincorporated Franklin County where public water and sewer utilities are provided. Petitioner’s planning expert, Dr. Depew, presented an expert report and testimony that the Ordinance failed to discourage urban sprawl. However, Dr. Depew’s analysis glossed over the undisputed relevant facts. Those undisputed material facts belie positive findings on the primary indicators of urban sprawl, such as, that the Ordinance designates for development "substantial areas of [Franklin County];" that the Ordinance designates "significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas;" and that the Ordinance allows for land use patterns or timing that increase the costs of providing and maintaining roads, water and sewer, stormwater management, and general government. Dr. Depew and the other experts presented by Petitioner, testified to a level of data collection and analysis that cumulatively outpaced the County’s level of data review and analysis. However, the preponderance of the evidence established that the County relied on data from professionally accepted sources; relied on data that was relevant and appropriate to the subject being considered; and reacted to that data in an appropriate way. The extensive data and analyses presented by Petitioner’s expert witnesses were more directed to whether the rezoning complied with the Comprehensive Plan, the County’s LDRs, and federal, state, and local environmental permitting requirements. These issues are outside the scope of this FLUM amendment compliance challenge. Petitioner did not prove beyond fair debate that the Ordinance was not supported by relevant and appropriate data and analysis. Petitioner did not prove beyond fair debate that the County did not take data from professionally accepted sources. Petitioner did not prove beyond fair debate that the Ordinance did not react appropriately to the data and analysis collected and reviewed by the County. It is fairly debatable that the Ordinance reacts appropriately to the data and analysis collected and reviewed by the County. Consistency Petitioner challenged the Ordinance as contrary to section 163.3177(2), which requires the several elements of the comprehensive plan to be consistent. Section 163.3177(2) states that "[c]oordination of the several elements of the local comprehensive plan shall be a major objective of the planning process." Petitioner alleged that the Ordinance is inconsistent with several goals, objectives, and policies in the County's Comprehensive Plan. The Ordinance changes the FLU designation of the Ward property but is not a development order. In addition, consistency with the County’s LDRs is not at issue in this proceeding. Petitioner alleged that the Ordinance was internally inconsistent with FLU Element Policy 3.1, which reads as follows: Development, alteration of native vegetation, and habitable structures within 50 feet landward of wetlands or the waters of the State is prohibited, except as allowed pursuant to Policies 1.2d, 1.6 and 1.7 of this Element and Policies 1.1, 1.2 and 1.5 of the Coastal Conservation Element. The landward extent of a surface water in the State for the purposes of implementing this policy is as defined in Chapter 62-340.600, FAC. The Ordinance is not a development order, and did not authorize any development activities, including any physical development, alteration of native vegetation, or habitable structures within 50 feet landward of wetlands or waters of the State. Thus, FLU Element Policy 3.1 was not applicable to the Ordinance. The Ordinance was not internally inconsistent with FLU Element Policy 3.1. Petitioner alleged that the Ordinance was internally inconsistent with Coastal Conservation Element Policy 5.9, which states that "[t]he County shall limit impervious coverage of lots in the Critical Shoreline District to 20%." The Ordinance is not a development order and did not authorize any development activities. Thus, the Ordinance did not conflict with the County's ability to limit impervious coverage of lots. The Ordinance was not internally inconsistent with Coastal Conservation Element Policy 5.9. Petitioner challenged the Ordinance as internally inconsistent with Coastal Conservation Element Policy 10.3, which provides that "[t]he County shall continue to implement the Critical Shoreline District Ordinance which designates environmentally sensitive lands." The Ordinance did not interfere with the ability of the County to implement its Critical Shoreline District Ordinance. As previously found, the Ordinance is not a development order, and did not authorize any development activities. The Ordinance was not internally inconsistent with Coastal Conservation Element Policy 10.3. Petitioner contended that the Ordinance was internally inconsistent with Intergovernmental Coordination Element Policy 4.3, which states that "Franklin County shall allows [sic] the Apalachicola [NERR] to coordinate with agencies having jurisdictional authority over their prospective land holdings on the location of threatened and endangered species that will be impacted by future development on property contiguous with the portion of the Reserve where the threatened and endangered species naturally exist." The Ordinance did not prohibit the Apalachicola NERR from coordinating with agencies concerning future development contiguous with the Reserve. Again, the Ordinance is not a development order and did not authorize any development activities. Thus, Intergovernmental Coordination Element Policy 4.3 was not applicable to the Ordinance. The Ordinance was not internally inconsistent with Intergovernmental Coordination Element Policy 4.3. Next, Petitioner claimed that the Ordinance was internally inconsistent with Intergovernmental Coordination Element Policy 7.1(h), which provides that "[t]he County shall provide opportunity for the School District to comment on comprehensive plan amendments, re-zonings, and other land use decisions which may be projected to impact on the public schools facilities plan." Mr. Curenton testified that the Ordinance would not impact the public schools facilities plan because the Ward property was proposed for commercial use with no residential component. Thus, the Ordinance was not internally inconsistent with Intergovernmental Coordination Element Policy 7.1(h). Petitioner challenged the Ordinance as internally inconsistent with Coastal Conservation Element Objective 19, which provides that "[t]he County will continue to support scenic roads designated in Franklin County in order to help preserve the area's natural beauty." Petitioner also alleged that the Ordinance was internally inconsistent with Coastal Conservation Element Policy 19.1, which provides that "U.S. Highway 98 within the County shall be designated a scenic road along the coast." The Ordinance is not a development order and did not authorize any development activities. The Ordinance would not prevent the County from supporting the designation of U.S. Highway 98 as a scenic road. The Ordinance was not internally inconsistent with Coastal Conservation Element Objective 19 or Policy 19.1. Next, Petitioner challenged the Ordinance as internally inconsistent with Coastal Conservation Element Policy 19.2, which states that "[p]roperties between designated scenic roads and wetlands or open water shall be zoned the lowest density allowed for their respective future land use categories." This policy is related to the zoning classification assigned to specific property. The Ordinance at issue in this proceeding did not rezone the Ward property. Thus, Coastal Conservation Element Policy 19.2 did not apply to the Ordinance. The Ordinance was not internally inconsistent with Coastal Conservation Element Policy 19.2. Petitioner next alleged that the Ordinance was internally inconsistent with Coastal Conservation Element Policy 19.3, which states that "[S]ite Plan requirements for areas between designated scenic roads and wetlands or open water shall require the use of native vegetation in landscaping, separation of buildings by at least 20 feet along the axis of the road, and the avoidance of fencing or landscaping that would obstruct views of wetlands or open water." The Ordinance is not a development order and did not authorize any development activities. The Ordinance did not interfere with the ability of the County to implement the stated site plan requirements for areas between designated scenic roads and wetlands or open waters. Thus, Coastal Conservation Element Policy 19.3 was not applicable to the Ordinance. The Ordinance was not internally inconsistent with Coastal Conservation Element Policy 19.3. Petitioner challenged the Ordinance as internally inconsistent with FLU Element Policy 3.4, which states: "Limit the area of impervious surfaces on developed lots within the Critical Shoreline District to a maximum of 20%." Nothing in the Ordinance prohibited or interfered with the County's ability to limit the area of impervious surfaces within the Critical Shoreline District. Again, the Ordinance is not a development order and did not authorize any development activities. Thus, FLU Element Policy 3.4 was not applicable to the Ordinance. The Ordinance was not internally inconsistent with FLU Element Policy 3.4. Petitioner challenged the Ordinance as internally inconsistent with Coastal Conservation Element Objective 2, which reads: "The County will support the conservation and protection of native vegetation, ecological communities, fish and wildlife habitat to the extent that the County will prohibit development which can be proved to damage the County's natural resources." Once again, the Ordinance is not a development order and did not authorize any development activities. Nothing in the Ordinance prohibited or interfered with the County's ability to "support" the conservation and protection of native vegetation, ecological communities, and fish and wildlife habitat by prohibiting development that is ultimately proven to damage the County's natural resources. Thus, Coastal Conservation Element Objective 2 was not applicable to the Ordinance. The Ordinance was not internally inconsistent with Coastal Conservation Element Objective 2. Petitioner next alleged that the Ordinance was internally inconsistent with Coastal Conservation Element Policy 2.6, which states that "[t]he County's [LDRs] shall prohibit the development and disturbance of nesting areas of endangered species, threatened species, and species of special concern, including the nesting areas of sea turtles." As previously noted, the County's LDRs are not at issue in this proceeding. Further, nothing in the Ordinance prohibited the County's LDRs from including such restrictions. Thus, Coastal Conservation Element Policy 2.6 was not applicable to the Ordinance. The Ordinance was not internally inconsistent with Coastal Conservation Element Policy 2.6. Next, Petitioner challenged the Ordinance as internally inconsistent with Coastal Conservation Element Policy 2.11, which provides that "[t]he County shall protect sea turtles through land development regulations which prohibit disturbance of nesting areas, prohibit inappropriate beachfront lighting, and require low intensity lights, seasonal and timed lights, reflective tint on beachfront windows, and shading." As noted above, LDRs are not relevant to a plan or plan amendment compliance determination. Further, nothing in the Ordinance prohibited the County from protecting sea turtles through its LDRs. Also, the Ordinance did not authorize development or any development activities. Coastal Conservation Element Policy 2.11 was not applicable to the Ordinance. The Ordinance was not internally inconsistent with Coastal Conservation Element Policy 2.11. Petitioner contended that the Ordinance was internally inconsistent with Housing Element Policy 9.3, which provides: "Continue to implement the provisions of the Critical Shoreline District so that coastal and wetlands habitat can coexist with residential development." The Ordinance did not authorize development or any development activities, let alone residential development. Nothing in the Ordinance impeded the County's ability to continue to implement the provisions of the Critical Shoreline District. Housing Element Policy 9.3 was not applicable to the Ordinance. The Ordinance was not internally inconsistent with Housing Element Policy 9.3. Petitioner next challenged the Ordinance as internally inconsistent with FLU Element Policy 1.1, which states: The Future Land Use Maps will be reviewed to be sure that adequate infrastructure is in place before areas are permitted for development. Adequate infrastructure is defined as the infrastructure necessary to maintain the adopted levels of service in this plan. The County shall not issue development orders that will degrade the existing levels of service below that level adopted as the minimum in this Comprehensive Plan. As previously noted, the Ordinance did not authorize development or any development activities. Nothing in the Ordinance prevented the County from ensuring that adequate infrastructure is in place prior to issuing any development orders. Thus, FLU Element Policy 1.1 was not applicable to the Ordinance. The Ordinance was not internally inconsistent with FLU Element Policy 1.1. Petitioner challenged the Ordinance as internally inconsistent with FLU Element Policy 1.2(a), which provides as follows: The Future Land Use Maps will be reviewed to insure that the proposed uses, in the various categories, do not conflict with the prevailing natural conditions including: (a). SOIL CONDITIONS - When the US Soil Conservation Service completes and publishes the maps of their soil survey for Franklin County the County will coordinate the land use maps with the soil survey maps to ensure that areas proposed for development have soils suitable to support the proposed development. The Ordinance did not authorize development activity on the Ward property. Nothing in the Ordinance prevented the County from reviewing its FLUM to ensure that proposed uses do not conflict with prevailing soil conditions. Mr. Curenton also testified that the Franklin County Soil Atlas did not prohibit commercial development based upon the prevalent soil types on the Ward property, and the soil types are suitable to support commercial uses. The Ordinance was not internally inconsistent with FLU Element Policy 1.2(a). The Petitioner next alleged that the Ordinance was internally inconsistent with FLU Element Policy 1.2(b), which states: The Future Land Use Maps will be reviewed to insure that the proposed uses, in the various categories, do not conflict with the prevailing natural conditions including: . . . (b) TOPOGRAPHY - Areas of excessive topographical relief shall classified for low density development. The Ordinance did not prevent the County from reviewing its FLUM to ensure that proposed uses do not conflict with prevailing topographic conditions. Mr. Curenton also testified that, although, the Ward property slopes from the north to the south, it does not have any excessive topographical relief. The Ordinance itself did not authorize development or any development activities. The Ordinance was not internally inconsistent with FLU Element Policy 1.2(b). Petitioner also challenged the Ordinance as internally inconsistent with FLU Element Policy 1.2(c), which provides, in pertinent part, that "[n]atural drainage features will be protected and preserved to ensure the continuation of their natural function." The Ordinance did not prevent the County from reviewing its FLUM to ensure that proposed uses do not conflict with prevailing drainage conditions. Mr. Curenton testified that the Ward property does not have any natural drainage features. Also, given that the Ordinance did not authorize any development activity, it did not impact any potential natural function of any alleged drainage feature on the Ward property. The Ordinance was not internally inconsistent with FLU Element Policy 1.2(c). Petitioner claimed that the Ordinance was internally inconsistent with FLU Element Policy 1.2(d), which provides, in pertinent part, that "[n]o development will be allowed within 50 feet of wetlands, except as allowed pursuant to Policies 1.6 and 1.7 of this element, Policies 1.1, 1.2, and 1.5 of the Coastal Conservation Element or as provided in paragraphs 1-6 below." The Ordinance itself did not prevent the County from reviewing its FLUM to ensure that proposed uses do not conflict with prevailing wetland conditions. In addition, Mr. Curenton testified that to the extent a wetland may exist in the southwest corner of the Ward property, the 50-foot setback requirement would be enforced upon the submission of a development application and site plan in the future. The Ordinance itself did not authorize development or any development activities. Thus, the 50-foot setback requirement was not relevant in this context. The Ordinance was not internally inconsistent with FLU Element Policy 1.2(d). Next, Petitioner challenged the Ordinance as internally inconsistent with FLU Element Policy 1.2(e), which provides, in pertinent part, that "[a]ny structural development will have to comply with the County's Flood Hazard Ordinance which regulates construction within flood prone areas." The Ordinance itself did not prevent the County from reviewing its FLUM to ensure that proposed uses do not conflict with prevailing floodplain conditions. Mr. Curenton testified that the County's Flood Hazard Ordinance would be enforced upon the submission of a development application and site plan for the Ward property in the future. The Flood Hazard Ordinance was not relevant because the Ordinance did not authorize any structural development on the Ward property. The Ordinance was not internally inconsistent with FLU Element Policy 1.2(e). Petitioner next challenged the Ordinance as internally inconsistent with FLU Element Policy 1.2(f), which states, in pertinent part: The adopted Wildfire Hazard Level of Concern map within the Future Land Use Map series will be used to identify areas of high risk for wildfire (Level of Concern 6 or higher). The potential wildfire risk will be considered when making land use decisions in these areas. Large-scale land use and development plans in areas of high risk for wildfires must complete and implement a wildfire mitigation plan, consistent with the Florida Department of Community Affairs Wildfire Mitigation in Florida • Land Use Planning Strategies and Best Development Practices. Land use or development plans for which adequate wildfire mitigation cannot be provided shall not be authorized in severe wildfire hazard areas. The Ordinance itself did not prevent the County from reviewing its FLUM to ensure that proposed uses do not conflict with potential wildfire areas. In addition, Mr. Curenton testified that the portion of the Ward property located north of U.S. Highway 98 is completely clear-cut, except for a thin buffer of trees approximately ten feet wide separating the Ward property from Petitioner's parcel. Thus, there was a low level of concern for wildfires. The Ordinance was not internally inconsistent with FLU Element Policy 1.2(f). Petitioner challenged the Ordinance as internally inconsistent with Capital Improvement Element Policy 5.2(1), which provides that "[p]roposed plan amendments and requests for new development or redevelopment shall be evaluated according to the following guidelines as to whether the proposed action would contribute to a condition of public hazard as it relates to sanitary sewer, solid waste, drainage, potable water, natural groundwater recharge and to the requirements in the Coastal Management Element." Mr. Curenton testified that the Ordinance would not contribute to a condition of public hazard because the Ward property is located in the Eastpoint USA, which is an area served by central water and sewer, and solid waste services. In addition, although the County's LDRs were not relevant to this challenge, Mr. Curenton also testified that the Ward property is of sufficient size such that a future site plan would be able to comply with the County's requirements concerning setbacks from wetlands and water wells, as well as the County's impervious surface coverage requirements in the LDRs. The Ordinance was not internally inconsistent with Capital Improvement Element Policy 5.2(1). Petitioner next challenged the Ordinance as internally inconsistent with Capital Improvement Element Policy 5.2(2), which provides that "[p]roposed plan amendments and requests for new development or redevelopment shall be evaluated according to the following guidelines as to whether the proposed action would generate public facility demands that may need to be accommodated by capacity increases." Mr. Curenton testified that water and sewer services are available along the northern boundary of the Ward property. The County had received a letter from the EWSD stating it had capacity for a future commercial development on the Ward property without the need for capacity increases. Mr. Curenton further testified that the traffic level of service could accommodate a future commercial development on the Ward property without the need for capacity increases. The Ordinance was not internally inconsistent with Capital Improvement Element Policy 5.2(2). Petitioner also challenged the Ordinance as internally inconsistent with Capital Improvement Element Policy 5.2(3), which provides that "[p]roposed plan amendments and requests for new development or redevelopment shall be evaluated according to the following guidelines as to whether the proposed action would contribute to an unsuitable use of the land because of soil conditions or other environmental limitations listed in the Future Land Use Element." Mr. Curenton testified that the Franklin County Soil Atlas does not prohibit commercial development based on the prevalent soil types on the Ward property, and that the soil types are suitable to support commercial uses. The Ordinance was not internally inconsistent with Capital Improvement Element Policy 5.2(3). Petitioner alleged the Ordinance was internally inconsistent with Capital Improvement Element Policy 5.2(4), which states that "[p]roposed plan amendments and requests for new development or redevelopment shall be evaluated according to the following guidelines as to whether the proposed action would conform with the future land uses as shown on the future land use map of the Future Land Use Element." Mr. Curenton testified that the Ordinance conformed with the future land uses shown on the County's FLUM because the Ward property is at the intersection of two major highways and is across the street from another commercial property with C-2 zoning. The Ordinance was not internally inconsistent with Capital Improvement Element Policy 5.2(4). Petitioner challenged the Ordinance as internally inconsistent with FLU Element Policy 1.6, which provides, in relevant part, that "development, alteration of native vegetation, and habitable structures shall be so allowed in a Development of Regional Impact [DRl] . . ." By its terms, FLU Element Policy 1.6 applies only to a DRI. The Ordinance did not involve a DRI. Also, the Ordinance itself does not authorize development or any development activity, alteration of native habitat, or construction of habitable structures. The Ordinance was not internally inconsistent with FLU Element Policy 1.6. Petitioner claimed the Ordinance was internally inconsistent with FLU Element Policy 2.1(a) through (g), which states: Adopt land development regulations which implement the adopted Comprehensive Plan and which as a minimum: regulate the subdivision of land. Minimum lot size shall be one acre, with at least 100 feet of road frontage and 100 feet in depth, unless the lot is part of a recorded subdivision approved under Franklin County Ordinance 89-7, the Subdivision Ordinance, as provided by the Franklin County Zoning Ordinance (86-9). regulate signage. Signs will be allowed in commercial districts. Temporary non-illuminated signs smaller than 9 square feet shall be allowed in any district for a period not to exceed 30 days. Non- illuminated real estate sale and rental signs smaller than 12 square feet shall be allowed in any district as long as the sign is placed on-premises. regulate areas subject to flooding. The County shall enact an ordinance which shall regulate construction in areas subject to seasonal and periodic flooding. This ordinance, which shall adopt the Federal Insurance Rate Maps for Franklin County dated July 18, 1983 promulgated by the Federal Emergency Management Agency, shall provide for the enforcement of building regulations that will make the County eligible to participate in the Federal Flood Insurance Program. provide for on site parking and traffic flow. Industrial and commercial developments must provide on site parking according to standards established in the Franklin County Zoning Ordinance. Provide for drainage and stormwater management. All commercial and industrial development shall be required to submit a stormwater management plan. Subdivisions shall include adequate provisions for drainage. provide for adequate open space. In residential districts there shall be a setback from any public or private road of 25 feet, and from any other property line of 10 feet. Protect potable water wellfields and aquifer recharge areas. There shall be no underground storage tanks permitted within 200 feet of public or private water system water wells. The County's LDRs are not relevant to a plan amendment compliance determination. Further, nothing in the Ordinance prevented or otherwise prohibited the County from continuing to enforce any requirements in its LDRs regulating the areas identified in FLU Element Policy 2.1(a) through (g). The Ordinance was not internally inconsistent with FLU Element Policy 2.1(a) through (g). Petitioner challenged the Ordinance as internally inconsistent with Coastal Conservation Element Policy 14.7, which provides that "[t]he County shall evaluate any proposed zoning changes in the areas vulnerable to Category 1 and 2 storms on how the change would affect the evacuation capabilities of the zone." The Ordinance is a small scale land use change, not a rezoning. Thus, Coastal Conservation Element Policy 14.7 did not apply to the Ordinance. Nonetheless, Mr. Curenton testified that a future commercial development on the now vacant parcel would not have any meaningful impact on evacuation capabilities because no residential development is allowed in the C-2 commercial zoning district. Mr. Curenton even opined that if a gas station were properly permitted and ultimately constructed on the Ward property in the future, it could enhance evacuation capabilities by providing fuel to aid the evacuation. The Ordinance was not internally inconsistent with Coastal Conservation Element Policy 14.7. Petitioner next alleged the Ordinance was internally inconsistent with Coastal Conservation Element Objective 17, which provides: "Public Access - The amount of public access to coastal resources shall be maintained and not decreased." The Ordinance itself did not authorize any development activity on the Ward property. Also, Mr. Curenton testified that the Ward property is private property that does not provide any public access to coastal resources. The Ordinance was not internally inconsistent with Coastal Conservation Element Objective 17. Next, Petitioner challenged the Ordinance as internally inconsistent with Coastal Conservation Element Policy 17.1, which reads: The County shall ensure that existing access for the public to the County's rivers, bays, beaches, and estuaries is maintained by new development. The County will require new waterfront development to show on map amendments, development orders and site plans any existing dedicated waterfront access ways. The proposed development shall indicate on map amendments, development orders and site plans how the existing dedicated water access will remain open to the public, how it will be relocated with the County's approval, or that it will be donated to the County. The Ordinance itself did not authorize any development activity on the Ward property, and, thus, did not impact any existing access for the public to the County's rivers, bays, beaches, or estuaries. In addition, the evidence established that the Ordinance involved private property that does not provide any public access to coastal resources. The Ordinance was not internally inconsistent with Coastal Conservation Element Policy 17.1. Petitioner challenged the Ordinance as internally inconsistent with Coastal Conservation Element Policy 2.1, which states that "[t]he County will cooperate, whenever possible, with the Apalachicola National Estuarine Research Reserve in its effort to maintain a comprehensive inventory of ecological communities which shall include species, population, habitat conditions, occurrences and alterations." The Ordinance itself did not prohibit or otherwise interfere with the County's ability to cooperate with the Apalachicola National Estuarine Research Reserve. The Ordinance was not internally inconsistent with Coastal Conservation Element Policy 2.1. Summary Petitioner did not prove beyond fair debate that the Ordinance did not react appropriately to the data and analysis collected and reviewed by the County. It is fairly debatable that the Ordinance reacts appropriately to the data and analysis collected and reviewed by the County. Petitioner did not prove beyond fair debate that the Ordinance was internally inconsistent with specified provisions in the Comprehensive Plan. It is fairly debatable that the Ordinance was internally inconsistent with specified provisions in the Comprehensive Plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order finding Ordinance No. 2019-10 adopted on November 19, 2019, "in compliance," as defined by section 163.3184(1)(b). DONE AND ENTERED this 5th day of March, 2021, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2021. COPIES FURNISHED: Sidney C. Bigham, III, Esquire Berger Singerman LLP 313 North Monroe Street, Suite 301 Tallahassee, Florida 32301 Thomas M. Shuler, Esquire The Law Office of Thomas M. Shuler, P.A. 40 4th Street Apalachicola, Florida 32320 S. Brent Spain, Esquire Theriaque & Spain 433 North Magnolia Drive Tallahassee, Florida 32308-5083 Janay Lovett, Agency Clerk Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399-4128 Daniel W. Hartman, Esquire Hartman Law Firm, P.A. Post Office Box 10910 Tallahassee, Florida 32302 David A. Theriaque, Esquire Theriaque & Spain 433 North Magnolia Drive Tallahassee, Florida 32308-5083 Benjamin R. Kelley, Esquire Theriaque & Spain 433 North Magnolia Drive Tallahassee, Florida 32308-5083 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, Mail Stop 110 107 East Madison Street Tallahassee, Florida 32399-4128 Dane Eagle, Executive Director Department of Economic Opportunity 107 East Madison Street, Mail Stop 110 Tallahassee, Florida 32399-4128
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue The issue in these cases is whether proposed amendments to Rules 40C-4.041, 40C-4.051, 40C-4.091, 40C-41.011, 40C-41.023, 40C-41.033, 40C-41.043, 40C-41.051, and 40C-41.063, and the related revisions to the Applicant’s Handbook: Management and Storage of Surface Waters are an invalid exercise of delegated legislative authority as alleged by petitioners.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners in Case No. 97-0870RP, Consolidated-Tomoka Land Company; Indigo Development Group, Inc.; Indigo Group, Inc.; Indigo Group, Ltd.; Patricia Lagoni, as Trustee of Trust Nos. IDI-1, IDI-2 IDI-3 and IDI-4; Seaview Development Corporation; LeRoy E. Folsom; James S. Whiteside, Jr. and Joan W. Whiteside; Susan Spear Root; Susan R. Graham and Chapman J. Root, II, Trustees of the Chapman S. Root 1982 Living Trust; Daniel P. S. Paul, individually and as trustee of the Daniel P. S. Paul Charitable Remainder Trust; and Ava and Rufus, Inc. (petitioners), own real property within an area which will be affected by certain rules proposed by respondent, St. Johns River Water Management District (District). The District is authorized to adopt rules pursuant to Chapters 120 and 373, Florida Statutes. Petitioners in Case No. 97-0871RP, Samuel P. Bell, III and Anne Moorman-Reeves (petitioners), also own real property within an area affected by the proposed rules. Both groups of petitioners are substantially affected persons and thus have standing to inititate these rule challenges. Intervenor, Association of Florida Community Developers, Inc. (AFCD), is a not-for-profit corporation comprised of forty members, primarily developers. Its mission is to promote programs that encourage economic growth in Florida "through the responsible development of large-scale residential communities." Of its forty members, seven own property within the boundaries of the District and regularly apply for permits from the District for the development of large-scale residential or mixed-use developments and five regularly apply for permits on behalf of land owners. Only one member, however, Consolidated-Tomoka Land Company (Consolidated-Tomoka), which is already a party in Case No. 97-0870RP, owns property within the area affected by the proposed hydrologic basins. For the reasons cited in the Conclusions of Law, AFCD lacks standing to participate in this proceeding. The development of the proposed rules was formally initiated by the District in May 1994. At that time, the District began investigating the need for criteria including delineation of new hydrolgic basins, a recharge standard, water quality criteria, erosion and sediment control, a standard to limit drawdowns in wetlands, a special zone for the protection of habitat, and local government notification. After notice of rule development was published in October 1995, and several workshops were held, on January 17, 1997, the District published notice in the Florida Administrative Weekly of its intention to make certain revisions to Rules 40C- 4.041, 40C-4.051, 40C-4.091, 40C-41.011, 40C-41.023, 40C-41.033, 40C-41.043, 40C-41.051, and 41C-41.063, and related revisions to portions of a document known as the Applicant’s Handbook: Management and Storage of Surface Waters (Handbook). On February 12, 1997, by a 5 to 3 vote, the District’s Governing Board formally proposed to adopt those rules, with two amendments. In broad terms, the new rules create two geographic areas of special concern and impose more stringent permitting standards and criteria for systems within those areas. Claiming that the proposed rules were invalid on a number of grounds, petitioners in Case Nos. 97-0870RP and 97- 0871RP initiated these proceedings by filing petitions on February 21 and 24, 1997, respectively. In petitions which include almost every statutory ground for invalidating a rule under Section 120.52(8), Florida Statutes (1996), petitioners have first contended that Rules 40C-4.091(1)(a), 40C-41.011, 40C- 41.023, 40C-41.063(6)(a)-(d), and Handbook Sections 11.0(e), 11.5, 11.5(1), 11.5.2, 11.5.3, 18.1 and Appendix K, are invalid because they exceed the District’s grant of rulemaking authority. They also contend that Rules 40C-41.063(6)(a) and (d), and Handbook Sections 11.5.1, 11.5.4, and 18.1, are invalid because they enlarge the specific provisions of law implemented. They next contend that Rules 40C-4.051(7), 40C-4.091(1)(a), 40C- 41.011, 40C-41.023, 40C-4.041(2)(b), 40C-41.051(2), 40C- 41.063(6)(a), (b) and (d), and Handbook Sections 3.3.1(c) and (f), 11.5.2 and 11.5.4, are not supported by competent substantial evidence. They allege further that Rules 40C- 4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C- 41.023, 40C-41.051(2), and 40C-41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4, 18.1 and Appendix K are arbitrary and capricious. Petitioners next contend that Rules 40C-4.041(2)(b) and 40C- 41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.5.1, 11.5.2, 11.5.3, 11.5.4 and 18.1, are invalid because their alternative lower cost proposal substantially accomplishes the statutory objectives purportedly being implemented through the proposed rules and revisions. Finally, petitioners assert that Rule 40C-41.063(6)(d) and Handbook Section 11.5.4(d) are invalid because they fail to establish adequate standards to guide, and vest unbridled discretion in, the District. As a corollary to these claims and in the event they prevail on any issue, petitioners have requested attorney’s fees and costs under Section 120.595(2), Florida Statutes, on the theory the District’s actions were not substantially justified and there are no special circumstances which would make an award to petitioners unjust. The Proposed Rules Generally The proposed rules affect two geographic areas within the District designated as the Tomoka River and Spruce Creek Hydrologic Basins. The former basin is located almost entirely in the northeastern portion of Volusia County and covers some 150 square miles. The latter basin is located in the southeastern portion of Volusia County and covers 94 square miles. Together, the two basins make up more than twenty percent of Volusia County, and they include parts of the Cities of Daytona Beach, Ormond Beach, and Port Orange. Although the Tomoka and Spruce Creek Rivers, which flow through the basins, were designated Outstanding Florida Waters (OFW) on July 11, 1991, on balance, the water quality of both basins can only be characterized as fair. The Halifax River is a large estuarine system that lies north of the Indian River Lagoon and south of the Matanzas and Tolomato systems and parallel to the Atlantic Ocean. The Tomoka River Basin is at the northern end of the Halifax River, while the Spruce Creek Basin is at the southern end. The Halifax River connects with the Atlantic Ocean in only one place, Ponce Inlet, which is between the proposed basins. Because of this single connection, the estuary is a very low energy system due to minimal wave action, and the system is dependent on the basins that drain into the Halifax River. Thus, the water resources and the integrated components of habitat of the proposed basins are critical to the overall health and biological diversity for the entire region. The District regulates and controls the management and storage of surface waters through its Environmental Resource Permit (ERP) program, which has district-wide application. There are two types of permits relevant to these proceedings: stormwater and ERPs. The former permit is designed for smaller residential or commercial developments and primarily protects against the adverse impacts of stormwater runoff on water quality. An ERP is required for larger systems and covers a broad range of issues including water quality, water quantity, and biological concerns. Criteria for the issuance of individual and conceptual approval permits for systems which meet certain thresholds are found in Chapter 40C-4, Florida Administrative Code, while additional standards and criteria (over and above those found in Chapter 40C-4) for systems within specified designated areas of special concern are found in Chapter 40C-41, Florida Administrative Code. Such areas of special concern contain more stringent regulatory criteria, and they are designed to address specific problems in given areas where high quality resources need special protection, or rapid development adversely affects the water resources. In addition, by Rule 40C-4.091, the District has adopted and incorporated by reference a document known as the "Applicant’s Handbook: Management and Storage of Surface Waters" (Handbook) which "provides applicants, potential applicants, and others who are interested, with information regarding the permitting program for the regulation of surface water management systems under Chapters 40C-4, 40C-40, 40C-41, and 40C-400, F.A.C." This controversy involves a challenge, on numerous grounds, to proposed revisions to all or parts of three rules in Chapter 40C-4, six rules in Chapter 40C-41, and a number of related revisions in the Handbook. Chapter 40C-4 and the Handbook 10. Proposed Rules 40C-4.041(2) and 40C-4.043(1), and Handbook Sections 3.3.1 and 11.0, establish the new basins and make them subject to the provisions of Chapters 40C-4 and 40C-41 and the Handbook. The proposed basins are made up of smaller drainage basins associated with the tributaries to the Tomoka River and Spruce Creek. Besides the two new basins, the District has already established at least five other areas of special concern (basins) within its boundaries. Under current Chapter 40C-4, an ERP is required for the construction, alteration, operation, maintenance, abandonment, or removal of a surface water management system which serves projects with a total land area of 40 or more acres, provides for the placement of 12 or more acres of impervious surface, or has any wetland impact. Smaller projects need only obtain a stormwater permit from the District. By proposed amendments to Rules 40C-4.041(2)(b)3., 6. and (g), and Sections 3.3.1(c) and (f) and 11.0(e) of the Handbook, these thresholds within the two basins are reduced to 10 acres and 2 acres, respectively. Thus, if the revisions become effective, some projects which now qualify for stormwater permits will require a general ERP. It follows that any projects not exceeding these thresholds are exempt from permitting requirements. New provisions relative to exemptions from the permitting thresholds are found in Rule 40C-4.051(7) while the legal description of the two basins is found in Rule 40C- 4.091(1)(a) and Appendix K of the Handbook. Exempted from the permitting thresholds are those systems which meet the conditions for exemption set forth in subsection (2) of the rule, and systems "which consist of public road shoulder paving, outside the Riparian Habitat Protection Zone, which do not result in the creation of additional traffic lanes, and systems which consist of public turn lane construction outside the Riparian Habitat Protection Zone." In addition, related revisions to Sections 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4 and 18.1 of the Handbook add four special basin "standards and design criteria" to the current District requirements. These are extra permitting standards that must be met in addition to standards contained in the District’s ERP rules. Three of the criteria are engineering related while the fourth creates a Riparian Habitat Protection Zone (RHPZ) along the Tomoka River and Spruce Creek. The same criteria now apply in the Econlockhatchee River and Wekiva River Hydrologic Basins, two other designated areas of special concern. Section 11.5.1 imposes a new "recharge standard" which requires ERP permittees to retain within the Most Effective Recharge Area (MERA) three inches of runoff from the directly connected impervious surface area. MERAs are defined as areas with Type A soils. There is no requirement under existing rules that stormwater and ERP permittees retain runoff for recharge purposes. Current standards require that a system not cause a net reduction in flood storage within a 10-year floodplain. Under proposed Section 11.5.2 of the Handbook, a system within the basins must not cause a net reduction in flood storage within the 100-year floodplain. The proposed stormwater management standard in Section prohibits the use of certain stormwater treatment methodologies, such as the use of detention with filtration systems, based upon the size of the system. Current District rules contain no such size-based restrictions. In Section 11.5.4, the District proposes to establish RHPZs along the Tomoka River and Spruce Creek. These RHPZs extend a minimum of 275, 320 or 550 feet landward from the waterward edge of the wetlands adjacent to the defined portions of each watercourse. For example, if the adjacent wetlands extend 400 feet landward of the water’s edge in an area where the rule defines an RHPZ width as 550 feet, 150 feet of uplands landward of the landward extent of the wetlands would be included in the RHPZ at that site. The RHPZ also includes a minimum 50- foot upland component. The RHPZ standard also provides that development within a designated RHPZ is presumed to adversely affect the abundance, food sources, or habitat of aquatic or wetland dependent species in the RHPZ. An applicant may rebut this presumption, however, by demonstrating that the "overall merits" of the proposed development offset the adverse impacts. Chapter 40C-41 Existing Chapter 40C-41 designates five geographic areas of special concern and establishes additional criteria and standards for systems constructed within those areas. By amendments to Rules 40C-41.011, 40C-41.023(5), 40C-41.033 and 40C-41.043(1), the District proposes to add the Tomoka River and Spruce Creek Hydrologic Basins as new geographic areas of special concern. By changes to Rule 40C-41.063(6)(a)-(d), the District has also proposed to codify the previously described recharge standard, 100-year floodplain standard, stormwater management standards and RHPZ as special requirements for systems constructed within the basins. As specific authority for adopting the proposed rules, the District has cited, in varying combinations, Sections 120.54(8), 373.044, 373.046(4), 373.113, 373.118, 373.171, 373.406, 373.413, 373.415, 373.416, 373.418, and 373.421(2), Florida Statutes. It also cites, in various combinations, Sections 120.54(8), 373.046, 373.118, 373.409, 373.413, 373.4135, 373.414, 373.415, 373.416, 373.421(2)-(6), 373.426, and 373.429, Florida Statutes, as the laws being implemented. Do the Rules Exceed the Agency’s Grant of Rulemaking Authority? Petitioners first contend that Rules 40C-4.091(1)(a), 40C-41.011, 40C-41.023 and 40C-41.063(6)(a)-(d), and Handbook Sections 11.0(e), 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4, 18.1 and Appendix K exceed the agency’s grant of rulemaking authority. The challenged rules and sections generally fall into two broad categories: (1) the establishment of the new basins and their legal descriptions, and (2) the establishment of new basin criteria. Proposed Rules 40C-4.091(1)(a), 40C-41.011 and 40C- 41.023(5), and Sections 3.3.1, 11.0(e), 11.5 and Appendix K, fall into the first category while Rule 40C-41.063(6) and Sections 11.5.1, 11.5.2, 11.5.3, 11.5.4 and 18.1 fall into the latter. In adopting the rules and sections pertaining to the new basins and their respective boundaries, the District has relied upon Sections 120.54(8), 373.044, 373.046(4), 373.113, 373.171, 373.415, 373.418, and 373.421(2), Florida Statutes, as the specific authority for adopting the rules. In adopting the new basin criteria, the District relies upon Sections 120.54(8), 373.044, 373.046(4), 373.113, 373.171, 373.415, 373.418 and 373.421(2), Florida Statutes, as the specific authority. For the reasons given in the Conclusions of Law portion of this Order, the challenged rules and sections exceed the District’s rulemaking authority and are thus an invalid exercise of delegated legislative authority. Do the Rules Enlarge the Specific Provisions of Law Implemented? Petitioners next allege that Rule 40C-41.063(6)(a) and (d) and Handbook Sections 11.5.1, 11.5.4 and 18.1 are invalid because they enlarge the specific provisions of law implemented. Paragraph (6)(a) of the rule and Sections 11.5.1 and 18.1 propose to adopt the recharge standard while paragraph (6)(d) and Section establish the new RHPZs. The law being implemented for both standards is Sections 373.413, 373.414, 373.416 and 373.426, Florida Statutes. Section 373.413 provides that the District "may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration" of a system "will not be harmful to the water resources of the district." Similarly, Section 373.416 authorizes the District to require permits on reasonable conditions necessary to assure that the operation and maintenance of the system "will not be harmful to the water resources of the district." Section 373.414 authorizes the District to require applicants to provide "reasonable assurance" that state water quality standards will not be violated. Finally, Section 373.426 protects "the water resources of the district" from improper abandonment or removal of surface water management systems. The statutes being implemented do not refer to a recharge standard or RHPZ. Neither do they refer to any "particular" program or duty which would authorize these rules. Therefore, Rule 40C-063(6)(a) and (d) and Sections 11.5.1, 11.5.4 and 18.1 enlarge the law being implemented and thus are invalid. Are the Rules Arbitrary and Capricious? Petitioners next contend that Rules 40C-4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C-41.023, 40C- 41.051(2) and 40C-41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4, and Appendix K are arbitrary and capricious. These rules and sections pertain to the proposed basin designation and boundaries, threshold revisions, and exemptions. A determination as to whether the rules and sections are supported by fact and logic is set forth below below. Basins The establishment of two new hydrologic basins is based on the District’s concern to protect the water resources within these areas from the affects of growth, new homes and related infrastructure being built in the area. That is to say, additional resource protections are necessary in the proposed basins due to development pressure. While the parties have sharply disagreed over the extent, if any, of development pressure, it is noted that the coastal areas of Volusia County to the east of the proposed basins are already intensely developed. It can be reasonably expected that the population pressure in those areas will lead to increased development in the proposed basins. In addition, there has already been significant permitting activity in the proposed basins, and the number of binding wetland determinations issued by the District (for future five-year periods of time) indicate future development. It is true, as petitioners assert, that Volusia County’s population grew only 8.7 percent from 1990-1995, or less than the statewide average growth rate of 9.7 percent for the same time period, and that its growth rate is less than many other counties within the District. The evidence shows, however, that by the year 2010, Volusia County’s population is expected to increase by 115,530 people, not an insignificant number. At the same time, there is a concentration of numerous Floridan aquifer wellfields within or adjacent to the new basins. Increased water withdrawals from those wellfields will cause adverse impacts. The coastal communities of Volusia County, who are the primary users of water, project an increase in the need for water by the year 2010 of between 60 percent to 100 percent. Finally, development leads to compacted soils, an increase in impervious surfaces and a loss of habitat for aquatic and wetland dependent species. These result in increased runoff rates, with related higher volumes and rates of stormwater runoff. Also, they cause the introduction of stormwater pollutants such as fuels, oils, heavy metals, fertilizers and pesticide into the water. The establishment of new basins addresses these concerns. Given these considerations, it is found that the designation of the basins as areas of special concern is not without logic or reason. The fact that the basin boundaries had not been separately drawn, or used for planning purposes, by the District prior to May 1994 does not detract from this finding. Therefore, Rules 40C-4.091(1)(a), 40C-41.011 and 40C-41.023, and Handbook Sections 3.3.1 (c) and (f), 11.0(e), 11.5 and Appendix K are not arbitrary or capricous. Recharge standard Rule 40C-41.063(6)(a) and Section 11.5.1 of the Handbook require in part that "[p]rojects, or portions of projects, in the Most Effective Recharge Areas must retain three inches of runoff from the directly connected impervious area within the Most Effective Recharge Area of the project." In addition, Section 18.1 contains a list of Type A soils for Flagler and Volusia Counties to determine whether a proposed project is in the Most Effective Recharge Area. Petitioners contend there is no rational basis for imposing this more stringent permitting criterion. In response to this objection, the District established that the proposed basins are within an area of recharge for the Floridan aquifer. Rainfall is the sole source of freshwater recharge for the Floridan and surficial aquifer systems. In other words, rainfall percolates into the ground and recharges the surficial aquifer which in turn recharges the Floridan aquifer. As noted earlier, the coastal communities of Volusia County have projected an increase of at least 60 percent in the need for water by the year 2010. While there is no direct evidential correlation between water supply demand and population growth, it can be reasonably inferred that the population increase of more than 115,000 persons by the year 2010 will likewise increase the demand for water. As water withdrawals from existing wellfields increase, saltwater intrusion can reasonably be expected to occur in greater proportions. Saltwater intrusion has the effect of contaminating the Floridan aquifer and lowering the surficial aquifer, both of which impact wetland communities and the base flow of streams. To the extent that recharge is diminished, the problems associated with those water withdrawals will be exacerbated. Type A soil, to which the recharge standard applies, has the highest infiltration rate. When impervious surfaces (over Type A soils) are directly connected to a stormwater pond, the rainfall will have an opportunity to percolate into the soil. Through the use of recognized "curve" numbers and historical rainfall data in the vicinity of the proposed basins, the District established that the retention of three inches of runoff in Type A soils should result in post-development recharge approximating pre-development recharge. In view of the above, and the fact that existing ERP, OFW and management of storage of stormwater requirements are not sufficient to provide for equivalent retention of stormwater for recharge purposes, the recharge standard has a rational basis. Therefore, Rule 40C-41.063(6)(a) and Handbook Sections 11.5.1 and 18.1 are not arbitrary and capricious. Floodplain storage criteria Rule 40C-41.063(6)(b) and Handbook Section 11.5.2 establish new floodplain storage criteria for systems in the two basins or any of their tributaries. More specifically, they provide that a system "may not cause a net reduction in flood storage within the 100-year floodplain" of the two basins. Currently, this "no net reduction" standard applies only to development within the 10-year floodplain. The parties agree that flooding has occurred within the boundaries of the new basins. Two factors which affect flooding are excessive runoff and inadequate floodplain storage. The size of a project and the amount of impervious surface are directly related to the amount of runoff generated. The amount of runoff affects flooding conditions in downstream areas. The District also established that fill results in the loss of floodplain storage. The loss of floodplain storage in one area will increase flood elevations in other areas, both upstream and downstream from where the loss of floodplain storage occurs. Compensating storage provides storage volume to make up for the fill that is placed in the floodplain. The new standard requires that systems within the basins must not cause a net reduction in flood storage within the 100-year floodplain. Thus, if an applicant proposes to construct a system which reduces the floodplain’s storage capacity, the applicant will be required to compensate for the lost storage capacity, thereby preventing an increase in flood elevation. Even petitioners’ expert witness Harper agreed that the rule’s objective is a "worthwhile goal." Given these considerations, it is found that the floodplain storage standard is supported by logic and reason, and Rule 40C-41.063(6)(b) and Handbook Section 11.5.2 are not arbitrary and capricious. Stormwater management standard Proposed Rule 40C-41.063(6)(c) and Handbook Section provide generally that when constructing new stormwater management systems which serve drainage areas in excess of 10 acres, an applicant cannot use detention with filtration as the sole stormwater methodology. They also provide that when retention systems are not feasible due to limited percolation capacity, "wet detention treatment or other treatment demonstrated to be equivalent to retention or wet detention . . . must be used." Under current standards, applicants may choose the type and location of stormwater treatment ponds. Thus, instead of locating a detention pond in an area of high filtration, an applicant can choose to locate the detention in an area of low filtration thereby discharging the stormwater to surface waters. The evidence shows that detention with filtration systems fail after a relatively short period of time because pollutants clog the filters that remove them. Once filters clog, water does not filter and the pond does not function as designed. Malfunctioning detention with filtration systems can cause localized water quality violations. The new standard curtails the use of detention with filtration. The evidence further shows that the Tomoka River has moderately elevated levels of nitrogen and elevated levels of total phosphorus. The water quality in Spruce Creek is similar with even higher levels of total phosphorus. Because detention with filtration systems is an ineffective way to remove nitrogen, dissolved phosphorus, and dissolved metals, the receiving water bodies will be improved if the less effective detention of filtration systems is eliminated. The new standard will achieve this goal. Even petitioners’ expert witness Harper acknowledged that the detention with filtration method is a poor stormwater management technique. Based upon the foregoing considerations, it is found that the stormwater management standard is based on logic and reason, and Rule 40C-41.063(6)(c) and Handbook Section 11.5.3 are not arbitrary and capricious, as alleged by petitioners. Riparian Habitat Protection Zone Proposed Rule 40C-41.063(6)(d) and Handbook Section establish an RHPZ along the Tomoka River and Spruce Creek. These new zones provide additional protection over and above that provided under the existing ERP program. As noted earlier, these zones extend a minimum of 275, 320, or 550 feet landward from the waterward edge of the wetlands adjacent to the defined portions of each water course, and they include a minimum 50-foot upland component. The rule and section presume that certain activities within the zones will "adversely affect the abundance, food sources, or habitat of aquatic or wetland dependent species provided by (the) Zone," and to overcome this presumption, an applicant must demonstrate "that the overall merits of the proposed plan of development, including mitigation as described in section 12.3 . . . provide a degree of resource protection . . which offsets adverse effects of the proposed system on the uplands and wetlands within the Zone." Finally, the rule and section provide that "[s]ome reasonable use of the land within the Protection Zone can be allowed." The record contains sharply conflicting testimony regarding the logic and reason for the zones, and the parties have devoted substantial portions of their proposed findings of fact to address this issue. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence, and this evidence is embodied in the findings below. To begin with, similar RHPZs already exist in the Econlockhatchee and Wekiva River Hydrologic Basins, two other geographic areas of special concern. Like the existing RHPZs, the purpose of the new RHPZs is to protect the riparian wetland and upland areas which are necessary to sustain viable populations of aquatic or wetland dependent species. The Tomoka River and Spruce Creek systems are important and critical for the wildlife and overall ecology of eastern Volusia and Flagler Counties. The riparian habitat along the two systems consist of estuarine saltwater marsh, forested wetlands, including cypress and hardwood, freshwater marsh, hammocks, flatwoods, and sandhills. Aquatic and wetland dependent species need a combination of these riparian habitats for feeding, breeding, and nesting. These species are an integral component of the water resources. There is a critical relationship among the biotic components of the water resources such as the living plants and animals. Interdependent relationships exist between all of these components, and if one component is not present, the overall balance and health of the water resource is adversely impacted. Similarly, the entire food chain is impacted by the loss of an aquatic or wetland dependent species from the aquatic or wetland system. The proposed RHPZ widths are based on, and related to, the spatial needs of species rather than a specific width of wetlands and uplands. Spatial requirement is the area an animal needs to perform all of its life functions, such as foraging, breeding, denning, and nesting, without harassment or any kind of detriment in order to maintain a viable population. All experts agree that, in order to sustain a viable population, 50 to 500 individuals must be maintained. Current ERP rules do not provide for this degree of protection for these spatial requirements. Spatial requirement is determined by two methods. One method is to determine the distance for which a species is sensitive to disturbance when it is feeding or nesting. For example, if a species is intolerant to humans and would require a distance of 200 feet away from humans, then that would be the spatial requirement of that species. A second method is to determine a species’ home range requirement. Home range is the area within which a species moves in order to obtain requirements to help sustain life, such as food. For those species for which no data in the literature exists regarding spatial requirements, a technique known as "guilding" is used to group species based upon their nesting and feeding zones. The proposed 550-foot RHPZ width addresses the spatial needs for a majority of aquatic and wetland dependent species in cypress and hardwood swamps. In the salt marshes, the 320-foot width satisfies the spatial needs of a majority of the species. Where the river narrows and the canopy covers the riverbed, there is a uniform habitat not separated by the water body. Therefore, a 275-foot RHPZ straddling the river provides the 550-foot width necessary to maintain viable populations. Under current rules, in order to reduce or eliminate wetland impacts, an applicant may propose a buffer with a minimum width of 15 feet and an average width of 25 feet between the wetland and the system being proposed in order to address the secondary impacts to the habitat of wetlands. This buffer essentially acts as a cushion around the wetlands to protect the wetland habitat from adjacent wetland development. If the wetland is used by a listed species, then additional measures may be required in order to protect the nesting, denning or critical feeding habitat of that species in the wetland. Listed species, however, do not include all aquatic and wetland dependent species, and they include only those that are classified as endangered, threatened, or species of special concern. The new 50-foot upland component will be applied in areas where the wetlands extend beyond the appropriate 550, 320 and 275-foot widths. This extension is necessary and appropriate because the existing rules are designed to protect the intrinsic value of wetland habitat. They do not, however, include protection of the intrinsic value of upland habitat, which is used, for example, by frogs and turtles. In addition, existing rules do not protect upland foraging areas or wildlife corridors except for those limited areas needed for ingress and egress to the nest from the wetland. Finally, most aquatic and wetland dependent species are not a listed species, and thus they receive no upland habitat protection under existing ERP rules. In contrast, the new rule provides protection for spatial needs of all aquatic and wetland dependent species and their use of uplands for foraging, breeding, and nesting. While there are some flaws in the analyses used by the District to justify the zones, collectively there is sufficient credible and persuasive evidence found in the Center for Wetlands Study, the 1990 East Central Florida Regional Planning Council report, detailed ground and air investigations, the District’s regulatory experience, and its permitting experience with basin rules in the Wekiva and Econlockhatchee Basins, which have similar RHPZ dimensions, to support a finding that the rule and section are based on logic and reason. Therefore, Rule 40C- 41.063(6)(d) and Handbook Section 11.5.4 are not arbitrary or capricious. Exemptions Proposed revisions to Rules 40C-4.051(7) and 40C- 41.051(2) exempt from permitting requirements projects which are less than 10 acres in size and of less than 2 acres of impervious surface. Also exempted are single family dwelling units not a part of a larger common plan of development or sale, public road shoulder paving, and systems that qualify for a noticed general permit. In their objection, petitioners have contended that there is no rational basis for exempting these activities, and that in proposing the rules, the District failed to consider the cumulative impacts of these exempt activities. In responding to these objections, the District established that exempt projects are not expected to comprise a large number of permit applications for the basins. Accordingly, such projects will not individually or cumulatively significantly exacerbate flooding problems. From a water quantity standpoint, exempt projects will have a relatively minimal impact, while water quality standards will be preserved through the stormwater permitting program. As to fish and wildlife issues, exempted projects will likewise have a relatively minimal impact. With respect to exemptions for public road shoulder paving, single family dwelling units, and systems that qualify for a noticed general permit, these projects are so small that they are not likely to have a significant adverse impact, either individually or cumulatively. Economic considerations regarding hardships played a role in the District’s decision to exempt projects under the 10- acre threshold. More specifically, criteria designed for larger parcels of land cannot be reasonably applied to small, subthreshold projects without the property owner enduring difficulty and severe hardship. Thus, the 10-acre threshold was chosen as a balance between water resource protection and providing flexibility in project sizes to accomplish project development. Because smaller projects will not need to meet the 25-year, 24-hour water quantity ERP attenuation requirement, land will be saved, and the project designer will have more flexibility when designing a project that is exempted from ERP thresholds. Finally, the District’s stated purpose of not placing an unnecessary burden on citizens attempting to develop small projects is a sound, rational basis for creating the exemptions. Accordingly, Rules 40C-4.051(7) and 40C-41.051(2) are founded on logic and reason, and they are not arbitrary and capricious. Are the Rules Supported by Competent Substantial Evidence? As a corollary to the arbitrary and capricious allegation, petitioners further contend that proposed Rules 40C- 4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C- 41.023, 40C-41.051(2) and 40C-41.063(6)(a), (b) and (d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5.1, 11.5.2, 11.5.4, 18.1 and Appendix K are not supported by competent substantial evidence. In other words, they contend that the underlying factual predicate for the foregoing rules is unreliable, undependable, or untrustworthy. For the reasons cited in the findings in paragraphs 28- 63 it is found that the factual underpinning for Rules 40C- 4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C- 4.023, 40C-41.051(2) and 40C-41.063(a), (b) and (d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5.1, 11.5.2, 11.5.4, 18.1 and Appendix K is sufficiently reliable, dependable and trustworthy so as to constitute competent substantial evidential support for their proposed adoption. Do Rule 40C-41.063(6)(d) and Handbook Section 11.5.4(d) Vest Unbridled Discretion in, and Contain Inadequate Standards to Guide, the District? Petitioners next argue that Rule 40C-41.063(6)(d) and Section 11.5.4(d) of the Handbook are invalid because they fail to establish adequate standards to guide the agency’s determination, and they vest unbridled discretion in the District to make certain determinations. A contention made in the initial petitions that the same rule and section are vague has presumably been abandoned since this ground is not cited in the prehearing stipulation or petitioners’ proposed orders. Subparagraph (6)(d)1. of the challenged rule and paragraph (a) of the section specify that, for those development activities which involve the "construction, alteration, operation, maintenance, removal, and abandonment of a system" within the RHPZ, an applicant "must provide reasonable assurance" that the system "will not adversely affect the abundance, diversity, food sources or habitat (including its use to satisfy nesting, breeding, and resting needs) of aquatic or wetland dependent species." In subparagraph (6)(d)2. and paragraph (b) of the rule and section, it is "presumed" that the following activities will "adversely affect the abundance, food sources, or habitat of aquatic or wetland dependent species provided by the Zone: construction of buildings, golf courses, impoundments, roads, canals, ditches, swales, and any land clearing which results in the creation of a system." Under subparagraph (d)4. and paragraph (d) of the rule and section, the presumption may be satisfied by an applicant demonstrating that the overall merits of the proposed plan of development, including mitigation as described in section 12.3, Applicant’s Handbook: Management and Storage of Surface Waters, provide a degree of resource protection to these types of fish and wildlife which offsets adverse effects of the proposed system on the uplands and wetlands within the zone. Some reasonable use of the land within the protection zone can be allowed under this section. Therefore, the presumption can be rebutted through considerations of subparagraph 6(d)4. and paragraph (d). As explained by the District, the term "overall merits" means that, in the review of the permit application, all of the impacts of the site plan to the surface water resource by the construction of the system will be reviewed. In other words, the District will review the "overall merits" of a system by balancing any detrimental impacts within the RHPZ with beneficial environmental aspects of the plan. The goal, of course, is to achieve a project design whose merits allow a development to proceed and also protect the beneficial functions of the RHPZ. For example, in areas of the development that are not proposed for development, the applicant can provide an ecological benefit by restoring or enhancing functions to a portion of the RHPZ. Where there are areas outside the RHPZ that would add further beneficial functions to aquatic or wetland dependent species, those areas could be set aside and incorporated into an overall protection plan that would be part of the site plan. The District will apply the new "overall merits" standard in a permitting scenario similar to the manner in which the current Wekiva and Econlockhatchee River Basin standards are now being applied. In those hydrologic basins, similar standards, including the "overall merits" criterion, have been applied by the District for a number of years without difficulty, and numerous activities have been authorized within their respective RHPZs. In fact, District records show that only two permits for activities within those basins have ever been denied, while more than 560 permits have been issued since the establishment of the two basins. Further assistance and clarification are found in the mitigation provisions in section 12.3 of the Handbook, which contains fifteen pages of guidance. Both the rule and section specifically provide that "mitigation as described in section 12.3" may be utilized by an applicant in meeting this standard. This provision enables an applicant to offset adverse impacts to the abundance, food sources, and habitat of aquatic or wetland dependent species within the RHPZ by proposing mitigation alternatives described therein. Petitioners contend that these mitigation alternatives are impractical since they do not allow for mitigating upland impacts and that section 12.3 now applies only to the Econlockhatchee and Wekiva River Basins. However, the District established that the use of the techniques described in Section 12.3 will be extended to the two new basins. As to the mitigation of upland impacts, Section 12.3.2.2(d) specifically refers to upland preservation as a mitigation option. It is also noteworthy that petitioners’ expert witness Exum conceded that he has utilized, without difficulty or misunderstanding, the same provisions when processing applications for permits in the Econlockhatchee and Wekiva Basins. Therefore, there are adequate standards within the rule and section to guide the District’s determination of the "overall merits" of an applicant’s proposed development plan. Likewise, that portion of the rule and section do not vest unbridled discretion in the District to determine whether an applicant has rebutted the presumption created by the standard. Petitioners next contend that the provision in Rule 40C-41.063(6)(d)4. and Section 11.5.4(d) which allows an applicant to make "some reasonable use of the land within the Protection Zone" contains inadequate standards and places unbridled discretion in the District. This provision, however, is found to be reasonably specific, given the fact that the amount of development which can be permitted can only be determined on a case-by-case basis after the District considers the specific nature of the unique characteristics of the site, including the proposed development, and the type of water resources that are adversely affected by the development. To establish a fixed percentage of development that would be permissible would be arbitrary. Moreover, the same provision has been fairly applied for a number of years in two other basins, and petitioners’ experts have successfully dealt with this issue without difficulty. Therefore, this portion of the rule and section contains adequate standards and does not vest unbridled discretion in the District. Finally, petitioners contend that the same rule and section vest unbridled discretion in the District to determine what is an "aquatic or wetland dependent species." The evidence shows, however, that petitioners’ witnesses Exum and Godly were aware of the meaning of this term of art, and they had a common understanding of its meaning. Further detail or definition of the term is unnecessary. Therefore, that portion of the rule and section does not vest unbridled discretion in the District. Whether Petitioners’ Lower Cost Proposal Substantially Meets the Statutory Objectives Being Implemented? The District prepared a Statement of Estimated Regulatory Costs (SERC) for the proposed rules, as required by Sections 120.54(3)(b)1. and 120.541, Florida Statutes (Supp. 1996). A summary of the SERC was published with the proposed rules on January 17, 1997, in the Florida Administrative Weekly. On February 6, 1997, Consolidated-Tomoka, but no other petitioners, timely submitted to the District a good faith, lower cost, regulatory alternative to the proposed rules. The District rejected this alternative proposal and provided a statement of its reasons for doing so. The parties have stipulated that the alternative would impose less regulatory costs on petitioners than are imposed by the proposed threshold revisions, recharge standard, floodplain storage criteria, stormwater management standard, and Riparian Wildlife Habitat Zone. Consolidated-Tomoka, joined in by all other petitioners, next contend that Rules 40C-4.041(2)(b) and 40C- 41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.5.1, 11.5.2, 11.5.3, 11.5.4, and 18.1, are invalid because the alternative cost proposal substantially accomplishes the statutory objectives purportedly being implemented through the proposed rules. More specifically, they contend that the current District rules, along with the existing OFW designation of Spruce Creek and the Tomoka River, already provide adequate protection to the water quality and quantity within the proposed basins, and thus the existing rules accomplish the same statutory objectives at a lower cost to petitioners. The proposed revisions to Rule 40C-041(2)(b) and Section 3.3.1(c) and (f) provide that non-exempt systems within the two new basins will be subject to the threshold revisions contained in the rule and section. Thus, they will bring into the ERP regulatory framework projects that now otherwise require only a stormwater permit under Chapter 40C-42. These projects now contribute to flooding and will continue to do so in the future absent a rule change. Because petitioners proposed alternative (of adopting no rule) does nothing to address the flooding caused by these projects, it does not substantially accomplish the statutory objective of protecting water resources. The statutory objective of the proposed recharge standard in Rule 40C-41.063(6)(a) and Sections 11.5.1 and 18.1 is to protect the District’s water resources by replacing groundwater withdrawn from the Floridan aquifer for public consumption with potable freshwater from rainfall. The evidence supports a finding that a need for recharge exists, and petitioners’ own expert agreed that recharge is necessary to maintain groundwater supplies. The alternative that no rule be adopted does not advance the statutory goal of protecting water resources. The statutory objective being implemented by the proposed floodplain storage standard in Rule 40C-41.063(6)(b) and Section 11.5.2 is the protection of water resources by reducing flooding. Under current conditions, flooding problems occur, and existing rules only address floodplain storage for the 10-year floodplain. The new criterion will prevent a decrease in floodplain storage in the 100-year floodplain. This in turn removes the loss of floodplain storage as a cause of flooding, thereby accomplishing the statutory goal. The new standard will ensure that future development will maintain more floodplain storage than is maintained under existing rules and thus create less future flooding potential. The proposal that no standard be adopted does not accomplish this objective. The proposed stormwater management standard in Rule 40C-41.063(6)(d)(c) and Section 11.5.3 implements the District’s statutory objective of protecting the water resources by minimizing the impact of malfunctioning detention with filtration systems on the OFWs in the proposed basins that receive discharges from such systems. Existing regulations allow systems within the proposed basins to utilize detention with filtration systems. Petitioners’ proposal does not prevent this from occurring or address the statutory objective of the law being implemented. Therefore, it is not an appropriate alternative. Finally, as to the RHPZ standard in Rule 40C- 41.063(6)(d) and Section 11.5.4, petitioners contend that the District’s current buffer requirements are sufficient to protect upland habitat utilized by wetland dependent species. They also contend that the establishment of the RHPZ exceeds the District’s delegated legislative authority and thus there is no statutory objective to be implemented. Finally, they argue that the establishment of the RHPZ will not lead to any significant enhancement of the water quality in Spruce Creek or the Tomoka River. As to this proposed standard, the District’s statutory objective is to protect water resources from harm. Aquatic or wetland dependent species are, of course, an integral component of the water resources. If urbanization pressures continue, the two basins will lose valuable habitat for aquatic or wetland species. Current ERP rules do not provide for the protection of the spatial requirements of aquatic and wetland dependent species, such as habitat and food sources, in order to maintain viable populations. Indeed, the current buffer merely provides a cushion to the wetland from the upland development, and it is not designed to maintain nesting habitat for those species. Moreover, current rules only protect the uplands for species that are listed and that use uplands for nesting and denning. Unlisted species receive no protection, and even listed species are not provided habitat necessary to maintain other life functions such as foraging. Therefore, a no-rule alternative does not substantially accomplish the statutory objective of preventing harm to water resources, including the aquatic or wetland dependent species. As noted in paragraph 23, the proposed standard exceeds the District's rulemaking authority. For the reasons cited in the Conclusions of Law portion of this Order, however, this does not mean that the rule cannot substantially accomplish the statutory objective. Therefore, the contention that the prior determination of invalidity mandates a similar determination here is without merit. Finally, as to the contention that the new standard will not lead to any significant enhancement of the water quality, the evidence shows that the standard is not intended to enhance water quality in the streams, and thus the argument is irrelevant.
