Findings Of Fact Background Respondent Telese is the owner and developer of Egret Woods Subdivision on real property contiguous to state waters in Pinellas County, Florida. The property is near the incorporated areas of Indian Shores and Largo. A residential subdivision borders the project locale to the east, and tidal mangrove swamps fringe the property to the west. An intracoastal connecting waterway known as the "Narrows" lies to the west of the swamps. These state waters connect Boca Ceiga Bay and Clearwater Harbor. The proposed subdivision area is an upland strip between the existing subdivision and the tidal swamp adjacent to the "Narrows". The uplands are predominantly vegetated by live oak, saw palmettos and slash pines. In order to develop the property, and to reconfigure lots from a previously platted subdivision, Respondent Telese applied for a permit from DER to fill 0.12 acres of DER jurisdictional wetlands located at the development site. The application for the permit represents that 340 cubic yards of clean, non-deleterious sandy loam is needed to fill disturbed high marsh areas and other low areas on the proposed lots. Respondent Telese has also requested permission to install culverts in the two conveyance/mosquito ditches that run through the lots before they reach their discharge points outside of the proposed lot lines. The Petitioners are owners of single-family homes within the subdivision to the east known as Whispering Pines Forest, 5th Addition. These property owners filed a Petition in which they disputed the appropriateness of the Notice of Intent to Issue filed by DER on August 21, 1990. In support of their position, the Petitioners identified a number of areas of controversy they contend should cause DER to reverse its preliminary decision to grant the "dredge and fill" permit on this project. Elimination of Natural Drainage The first area of controversy is the Petitioners' contention that their interests are substantially effected by the elimination of natural drainage from their subdivision into the uplands referred to as Egret Woods Subdivision. The entire area was owned by the same developer prior to the creation of Whispering Pines Forest 5th Addition. Essentially, the Petitioners allege that a subservient estate was created on these adjacent lands for their surface water drainage purposes which the proposed development eliminates. A review of the Notice of Intent to Issue reveals that culverts are to be placed in two of the open conveyance ditches currently transporting surface water runoff from Whispering Pines Forest 5th Addition through the uplands of Egret Woods into the wetlands. While this proposed change in the means of conveyance of the surface water may not affect the volume of water conveyed, it could adversely effect the quality of the water at the discharge points into the wetlands. At hearing, the Petitioners were unable to clearly articulate their concerns about this water quality issue. However, it is intricately interwoven into the surface water management issues. The water quality concern was obliquely referred to in the Biological and Water Quality Assessment Report where DER's application appraiser commented that the proposed conservation easements and the mitigation plantings, which replace the high marsh removed for lot reconfiguration, are sufficient to offset the potential adverse impacts of the requested fill and culvert changes to the existing water quality at the project site. Although this particular water quality issue was properly addressed by DER in its review of the permit application, it was not clearly set forth in the Notice of Intent to Issue. There is no way for a person whose substantial interests are affected by the proposed permitting decision to determine that DER had considered mitigation measures to prevent this adverse effect. A decrease in surface water quality would have been caused by the marsh elimination and the placement of culverts if the marsh had not been replanted, and other mitigative measures had not occurred at the locale. The Petitioners properly requested a formal administrative hearing to address surface water management issues as DER's consideration of the matter was not made clear to them in the Notice of Intent to Issue. The written report that discusses water quality as it relates to the mitigation plan was provided to Petitioner's post-hearing, after a copy of the written appraisal was sent to the Hearing Officer and all parties by DER. Planned Roadway The second area of controversy is the Petitioner's concern about the effects of the planned roadway on their properties. As the planned roadway involves the county, it is not a matter considered in the dredge and fill permit. Neither DER nor the Hearing Officer has subject matter jurisdiction. The Petitioners did not pursue this area of controversy or the road location at hearing based upon the Hearing Officer's ruling that it was not relevant to this permit review. High Water Mark and the Setting of the DER Jurisdictional Line The third area of controversy raised by Petitioners involves their collective concern about a variance in the height of the Mean High Water Line on the property on different documents presented to different agencies. The current survey for DER completed by the surveyor shows the Mean High Water Line at 1.16, while the survey submitted to Pinellas County in 1981 from the same surveyor reads the Mean High Water Line at 1.25. This was explained at hearing by the surveyor. It was his opinion as a professional surveyor that there is no basic difference between these two mean high water lines. Since the survey to the county in 1981, the Mean High Water Line has varied between 3 - 3 1/2 feet in some areas. The same methodology and simple mathematical formula was used by him during the two different surveys which were about eight years apart. The difference in the two surveys is within the tolerance level accepted within the industry and needs no further reconciliation. As a correlative issue, Petitioners raise a concern about the change in DER's jurisdictional line on various documents involving this same site over a number of years. DER's jurisdictional lines have changed since the "Hendersons Wetland Act" enacted on October 1, 1984. The jurisdictional line as depicted on this permit application was established by dominant plant species as defined in Rule 17-301.400, Florida Administrative Code, just prior to the application submission. This was the correct way to determine jurisdiction on the property at this particular point in time. Although the mean high water line may have been determinative of DER's jurisdiction on earlier permits, only the current law applies to the facts of this case. DER reviewed the jurisdictional lines as depicted on the property by Respondent Telese's consultant and found them to be properly placed during the processing of the permit application. Historical DER jurisdictional lines and permit reviews are irrelevant to this permit review as it is based upon the agency's current rules the applicable statutory criteria, and current site conditions. Fill Calculations The fourth area of controversy involves the Respondent's request to place fill on the site. When Petitioners used an engineer's scale to measure the areas to be filled on the permit drawings, their volume calculations reveal that more fill will be needed than represented on the permit application. Petitioners are concerned that this error could cause DER to approve a permit which does not accurately depict site conditions. The actual fill calculations were done by the professional engineer with a computer model based upon average elevations, depth and area. In his professional engineering opinion, his calculations were accurate, which was given great weight by the Hearing Officer. The drawings used by the Petitioners to calculate the required fill for the area were pictorial communications of what the Respondent Telese intended to accomplish at the site. These drawings were designed for descriptive purposes only and were not scaled to the extent that they could be accurately used for fill calculations in the manner applied by Petitioners. The computer modeling used by the professional engineer was the more prudent approach to the on-site fill requirements. De Novo Permit Review Although the wetlands resource permit requested by Respondent Telese is commonly referred to as a "dredge and fill" permit, there is no dredging associated with the project. The proposed placement of fill in the high marsh area of tidal wetlands on the property and the culvert placement requires construction activity in Class III Waters. Water quality impacts to the area will be a short term problem as water turbidity should take place only during construction. Specific conditions regarding construction techniques have been placed in the permit as permit conditions to minimize the impacts. There is no factual dispute as to whether the proposed conservation easement, the replacement and enlargement of the high marsh in another location, the removal of exotics such as Brazilian Pepper trees, and the planting of black mangroves will sufficiently mitigate the adverse impacts on water quality and the public interests at the proposed development. Without the replacement of the disturbed high marsh with high marsh plantings at a 1.91:1 ratio, the enhancement of the property through exotic removal, and the conservation easements at a 132:1 ratio, the Respondent Telese is unable to provide reasonable assurances that the project is not contrary to the public interest under the statutory criteria established in Section 403.918, Florida Statutes. The proposed project will not adversely affect the public health, safety, or welfare or the property of others. The flooding anticipated by the Petitioners is speculative, and has not been directly related to the fill placement and the culverts in the two conveyance/mosquito ditches. Conservation of fish and wildlife and their habitats, will not be adversely affected due to the high marsh replacement and the fact that the area provided only marginal wetland habitat prior to the permit application due to the invasion of exotics at the site. Any impact from the proposed project on this public interest criterion is offset by the mitigation plan. The project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the project. The proposed plantings of black mangroves and the removal of exotics, along with the new high marsh swamp should enhance the productivity of the area. No future projects of a similar nature can be developed at this locale due to the conservation easements the Respondent Telese has consented to provide over the remaining undeveloped property owned by him in the area. These easements will allow the Department to limit and control activities that may be undertaken in these tidal waters to prevent degradation of the site from an environmental standpoint. The mitigation planting schedule provides reasonable assurances that water quality standards will not be violated in the area as a result of culvert placement in the two conveyance/mosquito ditches that transport surface water to Class III waters of the state. Balancing of Interests In the "dredge and fill" permit application appraisal, site review, and Notice of Intent to Issue, DER considered and balanced all of the required statutory criteria to determine that the project is not contrary to the public interest or applicable water quality standards. Area of Controversy All of the areas of controversy raised by the Petitioners which are within the Division of Administrative Hearings' jurisdiction, have been sufficiently met by the reasonable assurances of Respondent Telese and the permit conditions required by DER. Based upon the evidence presented at hearing, it is concluded that the harms anticipated by Petitioners will not occur. Recommendation Regarding the Assessment of Attorneys Fees and Costs Petitioners did not participate in this proceeding for an improper purpose. The Notice of Intent to Issue was vague as to how interests were balanced and how the mitigation would offset the adverse impacts that concerned Petitioners. The petition was filed and prosecuted in good faith and addressed legitimate concerns of concerned citizenry who reside on adjacent lands.
Recommendation Based upon the foregoing, it is recommended: That a Final Order be entered approving Respondent's Telese's dredge and fill permit number 521715273, pursuant to the Notice of Intent to Issue filed August 21, 1990. That Petitioners should not be assessed attorney fees and costs as they did not participate in these proceedings for an improper purpose. RECOMMENDED this 28th day of June, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7035 Petitioners' proposed findings of fact are addressed as follows: Accepted. See HO #11. Rejected. Does not allow for change in seasons or conditions. See HO #11. Accepted. See HO #11. Accepted. See HO #15. Accepted. Rejected. Not within Hearing Officer's subject matter jurisdiction. Irrelevant to this proceeding. Accepted. See HO #3. Respondent Telese's proposed findings of fact are addressed as follows: Accepted. See HO #1, #2 and #18. Accepted. See HO #1, #2, #20 and #23. Accepted. See HO #20 and #21. Accepted. See HO #21. Accepted. See HO #22 - #27. Accepted. See HO #13 and #16. Denied. Contrary to fact. See HO #4 - #17. DER's proposed findings of fact are addressed as follows: 1. Accepted. See HO #1 and #2. 2. Accepted. See HO #1. 3. Accepted. See HO #1 - #3. 4. Accepted. See HO #2, #18 and #20. 5. Accepted. See HO #20, #21 and #24. 6. Accepted. 7. Accepted. 8. Accepted. 9. Accepted. 10. Accepted. 11. Accepted. 12. Accepted. 13. Accepted. 14. Accepted. 15. Accepted. 16. Accepted. 17. Accepted. See HO #19. 18. Accepted. 19. Accepted. See HO #19. 20. Accepted. See HO #21. 21. Accepted. See HO #18. COPIES FURNISHED: Ines D. Degnan 8410-144th Lane North Seminole, Florida 34636 David R. Chirington 8400-144th Lane North Seminole, Florida 34646 Alton Jeffcoat 8340-144th Lane North Seminole, Florida 34646 Carol B. Newton 8450-144th Lane North Seminole, Florida 34646 Steven M. Siebert, Esquire JOHNSON BLAKELY POPE BOKOR RUPPEL & BURNS, P.A. 911 Chestnut Street Clearwater, Florida 34616 W. Douglas Beason, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. D. "Sonny" Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue to be determined in this case is whether the Respondents, Florida Department of Transportation (“FDOT”) and Palm Beach County (also referred to as “the Applicants”), are entitled to the issuance of an Environmental Resource Permit (“ERP”) to construct an extension of State Road 7 (“SR 7”) and its associated surface water management system in Palm Beach County.
Findings Of Fact The Parties The City is a municipality incorporated under Florida law. The District is a regional agency with the authority to regulate the construction, operation, and maintenance of any surface water management system pursuant to chapter 373, Part IV, Florida Statutes, and Florida Administrative Code Titles 40E and 62. FDOT is an agency of the state of Florida charged with the establishment, maintenance, and regulation of public transportation. It is a co-applicant for the ERP permit. Palm Beach County is a political subdivision of the State of Florida, and is a co-applicant for the ERP permit. Background State Road 7 Extension The ERP was issued by the District for an 8.5-mile extension of SR 7 between Okeechobee Boulevard and Northlake Boulevard in Palm Beach County. The purpose of the proposed roadway is to relieve traffic now moving through rural residential areas and two large residential developments known as The Acreage and Jupiter Farms. The proposed roadway would also improve hurricane evacuation by providing additional capacity and connectivity, and reduce emergency response time in the rural residential areas. The proposed roadway alignment was selected by FDOT after a multiyear corridor study under a National Environmental Protection Policy Act process. Four corridors were considered using federal selection criteria that addressed social, environmental, property, physical, and financial impacts. There are two segments of the proposed roadway covered by the ERP. The southern segment would add two more lanes to the existing two-lanes of SR 7 from Okeechobee Boulevard North to 60th Street North, just south of the M-Canal. This segment is 4.4 miles long. The southern segment is not at issue in this case. The northern segment would extend four lanes of SR 7 east from 60th Street North about one mile, and then north 3.1 miles to Northlake Boulevard. This is the roadway segment challenged by Petitioner. Hereafter, all references to “the Project” are to the northern segment. The Project includes a raised roadway, median, sidewalks, bike lanes, and stormwater swales. It also includes a bridge over the M-Canal and a bridge over a water control outfall. The Project would be constructed in an existing right- of-way (“ROW”). FDOT owns a ROW that is approximately 200 feet wide. The County owns an adjacent 120-foot-wide ROW, so that the total width of the Project ROW is 320 feet. Running north/south within the ROW is a dirt service road, a ditch, and a fence. Much of the vegetation in the ROW is dominated by invasive and exotic plant species, including Melaleuca, Carolina Willow, Brazilian Pepper, and Australian Pine. The Ibis Development West of the Project ROW is the 1,958-acre Ibis Golf and Country Club residential development (“Ibis”). In 1989, an ERP was issued for Ibis’ surface water management system (“the Ibis system”). The Ibis system includes almost 300 acres of interconnected lakes that provide water management and water quality treatment for Ibis. The 1989 permit required the Ibis system to be sized to receive and treat runoff from a segment of Northlake Boulevard and from an existing two-lane road off of Northlake Boulevard that serves the commercial area of Ibis, which is directly north of the Ibis residential area. The Ibis system was also required to receive and provide water treatment and storage for the stormwater runoff from 46.8 acres of the ROW for SR 7. The parties introduced evidence about modifications to the 1989 permit, which the City contends reduced the treatment capabilities of the system. It is found from the preponderance of the evidence that the original system and its modifications continued to meet design requirements to store and treat future runoff from 46.8 acres of the SR 7 ROW.1/ When the water in the Ibis lakes reaches elevation 17.5 feet NGVD (National Geodetic Vertical Datum), pumps at two pump stations at the south end of Ibis begin pumping water over a berm into Ibis Preserve, a 366-acre natural area directly south of Ibis. Water is retained in Ibis Preserve unles it exceeds an elevation of 18.5 feet, when it then passes over an outfall structure into the Grassy Waters Everglades Preserve (“Grassy Waters”) to the east. Ibis Preserve provides additional water quality treatment for the water pumped from Ibis, but this additional treatment was not part of the calculation of water quality management for Ibis. The Ibis system was required to meet District permitting criteria before discharge to Ibis Preserve. The North Palm Beach County Improvement District (“Improvement District”) owns and has operational and maintenance responsibility for the Ibis system. It also owned and managed Ibis Preserve, but transferred ownership and management of Ibis Preserve to the City in 2004. Grassy Waters/Water Catchment Area To the east of the Project is the City-owned “Water Catchment Area,” which covers about 14,700 acres or 23 square miles. The Water Catchment Area is owned by the City and is part of its public drinking water supply system. Water in the Water Catchment Area flows to Lake Mangonia where it is withdrawn, treated, and then delivered to residents and businesses in the City, the Town of Palm Beach, and the Town of South Palm Beach. There is a statement in the Project application that Grassy Waters refers only to the open water marsh within the Water Catchment Area. The Water Catchment Area includes other habitat types besides open marsh. Most of the information in the record indicates that Grassy Waters and the Water Catchment Area have the same boundaries. Therefore, in this Recommended Order, Grassy Waters and the Water Catchment Area are treated as being two names for the same area. Grassy Waters was once connected to the Everglades and large portions of it have the same characteristics, being an open water marsh with an extended hydroperiod. It is oligotrophic, meaning it is low in nutrients and has an ecosystem adapted to low nutrient conditions. It was undisputed that most areas of Grassy Waters are of high or even pristine environmental quality. Grassy Waters has periphyton, an assemblage of algae that only survive in phosphorous levels of less than 10 parts per billion (“ppb”). Periphyton is the base of the food chain in the open water marsh area of Grassy Waters and is consumed by apple snails and many invertebrates and fish. Grassy Waters has a visitor and nature center and provides recreational opportunities, such as canoeing, hiking, and bird watching. There appeared to be disagreement about whether the Project ROW is located in Grassy Waters or adjacent to it. The ROW is not within Grassy Waters, it is adjacent. However, the wetlands and other surface waters within the ROW are hydrologically connected to Grassy Waters. In the western part of Grassy Waters, which ends at the Project ROW, there are hammock islands and hydric pine flatwoods. The City contends these areas and the rest of the ROW were historically open water marsh, but were changed by human activities. The more persuasive evidence is that this western area was not all open marsh, historically. It was an area of natural transition from open water marsh to other habitat types. Ibis Impacts to Grassy Waters The parties disputed whether the Ibis system is a “failed system.” This is not a technical or defined term. The relevant issue is whether the Ibis system is operating in conformance with the requirements of its permit. The City contends the Ibis lakes are eutrophic and that sediment accumulation in the lakes is releasing phosphorus back into the water, which ends up in Grassy Waters. However, the City’s expert witness, Dr. Harper, admitted that the phosphorus concentration being discharged from the Ibis system, about 40 ppb, is typical for surface water management systems serving large residential developments, although that concentration is at the high end of the range. The phosphorus concentration is closer to 30 ppb in discharges from Ibis Preserve into Grassy Waters, showing that Ibis Preserve provides additional treatment to the waters coming out of Ibis. The characterization of the nutrient loading from the Ibis system as “typical” did not address the additional nutrients in the drainage that the Ibis system is required to accept from the SR 7 ROW. The record does not show that the nutrient concentrations from the Ibis system would still be typical if all of the ROW drainage were added without pre-treatment, as was contemplated by the 1989 Ibis permit. Because Grassy Waters is an oligotrophic ecosystem, it can be adversely affected by phosphorus levels above 10 ppb. When phosphorus is introduced into an oligotrophic system in concentrations over 10 ppb, the system begins to change to denser wetland vegetation, which can include invasive and nuisance species, such as cattail. There is denser vegetation and cattails in Grassy Waters near the Ibis Preserve outfall. There is also more phosphorus in sediments near the outfall. These effects decrease with distance from the outfall, but some effects were detected as far as a half mile from the outfall. The City’s expert witness, Dr. Gaiser, testified that periphyton is dissolved by high nutrient levels and replaced by weedy algae. She found adverse effects on periphyton near the outfall. Dr. Gaiser also found microcystis near the outfall. Microcystis is a toxic algae caused by high elevations of phosphorous. Microcystis comprised over 10 percent of the cell density of the algal community near the outfall. The District’s witness, Mr. Waterhouse, conceded that there is a problem with nuisance vegetation at the discharge point into Grassy Waters. He said the District was not aware of the problem before information was developed for this case. No evidence was presented about what consideration the District gave in 1989, when Ibis was permitted, to the potential adverse impacts of discharging phosphorus into the oligotrophic ecosystem of Grassy Waters. Based on the evidence that a phosphorus concentration of 30 ppb is expected for this kind of surface water management system, it must be concluded that the Ibis system was not designed to prevent harm to oligotrophic receiving waters. Respondents presented evidence to show that phosphorus loadings from the M-Canal could be the cause of the adverse impacts found near the Ibis Preserve outfall. The M-Canal was constructed by the City for the primary purpose of delivering water from Lake Okeechobee, via connection to the L-8 Canal, to the Water Catchment Area for public water supply. For most of its length, the M-Canal runs through Grassy Waters. The City generally maintains the water level in the M-Canal below the elevation of Grassy Waters so water in the canal will not flow into Grassy Waters. However, on some occasions, water flows from the M-Canal into Grassy Waters. High phosphorus concentrations have been recorded in the M-Canal; as high as 300 ppb. Nuisance vegetation is growing in the area where the M-Canal connects to the Water Catchment Area. The preponderance of the evidence establishes that the adverse impacts described by the City’s experts in the area of the Ibis Preserve outfall are caused primarily by discharges from Ibis Preserve. There are three other developments adjacent to Grassy Waters that occasionally discharge to Grassy Waters. These discharges are likely to contain some nutrients, but the amount of nutrients and their effects, if any, on Grassy Waters were not described in the record. The Water Catchment Area is a Class I waterbody because it is used for public water supply. The water quality standard for phosphorus and other nutrients in a Class I waterbody is set forth in Florida Administrative Code Rule 62-302.530(48)(b): In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna. Grassy Waters was designated by the Department of Environmental Protection (“DEP”) as a stream. Rule 62-302.531(2)(c) states that the narrative criterion “shall be interpreted as being achieved in a stream segment where information on chlorophyll a levels, algal mats or blooms, nuisance macrophyte growth, and changes in algal species composition indicates there are no imbalances in flora or fauna.” The City presented some evidence regarding nuisance macrophyte growth and changes in algal species composition in Grassy Waters near the Ibis Preserve outfall. Little evidence was presented regarding the practice of DEP or the District in the application of the narrative nutrient standard, but the preponderance of the evidence indicates the agency practice is to consider a stream segment as a whole to determine whether it exhibits an imbalance in natural populations of aquatic flora and fauna.2/ During the course of this proceeding, the District issued administrative complaints against the Improvement District and the City, which include Orders for Corrective Action. The complaints were issued pursuant to section 373.119, Florida Statutes, which authorizes such action when a water management district believes that a violation of any provision of chapter 373 or district rule has occurred. However, at the final hearing, the District was reluctant to say the Improvement District had violated any law or permit condition. The Improvement District did not challenge the enforcement action against it and, therefore, the District’s enforcement order became final. The Improvement District is required to address the accumulation of sediment in the Ibis Lakes, develop a nutrient source control plan, eliminate and reduce the use of herbicides containing copper sulfate, and reassess pumping schedules. There is no target nutrient limit specified in the District’s Orders for Corrective Action. The District’s enforcement action against the City seeks to require the City to increase secondary treatment and retention in Ibis Preserve, provide a plan to remove the exotic/invasive vegetation at the outfall, provide a vegetation monitoring plan, and develop source control measures for residential developments that discharge into Grassy Waters. The City challenged the enforcement action and it remains pending. Snail Kites The Everglades snail kite gets its name from its primary food, the apple snail. In the Everglades, snail kites also feed on an exotic island snail, which occurs there in about equal numbers as apple snails. There was no evidence presented that there are exotic island snails in Grassy Waters. Snail kite habitat is dependent on conditions conducive to apple snails, which are the open marsh and oligotrophic conditions where periphyton flourish. If a sufficient number of apple snails are present, snail kites will find suitable nesting nearby. Dense wetland vegetation is not good forage for snail kites because, even if apple snails are present, the apple snails will be difficult or impossible for the snail kites to see. Dr. Welch, who was the state snail kite conservation coordinator at the Florida Fish and Wildlife Conservation Commission and wrote the snail kite management plan for Florida, testified for the District, where he is now employed as a senior scientist. He said field surveys of snail kite nests in Grassy Waters indicate their numbers are relatively low compared to other areas where snail kites are found. There were only ten successful nests (eggs laid) observed from 2000 to 2016. The City’s Everglades expert, Dr. Lodge, speculated that the low nest counts could be due to difficulty in seeing the nests, but he was not familiar with the survey techniques used and, therefore, his opinion that the numbers could be materially underestimated is not credited. Snail kites nest throughout the Water Catchment Area, but primarily in the open marsh areas of the central and eastern portions of the Water Catchment Area. Over 90 percent of snail kite nests are more than a mile from the Project ROW. Dr. Lodge said there are four snail kite nests within 800 feet of the Project, but he was not more specific about their locations. Most nests are closer to Northlake Boulevard, State Road 710, and the Florida Turnpike. The major factor that adversely affects successful nesting by snail kites and production of offspring is predation, usually by raccoons and rat snakes. “Cold snaps” and drought are also factors. Impacts of The Proposed Project Water Quantity Impacts Water storage for the Project, which was going to be handled in the Ibis system under the 1989 Ibis permit, would be provided in the roadside swales. The Project is designed to retain water volumes greater than typically required for roadways. Stormwater would not flow out of the Project into the Ibis system except in unusually large storm events, in excess of six inches of rainfall. The City did not dispute the Project’s compliance with the applicable water quantity criteria in the District rules. Water Quality Impacts To address the City’s concerns about adverse impacts caused by the Ibis system, the Applicants expanded the roadside swales by ten feet and raised the outfall elevation by 0.05 feet. With these modifications, the Project would provide water quality treatment for its stormwater and no longer rely on the Ibis system for treatment. The swales would provide treatment in excess of the treatment required by District rules. Respondents contend that, when the treatment provided by the Ibis system is added, the total treatment provided for the Project stormwater is more than twice as much as required by District rules. The City, on the other hand, claims that no additional water quality treatment can be provided by the Ibis system because the Ibis Lakes are eutrophic. The preponderance of the evidence supports a finding that Project runoff to the Ibis system would receive additional water quality treatment in the Ibis system and in Ibis Preserve before flowing to Grassy Waters. The effect of the Project’s on-site treatment of its stormwater is that the amount of nutrients that would otherwise flow into the Ibis system from SR 7 would be reduced. Therefore, the effect of the Project is to reduce the nutrient load that the Improvement District was permitted to discharge to Ibis Preserve and Grassy Waters. The City did not dispute the Applicants’ evidence that the Project exceeds the District’s design criteria for water quality. The City focused instead on its contention that, despite its compliance with water quality design criteria, the Project would result in additional nutrient loading to Grassy Waters, which would cause additional adverse impacts to its flora and fauna. The Applicants and the City performed nutrient loading analyses even though such analyses are only required by the District when the receiving waters have been designated by the Department as “impaired” by nutrients or in the case of certain other specially designated waters. Grassy Waters does not have any of these special designations. The Applicants’ nutrient loading analysis concluded that the post-development loading of phosphorus and nitrogen from the Ibis system would be less than the pre-development condition, so there would be a net decrease in nutrients discharged into Grassy Waters. Petitioner’s expert witness, Dr. Harper, believes the Project would increase nutrient loading to Grassy Waters, even if stormwater from the Project did not carry additional nutrients, because the increased volume of water moving through the Ibis system would entrain more nutrients from sediments in the Ibis lakes. Dr. Harper believes the Project would also cause nutrient loading via groundwater seepage through the roadway swales into Grassy Waters. The preponderance of the evidence does not support his opinion that groundwater seepage would cause additional nutrient loading.3/ Dr. Harper believes another source of nutrient loading from the Project would be from surface flow down the roadway embankments. On the eastern embankment, this flow would enter the mitigation area 150 feet from Grassy Waters. Dr. Harper’s estimated total loading from all sources is not persuasive. The estimate gives a false sense of precision. It is based on a number of variable assumptions, some of which are not widely known or in use by experts in the field. In addition, Dr. Harper’s opinion did not appear to appropriately account for the modifications to the Project’s storage capacity. Dr. Harper’s estimated loading was not translated into physical effects in Grassy Waters. The Applicants’ estimate of total nutrient loading also gives a false sense of precision, but it is based on a well-known and widely used methodology. The City failed to prove that the Project would result in more nutrient loading to Grassy Waters than is currently contributed by the ROW. Because the Project would not rely on the Ibis system for stormwater treatment, the Project would reduce the loading that the Improvement District was permitted to discharge to Grassy Waters. To address potential vehicular spills into Grassy Waters, FDOT produced a Spill Response Plan. The swales would capture and contain any material spilled on the roadway or swale. The curb and gutter, a guardrail, gravity wall, and fence also provide protection against spills. The bridge over the M-Canal would use a 54-inch traffic barrier, which is higher than FDOT specifications for the design speed for the bridge. The City did not present evidence to show that the protective measures proposed by the Applicants are less than what is usually considered adequate under similar circumstances, or fails to meet a relevant safety standard. Wetland Impacts Direct Impacts The Project would directly impact 52.37 acres of wetlands and 7.86 acres of surface waters. The impacted wetlands are fresh water marsh, mixed shrubs, and hydric pine flatwoods. The surface waters affected consist of vegetated ditches and un- vegetated channels or canals. The impacted wetlands include 11.77 acres of freshwater marsh. The impacted surface waters are ditches. Most of these wetlands are disturbed and their functional values have been reduced. Secondary Impacts District rules require an applicant to account for the secondary impacts caused by a project that could adversely affect the functions of adjacent wetlands or other surface waters. The Applicant’s Handbook defines secondary impacts to include impacts on wetland functions, water quality, and endangered species, including impacts on areas needed by endangered species for foraging. Part of the Applicants’ assessment of secondary impacts of the Project was made by reviewing the effects of the Acreage Reliever Road on Pond Cypress Preserve, a 1,737-acre conservation area managed by the County that is immediately south of the proposed Project. The County has been monitoring the effect of the Acreage Reliever Road on hydrology, vegetation, and species compensation ever since the road was built. The County found no adverse secondary impacts caused by the road. The species that use the wetlands near the road, including wading birds, appear to be unaffected by the road. The scoring of secondary impacts for the Projects, using the Uniform Mitigation Assessment Methodology (“UMAM”), was conservative, meaning that assumptions were made at the high side of the potential range of impacts. This resulted in more mitigation being required. The Applicants claim the Project would “maintain a 300-foot buffer between the project’s construction boundary and [Grassy Waters].” This appears to be a misstatement. The Applicants’ combined ROW is only 320 feet wide. Going east from the limits of construction, it is 160 feet to Grassy Waters. The Project’s buffer is 160 feet wide. The District accounted for secondary impacts to wetland dependent species, including snail kites, from noise and lights that might discourage use of the area. The Project would provide a tree buffer that will reduce noise and light impacts to Grassy Waters. The roadway lighting plan is also intended to reduce light penetration into Grassy Waters. Most of the threatened and endangered bird species are tolerant of roadways for foraging and roosting, but not for nesting. Section 10.2.7 requires the Applicants to provide reasonable assurances that any future phase of a project or project-related activities will not result in adverse impacts to the functions of wetlands or water quality violations. The Applicants satisfied this requirement by releasing of FDOT ROW north and south of the Project. Cumulative Impacts An applicant must provide reasonable assurance that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which a permit is sought. Some of the proposed mitigation for the Project is out- of-basin. If an applicant proposes to mitigate impacts in another drainage basin, District rules require consideration of factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” to determine whether there are unacceptable cumulative impacts. The Project is located in the eastern Palm Beach County Basin, which has approximately 21,000 acres of wetlands. About 89 percent of the wetlands in the basin are publicly-owned conservation lands, which means their wetland functions will continue into the future. The cumulative impact analysis was conservative, meaning that the actual impacts are likely to be fewer. Petitioner contends that Respondents’ cumulative impact analysis did not account for the unique nature of the Grassy Waters ecosystem as the only remaining low nutrient oligotrophic wetland in the region. The preponderance of the evidence shows that the historical wetland types in the Project area were not all like the open marsh found in the central and eastern portion of Grassy Waters. Respondents accounted for the loss of open water marsh that would be caused by the Project. On-Site Mitigation There would be 52.4 acres of on-site mitigation within a 160-foot-wide strip of land along the eastern limits of proposed construction. This area of the ROW would be managed by removing or treating the exotic vegetation, such as Brazilian Pepper and Maleleuca. Removing the exotic vegetation seed source would prevent further spread of these nuisance species into Grassy Waters. Where native habitats have been altered with ditches and berms, the land would be graded to create a slope from the limits of construction eastward to the edge of the ROW. The eastern elevation would be similar to the adjacent marsh or hydric pine areas of Grassy Waters. Then, native vegetation would be planted. The habitats enhanced, restored, or created would include freshwater marsh, hydric pine flatwoods and mixed forested wetlands, including cypress. The planting of mixed, forested species would provide sound and light buffering for snail kites and other species in Grassy Waters. Two wildlife passages would be created underneath the Project with fencing designed to direct wildlife to use the wildlife passages. Slats would be placed in the roadway fencing to prevent small animals from going through the fence and onto the roadway. The on-site mitigation was scored using UMAM and determined to result in functional gain. The UMAM analysis was conservative, meaning that the actual functional gain is likely to be greater. The City did not contest the UMAM scoring. Off-site Mitigation FDOT is applying mitigation credits from 210 acres at the Pine Glades Natural Area (“Pine Glades”) to offset impacts to 15.7 acres of herbaceous marsh and 26.78 acres of forested wetland impacts. Pine Glades is a regional off-site mitigation area located in the Loxahatchee River Basin and is owned and operated by Palm Beach County. Pine Glades consists of a mix of wet prairie, depression marshes, hydric pine flatwoods, and mesic flatwoods. The restoration work in Pine Glades has already been completed. Pines Glades implements a detailed management plan that provides regional ecological value. Robbins testified that Pine Glades has similar habitats to Grassy Waters. Pine Glades has periphyton, apple snails, snail kites, wood storks, and sand hill cranes. Pine Glades has some areas with oligotrophic conditions. Additional off-site mitigation to offset 52 acres of wetland impacts caused by the Project would be provided at the DuPuis Reserve (“DuPuis”). DuPuis is a regional off-site mitigation area located between the L-8 Canal and the C-44 Canal in western Palm Beach and Martin Counties, and is owned and operated by the District. DuPuis would provide mitigation with 34.71 acres of herbaceous wetlands and 43.8 acres of forested wetlands. DuPuis is appropriate to offset the impacts associated with the Project because it provides similar habitats with similar values of functions for similar wildlife. DuPuis implements a detailed management plan that provides regional ecological value. The City argues that there is little similarity between the Grassy Waters ecosystem and Pine Glades or DuPuis, so the mitigation there cannot offset the unique assemblage of plants and animals that would be lost in Grassy Waters. It is unnecessary for Pine Glades and DuPuis to be dominated by open water marshes like Grassy Waters. It is only necessary that they have some of these areas to offset Project impacts to open water marsh. Proposed snail kite mitigation would provide 52.5 more acres of snail kite habitat than would be directly impacted by the Project. The mitigation for snail kites will be located in FDOT ROW adjacent to the Project, south of the M-Canal, and north of Northlake Blvd. Erwin expressed concern about fragmentation of the ecosystems that would be caused by the Project. The areas that would be affected by the Project have already been fragmented by berms, ditches, and fences. Grassy Waters is surrounded by berms, a canal, and highways. The Project would cause fragmentation, like all roads. However, the fragmentation was reduced where practicable, and the City did not show that the roadway would cause the loss of any significant “greenway” now used by wildlife. Snail Kite Impacts Section 10.2.2(a) requires an applicant to provide reasonable assurances that a proposed activity would not impact wetlands and other surface waters so as to reduce the abundance and diversity of listed species. Snail kites, wood storks, sandhill cranes, white ibises, and little blue herons are listed species that have been observed within the Project corridor. As explained in the Conclusions of Law, the UMAM process is designed to mitigate for wetland functional losses, not snail kite functional losses. However, the potential impact to any listed species warrants close attention to the issue of whether function-for-function wetland mitigation would be provided. There will be 11.5 acres of direct impacts to snail kite habitat within the footprint of the Project area. Dr. Welch believes secondary impacts to wetland functions associated with snail kites could extend 800 feet east of the ROW. Mitigation for snail kites would be located in the Rangeline corridor south of the M-Canal and north of Northlake Boulevard. Dr. Welch estimated there were about 64 acres of snail kite habitat in the Rangeline corridor similar to the 11.5 acres of habitat located in the Project footprint. Dr. Welch conceded that he has no evidence that snail kites currently use the Rangeline, but he believes the habitat is suitable and is appropriate mitigation. Petitioner claims there are studies of “similar birds” indicating that snail kites avoid highways due to noise. However, the studies were not of similar birds. More weight is given to Dr. Welch’s testimony that snail kites are not particularly sensitive to roadway noise. Dr. Welch stated that Pine Glades would likely have value for snail kites because it is near the Hungryland Wildlife Management Area, which has the same number of successful snail kite nests as Grassy Waters. The City contends that Pine Glades is too far away from Grassy Waters to mitigate Project impacts to snail kites. However, snail kites range long distances to forage; several hundred miles in a few days. Satellite telemetry of snail kites shows snail kites from Grassy Waters are using Pine Glades for feeding. Dr. Welch reviewed snail kite nesting data to determine whether roads deterred nesting and found that snail kites frequently nested within 500 feet of major roadways. Dr. Welch refuted the idea that Grassy Waters provided snail kite refuge during drought conditions, because Grassy Waters is also subject to drought conditions that adversely affect snail kites. There are conditions in the permit to limit potential impacts to snail kites during construction of the Project. If snail kite nesting is observed within 1,640 feet of construction, all Project construction must cease. Thereafter, monitoring of the nest and notification of the U.S. Fish and Wildlife Service is required. Construction cannot resume until that nest has been considered finished. FDOT would place a conservation easement over 82.6 acres in the FDOT ROW between Okeechobee Boulevard and the M-Canal, south of the Project area that is the subject of this proceeding. The conservation easement would maintain connectivity between the Pond Cypress Natural Area and Grassy Waters and ensure that no future southern extension of the roadway will be constructed. A conservation easement would be placed on the FDOT ROW between Northlake Boulevard and SR 710, an area of approximately 43.5 acres. Preserving this area protects a hydrologic connection between Loxahatchee Slough Natural Area and Grassy Waters. It also ensures no future northern extension of the roadway. A conservation easement would be placed on a portion of the FDOT ROW between SR 710 and Jupiter Farms, an area of 44.5 acres. This section of ROW is in the Loxahatchee Slough and the release of the ROW would be a direct benefit to Loxahatchee Slough. The preservation of these areas would benefit fishing and recreational values in the Pond Cypress Natural Area, Grassy Waters, and the Loxahatchee Slough Natural Area. These conservation areas did not receive UMAM credits to reduce the wetland acreage needed to offset wetland functional losses, but they were included in the mitigation credit for benefits to snail kites and other wildlife. Summary The preponderance of the evidence established that the proposed mitigation offsets the impacts to wetlands and other surface waters that would be caused by the Project and exceeds the requirements of District rules. Practicable Design Modifications District rules require an applicant to consider alternatives that would avoid or reduce wetland impacts. The City claims the Applicants failed to comply with this rule because FDOT selected a roadway corridor that was expected to have greater environmental impacts than some of the other three corridors that were being considered. As explained in the Conclusions of Law, this argument is misplaced. The District’s review of the Applicants’ measures to avoid or minimize wetland impacts was appropriately confined to Corridor 3, the corridor selected by FDOT where the Project is proposed. The Applicants reduced and eliminated impacts of the Project in several ways. For example, the footprint of the road was narrowed from six lanes to four lanes, wildlife underpasses were provided, retaining walls were used to narrow stormwater features, the median was reduced in size, and the design speed limit was reduced for the bridge at the M-Canal crossing. Under two circumstances, District rules allow an applicant to avoid the requirement to implement practicable design modifications to reduce or eliminate wetland impacts, which are referred to as the “opt-out” provisions. Section 10.2.1.2, Volume I, of the Applicant’s Handbook (“A.H.”) provides: The ecological value of the functions provided by the area of wetland or other surface water to be adversely affected is low, based on a site specific analysis using the factors in section 10.2.2.3, below, and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected, or The applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. The District determined that the Applicants meet both tests. The preponderance of the evidence supports the District’s determination. The ecological value of the functions provided by the affected wetlands and surface is low and the proposed mitigation would provide greater long-term ecological value than the area being impacted. Pine Glades and DuPuis are part of a plan to restore the ecological value of Northern Palm Beach County and create an “ocean to lake” system of preserves and natural areas.
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 approving Permit Number 50-05422-P on the terms and conditions set forth in the amended Staff Report, and the complete application for the Permit. DONE AND ENTERED this 31st day of March, 2017, 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 31st day of March, 2017.
Findings Of Fact During approximately 1961, the Board of County Commissioners of Orange County adopted the Orange County Conservation and Water Control Act. This act included a comprehensive drainage plan. Orange County is divided into several natural drainage basins. The Petitioner is presently actively seeking to implement the comprehensive drainage plan in what is known as the Upper Howell Branch drainage basin. The proposed Lateral H-15 forms a part of the drainage plan in the Upper Howell Branch drainage basin. The proposed Lateral H-l5 would begin at the outfall of Park Lake, and would extend approximately 1900 feet to Lake Maitland. Lateral H-l5 would allow the controlled lowering of Park Lake, with excess water flowing into Lake Maitland. Lateral H-15 as proposed would be a structure with a concrete paved bottom. It would be 18 feet wide, and would have vertical side walls constructed of aluminum siding. A weir would be constructed at the Park Lake outfall, and a new crossover would be constructed at the point where Highway 17-92 crosses over the project. The depth of the structure would be 5 feet. At peak flows water would flow at four foot depths leaving a one foot free area. The structure has been designed to allow passage of peak flows of water using as little land area as possible. Vertical side walls have been proposed in order to limit the amount of property which the Petitioner would need to obtain in order to construct the project. The Petitioner's comprehensive drainage plan is designed to ultimately prevent flooding which would result from a "25 year storm". The term "25 year storm" means that there is a 4 percent chance that such a storm would occur in any given year. The Petitioner's comprehensive plan for the Upper Howell Branch basin is depicted in an aerial photograph which was received into evidence as Petitioner's Exhibit 1. Generally, waters within the basin will flow from Lake Killarney through Lateral H-22, which is nearly completed, and from Lake Bell through the Lake Bell Lateral, which has been completed, into Park Lake. The Lake Bell Lateral and Lateral H-22 permit the controlled lowering of the water in Lake Bell and Lake Killarney into Park Lake. Lateral H-15 would permit the controlled lowering of the waters of Park Lake into Lake Maitland. Waters from Lake Maitland would then flow out of the drainage basin through Howell Creek which is now extremely swampy. Petitioner proposes ultimately to clear Howell Creek so that it can accept peak water loads from Lake Maitland. The proposed Lateral H-15 would follow the channel presently followed by a naturally occurring creek bed known as the Maitland Branch. Maitland Branch is a dried up waterway during dry weather periods. When waters in Park Lake rise during rainy seasons, overflow goes through the Maitland Branch into Lake Maitland. In addition storm runoff from areas surrounding the Maitland Branch drain into Maitland Branch and then into Lake Maitland. At its most Westward point, adjacent to Park Lake, the Maitland Brunch is approximately 40- 50 feet wide. A railroad crosses the branch near to the Park Lake outfall and the pipe and culvert under the railroad control the water level in the branch. The branch then extends under Highway 17-92, and into Lake Maitland. From the railroad, into Lake Maitland, Maitland Branch is confined to a narrow channel. The Maitland Branch is not a navigable water body. Lake Maitland is a navigable water body. Petitioner's proposed dredging activities would extend approximately 55 yards into Lake Maitland in order to permit the free flow of waters through the proposed Lateral H-15 into Lake Maitland. Maitland Branch is dominated by a variety of emergent and aquatic vegetation. Maitland Branch presently serves a significant function in preserving the waters of Lake Maitland. The water quality of Lake Maitland is presently good. Tests taken within the lake do not reveal violations of the Respondent's water quality rules and regulations. The lake is, however, dominated by hydrilla, and does not support a diverse aquatic plant population. The water quality in Lake Park is inferior to that of Lake Maitland. Lake Park is dominated by algal growths. During periods of high water, the waters of Park Lake flow through Maitland Branch. The aquatic vegetation in Maitland Branch serves to filter the waters and to assimilate nutrients contained in the water before the water enters Lake Maitland. Approximately 27 acres of impervious surfaces adjacent to the Maitland Branch drain directly into the branch. Storm water runs across the surfaces into Maitland Branch generally without the benefit of any filtration mechanism at all. Without the aquatic vegetation present in Maitland Branch, this storm water runoff would enter Lake Maitland without being filtered, and without nutrients being assimilated by vegetation. Aquatic vegetation in Maitland Branch does serve the filtration and assimilative functions outlined above. The degree of filtration and assimilation that is occurring is not subject to any finite measurement. No scientific means exists for accomplishing such a measurement. The very fact that the vegetation is flourishing, provides scientific evidence that the assimilation of nutrients is occurring. Furthermore, the large amounts of toxic substances which enter the Maitland Branch would cause a very rapid and provocative deterioration of the waters of Lake Maitland unless the runoff were filtered. The fact that the water of Lake Maitland is of fairly good quality evidences the fact that filtration and assimilation functions are occurring in Maitland Brunch. The Petitioner sought to demonstrate that the aquatic, vegetation in the Maitland Branch does not serve to filter the waters, or to assimilate nutrients. Petitioner's testimony tends to show that the water quality of waters at the Park Lake outfall and at the western extremes, of the Maitland Branch are of higher quality than waters at the end of Maitland Branch closest to Lake Maitland. This evidence is not creditable. In the first place the sampling techniques used by the Petitioner's agents were inadequate. Too few samples were taken to permit the drawing of any proper scientific conclusions. The samples were not taken simultaneously and in some cases samples taken at the Park Lake outfall were taken several days prior to the taking of samples at sampling stations closer to Lake Maitland. Furthermore, samples were taken at times when vegetation in the Maitland Branch was most sparse. One group of samples was taken just subsequent to a freeze which killed all of the vegetation. Another group of samples was taken shortly after the Petitioner had removed vegetation from the Maitland Branch in accordance with a temporary permit that had been issued by the Respondent (see discussion in paragraph 9 infra) Even if the Petitioner's samples had been taken in such a way that the conclusion could be drawn that the water quality in Maitland Branch is worse close to Lake Maitland that it is at the Park Lake outfall, it would still be clear that the aquatic vegetation in the branch is performing its important environmental function. Runoff from adjacent impervious surfaces into Lake Maitland constitutes water of the poorest possible quality. It is thus to be expected that the water quality of the branch would be worse at the points farthest from the Park Lake outfall where more runoff water can accumulate. This does not however permit the conclusion that no filtration and assimilation is occurring, but rather amplifies the necessity for such functions if the water quality of Lake Maitland is to be preserved. Petitioner's proposed Lateral H-15 would constitute a source of pollution for the waters of Lake Maitland. The concrete bottom of Lateral H-15 would reduce the PH level of water the branch and could result in violations of PH standards set out in the Respondent's rules and regulations. Emergent and attached aquatic vegetation could not exist in Lateral H-15. There would be no place for such vegetation to take root. The only sort of vegetation that could take hold would be water hyacinths. During peak water flows these hyacinths would be flushed out of the branch into Lake Maitland. While water hyacinths do serve to filter water that flows through them and to assimilate nutrients from the water, they are not attached, and do not serve that function as well as attached aquatic vegetation. Since water hyacinths would be washed out of the branch during periods of heavy storm runoff, when filtration and assimilation are most essential, they would not be likely to serve to maintain the water quality of Lake Maitland to the extent that the present vegetation in Maitland Branch serves this function. Lateral H-15, with the reduced ability to preserve water quality would permit water of inferior quality from Park Lake to enter Lake Maitland, and would permit storm runoff with high levels of pollutants to enter Lake Maitland. The amount of injury to water quality in Lake Maitland that would result from replacing Maitland Branch with Lateral H-15 cannot be measured finitely. It is, however, clear from the evidence that injury is certain. The frequency of water quality violations, the degree of degradation of the water, and the amount of consequent harm to fish and wildlife in Lake Maitland that will result from Petitioner's proposed project are matters for speculation. It does appear that violations will occur, that the water will be degraded, and that fish and wildlife will be harmed. The testimony will clearly not support a finding that Petitioner has given reasonable assurance that water quality violations will not occur, that the quality of water will not be degraded, and that fish and wildlife will not be harmed. The Respondent within recent months had issued a permit allowing the Petitioner to remove aquatic vegetation from the Maitland Branch between the railroad which crosses the branch near to the Park Lake outfall , and Highway 17-92 which crosses the branch approximately halfway between Park Lake and Lake Maitland. Issuance of this permit does not demonstrate that the Respondent sees no value in the aquatic vegetation of Maitland Branch. Aquatic vegetation will rapidly reestablish itself in the area, and it will be missing for only a temporary period. In addition, the Petitioner was permitted to remove vegetation from less than half of the length of Maitland Branch.
Findings Of Fact The Respondent owns property in Lake County, Florida which adjoins North Lake Holly. North Lake Holly is a fresh water lake. On an undetermined date between December, 1975 and September, 1976, the Respondent caused a horseshoe-shaped basin to be dredged along the shoreline of North Lake Holly adjoining his property. The fill material taken from the dredged area was deposited along the shore of the lake to farm a beach. The basin is approximately 90' long, 50' wide, and 6' deep. The Respondent has erected a dwelling house on his property, and it appears that the dredging was done in order to transform the shoreline of the lake from a vegetated littoral zone to a beach and boat basin. The Department confirmed the violations in December, 1976, and sought to negotiate a restoration plan with the Respondent. The formal Notice of Violation was issued an November 17, 1977. The dredged area was previously a shallow littoral zone dominated by wetlands vegetation. The most prevalent vegetation was sawgrass, but there were also abundant quantities of cattails, maidencane, arrowhead, and willows. The dredging activity relates to only a small portion of the shoreline of North Lake Holly. The activity nonetheless has resulted in the alteration of the characteristics of the lake. The marsh area which fringes the lake serves as habitat for fish and other wildlife, and also serves to filter runoff which enters the lake from the uplands. The Respondent's activities have obliterated a portion of the wildlife habitat, and provide an avenue for some uplands runoff to be discharged directly into North Lake Holly without the benefit of being filtered through wetlands vegetation. The quality of waters in central Florida lakes is related directly to the amount of development along the shoreline. The greater degree of alteration of the shoreline, the greater degree of deterioration of water quality, and the greater the deterioration of wildlife habitat. A project of the magnitude of that accomplished by the Respondent may have no clearly measurable impact upon water quality and wildlife habitat since the rest of North Lake Holly is surrounded by a broad littoral zone. The only impact that the project can have is, nonetheless, adverse. If a project such as the Respondent's is approved, the Department could not, consonant with due process and equal protection concepts prohibit further such alterations of the shoreline. It is likely that some aquatic vegetation will reestablish itself along the shoreline of the dredged area. Such a natural restoration will not, however, alleviate the negative impacts of the Respondent's dredging. The steep inclines of the dredged area will allow only a very narrow rim of vegetation, which cannot be expected to provide habitat and protect water quality to remotely the extent of the, previous undisturbed broad littoral zone. Furthermore, in the time since the project was completed, no significant vegetative zone has reestablished itself. It is possible for the Respondent to gain access to the lake for boating and other recreational purposes without totally obliterating the littoral zone that was in the area. The Department has offered a restoration plan which would accomplish this result. The Respondent undertook the dredge and fill activity without seeking a permit from the Department, and he continues to operate what amounts to a stationary installation which will serve as a source of pollutants to North Lake Holly without any valid permit issued by the Department. The Department has spent $229.41 in assessable costs in investigating and attempting to rectify the illegal dredge and fill activity undertaken by the Respondent.
The Issue The issue in this case is whether the Respondents, Kelly Endres and Ifrain Lima (Endres/Lima), are entitled to an Environmental Resource Permit (ERP) that would allow use of 0.535 acres of previously impacted wetlands for the construction of a single-family residence and associated structures, a 30' x 30' private dock with a 4' access walkway, and a 12' wide boat ramp (Project) at 160 Long Acres Lane, Oviedo, Florida (Property).
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated, thereunder, in the Florida Administrative Code. Under that authority, the Department determines whether to issue or deny applications for ERPs. Respondents Endres/Lima own the Property and are the applicants for the ERP at issue in this consolidated proceeding. Petitioner Meier is a neighboring property owner to the south of the Property. Petitioner Meier's property includes a single-family residence with accessory structures and is located on Long Lake. Petitioner Meier is concerned that the NOI provides inadequate environmental protections and that there will be flooding on adjacent properties from the Project. Petitioner Hacker is the neighboring property owner adjacent to the south of the Property. Petitioner Hacker's property includes a single-family residence with accessory structures and is located on Long Lake. He is concerned with the completeness of the application for the Project, the calculation of wetland impacts, that reasonable assurances were provided, and that the Department's NOI ignores willful negligence and allows disparate treatment of Respondents Endres/Lima. Petitioner Kochmann is a property owner with a single-family residence and accessory structures located on Long Lake. She is concerned that the NOI is based on a misleading application and provides no evidence that the Respondents Endres/Lima made reasonable efforts to eliminate and reduce impacts detrimental to the environment. History of the Project and Application On April 12, 2018, Respondents Endres/Lima applied for an ERP for proposed wetland impacts associated with a planned single-family home on the Property. This was the first ERP application for the Property. The Department sent a Request for Additional Information (RAI) on April 24, 2018, and a second RAI on November 2, 2018. Respondents Endres/Lima provided a Mitigation Service Area Rule Analysis for "As If In-Basin" for the Lake X Mitigation Bank for the St. Johns River Water Management District Basins to the Department via email on May 10, 2018. Respondents Endres/Lima submitted revised plans to the Department on September 19, and October 30, 2018. On January 7, 2019, the Department denied the ERP application. The Department and Respondents Endres/Lima, on July 18, 2019, entered into a Consent Order (CO). The Department found, and Respondents Endres/Lima admitted, that approximately 0.80 acres of jurisdictional wetlands were dredged and filled without a valid ERP from the Department; and was done with improperly installed erosion and sedimentation controls. On August 22, 2019, Respondents Endres/Lima submitted a second ERP application. The Department sent an RAI on September 20, 2019, to which Respondents Endres/Lima responded on December 19, 2019. In addition, Respondents Endres/Lima reserved 0.60 of forested Uniform Mitigation Assessment Method (UMAM) wetland credits from the Lake X Mitigation Bank and provided the Department with an updated site plan and Lake X Mitigation Bank credit reservation letter. The Department issued an NOI on February 7, 2020, which was timely published in the Sanford Herald on February 9, 2020. Respondents Endres/Lima provided timely proof of publication to the Department on February 13, 2020. Consent Order and Compliance A warning letter was issued to Respondents Endres/Lima on January 30, 2019, for the dredging and filling of approximately 0.80 acres of forested wetlands and improper installation of erosion and sedimentation control. The CO, executed on July 18, 2019, required Respondents Endres/Lima to cease any dredging, filling, or construction activities on the Property, submit an application for an Individual ERP within 30 days, and pay $5,599.00 in penalties and the Department's costs and expenses. After the issuance of an ERP, Respondents Endres/Lima were also required to implement the restoration actions outlined in the CO. Respondents’ Endres/Lima’s application, dated August 19, 2020, was submitted to the Department on August 22, 2020. Respondents Endres/Lima paid the CO's penalties and costs, and had multiple meetings with the Department to complete the requirements of the CO. Respondents Endres/Lima’s expert, Mr. Exner, testified that he began working on a restoration plan for the Property, which will be provided to the Department once an ERP is issued. Permitting Criteria The Department reviewed the complete application and determined that it satisfied the conditions for issuance under Florida Administrative Code Rule 62-330.301, and the applicable sections of the ERP Applicant's Handbook Volume I (AH Vol. I). The Department also considered the seven criteria in rule 62-330.302 and section 373.414(1)(a), and determined that implementing the Project would not be contrary to the public interest. Water Quantity, Flooding, Surface Water Storage and Conveyance Respondents’ Endres/Lima's civil engineering expert, Mr. Herbert, testified that according to the drainage design, the Property would have swales on either side of the proposed residence to slope water away from the residence. There would also be a conveyance swale on the north property boundary to convey water from the street area and front yard toward the restoration and wetland areas with ultimate discharge to Long Lake. He stated that the elevation of the road at the front of the Property would be at 47.4 feet, and the elevation at the terminus of the swale would be at 45 feet. This would allow a 2.4-foot vertical fall for the swales to convey water to the lake. The design would preserve pre-development surface water flow over the Property to Long Lake, which is the lowest elevation in the area, and will ensure that storm water does not flood adjacent properties. Mr. Herbert also testified that the Project design would maintain pre-development water storage capacity. The imported fill that is currently on the Property in the flood plain would be removed and reshaped so that the lake elevation would be maintained and water can flow correctly. Elimination or Reduction of Impacts and Mitigation Respondents Endres/Lima provided the Department with design modifications to reduce impacts associated with the Project. These included a 15-foot restoration buffer along the lake front's northern shoreline, an elevated access walkway five feet above the wetland restoration area to the proposed dock, limiting the width of the access walk to four feet, and limiting the boat ramp width to a single-lane. In June 2015, an informal wetlands determination was conducted for the Property. The informal determination concluded that the entirety of the Property were wetlands. However, this was an informal determination and was not binding. In October 2016, before the first permit application was submitted, Mr. Exner did a wetlands delineation flagging prior to the Property being cleared or disturbed. Mr. Exner testified that, in his opinion, the Property was not all wetlands because large pines near the road had no high water marks, adventitious growth around the bases, or evidence of pine borer beetles along with other indicators of upland habitat. This wetland delineation was part of the permit submittal, was shown on the plans, was accepted by the Department, and was used for the preparation of the UMAM scoring. Mr. Exner's wetland delineation line was used by the Department to help determine and map the wetland impacts identified in the CO. The direct impact area was assessed at 0.54 acres with a secondary impact area of 0.02 acres for a total impact of 0.56 acres, and a functional loss score of 0.364. Respondents Endres/Lima reserved 0.6 forested UMAM mitigation credits, almost double the amount of functional loss under the UMAM assessment, agreed to purchase 0.46 credits. The excess mitigation bank credits implement part of a plan that provides regional ecological value and greater long-term ecological value than the area of wetland adversely affected. Secondary and Cumulative Impacts The Project's UMAM analysis assessed 0.02 acres, or 870 square feet, of secondary impacts. These impacts would be fully offset by the mitigation proposed for the Project. Petitioners' expert, Mr. Mahnken, noted three areas where he thought the application was incomplete. The first was that the site plan did not call out the location of the secondary impacts. However, Part III: Plans of Section B of the application, does not require that the site plan show the location of the secondary impacts. The application requirements for "plans" requires only the boundaries and size of the wetlands on the Property and provide the acreages of the upland areas, wetland impact areas, and the remaining untouched area. Second, Mr. Mahnken questioned the calculation performed to determine the secondary impact acreage. However, Mr. Mahnken read the information incorrectly and stated that the secondary impact area was 0.002 acres, or 87 square feet, when the UMAM score sheet clearly showed that the secondary impact area is 0.02 acres, or 870 square feet. In addition, the Department's witness, Ms. Warr, testified that even if the Department were to use Mr. Mahnken's analysis, the result would have been the same, i.e., the requirement to purchase 0.46 mitigation credits. Thus, Petitioners failed to support their claim that the Project would have adverse secondary impacts. Third, Mr. Mahnken asserted that cumulative impacts were not adequately addressed. He testified that the assessment for the Property using spill over benefits, in his opinion, was not enough to fully offset the impacts of the Project. Mr. Mahnken acknowledged, however, that his opinion was open to debate, and that he had not conducted any rigorous hydrologic evaluation in reaching his opinion. Respondents Endres/Lima had submitted a report prepared by Breedlove, Dennis & Associates (BDA Report) with their application in order to demonstrate compliance with section 10.2.8, ERP AH Vol. I, regarding cumulative impacts. The BDA Report utilized peer-reviewed hydrologic data that was reviewed and approved by the South Florida Water Management District, and was accepted by the Department pursuant to section 373.4136(6)(c). This was consistent with the Property's location within the mitigation service area for the Lake X Mitigation Bank. The Project is located within the Econlockhatchee River drainage basin, which is a nested basin within the larger St. Johns River [Canaveral Marshes to Wekiva] drainage basin. The Lake X Mitigation Bank is located outside of the Econlockhatchee River drainage basin, but the Project is located within the Lake X Mitigation Bank service area. The BDA report determined that: In summary, the Lake X Mitigation Bank is a regionally significant mitigation bank site that has direct hydrological and ecological connections to the SJRWMD basins, to include the cumulative impacts basin in which the subject property is located (i.e., SJRWMD Basin 19). The size, biodiversity, and proximity of the mitigation bank site to the SJRWMD basins, and the regionally significant hydrological connection between the mitigation bank site and the contiguous SJRWMD mitigation basins, supports the use of this mitigation bank site “as if in basin” mitigation for the Lima/Endres Wetland Fill Project. Additionally, the evaluation of factors, to include connectivity of waters, hydrology, habitat range of affected species, and water quality, demonstrates the spillover benefits that the Lake X Mitigation Bank has on the St. Johns River (Canaveral Marshes to Wekiva) mitigation basin, which includes the Econlockhatchee River Nested basin, and demonstrated that the proposed mitigation will fully offset the impacts proposed as part of the Lima/Endres Wetland Fill Project “as if in-basin” mitigation. The Lake X Mitigation Bank will protect and maintain the headwaters of two regionally significant drainage basins [i.e., the Northern Everglades Kissimmee River Watershed and the Upper St. Johns River Watershed (to include the nested Econlockhatchee River basin)], and will provide resource protection to both river systems (SFWMD Technical Staff Report, November 29, 2016). Furthermore, the permanent protection and management of the Lake X Mitigation Bank will provide spillover benefits to the SJRWMD basins located within the permitted MSA. Mr. Mahnken stated that his review of the Project did not include a hydrologic study and only looked at basic flow patterns for Long Lake. By contrast, the BDA Report included an extensive hydrologic study, looked at all required factors in section 10.2.8(b), ERP AH, Vol. I, and determined that the Project would be fully offset with the proposed mitigation. Thus, Respondents Endres/Lima provided reasonable assurance that the Project will not cause unacceptable cumulative impacts. Water Quality Rule 62-330.302(1)(e) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely affect the quality of receiving waters such that the state water quality standards will be violated. The conditions of the ERP would require the use of best management practices including a floating turbidity curtain/barrier, soil stabilization with grass seed or sod, and a silt fence. Respondent Endres/Lima's experts, Mr. Herbert and Mr. Exner, testified that there is an existing turbidity barrier in the lake around the property and a silt fence around the east half of the Property. While these items are not required by the Department until construction of the Project, part of the silt fence and the turbidity barrier are already installed on the Property and will be required to be repaired and properly maintained in accordance with the conditions of the ERP and Site Plan SP-2. Mr. Herbert testified that the Property will be graded in a manner that will result in a gentle sloping of the lake bank in the littoral zone, which would allow revegetation of the lake bank. Outside of the restoration area and the undisturbed wetlands, the backyard would be covered with grass to prevent migration of sand and soil discharging into the lake. Mr. Exner testified that the grass swales proposed for the Project would provide a considerable amount of nutrient uptake and filtration of surface water on the Property. Also, in the restoration area next to the lake, the restoration plan includes a dense planting plan with native species that have good nutrient uptake capability. Impacts to Fish and Wildlife Rule 62-330.301(1)(d) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Exner testified that, in his review of the Property, he did not identify any critical wildlife habitat. He visited the Property multiple times and he did not see any osprey nests, deer tracks, animal scat, gopher tortoises, or sand hill cranes. The Department's Ms. Warr testified that the Florida Fish and Wildlife Conservation Commission database was reviewed, and did not show any listed species in the area. Publication of Notice Petitioners argued that the notice published in the Sanford Herald on February 9, 2020, did not meet the requirements of section 373.413(4). Despite the notice having no effect on their ability to timely challenge the proposed ERP, Petitioners argued that the published notice was insufficient because the notice itself did not provide the name of the applicants or the address of the Project, only a link to the Department's permit file. Unlike the notice required in section 373.413(3), where a person has filed a written request for notification of any pending application affecting a particular designated area, section 373.413(4) does not specify the contents of the published notice. Section 373.413(4) does not require the published notice to include the name and address of the applicant; a brief description of the proposed activity, including any mitigation; the location of the proposed activity, including whether it is located within an Outstanding Florida Water or aquatic preserve; a map identifying the location of the proposed activity subject to the application; a depiction of the proposed activity subject to the application; or a name or number identifying the application and the office where the application can be inspected. In response to the published notice, the Department received approximately ten petitions challenging the NOI, including the petitions timely filed by Petitioners. Therefore, Petitioners were not harmed by any information alleged to have been left out of the published notice. Ultimate Findings Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Respondents Endres/Lima provided reasonable assurance that the Project complied with elimination and reduction of impacts, and proposed more than adequate mitigation. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse secondary impacts to water resources; and unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quality impacts to receiving water bodies. Respondents Endres/Lima provided reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife, and listed species by wetlands, or other surface waters. Petitioners failed to prove lack of reasonable assurance by a preponderance of the competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Respondents’ Endres/Lima's ERP application. DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. Jay Patrick Reynolds, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 (eServed) Neysa Borkert, Esquire Garganese, Weiss, D'Agresta and Salzman 111 North Orange Avenue Post Office Box 398 Orlando, Florida 32802 (eServed) Tracy L. Kochmann 249 Carolyn Drive Oviedo, Florida 32765 (eServed) Shelley M. Meier 208 Long Acres Lane Oviedo, Florida 32765 (eServed) Brian Hacker 170 Long Acres Lane Oviedo, Florida 32765 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
The Issue The issues are whether Respondent, Mosaic Fertilizer, LLC (Mosaic), has provided reasonable assurances that the proposed mining and reclamation of the South Fort Meade Mine in Hardee County can be conducted in a manner that comports with the applicable statutes and rules such that the proposed Environmental Resource Permit (ERP), Conceptual Reclamation Plan (CRP), variance from minimum standards for dissolved oxygen, and variance from littoral zone percentage provisions for the Project should be issued by Respondent, Department of Environmental Protection (Department).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Mosaic is a limited liability company authorized to do business in the State of Florida and is the applicant in these proceedings. It was formed by the merger of IMC Phosphates Company and Cargill, Inc., in 2004. Mosaic has applied for permits to mine, reclaim, and conduct associated activities on property in Hardee County, Florida, known as the South Fort Meade Hardee County tract. These activities are referred to in this Recommended Order as the "Project" or "site." The Department is a state agency with jurisdiction over ERP permitting under Part IV, Chapter 373, Florida Statutes, for phosphate mining activities with jurisdiction over phosphate mining reclamation under Part III, Chapter 378, Florida Statutes, and with jurisdiction over variances associated with phosphate mining under Section 403.201, Florida Statutes. Pursuant to that authority, the Department reviewed the ERP, CRP, DO Variance, and Zone Variance applications for the Project. Lee and Sarasota Counties are political subdivisions of the State of Florida. Both Counties have filed challenges to other mining applications and have been found to have standing in those cases. The site is located within the Greater Charlotte Harbor Basin, approximately sixty percent of which lies within Lee County. In this case, Lee County is concerned about the potential destruction of stream and wetlands in the mine area and the impact of mining and its effects on Charlotte Harbor and the Peace River. Sarasota County is a member of the Peace River Manasota Regional Water Supply Authority, and they jointly hold a water use permit, which authorizes them to withdraw water from the Peace River for potable supply. Sarasota County operates a water treatment plant on the Peace River downstream from the site and is concerned with potential impacts to water quality and wetlands. After three years of data collection and site analysis, on October 13, 2006, Mosaic filed applications with the Department's Bureau of Mine Reclamation for an ERP/Water Qualify Certification for the disturbance of approximately 7,756 acres of uplands, wetlands, and other surface waters within a 10,856– acre area which makes up the site; a CRP for the same parcel; and the associated Zone and DO Variances. Three sets of additional information were requested by the Department, and on January 31, 2008, the applications were deemed to be complete. On June 30, 2008, the Department issued Notices of Intent to issue the permits and grant the variances. The Project is located within the Peace River Basin. Little Charlie Creek, a tributary to the Peace River, enters the site in the northeast part of the tract and flows diagonally across the tract in a general southwest direction. The Project is located to the east of the Peace River, east of the town of Bowling Green, northeast of the City of Wauchula, and just south of the Polk-Hardee County Line in Hardee County, Florida. The Project site is twenty-nine miles from the Sarasota County line and fifty-three miles from the Lee County line. The Peace River eventually empties into Charlotte Harbor near Port Charlotte in Charlotte County. The Project consists of approximately eighty percent of upland land cover types, including large acreages converted to agricultural uses, such as cattle grazing, citrus production, and row crop production. The Project site consists primarily of citrus groves and pasture. Richard W. Cantrell, Deputy Director of Water Resources for the Department, has extensive experience and knowledge concerning agricultural parcels of this size in Central Florida. Based on his familiarity with the site, he indicated that all the streams have been impacted, the impacts to some areas of the site are severe, and the "site contains some of the most polluted streams with respect to sedimentation that I have ever seen." The other Mosaic and Department ecological experts familiar with the site concurred in that assessment, and the substantial data collections and application information support that assessment of the site. Of the 2,590.7 acres of wetlands on the property, approximately 751 acres of wetlands and other surface waters will be impacted. Of that 751, 91 are upland cut ditches or cattle ponds, 108 acres are other surface waters, and 274 acres are herbaceous wetlands. Virtually all of the native upland vegetation on the site has been destroyed due to the agricultural activities that have been undertaken on the site over time. Only remnant patches of native upland remain on the site. These comprise approximately nine percent of the site and are predominantly within the riparian corridors of Little Charlie Creek and the Peace River and are proposed to be preserved. The evidence established that the majority of the wetlands and streams proposed for impact are lower in quality; the higher quality wetlands are typically associated with the riparian stream corridors and are proposed to be preserved. The preserved uplands are primarily pasture but also include one hundred thirty-nine acres of upland forest. Twenty-nine distinct vegetative communities were mapped on the site during approximately two years of evaluation and assessment utilizing the Florida Land Use, Cover and Classification System (FLUCCS). There are numerous natural stream segments that were mapped on the parcel including the primary drainage systems on site, consisting of the Peace River, Little Charlie Creek, Lake Dale Branch, Parker Branch, and Max Branch. Substantial portions of the natural streams and their flood plains will be preserved; sixty-two natural stream segments totaling 58,769 linear feet will be mined. No sovereign submerged lands are proposed to be impacted by the activities. The Peace River to its ordinary high water line is sovereign submerged lands; however, no other streams on site are claimed as sovereign. Therefore, no authorization to utilize or impact sovereign submerged lands is required. The field work assessing the ecological condition of the site's wetlands, streams, and surface waters consisted of detailed quantitative and qualitative assessments using FLUCCS, the Wetland Rapid Assessment Procedure, and the Uniform Mitigation Assessment Methodology (UMAM) codified in Florida Administrative Code Rule Chapter 62-345. The level of assessment expended in evaluating the native upland and wetland habitats on the site was considerable and provided reasonable assurances that the current condition and relative value of the systems were adequately considered in the permitting process. From 2002 to 2004, Mosaic conducted intense ecological evaluations of the site, evaluating historical and aerial photography and other site documentation and conducting extensive examinations in the field, including vegetative, macroinvertebrate, and fish sampling and surveying, surface and ground water quality and quantity monitoring, wildlife observations, surveys and trapping, stream mapping and evaluation, soil analysis, and other efforts, both in areas to be mined and areas to be preserved, and in both uplands and in wetlands. The ecological assessments were primarily conducted prior to the hurricane events of 2004, although additional field work was conducted following the hurricanes. Mosaic and the Department's experts revisited the site in the fall of 2008 and agreed that the various ecological and biological assessments conducted prior to the hurricanes would tend to overstate the quality of the site as compared to its current condition. The hurricanes caused a significant amount of damage to the remaining forested habitats on the site. A formal wetland jurisdictional determination was issued and published without challenge in 2007 and therefore conclusively establishes the boundaries of the wetlands and surface waters on the site for permitting purposes. Seasonal surveys for wildlife on the site were conducted in 2003-2004 using the wildlife survey methodology prescribed and approved by the Florida Fish and Wildlife Conservation Commission. Specialized wildlife surveys and night-time surveys were also conducted. A total of 4,600 man hours of effort were expended to evaluate the presence of fish and wildlife, including threatened and endangered species, on the site. The entire site was surveyed, with over 2,600 miles of wildlife transects, to assess the presence of wildlife, and detailed information was recorded for all wildlife observations, including anecdotal observations by the ecologists performing the wetland assessments. Mosaic also engaged in an extensive effort to identify the natural stream channels proposed for impacts on the site. After discussion with the Department staff, Mosaic distinguished the natural streams in accordance with FLUCCS codes 511, 512, 513, and 514, as required by Florida Administrative Code Rule 62C-16.0051(4). Streams are a subset of the term "other surface waters" for ERP purposes. Although streams are defined in Section 373.019(18), Florida Statutes, as are other watercourses and surface waters, there is no operative use of, or reference to, streams in Part IV, Chapter 373, Florida Statutes, governing ERP permits. Also, there are no specific ERP mitigation requirements applicable to streams. Thus, the only specific regulatory use of the word "stream" occurs in the context of Florida Administrative Code Rule 62C-16.0051, and not the ERP rules. The Department and Mosaic established that the delineation of streams proposed for impact by mining on the site was sufficient and adequate for purposes of the CRP rules. In addition, Mr. Cantrell stated that, for purposes of the acre- for-acre, type-for-type (for wetlands) and linear foot (for streams) reclamation requirements in Florida Administrative Code Rule 62C-16.0051, the Department required Mosaic to delineate a stream as such until the point it enters or after it leaves a wetland area and to delineate the wetland polygon itself as a wetland, not a stream. This is true even if water continues to flow through the wetlands and reform as a stream at the other side. If the stream will not be impacted, then nothing in either the ERP or CRP rules requires its precise delineation, because the CRP rules apply only to reclamation of impacted areas. Thus, Lee County's assertion that "streams" has some special status by virtue of the definition in Section 373.019(18), Florida Statutes, has not been accepted. Mr. Cantrell further testified that the Department utilizes a substantially similar definition to delineate "streams" pursuant to Florida Administrative Code Rule 62C-16.0051(4), but as noted in Findings of Fact 44-46, subsection (5) of the rule requires restoration on a linear foot basis only of natural streams. Lee County contended that over 12,000 feet of natural streams were omitted or misidentified in the application. However, based upon the evidence presented, both historical and current, and applying the applicable regulations and statutes, this argument has been rejected. This contention was based on after-the-fact approximation of stream locations and lengths plotted from memory in a desktop analysis. Further, during his site visit to mark stream locations, Lee County's expert failed to use a handheld GPS device or maps. Therefore, the evidence submitted by Mosaic and the Department as to the location and length of the streams proposed for impact has been credited. Mr. Cantrell testified that even the best of the streams proposed for impact have been subjected to at least sixty years of agricultural disturbance and manipulation. For example, the system 22 series of stream segments will be impacted and replaced by the clay settling areas. While the witness characterized segment 22(o) as the most stable and least impacted of the streams to be mined, that segment is 376 feet long and located at the uppermost reach of the 22 systems. It is an extremely small percentage of the overall 12,000 plus feet of less stable and more severely impacted parts of system 22. Mosaic and the Department analyzed the origins and current condition of the streams to be impacted, most of which are less than three-to-four feet wide and one foot or less deep and flow only intermittently and seasonally. The ecological and hydrologic conditions of the site and its fish and wildlife populations and habitat values were assessed for purposes of the ERP and CRP regulatory criteria. Respondents' characterization of the functional value of the wetlands, streams, and surface waters is supported by a preponderance of the evidence. Lee and Sarasota Counties' assertion that the site wetlands and streams are in "good" condition and can be easily restored is not credited in light of the lack of empirical data to support this contention. The only way to recover the phosphate ore is through mining to remove the overburden layer and expose the phosphate matrix with a dragline. The first step prior to any land disturbance associated with phosphate mining is the installation of a "ditch and berm" system, which is recognized as a best management practice (BMP) by the Department and the United States Environmental Protection Agency. Installation of the ditch and berm system proceeds in phases to protect unmined wetlands and habitats from mining impacts as mining progresses; it is not constructed all at once. The ditch and berm remains in place around an individual mining unit until mining and reclamation have been completed and monitoring indicates the revegetation is sufficiently established such that no violations of water quality standards will occur upon re-connection to adjacent and downstream waters. It is then removed in accordance with the reclamation plan. The system serves a number of purposes described below. Berms are required to be constructed in accordance with specific design criteria. The height of the berm will be designed in accordance with rules specific to such structures to prevent water from overtopping the berm during a 25-year, 24- hour storm event, even if the ditch becomes blocked. Following installation of a ditch and berm system, bulldozers clear the mining area of vegetation. Up to three large electrically powered draglines operate generally in parallel rows to remove the overburden layer (the upper layer of sand and clay soil), which is approximately 23.6 feet thick on average, to expose the phosphate matrix, which is approximately 13-to-15 feet thick on average. The overburden is cast to the side in piles to be later reused in reclamation. The phosphate matrix is a mixture of sand, clay, and phosphate, which must be separated after mining. At the beneficiation plant, washing, screening, and flotation processes are used to separate the phosphate rock from the sand and clay. After washing and screening, the sand is pumped back to the mine cuts for use in reclamation, and the clay is pumped to clay settling areas (CSAs) in slurry form to decant. Both the transport of sand back to the mine areas for use in reclamation and the transport of clays to CSAs are considered "mining operations," not "reclamation." See Peace River/Manasota Regional Water Supply Authority, et al. v. IMC Phosphates Company, et al., DOAH Case No. 03-0791 (DOAH June 16, 2006; DEP July 31, 2006); Fla. Admin. Code R. 62C-16.0021(10) and (15). Thus, contrary to Lee County's allegation, the transportation of clays and sand is not a valid consideration in the financial responsibility required for mitigation. Through testimony and its materials balance tables, which are part of the application, Mosaic demonstrated that it has sufficient sand tailings and other waste materials to meet all of its reclamation requirements mine-wide, including both the Polk side and the Project site. However, while there is sufficient sand available to create the proposed reclamation topography and contours, the tables and testimony demonstrated a need, on a mine-wide basis, for lakes, as voids will remain otherwise. There will be only a very small pile of available sand remaining after all reclamation obligations on both the Polk side and the Project are met, an insufficient amount to eliminate the need for deep lakes as proposed. Mr. Myers, Mosaic's Vice-President of Mining, testified as to the three basic ways the waste materials generated by the beneficiation plant are disposed of on-site to facilitate reclamation. Sand tailings will be utilized in areas to be reclaimed as native habitats, wetlands, and streams. Clays will be disposed of in CSAs. However, based on the materials balance and logistical issues, the "land and lakes" reclamation method, which utilizes only the available overburden material remaining on-site after mining, will be used for the lake reclamation. This method allows sand tailings preferential use in reclamation of native habitats and use of shaped and contoured overburden in areas not proposed for wetland mitigation. Such is the case for the proposed reclaimed lakes. A CSA is an above-grade impoundment to hold clay slurry pumped from the beneficiation plant. This clay slurry is pumped into one side of a CSA in the form of muddy water. The clay settles to the bottom, and the clear water remains at the top. The clear water is drawn out from the opposite side of the impoundment, where it is recycled back to the beneficiation plant and mine for reuse. Over time, the clay consolidates and solidifies to form a solid soil, the surface area is drained, and the impoundment reclaimed. Three CSAs will be constructed on the northern portion of the site to hold the clay that cannot be stored in already- permitted CSAs in Polk County. The use of stage filling has allowed Mosaic to have additional usable space in its CSAs, minimizing the footprint of new CSAs in Hardee County. In addition, approximately fifty percent of the clay waste from the site will be disposed of at the Polk site to further minimize the clay disposal footprint and eliminate and reduce impacts. To evaluate the number of CSAs required, Mosaic asked Ardaman & Associates, a consulting firm, to examine different clay generation scenarios when predicting the CSAs required by mining and beneficiation. The life of mine waste disposal plan, most recently updated in September 2008, indicated that, in all but one scenario (the seventy percent clay containment scenario), all three CSAs would be required. However, Mosaic witness Garlanger established that all three CSAs in Hardee County would be necessary based on the best available information as to the amount of clays reasonably likely to be generated by mining; the seventy percent scenario is not likely. No evidence was presented to rebut that testimony. A diversion system was also voluntarily included for the CSAs by Mosaic. In the highly unlikely event of a dam failure, this system will re- direct any escaped water and/or clay materials to adjacent open mining cuts where they can be safely stored. The diversion system will be reclaimed when the CSAs are reclaimed. The evidence established that the ditch and berm system, CSAs, and diversionary structure are capable of being constructed and functioning as designed. The reclamation plan includes avoidance (no mining) of approximately 3,100 acres, or twenty-nine percent, of the site, including more than seventy-one percent of the total wetlands on-site. Of this, 2,100 acres will be placed in a perpetual conservation easement. There is a wide gamut of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the preserve area. The project includes disturbance of 751.3 acres of wetlands and other surface waters, which include non-wetland floodplains, cattle ponds, and upland-cut ditches, and mining of 58,769 linear feet of natural and modified natural streams. An additional 1,661 linear feet of stream channel will be disturbed but not mined for six temporary crossings for dragline/utility/ pipeline corridors. To mitigate for impacts to streams and wetlands under the ERP rules, Mosaic will create 641 acres of wetlands and other surface waters and 67,397 feet of stream channel and will also provide a conservation easement to the Department on 2,100 acres of unmined wetland and upland habitat associated with the major riparian systems. The conservation easement area will be permanently preserved and protected from secondary impacts. The UMAM rule is applied to ERP applications to measure the functional loss to wetlands and other surface waters proposed for impact and the functional gain associated with the proposed mitigation. Functional loss is compared to functional gain to determine whether sufficient mitigation has been offered that offsets the proposed impacts. The proposed preservation and wetland and surface water creation, along with certain upland enhancements, will provide more than enough UMAM mitigation "lift" (with 48 excess credits) to satisfy the ERP mitigation obligations and offset those wetland impacts that cannot be eliminated or reduced. The UMAM scores for the reclaimed areas are conservative, that is, using higher risk factors by assuming muck or other appropriate topsoil will not be available, and take into account the risk or difficulty associated with creation of a particular system, based on actual UMAM scores for existing reclaimed systems. Time lag, which is normally a factor considered in the UMAM mitigation equation, expressly does not apply to phosphate mines pursuant to Florida Administrative Code Rule 62-345.600. Thus, Lee County's attempt to argue that some greater amount of mitigation of streams is required to account for the time required to construct and reinstate flow and vegetation to the streams is not credited. Mr. Cantrell confirmed that "fat" was built into the foot-for-foot stream reclamation because 7,000 more feet of stream will be reclaimed beyond the amount impacted; some "stream" segments, specifically, stream segment 18(i), probably should not have been required to be reclaimed at all. Under Florida Administrative Code Rule 62C-16.0051, the 511 and 512 classified "natural" streams are the only streams warranting reclamation as streams under the Department's reclamation rules. Only natural streams currently existing immediately prior to mining are required to be reclaimed on a linear foot basis. Reclamation meeting the requirements of Florida Administrative Code Rule 62C-16.0051 is adequate mitigation under the ERP program in Part IV, Chapter 373, Florida Statutes, if it maintains or improves the functions of the biological systems currently existing onsite. See § 373.414(6)(b), Fla. Stat. Mr. Cantrell established that, under subsection (5) of the rule, the Department has discretion to request the applicant to restore wetlands and streams to a different type of system than existing on the site if "mitigating factors indicate that restoration of previously modified streams as a different type of lotic system would produce better results for the biological system and water quality." The evidence established that the rules do not require reclamation of artificially created water courses or remnant stream segments that lack the functions or landscape position one normally associates with natural streams. Instead, a better lotic system will be created that will improve existing functions and water quality, consistent with Section 373.414(6)(b), Florida Statutes, and the CRP rules. In addition to the wetlands and surface waters created to meet mitigation requirements, the Project will also reclaim uplands and will include what is known as "land and lakes" reclamation in the southeastern portion of the site. Utilizing shaped and contoured overburden, Mosaic will create four lakes totaling 180 acres and 43 acres of associated herbaceous littoral zone as CRP reclamation. This is based predominantly on the mine-wide materials balance showing a need for reclaimed lakes to account for mine voids on the Hardee site, the Polk site, or both. As a result, Mosaic has proposed 180 acres of reclaimed lakes in Hardee County in lieu of 500 acres of reclaimed lakes in Polk County, as this results in eliminating overall reclaimed lake acreage while satisfying Hardee County's request for deep lakes. In addition, timing and property logistics in that portion of the site make transport of tailings to the area from the beneficiation plant problematic. As the site is an extension of the existing South Fort Meade Mine in Polk County, Mosaic possesses permits that are not at issue in this proceeding, but are relevant to the project. Discharges from a mine recirculation system require a National Pollutant Discharge Elimination System (NPDES) permit. Discharges may only occur at specified discharge points upon verification that the discharge meets stringent water quality conditions in the permit, which are set to ensure that water quality standards in the receiving water are met at the point of discharge (without mixing) and that downstream water quality will be protected. A separate NPDES permit is not needed for the Project, because Mosaic already has a valid NPDES permit for the Polk County beneficiation facility, which will serve the site. Mosaic currently has a Water Use Industrial Permit (WUP) issued by the Southwest Florida Water Management District (SWFWMD). The WUP includes both the Polk County and Hardee County portions of the South Fort Meade mine and governs both dewatering of the mine area prior to mining and operation of water supply wells located in Polk County that will be used to provide supplemental water to the recirculation system. Mosaic's evidence demonstrated that the Project will not cause adverse water quantity impacts, consistent with Florida Administrative Code Rules 40D-4.301(1)(a), 40D-4.302(1), and 62C-16.0051 and related BOR provisions. Mosaic presented evidence concerning the potential long term impacts of the proposed project on surface and ground water quantities and flows both during active mining and reclamation activities, and after reclamation is complete. Extensive analyses were presented by Mosaic's expert witnesses and evaluated by the Department. Such analyses showed no adverse impacts to water quantity on the site, adjacent properties, or in the Peace River or Charlotte Harbor. The site was studied extensively by Mosaic, and detailed hydrology characteristics were assessed as part of the preparation of the ERP and CRP applications. Various surface water stations, topographic maps, and ground water sampling points were utilized and geologic information was developed by evaluation of various borings across the site. Mosaic witness Burleson, a professional engineer, further considered soil types, land use and vegetative cover, and existing site hydrologic factors such as culverts, bridges, and other such changes to the site by the prior owners. Mosaic's modeling expert, Dr. Mark Ross, considered these factors on a regional scale in his integrated modeling for the 360 square mile regional basin. In the region of Florida that encompasses the site, there are three major hydrogeologic layers that are significant to a hydrologic analysis: (1) the surficial aquifer system, comprised of the overburden (the top layer of soil) and the phosphate matrix; (2) the confining layer and intermediate aquifer system; and (3) the Floridan, or deep, aquifer system. The confining layer separates the surficial from the intermediate and Floridan aquifer systems. By understanding the surface and ground water systems and physical characteristics of the site, the Mosaic experts were able to apply appropriately-calibrated hydrologic models to assess (1) pre-mining and post-reclamation floodplains and storm event runoff comparisons; (2) base flows to reclaimed streams; (3) potential hydrologic impacts of stream crossings; (4) effectiveness of the perimeter "recharge ditches"; (5) hydroperiod of reclaimed wetlands; and (6) potential impacts of the project on flows in the Peace River. These models were used to predict with reasonable certainty the effect of the Project on water quantity on-site, off-site, and on a regional scale. As set forth below, the evidence established that water quantity and flows in adjacent unmined wetlands and streams will be maintained during mining activities as a result of the installation of the ditch and berm system as proposed. Before the ditch and berm system is constructed, Mosaic will refine the design of the system based on actual geological data and gradient information to assure the ditch and berm will function as proposed and modeled. The ditch and berm system is inspected regularly. Recharge wells within the recharge ditch are not required unless localized conditions dictate use of the wells. Contrary to Lee County's assertions, this site is distinguishable from the Ona mine site (which is also in Hardee County), and the depth of mining is far more shallow with relatively few areas mined to a depth of fifty feet, which was common at the Ona mine site. Additionally, Mosaic must install perimeter monitor wells at regular intervals adjacent to and downgradient of the ditch and berm system prior to mining. These wells are monitored prior to mining to establish a baseline and regularly throughout mining in accordance with the requirements of Mosaic's WUP and the ERP to assure that the water table in adjacent areas is not adversely affected by mining activities. The water in the ditch portion of the perimeter system must be maintained at levels sufficient to maintain groundwater levels in undisturbed areas. Maintaining water in the ditch at appropriate levels precludes drainage of groundwater from adjacent sites into open mine cuts. Mosaic witness Pekas, a professional engineer, conducted modeling to determine whether adequate base flow will be provided to protected streams and reclaimed streams during mining. Provided the ditch and berm system is operated properly, proper base flows will be maintained. All of the hydrologic experts agreed that proper operation of a ditch and berm system assures that adequate groundwater outflow, or base flow, is available to support adjacent streams and wetlands during mining. During active mining operations, the ditch and berm system collects rainfall on areas within the system. The ditch and berm system temporarily detains this rainfall, preventing the direct discharge of untreated, turbid runoff to adjacent wetlands and waters, but does not permanently retain the rainfall. The evidence demonstrated that most of the rainfall that falls on areas disturbed by mining and mining-related activities is detained by the perimeter ditches, routed to the mine recirculation system, and is subsequently discharged, when it meets water quality standards, through NPDES-permitted outfalls to waters of the state. This will serve to attenuate surface water flows, allowing surface water retained during storm events to be discharged during extreme low flow events, providing for less "flashiness" in the streams. Lee County's assertion that runoff will be permanently retained is not credited; the evidence clearly established that controlled releases of treated stormwater occur through the permitted NPDES outfalls. The evidence shows that Mosaic will re-connect mined and reclaimed areas at the mine in Polk County at a rate exceeding the rate at which the Project's mine areas will be diverted by the ditch and berm system. Thus, any potential downstream impact of the ditch and berm construction on the site will be offset and buffered beyond the safeguards incorporated in the project design. The evidence demonstrated that the proposed ditch and berm recharge and monitoring system described here is capable, based upon generally accepted engineering principles, of being effectively performed and functioning as proposed and will preclude any adverse impact on the surficial aquifer beneath the preserved areas and adjacent properties and on adjacent surface waters and wetlands. The Department will apply the relevant BOR criteria concerning water quantity impacts on a pre-mining/post- reclamation basis consistent with the application of these same criteria to other non-mining ERP applicants. In this case, the Department reviewed Mosaic's submittals, assessed the impacts, and determined no adverse impacts to water quantity would occur during mining. Mosaic submitted a detailed analysis of potential surface water quantity impacts that may occur after reclamation is complete. This analysis included evaluation of post- reclamation floodplains and storm event run-off compared to pre- mining patterns, and characteristics of reclaimed natural systems. Floodplains, run-off, and reclaimed natural systems were assessed in the manner described below. Mosaic modeled potential impacts of the project on surface water flow using existing site conditions to calibrate and verify the model. Mr. Pekas developed a water balance hydroperiod spreadsheet model calibrated using existing, on-site wetlands to evaluate the expected hydroperiods of various types of wetland systems proposed to be reclaimed at the site. The evidence shows that the Pekas spreadsheet model was an appropriate model for predicting hydroperiods for reclaimed wetlands. Appropriate ranges for the expected hydroperiods and other hydrological characteristics needed for the different types of wetland systems to be created in the post-reclamation landscape were established. In order to reflect natural conditions, the Department specifically requested that the targets for expected hydroperiods of reclaimed wetlands vary across the established range of the hydroperiod for the type of wetland at issue, and these target hydroperiods are summarized in Table E-6 to the draft ERP. Mosaic demonstrated and verified that the Pekas spreadsheet reasonably predicts the hydroperiods to be expected from a given design for a proposed reclaimed wetland. After mining, site-specific conditions such as hydraulic conductivity will be reassessed and final design parameters will be developed accordingly. Lee County's witness Jonas demonstrated the importance of hydraulic conductivity when she adjusted the value for wetland 2-1C (one of Mr. Pekas' verification wetlands) from 0.5 to 30, based on a value not from the Project site, but from an off-site reclamation project. Not surprisingly, she concluded that a conductivity of 30 would not provide hydrology to support the wetland functionality. Her analysis demonstrates the importance of requiring reclamation of subsurface hydrology not based on an off-property conductivity value, but on site- specific hydraulic conductivity information. In his own analysis, Mr. Pekas relied on actual soil borings on-site, and at wetland 2-1C the average hydraulic conductivity was 0.5, which when modeled, provided appropriate hydrology for that wetland. Furthermore, ERP Specific Condition 11 requires Mosaic to reclaim wetlands with functionally equivalent hydraulic conditions based on verified field information as to site- specific hydrologic properties existing after mining, and the wetlands will not be released until functioning as required. The preponderance of the evidence demonstrates that reclaimed wetland can be designed and built in a manner that will achieve the required hydroperiods for each wetland type proposed to be disturbed and reclaimed at the site, including the bay swamps. In addition, each of the wetlands must be individually evaluated immediately prior to construction to provide additional verification of site-specific hydrologic conditions to assess, re-model, and verify the final wetland designs prior to construction. Condition 11c of the draft ERP also requires Mosaic to mimic the existing hydraulic conductivity and gradients near streams to ensure that base flows will be present post-reclamation. All of this will ensure that reclaimed streams will be hydrologically supported, and wetlands with the target hydroperiods requested by the Department will be constructed. The contrary testimony of Lee County's hydrologists does not credibly rebut this evidence. In performing their calculations, they utilized unrealistic numbers. The claim of Lee and Sarasota Counties' experts that they lacked sufficient information to form an opinion as to the accuracy of the modeling is not sufficient to overcome the evidence submitted by Mosaic to meet this criterion. See, e.g., National Audubon Society, et al. v. South Florida Water Management District, et al., DOAH Case No. 06-4157, 2007 Fla. ENV LEXIS 164 at *21 (DOAH July 24, 2007, SFWMD Sept. 13, 2007). Mr. Burleson determined that the original drainage patterns of the site would be restored post-reclamation. Mosaic provided reasonable assurances that the proposed reclamation is capable of being constructed and functioning as proposed. The preponderance of the evidence demonstrated that the proposed mining and reclamation of the site will not cause adverse water quantity impacts post-reclamation, as addressed by Florida Administrative Code Rules 40D-4.301(1)(a) and (c), associated BOR provisions, and Florida Administrative Code Rule 62C-16.0051(8)(b). Mosaic presented evidence demonstrating reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, consistent with Florida Administrative Code Rules 40D-4.301(1)(b) and 62C- 16.0051(8) and associated BOR provisions. During mining, there is no reasonable likelihood that active mining and reclamation activities at the site will result in any increased flooding conditions upstream of, on, or downstream of the site. The ditch and berm system reduces direct surface water runoff from areas disturbed by mining operations during peak rainfall events. Subsequent NPDES discharges of water typically lag slightly behind the rainfall events. This lag during mining decreases peak discharges in adjacent streams while augmenting lower flows slightly, thereby attenuating peak flows. Mr. Burleson evaluated the pre-mining and post- reclamation peak flow analyses for the project site to determine whether the post-reclamation topography, soils, and vegetative cover would result in flooding, using the Interconnected Pond Routing program or "ICPR" model, an accepted model for stormwater modeling, as required by the BOR. Mosaic's evidence established that the Project will not adversely impact existing surface water storage and conveyance capabilities, consistent with Florida Administrative Code Rule 40D-4.301(1)(c) and related BOR provisions. Additionally, Mosaic proposes to preserve from mining the 100-year flood plain of Little Charlie Creek and the Peace River and most of the higher quality small tributaries on the site. The smaller streams to be mined will be restored in a way that maintains or improves pre-mining conditions and will not cause harmful or erosional flows or shoaling. The federal Hydrologic Engineering Center Reservoir Analysis System and the National Flood Frequency Program were used by Mr. Burleson to verify the floodplains are accurately mapped and also that there will not be an increase in flood risk in the post-reclamation condition. The preponderance of the evidence demonstrates reasonable assurances that the proposed mining and reclamation activities at the site will not result in adverse flooding impacts, consistent with Florida Administrative Code Rules 40D- 4.301, 40D-4.302(1)(a)3., and 62C-16.0051(8), and the BOR, including water quality standards in Chapter 4. The evidence presented by Dr. Ross established that the proposed mining and reclamation activities on the site will not adversely impact flows in the Peace River. No adverse effects of the Project will be observable at the Zolfo Springs United States Geological Survey (USGS) gauging station. A minimum flow for the Upper Peace River has been established pursuant to Section 372.042, Florida Statutes. A minimum low flow of 45 cfs from April to June (Upper Peace MFL) was established at Zolfo Springs by the SWFWMD; since the MFL has not been met since adoption, a recovery plan has been instituted. See Fla. Admin. Code R. 40D-8.041(7). Lee County asserts that the Project will violate the Upper Peace MFL and the recovery plan, arguing that a reduction in average annual flow, regardless of how infinitesimal, constitutes a violation of Florida Administrative Code Rule 40D-4.301(1)(g). This argument was refuted by Dr. Ross, who established that the project would increase flows during low flow periods. The Department concurred with, and the evidence supports, Dr. Ross' assessment that the project would not exacerbate the Upper Peace MFL or interfere with the recovery plan. Dr. Ross created a regional-scale integrated model utilizing public domain computer programs in an iterative fashion that coupled surface water and ground water to comprehensively evaluate the effects of the project on the flows in the Peace River post-reclamation. The regional approach included a full range of upstream and downstream influences on the site, not simply mining, that could affect the hydrologic evaluation of any impacts from the Project on the Peace River. The model domain included 360 square miles. To account for site-specific impacts in the model, Dr. Ross increased the refinement and discretization over the site. Thus, the model was capable of considering impacts from the site in its entirety within the region as measured at the Zolfo Springs USGS gauging station. Zolfo Springs is the first USGS gauging station directly downstream of the site and is the point of compliance for minimum flows adopted for the Upper Peace River system. The regional model predicted virtually no change in flows at the Zolfo Springs gauging station after the project as proposed is reclaimed, and that both the high and low flows observed at Zolfo Springs would be maintained post-reclamation. Dr. Ross concluded that there would not be any reduction of low flows at Zolfo Springs due to the Project. He further concluded that the Project will not impact or affect the recovery of minimum flows. Dr. Ross calculated the differences between the model- predicted high flows and low flows from the observed flows and found that the modeled high flows were slightly attenuated and the modeled low flows were slightly augmented at Zolfo Springs. The attenuation is consistent with the increased storage for water in the post-reclamation system. Consistent with Florida Administrative Code Rule Chapter 40D-8, the Department considered potential impacts to low flows as the determining factor in determining whether a minimum low flow requirement like the one set for the Upper Peace MFL will be met. It concluded that the project is consistent with the Upper Peace MFL and its recovery strategy. The recovery strategy discusses projects which, like the one proposed, would yield a long-term increase in low flow conditions by storing some peak flow volumes and releasing them in low flow conditions. The Department's interpretation of its ERP rules and BOR provisions regarding MFLs, as well as other governing rules, is reasonable and has been accepted. Lee County's experts based their MFL testimony on an inappropriate use of annual average flow information and improper interpretation of Mosaic's data. Further, they inappropriately attempted to reach conclusions by estimates and extrapolation, and the overall weight of the evidence supports Mosaic's evidence that mining and reclamation will not cause a violation of the Upper Peace MFL. Accordingly, Mosaic has provided reasonable assurances that the requirements of Florida Administrative Code Rule 40D- 4.301(1)(g) and associated BOR provisions have been satisfied. The ditch and berm system and other proposed BMPs, such as silt fences, at the site will provide water quality protection to adjacent undisturbed surface waters and wetlands during mining and reclamation activities. The actual construction of the ditch and berm and stream crossings will be conducted using BMPs to avoid adverse construction-related impacts. During mining, the ditch and berm system will preclude uncontrolled releases of turbid water to adjacent un-mined areas. The evidence established that the proposed Project will not cause a violation of water quality standards, either in the short-term or long-term. Dr. Durbin, an ecologist, evaluated water quality data from the existing South Fort Meade mine in Polk County and compared data from the 10-year period before the mine opened against the 10-year period after the mining began, finding water quality to be equivalent or better after mining began in Polk County. This allowed him to conclude that water quality on the site will not be adversely affected and, in light of existing agricultural activities, will be maintained or improved both during mining and post-reclamation; water quality in reclaimed systems will be sufficient to maintain designated uses of the systems. Dr. Durbin opined that the ERP contains detailed water quality monitoring requirements that, based on his long experience, are sufficient to establish a baseline, assess compliance, and detect significant trends. Sarasota County's witness has no experience in ERP or CRP permitting and his suggestion for far more frequent monitoring is not credited. No additional monitoring conditions or criteria are warranted. For the above reasons, Mosaic has demonstrated by a preponderance of the evidence that reasonable assurances that water quality standards will not be violated either during mining, while reclamation is underway, or post-reclamation. The evidence further established that accepted BMPs will be used during mining to protect the water quality of adjacent and downstream waters, and that these measures can be expected to be effective to prevent any violations of water quality standards. Dr. Durbin provided unrebutted evidence that water quality standards in waters of the state and downstream of the project will be met post-reclamation and existing water quality in the unmined and reclaimed wetlands and waters will be maintained or improved post-reclamation. Thus, no adverse water quality impacts to the Peace River or Charlotte Harbor will occur during mining or post-reclamation. Therefore, reasonable assurances have been given that the requirements of Sections 373.414(1) and 373.414(6)(b), Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(e) and 62C-16.0051(7), and associated BOR provisions are satisfied as to water quality. There is a wide range of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the no-mine and preserved areas. Mosaic does not propose to mine all or even most of the jurisdictional wetland and surface waters. In fact, seventy-one percent will be avoided. When developing a mining plan, Mosaic considers how to eliminate or reduce proposed impacts to waters and wetlands. The evidence established that Mosaic and the Department engaged in a protracted elimination and reduction discussion throughout the review process associated with the site's ERP/CRP applications. BOR Section 3.2.1 emphasizes the effort required to assess project design modifications that may be warranted to eliminate and reduce impacts to ecological resources found on the site. This effort was undertaken with the Department as early as 2004 during the DRI pre-application conferences. The major project design modifications involved the preservation of the named stream channels, the 100-year floodplain of the Peace River and Little Charlie Creek, and the 25-year floodplain of the other named tributaries. These areas will be permanently preserved by a 2,100-acre conservation easement; 1,000 additional acres will remain unmined. Also, the project design was modified and developed to maximize resource protection by integrating the Polk and Hardee mining operations. The testimony established how the activities at the Hardee operation will be greatly facilitated by relying upon and using the beneficiation plant and infrastructure already in place and permitted at the Polk site. Almost fifty percent of the clays generated at the Hardee mine will be disposed of in the existing Polk County CSAs, thereby eliminating one CSA altogether and substantially reducing the footprint needed for CSAs on the site. Likewise, the Department established that mine-wide, approximately 320 acres of lakes were eliminated. The Department discussed further modifications to the mine plan with Mosaic throughout the lengthy review process, doing a wetland and stream-by-stream assessment of the functions provided and the reclamation capability to maintain or improve the functions of the biological systems present prior to mining. The balance was struck between temporary resource extraction, recognized by Florida law as inextricably related to wetland disturbance, and the significantly altered natural resource features found on the site. In light of the 3,100 acres already eliminated and reduced from impact consideration, the Department in its discretion did not find it necessary to pursue economic data or analysis on the "practicability" of any further reductions. The highly disturbed nature of the wetlands and other surface waters being impacted gave the Department a high degree of confidence that mitigation and reclamation of these areas would in fact maintain and improve the functions provided prior to mining. Specifically, Mosaic has eliminated impacts to stream systems to the greatest extent practicable. Based on a Department field evaluation in late August 2008, Mosaic was directed to revise the no-mine line in the 3A stream system to more accurately reflect the floodplain of the stream draining the two bay heads north of the stream. In October 2008, Mosaic made the revision to add approximately 2.7 acres to the no-mine area. The majority of the streams proposed for impact by mining cannot be avoided, given the location of the three CSAs that are required for clay disposal associated with mining. The evidence established that there is no other location for the three CSAs that will have a lesser ecological or public health, safety, or welfare impact than the proposed location, given the site topography. As noted above, the volume of clays to be disposed of on the site has been reduced by half, and three CSAs are still needed. The location was chosen to move the CSAs as far from the Peace River and Little Charlie Creek as possible in light of the site topography, and this location avoids all impacts to named stream systems. As set forth above, Mosaic has demonstrated by a preponderance of the evidence that the best and most complex habitats on the site have been preserved at the expense of a loss of a significant amount of phosphate reserves in the preserved areas. All significant stream systems have been avoided to the extent practicable in light of the necessary CSAs. Both Mosaic and Department witnesses testified that the proposed no-mine area was the result of design modifications to eliminate or reduce impacts to wetlands to the greatest extent practicable. This satisfies the requirements of applicable rules and Section 373.414(1)(b), Florida Statutes. Florida Administrative Code Rule 62C-16.0051(4) and (5) provides specific guidance on the classification and reclamation of natural streams. The Department provided direction to the applicant through the review process in the identification of natural streams and the design guidance manual to ensure foot-for-foot replacement and functional replacement or improvement. The permit reflects the 58,769 feet of the streams identified as numbers 511 and 512 to be impacted, and Mosaic has proposed approximately 65,700 feet of restored stream. Lee County's assertion that 2.3 miles of additional unmapped streams should be added to the reclamation obligation has been rejected. It is clear many of the areas alleged to be unmapped streams were depressions, low lying areas, or standing water within wetland areas more accurately identified as marshes or swamps. The fact that a discernible natural stream channel exists upstream and downstream of a wetland did not change the accuracy of acknowledging the different structure, form, and functional attributes that result in the wetland being distinct from the stream. Also, many of the alleged unmapped streams were located in the no-mine areas, and thus the alleged lack of delineation is of no consequence. Lee County's witness Erwin admittedly took no measurements of the alleged streams. Also, he provided no evidence that he or his staff delineated the alleged streams on- site. Rather, he reconstructed where they were located as a desktop exercise from memory, without any aids or tools used in the field. He then superimposed an alignment and put it on a GIS layer over an aerial photograph, resulting in an electronically generated approximation. The witness offered no physical evidence of depth, width, length, or bankfull width of stream function, but merely an assertion as to areas that appeared to have a bed or channel, even if dry, and the attributes or functions of a stream were immaterial or irrelevant to his analysis. No other independent witness attested to the alleged stream discrepancy, whereas both Mosaic's expert, Mr. Kiefer, a recognized fluvial geomorphologist, and the state's expert on jurisdictional delineations, Mr. Cantrell, who was the author of the applicable rules, expressly disagreed with these allegations. The testimony of Mosaic and the Department is found to be the most persuasive on this issue. Mosaic and the Department established that the proposed stream restoration plan is more than adequate to meet the requirements of Florida Administrative Code Rule 62C- 16.0051(5) and will ensure the reclaimed streams maintain or improve the biological function of the streams to be impacted. Dr. Janicki, a scientist who testified on behalf of Lee County, was critical of the stream restoration plan. However, he acknowledged he was not an expert in stream restoration and that part of his job was to "look at how we might improve . . . on some of those shortcomings in the [stream] restoration plan." Dr. Janicki incorrectly assumed the design curve numbers were based on regional curves from north and northwest Florida rather than site-specific measurements. He stated that the guidance document was generalized and lacking specificity, but Table 4 contained in the guidance document contains nineteen stream morphological parameters for all forty- nine of the stream segments to be reclaimed. Dr. Janicki has never designed nor implemented a stream restoration project, and he acknowledged that he is not a fluvial geomorphologist. Conversely, Mosaic witnesses Boote and Kiefer, both accepted in this area, stated unequivocally that the plan was sufficiently detailed and that a qualified restoration and construction contractor could implement the plan in the field with appropriate field adjustments and construction level refinements based on site conditions. The allegation that the plan does not comport with ERP and CRP requirements because it lacks sufficient specificity is not credited. First, the ERP rules do not contain stream-specific restoration criteria. Second, the CRP stream rules adopted in May 2006 have never been applied in a prior case, and in this case the Department determined in its discretion that the plan as proposed meets the stream reclamation requirements of the CRP rules. Similarly, the stream restoration plan was criticized because measurements from every single segment or reach of stream were not used to develop the post-mining stream. However, Mr. Boote and Mr. Kiefer confirmed that only the most stable and least impacted of the stream segments on site were used as templates for stream reclamation. None of the recognized stream experts suggested that erosive, unstable "F" and "G" classified stream segments should be replaced in that unstable form or used as the template for reclamation. By a preponderance of the evidence, Mosaic has established that the reclamation plan for the site will more than offset any adverse impacts to wetlands resulting from the mining activities, because it will maintain or improve water quality and the functions of biological systems present on the site today, as required by Sections 373.414(1) and 373.414(6)(b), Florida Statutes. The evidence established that applicable Class III water quality standards will not be violated and that the water in wetlands and surface waters on-site post-reclamation will maintain or improve and be sufficient to support fish and wildlife in accordance with Florida Administrative Code Rules 62C-16.0051 and 40D-4.301(1)(e) and relevant BOR provisions. The proposed mitigation will also restore a more appropriate or more natural hydrologic regime that will allow for a better propagation of fish and invertebrates in reclaimed systems. The reclamation plan will maintain the function of biological systems of wetlands to be mined on-site by replacing the wetlands to be impacted with wetlands of the same type and similar topography and hydrology in the post-reclamation landscape. In many cases, it will enhance the function of those systems by improving the landscape position of the wetlands, relocating them closer to the preserved Little Charlie Creek corridor, and moving cattle ponds and pasture away from the corridor. Likewise, the existing streams proposed for mining will be replaced with stream reaches modeled on streams that are comparable or better than the existing, unstable, and eroded streams. The Department has determined that Mosaic can reclaim the streams and wetlands to at least as good as or better than existing condition on the site. Mosaic has provided reasonable assurances that the proposed reclamation plan will maintain or improve the existing function of biological systems. Mosaic's reclamation plan for the site therefore satisfies the mitigation requirements of Part IV, Chapter 373, Florida Statutes, and the implementing regulations and the BOR, as applied to phosphate mining activities through Section 373.414(6)(b), Florida Statutes. Through the testimony of witnesses Durbin, Kiefer, and Simpson, as well as documentary evidence, Mosaic has established that the proposed project, as reclaimed, will cause no adverse impacts on the value of functions provided to fish and wildlife and will not adversely affect the conservation of fish and wildlife, including endangered or threatened species and their habitats, as required by Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(d) and 40D-4.301(1)(a)2., as well as the associated BOR Section 3.2.2 provisions. Likewise, the CRP criteria pertaining to fish and wildlife will be met. See Fla. Admin. Code R. 62C- 16.0051(11). Mosaic's reclamation and site habitat management plan will maintain or improve the functions of the biological systems on the site with respect to fish and wildlife, including threatened and endangered species and their habitat. Mosaic witness Simpson provided unrebutted testimony that the proposed mining and reclamation will not have adverse impacts on wildlife populations or conservation of wildlife including threatened or endangered species and their habitats and that proposed reclamation would maintain or improve wildlife habitat values. The evidence shows that the mining and reclamation will not have adverse impacts on fish populations or conservation of fish. The fish habitat on the site will either be preserved or, if mined, will be replaced with in many cases superior habitat. There will be a net increase in suitable fish habitat post-reclamation. The wetland and stream fish habitats on the site will provide appropriate habitat for the fish and wildlife that can be expected to occur in the region. The sampling described above can be expected to reflect the majority, if not all, of the fish species reasonably expected to be present on the site. Mosaic witness Durbin further confirmed that the fish species collected on-site are consistent with similar sites in the immediate vicinity with similar agricultural usage with which he is familiar. In August and September 2008, verification of that fish sampling effort was performed by Dr. Durbin, an outside consulting firm (ECT), and the Department. They confirmed that the fish collection efforts reasonably reflect the native and exotic fish species that are likely to occupy the site. Through the testimony of Dr. Fraser, Lee County compared two streams on the Ona mine site with three stream segments on the Project site. However, the sole basis of the witness' comparison was recollections of field work he participated in over four years ago and photos taken at that time compared with photos taken at the new site. The witness conceded that he did not consider or compare sedimentation levels in the two stream systems. On the other hand, Department witness Cantrell established that the streams compared by Dr. Fraser were dissimilar. In fact, one of the streams Dr. Fraser held up as an apparent example of prime aquatic habitat was Stream 20C, which Mr. Cantrell demonstrated is nearly completely choked by sand and sedimentation. All of the streams proposed for impact are first or second order streams; most of them are intermittent, carrying flow only seasonally and therefore are only periodically occupied by fish and macroinvertebrate communities. The fish that do tend to utilize such systems in the wet season tend to be very small, usually less than one inch in size. The proposed preservation will preserve the best aquatic habitat on the property; the streams to be preserved are the main pathways and aquatic habitats utilized by fish. Mosaic witnesses Durbin, Keenan, and Kiefer all testified that the reclamation plan will restore better aquatic habitat for fish and other aquatic organisms than exists presently on site on a greater than acre- for-acre, type-for-type and linear foot basis. They further testified that the proposed reclamation will provide better aquatic habitat for fish and wildlife than currently provided, consistent with both ERP and CRP requirements. In addition, Dr. Fraser's suggestion that the fish sampling done on the site was insufficient and that the ERP should be modified to require fish collection as a success criterion for the reclaimed streams is not credited. This is because such a proposal is not a requirement of the ERP or CRP rules. Dr. Fraser's comparisons of reclaimed to unmined streams were inconsistent with his own anecdotal fish observations, and he testified as to the difficulty of ensuring adequate fish sampling or knowing where fish will be on any given day, given their mobility. Also, he provided no comparisons as to how the reclaimed streams sampled are constructed compared to the plan for the site and admitted he did not know how or when they were built. Dr. Fraser's discussion of fish in basins where mining has occurred was discredited by his own data showing that no reduction in the number of native fish species has occurred over time in those basins. Mosaic's reclamation plan, which consolidates the native upland and wetland habitats along the Little Charlie Creek corridor, will improve the fish and wildlife function of those systems and increase fish and wildlife abundance and diversity, as set forth above. There will be no adverse impacts to fish and wildlife and their habitat or to the conservation of fish and wildlife, including listed species, post-reclamation, because the fish and wildlife function of the tract will be maintained and in many cases improved by the reclamation and habitat management plans. This is particularly true in light of the existing condition, hydrologic connection, location, and fish and wildlife utilization of the wetlands and surface waters on site. Therefore, Mosaic has provided reasonable assurances that the requirements of Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D-4.301(1)(d) and 40D- 4.302(1)(a)2., and the relevant BOR provisions have been satisfied. Mosaic demonstrated that it has reclaimed wetlands, uplands, and streams consistent with the regulatory requirements and permit conditions in place at the time the area was reclaimed. Indeed, many of these reclaimed areas, whether or not under different ownership and control or whether released from further regulatory requirements, continue to demonstrate that they are successful and functioning ecosystems. The reclamation proposed for the site is state-of- the-art, reflecting the most recent evolution of reclamation techniques for uplands, wetlands and streams, with more planning and detail that should achieve the reclamation goals faster. Many older wetland projects were designed to meet a +/- 1-foot contour and were designed with older generations of equipment and survey techniques. However, Mosaic's third party contractor's bulldozers/tractors are now equipped with GPS and sensors to enable grade tolerances within two inches, allowing for much more accurate backfilling and wetland construction. Accordingly, Mosaic's newer wetlands contain both deep and shallow areas with gradation/zonation in between. Hydrologic regimes and hydroperiods can thus be effectively created to target and achieve more specific hydrologic conditions required by certain wetland systems such as seepage slopes and wet prairies. Nonetheless, the projected UMAM scores for the reclaimed systems take into account a higher risk factor for systems that historically were more difficult to reclaim. Mosaic has provided reasonable assurances of its ability to restore the hydrology and types of vegetation found on the site and of its ability to create ecosystems that will maintain or improve the function of the biological systems proposed for mining on the site. Mosaic has restored wetlands in a variety of configurations ranging from small round depressions of less than a few acres to large complex polygons in excess of two hundred acres, as well as wetlands with low slope gradients. For example, Mr. Kiefer described and depicted Mosaic's ability to restore a bay swamp at point 84(5) at the Fort Green Mine and at Alderman Bay. Lee and Sarasota Counties focused on bay swamps in particular, but failed to acknowledge that Mosaic will be reclaiming 98.5 acres of bay swamps while only impacting 62.1 acres. Mosaic demonstrated that herbaceous and forested wetlands can be and have been restored by Mosaic and its predecessors. Mosaic has demonstrated that it can restore the various zones and depths of freshwater marshes, including shrub marshes, from the deep emergent zone to the wet prairie fringe, and has demonstrated that these zones in reclaimed marshes are providing important and key wetland functions, such as water quality, food chain support, habitat, and other functions, similar to those functions provided by site marshes. This evidence was not effectively rebutted by Lee or Sarasota Counties. In fact, Sarasota County witness Lipstein acknowledged Mosaic is proposing to mitigate for all impacts. When asked if the proposed bay swamps will be successful or unsuccessful, she replied that she did not know and, "you will have to just wait and see if it reaches that success criteria." There have been different success criteria applied in Department permits over the years, and Mosaic has demonstrated the ability to meet those changing and more stringent criteria. In the past, stream restoration was accomplished relatively simply by contouring the stream valley and floodplain to support wetland vegetation, then allowing a flow channel to self-organize. While this technique has resulted in successful streams that met Department permit criteria, it can take many years to occur. For example, Dogleg Branch (which is located on the site of another mining operation) took almost twenty years to achieve success. Mosaic has previously developed successful stream restoration projects which have been documented to provide flow regimes similar to that of natural flatwoods streams, with in- stream aquatic habitat diversity similar to or better than the stream segments proposed for mining at the site and which met reclamation criteria. Mosaic witness Kiefer demonstrated this with evidence of the functions that various reclaimed streams provided. He also showed that, in newer stream restoration projects, like Maron Run, certain functions and form, such as habitat availability, bank stability, meander, and pool-riffle sequence, are developing rapidly. Also, Department witness Rivera testified to Mosaic's commitment to achieving stream success in its efforts to retrofit certain of these earlier reclaimed streams to achieve greater function and habitat diversity. Using an average sinuosity of 1.35, over 65,700 linear feet of streams will be created as part of the mitigation plan. The foot-for-foot requirement for the reclaimed streams will be exceeded by 7,000 feet. Mosaic's mitigation proposal incorporates state-of- the-art stream restoration techniques and the post-reclamation topography to be used as guidance for the final construction plans. The guidance is based on extensive data collected from twenty-one cross sections of reference reaches within the project area, including measurements for channel dimensions, sinuosity, bankfull, and entrenchment ratios. Snags, debris, and other woody material will be placed at appropriate intervals within the channel to provide in-stream habitat and aid in-channel stabilization and development. Restored streams will have primarily forested riparian zones. Trees will be planted using techniques that will assist rapid canopy closure and aid in rapid bank stabilization. Biodegradable erosion control blankets will be used to control erosion. The streams will be designed such that the stream morphology fits within the Rosgen Stream Classification System (Rosgen) described in the reference reaches. To create a design template, Mosaic's experts carefully measured the important geomorphic characteristics of the stream segments to be disturbed. The plan incorporates, among other factors, design specifications for meander patterns, longitudinal valley and bed slopes, bank slopes, cross-sectional area, widths, depths, large woody debris, pools, riffles, bends, and sediment composition. It is the second known low-order stream creation plan in Florida to provide this level of detail. The stream plan represents an overall improvement upon the existing conditions at the site, as Mosaic is generally only mining small, shallow, intermittent stream segments of significantly lower ecological value and will create streams that are less erosive and will have greater in-stream habitat diversity and availability than the segments to be mined. Accordingly, the reclaimed streams segments will at least maintain and in many cases improve the ecological functions served by the existing segments. Special emphasis has been placed on assuring that post-reclamation soils are a suitable growing medium for the proposed reclaimed habitat. Soils will be used to closely mimic the native Florida soils profile. Mosaic witness Schuster established that proposed reclaimed soil conditions do not pose limitations on Mosaic's ability to create upland and wetland ecosystems. The soil reclamation plan uses parent materials available after mining in a sequence similar to the textural or horizon sequence in soils present at the site before mining. This soil profile will have a created topsoil layer as a suitable growing medium and subsurface layers whose thicknesses can be adjusted to achieve the drainage class, that is, hydraulic conductivity or permeability, that is needed to support the post-reclamation hydrology. The overburden used to form the lower part of the reclaimed soil sequence is native Florida soil and underlying geologic material. The overburden is excavated so that the matrix can be mined, but then the material is put back in the mined areas in a sequence that resembles native soil horizons. Where available, the top layer of the soil sequence will be a direct transfer of muck/topsoil pursuant to the permit conditions. Where donor topsoil is not available, other appropriate materials can be used if approved by the Department. Possible methods may include establishment of cover crops, green manuring, mulching, and sod placement, all of which have been demonstrated to provide organic matter and a suitable growing medium for reclaimed wetlands and will facilitate success of the wetlands. These methods comport with the requirements of Florida Administrative Code Rule 62C-16.0051(3). For reclamation, Mosaic will use various thicknesses of materials including sand tailings and overburden, depending on the area to be reclaimed and the needed hydraulic conductivity as dictated by the modeling that is required. Sand tailings will be utilized in native habitats. Sand tailings have a much higher rate of hydraulic conductivity than overburden, which is low, but not impermeable. Reclaimed soils behave similarly to native soils. On site development of soil morphology at reclaimed sites has occurred, including organic matter accumulation in the topsoil formation of redox concentrations, and other components of soil structure, which evidence that the same natural processes are present in both reclaimed and native soils. Lee County's witnesses incorrectly assumed an overburden cap that will not be present. Mosaic has provided appropriate cost estimates for financial assurances of reclamation and has satisfied the BOR requirements of providing third-party estimates and draft financial assurance documentation. The first three years of mitigation at one hundred ten percent is $3,957,356.00. This amount is determined to be sufficient. Lee and Sarasota Counties' witnesses could provide no contrary cost estimates of actual comparable large-scale projects. The proffered costs of Lee County witness Erwin were rejected in another mining case (the Ona case), they ignore the definitions of "waste" and "mining operations," and they assume mitigation requirements not found in the BOR. The evidence supports a finding that all adverse impacts, including any secondary impacts, associated with the Project will be temporary and will be offset by the proposed reclamation. All of the proposed impacts from the Project will occur within the Peace River Basin, and Mosaic's proposed mitigation will all occur within the Peace River Basin as well. Therefore, the cumulative impacts review requirements of Section 373.414(8)(a), Florida Statutes, and Florida Administrative Code Rule 40D-4.302(1)(b) are satisfied. The BMPs put into place will prevent adverse secondary impacts from occurring during mining, and no adverse secondary impacts are expected from the project post- reclamation. No secondary impacts to listed wildlife are reasonably expected to occur, based on the buffers and on the post-reclamation habitat that will exist. In summary, Mosaic has demonstrated by a preponderance of the evidence that the proposed project meets the permitting criteria of Florida Administrative Code Rule 40D-4.301 and associated BOR provisions. Florida Administrative Code Rule 40D-4.302(1)(a) requires reasonable assurances the proposed activities "will not be contrary to the public interest" as determined by balancing seven factors. See also § 373.414(1), Fla. Stat. For the reasons set forth below, the preponderance of evidence supports a finding that the public interest factors set forth in the statute and rule weigh in favor of issuing the permit. The Florida Legislature has recognized that phosphate mining "is important to the continued economic well-being of the state and to the needs of society." See § 378.202(1), Fla. Stat. Mosaic has demonstrated by a preponderance of evidence that both the public and the environment will benefit from the project as described above. Mining of the site will also result in a more general benefit to the public, including local residents. It is estimated that mining of the site will result in fifty million tons of recoverable phosphate rock reserves, which will be used to make fertilizer. Mosaic employs 272 people at its South Fort Meade facility and spends approximately $75,000.00 per employee per year for direct wages, benefits, and compensation. In addition, it has been estimated there are four to five persons employed in support industries for each direct Mosaic employee, considering contractors, vendors, and suppliers. The site project is expected to generate up to $23 million in severance taxes, tangible taxes, property taxes, and other benefits to Hardee County over the life of the mine. The evidence shows that the proposed activities will not cause adverse impacts to the public health, safety, or welfare or to the property of others. Fla. Admin. Code R. 40D- 302(1)(a)1. Witness Burleson established that the water quantity criteria in BOR Chapter 4 have been satisfied and that no flooding problems will occur. No environmental hazards or public health and safety issues have been identified. Section 373.414(1)(a)1., Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a)1., and BOR Section 3.2.3.1 have accordingly been satisfied. The evidence established that the proposed mining and reclamation will not cause adverse impacts to the conservation of fish and wildlife or their habitat, including endangered or threatened species, satisfying Florida Administrative Code Rule 40D-4.302(1)(a)2. and BOR Sections 3.2.2, 3.2.2.3, and 3.2.3.2. The evidence shows that the proposed activities will not cause adverse impacts to navigation or flow and will not cause harmful erosion or shoaling. Fla. Admin. Code R. 40D- 4.302(1)(a)3. The evidence shows that the proposed activities will not cause adverse impacts to fishing or recreation or marine productivity, and the lakes will enhance fishing and recreation. Fla. Admin. Code R. 40D-4.302(1)(a)4. As a matter of law, Section 378.202(1), Florida Statutes, provides that phosphate mining is a temporary activity. Fla. Admin. Code R. 40D-4.302(1)(a)5. The parties have stipulated that there will be no adverse impacts on historical or archaeological resources. Fla. Admin. Code R. 40D-4.302(1)(a)6. The evidence shows that the current condition and relative value of functions of the site landscape have been significantly affected over time by agricultural activities, causing alteration of natural streams and wetlands and low fish and wildlife utilization. A preponderance of the evidence established that these negative impacts will be ameliorated by the proposed reclamation. Fla. Admin. Code R. 40D-4.302(1)(a)7. In light of the above, Mosaic has provided reasonable assurances that Section 373.414(1)(a), Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a), and associated BOR requirements for the public interest test have been satisfied, and those criteria weigh in favor of issuing the permit. Section 373.414(6)(b), Florida Statutes, establishes the appropriate mitigation for wetland and surface water impacts associated with phosphate mines as follows: "Wetlands reclamation activities for phosphate and heavy minerals mining undertaken pursuant to chapter 378 shall be considered appropriate mitigation for this part if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities." Part III of Chapter 378, Florida Statutes, addresses phosphate land reclamation, and the Department has adopted specific regulations pursuant to this part, which are found in Florida Administrative Code Rule 62C-16.0051. For the reasons set forth below, Mosaic has demonstrated by a preponderance of the evidence that the reclamation and restoration standards in Florida Administrative Code Rule 62C-16.0051 have been met. The parties stipulated the Project will meet the safety standards in subsection (1) of the rule. Any temporary structures will be removed following mining and the area then reclaimed. Appropriate BMPs will also be installed. The Project will meet the backfilling and contouring requirements of subsection (2). Specifically, the evidence shows that the area will be backfilled and contoured to achieve the desired landforms; slopes will be no steeper than a 4:1 ratio; bank stabilization techniques will be used; and post- reclamation contouring and topography will help ensure that the reclamation plan and hydrologic response is successful. The reclamation will meet the requirement in subsection (3) that Mosaic use good quality topsoil when available and other suitable growing media to achieve the planned vegetative communities. The Project will meet the acre-for-acre requirement for wetlands because more acres of wetlands and surface waters are being proposed to be restored than will be impacted. The Department uses FLUCCS Category II to determine whether the minimum type-for-type requirement is met. Thus, the type-for-type requirement is met by looking at the forested wetlands acreage overall and the herbaceous wetlands acreage overall. Subsection (4) has been satisfied by the proposed CRP. While the herbaceous wetland fringe of the lakes is included in the acre-for-acre, type-for-type calculation, the open waters of the lake are not. The Project will meet the type-for-type requirement in the rule because, category-by- category, type-for-type, more than a 1:1 ratio of forested and herbaceous wetlands are being restored. As noted above, the wetlands and streams were mapped during the application process in accordance with the directives of the Department and the requirements of subsection (4). Where wetlands are directly associated with or adjacent to streams, restoration of both is integrated and included in the restoration plan. Non-wetland and wetland floodplains will be restored as directed by the Department in accordance with this rule. No natural lakes or ponds exist on site, thus the portion of this rule related to natural lakes does not apply. All natural streams proposed for impact will be restored foot-for-foot based on Rosgen Level II. More stream linear feet (65,700 feet) are being replaced than are being mined (58,769 feet). Therefore, the requirements of subsection (5) have been met. Subsection (6) has been satisfied after accounting for the Littoral Zone Variance described below authorized by Florida Administrative Code Rule 62C-16.0051(13). The design of the reclaimed wetlands and lakes will maximize beneficial drainage, provide fish and wildlife habitat, maintain downstream water quality, and incorporate a variety of vegetation and hydraulic zones. Greenbelts of vegetation are incorporated. Subsection (7) has been satisfied. There will be no water quality concerns either during mining or post-reclamation with the reclaimed streams, lakes, wetlands or other surface waters. Subsection (8) has been met; the Project is not expected to cause flooding, and the original drainage pattern will be restored to the extent possible. Subsection (9) has been satisfied with respect to waste disposal. Areas used for clay settling will be minimized, and only three CSAs are proposed for the site, as fifty percent of the clays generated at the site will be disposed of in previously-permitted CSAs in Polk County. Backfilling of mine cuts is the highest priority use for the site's sand tailings. No tailings will be sold. The evidence showed that sand tailings will not be permanently stored above natural grade, although temporary stock piles are authorized to facilitate reclamation. Reclamation of CSAs will occur as expeditiously as possible. Solid waste was not an issue in this proceeding. The revegetation proposed for the Project will succeed to achieve permanent revegetation and meets the requirements of subsection (10). Mosaic has submitted a plan for revegetation that lists species by species what will be replaced through planting or seeding into each of the different types of wetlands. The revegetation plan and planting tables provide clear guidance to the entire reclamation plan and will minimize erosion, conceal the effects of mining, and recognize the requirements for fish and wildlife habitat. Upland cover and forested upland requirements in the rule will be met under the CRP; the appropriate forested densities are set forth in the CRP and can reasonably be expected to be established within one year. Likewise, the wetland vegetative cover requirements in the CRP meet the rule requirements and can be easily met. As set forth above, the wetlands to be created are of the types Mosaic has successfully recreated in the past, and advances in reclamation and maintenance techniques will further ensure the vegetation plan is successfully implemented. The vegetative plans, including the stream plan, provide appropriate habitat for fish and wildlife. The best available technologies will be used to restore and revegetate wetlands. Furthermore, the vegetation plan meets and exceeds the requirements for the use of indigenous species. Native plants and grasses will be used in all native habitats. As required by subsection (11), measures have been identified and incorporated into the CRP to offset fish and wildlife values lost as a result of mining operations. Special programs to restore and/or reclaim particular habitats, especially for endangered and threatened species have been identified. A Site Habitat Management Plan has been incorporated to prevent adverse impacts to threatened and endangered species, and the proposed conservation easement and reclamation plan will protect and restore currently impaired habitat to a better condition. Specifically, Dr. Durbin testified with respect to the CRP requirements for aquatic species, including fish and macroinvertebrates; the best fish and wildlife habitat onsite will be preserved. Mr. Simpson testified regarding habitat preservation and reclamation activities, the proposed wildlife management plans, and the proposed enhancements to habitat that will benefit wildlife, including listed wildlife. Mosaic has sufficiently addressed the requirements of subsection (11) of the rule in the CRP. Subsection (12) has been satisfied. The proposed mining and reclamation schedule in the application documents comports with the rule requirements by including time schedules for mining, waste disposal, contouring, and revegetation, and the completion dates for such activities comport with the rules. Mosaic has proposed, and the DEP has indicated an intent to issue, the Littoral Zone Variance as an experimental technique to improve the quality of the reclaimed lakes pursuant to this subsection and Section 378.212(1)(e), Florida Statutes. Given the depth of the proposed reclamation lakes, Mosaic applied for, and the Department has proposed to grant, a variance from the water quality standard for DO in the lower portions of the lakes. The DO Variance from Florida Administrative Code Rule 62-302.530(31) is being sought pursuant to Sections 373.414(6)(a), 373.414(17), and 403.201(1)(a), Florida Statutes, which provide the minimum standards for DO levels in surface waters. Class III freshwater water quality standards apply to those portions of the site that constitute surface waters as defined by Florida law. For at least those reclaimed lakes that will connect offsite to downstream waters or wetlands (Lakes 1, 3, and 4), there is no dispute that Class III water quality standards would apply. The minimum water quality standard for DO in freshwater systems is 5.0 milligrams per Litre (mg/L). The evidence demonstrated that alternatives to the lakes in terms of both size and location were considered. The Department considered the proposed lakes as part of the elimination and reduction of overall wetland impacts on both South Fort Meade Polk and Hardee. On balance, it is a preferable alternative to use the available sand resulting from mining of the Hardee County portion of the South Fort Meade mine to eliminate lakes and create additional wetlands on the Polk County portion of the mine rather than utilize that sand to eliminate all lakes on the Hardee County portion of the site. This is especially true given the desire of Hardee County for recreational lakes and the Department's preference to reduce the overall acreage of the reclaimed lakes at the South Fort Meade mine. It is not feasible to make the lakes shallower given the available materials. There is no practicable means known or available for increasing DO in the deep pockets of lakes of the proposed depths that would not have a potential negative effect. This fact has been established and recognized by the Florida Legislature in Section 373.414(6)(a), Florida Statutes, which provides that the deep pits left by mining operations may not meet the DO criteria below the surficial layers of the lakes. The Legislature has further provided that a variance from the DO standard can be issued where deep lakes must be left as part of the reclamation plan. Id. The evidence established that lower DO levels may at times occur in the deep pockets of some of the reclaimed lakes to the same extent and effect as those lower levels occur in natural lakes of similar depths. This effect will occur only in the hypolimnion, or lower levels, of the lakes in the hotter summer months. The evidence likewise established that it is very unlikely that DO levels below 1.0 mg/L will occur at any time in any of the proposed reclaimed lakes. Provided the DO levels do not drop below 1.0 mg/L for any extended period of time, the only expected effect of the occasional seasonal reduction in DO in the lowest level of the reclaimed lakes will be to temporarily exclude fish from those lower portions of the lake during the summer months, which is also true of natural deep lakes. The evidence established that reclaimed lakes function well and provide habitat for fish and wildlife. Water quality standards will be met in all of the lakes other than occasional seasonal DO violations in the lower portions of the deepest lake. All water quality standards, including DO, will be met at all lake outlets and discharge points. All other applicable regulatory criteria will be met in the reclaimed lakes. Dissolved oxygen levels in the upper layers of the lakes are expected and required to meet the minimum DO criteria in Florida Administrative Code Rule 62- 302.530 and will be adequate to support healthy fish populations. The evidence showed no downstream impacts will occur due to the DO Variance for the lakes. The evidence showed reclaimed lakes support healthy fish and macroinvertebrate communities and provide recreational fishing opportunities. Even older lakes, such as the Tenoroc lakes (located in an old mining area in Polk County), provide substantial recreational fishing and wildlife utilization opportunities. This testimony was not rebutted. The evidence offered by Lee and Sarasota Counties as a means to increase DO levels in the reclaimed lakes actually demonstrated that artificially attempting aeration of a deeper lake can have negative environmental effects. Therefore, the testimony of witnesses Janicki and Merriam has not been credited. By a preponderance of the evidence, Mosaic proved entitlement to the DO Variance for the lakes pursuant to Sections 373.414(6)(a) and 403.201(1)(a), Florida Statutes. Given the location of the reclaimed lakes and as a means of experimenting with different reclamation planting techniques to create a variety of shorelines, Mosaic also applied for, and the Department has proposed to grant, a variance from the reclamation requirements in Florida Administrative Code Rule 62C-16.0051 pertaining to the planting of littoral shelves or zones around reclaimed lakes. The Littoral Zone Variance is being sought under Section 378.212(1)(e), Florida Statutes, from Florida Administrative Code Rule 62C-16.0051(6)(a) and (b), which provides minimum water zones for emergent and submerged vegetation, known as the littoral zones of the lakes. Subsection (6) of the rule provides for a twenty-five percent high-water zone of water fluctuation to encourage emergent and transition zone vegetation, and that a twenty percent low water zone between the annual low water line and six feet below the annual low water line to provide fish bedding areas and submerged vegetation zones. These vegetative zones are collectively known as the littoral zone of a lake. Traditionally, these percentages have been met in reclaimed lakes by sloping and creation of a uniform fringe of herbaceous wetland vegetation completely encircling the lake; however, such uniform fringes are not typical around natural lakes, which vary in composition and width. Rather than create a uniform band of vegetation around the lakes, Mosaic has proposed to reclaim the littoral zones around the reclaimed lakes by concentrating them in several broad, shallow areas, including the outlets of the lakes where such outlets occur (Lakes 1, 3 and 4). Of the proposed lakes, one will meet the littoral zone requirement, two will have over twenty percent of the total area in littoral zone, and the remaining lake will have a littoral zone of just under fourteen percent of the total area. The littoral zones will be reclaimed by constructing broad shelves of differing depths and planting the shelves with herbaceous wetland plant species. This design provides the environmental benefit of herbaceous vegetation at the outlet to provide increased filtration of nutrients or sediments of any water overflowing from the lakes during other high water events. This increases environmental benefits at the outlet of the lakes and has the potential to improve water quality downstream. Further, the proposed clustering of the littoral zones in several broad shallow shelves, rather than creation of a thin fringe around the lakes as is customary, will benefit wildlife and fish by creating a more extensive wetland ecosystem in lieu of the monoculture typically created by the thin littoral fringe. The proposed littoral zone clustering also creates more useable shoreline for boating, fishing, and recreational activities in the areas where the littoral zones are not clustered, with the added benefit of tending to separate the wildlife usage in the littoral zone clusters from the human usage in the upland forested areas of the shoreline where minimal littoral zones are planned. This is an experimental technique that advances reclamation methods by balancing habitat, water quality, and recreational considerations. Mosaic has demonstrated that the Littoral Zone Variance comports with Section 378.212(1)(e), Florida Statutes, and may be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Mosaic's applications for the requested permits and variances. DONE AND ENTERED this 18th day of December, 2008, in Tallahassee, Leon County, Florida. S 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 18th day of December, 2008.
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a Management and Storage of Surface Waters (MSSW) permit for a surface management system to serve its proposed development in Marion County, Florida.
Findings Of Fact PROPOSED PROJECT Celebrity is seeking a District MSSW permit to construct a surface water management system to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The entire site is within the geographic boundaries of the District. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Parts of Marion County and Alachua county have been designated as Sensitive Karst Area Basin by the District. The project site is located in the designated area. The existing land use is open pasture. The property was previously used for citrus groves. STANDING Concerned Citizens of Orange Lake Area is an unincorporated group of approximately 76 individuals who want to prevent pollution of Orange Lake. Of the 76 members, three members were present and testified at the hearing. The members attending the hearing were an artist (Riley), a photographer (Suto), and a bass guide (Solomon). Ms. Suto testified that she lives about 1 to 1 1/2 miles from the site. Ms. Riley testified that she lives next door to Ms. Suto and determined that to be over two miles away from the site. Mr. Solomon testified that he lives on the southeast side of Orange Lake approximately 1 to 1 1/2 miles from the project site. No witness testified that any member has a property interest in the subject property. Of the members who testified, none use the subject property. There was no testimony that other members use the property. Twenty-six members wrote letters of concern to the District. Ms. Suto testified to the existence of high levels of lead in her well water. WATER QUANTITY The existing land use, pasture, was used to determine the pre- development peak rate and volume of discharge. The existing surface drainage of the 75-acre project site is divided into two basins. On the north side of the property, the surface water flows toward Orange Lake. This basin is designated on the plans, sheet 3 of 16, by a "2." The south portion of the property is contained within the landlocked drainage basin which is designated on the plans, sheet 3 of 16, by a "1." The post-development flow of surface water will be in the same direction as the pre-development flow. There are no proposed development plans or encroachments into the 100- year floodplain. Therefore, there is no increase in potential for damages to off-site property or persons caused by floodplain development or encroachment, retardance, acceleration, displacement, or diversion of surface waters. There is no reduction in natural storage areas and, in fact, the proposed project increases the natural storage on site. Drainage Basin 2 The District's criterion for systems discharging to basins with an outlet is that the post-development peak rate of discharge for the 25-year, 24- hour storm event shall not exceed the pre-development peak rate of discharge for the 25-year, 24-hour storm event. The District's criteria also require that the post-development volume of discharge not exceed the pre-development volume of discharge. The retention system which ultimately discharges to Orange Lake is designed to retain the entire 25-year, 24-hour storm event through the series of basins on site. The pre-development peak rate of discharge for the drainage basin which flows to the lake is 55 cubic feet per second (cfs) during the 25-year, 24-hour storm event. The post-development peak rate of discharge from drainage basin 2 is 4 cfs. The post-development peak rate of discharge is less than the pre- development peak rate of discharge. Runoff from each RV site will be collected in an individual, ten-inch- deep retention basin. Runoff from the road will be collected in roadside swales. Runoff from the clubhouse, country store, and associated parking lots will be conveyed to drainage retention area (DRA) No. 8. The individual retention basins have the capacity to retain the 25- year, 24-hour storm event without discharging. Any surface water discharges from the individual retention basins in Basins 2A, 2B, and 2C as designated on sheet 3 of 16 will flow to DRA Nos. 4, 5, and 7, respectively. In Basin 2D, runoff from the road and RV park model sites will flow to DRA No. 6. The discharge from DRA No. 6 in the 25-year, 24-hour storm will be zero (0) cfs. In larger storms, any discharge from DRA No. 6 will flow to DRA No. 7. In the event DRA No. 7 overflows, the runoff will flow to DRA No. 5. Basins 2G and 2F are located around two existing sinkholes which currently collect stormwater runoff. In the proposed project, Basins 2G and 2F continue to drain the same area as pre-development. However, additional impervious surfaces will be placed in the drainage area. For this reason, an additional three to five feet of clean fill will be placed in the bottom of each sinkhole for filtration purposes. Basins 2H and 2I are less than one acre and currently drain off site. Berms are proposed around the property line at the basin to keep the stormwater on site. Basins 2H and 2I retain 3/4 inch of runoff over the individual basin. The runoff from Basins 2E1 and 2E flows to DRA No. 8 via a drainage swale. DRA No. 8 will retain 3/4 inch of runoff from the drainage area and is an off-line retention basin. The DRA No. 8 is equipped with a diversion box which allows the 3/4 inch of runoff to enter the DRA and then diverts the runoff from larger storms around the DRA so that the treatment volume of runoff (3/4 inch) continues to be treated in DRA No. 8 and does not mix with and discharge from DRA No. 8 during larger storms. Drainage Basin 1 Drainage Basin 1 as designated on plan sheet 3 of 16 is a landlocked basin which does not discharge to Orange Lake. In Drainage Basin 1, as in Basin 2, the runoff from the RV sites flows to the individual retention basins which retain the 25-year, 96-hour storm event. The runoff from the road flows to swales. Overflow from the basins and swales flow to the DRAs. Drainage Basin 1 does not discharge during the 100- year, 24-hour or the 25-year, 24-hour storm event, pre-development or post- development Drainage Basin 1 is designed to retain the 100-year, 24-hour storm, which is an 11 inch storm event. Drainage Basin 1 is also designed to retain the 25-year, 96-hour storm event. The 25-year, 96-hour storm event is 143% of the 25-year, 24-hour storm event. WATER QUALITY Design Criteria The District's design criteria for water quality are set out in Section 40C-42.025, Florida Administrative Code. The District's retention criteria require that a proposed system have a treatment/pollution abatement volume of 1/2 inch of runoff from the site. For discharges to an OFW, the pollution abatement volume is increased by fifty percent. Therefore, the system must have the volume to retain 3/4 inch of runoff from the site. Each retention basin retains a minimum of 3/4 inch of runoff from the site. The District's criteria regarding quantity of water discharged require a larger volume of runoff to be retained than the District's criteria regarding quality. Therefore, the retention system exceeds the District's criteria regarding quality in order to meet the criteria regarding quantity. The District's retention criteria require that the basin recover the treatment volume within 72 hours. Most of the retention basins retain more than the required treatment volume of 3/4 inch, and most will also recover, or become dry, within 72 hours. The retention basins are capable of being effectively maintained in that the side slopes and bottom of the basins can easily accommodate mowing equipment. For erosion control, staked hay bales and silt screens will be utilized on site during construction to prevent the off-site transport of soil material. Following construction, the retention basins will be vegetated with sod to prevent erosion. The District's criteria require that facilities which receive stormwater runoff from areas with greater than fifty percent of impervious surface shall include a baffle or other device for preventing oil and grease from leaving the system. DRA Nos. 1, 4, 5, and 8 are equipped with an oil and grease removal device called a baffle. The baffle is an acceptable engineering design for the removal of oil and grease from stormwater in a retention basin. The facility operation is uncomplicated. If the individual basins did fill due to a storm event greater than the 25-year, 24-hour or the 25-year, 96- hour in the landlocked basin, they would simply overflow into a DRA. No structures are involved to prevent flooding in large storm events. Water Quality Impacts The individual retention basin at each RV site is considered off-line because it does not discharge in the 25-year, 24-hour storm event. DRA Nos. 1, 2, 3, 4, 5, 6, and 7 are considered off-line because they do not discharge during the design storm. DRA No. 8 is considered off-line because of the diversion box which provides for the retention of the treatment volume and diversion of the larger storms. Off-line retention systems generally show greater pollutant treatment efficiencies than other types of stormwater treatment. The first 1/2 inch of runoff or the "first flush" of rainfall contains ninety percent of the pollutants from the site. SURFACE WATER Utilizing information and methodologies generally accepted by experts in the field of water quality, the District analyzed and projected the average surface water and groundwater quality of the discharge from the surface water management system for the proposed project. No data on runoff concentrations currently exists for RV parks. This analysis was based on a review of existing data on untreated runoff concentrations from three multifamily developments and one highway study. Because data from studies of multifamily residential and highway projects was used, the District's estimates of the untreated runoff concentrations for this project are conservative in that the actual concentrations are probably less than estimated. The District's analysis of the average quality of the discharge from the proposed system was also based on projecting the treatment efficiencies associated with the system. This analysis was done by reviewing data from documented studies previously conducted to ascertain the treatment efficiency of retention methods of stormwater treatment. Generally, retention of the first 1/2 inch of runoff removes eighty percent of the pollutants. On this project, a treatment efficiency of ninety-five percent was assumed based on the fact that the system is off-line treatment and a minimum of 3/4 inch of runoff from the site will be retained in the basins prior to discharge. The expected average untreated runoff concentrations were then educed by the expected treatment efficiencies to project post-treatment water quality of the discharge from the proposed system. These numbers were then compared to Chapter 17-302, Florida Administrative Code, water quality standards for Class III water bodies, and ambient water quality in Orange Lake. Orange Lake is classified as an OFW. Therefore, the proposed project cannot be permitted if it will cause degradation of that water body. The background data or ambient water quality data for phosphorous and nitrogen was taken from the Orange Lake Biological Report by the Florida Game and Freshwater Fish Commission in 1986. The ambient water quality for the other parameters in Table 2 of District Exhibit 2 was computed using eight years of data from a District monitoring station on Orange Lake. The projected average concentration for each constituent in the discharge from the system is less than the ambient water quality of Orange Lake. Therefore, the proposed surface water discharge will not violate state water quality standards in waters of the state. The post-development pollutant loading rates should be equal to or better than the pollutant loading rates from the use of the property as citrus or pastureland because the runoff is being retained on site and treated before being discharged. GROUNDWATER Groundwater discharges were reviewed by assessing the type of soil below the retention basin and the distance to the water table. The soil on the site contains some organic matter which is beneficial for treatment purposes. Based on the borings submitted by Celebrity, the water table, if any, is five feet or more below the bottom of any proposed retention basin. Runoff in the basin will percolate through the soil. Nutrients such as nitrogen and phosphorus will be taken up by the vegetation in the bottom of the basins. Metals will bind to the soil material below the basin. Oils and greases will be broken down through microbial degradation into nontoxic material. Groundwater discharges from the proposed system will not violate any applicable state groundwater quality standards. These standards will be met within the first three feet below the treatment basins. The standards will also be met by the time the groundwater discharge moves to the edge of the zone of discharge which is at the property boundary. The discharge from the proposed Celebrity project will not cause or contribute to a violation of state water quality standards in the receiving waters. SINKHOLES Sinkholes may form on the site. Sinkholes that form will probably be "cover subsidence" sinkholes. Cover subsidence sinkholes are those in which a void below the surface fills with the soil from above, causing a depression in the ground surface. There are four relict sinkholes on site. They are cover subsidence sinkholes. The sinkhole nearest the lake has water in the bottom. Stormwater runoff is directed away from the sinkhole. Any water which enters the sinkhole from the land surface or above will enter from the sky. The District has proposed criteria for stormwater systems in designated Sensitive Karst Area Basins. Those criteria are that 1) the water in the basins shall be no deeper than ten feet deep; 2) there should be at least three feet of unconsolidated material between the bottom of the basin and the top of the water table; and 3) the basins should be fully vegetated. The District currently applies these criteria as policy. In this project, the basins are shallow, ranging from ten inches deep at the RV sites to 2 1/2 feet in the DRAs. The basins have at least three feet of unconsolidated material between the bottom of the basin and the top of the water table. In the soil borings performed by Celebrity, the water table was shown to exist between five and fifty feet below land surface. The proposed project design meets or exceeds the proposed criteria for Sensitive Karst Area Basins. The basins will be fully vegetated or sodded with grass. Lineations or lineaments are solution features which may indicate a fracture of the underlying limestone. There may be a lineament on the site. There are other sinkholes in the area. If a cover subsidence sinkhole develops in an individual retention basin or DRA, stormwater, if any, will seep or percolate through the several feet of soil prior to reaching an aquifer. Most of the pollutants in the retention basin will meet groundwater quality standards prior to percolation and further treatment in the soil. OPERATION AND MAINTENANCE Special conditions Nos. 13, 14, and 15 on the permit will require Celebrity to inspect the system monthly for sinkhole development. If a sinkhole develops, Celebrity must notify the District within 48 hours of its discovery. Celebrity must submit a detailed repair plan within 30 days for written approval by the District. Celebrity proposes to repair any sinkholes that develop by a District- approved method. Celebrity Resorts, Inc., is a legally established corporation registered in Delaware and owns the subject property. Celebrity does not intend to subdivide the property but to sell memberships to use the property on a time-share basis. Celebrity will administratively operate the site by employing a park manager who will remain on the property 24 hours a day. If any problems occur with the basins, either he or his designee will be on site to respond quickly to the situation. The park manager will have a full-time maintenance staff which will operate the park. Celebrity will financially operate and maintain the proposed system using funds currently raised and in the future by membership fees. Celebrity is a publicly held corporation. Funds raised from the sale of stock, approximately $3,500,000, have paid for legal and administrative fees as well as the land purchase. Approximately $400,000 has been reserved to operate the facility. It will cost approximately $15,000 per month to run the park. Memberships will be sold for $300 per year. Part of the membership fees will go toward the general maintenance of the site. Maintenance of the proposed system will include regular mowing and monthly inspection for sinkholes and repair if necessary. WETLANDS IMPACTS OF THE PROJECT The property contains waters of the state wetlands and isolated wetlands. The waters of the state wetlands are those along the shore of Orange Lake. One isolated wetland exists on site in the sinkhole which is closest to the lake. The sinkhole has standing water in which lemna, or duckweed, is growing. Duckweed is a listed plant species in Section 16.1.1(2) of the Handbook. No construction is proposed in either the waters of the state wetlands or the isolated wetland. The District criteria require the review of impacts to off-site aquatic and wetland dependent species relative to the functions currently provided by the wetlands to these types of fish and wildlife. Since there will be no construction in the wetlands, there will be no impacts to the habitat, abundance and diversity, or food sources of off-site aquatic and wetland dependent species from this proposed project. No threatened or endangered aquatic and wetland dependent species were observed on site. The proposed permit application will not adversely affect natural resources, fish, or wildlife in a manner which is inconsistent with the District criteria. The proposed permit application will not adversely affect hydrologically-related environmental functions in a manner which is inconsistent with the District criteria.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petition filed by Concerned Citizens of Orange Lake Area be dismissed for lack of standing and that Celebrity Resorts, Inc., be issued a MSSW permit for its system as designed and proposed. DONE and ENTERED this 19th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Concerned Citizens of Orange Lake Area 1. Proposed findings of fact 1-6 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. 1. Proposed findings of fact 1-38 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, St. Johns River Water Management District 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1&2(1); 3-7(4-7); 8-20(8- 20); 21(2); 22-31(21-30); 32(16); and 33-107(31-105). COPIES FURNISHED: Crawford Solomon Qualified Representative Concerned Citizens of Orange Lake Post Office Box 481 Citra, FL 32681 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Nancy B. Barnard Attorney at Law St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429
The Issue There are two main issues in this case. The first is whether Respondent, NNP-Bexley, Ltd. (NNP-Bexley), has provided Respondent, Southwest Florida Water Management District (the District), with reasonable assurances that the activities NNP- Bexley proposes to conduct pursuant to Environmental Resource Permit (ERP) Application No. 43013740.004 (the Permit) meet the conditions for issuance of permits established in Sections 373.413 and 373.414, Florida Statutes (2007), Florida Administrative Code Rules 40D-4.301 and 40D-4.302, and the Environmental Resource Permit Information Manual, Part B, Basis of Review (BOR).1 The second is whether Petitioner, Dr. Octavio Blanco (Blanco), participated in this proceeding for an improper purpose so as to warrant the imposition of sanctions under Section 120.595(1), Florida Statutes.2
Findings Of Fact Blanco is a resident of Pasco County, Florida. Blanco is a trustee and beneficiary of an unrecorded Land Trust Agreement, dated December 19, 1996, known as Trust Number 99. The Trust holds title to real property (the Blanco Property) located to the south of the NNP-Bexley property. The Blanco property is approximately 100 acres and primarily agricultural. It has a narrow frontage along State Road (SR) 54, and is directly east of the Suncoast Parkway. A wetland known as Wetland A3 is partially located on the northern portion of the Blanco property. NNP-Bexley is a Florida limited partnership between the Bexley family and NNP-Tampa, LLC, and is the applicant for the ERP at issue in this case. Newland Communities, LLC, is the project manager for NNP-Bexley under a project management agreement. The ERP at issue in this case would authorize construction of a new surface water management system to serve Phase I of the Bexley Ranch Development of Regional Impact (DRI), which is a 6,900-acre mixed use, residential community. Phase one consists of a 1,717-acre residential subdivision in Sections 7, 8, and 16-20, Township 26 South, Range 18 East, Pasco County, Florida (the Subject Property), with 735 residential units, both single and multi-family, and associated improvements, including widening SR 54 and constructing Sun Lake Boulevard and Tower Road (collectively, the Project). The Subject Property is located North of the Blanco property. Like the rest of the land subject to the Bexley Ranch DRI, the Subject Property is predominantly agricultural land used for raising cattle, sod farming, and tree farming. There is little native vegetation and limited habitat value for wildlife in the uplands. The Subject Property is composed of approximately 654 acres of wetlands and 1063 acres of uplands. Most of the wetlands will be preserved, including many as part of a wildlife corridor along the Anclote River that is proposed to be dedicated to Pasco county. The Bexley Ranch DRI has been extensively reviewed. Including the DRI approval, it has received 23 separate development approvals to date. A Site Conditions Assessment Permit (SCAP) issued by the District established existing conditions on the NNP-Bexley Property for ERP permitting purposes, including wetland delineations, wetland hydroperiods, pre-development flows, drainage flow patterns, and the pre- development flood plain. The SCAP was not challenged and is not subject to challenge in this proceeding. Surface Water Management System The Subject Property accepts off-site drainage flows from the east and from the south. All drainage exits the Subject Property to the west, into property owned by the District. There is a culvert under an abandoned railroad crossing between the Subject Property and the Blanco property that directs surface water flows into the Subject Property. That culvert controls water elevations on the Blanco property. The surface water management system consists of a series of wet detention facilities, wetland creation areas, and floodplain mitigation designed to control water quality, quantity, and floodplain elevations. The design of the surface water management system was optimized and environmental impacts were reduced by using created wetlands for floodplain attenuation. Information from the SCAP was used to create pre- development and post-development Inter-connected Pond Routing (ICPR) computer models of drainage relevant to the Subject Property. The ICPR models were used to design a surface water management system that will avoid adverse on-site or off-site impacts and provide required water quality treatment. The ICPR models showed that the in-flows and out-flows to and from the Project site will not be adversely impacted by the proposed activities. The proposed surface water management system will not cause adverse water quantity impacts to receiving waters or to adjacent land, including Dr. Blanco's property. The Phase I project will not cause adverse impacts to existing surface water storage and conveyance capabilities and will not adversely affect the quality of receiving waters such that state water quality standards will be violated. The proposed water quality treatment system utilizes ponds for treatment and attenuation. Flow will be controlled by outlet structures. During construction, best management practices will be used to control sediment run-off. The surface water management system provides adequate water quantity and quality treatment and is designed to meet the criteria in Section 5.2 and BOR Section 6. Wetlands and Associated Impacts The wetlands within the Subject Property consist primarily of moderate-quality forested wetlands that have been selectively logged in the past. Previously isolated wetlands have been connected by surface water ditches. Through multiple iterations of design, direct wetland impacts from the Project were reduced from 86 to approximately of the 654 acres of wetlands on the Subject Property. Of those 24 acres, almost half are man-made surface water ditches. There will be direct impacts to 13.6 acres of wetlands that will require mitigation, which is approximately two percent of the total wetlands on the Subject Property. Most of the direct wetland impacts are the result of required transportation improvements such as roadway crossings. Secondary impacts also were considered. However, the proposed ERP requires a minimum of 15 feet and an average of 65 feet of buffer around wetlands on the Subject Property. The uplands have been converted into improved pasture or silviculture that lack native vegetation and have limited habitat value. According to the evidence, given buffers that exceed the District's criteria of a minimum 15 feet and average feet, no "additional measures are needed for protection of wetlands used by listed species for nesting, denning, or critically important feeding habitat"; and any secondary impacts from the expected residential development on a large percentage of the uplands on the Subject Property and subsequent phases of the Bexley DRI are not considered to be adverse. See BOR Section 3.2.7. Extensive wildlife surveys were conducted throughout the breeding season at all relevant times for sand hill cranes, wading birds, and all listed species. No colonies of listed bird species, such as wood storks, herons, egrets, or ibises, were found on the Project site; and no listed species was found to utilize the site for nesting. Mitigation Under the proposed ERP for the Project, approximately 80 acres of wetlands are to be created for floodplain attenuation and mitigation to offset unavoidable wetland impacts. The proposed mitigation areas are to be excavated to relatively shallow depths and planted. All the mitigation is on the Subject Property. The State's mandated Uniform Mitigation Assessment Method (UMAM) was used in this case to determine the amount of mitigation "needed to offset adverse impacts to wetlands and other surface waters." Fla. Admin. Code R. 62-345.100(1). Generally, UMAM compares functional loss to wetlands and other surface waters to functional gains through mitigation. In applying UMAM in this case, it does not appear that NNP-Bexley considered any functional loss to wetlands and other surface waters from the use of a large percentage of the uplands on the Subject Property and subsequent phases of the Bexley DRI for residential development. Apparently, impacts resulting in any such functional loss to wetlands and other surface waters were treated as secondary impacts that were not considered to be adverse because they were adequately buffered. See Finding 17, supra. In addition, "the amount and type of mitigation required to offset . . . [s]econdary impacts to aquatic or wetland dependent listed animal species caused by impacts to uplands used by such species for nesting or denning" are evaluated and determined by means other than "implementation of Rules 62- 345.400 through 62-345.600, F.A.C." Fla. Admin. Code R. 62- 345.100(5)(b). In any event, the undisputed evidence was that the uplands have been converted into improved pasture or silviculture that lack native vegetation and have limited habitat value, and there was ample evidence that UMAM was used properly in this case to determine the amount of mitigation "needed to offset adverse impacts to wetlands and other surface waters." Id. Without any evidence to the contrary, the evidence in the record is accepted. Based on the accepted UMAM evidence, wetland impacts resulted in 6.36 units of functional loss. The functional gain of the proposed mitigation calculated using UMAM is 18.19 units, more than offsetting Project impacts to wetlands on the Subject Property. Proposed Excavations for Ponds and Wetland Creation Blanco's expressed concerns focus on a 30-acre wetland to be created in the southwest corner of the Subject Property for mitigation with a secondary benefit of floodplain compensation credit. Referred to as M-10, this wetland is proposed to be created by excavating uplands to a depth of approximately two and one half feet, which is approximately half a foot below the seasonal high water line (SHWL). Because it is controlled by the railroad culvert near the property boundary, Wetland A3 will not be negatively impacted by M-10. It will not lose water to M-10 or any of the proposed excavations except in periods of relatively high rainfall, when those outflows would benefit Wetland A3. In addition, the existing Tampa Bay Water pipeline and the proposed Tower Road, located between the Blanco Property and the Subject Property, would restrict any drawdown effects from impacting Wetland A3. Mr. Marty Sullivan, a geotechnical engineer, performed an integrated ground and surface water modeling study to evaluate the potential for impacts to Wetland A3 from the excavation of a large-sized pond on the adjacent Ashley Glen property as part of a project that also was the subject of an ERP administrative challenge by Petitioner. Petitioner's challenge concerned impacts to Wetland A3 from excavation of an adjacent pond, known as P11. Mr. Sullivan's modeling demonstrated that there would be no adverse impacts to the hydrology of Wetland A3 from the Ashley Glen excavation although P-11 was larger and deeper than M-10, and much closer to Wetland A3. The bottom of P-11 came within 2 feet of limerock, in contrast to the minimum 10 foot separation in M-10. The Bexley and Ashley Glen sites are substantially similar in other respects, and the Ashley Glen modeling is strong evidence that M-10 would not adversely impact Wetland A3 or the wetlands on the Subject Property. Approximately 50 test borings were conducted throughout the 6,900-acre DRI site. The borings were done after considering the locations of wetlands and proposed activities. Test borings in Phase I were performed on the west side of the Subject Property. The findings from the test borings indicate that there is an inconsistent semi-confining layer that overlies the DRI site. Limestone varies in depth from 15 feet to 50 feet below the surface. Based upon the findings from the test borings, excavations for stormwater ponds are a minimum of 10 feet above the top of the limestone layer, meaning the semi-confining unit materials that cover the limestone will not be encountered or breached. Given the excavation depths of the various ponds, no adverse draw-downs are expected that would cause the groundwater table to be lowered due to downward leakance. While initially water would be expected to flow or move through the ground from existing wetlands on the Subject Property to the new M-10 wetland, water levels will stabilize, and there will be enough water for the existing wetlands and for M-10. There will be more water in the southwestern corner of the Subject Property for a longer period of time than in pre- development conditions. NNP-Bexley provided reasonable assurance that there will be no adverse impacts to Wetland A3 or the existing wetlands on the Subject Property from M-10 or any of the proposed excavations. Other Conditions for Permit Issuance The Project was evaluated under the public interest test found in Rule 40D-4.302. The evidence was that the public interest criteria have been satisfied. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The applicant has provided reasonable assurance that the construction, operation, and maintenance of the system will meet the conditions for permit issuance in Rule 40D-4.301 and 40D4.302. Improper Purpose Blanco has a history of opposing projects near his property, with mixed results. In this case, after Blanco learned of NNP-Bexley's application for an ERP, he met with Ms. Brewer on April 20, 2006, to discuss it. At the time, specifics were not discussed, but Blanco let Ms. Brewer know that his successful opposition to an earlier project by Westfield Homes resulted in significant expenditures by the developer and eventually the abandonment of the project by that developer. Blanco warned Ms. Brewer that, if NNP-Bexley did not deal with him to his satisfaction, and he challenged NNP-Bexley's application, NNP-Bexley would risk a similar fate. In August 2006, Blanco arranged a meeting at the University of South Florida (USF) with Ms. Brewer, NNP-Bexley's consultants, Blanco, and USF hydrologists, Drs. Mark Stewart and Mark Rains. At the time, Blanco's expressed concern was the impact of the NNP-Bexley project on Wetland A3. As a result of the meeting, it was agreed that there would be no impact on Wetland A3, primarily because it was upstream and its water elevations were controlled by the downstream culvert to the south of the Bexley property. Nonetheless, Ms. Brewer agreed to limit excavations in the southwest corner near the Blanco property and Wetland A3 to a depth of no more than two and a half feet, instead of the 12 feet being proposed at the time. NNP-Bexley made the agreed changes to the application and proceeded towards obtaining approval by the District. When Blanco learned that the NNP-Bexley project was on the agenda for approval by the District Board at its meeting in March 2008, Blanco took the position that NNP-Bexley had reneged on an agreement to keep him informed and insisted on an urgent meeting. At this third meeting with Ms. Brewer and some of her consultants, Blanco was told that the only change to the application was the one agreed to at the meeting at USF in August 2006. Not satisfied, Blanco asked that the application documentation be forwarded to Dr. Stewart for his evaluation. He mentioned for the first time that he was concerned about an increased risk to the Blanco property and Wetland A3 from wildfires starting on the Bexley property, spreading south, and utilizing dry muck resulting from the dewatering of wetlands in the southwest corner of the Bexley property as fuel. Blanco requested that the approval item be removed from the Board's agenda to give Dr. Stewart time to evaluate the documentation and advise Blanco. Blanco stated that, if forced to challenge Board approval, he would raise numerous issues arising from the entirety of the application, not just the muck fire issue and not just issues arising from activities in the southwest corner of the Bexley property. Ms. Brewer refused to delay Board approval for the reasons given by Blanco. When told that the item would not be removed from the agenda, Blanco stated that he would not challenge an approval that limited the excavations to the SHWL. NNP-Bexley refused because it was necessary to dig the pond to a half foot below the SHWL in order to create a mitigation wetland. At that point, Blanco proposed that he would not challenge a Board approval if: vegetation was removed from the mitigation areas to reduce the risk of wildfires; a fire break was constructed along Tower Road and mowed periodically; NNP-Bexley agreed in writing to never deepen the mitigation pond M-1 in the southwest corner of the Bexley property; and NNP-Bexley paid Blanco $50,000 for him to install a well for use in fighting any wildfire that might approach the Blanco property and Wetland A3 from the north. Ms. Brewer agreed to all of Blanco's demands except for the $50,000 payment. Instead, she offered to pay for construction of the well, which she believed would cost significantly less than $50,000. At that point, the negotiations broke down, and Blanco filed a request for a hearing. The District denied Blanco's first request for a hearing and gave him leave to amend. In the interim, the Board voted to approve NNP-Bexley's application, and Blanco timely- filed an amended request for a hearing. The amended request for a hearing did not mention fire risk. Instead, it resurrected the issue of dewatering Wetland A3, as well as wetlands on the Bexley property, caused by the excavation in the southwest corner of the Bexley property, which would "result in destruction of functions provided by those wetlands that are not accounted for by the District." The amended request for a hearing also raised numerous other issues. After Blanco's former attorney-of-record withdrew without objection, Blanco's present counsel-of-record appeared on his behalf and requested a continuance to give Blanco time to determine whether either Dr. Stewart or Dr. Rains would be willing to testify for him if the hearing were re-scheduled. That request was denied. During a telephonic prehearing conference on September 8, 2008, Blanco asked to add Mr. Patrick Tara, a professional engineer, to his witness list. This request was denied as untimely. Mr. Tara was available but was not permitted to testify at the final hearing; instead, Blanco was allowed to file an affidavit of Mr. Tara as a proffer. Blanco's request to present expert evidence on fire hazards from muck fires in dry conditions was denied as irrelevant under the District's ERP conditions of issuance. Essentially, Blanco presented no evidence to support any of the allegations in his amended request for a hearing. Blanco maintained in his testimony that he filed and persisted in this challenge on the advice of his experts, Drs. Stewart and Rains, and after September 8, 2008, also on the opinions of Mr. Tara. For that reason, Blanco was given the opportunity to file affidavits from Drs. Stewart and Rains, in addition to the affidavit of Mr. Tara, in support of his expressed basis for litigating this case. Respondents were given the opportunity to depose Drs. Stewart and Rains if desired. Drs. Stewart and Rains, as well as Mr. Tara, all told Blanco essentially that the excavation proposed in NNP-Bexley's plans for development probably would have adverse impacts on the surrounding wetlands. However, none of them told Blanco that there would be adverse impacts on Wetland A3; Drs. Stewart and Rains clearly told Blanco that there would be no adverse impacts on Wetland A3. It does not appear from his affidavit that Mr. Tara focused on Wetland A3, and there is no reason to believe that he disagreed with Drs. Stewart and Rains with regard to Wetland A3. As to the wetlands on the Bexley property surrounding the excavation in the southwest corner of the property, any potential impacts from excavation that Drs. Stewart and Rains might have discussed with Blanco prior to the USF meeting in August 2006 were reduced after NNP-Bexley agreed to limit the depth of the excavation to two and a half feet. When asked about the revised excavations again in February or March of 2008, Dr. Stewart essentially told Blanco that even the shallower excavations would make the surrounding wetlands on the Subject Property drier during dry conditions and that any such impacts could be eliminated or minimized by either limiting the excavation to the SHWL or by maintaining a buffer of undisturbed land around the excavation. Dr. Rains agreed with Dr. Stewart's assessment. Contrary to Blanco's testimony at the final hearing, there is no evidence that Dr. Stewart, Dr. Rains, or Mr. Tara ever advised Blanco to file and persist in this challenge. In their depositions, Drs. Stewart and Rains specifically denied ever giving Dr. Blanco such advice. Likewise, there is no evidence that any of them had any opinions to give Blanco about risk of fire hazards. In their depositions, Drs. Stewart and Rains specifically denied ever giving Blanco such opinions. There are additional discrepancies between Blanco's testimony and the deposition testimony of Drs. Stewart and Rains. Blanco swore that Dr. Stewart was unable for health reasons to testify for him. In his deposition, Dr. Stewart denied that his health entered into his decision. He told Blanco from the outset that he would not be willing to testify as Blanco's expert. Dr. Stewart only cursorily examined the materials Blanco had delivered to him and only responded to Blanco's questions in generalities. Most of their conversations consisted of Blanco bringing Dr. Stewart up-to-date on what was happening in the case. Blanco swore that Dr. Rains planned to testify for him at the scheduled final hearing until unexpected events made it impossible. In his deposition, Dr. Rains testified that he never agreed to testify as Dr. Blanco's expert and that his unavailability to testify at the final hearing was made known to Blanco when he was first asked to testify at the scheduled final hearing. He never even opened the box of materials Blanco had delivered to him and barely spoke to Blanco at all about hydrology. Most of Dr. Rains' communications with Blanco had to do with Dr. Rains' unavailability to participate. Based on all of the evidence, it is found that Blanco's participation in this proceeding was for an improper purpose--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." His more recent dealings with Drs. Stewart and Rains and Mr. Tara seem more designed to obtain or infer statements for Blanco to use to avoid sanctions than to obtain actual evidence to support a valid administrative challenge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order issuing ERP No. 43013740.004 to NNP-Bexley. Jurisdiction is reserved to determine the appropriate amount of attorney's fees and costs to be awarded under Section 120.595(1), Florida Statutes, in further proceedings consolidated with NNP-Bexley's requests for Sections 57.105 and 120.569(2)(e), Florida Statutes. DONE AND ENTERED this 17th day of November, 2008, 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 17th day of November, 2008.
The Issue Petitioners and Intervenors challenge the Department of Environmental Protection's (Department) Notice of Intent to Issue Environmental Resource Permit (ERP) No. 0142476-003 to IMC Phosphates Company (IMC) for proposed mining of phosphate at the Manson Jenkins Property (Property) located in Manatee County, Florida. The ultimate issue is whether IMC has provided reasonable assurance that the applicable requirements of Chapters 373 and 403, Florida Statutes, and relevant rules promulgated thereunder, have been satisfied justifying entitlement to an ERP.
Findings Of Fact The Parties Respondent, IMC, is a general partnership authorized to do business in the State of Florida and is the applicant in these proceedings. IMC has applied for an ERP to mine, reclaim, and conduct associated activities on the Property in Manatee County, Florida. These activities shall be referred to as the "Manson Jenkins Project." The Department administers the ERP program for various activities including phosphate mining and reviewed the ERP application for the Manson Jenkins Project. Petitioner, DCAP, is a not-for-profit corporation. Alan Behrens and Joe Fernandez reside in DeSoto County and joined in the DCAP Petition. Petitioner, Charlotte County, and Intervenors, Sarasota County and Lee County, are political subdivisions of the State of Florida. Intervenor, the Authority, is a regional water supply authority established under Section 373.196, Florida Statutes, and created by interlocal agreement to supply wholesale drinking water to its member governments and to approximately 100,000 residents of Charlotte, DeSoto, and Sarasota counties, most of whom reside in Charlotte County. Intervenors, ECOSWF and Manasota-88, are not-for-profit environmental organizations. IMC and the Department agreed to the standing of the Petitioners and Intervenors to participate in these proceedings. Environmental Resource Application General In 1993, the Legislature directed the Department and the water management districts to combine the Management and Storage of Surface Water (MSSW) program, administered by the water management districts pursuant to Chapter 373, Florida Statutes, and the Dredge and Fill Program, administered by the Department pursuant to Chapter 403, Florida Statutes, into a single permitting program, the ERP Program. The Department and the water management districts worked jointly to merge the two programs. The process was completed in 1995, when the rules implementing the ERP Program took effect. The MSSW permits were issued by the water management districts for construction activities that would significantly alter surface water flow or otherwise affect surface water management systems. The dredge and fill permits were issued by the Department for activities proposed in surface waters and wetlands. The ERPs are now issued by the Department pursuant to Chapter 373, Florida Statutes, which requires the issuance of an ERP for any construction activities in or seeking to alter certain waters and wetlands. ERP applications for phosphate mining are submitted to, processed and evaluated by, the Department's Bureau of Mine Reclamation (Bureau) pursuant to Chapter 373, Florida Statutes, and specific rules. By law and interagency agreement, the Department issues ERPs for proposed phosphate mining operations. The Bureau conducts an initial review and may request additional information. Upon review of the initial application and responses, the Bureau determines whether the application is complete. Unless waived by the applicant, the Bureau has 90 days within which to take agency action, i.e., either grant or deny the application. ERPs are divided into the construction and operation phases. During the construction phase of a phosphate mining operation, an applicant conducts the mining and related activities, including the actual preparation and mining of the land. After mining, an applicant pumps sand tailings back into the mine cuts, re-contours the land and plants the appropriate vegetation, also known as the reclamation process. After reclamation, the Department inspects the site and determines whether on-site wetlands can be properly reconnected to waters of the state. Reconnection typically occurs when the Department determines that the site functions as a self-sustaining natural system, and water quality standards are met. Following reconnection, the operational stage of the ERP begins because the property is then a natural site and self-sustained. Throughout the construction and operation phases, the Department continually inspects the property. A site will not be released from permit requirements until all permit conditions have been met. For ERP permits issued within the Southwest Florida Water Management District (SWFWMD), the Department incorporated by reference certain sections of Chapters 40D-1, 40D-4, 40D-40, and 40D-45, Florida Administrative Code, and specific provisions of the Basis of Review for Environmental Resource Permit Applications (1995) (ERP BOR), as its permitting criteria. See Rule 62-330.200(3)(a)-(e), Florida Administrative Code. The main permitting criteria followed by the Department in issuing ERP permits for activities within the SWFWMD are contained in Rule 40D-4.301, Florida Administrative Code (Conditions for Issuance of Permits), and Rule 40D-4.302, Florida Administrative Code (Additional Conditions for Issuance of Permits). Both rules became effective in 1995. Prior to the merger of the Department and the water management districts' functions under the Department's regulatory umbrella, the various districts had slightly different conditions for the issuance of permits. The Department and all of the districts developed one version of these rules, which were then adopted by the four districts (without the Northwest Water Management District, which does not implement the program) to promote uniformity. In turn, the Department incorporated the above-mentioned rules by reference. Thus, for example, Rules 40D-4.301 and 40D-4.302 are a blending of the previous MSSW rules with the previous dredge and fill rules. In evaluating ERP permit applications, the Department considers the SWFWMD's (as well as other water management districts) historical interpretation of the rules which have been adopted by the Department, although the Department is not bound to adopt former SWFWMD interpretations nor does the Department defer to the SWFWMD's interpretation of these rules. Until this proceeding, the Bureau evaluated adverse water quantity and flow impacts based on a standard that limited post-mining flows and mass volume to 105 percent and 85 percent of the pre-mining flows and volumes, respectively. As a direct result of the filing of a challenge to this policy, the Department will not rely on this policy as a basis for decision in this proceeding. See Charlotte County, Florida, and Peace River/Manasota Regional Water Supply Authority v. Department of Environmental Protection and IMC Phosphates Company, DOAH Case Nos. 01-2399RU and 01-2412RU (Settlement Agreement July 6, 2001). In this de novo proceeding, IMC has the burden to establish reasonable assurances in a variety of contexts. See, e.g., Rules 40D-4.301 and 40D-4.302, Florida Administrative Code. 2. The Manson Jenkins ERP Application Review Process On October 1, 1999, IMC submitted to the Department an application for an ERP for authorization to mine phosphate, reclaim, and conduct associated activities on the Property. The Manson Jenkins Project is an extension of the existing Fort Green Mine, which is contiguous to the Property. The Department reviewed the information contained in the initial application and issued a series of requests for additional information. IMC provided responses to these requests on February 7, June 5, July 15, September 6, and October 11, 2000. Thereafter, the Department determined that the application was complete and issued a Notice of Intent to Issue (NOI) an ERP to IMC on February 8, 2001. This NOI was published in the Bradenton Herald on February 12, 2001. The parties stipulated that "Chapters 373 and 403, Florida Statutes, and the rules promulgated pursuant thereto are the applicable law in this proceeding." However, the parties disagree regarding which specific statutes and rules apply here. 3. Draft Environmental Resource Permit The Department's NOI includes a draft ERP. This permit is issued under the authority of Part IV of Chapter 373, Florida Statutes, and Chapter 62, Florida Administrative Code. The draft ERP authorizes IMC, in part, "to mine or disturb approximately 361 acres of wetlands for phosphate mining and associated activities . . . . The mitigation/reclamation will consist of approximately 537.8 acres of wetlands . . . . The project will also disturb 1988.1 acres of uplands for phosphate mining and associated activities [and t]he reclamation will consist of 1811.3 acres of uplands . . ." in a variety of land formations. IMC voluntarily agreed to provide a two-phased Conservation Easement consisting of not less than 521 acres, consisting "of [during phase one] not less than 182 acres associated with the no-mine area of the West Fork of Horse Creek, which shall be preserved from mining associated disturbance" and, during phase two, "an additional 339 acres of created wetlands and encompassed stream associated with the West Fork of Horse" Creek. The Conservation Easement is not considered part of the mitigation offered by IMC. The Conservation Easement authorizes the Property owners to use these areas after reclamation and release of the Property. The draft ERP contains general conditions, and specific conditions requiring, in part, monitoring to assure that the proposed mitigation of waters and wetlands is completed in accordance with success criteria contained in the draft ERP; monitoring to assure that groundwater levels are maintained at appropriate levels in areas undisturbed by mining or mining related activities; and numerous other legally enforceable conditions of approval. Phosphate Mining Geological Background and Phosphate Mining Process Millions of years ago, the oceans were rich in phosphorous. At that time, central Florida was under water. Over geological time, certain organisms decayed and settled to the bottom of the ocean. After the waters receded, deposits of phosphate were covered by land. Essentially, phosphate is the product of marine deposits. Although deposits are located in other states, such as Idaho and North Carolina, the largest phosphate rock deposit in the United States is in Central Florida, including the Manson Jenkins Property. The deposits of phosphate-bearing material are referred to as the "matrix," which consists of one-third phosphate, one-third sand, and one-third clay. On the Manson Jenkins Property, the entire matrix or ore body is approximately 15 to 18 feet thick. This phosphate matrix layer is buried under a layer of soils, rocks, sand, and clay, known as the "overburden," which is up to approximately 33 feet thick. There is a layer beneath the matrix which is 150 to 200 feet thick which is a confining layer of dense clay and separates the surficial aquifer from the intermediate aquifer. The phosphate to be mined on the Property is above the bed clay and the top of the intermediate aquifer system. Because the matrix is overlain by the overburden, the only way that it can be accessed and removed is through a surface mining operation. The first step prior to any land disturbance associated with phosphate mining is the installation of a "ditch and berm" system around the proposed mining area. The ditch and berm system is referred to by the Department and the United States Environmental Protection Agency (EPA) as a "best management practice" (BMP). The ditch and berm system for the Property will be designed and installed pursuant to specific criteria. This system is designed to preclude a direct release of impacted water from the mining area to adjacent land, and wetlands or waters, such as streams. The ditch and berm system can be expected to operate appropriately and efficiently if it is constructed, operated, and inspected in accordance with the design criteria described by IMC engineers. A properly designed, constructed, and operated ditch and berm recharge system will effectively maintain water levels outside of the mine areas. A berm is a small embankment which has an inspection roadway on top which is typically 12 to 15 feet wide and has a fairly flat downstream slope. The berm is designed to be flat and stable. The primary purpose of the berm is to prevent water that is collected in the ditch from overflowing into the preserved areas and other undisturbed areas and creating, among other things, potential water quality problems. This system is also designed to prevent water that may be associated with the mining activity from moving off-site to adjacent, undisturbed areas, including wetlands or waters and to protect the ecology of the area outside of the berm. Another function of the system, including the recharge ditches, is to maintain groundwater along the boundaries of the property line so that undisturbed areas outside the mining area will remain at pre-mining conditions. Water levels are actively maintained in the ditches surrounding mining areas to assure that the mining excavations do not drain groundwater from adjacent areas. Preserved areas are also surrounded by ditch and berm and recharge systems that hydrate the area so that, for example, existing wetlands are not degraded. Prior to mining a to-be-disturbed area, the ditch portion of the ditch and berm system acts to collect water and carry it to an area where it is pumped into a recirculation system. The ditch and berm system also typically acts as a recharge system. IMC will design, construct, and operate a recharge system that will maintain the water level in the area immediately adjacent to the mine cuts. The water that is in the recirculation system consists of rainfall, water from the deeper aquifer systems, water from the surficial aquifer system that drains into the mine cuts, and runoff that is captured behind the ditch and berm systems. Prior to mining, IMC will install monitor wells at regular intervals along the recharge ditches, which will be located adjacent to either preserved areas or adjacent to property owned by someone else other than IMC, who would be concerned about drawing the water level down beneath his property. The monitor well gauges will give an indication as to the baseline water levels, the fluctuations of the water level, and the high water levels along the preserved areas. The monitor well gauges can also be read to ensure that the water in the recharge ditch is getting into the ground and maintaining the water table at the same level it was prior to mining. Water can also be drawn from nearby wells which can be used to make up the water that seeps out of the recharge system. IMC currently operates approximately 75 miles of perimeter ditches and berms at various mining operations. IMC has resolved compliance issues relating to recharge ditches (because of dewatering concerns) on the Fort Green Mine. Compliance issues, including the Four Corners Mine, have been reported by IMC to the SWFWMD. Also, IMC has had other unpermitted discharges related to its ditches and berms, which have been resolved by consent orders. Compliance issues regarding the East Fork of the Manatee River have not been resolved completely, as the SWFWMD has not closed its enforcement files. IMC will continue to act to resolve these issues until reclamation is completed around the East Fork. Notwithstanding these compliance issues and the related problems, the weight of the evidence indicates that IMC is capable of designing, constructing, and maintaining the proposed ditch and berm system, including the recharge ditches, on the Property in order to avoid past problems which resulted in, for example, dewatering of property. These problems can be significant and, if left undetected and unremedied, can cause serious consequences. Careful and timely monitoring, and continued self-reporting of non-compliance by IMC is imperative. The SWFWMD has issued a consolidated water use permit for the Property. Under this permit, IMC has reduced its daily permitted pumping by an average of over 50 percent. Prior to mining, an alternate flow way (AFW) will also be constructed to carry water that was previously flowing from the northwestern portion (boundary) of the Property to the preserved area to the south of the Property. The AFW will temporarily replace the conveyance and storage of the portions of the West Fork of Horse Creek that will be mined. The AFW is likely to be removed in years 5 to 6 of mining. See Findings of Fact 87-94. Once the ditch and berm system is in place, the land is cleared to prepare for mining. The area is mined in strips or rows. After clearing, large electrically powered draglines remove the overburden layer to expose the phosphate-bearing matrix. The overburden is cast into an open adjacent mine cut, exposing the matrix for mining. These same draglines then extract the matrix and place it in depressions created at the mine which are called "slurry wells" or "pits." The matrix is then mixed with water in the pits to form a slurry which is conveyed hydraulically through a series of pipes and pumps to a "beneficiation" plant to remove the phosphate rock product from the matrix. The recovered phosphate matrix contains phosphate rock, clay, and sand. At the beneficiation plant, the phosphate rock, sand, and clay are physically separated. The phosphate rock is stored prior to additional processing required to convert it to fertilizer at off-site facilities. The sand is hydraulically transported back to the mining areas for use in land reclamation. The clays are generated from the beneficiation process and hydraulically transported to a clay settling area (CSA) where they are dewatered prior to reclamation. IMC plans to construct and operate two CSAs on the Property. However, the weight of the evidence indicates that approval of the ERP application at issue here, does not approve these CSAs because they have to be permitted and operated under separate Department regulations. See Findings of Fact 244-247 and 268. CSAs are a repository for the clay material. They are generally built in mined-out areas and built with the overburden material that is dragline cast in the mine cut. CSAs are necessary because, unlike sand which readily drains through water, clay materials are very light; and it takes time for the clays to settle out of the water, so the water can be reused in the re-circulation system. IMC expects that the two CSAs on the Property will ultimately be designed to handle the equivalent amounts of clays that will be mined from the Manson Jenkins Project. There will also be two CSAs immediately to the east of the Property on the Fort Green Mine, which will be operating as a result of the mining on the Property. Specifically, the CSAs proposed for the Property are expected to be constructed in mined-out areas (the northeast portion of the Property) and are expected to be surrounded by engineered dams approximately 40 feet above the surrounding land surface grade. One of the CSAs will encompass approximately 540 acres and the other 520 acres. After the clay is initially settled, specialized equipment will be used to dig drainage ditches and take other steps to expedite the settling process. This will allow a "crust" to form on the top of the clay surface. Thereafter, the dams surrounding the CSA (which are composed of overburden material) will be pushed in to cover a portion of the settled clays. The area will then be primarily uplands with relatively small wetland systems present. Years ago, settling areas would be reclaimed in 10 to 15 years. Today, with special mobile equipment, CSAs can be reclaimed within 3 to 5 years. Reclamation of the CSAs on the Property is expected to be completed within the 15 year timeframe contemplated for mining and reclamation activities. Once the matrix has been removed from a mining area segment, land reclamation commences. IMC expects to use four, different land reclamation techniques, including but not limited to, crustal development reclamation and land and lakes reclamation. These methods were described in detail during the hearing. Manson Jenkins Project Pre-Mining Conditions (Historical and Current Conditions of the Property) The Property encompasses approximately 2,808 acres in northeast Manatee County, Florida, which is largely owned by FP- 1 and FP-2 Corporations. IMC has a lease to mine the Property, having obtained these rights in 1993 when IMC entered into a partnership with Agrico Chemical Company, who, in turn, acquired the mining lease in 1986. The lease prohibits the owners from using the Property during mining, until it is released from reclamation. The owners have the right to use the Property prior to mining and after reclamation. The Parties stipulated that there are no archeological or historical resources located at the Property. The Peace River starts in Polk County, north of Bartow, and flows through Wauchula and Arcadia, and southwesterly to Charlotte Harbor. Horse Creek begins in the southern portion of Polk and Hillsborough Counties and flows south through Hardee County, approximately 40 miles to the confluence of Horse Creek and the Peace River in DeSoto County. The eastern boundary of the Property is the Manatee County-Hardee County boundary line. The Property abuts land to the east that is being mined and reclaimed by IMC as part of its Fort Green Mine, and the Manson Jenkins Project is an extension of that mining operation. According to a 1940 composite aerial, as interpreted, the Property contained wetlands that had not been ditched or drained. At the time, the West Fork of Horse Creek had not been channelized. The aerial indicates that there was a line of wetlands and a series of elongated marshes strung together, like a string of sausages, running south along the West Fork, and a distinct, yet not continuous, channel running southeast toward the southern boundary of the Property. The 1940 aerial, as interpreted, also indicates that the upland areas of pines had been cut. Cattle grazing is also apparent. The upland, however, consisted of very dense and rich undergrowth of range grasses, palmettos, low shrubs, and other assorted species. As of 1950, herbaceous wetlands existed at the north end of the Property and a vegetative cover existed between that wetland and the forested portion of the Property at the southern end. At that time, there was no channelization. As of 1965, the West Fork of Horse Creek, in or around the middle of the Property, had been channelized and heavily ditched. The area in the northeastern portion of the Property had been impacted by agriculture and row crops. The wetlands had been drained and tied into these ditches. The native range had been removed. IMC and its predecessors did not participate in the drainage of the Property for agricultural purposes. The present condition of the Property is very similar to the condition as of 1965. There is an approximately 3-square-mile area north of the Property which drains through a marsh, down to the West Fork of Horse Creek. The West Fork of Horse Creek, which enters the northwest portion of the Property, bisects the entire length of the Property in a north-south direction, and is channelized. The West Fork of Horse Creek is a first order stream because of its location in the watershed. See Findings of Fact 234-236. There is a headwater marsh area which leads into the northwestern portion of the Property and is part of West Fork of Horse Creek. The uppermost portion of the West Fork on the Property, which will be mined, has been referred to as "a channelized or ditch portion" or a "wide ditch." This includes the headwater marsh area. There is a "complex of wetlands" in the northwest corner of the Property which contribute water flow down the West Fork. There is a large ditch in the middle of the headwater marsh which conveys most of the water through the system and down the center of the Property. This portion of the West Fork of Horse Creek does not have the upland vegetation that is usually associated with a stream bank. Its ecological value is less than what is generally found in other first order stream or headwater systems. While the experts diverge on this issue, the weight of the evidence indicates that while the headwater marsh area to the north of the Property and in the northern portion of the Property has hydrological importance, the West Fork of Horse Creek is not a regionally significant stream. The weight of the evidence indicates that the West Fork of Horse Creek is a tributary of Horse Creek which, in turn, is a tributary of the Peace River. However, it is unclear whether the West Fork of Horse Creek is a work of SWFWMD. Assuming that it is, reasonable assurances have been provided that this project will not cause adverse impacts to the West Fork of Horse Creek in light of the mitigation offered by IMC and the proposed reclamation of the area and the reasonable expectation that this area will be improved from its current state. See Finding of Fact 257. There is also an area on the West Fork of Horse Creek and to the southeast of the Property (Section 13) which will be preserved and not mined, which is a combination of a channel system and forested uplands and wetlands. Walker Road runs north and south and is located in the middle and west of the West Fork of Horse Creek on the Property. Walker Road follows the proposed AFW. There is also a dirt or shell road which runs west to east across the West Fork of Horse Creek on the Property and a spillway structure at this location. The spillway structure was used by the landowner in agricultural practices to control the flow of water to irrigate the crops in the northeastern portion of the Property. The Property is located in the West Fork of Horse Creek, Manatee River, and Myakka River Basins, and in the far western part of the Peace River Basin. IMC's ERP Application contains approximately 300 acres, west of Walker Road (part of Sections 2 and 11) and in the northwestern portion of the Property in the Manatee River Basin. (Approximately 17 acres of wetlands in this area will be mined and will be replaced with approximately 51 acres of wetlands. See Findings of Fact 95-96 and 211.) This area is not part of the Development of Regional Impact approved by Manatee County, although IMC plans to request permission from Manatee County to mine this area, and if approved, IMC would mine less than 200 acres. This portion essentially drains into the Manatee River. Further, IMC has included the southwest triangle of these 300 acres as a preservation area. This area contains, among other land covers, mixed wetland hardwoods and freshwater marshes. There is another portion of the Property in the Myakka River Basin, approximately 32 acres, located in the southwest corner of the site. (There is also a small wetland in this area consisting of approximately 4 acres of wetlands which will be replaced with approximately 12 acres of wetlands. See Findings of Fact 95-96.) This portion drains through a drainage ditch and eventually enters Wingate Creek and the Myakka River. The balance, and by far the largest portion of the Property, is located in the Peace River Basin. After leaving the Property boundary to the south, the West Fork of Horse Creek joins the main branch of Horse Creek approximately 3 to 3.5 miles south of the Property line. Horse Creek then joins the Peace River approximately 30 miles from the Property boundary. The Peace River then empties into Charlotte Harbor approximately 40 miles from the Property. Today, the predominant land use on the Property are improved pasture and agricultural ditches. In order to achieve this cover and use, an extensive surface drainage system was constructed to drain isolated marshes into the West Fork of Horse Creek and to reduce the flood stage elevations within the creek itself. In areas with less extensive ditching, the existing vegetative communities more closely approximate natural systems. The improved pasture has been planted with bahia grass and other exotic pasture grasses. In recent years, a large portion of the pasture area has been converted into a sod farm and the sod has been stripped from that area leaving a large area of bare semi-vegetative soil. The Property is not pristine or close to its original condition, although, as argued by Charlotte County and others, portions of the Property do provide ecological functions. The wetlands on the Property have been subjected to extensive agricultural ditching. The main ditch is quite wide and deep, and there are many side ditches that proceed into smaller wetlands. There are also some lands that have not experienced conversion to improved pasture which, for the most part, are scheduled for preservation. IMC plans to mine, in part, the channelized portion of the West Fork of Horse Creek from north to south to the preserved area where the more heavily vegetated and forested portion of the natural stream channel of the West Fork of Horse Creek is located. This area will be blocked off during mining by a ditch and berm system. IMC will construct an AFW to carry the water that was previously flowing from the northern area (that is not part of this project and is not owned by IMC) around the area to be mined in the stream channel, which will be reconnected into the preserved area to the south. See Findings of Fact 87-94. From a hydrological standpoint, the to-be-mined marsh and channelized stream segment will be replaced with a flow- through marsh and recreated stream segment that connects the area to the north with the preserved portion of the West Fork of Horse Creek. The uplands will be placed back to the same elevations existing pre-mining and additional wetlands added. The marsh and the vegetative part of the stream will be slightly bigger. Proposed Mining Activities (Mine Sequence for the Property) IMC proposes to mine 2,348 acres of the 2,808 acres on the Property in approximately 6 to 9 years. The mining activities at the Property will follow the general sequence outlined above. Reclamation is expected to begin within 3 to 4 years after the commencement of mining operations, except for the CSAs. The mining and reclamation activities are expected to completed within 15 years. IMC will construct an AFW in year one (and prior to mining) of the mining activities. The AFW should be tied into the preserved area in the southern portion of the Property as soon as feasible in order to minimize the impacts to this area and downstream. The AFW is necessary because IMC intends to mine approximately 1.6 miles of the channelized or ditched marsh and stream portion of the West Fork of Horse Creek located in the northwest to middle portion of the Property. The AFW is designed to temporarily replace the conveyance and storage of the portions of the West Fork of Horse Creek that will be mined north of the preserved area. The AFW will carry water that was previously flowing from the northwestern boundary of the Property to the preserved areas to the southern portion of the Property. In this manner, if constructed and operated properly, it is expected that the proposed mining and related activities at the project area will not cause adverse flooding to on-site or off-site property and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Further, the AFW and downstream areas will not be expected to suffer from erosion as a result of the installation of the AFW. The slopes and bottom of the AFW will be a vegetated channel designed to receive surface water runoff from the area north of the Property and convey it southward and then eastward back into that portion of the West Fork of Horse Creek on the Property which is part of the area being preserved in the southern portion of the Property. The bottom of the AFW will be vegetated with wetland type vegetation and will provide a habitat for fish and other wildlife. The AFW will not be used until the vegetation has become established. Vegetation is an effective method for minimizing erosion in a flow way or stream as described here. The design recommendations also require that the ends of the access corridor be stabilized so if they are subjected to overflow during the 25-year or 100-year storm event, they will be protected from erosion. Any sharp bends in the AFW will be stabilized prior to being put into service. The size of the AFW (50 feet wide) was revised and adjusted so it could carry the expected flows without backing the water up and causing water elevation to be above that which existed historically. The actual design of the AFW has been modified in accordance with the ERP conditions. The Draft ERP, "Specific Condition 4. c." provides: An alternate flow way shall replace the headwater marsh and wetlands of the West Fork of Horse Creek during site preparation, mining, and until the reclamation is re- connected. The alternate flowway will begin south of the north project boundary and end at the north end of the preserved wetlands, as shown on Figure IV F. The alternate flowway will convey water from areas north of the north project boundary south into the unmined portions of the West Fork of Horse Creek. The AFW shall be constructed as a trapezoidal channel with a minimum bottom of with [sic] of 50 feet and side slopes no steeper than 3 ft horizontal to 1 foot vertical, (3H to 1V). A recharge ditch and associated berms shall be placed along the entire east side and portions of the west side of the alternate flowway as noted in Figures IV F and IV F(a). To ensure maximum water quality treatment, the flowway will be planted with a variety of herbaceous wetland species such as pickerel weed Peak level recording devices will be placed at the north end, south end, and just north of the half Section line of Section 11. The top of the recording tube and the cross section elevations of the alternate flowway will be surveyed at the time of installation. This data will be submitted with the first monitoring report. Stream flows will be measured in conjunction with the quarterly mine inspection at each peak level station until the reclamation is reconnected to the West Fork unmined area. IMC-Phosphates shall submit monthly flow data and rainfall data to the bureau for review and approval. IMC-Phosphates shall not conduct any activities that result in a violation of Class III water quality standards within the West Fork [of] Horse Creek flowway. If at any time the water quality fails to meet [C]lass III standards, the bureau shall be immediately notified and corrective measures implemented. The reconstructed stream channel, like the AFW, will be vegetated and not placed into service until the vegetation is established. IMC proposes to disturb 361 acres of jurisdictional wetlands on the Property. This acreage comprises approximately 4, 17, and 330 (approximately 351 acres according to Dr. Durbin) acres in the Myakka, Manatee, and Peace River Basins, respectively. The balance of the Property will be reclaimed as uplands. See Findings of Fact 218-219. IMC will reclaim 538 acres of wetlands for the 361 acres of disturbed wetlands, consisting of approximately 12, 51, 475 acres of wetland mitigation in the Myakka, Manatee, and Peace River Basins, respectively. IMC proposes to preserve approximately 316 acres (approximately 45 percent of the wetlands on-site) of jurisdictional wetlands on the Property, including over 70 percent of the forested wetlands on-site. By eliminating existing agricultural ditching and providing appropriate mitigation, and by providing upland buffers around the wetlands, the post-reclamation condition of the Property is expected to be better than the current condition of the Property. Conditions for Issuance Water Quantity Impacts Surface Water General During the final hearing, substantial evidence was presented concerning the potential impact of mining on surface water flows across the Property and downstream. Pursuant to Rule 40D-4.301(1)(a) and (b), Florida Administrative Code, an ERP applicant must provide reasonable assurance that its proposed activities will not cause adverse water quantity impacts to receiving waters and adjacent lands and will not cause adverse flooding to on-site or off-site property. Dr. Garlanger is an expert in hydrology and hydrologic modeling with special expertise in surface and ground water systems associated with phosphate mining operations and reclaimed mined lands. IMC requested Dr. Garlanger to assess the potential impacts of the proposed mining and reclamation on the hydrology of the Property, and also to assess the potential hydrological or hydrogeological impacts downstream from the site to wetlands or waters of the state. Dr. Garlanger used models to assist him in assessing the nature, scope, and the extent of any future impacts resulting from the phosphate mining. Modeling requires the making of calculations relating one variable to another. Scientists, such as Dr. Garlanger and others who testified during this final hearing, who run comparative water balance models to calculate the differences in daily stream flow leaving a project site at the project boundary, must take into account several factors associated with the hydrological cycle, including the following: 1) the typography of the site; 2) the hydraulic conductivity or permeability of different soil levels; 3) the transmissivity of the different aquifer systems; 4) the geometry of the stream channel; 5) the amount and timing of rainfall on-site; 6) the amount of surface runoff; 7) the amount of evapotranspiration (ET); 8) the amount of deep recharge to the Floridan aquifer system; 9) the amount of groundwater outflow, including that portion of which makes it to the stream and becomes base flow; and 10) the temperature, wind speed, and amount of solar radiation, because they control ET. Each of these issues was reasonably evaluated by Dr. Garlanger. The weight of the evidence supports the accuracy, completeness, and conclusions of Dr. Garlanger's modeling work. Dr. Garlanger has been reviewing hydrological aspects of mining projects since 1974 for phosphate mining projects that require hydrological and hydrogeological analysis reflecting the unique aspects of mining operations. Dr. Garlanger explained how professional judgment was applied in his engineering calculations and how his model input data are reasonable. He also explained that he used reasonable information estimates to conduct this particular modeling work, which are consistent with measured data. Surface water flows are dependent on two sources: rainfall runoff from adjacent areas and groundwater that enters surface water streams and is sometimes referred to as "base flow." The weight of the evidence demonstrated that during mining activities the act of confining mining areas by the ditch and berm system would capture the rainfall runoff on these areas and thus reduce that rainfall runoff contribution to the ditched segment of the West Fork of Horse Creek (prior to the time that it is mined), the AFW during its operation, and the reclaimed West Fork of Horse Creek (during the time that mining continues to occur in the vicinity). During the active mining and reclamation activities, the ditch and berm system operates to maintain groundwater levels in areas undisturbed by mining at pre-mining conditions. Water levels are actively maintained in the ditches surrounding mining areas to assure that the mining excavations do not drain groundwater from adjacent areas. Thus, during the active mining and reclamation activities, the base flow component of surface water is not likely to be affected. The weight of the evidence demonstrates that the base flow contribution to surface water flows through the AFW, when operational, will be somewhat higher than is present in the West Fork of Horse Creek during pre- mining conditions. After mining and reclamation are complete, the ditch and berm systems will no longer be needed and present at the Property, and thus rainfall runoff is not expected to be captured thereby. More wetlands, however, will be present at the Property after reclamation is completed than are now present. These wetlands tend to "use," through ET, more water than a comparably sized upland area. Thus, after reclamation is completed, there will be a reduction in the amount of water contributed from the Property to the flow of water in the reclaimed and preserved portions of the West Fork of Horse Creek. The weight of the evidence indicates that the proposed mining and reclamation activities at the Property will not cause any adverse impacts on surface water quantity at the Property during active mining and reclamation or thereafter, and that there will be no adverse impacts at downstream locations. 2. Rainfall Predictive modeling was carried out by Dr. Garlanger to assess the potential significance of rainfall runoff capture and base flow reductions anticipated during mining and after reclamation of the Property. The model efforts simulated stream flow conditions on a daily basis, assuming that the Property experienced rainfall of the same frequency and duration as had occurred during a 19-year period from 1980 to 1998 at the Wauchula rainfall gauge. The amount of rainfall drives the hydrological model because it determines the amount of groundwater outflow, the amount of surface water runoff, and basically determines the amount of stream flow. The volume and timing of rainfall are important factors to consider; information regarding the variability of rainfall is a critical input into any model. In mining operations, discharge volumes correspond directly to rainfall. When rainfall volumes increase, mining operations' discharges increase. When rainfall volumes decrease, mining operations' discharges decrease. Thus, rainfall is the primary controlling factor in the volume of water discharge from a phosphate mine. The Property is located in the Peace River Basin. See Finding of Fact 75. Information is available from the National Climatic Data Center (Center), the government archive for climatic data, which indicates the occurrences of annual rainfall in the Peace River Basin between 1933 and 2000. The Center is a reasonable source of rainfall data. From 1933 through 2000, the arithmetic average of the rainfall in the Peace River Basin was 52.3 inches. (The average rainfall was collected from five stations throughout the Peace River Basin and then averaged.) However, within this period, there is significant variation in rainfall between the high and low rainfalls. There have only been four occurrences when the rainfall has been between 51 and 54 inches during this time frame. The record low rainfall of 35.9 inches occurred in 2000 in a significant drought year. The highest rainfalls have been in the 72 to 75-inch range and near 75 inches on two occasions; thus, a model must be based on more than one year of data. Dr. Garlanger examined the daily rainfall for a 19- year period between January 1980 and December 1998. This rainfall was measured at Wauchula, which is a town in the Peace River Basin almost due east of the Property and located on the Peace River. The weather station collects daily rainfall data and the Center is the source of this information. The average rainfall at Wauchula for this 19-year period is 52.17 inches, similar to the 1933 through 2000 period mentioned above, and also indicates that there is significant daily variability of rainfall. The claim that the accuracy of Dr. Garlanger's modeling is questionable because IMC's modeling "only uses rainfall information from the Wauchula rain gauge" is not persuasive. Dr. Garlanger reasonably chose this particular period of time, 1980 to 1998, and the location for several reasons. First, the data was available from the Center and is reliable. Second, the average rainfall that he used in the Peace River Basin is the average from five stations in the Basin, not just from one station. Third, Dr. Garlanger also considered the data from a rain gauging station approximately 3 miles downstream from the Property where Horse Creek crosses State Road 64, and the average rainfall was about 52.2 inches, which is similar to the 19-year period of data for the Peace River Basin. It is also argued that Dr. Garlanger "fabricated certain rainfall data." In rebuttal, Dr. Garlanger agreed that a data gap of approximately 7 months existed in the rainfall record at the Wauchula station, which he used. He described the efforts made by his assistant in supplying data for the missing period of record, which included an examination of the average rainfall for the other 18 years, for a particular day which was missing from the original data set. The weight of the evidence shows the calculations for these missing months out of the entire 19-year record did not adversely affect the overall conclusions of Dr. Garlanger's modeling work, including the predicted impacts. It is also suggested that Dr. Garlanger's modeling work improperly "omits a 3 square mile of the West Fork of Horse Creek watershed . . . that is critical to judging environmental impacts and changes in flow on the Manson Jenkins Property." While the entire Horse Creek watershed exceeds 200 square miles, an area of approximately 10 square miles composes the Horse Creek watershed upstream of the Property. A portion of IMC's Fort Green Mine is located in the West Fork of Horse Creek watershed. This portion of the Fort Green Mine includes approximately 3 square miles of catchment area. While IMC's Fort Green Mine is not currently contributing surface runoff to the West Fork of Horse Creek, the 3 square miles lying in the Fort Green Mine catchment area still comprise part of the overall Horse Creek Basin. In order to properly evaluate any impact on existing flow expected from Manson Jenkins activities, Dr. Garlanger reasonably did not select the 10-square mile historic basin, which would include the 3 square miles of Fort Green Mine catchment area and which, if included in the modeling assumptions as part of the watershed, would produce more favorable, higher flows. Rather, Dr. Garlanger reasonably used the current condition or baseline condition, which is the approximately 10 square miles of the historic basin minus the 3- square mile catchment area of the Fort Green Mine, approximately 6.2 square miles, in order for a valid comparison to be made of the potential effects that Manson Jenkins activities would have on existing flow. Dr. Garlanger's exclusion of this 3-square mile area in his modeling for the project was prudent to predicting what, if any, flow impacts would occur on a daily basis and under existing conditions. Dr. Garlanger's modeling work reasonably predicted both (1) the runoff that would occur on a daily basis over the next twenty years if no mining were to occur and (2) the runoff that would occur given the same rainfall record during mining and post-reclamation conditions at the Property. It was reasonable to use the same rainfall record in comparing these two scenarios in order to get a model comparison that accounted for pre-mining, during-mining, and post-reclamation conditions. 3. Evapotranspiration The reasonableness of Dr. Garlanger's modeling work is illustrated by the predictive accuracy of Dr. Garlanger's ET data as compared to measured data. Dr. Garlanger's model estimated ET on a daily basis, and the same ET values were used by Dr. Garlanger for the same types of vegetation cover. Dr. Garlanger compared the predicted daily ET with the ET calculated on actual, measured stream flow data along with the estimate of the rainfall in the Horse Creek Basin for the period from 1980 through 1998. Dr. Garlanger's predicted ET for the Property was 39.2 inches per year. The ET data from Horse Creek at State Road 64 is 40.3 and at State Road 72 is 39.9. Thus, Dr. Garlanger's predicted ET was within 2 percent or 3 percent of the data from these stations where the stream flow was measured. 4. Flow Impacts Using the reasonable meteorological data assumptions noted above and applying accepted hydrological and other physical laws, Dr. Garlanger used the model to predict anticipated flow conditions at the Property and downstream. The modeling results demonstrate that flow in stream segments which receive rainfall runoff and base flow contribution from the Property would be reduced only during the relatively small percentage of time that the streams would normally exhibit high flow conditions. For example, at the southern Property boundary line, the flow in the West Fork of Horse Creek during active mining and reclamation activities is predicted to be reduced only during the higher flow periods which exist for 10-20 percent of the time during the year. For the remaining 80-90 percent of the year flow reductions are not anticipated. After reclamation is completed, flow in the West Fork of Horse Creek at the Property line is predicted to be reduced only during approximately 5 percent of the time during the year when high flows are experienced in the stream. The only impact of the anticipated flow reductions during high flow periods at the Property boundary will be to reduce the depth of the water within the channel of the stream at that point. At the southern boundary of the West Fork of Horse Creek as it leaves the Property boundary, during the operation of the AFW, there should be no decrease in average stream flow, and there may even be a net increase in stream flow. During years 6 through 13 of the mining/reclamation sequence, or the mine life, Dr. Garlanger calculated there would be a decreased stream flow leaving the Property boundary of approximately 1.4 cubic feet per second (cfs) on an annual average basis as a result of mining activity, assuming the average rainfall during that period is 52 inches and the area has the same rainfall distribution as in Wauchula from 1980-1998. (The 1.4 cfs decrease applies downstream as well, but reflects Dr. Garlanger's worst case assumption.) Dr. Garlanger further testified that the slight decrease in flow in the Horse Creek, corresponding to a decrease in flow depth of a few inches when the flow depth in the Horse Creek is between 7.5 feet and 12.8 feet, will not cause adverse water quantity impacts. Dr. Garlanger compared on a daily basis the predicted reduction in stream flow resulting from mining to the baseline pre-mining condition. This allowed Dr. Garlanger to predict the effect on the depth of water in the stream channel at various points in time during both high flows and low flows. Significantly, Dr. Garlanger's modeling work indicates that during higher rainfall events, that is, high flows, when most of the runoff would occur, the greatest effect as a result of mining occurs. Predictably, during the period when there are no rain events or small rain events, that is, when there is low flow, Dr. Garlanger's calculations show the Manson Jenkins activities have virtually no impact on flow. Consequently, the effects of IMC's proposed mining and reclamation activities are consistent with the permitting rules because IMC's mining activities will reduce rather than cause adverse flooding. Water leaving the Property travels downstream to Horse Creek and the Peace River and ultimately to Charlotte Harbor, about 40 miles downstream from the Property's southern boundary. Dr. Garlanger also assessed the timing and magnitude of flow reduction impacts at several points in these downstream locations. Once again, slight flow reductions during high flow conditions were predicted for downstream segments of Horse Creek and the Peace River with the magnitude of the flow reductions decreasing significantly as one moves farther downstream from the Property. It is expected that such reductions in depth will have no ecological significance. During low flow periods, no flow reduction impacts were predicted at these downstream locations. The flow in the Peace River at Arcadia and at Charlotte Harbor over the next 19-year period is not expected to be lower than the measured flow existing during the previous, historic 19-year period, such that any change will have an adverse water quantity impact. Water flowing from the Property ultimately enters the Peace River at a point downstream from the Arcadia gauging station where measurements are taken to control the ability of the Authority to withdraw water for municipal water supply purposes. Accordingly, the predicted reduction in flow during high flow conditions resulting from the permitted activities at the Property cannot be reasonably expected to adversely affect the Authority's legal rights to withdraw such water. See Findings of Fact 248-249. The Authority's water intake structure is located upstream (on the Peace River) of the confluence of Horse Creek and the Peace River. The predicted small reduction in flow during high flow conditions attributed to activities at the property, will have little or no impact on the Authority's capacity to withdraw water at that point. Furthermore, the freshwater-saltwater interface in the Peace River will be well downstream of the intake structure and cannot be expected to be impacted by any reasonably predicted reduction in freshwater flow caused by activities at the Property. The persuasive evidence in the record indicates that the predicted impacts calculated by permit opponents on the Peace River flow resulting from mining were not accurate. For example, pre-mining flow from both the wet season and the dry season is not identical and the calculation of average annual flow does not properly match wet and dry season flows. Additionally, the water quantity calculation errors included using the wrong number of days for both wet and dry season average flows, which overestimated the impact by 50 percent for the dry season and 100 percent for the wet season. Certain assumptions made by permit opponents concerning flow reductions due to industry-wide mining are not reliable. The assumptions concerning the amount of land that would be mined after 2025 exceeded actual available land to be mined by a significant percentage. It was assumed the area to be mined after 2025 is approximately 161,000 acres, when the amount of land that could be added to mining is less than 20,000 acres. (A high-side number might result in another 40,000 acres mined after 2025, which is approximately 25 percent of the estimates.) The overestimate of these assumptions resulted in a 100 percent higher reduction in flow in the Peace River at the Authority's water withdrawal point than would modeling estimates using reasonable assumptions. 5. "No-Flow Days" Analysis The record does not support the claim of an increase in the number of no-flow days in West Fork of Horse Creek at the Property boundary. The record shows there was no accounting (by party opponents) for the fact that flow from direct runoff is actually distributed over a period of time. The model incorrectly had runoff from a storm occur all on the day of the storm, rather than over a period of days. Contributing stream flow from the undisturbed area located upstream of the Property was also not considered. Dr. Garlanger's modeling data was not accurately transferred, and there is evidence that had the correct flow data from Dr. Garlanger's work been used, the increase in no-flow days would not have been calculated as they were and relied upon. Further, in rebuttal, and contrary to permit opponent's suggestion that Dr. Garlanger did not estimate no-flow days, Dr. Garlanger reevaluated his calculations and reconfirmed that, while there is an expected reduction in the flow, there is no increase expected in the number of no-flow days. Dr. Garlanger's modeling work is both professionally competent and reasonable in predicting Manson Jenkins activity flow impacts. 6. Model Calibration It is also argued that Dr. Garlanger's modeling work was "not calibrated." However, this argument is rejected based on the weight of the evidence. Dr. Garlanger explained that the model used for the Manson Jenkins Project was calibrated by the models used at another phosphate mine (the Ona Mine tract) located a few miles east of the Property. He also used the same input parameters for the Farmland-Hydro Mine in Hardee County. In this light, the model provided Dr. Garlanger with a reasonable estimate of both pre-mining or baseline condition and the post-reclamation condition, and also furnished him with a basis to estimate impacts during mining. In Dr. Garlanger's professional judgment, every input parameter used for the project's modeling work was reasonable and is accepted. Additionally, Dr. Garlanger compared the project groundwater outflow for the different sub-basins and found the outflow averaged 7.5 to 7.8 inches per year for all basins. Dr. Garlanger testified the measured groundwater outflows reported by W. Llewellyn, United States Geological Survey, averaged 7.7 to 8.9 inches per year in the Horse Creek Basin. Thus, Dr. Garlanger's modeling work, as to the groundwater component, was reasonably good predictive work. Furthermore, as discussed herein, the ET rate is one of the most important factors in determining the amount of water available to be discharged through the stream system. There is persuasive evidence that Dr. Garlanger calibrated the IMC model for ET. When referring to calibration, Dr. Garlanger referred to estimated ET from the different vegetative types on the Property. In this manner, Dr. Garlanger used the estimate of the average annual ET for the upland and for the upland wetlands. ET cannot be directly measured. Rather, it must be determined indirectly. Thus, estimates of the average annual ET are made by the modeler exercising professional judgment. The average daily ET value used in the modeling was determined based on total ET from the entire 218-square mile Horse Creek Basin down to the gauging site at Arcadia. Dr. Garlanger then determined what portion of the basin was upland, wetlands, or riverine wetlands, and what the ET values were for each of those systems. In disagreeing with Dr. Garlanger's model, permit opponents imply that Dr. Garlanger's ET numbers are unreliable as they "came from information . . . that indirectly measured ET for wetlands in the Everglades." Dr. Garlanger's initial ET used 50 inches per year for both riverine and upland wetlands. However, Dr. Garlanger knew that total ET rates for the system-types on the Property range between 36 and 39 inches per year. Thus, he had discussions with other hydrologic experts about his concern of using 50 inches of ET per year for both riverine and upland wetlands. In order to evaluate the appropriate ET rate for the Property, Dr. Garlanger also reviewed data from a study containing indirectly measured ET for wetlands in the Everglades, which systems can be compared to the wetlands at the Property. The Everglades data was contained in a scientific paper concerning a study performed in the Everglades by ecologists, limnologists, and physicists where they indirectly measured ET under various conditions. The Everglades professional study assisted Dr. Garlanger and other experts in determining, based on their professional judgment, what would be the appropriate and reasonable ET rate to use in the IMC model. 7. The Department's Review of the Models The Department, by and through the Bureau, reviewed the ERP Application for, among other things, comparison of pre- mining with post-mining conditions, the use of the AFW, and the best management practices of IMC, and concluded that reasonable assurances to issue the permit were provided under the permitting rules. Furthermore, the Department will continually evaluate the project's effects by the ongoing monitoring for impacts to site conditions, and the Department will perform quarterly inspections. It is typical for the Department to rely on the models and permit information that is submitted by the permit applicant's professional engineer. While Mr. Partney did not necessarily agree with portions of Dr. Garlanger's model analysis, he stated that "this approach is fine for planning and checking the feasibility of a plan." Mr. Partney maintained that, in his professional opinion, because the reclamation activity would result in a net improvement of the environment on the Property, an approximate 5 percent annual average decline in flow was not a concern. (Dr. Garlanger stated that a 5 percent or greater reduction of annual average flow is significant. However, for the reasons stated herein, Dr. Garlanger felt that the impacts would not be adverse.) Groundwater In the vicinity of the Property, groundwater is present in the unconfined surficial aquifer within the overburden and matrix and in the underlying confined intermediate and Floridan aquifer systems. Surficial groundwater levels in areas not disturbed by mining will be maintained by use of the ditch and berm system. Dr. Garlanger presented credible evidence that after reclamation, groundwater levels return to pre-mining elevations. Credible evidence was presented that in some cases, slightly more groundwater outflow to the streams and preserved areas is expected than to the same areas prior to mining. During active mining operations, there will be a short-term reduction in recharge of groundwater to the deeper aquifer systems in the immediate area of mining. This short- term reduction has no adverse impact upon water supply availability in the underlying aquifer systems and is largely offset by the increase referred to above. Underlying the CSAs, deep groundwater recharge will be increased over that experienced normally during the timeframe that the clays are settling. Once the clays are fully settled, deep recharge in these areas will be within the range that occurs naturally in the vicinity of the Property. Flooding 1. General Modeling submitted by IMC as part of the ERP application demonstrated that off-site flows after mining and reclamation would be in compliance with design requirements set forth in the 1995 SWFWMD Basis of Review adopted by reference by the Department. The AFW is specifically designed to assure that during its operation it had the capacity to carry anticipated flows from the drainage area north of the Property during high peak flow conditions without causing water to back up and flood that area or to cause flooding at downstream locations. After mining and reclamation, the reclaimed West Fork of Horse Creek will have sufficient capacity to handle anticipated storm events without causing flooding. The increased wetland acreage after reclamation will provide additional storage and attenuation of flood flows and, therefore, may actually reduce the possibility of flooding. It is asserted that IMC "did not evaluate the impact of long-duration flooding events." But, the ERP permitting criteria did not require long-duration flooding analysis of the natural systems as a condition for issuance of the permit. Even if IMC were obligated under the rules to specifically address long-duration flooding, the record shows there are no predicted adverse impacts from Manson Jenkins activities concerning long- duration flooding because the modeling shows any "event flooding" is likely to drain off before an adverse impact to a natural system would occur. 2. Recharge Ditches There is no substantial evidence to support permit opponents' claim that the flood analysis needs to be "redone" because of IMC's failure to account for the effects of seepage from the recharge ditches on the AFW. Dr. Garlanger predicted that the recharge ditches would result in an additional 3.26 cfs of flow in the AFW. Opponents' expert Mr. Zarbock testified that this additional increase was a reasonable calculation. Adding 3.2 cfs to the peak flow in the AFW predicted by the HEC-RAS model for the 100-year storm event results in a relatively small percent increase in the peak flow. This small increase in peak flow is an insignificant increase with no meaningful effect on the flood analysis and on actual water levels either upstream or downstream of the Property. Adding an additional 3.2 cfs of groundwater outflow to the West Fork of Horse Creek’s average annual flow of 5.5 cfs resulted in a 59 percent increase (not 99 percent as asserted by opponents) in the average annual flow, and is not expected to have a detrimental effect on the average flow in West Fork of Horse Creek, Horse Creek, Peace River, or Charlotte Harbor. 3. Integrity of Clay Settling Areas The weight of the evidence indicates that this ERP permit is not intended to address dam construction or to evaluate the sufficiency of dam design, both of which will be considered under other permitting processes. However, the record shows the proposed Manson Jenkins CSAs must be engineered dams designed, built, and operated to achieve full compliance with the stringent requirements of Rule 62-672, Florida Administrative Code, according to exacting standards concerning site investigation, soil testing, cross-section design work, stability analysis, and design safety factors. After construction, the dam will be inspected weekly. The Department does not require flood inundation studies for the type of dam proposed by IMC, although it is characterized by Mr. Partney as a significant hazard dam. These studies are only required by the Department for high-hazard dams, which the IMC dams are not. Additionally, Mr. Partney, Florida’s Dam Safety Engineer, advised that the Department has made recent changes that ensure that construction of the CSAs is improving. See Findings of Fact 244-247. Dr. Dunn admitted that "the probability of failure is low" for a CSA. IMC has been issued its Federal Clean Water Act NPDES Permit which authorizes IMC to conduct its operations, involving the use of water. The NPDES Permit also regulates the discharge of waters to the surface and ground. The NPDES permit has specific conditions to assure the safety of dams that IMC must comply with related to the construction and operation of the CSAs. Surface Water Storage and Conveyance Capabilities General Rule 40D-4.301(1)(c), Florida Administrative Code, requires the applicant to provide reasonable assurance that the project will not cause adverse impacts to existing surface water storage and conveyance capabilities. These issues are addressed in the prior section. However, additional issues are addressed below. 2. Depressional Storage Dr. Garlanger provided a reasonable explanation regarding whether an increase in depressional storage can be expected. Dr. Garlanger performed calculations based on the average thickness of phosphate matrix being mined. The removal of the phosphate rock from the matrix generally reduces the depth of the soil profile components by 1.7 feet. The overburden that is removed in order to access the phosphate matrix is "cast" back into the adjacent mine cuts and occupies a greater volume after it is removed for mining than it will prior to mining. In other words, the overburden "swells" after it is removed to expose the phosphate matrix. This "swelling" results in an increase in volume of the overburden somewhere between 10 percent and 15 percent. Thus, based on the measurements of the density of spoil piles performed by Dr. Garlanger, the overburden actually increases in thickness by about 3.3 feet, which would more than make up for the 1.7 feet reduction in thickness of the soil profile components resulting from the removal of the phosphate rock. Additionally, the sand and clay components of the matrix also increase in thickness after having been mined, processed at the beneficiation plant, and through the reclamation processes, which further increase the average thickness of the soil profile components. If there is an increase in the average thickness of the soil profile components, even though most of the increase is associated with the reclaimed clay areas, there cannot be an increase in depressional storage. 3. Reclaimed Land Forms and Reestablishing Hydrologic Regimes The storage and conveyance capabilities provided by the flow-through marsh and the stream segment that are proposed to replace the existing ditched segment will greatly enhance the surface water conveyance and storage capabilities on the Property. Specifically as to the AFW, IMC's engineers and consultants from Ardaman & Associates reasonably designed the AFW to adequately replace the conveyance and storage capabilities of the portion of the West Fork of Horse Creek that will be mined. Also, a Storm Water Management Plan, which is a required document by the Bureau, analyzed surface water discharges under both historic conditions and under post- reclamation conditions and determined sufficient storage and conveyance capabilities will exist during mining and post- reclamation. A primary purpose of the reclamation plan developed by IMC is to create a land use topography on the Property that will allow runoff to occur as it did under the pre-mining condition prior to the ditching that was completed decades ago. Even though land surface on average is higher due to the "swelling" of the materials used in reclamation, the reclamation is contoured so that there is no storage except for the storage that is purposefully left in the recreated wetlands. Party opponents claim that a review of other mine permit applications shows a hydrologic characteristic of "reduced runoff from storm events by approximately 15 percent of the pre-mining condition." However, Mr. Zarbock, in reviewing approved phosphate mine applications, did not see any such phosphate mine applications that showed a 15 percent (not higher than 12 percent) reduction in flow, nor could he identify any mine that experienced the percentage reduction in flow that he assumed in performing his calculations. Water Quality Impacts Surface Water Rule 40D-4.301(1)(e), Florida Administrative Code, requires reasonable assurance that the project will not adversely affect the quality of receiving waters such that enumerated water quality standards will be violated. The waters and associated wetlands of the West Fork of Horse Creek located on or downstream from the Property are Class III waters. Downstream from the Property, the West Fork meets Horse Creek and both Creeks continue as Class III waters until Horse Creek becomes Class I waters in DeSoto County. The Myakka River is Class III waters through Manatee County. (Approximately 4 acres of wetlands will be mined on the Property located in the Myakka River Basin, to be replaced with approximately 12 acres of wetlands. See Finding of Fact 77.) The Manatee River to the west of the Property, including the North and East Forks of the Manatee River, are Class I waters. See Rule 62-302.400(12)41, Florida Administrative Code (The Manatee River is a Class I river from "[f]rom Rye Ridge Road to the sources thereof ") The far northwestern portion of the Property is in the Manatee River Basin. (Approximately 17 acres of wetlands in this area are proposed for mining and will be replaced with approximately 51 acres of wetlands. See Findings of Fact 76 and 211.) These wetlands have a ditched connection between the these wetlands and other wetlands, which ultimately lead to the East Fork of the Manatee River. As a limnologist, Dr. Durbin agreed that these existing wetlands, even after reclamation, are part of the water source for the Manatee River watershed. Dr. Dunn stated that if the "[BMPs] operate as designed [he assumed], that there will not be water quality impacts" to the East Fork of the Manatee River during actual mining. Rather, he was concerned about (after mining and reclamation and before release) "potential water quality problems for those areas that contribute flow to the East Fork of the Manatee River," as Class I waters. Dr. Durbin reasonably explained that after mining and reclamation, the existing wetlands will be severed from the Manatee River because the agricultural ditching will be removed, which leads to the reasonable conclusion that the replaced wetlands will not have a surface water discharge into other wetlands which are ultimately tributaries to the East Fork of the Manatee River. Thus, the wetlands will not flow to surface waters that then enter Class I waters. Further, there are no expected measurable decreases in depth of flow to the Manatee and Myakka Rivers resulting from mining and reclamation activity on the Property, which might reasonably be expected to adversely impact the water quality of these rivers. There are no measurable impacts to any Outstanding Florida Waters (OFW)(no OFWs are located on the Property), including aquatic preserves, or to Class I or II waters, which are likely to result from this project. See Findings of Fact 193-195. The ditch and berm system around active mining and reclamation areas will preclude the direct release of waters impacted by mining to surface water bodies on the Property. The system is designed to isolate the unmined areas from surface water runoff that may be present in the mine area and to maintain water levels in undisturbed wetlands. See Findings of Fact 31-42. Waters collected in the ditch and berm system will be reused and recycled by IMC in the mining operations. Some portion of that water will be discharged through permitted discharge outfalls not located on the Property in accordance with IMC's currently valid Department NPDES Permit. Such discharges must comply with discharge water quality criteria set forth in the NPDES Permit. Permitted water discharges from these outfalls is necessary because IMC will need the ability to release water from the mine into nearby waters and streams. The activities on the Property are regulated pursuant to the Fort Green Mine NPDES Permit, and, in particular, outfalls 3 and 4 which discharge water into Horse Creek. (Outfalls number 1 and 2 discharge water into Payne Creek.) Over the past 5 years, in measuring the water quality of the water leaving the permitted outfalls, IMC is unaware of any violations of permit limits, including surface water quality standards at the Fort Green Mine site based on samples taken at the outfalls. In the event there is a concern regarding water quality at an outfall, a gate constructed at the outfall can be quickly closed to stop off-site flows. Water quality data from Payne Creek, where over two- thirds of the watershed has been mined and a good portion reclaimed, demonstrate that phosphate mining has not adversely impacted dissolved oxygen (DO) levels in the receiving stream, i.e., the concentrations are comparable to other streams. Payne Creek has had lower nitrogen concentrations in most years than other measured streams, such as Joshua Creek, which has had no mining. Water used to recharge the ditch and berm system and maintain groundwater levels will be of high quality and is not expected to cause or contribute to adverse water quality impacts should they reach area surface waters as a part of base flow. The predicted reductions in stream flow, either during active mining and reclamation or after reclamation is complete, are not expected to have an adverse impact on the water quality of surface waters flowing through the Property or at any point downstream. Freshwater flows have a major role in determining the salinity in an estuary. The small reduction in fresh water flow during high-flow conditions predicted during mining and after reclamation of the Property is not expected to cause adverse impacts to salinity levels in the Charlotte Harbor Estuary. The small predicted impact is of insufficient magnitude to be measurable and, therefore, to warrant a reasonable concern. During active mining and reclamation activities at the Property, off-site drainage entering the Property will be unaffected by mining operations. Augmented base flow will be of high quality and runoff from undisturbed areas that reach surface waters on the Property will be the same as prior to the time mining commenced. Evidence presented at the final hearing demonstrated that, once mining and reclamation activities have been completed and the West Fork of Horse Creek has been reclaimed, surface water bodies on the Property or downstream in the Horse Creek and Myakka River are expected to achieve all applicable Class III surface water quality criteria. The proposed mining and reclamation activities at the Property are not expected to cause or contribute to a violation of Class I standards in the Manatee River. Charlotte County's expert witness, Dr. Janicki, opined that the proposed mining and reclamation project will not cause a violation of any currently applicable numerical water quality standards. Water quality sampling at the Property indicates that DO levels lower than the Class III standards currently occur in the West Fork of Horse Creek and in wetland systems at the Property. This is not an uncommon occurrence in natural systems. The DO levels in reclaimed wetlands at the Property will essentially mimic conditions in naturally occurring wetlands, and it is not anticipated that DO levels in the reclaimed wetlands will be depressed any more than occurs in a natural system. With regard to the reclaimed West Fork of Horse Creek, the reclaimed stream will be at least equivalent to the current ditched segment with regard to DO levels, and it is likely that DO levels will be improved overall since the design of the system will provide for a meandering channel and for the placement of logs or other obstructions in the channel which should increase aeration and thus potentially elevate DO. Opponents' expert Dr. Dunn agreed the existing water quality in the West Fork of Horse Creek is not as good as it is in the main channel of Horse Creek. Water quality monitoring carried out by IMC on reclaimed areas demonstrates that water leaving the reclaimed areas and entering surface water bodies meets applicable water quality standards. IMC will be required to monitor the quality of water in the reclaimed wetlands areas on the Property and will not be authorized by the Department to connect the reclaimed areas to the surface water system unless monitoring data demonstrate that water quality criteria are met. Under IMC's ERP Application, prior to any reclaimed wetland being reconnected to the off-site surface waters, there is one full year of water quality sampling required in order to demonstrate that water quality standards are met before the wetland is connected to the natural system, which is an extra safeguard not required in non-mining ERP applications. Moreover, there is credible evidence in the record of IMC's historical and successful use of AFWs and their effect on water quality. A study done by the Department in 1994 stated that the water quality indicators in an operational AFW were better than those same indicators at a natural site that did not have alternate flow-way characteristics. The weight of the evidence indicated that the water quality and biological integrity of the AFW will be in full compliance with the permitting requirements and with the state water quality standards. The weight of the evidence in the record does not indicate that the mining and restoration of the West Fork of Horse Creek will result in violations of water quality standards, as the water quality leaving the site during mining and after reclamation will be similar to the water quality that currently exists on-site. There are several reasons why water quality will not be adversely impacted: (1) a substantial portion of the watershed for the West Fork of Horse Creek lies north of the Property, and the water coming from this area will still move through the Property into the preserve area and off- site; (2) IMC will use best management practice berms to keep any runoff from active mine areas or cleared areas from entering the wetlands and streams associated with the flow way over the reclaimed wetlands precluding degradation of the water quality from those areas; and (3) IMC will use clean water in the recharge ditch system which will be seeping into the surrounding wetlands and the stream that is essentially feeding the wetlands with clean water augmenting the flow downstream. Groundwater Groundwater quality monitoring in the vicinity of the phosphate mining operations has demonstrated that such operations will not adversely impact the quality of groundwater in the vertical aquifer adjacent to mining operations or in the deeper intermediate or Florida aquifer systems. Impacts to Wetlands and Other Surface Waters Functions Provided to Fish and Wildlife Pursuant to Rule 40D-4.301(1)(d), Florida Administrative Code, an ERP applicant must provide reasonable assurance that its proposed activities will not adversely affect the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface water, and other water-related resources of SWFWMD. Prior to mining, pedestrian-type surveys of the Property will be conducted of the Property to determine the listed wildlife in order to avoid impacting particular species. Some species, including gopher tortoises, would be relocated to an unmined area. The weight of the evidence shows that IMC will minimize impacts to fish and wildlife through (a) a Conservation Easement, which preserves those areas with an abundance of habitat diversity, (b) through best management practice berms, which protect water quality of adjacent systems, and (c) through the AFW, which will allow continuous movement of fish and wildlife from areas north and south of the Property as well as creation of additional habitats. IMC's efforts to avoid and minimize the potential for impacts to fish and wildlife during mining and reclamation satisfy permitting rule requirements. Fish and wildlife functions in areas to be mined or disturbed at the Manson Jenkins Project will be temporarily impacted. The areas to be impacted typically are of lower ecological value while IMC has agreed to preserve a substantial amount of the higher quality wetlands on the Property together with, in some cases, important adjacent upland habitats. The impacts that do occur will be mitigated by the replacement of the impacted systems by more and higher quality systems than existed prior to mining. This includes the enhancement of the project with the wildlife corridor through the middle of the Property and improvements to the stream system. The Conservation Easement can be expected to protect the "habitat mosaic of the corridor." (The Conservation Easement on the Property includes approximately 521 acres.) Credible evidence also shows that IMC will satisfy permitting rule requirements after mining. Under the reclamation plan there will be diverse, connected habitats instead of the existing pre-mining single ditch and, primarily, agricultural land cover. There is also empirical data in the record concerning reclamation indicating that reclaimed areas were equal to or better for fish and invertebrate use when compared to natural systems, and similar results are also expected for IMC's reclamation. Both state and federal agencies approved the work plan of IMC used to survey wildlife at the Property. IMC's wildlife surveys are reasonable, which enabled the preparation of a comprehensive wildlife management plan. Avoidance and Mitigation Avoidance Phosphate ore underlies the land surface beneath waters and wetlands. Thus, it is not possible to avoid disturbance of these systems and still mine the valuable resource. See generally Section 378.201, Florida Statutes. IMC and the Department evaluated the quality of the waters and wetlands proposed for disturbance at the Property as part of the permit application process. Most of the wetlands systems deemed to be of higher quality through the application of the WRAP (Wetland Rapid Assessment Procedure) analysis are being preserved. (The WRAP Procedure is an accepted procedure to evaluate wetland functions and assign a value based on several criteria. The first WRAP was developed by South Florida Water Management District. WRAP scores generally are numerical values that can be assigned on a per-unit-acre basis to wetlands that are an index of their functional value.) For all areas that are not avoided, IMC is required to take steps as part of its land reclamation process to mitigate the unavoidable impacts associated with mining the Property. It was suggested that IMC did not avoid impacts due to IMC's determination to mine approximately 17 acres of wetlands in the Manatee River Basin. This suggestion is not persuasive because over 316 acres of wetlands will be left unmined on the entire Property, which equates to approximately 45 percent of the wetlands on the Property, including over 70 percent of the forested wetlands on the Property. The weight of the evidence shows that IMC was prudent in balancing between avoidance of appropriate environmentally significant areas, such as some wetland systems, and the operational needs to reach the phosphate matrix that is underlying the Property. Also, approximately 3.7 tons of phosphate rock reserves underlie the preserved areas with a projected loss of total income of over $55 million. 2. Mitigation In the ERP Program, the term "mitigation ratio" refers to the wetlands or other surface waters and areas the applicant is proposing to, for example, create, restore, enhance, donate in kind, or preserve, versus the impacted wetlands. For example, a mitigation ratio of two to one means the applicant is proposing to mitigate or recreate two acres of wetlands for every acre that is being disturbed or impacted. Section 373.414(6)(b), Florida Statutes, provides that wetlands reclamation activities for, in part, phosphate mining undertaken "pursuant to chapter 378 shall be considered appropriate mitigation for [Part IV of Chapter 373] if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities." See also Section 3.3.1.6., Basis of Review. Mining, reclamation, and revegetation on the Property is expected to be completed within 15 years, including reclamation of the CSAs. The conceptual reclamation plan, which includes the Property, was approved by Department final agency action on March 20, 2001, pursuant to Chapter 378, Part III, Florida Statutes, and Chapter 62C-16, Florida Administrative Code. However, this approval does not mean that IMC is not required to prove reasonable assurances regarding its mitigation plan, which is discussed herein. Rule 62C-16.0051(4), Florida Administrative Code, requires the restoration of impacted wetlands on at least an acre-for-acre and type-for-type basis. Compliance with this provision is mandatory for phosphate mines. IMC's mitigation plan satisfies this acre-for-acre, type-for-type mitigation requirement. In addition to satisfying the mitigation guidelines contained in the permitting requirements, other factors such as (a) the low quality of the wetlands that are being disturbed due to historical ditching and draining to accommodate historical agricultural land uses, (b) the significant on-site preservation effort, and (c) the Integrated Habitat Network (IHN) that provides a regional benefit to wildlife and their habitats and to water quality and which represents mitigation beyond applicable requirements, all taken together demonstrate the appropriateness of IMC's mitigation plan. The total cost to IMC for wetlands mitigation at the Property is approximately $3.6 million. The number of acres of wetlands affected by the Manson Jenkins activities in the Myakka, Manatee, and Peace River Basins total approximately 361 acres. See Findings of Fact 76-77 and 95-96. IMC will reclaim 538 acres of wetlands as mitigation for the 361 acres of generally low quality wetlands that will be disturbed at the Property. The reclamation area wetlands will be designed to provide a diversity of habitat and function that does not presently exist at the Property. IMC's reclamation plan adequately mitigates for any impacts by creating approximately 538 total wetland acres distributed among these three basins. Additionally, those wetlands that are created will have associated upland buffers, which the existing wetlands do not, and these newly created buffers will provide additional, enhanced wildlife and water quality benefits at each created wetland. In the reclaimed landscape, a forested buffer is expected which will provide some wildlife and water quality benefits to each wetland. The created wetlands will be hydrated by the groundwater outflow from the recharge system. IMC has had experience in the reclamation of wetland systems in Florida. Since 1975, IMC and its predecessor company, Agrico Chemical Company, have reclaimed approximately 6,850 acres of wetlands. Biologists and reclamation experts Dr. Durbin and Dr. Clewell presented persuasive evidence that IMC is capable of successfully completing the proposed reclamation activity and that the ultimately reclaimed wetlands systems will restore long-term ecological value to the Property and adjacent areas. Nevertheless, restoration and reclamation of wetlands is not a perfect science; mistakes have been made, e.g., Dog Leg Branch, and are documented in this record. To his credit, Dr. Clewell agreed. However, several studies, including Charlotte Exhibits 29 and 31 and others, do not persuasively indicate that IMC's proposed reclamation and restoration proposal for the Manson Jenkins Project will not be successful or that IMC does not have the wherewithal and overall professional expertise to accomplish the desired result. The weight of the evidence demonstrates that IMC can effectively carry out the proposed reclamation plan as set forth in the ERP and that, with regard to waters and wetlands impacted by mining operations at the Property, it will effectively mitigate the unavoidable ecological losses associated with mining those areas. The ERP contains detailed success criteria for the required wetlands reclamation. Extensive monitoring is required and Department personnel carry out regular inspections of reclamation sites. Only after reclamation success criteria are achieved, including attainment of necessary water quality criteria, will the reclaimed wetlands be approved by the Department and reconnected to the natural system. Stated differently, the project will only be deemed to be officially successful after release by the Department. This does not mean, however, that reclaimed wetlands, including wetlands reclaimed by IMC, have not been or are not functional before release. This includes the Big Marsh. (It appears that the existence of nuisance species currently precludes the release of Big Marsh. Dr. Clewell advised that Big Marsh is very close to meeting all criteria for release right now. See Findings of Fact 231 and 265.) 3. Acre-for-Acre/Type-for-Type As noted above, Chapter 378, Florida Statutes, contains an acre-for-acre, type-for-type mitigation strategy for phosphate mining reclamation, and IMC's reclamation plan exceeds the one-to-one mitigation ratio contained in the mine reclamation rules of Chapter 378, Florida Statutes. Substantial evidence in the record exists to support the claim that the ecological value of the wetlands proposed to be reclaimed will be higher than the current ecological value of the wetlands that will be disturbed and are currently existing at the Property. There are two types of reclamation: herbaceous and forested reclamation. IMC has reclamation experience, and based on IMC's experts' evaluation of many reclaimed sites, the average WRAP value assigned to herbaceous systems is .64 and for forested systems is .73. The wetlands proposed to be disturbed at the Property have an average pre-mining score for herbaceous systems of .54 and for forested systems of .51. Once reclamation occurs, the reclaimed herbaceous systems at the Property will score 1.19 times the existing the value, or an approximate 20 percent improvement from the existing wetland systems at the Property. Significant ecological improvement is also evidenced for the Property's reclaimed forested wetlands that will have an improved value of approximately 43 percent. The evidence shows IMC used the WRAP procedure to value wetlands and the functions wetlands provide to fish and wildlife as well as the accompanying water quality and quantity issues at the Property. WRAP was used for the Manson Jenkins Project because it was required by similar permitting under the Clean Water Act for the United States Army Corps of Engineers. The Department participated in the evaluation of the methodology used, including auditing the results in the field and on paper. But the Department did not accept or reject the methodology per se. On the other hand, the "King Formula" used by permit opponents' expert Dr. Dunn to critique IMC's reclamation proposal is a "completely different approach" from the regulatory requirement of acre-for-acre, type-for-type that is applicable to this ERP application. Further, the "King Formula" has not been accepted by the Department as an appropriate methodology for ERP evaluations, nor has Dr. Dunn ever before relied on the "King Formula" to support any ERP permit that he assisted in obtaining. There is credible evidence that even if the permit opponents' mitigation calculation (or "King's Formula") is applied, IMC would need 1.15 to 1 replacement for herbaceous systems and 1.27 to 1 replacement for forested systems. The record reflects IMC is required under the proposed ERP permit to have 1.38 to 1 replacement for herbaceous systems and 2.28 to 1 replacement for forested systems. Thus, IMC is committed to a more functionally equivalent mitigation objective than is calculated using the opponents' method for evaluating mitigation ratios. 4. Restoration of the West Fork of Horse Creek and Headwater Marsh The record shows that IMC has a successful history of restoration generally and, specifically, reclaiming headwater marshes as part of their overall mitigation experience. IMC's reclamation efforts have been recognized with both state and federal awards. Two examples of reclamation projects which appear to be functionally successful, although not yet released by the Department, are Big Marsh, which is a 229-acre headwater marsh flowing into Horse Creek, and the approximately 200-acre, P-20 Marsh, which is a headwater of Horse Creek, and next to Big Marsh. Both Big Marsh and P-20 Marsh show comparable features, placement, and functions when compared to their pre-mining condition and their current post-reclamation condition. The restoration efforts at the P-20 Marsh are relevant because it is similar to the Property in that it too was cleared of vegetation and ditched. Testimony shows that the benthic macroinvertebrate organisms, which are important to the successful functioning of a headwater marsh, are reasonably expected to be recolonized in the reclaimed system at the Property in a variety of permit- required habitats, which habitats are ecologically better than the existing habitat conditions on the Property. Further, the benthic invertebrate populations existing in the area north of the Property will be connected to the reclaimed Property enabling recolonization of the reclaimed marsh. IMC presented credible evidence that the excavated portions of the West Fork of Horse Creek will have ongoing, functional value and the reclaimed headwater marsh and stream system will at least maintain, but likely improve the water quality and function of the excavated portions of the West Fork of Horse Creek. IMC's reclamation plan is to recreate West Fork of Horse Creek to more resemble a natural Florida stream with a meandering flow-away with trees that shade the stream and provide improved habitats for fish and wildlife. Moreover, the existing West Fork of Horse Creek, though properly identified as a "first order stream," is a very small system with intermittent flow. The stream ordering system is a method of classifying the size of streams in terms of watershed basins and sub-basins. A "first order stream" is the smallest of the set of streams making up an entire drainage basin and is more a landscape or hydrologic indicator and does not necessarily indicate a stream's ecological value. The West Fork of Horse Creek is not a regionally- significant stream because the existing conditions at the West Fork of Horse Creek are degraded as a result of agricultural ditching, the ecologically poor uplands surrounding the area, and the overall presence of agricultural land. More specifically, the area proposed for mining in the West Fork of Horse Creek is of "very low ecological value, relative to what another first-order or headwater system might be." 5. Temporal Lag It has been asserted that there will be some temporal lag of ecological function at the Property because certain reclaimed systems will take some time to become mature. (Temporal lag is the phrase given to a lag time between the impact to a wetland system and the replacement of the functions once offered by the wetland system. Chapter 62C, Florida Administrative Code, does not require consideration of temporal lag in determining reclamation requirements. The weight of the evidence presented, however, shows that more acres of wetlands will be reclaimed than are being disturbed and the reclaimed systems will be of higher ecological value than the stressed systems proposed for mining. Furthermore, the evidence at hearing demonstrated that the total amount of wetland acreage at the Property is not significantly reduced. Also, fairly early in the mining and reclamation sequence, the total number of wetland acres on the Property are reasonably expected to exceed pre-mining conditions. Even using the worst-case scenario as proposed by opponents to the permit application with longer temporal lag (6 years instead of 3 years for herbaceous systems and 40 years instead of 20 years for forested systems), the resulting calculated required herbaceous system ratio of 1.21 to 1 is still less than the permit's requirement of 1.38 to 1. Similarly, the forested system's worst-case calculated ratio using permit opponents' unwarranted temporal lag assumptions is 1.74 to 1, which is still less than the 2.28 to 1 permit requirement. Further, the evidence shows that doubling the time between the removal of the systems and mitigation, from 4 to 8 years, results in a herbaceous ratio of 1.39 to 1 and a forested ratio of 2.04 to 1, which indicates that even if the time between impacts and mitigation were doubled, IMC's reclamation plan would still be adequately mitigating for any impacts. 6. Iron and Manganese IMC's expert explained the scientific research performed on behalf of the Florida Institute of Phosphate Research involving 11 phosphate mines and more than 40 exploratory wells and borings to evaluate the water quality of mined lands. There were no exceedances of standards with the exception of iron and manganese, which were expected to exceed standards because Florida has high background concentrations of iron manganese oxide in the soil. There is no reason to believe Manson Jenkins’ activities will cause adverse impacts to wetlands due to "groundwater perturbations." 7. "Flocculation" (Iron Bacteria) There is credible evidence that iron bacteria is a naturally-occurring substance and is common in Florida soils. Dr. Durbin testified that iron bacteria is not a reasonable concern for the Manson Jenkins Project. A benefit provided by the proposed reclaimed streams, wetlands, and lakes is that these are natural treatment systems that, in the case of iron bacteria, will remove iron from the water and will not cause any off-site concerns. Secondary Impacts 1. General Rule 40D-4.301(1)(f), Florida Administrative Code, requires an applicant to provide reasonable assurance that the project will not cause adverse secondary impacts to the water resources. IMC presented credible evidence that the proposed mining and reclamation activities at the Project will not cause any adverse secondary impacts to the water resources. 2. Stability of CSA's and Associated Dams Mr. Partney, the Department's dam safety engineer, has been involved with the state of Florida's current dam safety program since its inception approximately six years ago, and has been in charge of the dam safety program since its inception. He testified that no inundation studies are necessary for the clay-settling ponds and their associated dams in this project because these are not high hazard dams. The record does not support permit opponents' statement that the proposed Manson Jenkins CSAs are considered high hazard dams. As a result, inundation studies are not required to be performed to determine the risk and consequences of a discharge. The Department's dam safety program rules are contained in Rule 62-672, Florida Administrative Code, and regulate the construction of the dams surrounding CSAs by specifically requiring soil testing, cross-section design work, and stability analysis, among other design safety factors that incorporate engineering practices employed by the United States Army Corps of Engineers under their dam construction rules. The dam failures that have occurred in the past were dams constructed prior to the implementation of this rule except for one, IMC's Hopewell Mine dam. This dam failure was investigated by a "blue ribbon panel," including Mr. Partney. The cause of the failure was determined, and the problem with that failure corrected in the current version of the rule. The weight of the evidence also supports IMC's commitment to dam safety as evidenced by IMC's response to this dam failure. IMC voluntarily agreed to remove all pre-rule, non-engineered dams from operations, and within one and a-half years, IMC had categorized, inventoried, and taken out of service all non-engineered structures. Also, IMC has a Site Preparedness Plan, otherwise called an emergency plan, that prescribes actions should the signs of a potential failure be detected. Weekly inspections are required and documented. The testimony of permit opponents' expert Dr. Dunn supports the fact that the probability of a failure of a CSA and its associated dam is low. Mr. Partney shares this view, i.e., CSAs are "extremely safe" and there is about a "one in two million chance or so of one of them failing." 3. Authority's Withdrawals from the Peace River The weight of the evidence indicates that the Manson Jenkins Project will not adversely affect the Authority's permitted limits on the withdrawal of water from the Peace River because the activities at the Property will not physically affect the flow of the Peace River, upstream of its confluence with Horse Creek at the Arcadia gauge station, which is the station that determines the Authority's permitted allowance to withdraw water. IMC's expert in environmental hydrodynamics and estuarine physics, credibly testified that the slight potential reduction in freshwater flow due to Manson Jenkins’ activities has little or no potential to negatively impact salinity concerns in downstream water bodies. 4. Ditch and Berm Protection of Wetlands There was credible testimony that the ditch and berm system is a best management practice to ensure the protection of the hydrologic systems adjoining the Property. See Findings of Fact 31-42. IMC's expert, Dr. Garlanger, is one of the co-authors of the criteria used by IMC to engineer these BMPs ditch and berm systems, and the weight of the evidence indicates that the proposed ditch and berm system will protect the water quality of the surrounding wetlands systems as well as maintain the hydrologic regime of the off-site systems. Minimum Flows and Levels Pursuant to Rule 40D-4.301(1)(g), Florida Administrative Code, an ERP applicant must provide reasonable assurance that its proposed activities will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes. This subsection references minimum flows and levels. The Department has not established minimum flows and levels. The water management districts establish minimum levels for aquifers and surface waters and minimum flows for surface water courses pursuant to Section 373.042, Florida Statutes. The Department is "very involved with the districts in developing those minimum flows and levels as part of [the Department's] supervisory authority." In the case of ERP applications filed with the Department for facilities located within SWFWMD's jurisdiction, it is the minimum flows and levels established by SWFWMD that are protected from adverse impact pursuant to Subsection 40D-4.301(1)(g). However, the weight of the evidence, especially the testimony of Department witnesses, indicates that minimum flow and levels adopted pursuant to Section 373.042, Florida Statutes, must be established by rule, and not a permit condition that only applies to one permittee, such as the Authority. SWFWMD has not established, by rule, a minimum flow or level pursuant to Section 373.042, Florida Statutes, for any water body impacted or potentially impacted by the proposed mining or reclamation at the Property, including the Peace River. The proposed mining and reclamation activity, therefore, will not adversely impact the maintenance of any minimum flows and levels established by law. Works of the District Rule 40D-4.301(1)(h), Florida Administrative Code, provides that reasonable assurance be given that a project will not cause adverse impacts to a work of the district, here SWFWMD, established pursuant to Section 373.086, Florida Statues. The weight of the evidence indicates there will be no adverse impact to any surface water body on or downstream of the Property either from a water quality standpoint or from a water quantity standpoint. Accordingly, there will be no adverse impacts to a "work of the district" established pursuant to Section 373.086, Florida Statutes. See also Finding of Fact 72. This proceeding is to determine IMC's entitlement to an ERP, not a "work of the district" permit. It has been the practice of the Department, that if an ERP is issued by the Department, the permittee does not need to also obtain a separate "work of the district" permit. However, SWFWMD's "work of the district" rule has not been adopted by the Department. Effective Performance and Function Engineering and Scientific Capability The mining and reclamation activities proposed for the Property are capable, based upon generally acceptable scientific principals, of being effectively performed and functioning as proposed, including the AFW, ditch and berm systems, the reclaimed wetland areas, and the reclaimed West Fork of Horse Creek Stream Channel. See Rule 40D-4.301(1)(i), Florida Administrative Code. Financial, Legal and Administrative Capability IMC has all necessary legal property rights to mine and reclaim the Property as lessee under a mining lease issued by the Property owners. IMC has demonstrated by the weight of the evidence that it is an entity with financial, legal and administrative capability of ensuring that the activities proposed at the Property will be undertaken in accordance with the terms and conditions of the ultimately issued ERP, including the additional agreed permit condition referenced below. See Rule 40D-4.301(1)(j), Florida Administrative Code. IMC is a large business with assets in excess of $1.6 billion. IMC also presented credible evidence that it has provided Manatee County with a reclamation bond in the amount of $17 million to cover all reclamation liability existing in Manatee County at that time, including the upcoming year that IMC plans to mine. IMC has agreed to provide Manatee County with a general surety bond of $1 million and an environmental risk insurance policy in the amount of $10 million. At hearing, the Department requested and IMC agreed to have the following permit condition added to the ERP upon issuance: At least thirty (30) days prior to the initiation of mining operations, the final version of the financial responsibility mechanism required by Section 3.3.7.6 of the Basis of Review shall be provided to and approved by the Department as required by Rule 40D-4.301(1)(j), Florida Administrative Code (October 1995) and Rule 62-330.200(3), Florida Administrative Code. After reclamation of the Property, IMC has in place a Conservation Easement that places restrictions, such as requiring all regulatory approvals to be obtained, and imposes required management practices in the event that agricultural operations are initiated by a third party. Credible evidence in the record supports IMC's historical efforts in reclaiming wetland systems such as Big Marsh despite suggestions that IMC has not demonstrated the capability to restore marsh systems because, e.g., Big Marsh has not been "released" by the Department. Although this system has not been "released," this system is ecologically valuable. See Findings of Fact 225 and 231. Public Interest Test Several statutory and rule criteria must be considered and balanced to determine whether IMC's proposed activity's on the Property are not contrary to the public interest. See Section 373.414(1), Florida Statutes; Rule 40D- 4.302(1)(a)1-5, and 7, Florida Administrative Code. Public Health Safety or Welfare or the Property of Others As noted elsewhere in this Recommended Order, the proposed project will not cause adverse water quality, water quantity or flooding on the Property or at any point off the Property. The mining and reclamation activities will be carried out within private property subject to security and control by IMC. The CSAs proposed to be constructed at the Property will be designed and constructed in accordance with strict regulatory requirements. A separate Department permit must be applied for and issued before construction of a CSA may commence. The weight of the evidence indicates that the chance of failure of any dam designed and constructed in accordance with current rule provisions is remote, e.g., one in two million according to Mr. Partney. See Findings of Fact 50-57, 161-165, and 244-247. 2. Conservation of Fish and Wildlife The proposed activity at the Property will not cause adverse impacts to natural systems that are not directly subject to disturbance. The ditch and berm system will protect adjacent areas from direct surface water impacts and will maintain groundwater conditions so that preserved wetland systems will continue to function during mining activities. The mining activities will be conducted in a sequence designed to minimize impacts on mobile wildlife species. By mining in the area farthest away from the preserved wetlands in the south and moving in that direction, these wildlife will be able to relocate into the preserved areas. During active mining operations, the mining areas provide value to wildlife. Many bird species use CSAs and active mine cuts during mine activities. Other animals, including raccoons, deer, possums, armadillos, snakes, and frogs use the mine areas while mining is being conducted. IMC has surveyed the Property to identify plant and animal species present at the site and developed a wildlife management plan which was included as part of the application with the ERP. This plan addresses potentially listed threatened or endangered species that could be found on the Property now or in the future and prescribes measures for protecting those listed species. The wildlife management plan comports with good scientific practice. The proposed reclamation will enhance conservation of fish and wildlife values over that currently present at the Property. Currently the site contains several small wetland systems spread out over the site connected by ditches. These wetlands are generally surrounded by pasture. The proposed reclamation plan will consolidate the wetlands into a larger contiguous mass along the West Fork of Horse Creek and will provide for an adjacent upland corridor. The upland corridor will provide additional habitats for species that may use it as a transitional zone between a wetland and an upland. IMC's voluntary establishment of a Conservation Easement over the preserved wetlands in the south portion of the Property and the reclaimed wetland system within and adjacent to the West Fork of Horse Creek in the north provide reasonable assurance that the fish and wildlife values inherent in these areas will be protected. (The Conservation Easement covers approximately 521 acres of wetlands on-site.) In addition, this system upon completion will act as a wildlife corridor of approximately 2.5 miles in length along the West Fork of Horse Creek and will connect to a larger network of habitat corridors known as the IHN. See Finding of Fact 216. IHN is a regional conceptual plan developed by the Department in 1992 for the entire Southern Phosphate District of Florida (1.3 million acres in Polk, Hardee, Hillsborough, Manatee, and DeSoto Counties) and is intended to link existing wildlife habitats, thereby allowing wildlife populations the ability to travel throughout reclaimed areas and publicly owned lands. 3. Navigation, Flow or Harmful Erosion or Shoaling The West Fork of Horse Creek on the Property is not a navigable waterway. The AFW will be vegetated before it is put into operation. It is specifically designed to handle high flow stream events, including the 100-year flood event, and will not erode or cause downstream erosion. Any sharp bends in the AFW way will be stabilized prior to use. The reclaimed West Fork of Horse Creek will be reclaimed as a natural system and will be able to manage high flows without experiencing erosion in the reclaimed stream channel or causing erosion downstream. 4. Fishing, Recreational Values or Marine Productivity The Property is privately owned and does not support public recreation or fishing activities. Following completion of mining reclamation activities, fish and wildlife values in the reclaimed wetlands and waters will be enhanced. 5. Temporary or Permanent Nature Phosphate mining, by its very nature, strips and deprives the land of existing resources, and its effects cannot be underestimated. Dr. Dunn characterizes phosphate mining as destroying the land. Nevertheless, phosphate mining is considered a temporary disturbance of the land, see Section 378.201, Florida Statutes, when compared to other types of activities. Unlike other types of activities, such as commercial or residential development, mining is completed within a finite period of time, and land reclamation follows thereafter resulting in the return of the land to other valuable land forms. 6. Current Conditions and Relative Value of Functions Performed by Affected Areas The proposed activity on the Property will not have an adverse effect on the condition and relative value of functions currently being performed at the Property in areas that will not be disturbed by mining. The areas to be disturbed by mining reflect man-induced changes over the years and provide relatively limited ecological value on the whole. Cumulative Impacts General The Department's method for evaluating the potential impacts from individual ERPs satisfies regulatory consideration of cumulative impacts of a project because so long as phosphate mines mitigate in the same drainage basin as the impacts of the proposed activity and meet the statutory and rule requirements, there will be no cumulative impacts. See Section 373.414(8)(b), Florida Statutes. The Department's evaluation includes the conceptual reclamation plan, which is mandated by Chapter 378, Florida Statutes, that describes the complete mining plan and activities for a site as well as the site's reclamation plans and the Integrated Habitat Network plan. Further, the Department's policy of analyzing similar projects (in the case of IMC's permit application that means other phosphate mines) is reasonable because phosphate mining is a temporary activity that reclaims the land to an enhanced natural system. Other types of development, such as residential and industrial, are not temporary in nature. Additionally, the Manson Jenkins Project received regional review and approval as part of IMC's Development of Regional Impact process from the Tampa Bay Regional Planning Council, which distributed information concerning the Manson Jenkins Project to the Central Florida Regional Planning Council and Manatee County. The weight of the evidence indicates that there will be no adverse water quality impacts on undisturbed areas at the Property or at any downstream location. There are no adverse water quantity impacts on or off the Property. Implementation of the reclamation plan approved by the Department pursuant to Chapter 378, Florida Statutes, and the mitigation which will be provided, as proven in this proceeding, will maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities and thus constitute appropriate mitigation. Such mitigation will occur on the Property and will be in the same drainage basins where the activities are proposed. 2. IMC's Cumulative Impact Calculations Although the Department does not require the type of cumulative impact analysis permit opponents suggest is needed, Dr. Garlanger testified that IMC performed an analysis on the Horse Creek Watershed Basin involving the existing Ft. Green and Four Corners Mines and the future Ona Mine. IMC assessed the impact of past, current, and future mining activities in the Peace River Basin on the flow in the Peace River Basin and on Horse Creek on a cumulative basis. The predictive cumulative impact assessment modeling performed by Dr. Garlanger analyzed the future long-term potential impacts on stream flow by determining the capture during previous mining activities as a baseline period and the resulting impact from the reclamation activities for that baseline. This was then compared with the potential decreases in runoff due to the capture in the areas that are planned to be mined and reclaimed in the future. The cumulative impact analysis performed by IMC made a predictive assessment through the year 2020, which includes mining at the Property as well as mining proposed for three new mines (Ona Mine, Pine Level Mine, and Farmland-Hydro Hardee County Mine) that are in the Horse Creek Basin and existing mines that would be mining at times up to the year 2020. In order to ensure a worst-case prediction, Dr. Garlanger in his analysis assumed that all the direct surface runoff from all of the mining areas would be captured within the mine recirculation systems and consumed in the process and not available to contribute to stream flow in the area. The analysis then assumed that to the extent an area was captured, it would reduce stream flow by that amount in the areas that normally would have flowed to the natural surface water systems. A cumulative impact analysis performed by IMC concluded that for approximately 70 to 80 percent of the time there is essentially no impact on the flow in Horse Creek. Further, reduction in flow during high-flow periods, which is approximately 10 percent of the time, would reduce the flow depth from 7.46 feet to approximately 7.18 feet or less than .3 of a foot and for one percent of the time the reduction in the flow would be from 12.8 to 12.6 feet. These are the predicted impacts if all the potential capture for Horse Creek occurred. The changes in the depths of these waters, during high-flow periods, will likely have a positive impact on decreasing the amount of flooding during a high-flow period. During other times there is no adverse impact from decreasing water by just a few inches out of several feet of water. The same type of cumulative analysis was performed for the entire Peace River Basin. The areas mined and the areas reclaimed were determined using the same maximum potential capture and decreased runoff due to reclamation. Calculations were performed as to the potential decreased stream flow in the Peace River above Arcadia and at Charlotte Harbor due to past, current, and future mining activities. Similar to the Horse Creek Basin analysis, Dr. Garlanger used the maximum potential capture and maximum decrease in the stream flow resulting from reclamation and calculated the maximum expected decrease in stream flow in the Peace River Basin above Arcadia and at Charlotte Harbor for both the baseline condition and the future mining period through the year 2020. This analysis determined that for approximately 80 percent of the time there will be no impact on the Peace River. The only impact is a small increase in flows during high-flow periods at the Arcadia station. Similarly, at the point where the Peace River empties into Charlotte Harbor, the differences in stream flow are practically immeasurable and, if anything, there is predicted a slight increase in flow. The flow will increase slightly because the average area that was captured during the baseline period decreases over time, meaning there is less area for rainfall capture within mining recirculation systems. Though the cumulative impact analysis performed by IMC does show a slight reduction in flow in the Horse Creek, the impact will be a decrease in the stream flow depth of less than 3 or 4 inches in water that is already 7.5 feet and 12.8 feet deep, respectively, which few inches will not cause any adverse impact. Further, the analysis showed that for the same rainfall the overall flow in the Peace River at Arcadia and at Charlotte Harbor through the period 2020 will actually be greater than during the past 19-year period. Furthermore, phosphate mining operations do pump water from the Floridan aquifer system to use in their operations. Deep groundwater pumping can contribute to reduced flow in the Peace River, but phosphate mine operators have substantially reduced their withdrawal of deep well groundwater over the last decade, and it is not anticipated that any substantial increase in use will occur in the future. IMC's withdrawals of groundwater for mining activities conducted at the company's mines, including the Property, have been authorized by the issuance of Water Use Permit No. 20114000 by SWFWMD. 3. Flow Impacts There is significant testimony concerning an analysis of the impacts of phosphate mining and reclamation on a watershed. IMC's expert Peter Schreuder performed an analysis involving the Peace River, Alafia, and Withlacoochee River Basins. Phosphate mining activities take place in the Peace River and Alafia River Basins and no phosphate mining activities taken place in the Withlacoochee River Basin. Each of these watersheds has a gauging station (a place where flows are electronically measured on a continual basis going out of a watershed) maintained by the United States Geological Survey. The analysis performed by IMC's expert compared the pattern of flow in watersheds where no phosphate mining was taking place with flow patterns in watersheds where phosphate mining was occurring. IMC's expert gathered data from the farthest downstream gauging station at each of these three watersheds; the data dated back to nearly 1935. This data provided actual measured flow data, with rainfall as the driving variable. The purpose of the analysis was to determine if phosphate mining was having an influence on flow. It is alleged that phosphate mining reduces flow. If the allegation is correct, the trend would be downward because less flow in the river would be expected. However, the weight of the evidence showed that under normal flow conditions, mined basins have more flow than unmined basins and in storm events the mined basins moderate the runoff to some minor degree by attenuating runoff and allowing for a slower and later release as beneficial, normal, base flow instead of flood flows. 4. Non-Mining Impacts There is convincing evidence in the record that other types of developments expected in the Peace River Basin, which include commercial and residential development as well as agricultural development, do not have the potential to capture surface runoff to the extent of mining activities. Additionally, residential and commercial development, because they result in lower evaporation due to the abundant impervious areas, result in an increased runoff in the basin. Thus, if these types of developments were included in the impact analysis, there would be an additional increase in runoff. G. Specific Conditions The draft ERP sets forth numerous general and specific conditions. Petitioners and Intervenors question the sufficiency of several specific conditions. In particular, Specific Condition 4.c. requires IMC to collect and report flow data from the AFW, but does not identify a reference stream or indicate what the Department is do with the data and how the data is to be evaluated. Mr. Partney convincingly suggested that these issues should be included in Specific Condition 4.c. On this record, it is difficult to conclusively determine which stream should be used as a reference stream. Pursuant to its special expertise, the Department should consider adding supplemental language to clarify these issues. See generally Reedy Creek Improvement District v. State, Department of Environmental Regulation, 486 So. 2d 642 (Fla. 1st DCA 1986). Specific Condition 12.b.i. requires that "[t]he created replacement stream for the West Fork of Horse Creek shall have a similar hydroperiod to the upper reaches of the preserved area of Horse Creek." Mr. Partney suggested that while "there may be some impacts going on," "they're not as significant in terms of the ratio of the impact to the ratio of the project area at that point. There would be--certain to be significant area of watershed that was not experiencing impacts. And a substantial portion of the Horse Creek in this area is preserved. So there is some assurance at that point that there will be sufficient natural conditions to give [the Department] the data [the Department] needs." Nevertheless, the monitoring of flow patterns is critical to the success of this project. In this light, the Department should endeavor to assure itself that the portion of the Horse Creek to be used for comparison is suitable for the purposes reflected in Specific Condition 12.b.i.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: Petitioners and Intervenors have standing to challenge the issuance of ERP No. FL 0142476-003; IMC provided reasonable assurance that it has the ability to comply with the conditions of draft ERP No. FL 0142476-003; IMC has complied with all conditions for final issuance of draft ERP No. FL 0142476-003; ERP No. FL 0142476-003 be issued with the following additional permit condition: At least thirty (30) days prior to the initiation of mining operations, the final version of the financial responsibility mechanism required by Section 3.3.7.6 of the Basis of Review shall be provided to and approved by the Department as required by Rule 40D-4.301(l)(j), Florida Administrative Code (October 1995), and Rule 62-330.200(3), Florida Administrative Code. DONE AND ENTERED this 8th day of March, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2002. COPIES FURNISHED: Kathy C. Carter, Agency Clerk 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 Aliki Moncrief, Esquire Earthjustice Legal Defense Fund Post Office Box 1329 Tallahassee, Florida 32303 Edward P. de la Parte, Jr., Esquire Vivian Arenas, Esquire De la Parte & Gilbert, P.A. Post Office Box 2350 Tampa, Florida 33601-2350 Martha Y. Burton, Esquire Charlotte County Attorney's Office 18500 Murdock Circle Port Charlotte, Florida 33948-1094 Alan Behrens 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Douglas Manson, Esquire David M. Pearce, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606 John R. Thomas, Esquire Thomas & Associates, P.A. 233 3rd Street, North, Suite 302 St. Petersburg, Florida 33701 Thomas L. Wright, Esquire Lee County Attorney's Office 2115 Second Street Post Office Box 398 Ft. Myers, Florida 33902 Alan W. Roddy, Esquire Sarasota County Attorney's Office 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Roger W. Sims, Esquire Rory C. Ryan, Esquire Jeff Donner, Esquire Holland & Knight LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 Robert L. Rhodes, Esquire Holland & Knight LLP 2099 Pennsylvania Avenue, Northwest Washington, DC 20006 Susan L. Stephens, Esquire Holland & Knight LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 Patricia A. Petruff, Esquire Dye, Deitrich, Prather, Petruff & St. Paul, P.L. 1111 Third Avenue, Suite 300 Bradenton, Florida 34205 Craig D. Varn, Esquire Doreen Jane Irwin, Esquire 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
