The Issue The issue to be determined is whether Respondent Land Trust #97-12 (“Land Trust”) is entitled to an Environmental Resource Permit (“ERP”) for its proposed project on Perico Island in Bradenton, Florida.
Findings Of Fact The Parties Petitioner Joseph McClash is a resident of Bradenton, Florida, who uses the waters in the vicinity of the project for fishing, crabbing, boating, and wildlife observation. Petitioner Manasota-88, Inc., is an active Florida nonprofit corporation for more than 20 years. Manasota-88 has approximately 530 members, most of whom (approximately 300) reside in Manatee County. The mission and goal of Manasota-88 includes the protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Petitioner FISH is an active Florida nonprofit corporation in existence since 1991. FISH owns real property in unincorporated Cortez in Manatee County and maintains a Manatee County mailing address. FISH has more than 190 members and more than 150 of them own property or reside in Manatee County. The mission and goal of FISH includes protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Intervenor Suncoast Waterkeeper, Inc., is an active Florida nonprofit corporation in existence since 2012. The mission of Suncoast Waterkeeper is “to protect and restore the Suncoast’s waterways through enforcement, fieldwork, advocacy, and environmental education for the benefit of the communities that rely upon coastal resources.” Suncoast Waterkeeper provided the names and addresses of 25 members residing in Manatee County. A substantial number of the members of Suncoast Waterkeeper use the area and waters near the proposed activity for nature-based activities, including nature observation, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Intervenor Sierra Club, Inc., is a national organization that is a California corporation registered as a foreign nonprofit corporation in Florida. Sierra Club has been permitted to conduct business in Florida since 1982. The mission of Sierra Club includes protection of the natural resources of Manatee County, which include Anna Maria Sound and Perico Island. Sierra Club provided the names and addresses of 26 members who live in Manatee County. A substantial number of the members of Sierra Club use the area and waters near the proposed project for nature-based activities, including observing native flora and fauna, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Respondent Land Trust is the applicant for the challenged ERP and owns the property on which the proposed project would be constructed. Respondent District is an independent special district of the State of Florida created, granted powers, and assigned duties under chapter 373, Florida Statutes, including the regulation of activities in surface waters. The proposed project is within the boundaries of the District. The Project Site The project site is 3.46 acres of a 40.36-acre parcel owned by Land Trust. The parcel includes uplands, wetlands, and submerged lands, on or seaward of Perico Island, next to Anna Maria Sound, which is part of Lower Tampa Bay. Anna Maria Sound is an Outstanding Florida Water. The project site is adjacent to a large multi-family residential development called Harbour Isles, which is currently under construction. Access to the Land Trust property is gained through this development. The Land Trust parcel contains approximately seven acres of high quality mangroves along the shoreline of Anna Maria Sound. They are mostly black and red mangroves, with some white mangroves. The mangroves on the project site amount to a total of 1.9 acres. Mangroves have high biological productivity and are important to estuarine food webs. Mangroves provide nesting, roosting, foraging, and nursery functions for many species of wildlife. Mangroves also provide a buffer from storm surge and help to stabilize shorelines. Wildlife species found on the project site include ibises, pelicans, egrets, spoonbills, mangrove cuckoos, bay scallops, fiddler crabs, mangrove tree crabs, horseshoe crabs, marsh rabbits, raccoons, mangrove bees, and a variety of fish. No endangered species have been observed on the project site, but mangroves are used by a number of listed species. The Proposed Project The proposed project is to construct a retaining wall, place fill behind the wall to create buildable lots for four single-family homes, construct an access driveway, and install a stormwater management facility. The stormwater management facility is a “Stormtech” system, which is an underground system usually used in situations where there is insufficient area to accommodate a stormwater pond. Riprap would be placed on the waterward side of the retaining wall. The retaining wall would be more than 35 feet landward of the mean high water line in most areas. Petitioners contend the proposed retaining wall is a vertical seawall, which is not allowed in an estuary pursuant to section 373.414(5). “Vertical seawall” is defined in section 2.0(a)(111), Volume I, of the Environmental Resource Permit Applicant’s Handbook (“Applicants Handbook”) as a seawall which is steeper than 75 degrees to the horizontal. It further states, “A seawall with sloping riprap covering the waterward face to the mean high water line shall not be considered a vertical seawall.” The retaining wall is vertical, but it would have riprap covering its waterward face and installed at a slope of 70 degrees. The retaining wall is not a vertical seawall under the District’s definition. Stormwater Management Stormwater in excess of the Stormtech system’s design capacity would discharge into Anna Maria Sound. Because Anna Maria Sound is an Outstanding Florida Water, District design criteria require that an additional 50 percent of treatment volume be provided. The Stormtech system meets the District’s design criteria for managing water quality and water quantity. Projects which meet the District’s design criteria are presumed to provide reasonable assurance of compliance with state water quality standards. Petitioners’ evidence was not sufficient to rebut this presumption. Petitioners contend the District waiver of water quality certification for the proposed project means that Land Trust was not required to meet water quality standards. However, that was a misunderstanding of the certification process. All state water quality criteria are applicable. Petitioners contend water quality monitoring should be imposed for this project. However, section 4.7 of the Applicant’s Handbook, Volume II, provides that if the applicant meets the District’s design criteria, water quality monitoring is not required. Petitioners failed to prove the proposed stormwater management system cannot be constructed, operated, or maintained in compliance with applicable criteria. Wetland Impacts In order to create buildable lots, 1.05 acres of the 1.9 acres of mangroves on the project site would be removed and replaced with fill. A swath of mangroves approximately 40 feet wide would remain waterward of the retaining wall. The proposed direct and secondary impacts to the functions provided by wetlands were evaluated using the Uniform Mitigation Assessment Method (“UMAM”) as required by Florida Administrative Code Chapter 62-345. UMAM is used to quantify the loss of functions performed by wetlands considering: current condition, hydrologic connection, uniqueness, location, fish and wildlife utilization, time lag, and mitigation risk. The District determined the filling of 1.05 acres of wetlands would result in a functional loss of 0.81 units and the secondary impacts resulting from installation of the retaining wall would result in a loss of 0.09 units for a total functional loss of 0.9 units. Petitioners contend the functional loss would be greater. Petitioners contend the wetland delineation performed by Land Trust and confirmed by the District did not extend as far landward as the hydric soils and, therefore, the total acreage of affected wetlands would be greater. However, Petitioners did not produce a wetland delineation for the project site, and their evidence was not sufficient to rebut Land Trust's prima facie evidence on this issue. Petitioners’ experts believe the secondary impacts caused by the proposed project would be greater than calculated, including fragmentation of the shoreline mangrove system, damage to the roots of mangroves near the retaining wall, and scouring effects caused by wave action associated with the retaining wall. Respondents assert that the analysis by Petitioners’ expert Jacqueline Cook relied on federal methodology and that “the science used in her analysis is not contained in the state or district rule criteria.” Reliance on science is always appropriate. However, Ms. Cook’s use of a federal impact assessment methodology creates doubt about whether her scoring is consistent with UMAM. Despite the unreliability of Ms. Cook’s UMAM score, it is found that Respondents’ UMAM score under-calculated secondary impacts due to scour and other effects of changed water movement that would be caused by the retaining wall. It was not explained how the loss of storm buffering and erosion prevention functions of wetlands are accounted for in the UMAM score. Elimination or Reduction of Impacts Section 10.2.1 of the Applicant’s Handbook, Volume I, states that in reviewing a project the District is to consider practicable design modifications to eliminate or reduce impacts to wetland functions. Section 10.2.1.1 explains: The term “modification” shall not be construed as including the alternative of not implementing the activity in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification that is not technically capable of being completed, is not economically viable, or that adversely affects public safety through the endangerment of lives or property is not considered “practicable.” A proposed modification need not remove all economic value of the property in order to be considered not “practicable.” Conversely, a modification need not provide the highest and best use of the property to be “practicable.” In determining whether a proposed modification is practicable, consideration shall also be given to cost of the modification compared to the environmental benefit it achieves. Land Trust originally proposed constructing a surface water retention pond. The Stormtech stormwater management system would cause less wetland impact than a retention pond. Land Trust contends the use of a retaining wall reduces wetland impacts because, otherwise, more mangroves would have to be removed to account for the slope of the waterward side of the fill area. However, this proposition assumes the appropriateness of the size of the fill area. Land Trust also contends wetland impacts are reduced by using the adjacent development to access the proposed project site, rather than creating a new road. However, the evidence did not establish that Land Trust had a practicable and preferred alternative for access. Unlike the Stormtech system, the retaining wall and access driveway were not shown to be project modifications. The proposed project would cause fewer impacts to wetlands if the fill area was reduced in size, which was not shown to be impracticable. Reducing the size of the fill area would not cause the project to be significantly different in type or function. Land Trust did not demonstrate that it implemented reasonable design modifications to eliminate or reduce impacts to wetland functions. Mitigation Land Trust proposes to purchase credits from the Tampa Bay Mitigation Bank, which is 17 miles north of the proposed project site. The Tampa Bay Mitigation Bank is in the Tampa Bay Drainage Basin. The project site is in the South Coastal Drainage Basin. Pursuant to section 10.2.8 of the Applicant’s Handbook, Volume I, if an applicant mitigates adverse impacts within the same drainage basin, the agency will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. However, if the applicant proposes to mitigate impacts in another drainage basin, factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” will be considered to determine whether the impacts are fully offset. The parties disputed whether there was connectivity between the waters near the project site and the waters at the Tampa Bay Mitigation Bank. The more persuasive evidence shows there is connectivity. There was also a dispute about the habitat range of affected species. The evidence establishes that the species found in the mangroves at the project site are also found at the mitigation bank. However, local fish and wildlife, and local biological productivity would be diminished by the proposed project. This diminution affects Petitioners’ substantial interests. The loss or reduction of storm buffering and erosion prevention functions performed by the mangroves at Perico Island cannot be mitigated for at the Tampa Bay Mitigation Bank. Cumulative impacts are unacceptable when the proposed activity, considered in conjunction with past, present, and future activities would result in a violation of state water quality standards, or significant adverse impacts to functions of wetlands or other surface waters. See § 10.2.8.1, Applicant’s Handbook, Vol. I. Section 10.2.8(b) provides that, in considering the cumulative impacts associated with a project, the District is to consider other activities which reasonably may be expected to be located within wetlands or other surface waters in the same drainage basin, based upon the local government’s comprehensive plan. Land Trust did not make a prima facie showing on this point. Land Trust could propose a similar project on another part of its property on Perico Island. Anyone owning property in the area which is designated for residential use under the City of Bradenton’s comprehensive plan and bounded by wetlands could apply to enlarge the buildable portion of the property by removing the wetlands and filling behind a retaining wall. When considering future wetland impacts in the basin which are likely to result from similar future activities, the cumulative impacts of the proposed project would result in significant adverse impacts to wetland functions in the area. Public Interest For projects located in, on, or over wetlands or other surface waters, an applicant must provide reasonable assurance that the project will not be contrary to the public interest, or if such activities significantly degrade or are within an Outstanding Florida Water, are clearly in the public interest, as determined by balancing the criteria set forth in rule 62- 330.302(1)(a), and as set forth in sections 10.2.3 through of the Applicant’s Handbook. Rule 62-330.302, which is identical to section 373.414, Florida Statutes, lists the following seven public interest balancing factors to be considered: Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The Parties stipulated that the proposed project would not have an adverse impact on public health, navigation, historical resources, archeological resources, or social costs. Land Trust proposes to give $5,000 to the City of Palmetto for an informational kiosk at the City of Palmetto’s public boat ramp. A District employee testified that this contribution made the project clearly in the public interest. Reasonable assurances were not provided that the proposed project is clearly in the public interest because of the adverse cumulative effects on the conservation of fish and wildlife, fishing and recreational values, and marine productivity of Anna Maria Sound, an Outstanding Florida Water.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Southwest Florida Water Management District issue a final order that denies the Environmental Resource Permit. DONE AND ENTERED this 25th day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2015. COPIES FURNISHED: Christian Thomas Van Hise, Esquire Abel Band, Chartered Post Office Box 49948 Sarasota, Florida 34230-6948 (eServed) Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 (eServed) Douglas P. Manson, Esquire MansonBolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606 (eServed) Joseph McClash 711 89th Street Northwest Bradenton, Florida 34209 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Justin Bloom, Esquire Post Office Box 1028 Sarasota, Florida 34230 (eServed) Robert Beltram, P.E., Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner West Coast Regional Water Supply Authority (WCRWSA) was formed in 1974 by inter-local agreement under Chapter 373, Florida Statutes, as a supply entity to provide and develop sources of water for its members and other governmental entities. The members of WCRWSA include the two cities of St. Petersburg and Tampa and the three counties of Pinellas (intervenor herein), Hillsborough and Pasco. The petitioner and the intervenor own and operate permitted well fields which are regulated by the respondent Southwest Florida Water Management District (SWFWMD) and are therefore subject to the rules and regulations of SWFWMD. All parties have stipulated, and the evidence so demonstrates, that the WCRWSA and Pinellas County are substantially affected by the challenged proposed rule and therefore have standing to challenge its validity. The proposed rule being challenged in this proceeding was considered by the Governing Board of SWFWMD as a result of a prior rule being declared invalid in another proceeding. The prior rule, codified as Rule 16J-2.11(3), Florida Administrative Code, provided as follows: 16J-2.11 Conditions for a Consumptive Use Permit Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be assumed to be three hundred sixty-five thousand (365,000) gallons per year per acre.) By Final Order dated April 9, 1980, 1/ that rule was declared to be an invalid exercise of delegated legislative authority on the grounds that it exceeded SWFWMD's statutory authority under Chapter 373, Florida Statutes, it impermissibly conflicted with provisions of Chapter 373, Florida Statutes, it created property rights to water by virtue of land ownership contrary to Chapter 373 and the decision in the case of Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d and 663 (Fla. 1979); and it was a hydrologically unsound method of determining the issuance or denial of consumptive use permits and was accordingly arbitrary and capricious in nature. The two subsections of proposed Rule 40D-2.301 being challenged in this proceeding read as follows: "40D-2.301. Conditions for Issuance of Permits. Among other factors to be considered by the Board in determining whether a particular use is consistent with the public interest will be: the maximum amount to be withdrawn of a single day; the average amount to be withdrawn during a single week, during a typical growing (or irrigation) season, during an extreme cold season, during a year of extreme drought an during the term of the proposed permit; the amount to be withdrawn in relationship to amounts being withdrawn from adjacent or nearby properties; the proximity of withdrawal points to location of points of withdrawal by others; the total amounts presently permitted from the entire basin, or other hydrologic unit; and the change in storage that such withdrawal and use will cause. If the proposed consumptive use will average less than 1,000 gallons per acre per day, in the absence of evidence to the contrary, the Board will presume that the quantity of water proposed for consumptive use is consistent with the public interest and the applicant will not be required to submit further evidence on this point. If the proposed consumptive use is to average 1,000 gallons or more per acre per day, the applicant must establish that the proposed use of water in such quantity is consistent with the public interest. (NOTE: Present subsections 6 through 11 will be renumbered consecutively following the above new subsections.) The factors listed in subsection (6) of the proposed rule are not all- inclusive. Each of the factors listed are resource related or hydrological considerations. The effect of each of the factors listed is appropriate for consideration by the Governing Board of SEFWMD when making a determination as to whether a consumptive use permit should be granted. With the exception of that portion of subsection (6) relating to a weekly average amount to be withdrawn, the factors listed in subsection (6) are covered by existing specific rules of SWFWMD. The word "acre" in the phrase "1,000 gallons per acre per day" is intended to mean land owned, leased or otherwise controlled by the applicant. The figure of 1,000 gallons per acre per day represents the average quantity of water which is available within the respondent's District for man's use and to maintain natural systems. The figure is a district wide estimation. It cannot be arbitrarily applied to any specific site within the District due to the fact that different parcels of land do not possess identical geologic or hydrologic characteristics. The amount of water which is available from a specific parcel of land is dependent upon geographical and hydrological factors which vary considerably from site to site. These factors include, among other things, the amount of rainfall the land receives, the water table, the existence of confining layers, soil and vegetation types, and transmissivity, storage and leakage coefficients. Withdrawals of water in small amounts per acre per day are generally less likely to have adverse hydrologic effects on the water resources within the District than are withdrawals in greater amounts. In most areas of the District, 1,000 gallons per acre per day can be withdrawn without jeopardizing or adversely affecting the resource or the availability of water for others. This would not necessarily be true of coastal areas where salt water intrusion is a possibility or in areas where wells presently exist which withdraw large quantities of water on a daily basis. Eighty-nine percent (89%) of the more than 6,000 consumptive use permits which have been issued by the SWFWMD are for amounts less than 1,000 gallons per acre per day.
Findings Of Fact This application is a request for a consumptive use permit for two wells located in Pasco County, Florida, within the Pithlachascotee Basin. The subject wells are also located in that area wherein the Board of Governors of the Southwest Florida Water Management District declared a water shortage in Order No. 76-3D, Southwest Florida Water Management District. The application seeks an average daily withdrawal of 95,000 gallons with a maximum daily withdrawal of 360,000 gallons. The use of this water is for public supply involving effluent disposal by on-site percolation and ponding. This-use was existing prior to January 1, 1975 with am average daily withdrawal for 1974 of 74,000 gallons. The testimony presented by staff members of the Southwest Florida Water Management District establishes that the consumptive use for which a permit is sought will not violate any of the criteria set forth in Subsections 163- 2.11(2)(3) or (4), Florida Administrative Code, except that the use may significantly induce salt water encroachment. No evidence was presented showing that the sought for consumptive use will, in fact, significantly induce salt water encroachment. In the twelve month period ending October, 1975, applicant's highest average daily withdrawal was 81,000 gallons. This time frame corresponds to that time frame referred to in paragraph 1 of Water Shortage Order No. 76-3D, Southwest Florida Water Management District. In view of Water Shortage Order No. 76-3D, Southwest Florida Water Management District, the staff recommends granting of the permit for an average daily withdrawal of 81,000 gallons and a maximum daily withdrawal of four times that figure or 234,000 gallons. The staff further recommends imposition of the following conditions: That the permittee shall install totalizer flow meters of the propeller driven type on all withdrawal points covered by the permit with the exception of those wells which are currently ganged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter, said pumpage to be read on a monthly basis and submitted quarterly to the District on April 15, July 15, October 15, and January 15 for each preceding calendar quarter. That all individual connections to the system be metered. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15, and January 15 for each preceding calendar year.
The Issue Did Respondent, William D. Going, willfully and intentionally violate Florida Statutes and Southwest Florida Water Management District (District) rules regulating well construction? If he did, what corrective action is appropriate?
Findings Of Fact William Going is a licensed water well contractor. He has held License Number 1564 since 2007. Mr. Going is a managing member of Going Irrigation, Inc., and conducts business under that name. Mr. Going constructed four sand point irrigation wells at a residential property in St. Petersburg, Florida. He did not have and had not applied for a Well Construction Permit (WCP). 1 All citations to Florida Statutes are to the 2020 codification unless noted otherwise. 2 The findings are based upon the evidence admitted at the hearing and the stipulations of the parties. Mr. Going did not call or otherwise contact the District to request a WCP. The District operates an online permitting system called the Water Management Information System (WMIS). The District will issue a WCP based upon a telephone call, an application on its website, a faxed application, a mailed application, or a hand-delivered application. The District routinely issues permits within two hours of receiving an application, often within ten minutes to half an hour. The District's application system operates from 7:00 a.m. to 10:00 p.m. It is infrequently offline for a few hours. While quick, the process reviews significant information. It verifies that the well location is sufficiently distant from septic systems, verifies construction methods and materials, and verifies, if the well is for drinking water, that the well is not too close to a contamination site. Mr. Going is a registered and experienced user of WMIS. The District learned of the unpermitted wells on April 28, 2020, when it received an anonymous complaint. On May 5, 2020, approximately ten days after he constructed the wells, Mr. Going submitted WCP Application 889173 for construction of the four already completed sand point irrigation wells. He did not disclose that they were already completed. He falsely represented them as proposed. The District approved the application on May 6, 2020, and issued WCP 889173 to Mr. Going. On June 11, 2020, Mr. Going submitted four Well Completion Reports for the wells, falsely representing that each was completed on May 7, 2020. This was more than 30 days after Mr. Going completed the wells. Mr. Going claimed at the hearing that he tried to apply for a WCP for four or five days before constructing the wells but was locked out of the WMIS. Mr. Going said that his son usually obtained permits online for the company. He also claimed that he tried to apply online on April 24 and 25, 2019. His claims are not persuasive. There is no question that Mr. Going knew the requirements for obtaining a permit and reporting completion. In 2009, in Order No. SWF 09- 017, the District imposed a $500.00 fine and assessed five points against his license for an almost identical offense. In that case, Mr. Going also constructed a well without a permit from the District or applying for a permit. In that case, like this one, he sought to excuse failure to apply for a permit by claiming difficulties with the website. In that case he blamed his wife's unfamiliarity with computers, rather than his own, for failure to apply. In that case, like this one, he applied for and obtained a permit after constructing the well. Mr. Going knowingly and willfully constructed four unpermitted wells, filed a WCP application more than thirty days after he completed the wells, and misrepresented the dates of completion in the WCP completion reports that he filed with the District. Mr. Going tries to characterize his after-the-fact misrepresentations as mitigation. But they were not. Mitigation would have been contacting the District to advise it of the wells' unpermitted construction and the asserted justification for it. Furthermore, his misrepresentations deprived the District of the chance to prevent construction of the wells using improper materials or near a septic tank or contaminated location.
The Issue The issue is whether the Southwest Florida Water Management District's (District's) proposed construction of a temporary floating weed barrier across the mouth of the canal exiting to the southwest side of Lake Hancock in Polk County, Florida, is exempt from regulatory review under Section 373.406(6), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This proceeding involves a request by the District for authorization to construct a temporary floating weed barrier across the mouth of the canal exiting the southwest side of the Lake in Polk County, Florida (County). After reviewing the request, and based on its determination that the project would "have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the State," on September 27, 2002, the Department concluded that the project qualified for an exemption from regulatory review under Section 373.406(6), Florida Statutes. The Department also authorized the District to use state-owned submerged lands, if applicable, for the construction of the project, and it found that the project was in compliance with the SPGP program and thus required no further permitting from the United States Army Corps of Engineers (Corps of Engineers). Even if the Department had not considered the project to be exempt, it concluded that it had sufficient information and assurances from the District to grant a Noticed General Environmental Resource Permit (ERP) authorizing the requested activity. On December 2, 2002, Petitioner, Bruce Lahey, who has resided and owned property on the southwest side of the Lake for 15 years and regularly uses the Lake for fishing and recreational purposes, filed a Petition for Administrative Hearing (Petition) challenging the proposed agency action. In his Petition, as later clarified and narrowed in the parties' Joint Pre-Hearing Stipulation, Mr. Lahey contends that a weed barrier is no longer necessary since there has not been a weed problem in the Lake since late 2002; that the placement of a weed barrier will make access to and from the Lake more difficult and create a safety hazard; and that in the event a problem arises again, the more desirable options for removing the weeds are "a 'cookie-cutter,' mechanical harvester, or the spraying of [the] tussocks," rather than erecting a barrier. Finally, Mr. Lahey contends that as a matter of law, Section 369.20, Florida Statutes, bars the construction of a barrier. He has not challenged the Department's authorization for the District to use state-owned submerged lands or its determination that the project complies with the SPGP program, and therefore those aspects of the proposed agency action are not in issue. Respondents do not dispute that Mr. Lahey has standing to bring this action. The Lake and Control Structure The Lake is an approximately 4,500-acre Class III waterbody located east of Highway 98 and Highland City, southeast of Lakeland, and just northeast of the City of Bartow (Bartow). It receives drainage from a significant portion of the County, including three streams and runoff from a surrounding 131-square mile watershed. Waters discharge from the Lake to Saddle Creek (the canal), which exits at the southwest end of the Lake and runs in a southerly direction for around a mile and a half until it merges with the Peace Creek, where the two then become the Peace River. At the confluence of the canal and Peace Creek, the waters flow through a broad, flat floodplain. Water moves slowly through this area, which can affect the ability of the Lake to discharge, especially during flood conditions. Like the Lake and canal, the Peace Creek also has a significant contributing basin. The canal contains a District-owned and operated water control structure known as Water Control Structure P-11 (the control structure) consisting of two twenty-foot radial arm gates that are raised when necessary to manage the water levels on the Lake and prevent the flooding of lakefront property. The control structure is approximately 3,000 feet or so south of the Lake and is the only control structure regulating water levels for the Lake. The gates are designed to discharge at a flow level of 1,100 cubic feet per second (cfs). The invert elevation of the control structure is 91.7 feet and the crest elevation is 98.7 feet. Flows from the Lake will exceed 1,100 cfs when the water levels are higher than the crest elevation of the structure. At this point, water flows over the structure’s weirs and flood control is no longer provided. The maximum desirable water elevation level for the Lake is 98.5 feet above mean sea level (msl). Typically, the District begins to operate, or open, the control structure when the Lake's water elevation reaches 98.25 feet msl. A water level of 99.0 feet msl is considered minimum flood level (or high guidance level). The low management water elevation (low guidance level) is 96.0 feet msl. These established water levels have been maintained at the Lake since approximately 1981. The District seeks to hold the water level of the Lake close to the maximum desirable level, and typically tries to hold the water level at 98.25 feet msl, which is slightly below the maximum desirable level of 98.5 feet msl, to allow storage of water and some response time. The control structure is intended primarily to be a water conservation structure that regulates the Lake's water levels to benefit the water resources, to include the Lake and the Peace River. In managing the Lake's levels, the District balances conservation of the water resource and public safety/flooding concerns. The Lake's water level elevations are monitored through the District’s Supervisory Control and Data Acquisition System (SCADA), which measures the water level and transmits hourly data to the District offices via satellite. SCADA monitors are located immediately upstream and downstream of the control structure. Since the tussock blockage events in the summer and fall of 2002, described more fully below, the District has installed an additional SCADA monitor on the north end of the Lake so that water levels in the Lake and canal can be compared. The Lake does not have direct public access or a public boat ramp and is not easily accessible. In addition, in the canal, there is only one unimproved location upstream from the control structure where boats can be placed in the water and gain access to the Lake. That portion of the canal which lies between the Lake and the control structure has not always been open to boat access. In the 1980’s, a floating weed barrier extended across the canal approximately 1,000 feet upstream from the current control structure, which blocked the canal and boat access. This floating weed barrier was installed primarily to address problems with water hyacinths that would float down the canal and interfere with the control structure. This floating barrier gave way sometime in the 1990’s. An earlier control structure also used to exist in this area, which blocked canal access. Navigation of the canal is limited due to the existence of the control structure and a number of other blockages further downstream, including a low bridge where old Highway 17 crosses the canal. Thus, boats coming from the Lake cannot navigate down the canal any further than the control structure, or slightly more than one-half mile, without taking the boat out of the water. Between 1999 and 2001, the District experienced one of the most severe droughts on record. During this time, the Lake went dry except for some isolated pools of water. Because of these conditions, a significant amount of wetland or aquatic vegetation began to grow on the exposed bottom of the Lake. The Lake historically did not support much plant growth, due to its eutrophic condition, poor water quality, and gelatinous mucky lake bottom. The types of vegetation currently existing in the Lake include cattails, pickerelweed, duck potato, and primrose willow. Following the return of summer rains and El Nino conditions in 2002, the Lake rebounded to within normal water levels. Because of the return of water in the Lake, the buoyant pressure of the water combined with the flaccid nature of the mucky lake bottom caused significant portions of vegetation to become uprooted, which formed an extensive amount of tussocks. Tussocks are floating mats of uprooted aquatic vegetation. They contain plant and organic material accumulated around the plant roots, can range from a few feet across to one hundred feet across or larger, and can reach a height of more than four feet. Once tussocks form, they move about the Lake by wind and water currents. The amount of vegetation currently existing in the Lake exceeds historic levels. At the present time, the District estimates that approximately 2,000 acres of the Lake are covered with tussocks, and that due to the flaccid nature of the lake bottom, the tussocks are susceptible to becoming uprooted through fluctuating water levels, wind, and wave action. Therefore, there is a strong potential that much of the currently rooted vegetation will form tussocks. Tussocks first impacted the District’s ability to operate the control structure in July 2002. During this event, the canal became partially filled with tussocks. Because the blockage occurred during the rainy and hurricane seasons, the District undertook efforts to clear the canal of tussocks. District staff used mechanical equipment commonly called a cookie cutter to break up the tussocks and flush them downstream through the control structure. During this tussock event, the Lake's water levels rose briefly above the maximum desirable level of 98.5 feet msl and then fell back to within normal elevations. In late August 2002, approximately three weeks after the first tussock blockage event, a number of homeowners on the Lake, including Petitioner's wife, contacted District staff to advise that the water level of the Lake was rising and flooding their yards. A rise in water levels did not register on the District’s water level monitoring SCADA system. Visual observation of the Lake did reveal, however, that there was a significant difference between the water levels being experienced on the Lake and the water levels reported at the control structure via the SCADA system. During this tussock event, masses of tussocks had completely filled the 3,000-foot length of the canal all the way to the control structure and were jamming against the control structure gates. Tussocks had also formed a vegetation dam approximately 900 to 1,400 feet north of the control structure where they compacted and became lodged on the bottom of the canal, significantly impeding the flow of water. During this event, flows out of the Lake were significantly diminished to a fraction of what they should have been. The tussock dam caused the Lake's level to rise above the minimum flood elevation of 99.0 feet and flood Petitioner's yard. There was an approximately one to one and one-half foot difference in the water levels in the Lake and in the canal. In response to this disparity, the District installed a third water level elevation monitor at the northern end of the Lake, so that it can monitor any differences in water elevations between the Lake and the canal and be alerted in the event that a blockage occurs in the canal. To eliminate the tussock blockage and restore flow through the control structure, the District had to employ mechanical means to break up and remove the tussocks. At the control structure, a trac-hoe was initially used in an attempt to force tussocks through the control structure, as tussocks would not flow through the structure unassisted. A cookie cutter was also employed, but it became sucked into the control structure and was damaged and had to be removed with a crane and repaired. The cookie cutter proved ineffectual in addressing the tussock blockage problem. If the canal were to again become clogged with tussocks, any resulting blockage of flow from the Lake would cause water levels to rise, which would endanger public safety and welfare. Prior to the tussock blockages experienced in the summer and fall of 2002, problems with tussocks had never been experienced at the Lake. The magnitude of the tussock formation on the Lake is unique and has not been experienced elsewhere in the District. In 2002, the Department expended over $46,000.00 in contracting for mechanical equipment and for spraying herbicide on tussocks to respond to the tussock buildup on the Lake. Since their formation after the summer of 2002, tussocks have blocked Petitioner's access to his dock on several occasions, thereby preventing him from being able to take his boat out into the Lake or to return to the dock once out on the Lake. The potential for similar blockages to occur remains, regardless of whether a floating weed barrier is erected as proposed. The direction of the winds is a major factor in determining where and how many tussocks will stack up in front of anyone’s property along the Lake. Access to the canal could become blocked with tussocks at any time, depending upon how the wind blows. Breaking up tussock blockages and flushing tussocks through the control structure does not eliminate water resource problems for the District. Tussocks that are pushed through the control structure cause downstream problems requiring the District to expend resources to push the tussocks through and under low downstream bridges crossing the canal, as well as break up tussock blockages that form in downstream waters. In January 2003, tussocks again accumulated at the control structure in such volume as to require assistance in flushing through the control structure. As a result of the large volume of tussocks pushed through the control structure, a tussock blockage occurred at a downstream bridge crossing, for which the District had to use mechanical equipment to restore flow. During March 2003, tussocks flushed through the control structure created a jam downstream on the Peace River. The tussocks were jammed up in a bend in the river and were blocking navigational access to the river. An El Nino weather cycle is currently being experienced. Water levels, including the Lake's water level, are already at their maximum and the ground is saturated. Localized flooding events have occurred. A very active summer rainy season is anticipated, which will mean significant flood control operations for the District. As the summer season approaches, the District must keep the control structure open and operational, which requires that the canal be kept open and flowing. A floating weed barrier at the entrance to the canal would keep tussocks from clogging the canal and prevent problems affecting operation of the control structure, downstream tussock blockages, and possible flooding. The Project To address the problem of tussocks entering the canal and causing blockages or possible flooding, on September 11, 2002, the District applied to the Department for a Noticed General ERP under Rule 62-341.475(1)(a), Florida Administrative Code, to authorize the construction of a floating weed barrier at the entrance to the canal. On September 27, 2002, the Department issued its notice of intent to authorize the requested activity. The proposed barrier will be constructed in two sections arranged at approximately 90-degree angles to each other, with a twenty-foot opening between the sections to allow boat access to the canal. A schematic drawing of the barriers is found in District Exhibit 5 received in evidence. As originally proposed, the barrier would consist of a total of sixteen nine-inch diameter pilings driven twenty-one feet apart, with twenty-foot sections of floating foam-filled polyvinyl chloride pipe (pvc) connected to the pilings. Pilings will be marked with reflective tape and five of the pilings will have three-foot diamond-shaped reflective danger signs reading "DANGER PILE/FLOAT BARRIER" placed on their upstream and downstream sides. The pilings are twenty-five feet in length and will extend above the Lake's water level approximately twelve to fourteen feet. Since the District's submittal of the application and the Department's authorization notice, the District has located commercially manufactured floating booms, called "Tuffbooms," that, if authorized, will be installed in lieu of the foam-filled pvc pipes. Use of these booms reduces the number of pilings needed from sixteen to eight, and their bright orange color is more visible than pvc piping. All other aspects of the proposed activity remain the same. The change in material to be used in the construction of the proposed floating barrier does not present any water quality issues, nor does it affect the Department's determination that the proposed activity will have minimal or insignificant adverse impacts on the water resources. The staggered layout of the proposed floating weed barrier is intended to keep tussocks in the Lake, where they can remain subject to the winds, while providing boat access to the canal in such a manner that is more difficult for tussocks to enter the canal. The Department's Exemption Process The Department's Tampa District Office routinely approves around 800 projects each year under various exemptions authorized by statute or rule. One type of exemption is found in Section 373.406(6), Florida Statutes, referred to as the de minimus exemption, which allows the Department to exempt from regulation those activities that are determined will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District. The Department is authorized to make this determination on a case-by-case basis. In determining whether an activity qualifies for a de minimus exemption from permitting, the Department looks for parallels to other specific statutory or rule exemptions and analyzes the proposed activity similarly in terms of its scope, construction methods, potential to create water quality impacts or impediments to navigation, and other factors, because these recognized exemptions are also deemed to have minimal or insignificant impacts to the water resources. There is no specific exemption for a floating weed barrier as proposed by the District, but the Department considers this type of project to be similar in scope and potential impacts to other specific activities that have been determined to have minimal or insignificant adverse impacts to the water resources, such as docks and other piling-supported structures, navigational aids, and buoy systems. In assessing whether a project is appropriate for the de minimus exemption, the Department also looks to the criteria for Noticed General ERPs for guidance in determining whether a proposed project will have minimal or insignificant adverse individual or cumulative impacts upon the water resources. Under Section 373.406(5), Florida Statutes, the Department may by rule establish general permits for activities that have, either singularly or cumulatively, minimal environmental impact. Chapter 62-341, Florida Administrative Code, sets forth the Noticed General ERPs established by the Department. Department Rule 62-341.475(1)(a), Florida Administrative Code (as does District Rule 40D-400.475(1)(a), Florida Administrative Code), allows noticed general permits for piling supported structures of less than 1,000 square feet over wetlands or other surface waters, which are not designated Outstanding Florida Waters. To qualify for a noticed general permit for such activity, an applicant must provide reasonable assurance that the proposed structure: Does not significantly impede navigation and does not entail the construction of a structure for the launching or mooring of a boat when navigational access to the structure does not currently exist; Does not cause a violation of state water quality standards; Does not impede the conveyance of a stream, river or other watercourse in a manner that would increase off-site flooding; Does not adversely impact aquatic or wetland dependent listed species; Does not cause the drainage of wetlands; and Is not located in, on or over a coral community, macro-marine algae or submerged grassbed community. Will the Project Impact Water Resources? The District’s proposed floating weed barrier will involve less than 7.1 square feet of impact to the water resources, which is significantly less impact in square footage to the water resources than is allowed by Rule 62- 341.475(1)(a), Florida Administrative Code, or occurs with other specified exempt projects. Best management practices will be used in the erection of the pilings and in the construction of the barriers. Pilings will be jetted into the lake bottom without need for any dredging or lake bottom removal. Installation of a floating weed barrier will not result in any significant detriment to existing conditions in the Lake or the canal. Installation of the proposed floating weed barrier will benefit the public interest and the water resources by allowing unimpeded operation of the control structure without risk of tussocks causing blockages and flooding. Installation of the proposed floating weed barrier will not have significant adverse impacts on fishing, boating, or recreational use of the Lake or canal. A blockage of the canal entrance by tussocks, or a tussock jam anywhere on the Lake, could occur under present conditions, and similar blockages have already occurred. The potential for tussocks to block the opening between the sections of the floating weed barrier is considered remote and of temporary duration, due to the potential for shifting winds. The District’s proposed floating weed barrier is a reasonable means of addressing the continuing potential for tussocks to interfere with operation of the control structure. Use of mechanical equipment such as a cookie cutter or harvester would not be an effective or economical means of addressing tussock blockages in the canal or preventing their occurrence and possible interference with operation of the control structure. Pushing tussocks through the control structure would not be an effective means of addressing the potential for tussocks to cause blockages and possible flooding. Merely pushing the material through the control structure moves the potential blockage problem downstream and does not alleviate the potential for tussocks to cause adverse impacts to the water resources of the District. Spraying tussocks with herbicides would not be an effective means of addressing tussock blockages due to the fact that, once treated, tussocks can take weeks to die and fall to the lake bottom. Floating tussocks are and will continue to be treated with herbicide sprays when found in the Lake to reduce the amount of tussocks. However, once tussocks enter the canal, spraying serves little benefit in preventing tussocks from causing blockages or other problems. Tussocks originate in the Lake and not in the canal. Tussocks in the Lake have had and likely will continue to have an impact on boating and recreational use of the Lake and canal, as evidenced by tussock blockages to Petitioner's dock. By confining the tussocks to the Lake, the potential for tussocks to impact boating and recreational use of the Lake will remain the same as current conditions, but the potential for tussocks to affect operation of the control structure and contribute to Lake flooding will be eliminated. Petitioner contends that the proposed floating weed barrier will impede navigation, either by itself or as a result of tussocks piling up in front of the barrier. The proposed barrier will be marked and visible through reflective tape and signage. The barrier does not create a navigational hazard and is not a significant impediment to access to the canal. Constructed in two sections, the barrier provides an opening that allows boat access to the canal. As noted above, the likelihood of tussocks piling up at the barrier and blocking the opening between the barrier sections is considered remote and temporary. Based upon the information provided by the District, the proposed floating weed barrier will not significantly impede navigation; will not cause a violation of state water quality standards; will not impede the conveyance of a stream, river, or other water course in a manner that would increase off-site flooding; will not adversely impact aquatic or wetland dependent listed species; and will not cause the drainage of wetlands. There is no evidence that the proposed activity is located in, on, or over a coral community, macro-marine algae, or submerged grassbed community or that it entails the construction of a structure for the launching or mooring of a boat for which navigational access does not currently exist. The proposed activity would have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District. As an activity that has minimal or insignificant adverse impacts on the water resources of the District, either individually or cumulatively, the District’s project qualifies for an exemption pursuant to Section 373.406(6), Florida Statutes, as well as a Noticed General ERP under Rule 62- 341.475(1)(a), Florida Administrative Code. The Department's exemption determination authorized the District’s floating weed barrier for one year, presumably so that the effectiveness of the barriers can be evaluated during that period of time. If they are effective, an extension or renewal of the authorization will be sought. If the tussocks problem becomes less acute, or the barriers do not achieve the desired purpose, they will be taken down. In contrast, Noticed General ERPs authorize a particular activity for five years. Other Contentions by Petitioner Petitioner has also contended that the proposed activity may violate a condition of the District's Corps of Engineers general permit by interfering with general navigation. As found earlier, however, the more credible evidence indicates otherwise. Moreover, it is presumed that this issue was considered by the Corps of Engineers prior to its approval of the project. In any event, that matter should be raised with the Corps of Engineers, and not with the Department. Finally, Mr. Lahey contends that since at least late 2002, the Lake has been free of a tussocks problem and therefore barriers are no longer needed. As noted above, however, blockages have occurred at the control structure and in the Peace River as recently as January and March 2003, and such blockages were the direct result of tussocks which originated in the Lake. Given the likelihood of a very active summer rainy season, it is essential that the canal be kept open so that the District can properly manage and control the water resources.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order determining that the Southwest Florida Water Management District's proposed project qualifies for an exemption under Section 373.406(6), Florida Statutes; that authorization to use state-owned lands be given; and that the project is in compliance with the State Programmatic General Permit program. DONE AND ENTERED this _____ day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this _____ day of May, 2003. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bruce Lahey 5280 Waterwood Drive Bartow, Florida 33830-9766 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Doreen Jane Irwin, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issues are whether to (a) issue an Environmental Resource Permit (ERP) to the Department of Transportation (DOT) and Martin County (County) authorizing construction and operation of a surface water management system to serve a project known as the Indian Street Bridge; (b) issue DOT a letter of modification of ERP No. 43-00785-S authorizing roadway and drainage modifications to the Kanner Highway/Indian Street intersection; and (c) issue DOT a letter of modification of ERP No. 43-01229-P authorizing roadway and drainage modifications to Indian Street between the intersections of Kanner Highway and Willoughby Boulevard.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Citizens for Smart Growth, Inc., is a Florida 501(c)(3) corporation with its principal place of business in Palm City, Florida. It was formed by Odias Smith in August 2001, who serves as its president. The original directors were Kathie Smith, Odias Smith, and Craig Smith, who is the Smiths' son. The composition of the Board has never changed. According to the original Articles of Incorporation, its objectives are "preserving and enhancing the present advantages of living in Martin County (Quality of Life) for the common good, through public education, and the encouragement of reasonable and considered decision making by full disclosure of impacts and alternatives for the most appropriate use of land, water and resources." The exact number of members fluctuates from time to time. There are no dues paid by any member. At his deposition, Mr. Smith stated that no membership list exists; however, Kathie Smith stated that she currently has a list of 125 names, consisting of persons who at one time or another have made a contribution, have attended a meeting, or asked to be "kept informed of what's going on or asked to be on a mailing list or a telephone list, so they could be advised when we have meetings." No meetings have been held since 2006. Therefore, the Petitions filed in these cases have never been discussed at any meetings of the members, although Ms. Smith indicated that telephone discussions periodically occur with various individuals. Kathie Smith believes that roughly 25 percent of the members reside in a mobile home park north of the project site on Kanner Highway on the eastern side of the St. Lucie River, she does not know how many members reside on the western side of the St. Lucie River, and she is unaware of any member who resides on the South Fork of the St. Lucie River immediately adjacent to the project. Although the three Petitions allege that "seventy percent of the members . . . reside and/or recreate on the St. Lucie River," and in greater detail they allege how those members use that water body or depend on it for their livelihood, no evidence was submitted to support these allegations that 70 percent (or any other percentage of members) use or depend on the South Fork of the St. Lucie River for recreational or other activities. Petitioners Odias Smith and Cathie Smith reside in Palm City, an unincorporated community just south of Stuart in Martin County. They have opposed the construction of the new bridge since they moved to Palm City in 2001. It is fair to infer that Mr. Smith formed the corporation primarily for the purpose of opposing the bridge. Their home faces north, overlooking the South Fork of the St. Lucie River, from which it is separated by Saint Lucie Shores Drive and a narrow strip of common-ownership property. A boat dock extends from the common-ownership property into the St. Lucie River, providing 5 slips for use by the Smiths and other co-owners. The home is located three blocks or approximately 1,000 feet from the proposed western landfall of the new bridge. Due to the direction that the house faces (north) and the site of the new bridge, the surface water management system elements associated with the bridge will not be visible from their property. Mr. Smith believes, however, that when looking south through a veranda window on the second floor of his home, he will be able to see at least a part of the new bridge. From the front of their house, they now have an unobstructed view of the existing Palm City Bridge, a large structure that crosses the St. Lucie River approximately six- tenths of a mile north of their home, and which is similar in size to the new bridge now being proposed by the Applicants. The Smiths' home is more than 500 feet from the Project's right- of-way, and they do not know of any impact on its value caused by the Project. While the Smiths currently engage in walking, boating, running, fishing, and watching wildlife in the neighborhood or the South Fork of the St. Lucie River, there was no credible evidence that the Project would prevent them from doing so after the bridge and other improvements are constructed. Also, there was no evidence showing that the ERP Letter Modifications will cause them to suffer any adverse impacts. In fact, as noted below, by DOT undertaking the Project, the neighborhood will be improved through reduced flooding, improved water quality, and new swales and ponds. The County is a political subdivision of the State. It filed one of the applications at issue in this proceeding. DOT is an agency of the State and filed the three applications being contested. The District has the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Part IV, Chapter 373, Florida Statutes, and Title 40E of the Florida Administrative Code. The Department of Environment Protection (DEP) has delegated certain authority to the District, including the authority to authorize an applicant to use sovereign submerged lands via a public easement within the District's geographic jurisdiction. The Project Construction of a new bridge over the St. Lucie River has been studied extensively by the Applicants for over twenty years. DOT has awarded the contract and nearly all of the right-of-way has been purchased. The Project will begin as soon as the remaining permits are acquired. The Project is fully funded through the American Recovery and Reinvestment Act of 2009 and County funding. The Project is located in the County and includes 62.06 acres of roadway bridge development and 12.45 acres of sovereign submerged lands. The Project begins on the west side of the St. Lucie River on County Road 714, approximately 1,300 feet west of Mapp Road in Palm City and ends on the east side of the St. Lucie River approximately 1,400 feet east of Kanner Highway (State Road 76) on Indian Street. It includes construction and operation of a surface water management system to serve the road and bridge project. The total length of the Project is approximately 1.96 miles (1.38 miles of roadway and 0.58 miles of bridge) while the total area is approximately 74.51 acres. After treatment, surface water runoff will discharge to the tidal South Fork of the St. Lucie River. The Project encompasses a bridge crossing the South Fork of the St. Lucie River and the Okeechobee Waterway. Both are classified as Class III waters. The bridge transitions from 4 to 6 lanes east of the Okeechobee Waterway and will require a 55-foot vertical clearance and a 200-foot horizontal clearance between the fender systems at the Okeechobee Waterway. The bridge will cross over a portion of Kiplinger Island owned and preserved by the County. A part of the island was donated to the County in 1993-1994 by The Kiplinger Washington Editors, Inc., and the Kiplinger Foundation, Inc. Audubon of Martin County owns another part of the island. The transfer of title to the County does not include any restriction on the use of the island for conservation purposes only. Documentation submitted at hearing refers to a "two hundred foot wide road right-of-way" easement that the bridge will cross and allows the County to designate where on the island parcel such an easement would be. Therefore, spanning the bridge over a portion of the island owned by the County is clearly permissible. The Project also includes the roadway transition and widening/reconstruction of (a) County Road 714 from the beginning of the Project to Mapp Road from 2-lane to a 4-lane divided roadway; (b) Southwest 36th Street from Mapp Road to the beginning of the bridge from a 2-lane rural roadway to a 4-lane divided roadway with wide roadway swales; and (c) Kanner Highway (along Indian Street) from a 4-lane to a 6-lane divided urban roadway. Drainage improvements on both sides of the St. Lucie River are associated with the roadway construction. DOT proposes to provide both on-site and off-site mitigation for wetland and surface waters impacts pursuant to a mitigation plan approved by the District. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. Besides these rules, certain related BOR provisions which implement the rules must also be considered. The conditions for issuance primarily focus on water quality, water quantity, and environmental criteria and form the basis of the District's ERP permitting program. The parties have stipulated that the Project either complies with the following rule provisions or they are not applicable: Rules 40E-4.301(1)(a), (b), (g), (g), (h), and (k), and 40E- 4.302(1)(a)3. and 6. All other provisions remain at issue. Where conflicting evidence on these issues was submitted, the undersigned has resolved all evidentiary conflicts in favor of the Applicants and District. Based on the parties' Stipulation, the following provisions in Rule 40E-4.301(1) are in dispute and require an applicant to provide reasonable assurances that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: 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 by wetlands and other surface waters; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any anti-degradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated; will not cause adverse secondary impacts to the water resources; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; These disputed criteria are discussed separately below. Surface Water Storage and Conveyance Rule 40E-4.301(1)(c) requires that an applicant provide reasonable assurances that a proposed activity will not cause adverse impacts to existing surface water storage and conveyance capabilities. Through unrefuted evidence, this requirement was shown to be satisfied. The evidence also establishes that the surface water in and around the Project will actually improve if the Project is constructed as permitted. Further, it will create improved and upgraded surface water management and treatment in areas that now lack features such as swales, retention/detention ponds, curbs and gutters, and improve the overall surface water storage and conveyance capabilities of the Project and surrounding areas. In its current pre-development condition, flooding has occurred in certain areas adjacent to and within the Project area due to poor conveyance, low storage volume, and high tailwater conditions that result from high tides. The Project will remedy historic flooding issues in the Old Palm City area which lies adjacent to a portion of the Project alignment. Surface water runoff will be captured, controlled, and treated by a system of swales, weirs, and retention/detention facilities for pretreatment prior to discharging into the South Fork of the St. Lucie River. Reasonable assurances have been given that existing surface water storage and conveyance capabilities will not be adversely affected. Value of Functions to Fish, Wildlife, and Species Rule 40E-4.301(1)(d) requires that an applicant provide reasonable assurances that a proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. BOR Section 4.2.2 further implements this provision. For the following reasons, the rule and BOR have been satisfied. The evidence shows that the existing functions to fish and wildlife were assessed and analyzed by a number of federal and state fish and wildlife agencies. There were extensive review and site inspections by the District, DOT, United States Fish and Wildlife Service, United States Army Corps of Engineers, and National Marine Fisheries Commission to assess the existence of, and potential impact on, fish and wildlife that may result from the Project. These studies revealed that while portions of the South Fork of the St. Lucie River provide potential habitat for aquatic or wetland-dependent or threatened species of special concern, no nesting or roosting areas within the vicinity of the Project were observed. The evidence further supports a finding that "other surface waters" over and under the Project will not receive unacceptable impacts due to their current condition, the detrimental influences of Lake Okeechobee discharges, and tidal impacts. Many of the wetlands to be impacted by the Project were shown to have been impacted by historic activities, and they provide diminished functions to fish and wildlife. The wetland functions were assessed through the Uniform Mitigation Assessment Methodology (UMAM). The UMAM is a standardized procedure for assessing the functions provided by wetlands and other surface waters, the amount that those functions would be reduced by a proposed project, and the amount of mitigation necessary to offset that loss. Detailed UMAM assessments were prepared by the Applicants and the District. They demonstrate that while certain functional units will be lost, they will be fully offset by the proposed mitigation. No credible evidence to the contrary was presented. Water Quality of Receiving Waters Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that a project will not adversely affect the quality of receiving waters such that State water quality standards will be violated. BOR Section 4.2.4 implements this rule and requires that "reasonable assurances regarding water quality must be provided for both the short term and long term, addressing the proposed construction, . . . [and] operation of the system." The receiving water body is the South Fork of the St. Lucie River, which is designated as an impaired water body. The evidence establishes that the Applicants will avoid and minimize potential short-term impacts to water quality by using silt screens and turbidity barriers, and implementing other best management practices to contain turbidity during construction of the Project. They will also use a temporary trestle rather than barges in the shallow portions of the South Fork to avoid stirring up bottom sediments. Finally, a turbidity monitoring plan will be implemented during construction and dewatering activities for all in-water work. All of these construction techniques will minimize potential impacts during construction. The evidence further establishes that water quality standards will not be violated as a result of the Project. In fact, in some cases water quality will be enhanced due to the installation and maintenance of new or upgraded surface water management features in areas where they do not exist or have fallen into disrepair. Over the long term, the Project is expected to have a beneficial effect on water quality. By improving existing surface water management and adding new surface water treatment features, the Project will provide net improvement to water quality. Wetland Delineation and Impacts The Project includes unavoidable impacts to wetlands and other surface waters. A total of 18.53 acres of wetlands and other surface waters within the Project site will be impacted by the Project, including 3.83 acres of wetlands that will be directly impacted and 14.7 acres of wetlands and other surface waters that will be secondarily impacted. The delineated wetlands are depicted in the Staff Report as wetlands 2a, 19a, 19b, 22, 25-29, 30a, 30b, and 30c, with each having a detailed UMAM assessment of its values and condition. (Impacts to wetland 25 are not included in this Project because they were accounted for in a separate permit proceeding.) Using a conservative assessment and set of assumptions, the District determined that, with the exception of wetlands 19a, 19b, 22, and 27, all wetlands would be impacted by the Project. However, the wetlands that would be impacted suffer from varying historical adverse impacts that have compromised the functions and values they provide to fish, wildlife, and species. This is due to their proximity to urban development, vegetative connectivity, size, historic impacts, altered hydroperiod, and invasive plant species. Likewise, even though the wetlands to be impacted on Kiplinger Island provide certain resting and feeding functions for birds, the value of these functions is comparatively lower than other wetlands due to the presence of invasive species and lack of management. The preponderance of the evidence supports a finding that the Applicants provided reasonable assurances that the Project will not cause adverse impacts to fish, wildlife, or listed species. See Fla. Admin. Code R. 40E-4.301(1)(d). Secondary Impacts Rule 40E-4.301(1)(f) and BOR Sections 4.1.1(f) and 4.2.7. require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources, both from a wetlands and water quality standpoint. Secondary impacts are those that occur outside the footprint of the project, but which are very closely linked and causally related to the activity to be permitted. De minimis or remotely-related secondary impacts, however, are not considered unacceptable. See § 4.2.7.(a). There will be secondary impacts to 6.83 acres of freshwater wetlands and 7.87 acres of mangroves, or a total of 14.7 acres. To address these secondary impacts, the Applicants have established extensive secondary impact zones and buffers along the Project alignment, which were based in part on District experience with other road projects and another nearby proposed bridge project in an area where a State Preserve is located. While Petitioners' expert contended that a 250-foot buffer on both sides of the roadway's 200-foot right-of-way was insufficient to address secondary impacts to birds (who the expert opines may fly into the bridge or moving vehicles), the greater weight of evidence shows that bird mortality can be avoided and mitigated through various measures incorporated into the Project. Further, the bird mortality studies used by the expert involved significantly different projects and designs, and in some cases involved projects outside the United States with different species concerned. Engineering and Scientific Principles Rule 40E-301(1)(i) requires that an applicant give reasonable assurance that a project "be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Unrefuted evidence establishes that the proposed system will function and be maintained as proposed. Financial, Legal and Administrative Capability Rule 40E-4.301(1)(j) requires that an applicant give reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms of the permit. The evidence supports a finding that Applicants have complied with this requirement. Elimination and Reduction of Impacts Before establishing a mitigation plan, Rule 40E- 4.301(3) requires that an applicant implement practicable design modifications to eliminate and reduce wetland and other surface water impacts. In this case, there are unavoidable, temporary wetland impacts associated with the construction of the Project, as well as unavoidable wetland impacts for direct (project footprint), secondary, and cumulative impacts of the Project. The record shows that the Applicants have undertaken extensive efforts to eliminate and reduce wetland and other surface water impacts of the Project. For example, DOT examined and assessed several innovative construction techniques and bridge designs to eliminate and avoid wetland impacts. To eliminate and reduce temporary impacts occurring during construction, DOT has reduced the effect of scour on the pier foundation and reduced the depth of the footing to minimize the amount of excavation on the mangrove island. Also, during construction, the contractor is prohibited from using the 200- foot right-of-way on the mangrove island for staging or stockpiling of construction materials or equipment. The majority of the bridge width has been reduced to eliminate and avoid impacts. Also, the Project's alignment was adjusted to the north to avoid impacts to a tidal creek. Reasonable assurances have been given that all practicable design and project alternatives to the construction and placement of the Project were assessed with no practicable alternatives. Public Interest Test Besides complying with the requirements of Rule 40E- 4.301, an applicant must also address the seven factors in Rule 40E-4.302(1)(a)1.-7., which comprise the so-called "public interest" test. See also § 373.414(1)(a), Fla. Stat. In interpreting the seven factors, the District balances the potential positive and negative effects of a project to determine if it meets the public interest criteria. Because Petitioners agree that factors 3 and 6 of the rule are not at issue, only the remaining five factors will be considered. For the following reasons, the Project is positive when the criteria are weighed and balanced, and therefore the Project is not contrary to the public interest. Public Health, Safety, and Welfare The Applicants have provided reasonable assurance that the Project will not affect public health, safety, and welfare. Specifically, it will benefit the health, safety, and welfare of the citizens by improving traffic conditions and congestion, emergency and hurricane evacuation, and access to medical facilities. In terms of safety, navigation markers are included as part of the Project for safe boating by the public. See Fla. Admin. Code R. 40E-4.302(1)(a)1. Conservation of Fish and Wildlife The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The mitigation projects will offset any impacts to fish and wildlife, improve the abundance and diversity of fish and wildlife on Kiplinger Island, create mangrove habitat, and add to the marine productivity in the area by enhancing water quality. See Fla. Admin. Code R. 40E-302(1)(a)2. Fishing or Recreational Values The Project has features that allow for pedestrian and bicycle utilization and observation areas which should enhance recreational values. The Old Palm Bridge, approximately one mile north of the Project, has had no adverse impact on the fishing recreation along the South Fork of the St. Lucie River. Navigation will not be affected due to the height and design of the new bridge. Finally, the bridge is expected to be a destination for boating, kayaking, fishing, and bird watching. See Fla. Admin. Code R. 40E-4.302(1)(a)4. Whether the Activity is of a Permanent Nature The parties have stipulated that the Project is permanent in nature. No future activities or future phases of the project are contemplated. Temporary and permanent impacts are all being fully mitigated. See Fla. Admin. Code R. 40E- 4.302(1)(a)5. Values of Functions Being Performed in Affected Areas Due to historic impacts to the areas affected by the Project, the current condition is degraded and the relative value of functions is minimal. Although Kiplinger Island will have temporary impacts, that island is subject to exotic species and has no recreational use or access by boaters or members of the public. The Applicants propose mitigation which will improve and enhance these wetland functions and values in the areas. See Fla. Admin. Code R. 40E-4.302(1)(a)7. Summary The evidence supports a finding that the Project is positive as to whether it will affect the public health, safety, welfare, or property of others; that the Project is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the Project is positive as to conservation of fish, wildlife, recreational values, marine productivity, permanency, and current values and functions. When weighed and balanced, the Project is not contrary to the public interest. Cumulative Impacts Rule 40E-4.302(1)(b) requires that an applicant give reasonable assurance that a project will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in BOR Sections 4.28 through 4.2.8.2. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. An analysis is geographically based upon the drainage basins described in BOR Figure 4.4.1. Petitioners' contention that Figure 4.4.1 is inaccurate or not representative of the basin in which the Project is located has been rejected. In this case, the North St. Lucie Basin was used. To assess and quantify any potential unacceptable cumulative impacts in the basin, and supplement the analyses performed by the Applicants, the District prepared a Basin Map that depicted all the existing and permitted wetland impacts as well as those wetlands under some form of public ownership and/or subject to conservation restrictions or easements. The District's analysis found that the wetlands to be mitigated were of poor quality and provided minimal wildlife and water quality functions. Cumulative impacts from the Project to wetlands within the basin resulted in approximately a four percent loss basin-wide. This is an acceptable adverse cumulative impact. Therefore, the Project will not result in unacceptable cumulative impacts. Mitigation Adverse impacts to wetlands caused by a proposed activity must be offset by mitigation measures. See § 4.3. These may include on-site mitigation, off-site mitigation, off- site regional mitigation, or the purchase of mitigation credits from mitigation banks. The proposed mitigation must offset direct, secondary, and cumulative impacts to the values and functions of the wetlands impacted by the proposed activity. The ability to provide on-site mitigation for a DOT linear transportation project such as a bridge is limited and in this case consists of the creation of mangrove and other wetlands between the realigned St. Lucie Shores Boulevard and the west shore of the St. Lucie River, north and south of the proposed bridge crossing. BOR Section 4.3.1.2 specifically recognizes this limitation and allows off-site mitigation for linear projects that cannot effectively implement on-site mitigation requirements due to right-of-way constraints. Off-site mitigation will offset the majority of the wetland impacts. Because no single on-site or off-site location within the basin was available to provide mitigation necessary to offset all of the Project's impacts, DOT proposed off-site mitigation at two established and functioning mitigation areas known as Dupuis State Reserve (Dupuis), which is managed by the County and for which DOT has available mitigation credits, and the County's Estuarine Mitigation Site, a/k/a Florida Oceanographic Society (FOS) located on Hutchinson Island. Dupuis is outside the North St. Lucie Basin and was selected to offset direct and secondary impacts to freshwater wetlands. That site meets the ERP criteria in using it for this project. The FOS is within the North St. Lucie Basin and was selected to offset direct and secondary impacts to estuarine wetlands. Like Dupuis, this site also meets the ERP criteria for the project. The preponderance of the evidence establishes that the on-site and off-site mitigation projects fully offset any and all project impacts, and in most instances before the impacts will actually occur. Sovereign Submerged Lands and Heightened Public Concern Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. For purposes of granting a public easement to the Applicants, the District determined that the Project is not contrary to the public interest and that all requirements of the rule were satisfied. This determination was not disputed. The only issue raised by Petitioners concerning the use of submerged lands is whether the application should have been treated as one of "heightened public concern." See Fla. Admin. Code R. 18-21.0051(5). If a project falls within the purview of that rule, the Board of Trustees of the Internal Improvement Trust Fund (Board), rather than the District, must review and approve the application to use submerged lands. Review by the Board is appropriate whenever a proposed activity is reasonably expected to result in a heightened public concern because of its potential effect on the environment, natural resources, or controversial nature or location. Id. In accordance with established protocol, the ERP application was sent by the District to DEP's review panel in Tallahassee (acting as the Board's staff) to determine whether the Project required review by the Board. The panel concluded that the Project did not rise to the level of heightened public concern. Evidence by Petitioners that "many people" attended meetings and workshops concerning the Project over the last 20 years or so is insufficient to trigger the rule. Significantly, except for general project objections lodged by Petitioners and Audubon of Martin County, which did not include an objection to an easement, no adjacent property owner or other member of the public voiced objections to the construction of a new bridge. Revised Staff Report On October 20, 2010, the District issued a Revised Staff Report that merely corrected administrative errors or information that had been previously submitted to the District. Contrary to Petitioners' assertion, it did not constitute a material change to the earlier agency action either individually or cumulatively. Therefore, it was properly considered in this proceeding. Letter Modifications The Letter Modifications were used as a mechanism to capture minor alterations made to previously issued permits for Kanner Highway and Indian Street. Neither Letter Modification is significant in terms of water quality, water quantity, or environmental impacts. Both were issued in accordance with District rules and should be approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application Nos. 091021-8, 100316-7, and 100316-6. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2010. COPIES FURNISHED: Carol Ann Wehle, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 Jeffrey W. Appel, Esquire Ray Quinney and Nebeker, P.C. 36 South State Street, Suite 1400 Salt Lake City, Florida 84111-1401 Bruce R. Conroy, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 John J. Fumero, Esquire Rose, Sundstrom & Bentley, P.A. 950 Peninsula Corporate Circle Suite 2020 Boca Raton, Florida 33487-1389 Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road Mail Stop 1410 West Palm Beach, Florida 33406-3007
The Issue The issue is whether Florida Administrative Code Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority for the reasons alleged by Petitioners.
Findings Of Fact Austin is the owner of real property located at 1580 Indian Pass Road, Port St. Joe, Florida. Heslin is the owner of real property located at 1530 Indian Pass Road, Port St. Joe, Florida. Lighthouse is the applicant for a coastal construction control line (CCCL) permit for structures and activities proposed to occur on property located adjacent to Austin’s property. Heslin’s property is located within 500 feet of the proposed project site. The property for which the CCCL permit is sought is located landward of the mean high water line (MHWL). On January 31, 2006, the Department gave notice of issuance of a CCCL permit to Lighthouse. The proposed permit authorizes activities 228 feet seaward of the CCCL, specifically, the construction of a subdivision roadway/cul-de- sac including asphalt and limerock foundation, excavation of soil, filling of soil, ornamental street lights, stormwater management swales, below grade utilities, and dune enhancement plantings. Lighthouse obtained a subdivision plat for the site from Gulf County, Florida, on June 28, 2005, which includes 12 platted lots seaward of the CCCL, each approximately one quarter acre in size. When issuing the CCCL permit, the Department did not consider the platted subdivision that will be serviced by the permitted roadway project. Austin filed a petition challenging the issuance of the CCCL permit to Lighthouse. The challenge is styled Gloria Austin v. Lighthouse Walk, LLC and Department of Environmental Protection, DOAH Case No. 06-1186 (hereafter “the Permit Challenge”), and is pending before Judge Alexander. Heslin sought and was granted leave to intervene in the Permit Challenge. Paragraphs 6, 10, and 18 of the Petition for Formal Administrative Proceeding (Petition) in the Permit Challenge state as follows: 6. The proposed subdivision that is intended to be built by Lighthouse, will result in incompatible high density residential development seaward of the costal control line and seaward of the Petitioners’ homes. The incompatible and inappropriate nature of this subdivision will greatly increase the danger of Petitioners’ homes being damages by storm driven debris in the event of a major storm event such as a hurricane occurring in this area. * * * The area in question on Cape San Blas is presently developed in very low density single family home sites. The proposed development would create high density development seaward of the coastal construction control line for which construction is totally unnecessary and could easily be greatly minimized. The parcel in question could accommodate a residential subdivision without encroaching seaward of the present coastal construction and control line. In light of the above, it is clear the project violates Rule 62B- 33.005(3), Florida Administrative Code. * * * 18. The proposed permit would create a high density subdivision which would create a multitude of small single family lots on this site. By granting the permit for this site development, the Department is condoning the intended construction of a multitude of single family residences which are totally inappropriate for the beach dune system in this area. The combined effect of the construction of single family residences on the proposed plat seaward of the coastal construction control line will maximize impacts to the beach dune system, not minimize the impact as required by the Department’s rules in Chapter 62B-33, Florida Administrative Code. Lighthouse moved to dismiss the Petition in the Permit Challenge, to strike certain allegations, and for an Order in limine in that case. The Department filed a memorandum of law in support of Lighthouse’s motion, stating, in part: Contrary to Petitioner’s argument in paragraph 2(b), the Department’s rule contains a standard for determination of “cumulative effects.” Rule 62B- 33.005(3)(a), F.A.C., provides that “[I]n assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell.” The Department’s rules also contain a regulatory definition of “impacts” (not “cumulative impacts” as argued by the Petitioner). Therefore, consideration of future applications not yet pending with the Department is outside the scope of the Department’s permitting jurisdiction under the rule. Contrary to the arguments made by Petitioner in paragraph 2(c) and (d) construction of a “residential subdivision” is not a foregone conclusion. First, in Rule 62B-33.005(3)(a), F.A.C., it states that “[e]ach application shall be evaluated on its own merits in making a permit decision; therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Second, use by an applicant of the single family home general permit authorized by Section 161.053(19), F.S., and existing in Rule 62B-34.070, F.A.C., is not governed by the principle that a general permit is authorized without additional agency action. The concept of a general permit adopted by rule exists in many different permitting programs of the Department. The different permitting programs are created and governed by their organic statutes, and only those statutes (and rules promulgated under them) should be looked to for the legal principles that apply in the permitting program. (See paragraph 4. above). The case law cited by Petitioner in paragraph 2(c) of her response refers to general permits established under Chapter 403, F.S., specifically authorized by Section 408.814, F.S. Section 403.814(1) provides for use of a general permit 30 days after giving notice to the department “without any agency action by the department.” See § 403.814(1), Fla. Stat. (2005). No similar provision appears in Section 161.053(19), F.S. In addition, Section 403.814, F.S. provides for administrative review of the use of a general permit where the Department publishes or requires the applicant to publish notice of its intent to use a general permit. See § 403.814(3), Fla. Stat. (2005); Hamilton County Bd. of County Comm’rs v. State, Department of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991) and City of Jacksonville v. Department of Environmental Protection, 24 F.A.L.R. 938 (Fla. DEP 2001). By Order dated May 23, 2006, Judge Alexander struck paragraphs 6, 10, and 18 of the Petition in the Permit Challenge, holding, in part: Second, the Motion to Strike is granted in part, and paragraphs 6, 10, and 18 are stricken. The Motion to Strike paragraphs 9 and 19 is denied since paragraph 9 simply tracks the language in Florida Administrative Code Rule 62B-33.005(3)(a), and neither paragraph makes specific reference to impacts from the proposed construction of a residential subdivision. Although paragraphs 5 and 13 refer to alleged impacts to “wildlife habitat,” “drainage,” and “wind and water borne missiles during a storm,” which might arguably include matters unrelated to this action, the granting of the Motion in Limine below precludes Petitioner from introducing evidence regarding impacts to habitat other than sea turtles, the stormwater exemption, and wind and water borne missiles caused by the proposed construction of a residential subdivision. Finally, the Motion in Limine is granted, and Petitioner (and Intervenor) shall be precluded from introducing evidence in support of allegations relating to cumulative impacts caused by the proposed construction of a residential subdivision, debris and wind and water borne missiles from the proposed construction of a residential subdivision, the exemption of swales from stormwater discharge permit requirements, and any habitat impacts unrelated to sea turtles. See § 161.053, Fla. Stat. (2005); Fla. Admin. Code R. 62B- 33.005, 62B-33.007, and 62-25.030(1)(c). Petitioners have alleged in this case that Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority. Lighthouse has disputed that allegation in its Motion for Summary Final Order, which is fully supported by the Department. Section 161.053(5)(a), Florida Statutes, was first adopted by the Legislature in 1983. The statute was amended without any substantive changes to its text in 1987. Section 161.053(5)(a)3., Florida Statutes (2005),2 currently states in pertinent part: Except in those areas where local zoning and building codes have been established pursuant to subsection (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: The department may authorize an excavation or erection of a structure at any coastal location as described in subsection (1) upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including: * * * 3. Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system, which, in the opinion of the department, clearly justify such a permit. Rule 62B-33.005(3)(a) was amended in 1996 as follows: (3) After reviewing all information required pursuant to this Chapter, the Department shall: (a) Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other activities proposed within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. * * * (7) An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site, however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event. An exception to this policy may be made with regard to those activities undertaken pursuant to Subsections 16B-33.005(3)(d) and 16B- 33.006(2), Florida Administrative Code. Rule 62B-33.005(3)(a) was amended in 2000, as follows: After reviewing all information required pursuant to this Chapter, the Department shall: * * * Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Rule 62B-33.005(3)(a) currently appears as set forth in the preceding paragraph, but without the underlining. One of the provisions in Rule 62B-33.005(3)(a) that is being challenged in these cases states that the Department shall: [d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. This provision was first added to Rule 62B-33.005 in 1996. It was amended on August 27, 2000. The other provision in Rule 62B-33.005(3)(a) that is being challenged in these cases is the requirement that: [e]ach application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. This provision was first added to Rule 62B-33.005 in 1996. Rule 62B-33.005 is intended by the Department to implement Section 161.053(5)(a)3., Florida Statutes. Rule 62B-33.005(3)(a) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.053(5)(a)3., Florida Statutes. Petitioners disagree with the Department’s construction of the statute. Rule 62B-41.002 was first developed on August 23, 1992, as part of the newly enacted Rule Chapter 16B-41, which was later designated as Rule Chapter 62B-41. Rule 62B-41.002(28), first developed in 1992, is the precursor to Rules 62B-41.002(19)(a) and (b), which were added on October 23, 2001. Rule 62B-41.002 is intended by the Department to implement Section 161.041, Florida Statutes. Rule 62B-41.002(19)(b) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.041(2)(c), Florida Statutes. Petitioners disagree with the Department’s construction of the Statute. The current language of Section 161.041(2), Florida Statutes, was adopted by the Legislature in 1987, as follows: The department may authorize an excavation or erection of a structure at any coastal location upon receipt of an application from a property or riparian owner and upon consideration of facts and circumstances, including: Adequate engineering data concerning inlet and shoreline stability and storm tides related to shoreline topography; Design features of the proposed structures or activities; and Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system or coastal inlet, which, in the opinion of the department, clearly justify such a permit. Rule 62B-41.002(19) was amended to its current form in 2001, as follows: Renumbered as (19) * * * “Adverse Impacts” are those impacts to the active portion of the coastal system resulting from coastal construction. Such impacts are caused by coastal construction which has a reasonable potential of causing a measurable interference with the natural functioning of the coastal system. The active portion of the coastal system extends offshore to the seaward limit of sediment transport and includes ebb tidal shoals and offshore bars. "Cumulative Impacts" are impacts resulting from the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell individual coastal construction which, if permitted as a general practice on other coastal properties in the same general area, or if added to the adverse impacts from existing coastal construction are expected to result in an adverse impact. The scope of the "cumulative impact" review under the Environmental Resource Permit (ERP) program is described in the “Basis of Review” used by the South Florida Water Management District, St. Johns River Water Management District, and Southwest Florida Water Management. Under the “Basis of Review,” cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities, would result in a violation of state water quality standards or significant adverse impacts to functions of wetlands or other surface waters. The cumulative impact evaluation is conducted using an assumption that reasonably expected future applications with like impacts will be sought, thus necessitating equitable distribution of acceptable impacts among future applications. In reviewing impacts of a current ERP project application, the agency will review impacts from pending projects and extrapolate from those impacts to see what impacts future projects could contribute, using objective criteria, such as comprehensive plans, plats on file with local governments, or applicable land use restrictions and regulations. Tony McNeal, the administrator of the Department’s CCCL permitting program, acknowledged in his deposition testimony that the last sentence of Rule 62B-33.005(3)(a) “is a way of saying that the Department is not going to be bound by its prior actions in similar cases.” However, he also explained that the sentence does not allow the Department to act inconsistently because the Department “consistently applies the same rules” to each project that comes before it and “[t]he only thing that changes are the facts surrounding the project.”
Findings Of Fact Based upon the above testimony and the exhibits received into evidence in this cause, the undersigned Hearing Officer makes the following findings of fact with regard to the issue in dispute: The applicants, as owners and lessees of 3,300 acres of land to be used for sugar cane production, propose to install a surface water management system consisting of levees, ditches, culverts, and pumps for drainage and irrigation purposes. Irrigation will be drawn from and drainage water will be discharged into Canal 51, a project works of the FCD. There is no dispute between the applicant and the FCD staff concerning the permit for water use and connection to C-51. The applicant proposes to discharge, via two 30,000 gallon per minute pumps, one inch per acre per day or 62,239 gallons per minute into C-51. The soils on the applicants' land are primarily muck types which are high in organic nitrogen. A water level of three feet below ground level, as proposed, will probably cause such nitrogen in the muck soil to decompose, resulting in soil subsidence and production of inorganic nitrogen. Nutrients (primarily nitrogen and phosphorus) resulting from muck decomposition and crop fertilization may enter the water in the interior canals and cause such water to have a higher nutrient content. The water in Canal 51 now has low concentrations of nutrients, as compared with the waters in canals appurtenant to other sugar cane producing areas. There appear to be unique hydrological conditions on the land in question which may keep the drainage system flushed and nitrate-free and there is evidence that sawgrass areas act as an effective nutrient filter. There was no evidence that additional nutrients entering C-51 would be environmentally harmful or degrading to the waters in C-51, both parties admitting that further research and scientific data is needed to determine the safe level of nutrients in this area. The applicants and other interested groups have shown that the construction. and operation of a retention or impoundment area would cause an adverse economic impact upon landowners and would have an adverse economic effect upon consumers, the general labor force and the community. The FCD has not adequately demonstrated that the waters of C-51 would be degraded by the applicants' proposed project or that a 140 acre impoundment area would be a reasonable condition to impose upon the issuance of the permits in question. A water quality monitoring system, such as proposed in the original and revised staff reports, will permit the parties to determine whether the water in C-51 is being degraded by the addition of nutrients.
Recommendation Based upon the above cited testimony, evidence, findings of fact and conclusions off law, the following recommendations are made: It is recommended that a water use permit, a Surface water management permit and a right-of-way occupancy permit be issued, all in accordance with the recommendations and conditions set forth in the original Staff Report dated August 5, 1975, attached hereto as Exhibit A. It is recommended that the additional requirement of a 140-acre retention area set forth in the Revised Staff Report be rejected. It is further recommended that an additional condition be attached to the surface water management permit. That condition would be to have such permit expire at the same time as the water use permit; to wit: July 15, 1977, so as to allow the FCD and the applicants sufficient time to collect further data on the effect of nutrients on the waters of C-51 and compare said data with the information derived from the monitoring program required under the permits. If such data and comparisons sufficiently demonstrate that the waters of C-51 will be degraded by the applicants' project, a retention area requirement would then be a reasonable condition to the reissuance of a permit. Respectfully submitted and entered this 20th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George H. Bailey, Esquire JONES, PAINE & FOSTER, P.A. 601 Flagler Drive Court Post Office Drawer E West Palm Beach, Florida 33402 John Wheeler, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida =================================================================
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD) should grant the application of Daniel Borislow, LLC, for an after-the-fact Environmental Resource Permit (ERP) and issue ERP 50-09272-P.
Findings Of Fact In 2007, Borislow bought 6.2 acres of land near the corner of Congress Avenue and Summit Boulevard in West Palm Beach. Borislow proceeded to create a soccer field on the property. The project required the addition of fill, the grading and leveling of the field and a shellrock driveway/parking area, and the installation of sod, an irrigation system, an exfiltration trench for water quality treatment, and lighting. Later in 2007, Borislow's activities came to the attention of SFWMD, which cited Borislow for conducting activities requiring an ERP without applying for and obtaining one. To resolve the enforcement action, Borislow agreed to apply for an after-the-fact ERP. Initially, SFWMD estimated primarily from aerial photography that 0.71 acres of wetlands were filled and impacted. During the permitting process, SFWMD's estimate of direct wetland impacts was reduced to 0.50 acres, and the mitigation required for direct and secondary2 wetland impacts was determined using the Wetland Rapid Assessment Procedure (WRAP).3 It was determined that Borislow's purchase of 0.2 of a freshwater herbaceous wetland credit in the Loxahatchee Mitigation Bank would offset the project's wetland impacts. SFWMD staff determined that all ERP criteria were met.4 Spots stipulated that there are no water quality issues, that no wetland-dependent endangered or threatened species of special concern have been observed at or in the area of the project site, and that the potential use of the site by such species is minimal.5 Spots contends: SFWMD underestimated the extent of impacted wetlands (and, therefore, the amount of mitigation did not offset the wetland impacts); reasonable assurance was not given that the project will not flood the Spots property to the north, in violation of permitting criteria in Florida Administrative Code6 Chapter 40E-4 and SFWMD's Basis of Review for ERPs (BOR); and reasonable assurance was not given that water storage and conveyance capabilities would not be adversely impacted, in violation of the permitting criteria in Rule Chapter 40E-4 and the C-51 basin compensating water storage requirements of Rule Chapter 40E-41, Part III. In normal permitting, existing wetlands are delineated in accordance with Rule Chapter 62-340. In this after-the-fact permit application, former wetlands had to be estimated. Spots reasonably contends that Borislow should not benefit from having filled wetlands without an ERP. But the evidence proved that the former wetlands on the Borislow property were properly estimated. Contrary to the contention of Spots, the wetlands were not estimated on the basis of a single aerial photograph. There were numerous aerial photographs over several years, which the experts could interpret and use to make a reasonable estimate of the extent of the former wetlands on the site. Ironically, while criticizing SFWMD's alleged reliance on a single aerial photograph to determine the extent of the former wetlands, Spots relied on a single aerial photograph to claim that the former wetlands on the Borislow property were deep and larger than 0.5. acres. The photograph appeared to show standing water only on the Borislow property, but it is possible that standing water on the Spots property was obscured by vegetation. In addition, it is impossible to determine the depth of the water from the aerial photograph, and there was no evidence as to the rainfall preceding the aerial photograph. Spots provided no other evidence to support its claim that more mitigation is needed to offset the wetland impacts. On the issue of flooding the Spots property, the evidence was clear that, contrary to the drawings in the ERP, the highest elevations in the northwest corner of the Borislow property are several feet south of the Borislow/Spots property line,7 and several feet higher than the elevation at the property line,8 causing surface water to flow down this slope from the Borislow property onto the Spots property. The evidence proved that no such "back-flow" existed in that location before the project. This "back-flow" can be prevented from crossing the property line by placing a swale or railroad tie or some other similar vertical retaining wall near or on the property line. Borislow has agreed to an additional ERP condition that this be done. The Borislow property is in sub-basin 30 of the C-51 basin. Spots and its engineering expert criticized the engineering calculations used by the experts for Borislow and SFWMD to provide reasonable assurance that the project did not result in a net decrease in water storage capacity in the basin. Spots contended that the calculations incorporated pre- development elevations taken from a 2005 aerial photograph. However, the more persuasive evidence was that the elevations used in the calculations actually came from survey information on surrounding properties, including the Spots property and Summit Boulevard, plus the control elevation in nearby Lake Worth Drainage District L-5 Canal. Elevations for the former wetlands on the Borislow property were assumed to be 10 feet NGVD9 based on the actual elevations of the existing wetlands on the Spots property. The testimony of the experts for Borislow and SFWMD as to the source of the elevations used in the calculations is accepted. The engineering calculations developed by Borislow's expert and accepted by SFWMD indicated a net increase in water storage capacity as a result of grading and leveling the property.10 The calculations compared pre-development and post- development storage capacity between the water table11 and the 100-year storm elevation, which was calculated to be 14.1 feet NGVD. The evidence did not adequately explain how grading and leveling the Borislow property would increase water storage; it would seem that no change in water storage would result. The engineering calculations assumed that no fill was deposited on the property. However, the evidence was that 150 to 300 truckloads of fill, each with 17 to 18 cubic yards, for a total of 2,625 to 5,250 cubic yards, were delivered to and placed on the property. If 300 truckloads were used, this would represent as much as an acre-foot of fill.12 Although the fill would have some water storage capacity, adding that much fill to the property logically would result in a net decrease in water storage capacity in the C-51 basin. This loss was not quantified, or compensated.13 Borislow testified that the fill was used to construct a 13-foot high, 330-foot long, 30-foot wide berm along the western perimeter of the property and another large berm along the northern and southern perimeters of the soccer field.14 But other evidence does not support Borislow's testimony. According to the drawings in the ERP, there are a total of 370 feet of berms, which are required to be a minimum of six inches high to maintain elevation 13.4 feet NGVD to contain the peak stage of a 10-year, 3-day design storm.15 Based on the ground level photographs in evidence, the berms do not appear to be anywhere near 13 feet high or 30 feet wide. In any event, the evidence does not prove that the fill deposited on the property was higher than 14.1 feet NGVD. Regardless of the exact dimension of the berms, it appears that the fill was deposited in a way that would result in a net decrease in water storage capacity in the C-51 basin. SFWMD seems to suggest in its PRO that the fill should be disregarded because there were no records to confirm the dates it was delivered, or the amounts delivered, and because it might have been delivered to an adjacent property.16 But the burden of proof was on Borislow. See Conclusion of Law 16, infra. There was no evidence to prove that Borislow had the fill deposited on an adjacent property. It is more likely that the fill was deposited on the Borislow property in large part to fill the former wetland, which probably was lower than 10 feet NGVD. Spots also charged that Borislow's project essentially obstructs the previous flow of surface water from the wetlands on the Spots property into the wetlands on the Borislow property, such that surface water now backs up on the Spots property. This appears to be true. Since it appears that the wetlands on the Borislow property were lower than the wetlands on the Spots property, grading and leveling would have that effect; adding fill would exacerbate the effect. Spots also argued that the evidence did not provide reasonable assurance on the ability of Borislow's system to recover from a 10-year, three-day storm event, so as to be able to again retain the surface water runoff from a successive storm of that magnitude and duration 12 days later. But the persuasive evidence was to the contrary, primarily due to the major drainage features in the vicinity--namely, the C-51 and the L-5 canals.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that SFWMD deny Borislow's after-the-fact ERP. DONE AND ENTERED this 10th day of August, 2010, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2010.
Findings Of Fact Mr. George Szell was presented by the Southwest Florida Water Management District and sworn as a witness. Mr. Szell was qualified and accepted as an expert hydrogeologist employed by the District. Included within Mr. Szell's responsibilities to the District were evaluation of the subject application. An application for consumptive use permit has been filed in proper from by Trafalgar Developers of Florida, Inc., and it was admitted into evidence as Exhibit 1. The water source are two existing wells located on a 580.1 acre tract of land in Hillsborough County, Florida, legal description of which is included and admitted into evidence as part of Exhibit 1. A maximum daily withdrawal of each of the wells is 591,700 gallons and the average daily withdrawal of each of the two wells is 295,850 gallons. The total average daily withdrawal for both wells combined is 591,700 gallons, or 94.43 percent of the water crop of the applicant as defined in Section 16J-2.11(3), F.A.C. 85 percent of the water used would be used for general residential purposes and 15 percent of the water used would be used for watering the grounds of the development. Letters of objection were received from Joseph and Roseamn Clements, C. C. and Ida M. Weisner, Sr.,. Miguel and Juanita Perez, Howard R. Lewis, Mr. and Mrs. Lonnie F. Lovell, Stephen J. KucIar (sic), and Carmen Vasquez. Reasons for the objections as stated in these letters was the effect the pending application would have upon the wells of the persons objecting. Mr. Szell testified that none of the matter set forth in Subsection 16J-2.11(2), (3) and (4), F.A.C. exists so as to require the denial of the permit. Mr. Earl Bessent testified that 55 acres of holding ponds were to be constructed on the property during the development and that the effect of these holding ponds would be to increase the input of waters from the 580 acres to the surface aquifer.
Recommendation It is recommended that Application No. 7500087, submitted by Trafalgar Developers of Florida, Inc., 111 Fountainbleau Boulevard, Miami, Florida, be granted for a maximum daily withdrawal of 1,183,400 gallons and an average daily withdrawal of 591,700 gallons, subject to the installation of flow meters on each of the wells and monthly readings thereof reported to the District quarterly. Entered this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. T. Ahern, Esquire C. C. and Ida Weismer, Sr. Staff Attorney Route 7, Box 635-J Southwest Florida Water Tampa, Florida 33614 Management District Post Office Box 457 Miguel and Juanita Perez Brooksville, Florida 33501 Route 7, Box 635-K Tampa, Florida 33614 Trafalgar Developers of Florida, Inc. Mr. and Mrs. Lonnie Lovell 111 Fountainbleau Boulevard Route 5, Box 485-A Miami, Florida 33126 Tampa, Florida 33614 Howard R. Lewis Carmen Vasquez Route 5, box 485-AB Route 7, Box 635 Tampa, Florida 33614 Tampa, Florida 33615 Mr. Earl Bessent Bessent, Hammack & Ruckman, Inc. 3708 Swann Avenue Tampa, Florida 33609 Joseph and Roseann Clememts Route 7, Box 634-J Tampa, Florida 33614
