The Issue The issue in this case is whether the South Florida Water Management District (SFWMD, or District) should issue a Modification to Environmental Resource Permit (ERP) No. 36-00583- S-02, Application No. 050408-15 to Plantation Development, Ltd. (PDL), for construction and operation of a surface water management system serving a 78.11-acre condominium development known as Harbour Pointe at South Seas Resort, with discharge into wetlands adjacent to Pine Island Sound.
Findings Of Fact Based on the evidence and arguments, the following facts are found: The Parties PDL, the applicant, is a limited partnership which is the successor to Mariner Group, Inc. (Mariner). SFWMD has jurisdiction over PDL's application, as amended, and has given notice of its intent to grant PDL's application, as amended, with certain conditions. Petitioners, CCA and SCCF, and Intervenor, CSWF, are Florida not-for-profit corporations that challenged the proposed ERP. Development and Permit History The property subject to PDL's application was part of approximately 310-acres on the northern end of Captiva Island in Lee County, Florida. Redfish Pass is to the immediate north, separating Captiva Island from North Captiva Island. Farther to the north is Cayo Costa Island, a large island to the south of Boca Grande Pass. Most of Cayo Costa is a State Park. To the south of Captiva Island is Sanibel Island, the site of the Ding Darling National Wildlife Refuge. To the northeast of Sanibel Island and to the east of the rest of the string of barrier islands just mentioned is Pine Island Sound, which is to the west of Pine Island. Pine Island Sound is a state-designated Aquatic Preserve and Outstanding Florida Water (OFW). Pine Island Sound also is state-designated Class II water, but shell-fishing is prohibited in the immediate vicinity of Captiva Island. To the east of Pineland Island is Little Pine Island, which is surrounded by the Matlacha Pass Aquatic Preserve, which includes the Matlacha Pass National Wildlife Refuge. All of these features are part of the Charlotte Harbor National Estuary (CHNE). San Carlos Bay is farther south. The Lee County mainland is to the east of Matlacha Pass and San Carlos Bay. The 310-acre site was purchased by Mariner in 1972 for development of a resort that became known as the “South Seas Plantation.” Mariner's property included both Captiva Island proper and a smaller island immediately to the east across Bryant Bayou to the north and Chadwick Bayou farther to the south. Bryant Bayou has a narrower inlet from the north, and Chadwick Bayou has a narrower inlet to the south. Both inlets lead to Pine Island Sound. When Mariner purchased the property, it theoretically was possible to develop a maximum of 3,900 dwelling units on the 310-acre property, pursuant to Lee County zoning. In 1973, Mariner submitted an application to Lee County for the right to develop of 912 dwelling units on its 310 acres. PDL characterizes this as a "voluntary down-zoning" for the purpose of protecting the environment and unusual for a developer to do at that point in time. However, it is speculative how much more than 912 dwelling units would have been approved by Lee County at the time. The purpose of Mariner’s application to Lee County was to create a resort where recreational, single family, multi- family, and some commercial uses would coexist in a resort setting. The overall development plan was to construct the resort while conserving many of the property’s natural resources, including several miles of mangrove and Gulf of Mexico shoreline. Lee County approved the rezoning and the concept of the South Seas Plantation in 1973. Mariner's development began with Captiva Island proper and included a marina, golf course, and a variety of residential condominiums and single-family home sites. Some of the residential units were sold, and others remained in Mariner's ownership. Mariner marketed the rental of units at South Seas Plantation and served as rental agent for units not owned by Mariner. Development of the marina included dredging, and spoil was deposited on the northern tip of the smaller island, helping to create approximately 1.4 acres of upland there. In the 1950's or 1960's, a natural sand-and-shell berm along the eastern shore of the smaller island was built up and maintained by addition of fill material to create a two-track sand/shell road, which was used for vehicular access to the northern tip via an east-west road that divided the smaller island roughly in half and connected it to Captiva Island proper and the main road at South Seas Plantation. At a later point in time, the east-west portion of the road was paved for better access to a drinking water plant, a wastewater treatment plant, and a helicopter pad used by the Lee County Mosquito Control District. In 1985, Mariner received from SFWMD a “Master Stormwater Permit” for its entire development (the 1985 Permit). At that time, SFWMD did not regulate wetland impacts, only surface water management systems. The Department of Environmental Regulation regulated wetland impacts through its dredge and fill permit program, and there was no evidence relating to any dredge and fill permitting on the property. The 1985 Permit was for surface water management systems for construction in uplands on the property. No surface water management systems were needed or permitted in any wetlands. The 1985 Permit included a surface water management system for an 18-unit hotel on the spoil uplands of the northern tip of the smaller island. Permit drawings showed plans for a golf course on much of the remainder of the smaller island, which consisted mostly of wetlands. Access to the facilities was envisioned to be by water taxi, with emergency access via the utility and sand/shell road. Together, the hotel and golf course was to become a part of the resort known as Harbour Pointe. The 1985 Permit was modified several times in the years since its initial issuance, during which time Chapter 373, Florida Statutes, was amended to give SFWMD authority to regulate activities in waters and wetlands. However, until the pending application, none of the modifications had wetland impacts. In 1998, Mariner negotiated the sale of ten resort properties it owned in Florida, including South Seas Plantation, to Capstar, which later became Meristar S.S. Plantation Co., LLC (Meristar). Meristar was a real estate investment trust which specialized in hotels. Because it was not in the development business, Meristar was not interested in purchasing the as-yet undeveloped Harbour Pointe portion of South Seas Plantation, or Mariner's remaining development rights. As a result, Meristar purchased all the developed land on South Seas Plantation but not the approximately 78 acres of undeveloped land which is the subject of the pending application, or any of Mariner's development rights. Thus, after the sale of South Seas Plantation, Mariner retained its development rights and the 78 acres of undeveloped land, which are the subject of PDL's application. In 2002, Lee County issued an Administrative Interpretation which clarified that those development rights consisted of a maximum of 35 more residential units. Eleven units subsequently were built, leaving a maximum of 24 residential units when PDL filed its application in this case. The 78-acre Harbour Pointe site consists of mangrove wetlands, privately owned submerged lands, the 1.4-acre upland area at the northern tip of Harbour Pointe and another 1.4 acres of upland, which contain a Calusa Indian mound, known as the Chadwick Mound for its location west of Chadwick Bayou. While agreements between Meristar and PDL contemplate that PDL's subsequent development at Harbour Pointe would be marketed as part of the South Seas Resort and share some amenities and services, the parcels which comprise the Harbour Pointe development are the only undeveloped lands PDL owns or controls. PDL has no contractual or other legal right to develop on property owned by Meristar. Because it was modified several times since issuance, the 1985 Permit has not expired. However, Harbour Pointe never was constructed, and that part of the 1985 Permit expired in that Mariner lost its entitlement to proceed with construction. Instead, development of Harbour Pointe would require a permit modification under the new laws and rules, which included the regulation of wetland impacts. The Application and Proposed ERP In October 2003, PDL applied to SFWMD to further modify the 1985 Permit for construction of a water taxi dock for access to Harbour Pointe. After being informed by SFWMD that modifications to the 1985 Permit for development of Harbour Pointe would be reviewed under current laws and regulations, PDL withdrew the application. In April 2005 PDL applied for modification of the 1985 Permit to construct six 9,500 square-foot, four-plex condominium buildings (each two stories over parking, and accommodating units having 3,600-3,800 square feet of air-conditioned living space), a pool and spa, a tennis court, an access road, a filter marsh and surface water management facilities. Additionally, the site plan deleted all boat docks, except for a single water taxi slip and possibly a dock for launching kayaks and canoes and proposed a drawbridge across the inlet to Bryant Bayou to connect the project site to the South Seas Resort and eliminate the need for the emergency access road on the smaller island. This application described a development site of 7.4 acres, which included 4.8 acres of direct impacts to (i.e., destruction and fill of) mangroves and .1 acre of shading impacts from construction of the drawbridge. The proposed mitigation for the mangrove impacts included: restoration (by removal and replanting) of .6 acre of the north-south sand/shell road, with resulting enhancement of the adjacent preserved mangrove wetlands through improved hydrologic connection across the former shell/sand road and improved tidal connection to Pine Island Sound to the east; and preservation of the rest of PDL's property. The preserved areas would include: approximately 36 acres of mangrove wetlands adjacent to and south of the impacted wetlands (included the road to be restored) (Parcel A); 24.5 acres of mangrove wetlands south of the utility road and east of the narrow inlet to Chadwick Bayou (Parcel B); 9.3 acres of mangrove wetlands (7.9 acres) and tropical hardwoods (1.4 acres, which includes the Chadwick Mound), south of the utility road and west of the inlet to Chadwick Bayou, (Parcel C); .9 acre of mangrove wetlands to the west of Parcel C and the South Seas Resort main road (Parcel D); and .8 acre of mangrove wetlands separated from Parcel A by Bryant Bayou and adjacent to the South Seas Resort main road. A monitoring program lasting at least five years was offered to ensure success of the restoration and mitigation proposal. The application itself incorporated some reduction and elimination of wetland impacts. The total site consists of five separate tax parcels which could be developed into a number of single-family home sites. Such a development plan would have greater direct impacts than the proposed project and would require the shell/sand road to be significantly widened to meet current code requirements. By using the bridge as access, .11 acre of wetlands would be disturbed, as compared to 3.9 acres of total impact that would occur because of the widening the road. This approach results in the entire project causing less wetland impact than would occur from the use of the road alone. After the application was filed, PDL responded to two written requests for additional information and several other questions raised during meetings, phone conversations, and email exchanges with one or more SFWMD staff members. During this process, the application was amended. The tennis court was eliminated, and the filter marsh was replaced by a five dry detention ponds. In addition, the resulting development was concentrated more into the northern tip of the island to reduce and eliminate the greater secondary impacts (from more "edge effect") to the preserved wetlands to be expected from a more linear site plan. These changes reduced the footprint of the proposed project to 5.24 acres, the building size to 6,400 square feet each, the residential unit size to 2,400 to 2,600 square feet each, and wetland impacts to 2.98 acres, plus .11 acre of shading impacts from construction of the drawbridge. In addition, since the project was more concentrated at the northern tip, another tenth of an acre of the sand/shell road was to be restored. A conservation easement was offered for the 73.31 acres to be preserved, including 71.10 acres of wetlands, in Parcels A through E. PDL also offered to purchase .11 credits of offsite mitigation from the Little Pine Island Wetland Mitigation Bank (LPIWMB). On February 2, 2006, SFWMD's staff recommended approval of the amended application with 19 standard general conditions and 30 special conditions. Some of the special conditions in the Staff Report addressed prevention of erosion, shoaling, silt, turbidity, and water quality problems during construction or operation; remediation of any such problems not prevented; and restoration of any temporary wetland impacts. A pre-construction meeting was required to discuss construction methods, including construction dewatering. Although PDL indicated that dewatering would not be necessary for construction of the project, the Staff Report recommended that a dewatering plan be submitted before any dewatering occurred and noted that PDL would have to obtain all necessary Water Use authorizations, unless the work qualified for a No-Notice Short-Term Dewatering permit pursuant to Rule 40E- 20.302(3) or is exempt pursuant to Rule 40E-2.051.1 On February 8, 2006, SFWMD's Governing Board gave notice of its intent to approve the amended application with two additional conditions that were added to the Staff Report: PDL was required to apply for and receive a permit modification for the roadway necessary to access the project (i.e., the road leading from the South Seas Resort main road to the proposed drawbridge), and the applicant for the road to the drawbridge was required to document that proposed construction was consistent with the design of the master surface water management system, including land use and site grading assumptions; and a perpetual maintenance program for restored and preserved areas, including removal of exotic and nuisance vegetation in excess of five percent of total cover between regular maintenance activities, or such vegetation dominating any one section, was required to ensure integrity and viability. The parties interpreted the first of the two additional conditions to mean that construction access to build the project would be via the new roadway and drawbridge. On May 30, 2006, to address certain issues raised by the pending challenge to SFWMD's intended action, PDL further amended the application to substitute two wet retention ponds and three dry retention ponds for the five dry detention ponds and to make associated minor changes to the proposed surface water management system's water quality treatment methods to further reduce water quality impacts from the discharge of the system into the adjacent preserved wetlands. In addition, in view of disagreements among the parties as to the ability of PDL's onsite mitigation proposal to offset wetland impacts, PDL offered to increase offsite mitigation by purchasing as many additional credits from the LPIWMB as necessary to completely offset wetland impacts, as determined by the Uniform Mitigation Assessment Methodology (UMAM). Water Quantity Impacts Pursuant to Rule 40E-4.301(1), an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on- site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities. Section 6.0 of the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (BOR), entitled Water Quantity Criteria, outlines the criteria that the applicant must meet for water quality at the project site. As outlined in BOR Section 6.2, the off-site discharge is limited to rates not causing adverse impacts to existing off- site properties. The proposed surface water management system consists of a series of swales, dry retention, and then a wet retention system with an outfall into the areas to the south. Ordinarily, stormwater runoff eventually will be absorbed into the ground. Any discharge associated with the system, typically only in conjunction with major rain events, will flow into a preserved wetland that will be hydrologically connected to Bryant Bayou and Pine Island Sound. As outlined in BOR Section 6.2, the off-site discharge rate is limited to historic discharge rates. As required by BOR Section 6.3, a storm event of 3-day duration and 25-year return frequency is used in computing off- site discharge rates. As required by BOR Section 6.4, building floors must be at or above the 100-year flood elevations. PDL conducted a hydrologic analysis of the existing condition of the property, analyzed the runoff patterns that would result during the 25-year rainfall event and then compared the development plan hydrologic analysis to the existing condition. The conclusion was that the development plan would not adversely affect offsite area. PDL analyzed a series of storm conditions for the protection of road elevations and the protection of finished floors. There are no off-site areas that contribute to runoff through this piece of property. The proposed system will not cause adverse water quantity impacts to waters and adjacent lands, flooding to onsite or offsite properties, or adversely impact existing surface water storage and conveyance capabilities. Water Quality Impacts Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that the proposed project will not adversely affect the quality of receiving waters so that State water quality standards will not be violated. BOR Section 5.0 is entitled Water Quality Criteria. BOR Section 5.1 states that projects shall be designed and operated so that offsite discharges will meet State water quality standards. BOR Section 5.2.1 requires that either retention or detention, or both retention and detention be provided in the overall system in one of the following three ways or equivalent combinations thereof: Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff of 2.5 inches times the percentage of imperviousness, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. Retention volume included in flood protection calculations requires a guarantee of long term operation and maintenance of system bleed-down ability. BOR Section 5.9 states that all new drainage projects will be evaluated based on the ability of the system to prevent degradation of receiving water and the ability to conform to State water quality standards. In the design of the system, PDL proposed a series of best management practices. The first is to treat runoff through grassed swale areas adjacent to buildings and some of the internal roadways. From there, the water would discharge through a series of dry retention areas where there would be further removal and treatment. The water would discharge through a proposed wet retention area prior to outfall under more significant rainfall events, southward into the preserved wetland area. Because of the hydrological connection from there to Bryant Bayou and Pine Island Sound, a more detailed evaluation was conducted. PDL's detailed evaluation included source control measures. The first one is a construction pollution prevention plan. PDL also proposed an urban storm water management plan. PDL is going to provide guidance to property owners about pesticide and fertilizer management control. The Applicant also submitted a street-sweeping proposal. The design of the system incorporates an additional 50 percent water quality treatment volume, over and above the requirements of the BOR. The wet retention system, located to the north of the proposed outfall structure, incorporates submerged aquatic vegetation. That is not a requirement of the District. It is an extra measure that will remove additional levels of pollutants prior to outfall. PDL proposed an urban stormwater management plan. The plan requires annual inspection of the water management facilities, and it must be documented that the system is functioning as originally designed and built. The stormwater management system is capable, based on generally accepted engineering and scientific principles, of functioning as proposed. The stormwater management system satisfies the District's water quality criteria. Petitioners and Intervenor criticized the method used by PDL's water quality consultant, Dr. Harvey Harper, for projecting and evaluating water quality impacts to be expected from PDL's stormwater management design. They contended that the so-called "Harper method" has been criticized by other experts, none of whom testified. Dr. Harper ably defended himself against the criticism leveled at him. He testified that most if not all of the components he has incorporated into his evaluation method are not new but rather have been accepted and used by experts in his field for years. He also explained that he refined his evaluation method in response to some early criticism and that the method he used in this case has been peer-reviewed and accepted by the Department of Environmental Protection for evaluation of stormwater design criteria. While some of the assumptions incorporated in his evaluation method are simple averages of a relatively small samples, and sometimes averages of averages, Dr. Harper was confident in the ability of his method to accurately evaluate the expected water quality impacts from PDL's system. While there is potential for error in any projection, Dr. Harper's evaluation provided reasonable assurances that utilization of PDL's proposed stormwater management and treatment method will not result in violation of any State water quality standards or significantly degrade the water quality of Bryant Bayou or Pine Island Sound. Value of Wetland and Surface Water Functions In general, as part of the CHNE, the mangrove wetlands to be impacted by the proposed ERP are very important. The CHNE Coast Conservation Management Plan identifies three major threats to the estuary and local ecosystem: fish and wildlife habitat loss; water quality degradation; and hydrological alteration. The plan calls for the preservation of mangroves within the CHNE. A wide array of wildlife uses the habitat in the vicinity of the mangrove wetlands to be impacted. The site is in an important coastal fly-way for migratory birds, including numerous species of waterfowl and songbirds that migrate across the Caribbean and Gulf of Mexico to and from South and Central America. The project area also provides habitat for several listed wildlife species, including the American crocodile, wood stork, and West Indian manatee. The mangrove wetlands that will be impacted directly and indirectly by the proposed ERP are in relatively good condition and are very important due primarily to their location near Redfish Pass at the northern end of Captiva Island and to their relationship to the rest of the relatively large area of contiguous and relatively undisturbed wetlands in Parcels A through E. These attributes make them especially important as a nursery ground for several valuable fish species. Existing impacts attributable to the spoil and other disturbances in the adjacent uplands, the northernmost extent of the sand/shell road, and the South Seas Plantation/Resort development to the west across the inlet to Bryant Bayou keep these impacted wetlands from being of the very highest quality. Clearly, and obviously, the project will destroy and fill 2.98 acres of these wetlands. Indirect (secondary) impacts to the adjacent preserved wetlands will result from alteration of hydrology of the 2.98 acres of directly impacted wetlands. Instead of sheet-flowing across the uplands on the northern tip of Harbour Pointe into those wetlands, surface water on the 5.24- acre development project will be directed into a series of swales, to the dry retention ponds, and to the wet retention ponds with an outfall to the adjacent preserved wetlands to the south. Secondary impacts from the Harbour Pointe project will be similar to the existing secondary impacts to the 2.98 acres attributable to the adjacent spoil and the South Seas Plantation/Resort development, if not somewhat greater due to the absence of any buffer like the inlet. On the other hand, PDL's mitigation proposal will restore .7 acre of wetlands where the northern end of the north- south sand/shell road now exists. Eventually, the restored wetland would be expected to become an extension of the existing, adjacent red and basin black mangrove forest. In addition, the resulting improved hydrologic connection to Pine Island Sound will enhance the value of functions in the preserved wetlands, including possibly expanding the existing fish nursery and making it accessible to fish larvae and juvenile fish entering from the east as well as from the west via Bryant Bayou. There was much debate during the hearing as to whether the sand/shell road is natural or man-made and whether it is reducing what otherwise would be the natural tidal and hydrologic connection between the wetlands to the west of the road and Pine Island Sound. As indicated, a prior owner added fill material to the natural sand and shell berm in the 1950's and 1960's to create better vehicular access. See Finding 9, supra. The evidence was reasonably persuasive that those man-made changes have altered hydrology and tidal connection to some extent and that the restoration project will enhance the value and functions of the preserved wetlands to some extent. Impacts to the value of wetland and surface water functions, and corresponding mitigation for impacts, are required to be assessed using UMAM. See Fla. Admin. Code R. 62-345.100. While the mitigation assessment method might be uniform, its application and results are not. Three different experts used UMAM with differing results. SFWMD's expert, Mr. Cronyn, and PDL's consultants, Kevin L. Erwin Consulting Ecologist, Inc. (KLECE), conferred after their initial assessments, resulting in changed results by both (as well as correction of errors in initial scoring by Mr. Cronyn.) Dave Ceilley, an expert for Petitioners and Intervenor, scored the 2.98 acre impact area significantly higher in its current state than the final score of either Mr. Cronyn or KLECE, resulting in a higher functional loss from its destruction and filling. He also gave no credit for restoration of the sand/shell road, in contrast to KLECE and Mr. Cronyn, and scored PDL's mitigation proposal as it affected 36.6 acres of preserved wetlands (essentially, Parcel A) as a functional loss instead of a functional gain, as scored by KLECE and Mr. Cronyn. Mr. Ceilley also scored PDL's mitigation proposal as it affected 24.5 acres of preserved wetlands (Parcel B) as a functional loss instead of a functional gain, as scored by KLECE and Mr. Cronyn. Finally, he gave no credit for preservation of Parcels A through E via a conservation easement because he was under the mistaken impression that the land already was under a conservation easement in favor of Lee County. (Actually, PDL had agreed to preserve 65 acres of mangrove forest in return for the right to develop Harbour Pointe, although a conservation easement actually was imposed on only about six acres. Although not identified, the 65 acres probably would have included the preserved wetlands in the proposed ERP.) Mr. Cronyn gave credit for preservation of Parcels B through E. KLECE did not claim credit, because KLECE did not think it was necessary, but KLECE accepts Mr. Cronyn's assessment of those parcels. Mr. Ceilley's recent onsite field work was extremely limited, and much of his assessment was based general knowledge of the area and dated (14-year old) onsite field work. In addition, this was the first "real-life" UMAM assessment performed by Mr. Ceilley. His only other use of UMAM was for practice in training. Finally, his assessment was entirely independent without the input of any other consultants to aid him. In contrast, both KLECE and Mr. Cronyn had extensive prior experience using UMAM. In addition, KLECE functioned as a three- man team in performing its UMAM assessments and talked out any initial discrepancies and disagreements (albeit with Mr. Erwin being the final arbiter). KLECE and Mr. Cronyn also consulted with one another, as well as experts in other related fields before finalizing their respective UMAM assessments. KLECE was able to draw on field work conducted during over 200 man-hours onsite in recent years. While KLECE was the retained consultant and agent for the applicant in this case, Mr. Ceilley conceded that Mr. Erwin adheres to high ethical standards. Petitioners and Intervenor were critical of credit given in the UMAM assessments performed by Mr. Cronyn for preservation of Parcels B through E. (KLECE did not claim credit for their preservation in its UMAM assessment.) Petitioners and Intervenor contend that PDL already has agreed to preserve the wetlands in those parcels in return for the ability to utilize the remaining 24 residential units of development rights at Harbour Pointe and that development of the Chadwick Mound is unlikely. Actually, as found, PDL's agreement with the County only specified six of the 65 acres of wetlands to be preserved. Besides, the preserved wetlands in the proposed ERP would implement the agreement with the County. As for the Chadwick Mound, preservation without the proposed ERP is not a certainty, although residential development there would be difficult now that its existence is common knowledge. In any event, the relative unlikelihood of development in Parcels A through E, especially after development of 24 units at Harbour Pointe, was taken into consideration by Mr. Cronyn in determining the amount of credit to be given for their preservation. Taking all the evidence into account, Mr. Cronyn's UMAM assessment of the value of wetland functions with and without the proposed ERP are accepted. According to his assessment, the proposed ERP will result in a functional loss of .34 functional units, meaning an equivalent amount of mitigation credit would have to be purchased from the LPIWMB to offset wetland impacts. Based on the functional assessment used to permit that mitigation bank, approximately an additional .9 of a mitigation bank credit would be needed, in addition to the .11 already offered. The evidence as to cumulative impacts did not clearly define the pertinent drainage basin. Logically, the pertinent drainage basin either would encompass all land draining to surface waters connected to Pine Island Sound, which would include Little Pine Island, or would be limited to the land that is subject to the proposed ERP. If the former, all offsetting mitigation would be within the same drainage basin. If the latter, there would be no cumulative impacts, since the proposed ERP would complete all development. Reduction and Elimination of Wetland Impacts According to BOR Section 4.2.1.1, if a proposed surface water management system will result in adverse impacts to wetland or other surface water functions such that it does not meet the requirements of Sections 4.2.2 through 4.2.3.7, the District must consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts. The term "modification" does not mean not implementing the system in some form, or requiring a project that is significantly different in type or function, such as a commercial project instead of a residential project. Elimination and reduction also does not require an applicant to suffer extreme and disproportionate hardship--for example, having to construct a ten mile-long bridge to avoid half an acre of wetland impacts. However, Anita Bain, SFWMD's director of ERP regulation, agreed that, in interpreting and applying BOR Section 4.2.1.1, "the more important a wetland is the greater extent you would require elimination and reduction of impact." As reflected in Findings 17-19, supra, PDL explored several design modifications in order to reduce and eliminate impacts to wetland and other surface water functions. However, several options for further reducing and eliminating wetland impacts were declined. PDL declined to eliminate the swimming pool and move one or more buildings to the pool's location at the extreme northern tip of Harbour Pointe because that would not be a practicable means of reducing the Harbour Pointe footprint. First, the undisputed testimony was that a residential building could not be sited as close to the water's edge as a swimming pool could. Second, because it would block the view from some of Meristar's residential properties, and Meristar has the legal right to approve or disapprove PDL's development on Harbour Pointe. PDL declined to reduce the number of buildings because, without also reducing the number and/or size of the residential units, reducing the number of buildings would make it difficult if not impossible to accommodate all cul-de-sacs required by Lee County for use by emergency vehicles and meet parking needs beneath the buildings, as proposed. (In addition, it would reduce the number of prime corner residential units, which are more marketable and profitable.) PDL declined to further reduce unit size because a further reduction to 2,000 square feet would only reduce the footprint of the six proposed buildings by a total of 5,000 square feet--less than a ninth of an acre. Reducing unit size to much less than 2,000 square feet would make it difficult if not impossible to market the condos as "luxury" units, which is what PDL says "the market" is demanding at this time (and also what PDL would prefer, since it would maximize PDL's profits for the units.) But it was not proven that smaller condos could not be sold at a reasonable profit. PDL declined to reduce the number of condo units at Harbour Pointe (while maintaining the conservation easement on the remainder of PDL's acreage, which would not allow PDL to develop all of the 24 dwelling units it wants to develop and is entitled to develop on its 78 acres, according to Lee County). However, it was not proven that such an option for further reducing and eliminating wetland impacts would not be technically feasible, would endanger lives or property, or would not be economically viable. With respect to economic viability, SFWMD generally does not examine financial statements or profit-and-loss pro formas as part of an analysis of a site plan's economic viability. This type of information is rarely provided by an applicant, and SFWMD does not ask for it. As usual, SFWMD's reduction and elimination analysis in this case was conducted without the benefit of such information. Rather, when PDL represented that any reduction in the number of units would not be economically viable, SFWMD accepted the representation, judging that PDL had done enough elimination and reduction based on the amount of wetland impacts compared to the amount of wetlands preserved, in comparison with other projects SFWMD has evaluated. As Ms. Bain understands it, "it's almost like we know it when we see it; in that, you wouldn't ask an applicant to build a ten-mile bridge to avoid a half an acre wetland impact, so something that's so extreme that's obvious, rather than how much profit would a particular applicant make on a particular project." Although SFWMD did not inquire further into the economic viability of modifications to reduce and eliminate wetland and surface water impacts, Petitioners and Intervenor raised the issue and discovered some profit-and-loss pro formas that were presented and addressed during the hearing. A pro forma prepared in August 2003 projected a profit of $2.79 million for the first 8 of 12 units and an additional $1.72 million profit on the next four units (taking into account construction of a drawbridge and road to the west at a cost of $1.8 million). This would result in a total profit of $4.51 million, less $800,000 for a reserve to pay for maintenance of the drawbridge (which PDL said was required under timeshare laws). Another pro forma prepared in February 2004 projected profits of $11.99 million on 16 "big-sized" units (3,000 square feet), $11.81 million on 20 "mid-sized" units (2,200 square feet), and $13.43 million on 24 "mixed-size" units (16 "mid- sized" and 8 "small-sized" at 1,850 square feet), all taking into account the construction of the drawbridge and road at a cost of $1.8 million. After production of the earlier pro formas during discovery in this case, PDL prepared a pro forma on June 7, 2006. The 2006 pro forma projected net profit to be $4.9 million, before investment in the property. However, PFL did not make its investment in the property part of the evidence in the case. In addition, Petitioners and Intervenor questioned the validity of the 2006 pro forma. PDL answered some of the questions better than others. To arrive at the projected net profit, PDL projected significantly (33%) higher construction costs overall. The cost of the drawbridge and road to the west was projected to increase from $1.8 million to $2.5 million. Based on its experience, PDL attributed the increase in part to the effect of rebuilding activity after Hurricane Charlie and in part to the effect of Sanibel Causeway construction (both increased overweight charges and limitations on when construction vehicles could cross the causeway, resulting construction work having to be done at night, at a significantly higher cost). At the hearing, PDL did not present any up-to-date market surveys or other supporting information on construction costs, and the Sanibel Causeway construction is expected to be completed before construction on the Harbour Pointe project would begin. In addition, without a full enough explanation, PDL replaced the bridge operation and maintenance reserve of $800,000 with an unspecified bridge reserve fund of $2 million. On the revenue side of the 2006 pro forma, gross sales of $1.9 million per unit were projected, which is less than PDL was projecting per square foot in February 2004, despite the assumed increased construction costs. PDL also attributes this to the effects of Hurricane Charlie. Again, there were no market surveys or other information to support the pricing assumptions. Besides predicting lower price potential, the 2006 pro forma deducts a pricing contingency of $2.3 million. PDL did not calculate or present evidence on whether it could make a profit building and selling 16 or 20 units, thereby eliminating a building or two (and perhaps some road and stormwater facility requirements) from the project's footprint. The absence of that kind of evidence, combined with the unanswered questions about the 2006 pro forma for the maximum number of units PDL possibly can build, constituted a failure to give reasonable assurance that wetland and surface water impacts would be reduced and eliminated by design modifications to the extent practicable, especially given the very high importance of the wetlands being impacted. Public Interest Test An ERP applicant who proposes to construct a system located in, on, or over wetlands or other surface waters must provide reasonable assurances that the project will “not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest.” § 373.414(1)(a), Fla. Stat.; Rule 40E-4.302(1)(a); and SFWMD BOR Section 4.2.3. This is known as the “Public Interest Test,” and is determined by balancing seven criteria, which need not be weighted equally. See Lott v. City of Deltona and SJRWMD, DOAH Case Nos. 05-3662 and 05-3664, 2006 Fla. Div. Adm. Hear. LEXIS 106 (DOAH 2006). The Public Interest criteria are as follows: Whether the activity will adversely affect the public health, safety or welfare or the property of others. There are no property owners adjacent to the site, and the closest property owners to the site are located across the inlet which connects Bryant Bayou to Pine Island Sound. While mangrove wetlands generally provide maximum protection from hurricanes, it does not appear from the evidence that existing conditions would provide appreciably more protection that the conditions contemplated by the proposed ERP. Otherwise, the project would not adversely affect the public health, safety or welfare, or property of others. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed ERP would impact (fill and destroy) 2.98 acres of very important, high quality mangrove wetlands. Even with the restoration or creation of .7 acre of probable former wetlands and improvements in the hydrologic connection of the 36.5-acre preserved wetland (Parcel A) to Pine Island Sound, the proposed ERP probably will have a negative effect on the conservation of fish and wildlife, including listed species. However, the negative effect would not be considered "adverse" if the elimination and reduction requirements of BOR 4.2.1.1 are met. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed drawbridge will be constructed over the inlet connecting Bryant Bayou with Pine Island Sound, a distance of approximately 65 feet. Boaters use the inlet for navigation. However, by its nature, a drawbridge allows for and not adversely affect navigation. The proposed ERP does not contain specifics on operation of the drawbridge, but PDL's consultant, Mr. Erwin, testified that there would be no adverse effect on navigation, assuming that the bridge would remain in the open position between use for crossings by road. The drawbridge would not adversely affect the flow of water or cause harmful erosion or shoaling. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The question whether the proposed ERP will adversely affect fishing or recreational values is informed by both the UMAM functional assessment and the reduction and elimination analysis. If impacts to wetlands and surface waters are reduced and eliminated, and offset by mitigation, there should be no significant adverse effects on fishing and recreational values. Whether the activity will be of a temporary or permanent nature. The proposed development is permanent in nature. vi. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, Florida Statutes. There are no significant archaeological resources on the Harbour Pointe project site. Although shell scatter left by the Calusa Indians has been found on Parcel A, they have been evaluated in the permit application process by Corbett Torrence, an archeologist, and found to be of limited historical or archaeological value. The reduced scope of the project avoids most of these areas. The proposed ERP will, however, enhance significant archaeological resources by placing a conservation easement on Parcel C, which is the site of the Chadwick Mound, one of the largest Calusa Indian mounds in Lee County. Further studies of this site could lead to a much better understanding of the Calusa culture. This Indian mound is a very valuable historical treasure, and its protection through inclusion in a conservation easement is very much in the public interest. vii. The current condition and relative value of functions being performed by areas affected by the proposed activity. This subject also was considered in the reduction and elimination analysis and in the UMAM functional assessment. As in the Findings the current condition and relative value of the functions being performed by the areas affected by the proposed activity are very valuable. That is why the reduction and elimination analysis is particularly important in this case. Assuming appropriate reduction and elimination, mitigation according to the UMAM assessment can offset unavoidable impacts to the functions performed by the areas affected by the proposed activity. Standing of CCA, SCCF, and CSWF CCA, SCCF, and CSWF each has at least 25 current members residing within Lee County and was formed at least one year prior to the date of the filing of PDL's application. CCA's mission statement includes protection of "our residents' safety, the island ecology, and the unique island ambience . . . ." CCA also is dedicated to "preserving and expanding, where possible, the amount of native vegetation on Captive Island" and preservation of natural resources and wildlife habitat on and around Sanibel and Captiva Islands. SCCF's mission is the preservation of natural resources and wildlife habitat on and around Sanibel and Captiva. It manages just over 1,800 acres of preserved lands, including mangrove forest habitat similar to that being proposed for development by PDL. Management activities involve invasive non- native plant control, surface water management, prescribed burning, native plant habitat restoration and wildlife monitoring. CSWF's purpose is to sustain and protect the natural environment of Southwest Florida through policy advocacy, research, land acquisition and other lawful means. Its four core programs are: environmental education; scientific research; wildlife rehabilitation; and environmental policy. Of CCA's 464 members, approximately 115 live within the boundaries of South Seas Plantation/Resort. Approximately 277 of SCCF's 3,156 members live on Captiva Island, and 40 live within the boundaries of South Seas Plantation/Resort. The members of CCA and SCCF who own property on Captiva Island rely on the mangrove systems for protection from storms. A substantial number of the Captiva Island residents and the other members of CCA and SCCF engage in recreational activities in the vicinity of PDL's property, including boating, fishing, bird-watching, wildlife observation, and nature study that would be adversely affected by significant water quality and wetland impacts from the proposed ERP. CSWF has 5,600 family memberships, approximately 400 in Lee County, and 14 on Sanibel. No members live on Captiva Island. There was no evidence as to how many of CSWF's members use the natural resources in the vicinity of the proposed ERP for recreational purposes or otherwise would be affected if there are water quality and wetland impacts from the proposed ERP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the proposed ERP be denied; however, if wetland and surface water impacts are reduced and eliminated to the extent practicable, the proposed ERP should be issued with the additional conditions, as represented by PDL's witnesses: that the proposed drawbridge be left drawn except when in use for road access; that construction access be via the proposed drawbridge only; and that there be no construction dewatering. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th of November, 2006.
Findings Of Fact The Parties and the Property. The Respondent, HORNE, owns or has options to purchase approximately 24.35 acres of real property at the southwest corner of U.S. Highway 41 and State Road 50 Bypass in Brooksville, Florida. The Petitioner, the ASSOCIATES, owns approximately 67.5 acres of real property to the south and downstream from the HORNE property. The ASSOCIATES' property is presently undeveloped. The HORNE property contains an existing Publix shopping plaza, a mobile home sales office and vacant lands. The Publix plaza was previously permitted by the DISTRICT before it was constructed. The Surface Water Permit Application On August 7, 1992, HORNE submitted its application for surface water permit No. 400317.02. The application sought approval to construct a surface water management system for a proposed new K-Mart store on HORNE's property. On November 3, 1992, the DISTRICT issued notice of final agency action approving issuance of permit No. 400317.02 to HORNE. The day before the original final hearing in this matter scheduled for March 1993, new information from a study called the Peck Sink Watershed Study came to light which rendered the project as then designed unpermittable. This information resulted in the surface water management system being redesigned. On April 1, 1993, the DISTRICT notified all of the parties that the redesigned surface water management met District rule criteria. This resulted in issuance of what became known as the April 1 submittal. On May 12, 1993, in response to concerns raised by the ASSOCIATES at depositions on May 10, 1993, HORNE produced the May 12 submittal and provided it to all parties on that same date. The changes in design reflected on the May 12 submittal related to lowering the pond bottoms one foot below the orifices and changing the contour lines on the outside of Pond 5A. On May 13, 1993, further minor changes were made to the permit materials. Specifically, the changes were: reflecting on the engineering worksheets the lowering of the pond bottoms accomplished on the May 12 submittal, correction of the contour line on the outside of Pond 5A and showing the amount of additional fill into the 100-year floodplain caused by the addition of the contour line to the outside of Pond 5A. In reviewing HORNE's application, the District applied the standards and criteria set forth in Chapter 40D-4, Florida Administrative Code, and the Basis of Review for Surface Water Management Permit Applications. Compliance with DISTRICT Permitting Criteria Water Quantity The main two areas considered by the DISTRICT in assessing water quantity in a closed basin are: attenuating the peak rate of discharge for the 25 runoff for the 100 The peak rate of runoff for this project for the 25 (2) cubic feet per second (cfs) less in the post-developed condition than in the pre-developed condition, as shown on the April 1 submittal. No changes were made between the April 1 and May 12 or 13 submittals relating to the peak rate of discharge. The difference in the volume of runoff between the pre-developed and post-developed condition during the 100-year storm is being retained on site, as shown on the April 1 submittal. Therefore, DISTRICT rule criteria for the peak rate and volume of runoff were met on the April 1 submittal. Lowering the bottoms of the detention ponds on the May 12 and 13 submittals resulted in additional post 100 system, as redesigned to retain this additional 100-year volume, exceeds the DISTRICT's 100 Floodplain Encroachment Under the DISTRICT's floodplain encroachment standards, any fill within the 100 out an equivalent volume of fill elsewhere on the property. HORNE's application satisfies the DISTRICT's floodplain standards. HORNE is filling 1.59 acre feet of the floodplain and creating 1.75 acre feet of compensation. The floodplain compensation will be above the seasonal high water table, as required by Section 3.2.1.4 of the DISTRICT's Basis of Review. The original, existing seasonal high water table will be lowered as a result of the excavation so that the entire floodplain compensation area will be above the seasonal high water table. Water Quality A wet detention system as proposed by HORNE is an acceptable means under the DISTRICT's rules of treating runoff for water quality purposes. The bottoms of the ponds, as shown on the May 12 submittal, are all at least one foot below the orifice elevations, as required by the Basis of Review. Thus, the project met all relevant DISTRICT water quality requirements as of the May 12 submittal. Operation and Maintenance DISTRICT rules require that reasonable assurances be provided that the surface water management system can be effectively operated and maintained. HORNE will be the operation and maintenance entity for this surface water management system. The DISTRICT's main concerns at the time of permit review are that the design of the surface water management system not be an exotic design, that the design insure that littoral zones can be established, that the system orifice can be cleaned, that the overall system will be stable and that there is a viable operation and maintenance entity. HORNE's project can be effectively operated and maintained. Remaining District Rule Criteria As stipulated to by the parties that the project will not cause adverse impacts to wetlands and will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it in Chapter 40D Additionally, the proof establishes that the project will not cause adverse impacts on surface and groundwater levels and flows will not adversely affect the public health and safety; is consistent with the requirements of other public agencies; will not otherwise be harmful to the water resources within the District; will not interfere with the legal rights of others as defined in Rule 17 Objections Raised by the ASSOCIATES at the Hearing Pond Slopes and Operation and Maintenance Contrary to the assertion that the pond slopes will not be stable and cannot be effectively operated and maintained, the pond side slopes at this project are going to be constructed out of a heavy clay type of soil. Sodded side slopes of 1:1, as proposed for three of the ponds, can be stabilized and effectively operated and maintained. Although there is no DISTRICT requirement that sodded side slopes be mowed, so on these slopes could, if necessary, be cut. In the event the side slopes were to erode, easy repair is possible. All of the ponds except one side of one pond have areas at least 20 feet wide and slopes no steeper than 4:1 where maintenance can be performed. With regard to the pond that does not have this characteristic, equipment can enter and perform necessary maintenance. Water Quality Treatment Concerns that at least a portion of the bottoms of the ponds need to be below the seasonal high water table and that circulation of the ponds needs to be maximized in order to meet water quality treatment criteria are misplaced since there is no requirement that the pond bottoms be below the seasonal high water table in wet detention systems such as the one at issue in this case. Further, the entire bottoms of the ponds are littoral zone and meet DISTRICT rule requirements that 35 per cent of the pond be littoral zone, concentrated at the outfall. Additionally, the ponds at issue maximize circulation through the location of points of inflow and outflow. Floodplain Mitigation Concerns that volume in the floodplain mitigation area is not available because of problems with the seasonal high water table are also misplaced. Specifically, the floodplain area encroachment requiring mitigation relates to Pond 5A. There is more than enough volume within the area which will be excavated to compensate for the area where the fill will be deposited. The seasonal high water table will be at or below the floodplain mitigation area after the required excavation takes place. Although the seasonal high water table will be lowered where the excavation or cut is made and later raised where the fill is placed, no adverse effects on the water table will result from such lowering and raising of the water table. Volume In Pond 5A Allegations that the May 12 and 13 submittals reflect that Pond 5A has less volume available than the modeling calculations contemplate are incorrect. The changes in the contour lines of Pond 5A on the May 12 and 13 submittals from what was shown on the April 1 submittal occurred on the outside of the pond. The volume on the inside of the pond was not reduced actually increased when the pond bottom was lowered for water quality purposes. In determining how much volume a pond is to have when it is constructed, the computer modeling figures take precedence over the scaled plan drawings. In this case, the computer modeling figures never changed after the April 1 submittal. HORNE submitted a computer model that calculated the volume of Pond 5A. The output data clearly reflects that the top of the bank was 82 feet. Publix's Status as an Existing Site Assertions that the Publix site should have been considered in its pre-developed state since there will be approximately one acre foot of volume of runoff, or possibly less, leaving the site without retention are without validity. The Publix plaza was permitted by the DISTRICT in 1985 and constructed in 1986. The amount of peak flow discharge and overall discharge is currently authorized by a valid MSSW permit. When the DISTRICT reviews a permit application, all existing permitted surface water management systems must be accepted in their present state. There is no authority in the DISTRICT's rules to consider an existing permitted site in its pre Even if the Publix site is considered in its pre project has only .02 of an acre foot more volume of runoff in its post-developed condition than in the pre Storage of 100-Year Volume Allegations that the amount of 100-year volume being retained on site in the ponds has been incorrectly calculated by the DISTRICT and HORNE are also invalid. The DISTRICT's rules require that the difference between the pre- and post-development volume for the 100-year storm be retained on site. In the ponds which are the subject of this proceeding, the 100-year volume is retained in the ponds below the orifice. This volume cannot leave the site through the orifice; it can only leave the site by percolation into the ground or evaporation into the air.
Recommendation Based on the foregoing, it is recommended that the Southwest Florida Water Management District enter a final order granting HORNE's Application for Surface Water Management Permit No. 400317.02. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. DON W. DAVIS 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 25th day of June, 1993. APPENDIX The following constitutes my rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties Proposed findings submitted by Petitioners (Petitioner's proposed findings begin at paragraph number 13.) 13.-19. Accepted. 20.-30. Rejected, unnecessary. 31.-44. Rejected, subordinate to hearing officer findings. 45.-47. Accepted. 48.-77. Rejected, subordinate to hearing officer findings. 78.-79. Rejected, recitation of documents. 80.-84. Rejected, weight of the evidence. 85.-88. Rejected, unnecessary. 89.-93. Rejected, weight of the evidence. 94.-95. Rejected, unnecessary. 96. Accepted. 97.-98. Rejected, subordinate, weight of the evidence. 99.-100. Rejected, unnecessary. 101.-126. Rejected, subordinate. 127. Accepted. 128.-129. Rejected, unnecessary. 130.-135. Rejected, argument. 136.-144. Rejected, weight of the evidence. Respondents Joint Proposed Findings. 1.-56. Accepted, though not verbatim. 58.-59. Rejected, unnecessary. COPIES FURNISHED: David Smolker, Esquire Honigman, Miller, Schwartz & Cohn 2700 Landmark Centre 401 East Jackson Street Tampa, Florida 33602 Rodney S. Fields, Jr., Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Richard Tschantz, Esquire Mark F. Lapp, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
Findings Of Fact The land here involved is located at the southern end of the Acme Improvement District. The northeastern portion of the tract is owned by Petitioner Leonard H. Tolley, and comprises some 15 percent of the total acreage of the tract. The remainder of the tract is owned by Petitioner Strazulla Brothers. The entire tract includes Sections 3 and 4, Township 455 Range 41E and a parcel of land in The Township 44 1/2 S Range 41E adjacent to Sections 3 and 4 and comprises some 1400 acres. The Strazulla property was acquired by Warranty Deed from the Trustees, Internal Improvement Trust Fund, by Philip Strazulla and subsequently conveyed to Petitioner. In 1978 real property taxes on the Strazulla property here involved was $17,453.42. The tract is bounded on the west by the L-40 levee and canal, on the north by Acme Improvement District Dike and C-27 Canal; on the east by property owned by Miller American Industries and on the south by property owned by the South Florida Water Management District. By this application Petitioner proposes to place levees with their borrow canals on the east and south sides of the tract and to construct a 240 acre reservoir adjacent to the L-40 levee by erecting a reservoir retention levee some 1400 feet eastward of the L-40 levee. By installing a 100,000 gallon per minute pump station at the southeast corner of the proposed reservoir, the water presently standing on the property could be drained allowing the eastern portion of the tract to be converted to agricultural use and the remainder converted into 2.5 acre residential sites. The 1972 Palm Beach County land use plan recommended the area here involved be zoned Preservation/Conservation, which effectively precluded development of the property. At that time, Strazulla attempted to sell the property or trade it to a governmental agency for property that could be developed, but without success. In 1978, the Palm Beach County Land Use Advisory Board changed the 1972 land use recommendation to Residential Estate to allow a reasonable use of the property. (Exhibit 7). The property abutting Petitioners' property to the north has been drained and thereon is located an orange grove and, west of the orange grove, 5- acre residential homesites. The property to the east is being developed as residential homesites. The property west of the C-40 canal comprises the Loxahatchee National Wildlife Refuge consisting of some 221 square miles of traditional Everglades wetlands. The property to the south is owned by the South Florida Water Management District and is of a character similar to Petitioners' property. Some two to three miles south of Petitioners' property is an east-west canal. In 1900 the property here involved was located in the eastern part of the Florida Everglades and received the sheet flow that characterized the natural Everglades. This historic hydroperiod has been disrupted by levees at Lake Okeechobee and by various drainage and irrigation canals constructed to render the large tracts of land thereby drained suitable for agriculture. In the immediate vicinity of the property, the L-40 levee and canal, which enclose the Loxahatchee National Wildlife Refuge (hereafter referred to as the conservation area) form a barrier to any sheet flow from this property onto the conservation area. This levee and canal bars practically all interchange of waters between Petitioners' property and the conservation area and is in the process of destroying part of the historical eastern boundary of the Everglades. Erection of the proposed levee on the east and south boundaries of the property would effectively stop the drainage now coming to this property from the east and the drainage from this property to the southeast. The South Florida Water Management District (SFWMD) owns a right-of- way to the east of the L-40 levee which is located in the area proposed by Petitioner for its reservoir. Petitioners' application to encroach on this right-of-way with the proposed reservoir was denied by SFWMD. This denial was based on the environmental impact, county zoning regulations (since changed) and the as yet undetermined effect of back pumping into the conservation areas. (Exhibit 17). Specifically, SFWMD Staff Report (Exhibit 17) found the environmental impact of the project will be: This proposed truck farming operation and residential development will destroy approximately 1100 acres of valuable wetland habitat by drainage. The impact on the 240 acres (60 acres of SFWMD right-of-way) of emergent marsh within the proposed reservoir will be determined by the water level management of the impoundment. A drastic change in water depth or inundation period could result in severe alterations of the present wetlands. An additional 50 acres of marsh will be lost due to dredge and fill operations for levee construction. The entire tract is poorly drained and is under water for considerable portions of the year, with the westernmost portion containing the longest periods and greatest depths of standing water. The soil in the eastern portion of the property is predominantly sandy, with a gray sandy loam layer at depths of 20 to 40 inches. The soil in the central portion of the tract is predominantly sandy, with a gray sandy loam layer at depths greater than 40 inches. The soil in the western portion of the tract is sandy, with a black organic surface layer (muck) 8 to 15 inches thick, underlain by gray sandy layers. Vegetation in the property goes from some pine and cypress in the eastern portion to sawgrass marshes in the western portion, with numerous varieties of plants associated with wet soil and marshy areas. During the proposed construction adequate safeguards can be imposed to prevent excess turbidity from entering State waters. This property comprises a large tract of pristine Everglades habitat for both plants and animals, and is of great value to the ecology of the state. In its undeveloped state it provides a buffer zone of up to two miles eastward for the conservation area. Water presently on the property is predominantly rainwater and of better quality than the water in the C-40 or C-27 canals adjacent to the property. Use of the land for agricultural purposes would increase the risk of water quality degradation caused by water runoff carrying fertilizers, herbicides and pesticides into the proposed reservoir and/or perimeter canals. If excess water on the property is pumped into the C-40 or C-27 canals, degradation of those waters could occur. The proposed development was opposed by the Florida Game and Fresh Water Fish Commission, not only because it would remove these fresh water marshes from the ecosystem and take away an essential habitat for birds and aquatic life, but also would remove a surface water retention basin and vegetation filtration of runoff from adjacent uplands. (Exhibit 16). The Permit Application Appraisal Report (Exhibit 15) which recommended denial of the application found the property acts as a buffer between the agricultural lands to the east and the conservation area and development as proposed would remove this buffer; and that water quality standards may be degraded due to agriculture runoff from the developed property being pumped into C-40 canal. Specifics of how runoff from property would be controlled were not obtained by the Environmental Specialist who prepared Exhibit 15. Pumping the surface waters on the property into a reservoir would reduce the diurnal variation in dissolved oxygen levels in the water and thereby improve water quality from that aspect. Water in the reservoir would be of greater depth than presently exists, thereby reducing photosynthesis and its concomitant benefits to the water quality. On the other hand, the greater depths could result in fewer grasses and more open surface water, thereby allowing more aeration of the water by wind action. Herbicides degrade fairly rapidly, and holding them in a reservoir would allow time to degrade. Many pesticides are water insoluble and would settle to the bottom of the reservoir.
The Issue The issue in this case is whether the Southwest Florida Water Management District (SWFWMD) should grant Individual Environmental Resource Permit (ERP) Application No. 4316067.00 for approval of a proposed surface water management system (SWMS) for a planned road improvement project.
Findings Of Fact County Line Road extends a short distance east from its intersection with U.S. 41, approximately along the boundary between Pasco County and Hillsborough County. It currently serves as access to residential and rural areas in its vicinity but does not connect with any major road east-west roadway at its eastern end. Since at least 1995, Pasco County's Metropolitan Planning Organization (MPO) has considered it necessary by 2020 to connect County Line Road to Collier Parkway (which runs north and south to the east and north of County Line Road but connects at its southern end to Hillsborough County Road, which extends from there to the east) to create and serve as another major east-west roadway to alleviate traffic congestion on State Road 54 to the north. The MPO's plans are updated continually, most recently in 1998. The MPO's current plans call for building a half-mile segment of two-lane roadway by 2000 to connect County Line Road to Collier Parkway and widening it to a four-lane road by 2010. Once these plans were made, and the general corridor for the new roadway chosen by the MPO, Pasco County conducted a route study and decided to utilize and improve the existing County Line Road to the extent possible consistent with traffic safety considerations before routing the new roadway to the northeast towards a connection with existing roadway (known as Willow Bend Road), which in turn connects with Collier Parkway. In so doing, Pasco County would improve County Line Road where it now crosses 13-Mile Run Creek. 13-Mile Run Creek is the name for the water body and wetland area crossed by County Line Road. It is part of a system of connected lakes, wetland areas, and various natural and man- made water conveyances known as the 13-Mile Run that begins to the north of County Line Road in Pasco County and flows south into Cypress Creek and the Hillsborough River in Hillsborough County. After completing the route study, Pasco County surveyed the project area and identified wetlands in the project area. Then, the road improvements and new roadway, including the surface water management system, were designed. Pasco County designed its road project to accommodate widening to four lanes in 2010 without further direct impact to wetlands. This will allow traffic to flow much more safely on the two lanes built in 2000 while the additional two lanes are built in 2010. As part of this design, the culverts that will provide for north-to-south flow of 13-Mile Run under the roadway, as well as the animal-crossing tunnels under the roadway, will be oversized to accommodate the four-lane roadway in 2010. As a result, all direct impacts to wetlands from the ultimate four- lane road construction (approximately 1.5 acres of direct impact) will occur during the initial construction of two lanes in 2000; there will not have to be any additional wetland impacts in 2010. The Petitioner and Intervenors contend that Pasco County did not prove a need for the four-lane road Pasco County proposes for 2010. They point to evidence that Florida Department of Transportation (DOT) 1995 maps did not "code" the proposed road segment as a four-lane road in 2010, as well as evidence that in 1995 Hillsborough County objected (based on the DOT coding) to Pasco's plans for a four-lane road in 2010. But Pasco County proved that DOT's failure to code the proposed road segment as a four-lane road in 2010 was a mistake. Since 1995, DOT has corrected the error. When Pasco County's MPO updated its transportation plan in 1998, neither Hillsborough County nor anyone else objected to the plans for a four-lane road in 2010, despite Pasco County's solicitation of comments and advertised public workshops and hearings. The Intervenors in particular also point to evidence that the DOT has published "Standards for Low and High Volume Highways in Annual Average Daily Volumes" in a Manual of Uniform Minimum Standards for Design, Construction and Maintenance for streets and Highways (1994)(also known as the "Green Book"). These standards characterize a two-lane urban collector highway with less than 11,000 AADT and a four-lane urban collector highway with less than 37,000 AADT as low-volume facilities and characterize a two-lane urban collector highway with more than 16,000 AADT and a four-lane urban collector highway with more than 45,000 AADT as high-volume facilities. Meanwhile, there was evidence was that, using a regional traffic demand forecasting model developed by DOT to determine future transportation needs for planning purposes: (1) Pasco County's MPO forecasts approximately 12,500 to 13,000 vehicles per day on the road in 2010 and 16,000 vehicles per day on the road in 2020; and (2) in 1997, the MPO forecasts 12,000 vehicles per day (1078 peak hour) on the road by 2015. But the only explanation of this evidence was the testimony of the MPO's transportation planner that the "Green Book" is not used for purposes of planning to meet future transportation needs. There was no other evidence as to the significance or proper use of the "Green Book." Assuming that AADT means "annual average daily trips" (there was no evidence as to what it stands for), there was no evidence that the Pasco County MPO's plan to four-lane County Line Road in 2010 is inconsistent with the "Green Book." The Intervenors also contend that the planned widening of State Road 54 will eliminate the need to four-lane the proposed road improvements at County Line Road. But the MPO's transportation planner testified that the MPO's forecast of the need to do so took into account the planned State Road 54 improvements. The Intervenors also contend that the proposed road improvements at County Line Road will not serve as an alternative to State Road 54 because Collier Parkway is a north-south highway, not an east-west highway. But, as indicated in Finding 1, supra, utilizing Collier Parkway for a short, north-south jog will connect the east-west roadways on either side of Collier Parkway. The Petitioner and Intervenors contend that Pasco County's design does not minimize direct impacts to wetlands precisely because it is designed to accommodate the four-lane widening project in 2010. Clearly, the direct impact to wetlands in 2000 could be reduced if Pasco County's design only accommodated a two-lane road. But it is not clear that the cumulative impact to the wetlands through the year 2010 will be less if the wetlands have to be impacted twice, once in 2000 for two lanes of roadway and again in 2010 for the other two lanes. A Department of Environmental Protection (DEP) witness for the Intervenors believed that it was preferable not to accommodate two additional lanes during the initial construction. But his familiarity with Pasco County's application was limited (in part because DEP has no regulatory jurisdiction), and several other experts testified persuasively that Pasco County's design would be better in terms of minimizing total, cumulative direct and secondary impacts to the wetlands. It also would cost significantly less to build the four-lane road in two stages if the first stage of construction of two lanes accommodates the subsequent stage of construction of the two additional lanes. In addition, traffic flow would be safer during construction of the two additional lanes if the first stage of construction accommodates the subsequent stage. Given the plan to accommodate a four-lane road in 2010, Pasco County designed its road project to minimize direct impacts on wetlands. First, the design uses the existing road in the wetland area. Second, the design uses concrete retaining walls instead of earthen berms in the wetland areas, which reduces the direct impact to the wetland areas by 30 percent. Third, the design was modified to further reduce the direct impact to wetlands by reducing the width of the median and eliminating one of two sidewalks at the creek crossing. The only way to further reduce the direct impacts to wetlands would have been to design and construct a bridge to cross the wetlands. The Intervenors called their DEP witness to testify in support of their contention that Pasco County should be required to bridge the wetlands. But again, the DEP witness's knowledge of Pasco County's application was limited, and several other witnesses testified persuasively that such a requirement for this road improvement project would be unreasonable in light of the existing County Line Road (which is a fill road.) In addition, bridging 13-Mile Run would create water flow and quantity problems that would have to be addressed, since it would remove the existing roadbed that serves to stop flow in times of high water. See Finding 19, infra. Pasco County's design provides for two wet detention ponds, one at either end of the project area, that will treat one-inch of runoff from the project area and will retain all of the runoff from a 25-year, 24-hour storm (nine inches of runoff.) As a result, there are reasonable assurances that there will be no adverse impact on water quality from the project; to the contrary, water quality probably will improve since the existing County Line Road does not provide any water treatment. Likewise, Pasco County has provided reasonable assurances that water discharges from the project area will not increase. As a result of the project, approximately 3.5 acre-feet of flood plain storage will be eliminated. To more-than- compensate for this loss of flood plain water storage area, Pasco County's design includes a flood plain mitigation area of approximately 4.5 acre-feet with a connection to 13-Mile Run Creek. The flood plain mitigation area also will serve as the project's wetland mitigation area at a ratio of approximately 4- to-1, i.e., four acres of created wetland for each acre of direct wetland impact. (Wetlands disturbed by the illegal installation of a Florida Gas Transmission pipeline just north of County Line Road and now under court-ordered restoration are considered pristine wetlands for purposes of the wetland mitigation ratio.) While wetland restoration has a mixed record of success, and it may be difficult to restore all of the values of the original wetland, the prospects for success of Pasco County's proposed wetland mitigation area are reasonably good. The mitigation plan calls for planting 780 emergent woody species per acre. To the extent that the mitigation plan for this project will replace disturbed wetlands and wetlands not successfully restored by the restoration of the area impacted by the Florida Gas Transmission pipeline (which appears to have been either inadequately planned or poorly implemented), the project may well result in a net improvement of the wetlands in the 13-Mile Run Creek area. Impacts from the roadway immediately to the west of the project area have been addressed in the SWMS permit for construction at the intersection of U.S. 41 and County Line Road. Impacts from Hillsborough County's planned widening of the roadway immediately to the west of the project area will be addressed in the SWMS for that widening project. The Petitioner in particular raised the question of flooding in the vicinity--at the U.S. 41/County Line Road intersection and along the shores of Hog Island Lake to the southeast of the creek crossing. The Intervenors initially also raised those questions but have been satisfied by the assurances given by Pasco County that the proposed project will not increase flooding in those areas. The SWMS associated with construction of the U.S. 41/County Line Road intersection appears to have been successful in alleviating flooding there, and Pasco County has given reasonable assurances that the proposed road project in this case will not increase flooding in the Hog Island Lake area. The generous flood retention compensation proposed by Pasco County may alleviate flooding in the Hog Island Lake area to some extent. It also is noted that, if the project were modified to bridge the creek crossing (without any other modifications), flooding in the Hog Island Lake area could increase. See Finding 13, supra. The Petitioner also opposed Pasco County's SWMS application on the ground that no minimum surface or ground water levels or minimum surface water flows have been established in the area under Section 373.042, Florida Statutes (1997). But Pasco County provided reasonable assurances that, regardless where the minimum levels ultimately are set, the proposed project will have no appreciable effect. Pasco County has designed the project to maintain water current flows and quantities. It is found that Pasco County has implemented practicable design modifications to reduce or eliminate adverse impacts of the proposed project. (As used here, the term "modification" does not include the alternative of not implementing the SWMS in some form, nor the alternative of a project that is significantly different in type or function from that proposed.) As used in the preceding finding, the term "practicable" would eliminate modifications which would adversely affect public safety through the endangerment of lives or property. For example, one modification suggested by the Petitioner and Intervenors would have been to have the new road follow existing County Line Road further to the east. However, that would have made the connection between the new road and what would remain of County Line Road hazardous at the design speed of the new road and, depending on how much further east the new road follow existing County Line Road, there would be the hazard of residential driveways connecting to the new road. As used in Finding 21, the term "practicable" also would eliminate modifications which are not technically capable of being done or not economically viable. While there was no evidence that alternatives considered in this case were either not technically capable of being done or not economically viable, general consideration was given to the higher total project costs of not accommodating the planned addition of two lanes in 2010 (with no appreciable environmental benefit). Likewise, general consideration was given to the significantly higher cost (approximately two to three times as much, depending on whether the construction of the first two lanes accommodates the subsequent construction of the two additional lanes) to bridge the wetlands in an attempt to reverse direct wetland impacts from the existing fill road and somewhat decrease additional direct wetland impacts, as well as the dubious benefits of increasing the flow of 13-Mile Run, which certainly would not reduce (and might well increase) flooding in the Hog Island Lake area. In addition, bridging the creek crossing would create traffic engineering problems in providing access to residential areas in the vicinity, especially the Foxwood subdivision. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not violate state water quality standards applicable to waters as defined in Section 403.031(13), Florida Statutes (1997). Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not be contrary to the public interest, considering and balancing the following factors: Whether the proposed project will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, Florida Statutes (1997); and The current condition and relative value of functions being performed by areas affected by the proposed activity. To the extent that the proposed project may not meet one or more of the public interest test criteria, Pasco County proposes mitigation measures that will offset any adverse effects. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on- site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, Florida Administrative Code, including any antidegradation provisions of sections 62- 4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, Florida Administrative Code, will be violated; will not cause adverse secondary impacts to the water resources; will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes (1997); will not cause adverse impacts to a work of the District established pursuant to Section 373.086; is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed; and will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. Pasco County provided reasonable assurances that that its proposed SWMS, with SWFWMD's general and specific conditions, will not cause unacceptable cumulative impacts upon wetlands and other surface waters, as delineated pursuant to the methodology authorized by subsection 373.421(1), Florida Statutes (Supp. 1998).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order granting ERP Application No. 4316067.00. DONE AND ENTERED this 18th day of March, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1999. COPIES FURNISHED: Charles J. Traina, Esquire Post Office Box 625 Brandon, Florida 33509-0625 Margaret Lytle, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Mark F. Lapp, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara Wilhite, Esquire Pasco County West Pasco Government Center 7530 Little Road, Suite 340 New Port Richey, Florida 34654 David and Sheryl Bowman, pro se Post Office Box 1515 Lutz, Florida 33548-1515 E. D. Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact The Applicant/Respondents, Melvin and Mary Thayer have applied to the Department of Environmental Regulation (Department) for a "dredge and fill permit" seeking authorization to remove an existing 32-foot wooden fence and install in its place a chain-link fence, which as originally applied for would not extend more than 32 feet waterward from the 64-foot mean sea level elevation of Alligator Lake as marked by the waterward end of the existing wooden fence. The fence proposed would be five feet high and would possess a gate at its landward end which would permit pedestrian passage in both directions around the near-shore area of the lake. The project site is located approximately 400 feet south of U.S. 441-192 and adjacent to Alligator Lake, lying one mile west from Bay Lake within Section 10, Township 26 South, Range 31 East in Osceola County, Florida. As clarified and amended prior to hearing, the application now requests the permit to authorize, instead, a 26-foot fence extending that distance waterward from the 64-foot mean sea level elevation. The Department has permitting jurisdiction under Chapters 253 and 403, Florida Statutes as well as Chapter 17-4, Florida Administrative Code. There is no dispute that the Department has jurisdiction of the permitting of the subject fence inasmuch as the fence would be constructed waterward of the 64-foot mean sea level elevation or the "high pool" level of Alligator Lake in Class III waters of the state. Additionally, the area of the project waterward of the 64- foot mean sea level elevation lies on sovereign lands of the State of Florida under the jurisdiction of the Department of Natural Resources. That Department, as yet, has not issued a permit for use of sovereign land for the intended purpose as envisioned by Section 253.77, Florida Statutes. Ed Edmunson was tendered by both Respondents as an expert witness and was accepted as to his expertise in biological assessment of dredge and fill construction projects. It was thus established that the construction and installation of the fence and removal of the existing fence would cause no Class III water quality violations. Additionally, it was established that no navigational impediment would result from the fence as presently proposed which only involves a 26-foot fence extending from the 64-foot mean sea level elevation waterward in a perpendicular direction from the shore and near-shore of Alligator Lake. Parenthetically it should be noted that the original proposal involved extending the fence 32-feet waterward and then installing a right angle section parallel to the shoreline for an indeterminate distance. The right angle portion of the fence has been deleted from the permit application and the portion perpendicular to the shoreline has been amended from 32 feet down to 26 feet from the 64-foot mean sea level elevation. In that connection, it was established by witness Walter, accepted as an expert in the field of engineering, that on January 7, 1985, the water line of Alligator Lake was at 62.4 feet mean sea level elevation and the end of the existing 32-foot wooden fence was 16 feet from the then existing waterline of the lake. If the water in the lake was at the 64 feet mean sea level elevation or "high pool" stage, which has occurred on the average of once every three years, the water at the end of the fence would still be only .9 feet in depth at the waterward extreme end of the proposed 26-foot fence. Indeed, it was established with- out contradiction by the Applicant, Melvin Thayer, that in the 17 or 18 years he has observed the project site, that only "seven or eight inches of water is the most depth he has seen at the end of the fence." Thus, the fence as proposed to be installed, will pose no impediment or hazard to the navigation of fishing boats, skiing boats or other craft, and, in that regard, a dock in close proximity to the site of the proposed fence extends approximately 90 feet waterward at the present time. In view of the Petitioner's other objection to the fence concerning their feared loss of access to walk around the near-shore area of the lake to visit friends and the like, the permit applicants have agreed to install a gate for public access anywhere specified by the Department along the extent of the proposed fence. The testimony of Petitioner's witnesses, including a representative of the Game and Fresh Water Fish Commission, consists largely of objections to the precedent of permitting a private fence to be constructed in the waters of the state and on state water bodies, but no impediment to navigation has been established especially since the neighboring dock and numerous other docks around the shoreline of the lake extend waterward much farther than will the proposed fence. No degradation to water quality has been established to result from the proposed project. The fence has not been shown to be contrary to the public interest since it will not interfere with wildlife habitat or natural resources, nor impede navigation in any way, and was shown not to impede any public use of the lake or the near-shore area of the lake, in view of the access gate to be provided in the fence. In short, reasonable assurances have been provided that all permitting criteria within the Department's jurisdiction at issue in this proceeding will be complied with, although a permit from the Department of Natural Resources authorizing use of the state lands involved has not been issued as yet.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Melvin and Mary Thayer for authority to remove an existing fence and to install a fence extending 26 feet waterward of the 64-foot mean sea level elevation of Alligator Lake with an attendant public access gate installed therein be GRANTED upon satisfaction of the above-stated condition. DONE and ENTERED this 15th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF 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 15th day of January, 1986. COPIES FURNISHED: Virginia M. Hoover, MSM Consultant 5366 East Space Coast Parkway St. Cloud, Florida 32769 Norman J. Smith, Esquire Post Office Drawer 1549 Kissimmee, Florida 32741 B. J. Owens, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The Florida Department of Transportation (DOT) is currently engaged in widening State Road (SR) 5, the Overseas Highway, to four lanes on Marathon Key. To handle surface water runoff from a portion of the project, DOT received approval from the South Florida Water Management District for a surface water management system which included two retention ponds (west pond and east pond) to be located on Marathon Airport.1 On May 23, 1985, DOT filed an application with DER for authorization to construct four Class V, group five stormwater drainage wells within the retention ponds on Marathon Airport. DOT proposed to locate three wells within the west pond and one well within the east pond to comply with a Federal Aviation Administration (FAA) request that water levels be minimized to deter the attraction of birds which could present a hazard to aircraft navigation. By letter dated August 12, 1985, DER forwarded to DOT permit number US44-104852, dated July 26, 1985, for construction of the subject wells. Upon its receipt of the permit, DOT let the contracts for the widening of SR 5; however, neither DER nor DOT published notice of DER's intent to issue the requested permit. On November 29, 1985, a few days after he received actual notice that the permit had been issued, Robert C. Ernst filed a request for hearing with DER contesting its issuance. Mr. Ernst owns a home which lies atop the groundwaters to be impacted by the subject permit and which abuts Dodge Lake, a Class III surface water body; Mr. Ernst uses the waters of Dodge Lake for swimming, fishing, and other recreational pursuits. On December 20, 1985, Mr. Ernst and others, on behalf of Neighbors for Clean Canals (NCC), filed a request for hearing challenging the same permit. NCC was alleged to be a neighborhood association, formed December 17, 1985, to represent the interests of property owners affected by the proposed project; however, no such proof was offered at hearing. The retention ponds proposed by DOT are designed to accommodate the first inch of stormwater runoff.2 Significantly, the first 1/2" of runoff from a highway system contains the bulk of pollutants. By retaining this runoff, and permitting it to evaporate or percolate through the soils underlying the retention ponds, any adverse impact to the ground waters is minimized. DOT's proposal to install four injection wells within the ponds will deprive them of their retention capability. These wells will, within a 12-20 hour period, inject the first 1/2" of runoff (over 1 million gallons) directly into the groundwaters. Therefore, evidence of the nature of the pollutants, the quality of the receiving waters, and the geologic and hydrologic qualities of the area are significant. Highway runoff contains high concentrations of pollutants ranging from toxic mutagenic and carcinogenic substances such as heavy metals (primarily lead and zinc), pesticides, and herbicides to oxygen consuming materials and solids which cause damages such as siltation and eutrophication. These pollutants, including oils, greases, and copper, can have significant adverse effects upon the quality of the receiving waters and the life forms it supports. Underlying the proposed retention ponds is an aquaclude which extends from the surface to a depth of 30-40 feet. This aquaclude, a hard layer formation with very poor percolation qualities, will preclude any waters injected below it from returning to the surface and will direct their flow laterally. Since the maximum depths of Dodge Lake and the 100th Street Canal are 13' and 21' respectively, injection of the stormwater runoff at 50', well below the existing aquaclude, provides reasonable assurances that these water bodies will not be adversely impacted by the proposed project. However, the impacts to the groundwater and other water bodies is not so clear. Other than sampling the groundwater to establish its character as Class III groundwater,3 DOT and DER did not perform any water quality analysis. Accordingly, the existing quality of the receiving groundwaters was not shown. Further, there was no showing of the hydrologic characteristics of the area. Therefore, there was no evidence of the mixing or dilution of the contaminants which would be injected, or of their ultimate point(s) of discharge into the surface waters surrounding Marathon Key.4 DOT and DER assert that "specific conditions" #4 and #5 attached to the subject permit will provide assurances that injection of the stormwater runoff will not cause or contribute to a violation of water quality standards. Those conditions provide: The following parameters shall be sampled at Well W-2 Florida Department of Transportation drawing sheet 3 of 5 and Well E-1 Florida Department of Transportation drawing sheet 4 of 5 and reported quarterly to the Department ninety (90) days following certification and placement of this facility in operation. The parameters to be sampled are: Napthalene, Lead and volatile organic compounds including: Trichloroethylene, Tetrachloroethylene, Carbon Tetrachloride, Vinyl Chloride, 1,1,1,-Trichloroethane, 1,2- Dichloroethane, Benzene, and Ethylene Dibromide. The discharge authorized by this permit shall be consistent at all times with the water quality standards set forth in Chapter 17-3, Florida Administrative Code. Should conditions in the receiving stream warrant, the Permittee may be required by the Department to upgrade, reduce, or cease the discharge approved by this permit and adopt an alternative method of disposal within a reasonable period of time. Under specific condition #4, the ground waters will be sampled at one injection well within each of the retention ponds. Without evidence of the mixing and flow characteristics of the groundwater, the reliability of the proposed monitoring program is questionable since it was not shown where, transitionally or ultimately, the pollutants would settle. Absent such proof, there is no evidence that the wells are sited so as to detect any water quality violations. Therefore, specific conditions #4 and #5 do not provide reasonable assurances that the proposed project will not cause or contribute to a violation of water quality standards.
Conclusions The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Petitioners, Robert C. Ernst and Neighbors for Clean Canals (NCC), pursuant to Section 120.57, Florida Statutes, contest the decision of DER to issue a permit to DOT to construct four Class v, group five-stormwater drainage wells. Pertinent to this proceeding, Section 120.57 provides: The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency. When standing is resisted, as it is in this proceeding, the burden is on the protestant to prove standing. State, Department of Health and Rehabilitative Services, v. Alice P., 367 So. 2d 1045 (Fla. 1st DCA 1979). Chapter 120, Florida Statutes, does not attempt to define substantially affected persons. The Florida courts have, however, adopted the federal "injury-in-fact" and "zone of interest" tests governing standing. Montgomery v. Department of Health and Rehabilitative Services, 468 So. 2d 1014 (Fla. 1st DCA) 1985). Under this two-prong test, a person is substantially affected if he can demonstrate that he will suffer "injury-in- fact" which is of sufficient immediacy to entitle him to relief and the injury is of a type or nature which the proceeding is designed to protect (the "zone of interest"). Where, as here, an association institutes a proceeding on behalf of its members, it can be accorded standing only when it demonstrates that a substantial number of its members, although not necessarily a majority, are substantially affected by the proposed agency action, the nature of the injury is of a type which the proceeding is designed to protect: and, the relief requested is of a type appropriate for an association to receive on behalf of its members. See Florida Home Builders Assoc. v. Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982). Mr. Ernst has demonstrated his standing to maintain this action. His home lies atop the groundwaters to be impacted by the proposed project and he uses the waters proximate to the proposed wells which could be adversely impacted if the wells were not properly constructed or sited. NCC failed, however, to demonstrate its standing since it failed to offer any evidence that a substantial number of its members could be substantially affected by the proposed project or that the interest sought to be protected was within the association's general scope of interest and purpose. Although Mr. Ernst has demonstrated standing, DOT asserts that his petition was untimely since it was filed more than three months after DOT received its permit. DOT's assertion is without merit. It is established law that persons whose substantial interests may be affected by proposed agency action must be accorded a point of entry into the proceedings. See Capeletti Brothers, Inc. v. Department of Transportation, 362 So. 2d 346 (Fla. 1st DCA 1978). Until accorded notice, actual or constructive, such person has not been offered a point of entry. Rule 17-103.150, F.A.C., provides a method to assure constructive notice is given to all substantially affected persons, and to limit the time within which a request for an administrative hearing may be filed. That rule provides that each person who filed an application for a DER permit may publish a notice of proposed agency action in a newspaper of general circulation in the county in which the activity will be located. If notice is published, a person whose substantial interests might be affected by the proposed action must file his request for hearing within 14 days of the date of publication. Significantly, the rule also provides: Since persons whose substantial interests are affected by a Department decision on a permit application may petition for an administrative proceeding within fourteen (14) days after receipt of notice and since, unless notice is given or published as prescribed in this rule, receipt of notice can occur at any time, the applicant or persons benefiting from the Department's action cannot justifiably rely on the finality of the Department's decision without the notice having been duly given or published. DOT elected not to publish notice under the provisions of Rule 17-103.150, F.A.C., and cannot justifiably rely on the finality of DER's decision. Mr. Ernst's petition for hearing, filed within a few days of his receipt of notice, was timely. 5 DER has jurisdiction over the permitting of the proposed four Class V, group five-stormwater drainage wells pursuant to Section 403.087, Florida Statutes, and Chapters 17-4 and 17-28, F.A.C. A party seeking approval to inject stormwater drainage into Class G-III water must provide reasonable assurances that the project will not violate water quality standards set forth in Rule 17-3.402(1), F.A.C. That rule provides: All ground water shall at all places and at all times be free from domestic, industrial, agricultural, or other man-induced non- thermal components of discharges in concentrations which, alone or in combination with other substances, or components of discharges (whether thermal or non-thermal): Are harmful to plants, animals, or organisms that are native to the soil and responsible for treatment or stabilization of the discharge relied upon by Department permits or Are carcinogenic, mutagenic, teratogenic, or toxic to human beings, unless specific criteria are established for such components in Rule 17-3.404: or Are acutely toxic to indigenous species of significance to the aquatic community within surface waters affected by the ground water at the point of contact with surface waters or Pose a serious danger to the public health, safety, or welfare; or Create or constitute a nuisance or Impair the reasonable and beneficial use of adjacent waters. DOT has failed to provide reasonable assurances that the proposed stormwater discharge will not cause or contribute to a violation of the groundwater standards set forth in Rule 17-3.402(1), Florida Administrative Code. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order: Dismissing the petition for hearing filed by Neighbors for Clean Canals, and Denying the issuance of permit number US44-104852 to the Department of Transportation. DONE AND ENTERED this 16th day of April, 1986, at Tallahassee, Florida. WILLIAM J. KENDRICK 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 16th day of April, 1986.
