The Issue The issue is whether to approve an application by Respondents, Palm Beach County (County) and The David Minkin Florida Realty Trust, Richard Thall, Robert Thall, Peter L. Briger, Paul H. Briger, and The Lester Family Investments, LP (The Briger Group), for a conceptual Environmental Resource Permit (ERP) authorizing a surface water management system to serve a mixed-use development in the City of Palm Beach Gardens known as Scripps Florida Phase II/Briger (Scripps project).
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Tsolkas resides at 822 North C Street, Lake Worth, Florida, which is approximately 16.8 miles (in a straight line) south-southeast of the project site and approximately one mile west of the Intracoastal Waterway (ICW). Among others, he expressed concerns in this case about the potential extinction of species and the impact of the proposed site on the ICW. However, other than a general interest in environmental issues, he presented no evidence to demonstrate how he is affected by the issuance of the permit. Petitioner Minaya resides at 901 North Federal Highway, Apartment A, Lake Worth, Florida, and approximately the same distance from the project site and ICW. He has the same concerns as Petitioner Tsolkas but presented no evidence to demonstrate how the project will affect his substantial interests. The County is a chartered county and a political subdivision of the state. It owns approximately 70.0 acres of the site on which the Scripps project will be located and the 193.92-acre off-site mitigation area for the project at the Pine Glades Natural Area (Pine Glades). It is a co-applicant for an ERP. The Briger Group is a co-applicant for the modified ERP and owns 611.69 acres of the project site. The original permit that is being modified was issued as conceptual approval on January 19, 1978. The District is a public corporation in the State, having been created by special act in 1949 and operating pursuant to Chapter 373, Florida Statutes. The Application On April 27, 2009, the applicants submitted an application to modify a conceptual ERP, Application No. 090427- 7, for a surface water management system to serve 681.89 acres of mixed-use development in the City of Palm Beach Gardens (City). The original permit was also issued as a conceptual approval in 1978 and has been modified conceptually on a number of occasions, most recently in 2001. The application includes 193.92 acres of off-site mitigation at Pine Glades in the northern part of the County and additional off-site mitigation through the purchase of mitigation credits at the Loxahatchee Mitigation Bank in the southern part of the County. "Conceptual approval" means "an [ERP], issued by the District Governing Board, which approves a conceptual master plan for a surface water management system or a mitigation bank." Fla. Admin. Code R. 40E-4.021(5). It constitutes final agency action and is "binding to the extent that adequate data has been made available for review by the applicant during the review process." Id. After conceptual approval is obtained, the applicants must then file an application for an ERP to construct and operate the surface water management system. Therefore, no construction will be authorized by this permit. On April 16, 2010, the District issued a Staff Report recommending approval of the requested ERP. A Revised Staff Report making minor changes and clarifications to the original proposed agency action was issued on May 4, 2010. The Project and the Site The proposed project that will be served by the surface water management system is a multi-use development on a 681-acre tract located south of Donald Ross Road and north of Hood Road in the City. The site is divided by Interstate 95 (I-95) into two wedge-shaped parcels known as the western and eastern parcels. The Florida Turnpike adjoins the western side of the western parcel. With the exception of the highways, the site is surrounded by residential development including two projects located just east of the site: Legends at the Gardens (on the northern side) and San Michele (on the southern side). A portion of the site located east of I-95 is mostly undeveloped and vegetated. However, approximately 60 acres located at the southeast corner of the site include an existing horse farm with improved and unimproved pastures. The central and southern portions of this parcel contain a number of ditches that were created prior to the 1950s. The portion of the site west of I-95 is undeveloped and vegetated, but it also includes a few mobile homes on approximately 2 acres at the southern end of the site. The upland habitats are disturbed and degraded and primarily include pine flatwoods, mixed hardwood-pine forest, hardwood hammock, and dry prairie, some of which are infested with Brazilian pepper, Australian pine, and Japanese climbing fern. There are also around 86 acres of state jurisdictional wetlands and other surface waters. Finally, the southwestern portion of the parcel located west of I-95 contains a prehistoric/archaeological site which is proposed for preservation. The County owns 70 acres of the property on the eastern parcel, while The Briger Group owns the remaining acreage. The project is anticipated to house the Scripps Research Institute, as well as ancillary institutional, commercial, and residential uses. The project received development of regional impact approval from the City on April 1, 2010, and is subject to a master plan that identifies land use districts, such as a biotech district, a town center district, residential districts, and a neighborhood-serving commercial district. The 70 acres owned by the County will be used to house the second phase of the Scripps Research Institute. It is unknown at this time whether the Scripps facility will house administrative offices, laboratory space, or some other use. The build-out schedule for the project is twenty years. Before construction can commence, the applicants will be required to obtain zoning and site plan approval from the City, authorization from both the Northern Palm Beach County Improvement District (Improvement District) and the Seacoast Utility Authority, and a permit from the County Health Department. Also, the applicants will be required to receive a construction-related modification to the ERP from the District. The Surface Water Management System In 2001, the District issued a permit to the Improvement District for conceptual approval of a surface water management system for flood protection within a 4,059.9-acre area known as Unit 2, which includes the area of the proposed project. See Respondents' Exhibit 57. Drainage from the project site is presently covered by this permit. The Improvement District's system was designed, constructed, and is being operated and maintained for stormwater treatment. The waters in that system are not considered waters of the State. The proposed project will discharge into the Improvement District's system, which is upstream of a permitted man-made control structure on the property designed to retain or detain stormwater runoff in order to provide treatment and attenuation of the stormwater. The proposed system is primarily a wet detention system consisting of three large basins: A1, B1E(East), and B1W(West). The system has been designed to provide water quality and storm water attenuation prior to overflowing to the Improvement District's Unit 2 master system. As shown in the conceptual plans, Basin B1W is located on the west side of I-95 and has a control elevation of 13.5 feet National Geodetic Vertical Datum (NGVD). Mostly residential development is anticipated in this basin with a small supporting commercial development. An existing 60-inch culvert located under I-95 will continue to connect the two wetland areas, identified as W1 and W2, that are located on both the west and east sides of I- 95, respectively. Basin B1E is located in the southeastern portion of the site and will be controlled at 13.0 feet NGVD. Anticipated development in this area will be mostly residential neighborhoods as well. Exhibit 2 of the Staff Report reflects that runoff from the out-parcels and the northern half of Hood Road will be directed into the proposed project area. Pervious and impervious assumptions were made for future Hood Road improvements and are listed in the land use table. See Respondents' Exhibit 43 at p. 3 of 26. Basin B1E will overflow into the Unit 2 master system via a control structure and outfall pipe which discharges to a wet pond located within the adjacent San Michele development to the east. Industrial and commercial development is planned in Basin A1, which is the northeastern basin. The lakes will be controlled at elevation 13.0 feet NGVD. Runoff from this basin will be directed eastward into the Improvement District's Unit 2 master system via a control structure and pipe connection into the lake within the Legends of the Gardens development to the east. The applicants submitted site grading assumptions and pervious/impervious percentages as well as stormwater modeling to demonstrate compliance with the existing master system for the overall Improvement District's Unit 2 master system. In addition, the system for this basin has been designed to accommodate inflows from approximately 50 acres of I-95 right- of-way through an existing control structure which was permitted as part of the I-95 widening project. The proposed project includes direct impacts to a total of 78.47 acres of on-site wetlands. Wetland mitigation to offset the adverse impacts includes enhancement of 7.50 acres of on-site wetlands; the purchase of 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank; off-site wetland and upland restoration and enhancement of 163.41 acres of wetlands; and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. Additionally, the District has adopted BOR provisions that implement the relevant portions of the rules. The conditions for issuance primarily focus on water quantity, water quality, and environmental criteria and form the basis of the District's ERP permitting program. The first step in the District's environmental review is to identify wetlands and other surface waters. On March 5, 2009, the District issued a formal determination of wetlands delineating 34 wetland areas and 4 jurisdictional surface water ditches. This determination was not timely challenged and therefore represents final agency action. That determination was used in this permit application. Water Quantity Criteria Rule 40E-4.301(1)(a) requires an applicant to provide reasonable assurances that the propose activity will not cause adverse affects to water quantity, while Rule 40E-4.301(1)(b) requires reasonable assurances that the proposed activity will not cause adverse flooding to on-site or off-site property. The BOR provides a method to calculate allowable discharge rates. The evidence is that the proposed discharge is well within the standards imposed by the rules governing water quantity impacts. There will be no on-site or off-site flooding as a consequence of the proposed project. Rule 40E-4.301(1)(c) requires reasonable assurance that there will be no adverse impacts to existing surface water storage and conveyance capabilities. The evidence supports a finding that the proposed discharge will not cause any adverse impacts. Also, the system is capable of being developed and of functioning as proposed, as required by Rule 40E-4.301(1)(i). Petitioners contended that the project poses a threat of over-draining, which will significantly affect the region directly and cumulatively. However, the project does not pose a risk of over-draining because the control elevation of the project will be maintained at a level consistent with surrounding properties and the proposed drainage rate is less than the allowable rate under the rules. Water Quality Rule 40E-4.301(1)(e) sets forth the requirements relating to water quality. Also, BOR Section 5 contains the design criteria that a project must follow regarding off-site discharges to provide reasonable assurances to satisfy the above rule. Water quality treatment will be provided in a proposed wet detention system which utilizes stormwater ponds. The evidence shows that the ponds are larger than required, thereby providing water quality treatment in excess of what is required by the BOR. All water quality standards will be met. Hazardous Waste Management Plan Petitioners contend that no hazardous waste management plan was submitted to the District. However, a plan is not required now because it would need to address the specific uses for the property, which have not yet been designated. Special Condition 31 of the permit requires that such a plan be submitted at the time an application for construction approval is filed with the District. When this is submitted, it will be reviewed to determine if there are reasonable assurances that hazardous materials, if any, will not enter the proposed project's surface water management system. Elimination and Reduction Under BOR Section 4.2.1, after the District identifies the wetlands and other surface waters, the next step is to consider elimination and reduction of impacts. However, BOR Section 4.2.1.2(b) provides that an applicant is not required to demonstrate elimination and reduction impacts when: the applicant proposes mitigation that implements all or part of a plan that provides greater ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. In considering this provision, the District concluded, consistent with the evidence, that the quality of the wetlands which will be adversely affected by this application is low, and the mitigation proposed will provide greater long-term ecological value than the wetlands impacted. This is because the mitigation at both Pine Glades and the Loxahatchee Mitigation Bank have regional ecological value, and these sites will provide greater long-term ecological value than the impacted wetlands. Secondary Impacts Rule 40E-4.301(1)(f) requires reasonable assurance that the project will not cause adverse secondary impacts to water resources. BOR Section 4.2.7 sets forth the requirements for on-site wetlands that will be preserved and enhanced. Under that section, secondary impacts to the habitat of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15 feet and an average width of 25 feet, are provided abutting the wetlands. In this case, the single wetland area being preserved is buffered in accordance with those requirements. Applicants have satisfied the requirements of the rule. Mitigation If impacts to wetlands and other surface waters will occur, then mitigation may be offered to offset the impacts to functions identified in BOR Sections 4.2 through 4.2.9. To assess the impacts and the value of mitigation, the applicants used the statewide Uniform Mitigation Assessment Method and the Wetland Rapid Assessment Procedure. Those results are found in Appendix 1 of the application and in Responses to Requests for Additional Information submitted in August 2009 and January 2010. Page 13 of the Staff Report describes the mitigation. The District also performed its own independent analysis of both the impact and mitigation. That analysis demonstrated that sufficient mitigation is available in the options identified to offset the impacts. In fact, there was a net functional gain to the environment. In order to offset 50.76 acres of wetland impacts, the applicants will provide restoration and enhancement of 139.6 acres of wetlands and 23.81 acres of uplands, and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. Mitigation at this location offsets those impacts and is appropriate because it will provide more functional gain than the amount of functional loss for the same habitat types that are being impacted. Because Pine Glades is within the same drainage basin as the impacts, and the mitigation offsets the impacts, the District is not required to consider cumulative impacts. See § 373.414(8), Fla. Stat.; Fla. Admin. Code R. 40E-4.302(1)(b). Petitioners suggested that because Pine Glades is already owned by the County and intended to be restored, by allowing the applicants to receive mitigation credit for the restoration amounts to "double dipping." However, the evidence shows that the 193 acres proposed as mitigation in the permit is site-specific; no one has ever received mitigation credit for it in the past and no one will be able to receive mitigation credit for it in the future; and The Briger Group paid $86,250.00 per functional unit to reimburse the County for the cost of the land. Mitigation credit for restoration at Pine Glades is appropriate. As compensation for impacts to a total of 26.14 acres of freshwater marsh wetlands, the applicants will mitigate off- site by purchasing 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank. This bank is of regional ecological significance. Mitigation at this bank offsets the impacts and is appropriate because it will offset the impacts to freshwater marsh wetlands. Drainage basins are established by District rule in BOR Figure 4.4-1. While Petitioners contended that BOR Figure 4.4-1 does not accurately identify the geographic boundaries of the South Indian River Basin, which is being used here, the District is required to follow its own rules when reviewing an ERP application. Therefore, the use of Figure 4.4-1 was appropriate to determine whether the project is located within or outside of that drainage basin. Because the Loxahatchee Mitigation Bank is not located within the same basin as the proposed impacts, it was necessary for the District to consider cumulative impacts which will be mitigated at that bank. See § 373.414(8), Fla. Stat. This means that the applicants are required to give reasonable assurances that the impacts proposed for mitigation at Loxahatchee Mitigation Bank would not result in unacceptable cumulative impacts if the regulatory precedent set by the permit were applied to all properties within the basin that have the same type of habitat as that being impacted by the project and that have potential for development. The project will be located in the South Indian River Basin. The District's cumulative impact analysis for that basin supports a finding that there is very limited potential for future wetland loss in the basin and reasonable assurances have been given that there will be no adverse cumulative impacts. See Respondents' Exhibit 60. Species Rule 40E-4.301(1)(d) requires an applicant to demonstrate that the activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. This evaluation is limited to wetland-dependent species. Upland species fall outside of the District's jurisdiction. Contrary to Petitioners' assertion, the hand fern is not a wetland-dependent species. Also, the District must rely on State-listed species, and not lists prepared by federal agencies. The evidence shows that the potential for utilization of this site by wetland-dependent species is minimal, and this site does not contain preferred habitat for nesting or denning of wetland dependent listed species. Although the site does not contain preferred habitat, the habitat value currently existing on this site will be replaced with mitigation at Pine Glades and the Loxahatchee Mitigation Bank. Public Interest Test In order to obtain a conceptual approval ERP, an applicant must provide reasonable assurances that the system located in, on, or over wetlands or other surface waters will not be contrary to the public interest and will not be inconsistent with the objectives of the District. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7.; § 373.414(1), Fla. Stat. The evidence establishes that reasonable assurances were provided to demonstrate that the proposed activities will not adversely affect the public health, safety, or the welfare or property of others; that they will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; that there are no issues related to navigability or the flow of water, erosion or shoaling; that the property does not currently provide fishing, recreational values, or marine productivity and is not open to the public; that the activity will be permanent; that there is an archeological site on the property which the applicants will preserve; that the mitigation will more than fully offset the impacts; and that the value of the functions currently being performed will not be adversely affected. Petitioners offered no evidence or analysis to rebut the expert testimony offered by Respondents. After balancing all seven factors, the evidence supports a finding that the activities will not be contrary to the public interest. Florida Coastal Management Program Petitioners contend that the project is inconsistent with the Florida Coastal Management Program (FCMA), which is administered by the Department of Environmental Protection (DEP). They also assert that the District is required to coordinate its review of the application with that agency and that it failed to do so. However, the issuance of the ERP (after a demonstration that all permitting criteria have been satisfied) constitutes certification that the project is consistent with the FCMA and no coordination with DEP is necessary. Other Criteria Any other criteria not discussed herein were either satisfied by the applicants or are not relevant to the project. Petitioners' Evidence Other than very limited cross-examination of some of Respondents' witnesses, Petitioner Minaya did not present any evidence to support his allegations. Other than cross-examination of Respondents' witnesses, Petitioner Tsolkas, a lay person, testified that his standing was based on general concerns that the project would drive species (such as the hand fern) into extinction, that it would pollute waters, including the ICW, and that it would destroy habitat for other species. No competent or persuasive evidence to support these contentions was presented. Other issues raised by Mr. Tsolkas were matters beyond the District's jurisdiction and are not considered in the permitting process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application No. 090427-7 with the conditions contained in the Amended Staff Report. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2010.
The Issue The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.
Findings Of Fact Background The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines." In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of 186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”). The proposed dock will terminate where the water will be four feet deep at mean low water. Navigating in and Near the Tidal Creek To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water. Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is 1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide. Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide. Therefore, the tidal creek (with a bottom elevation of 1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
Findings Of Fact By application number 21312, the applicant seeks a ten year water use permit for a total annual diversion of 3,831 million gallons to provide water and sewer services to an area containing approximately 7,300 acres. In September of 1969, the Florida Public Service Commission granted the applicant certificates of convenience and necessity. The existing facilities of the applicant include nine wells and an average capacity of 700 gallons per minute each. Based upon historical data and taking into accourt the reduction of construction in the service area, the projected 1984 water demand is 375 gallons per day per unit. This is equivalent to an average of 150 gallons per day per person, using a figure of 2.5 persons per living unit. The ultimate estimated population is to be 70,000 to 80,000 people with 28,000 to 32,000 living units. Based upon the average capacities of the wells, in order to meet the projected demand a total number of 22 or 23 wells will be required. This includes the nine existing wells, eleven proposed wells with the same 700 gallon per minute average and a fifteen percent standby capability of two or three additional wells. Rather than the total number of wells utilized -- 22 or 23, -- what is important is the total gallon per minute capacity of 15,400. An allocation based on this data would be equal to the applicant's requested annual maximum diversion of 3,831 million gallons and a daily maximum diversion of 18.37 million gallons. The requested diversion presents no threat of salt water intrusion. The proposed well sites will create no adverse impact upon the Fort Lauderdale well fields. While there is evidence of recharge to the aquifer from runoff waters, there is insufficient data to determine the exact amount which will be returned. For this reason, the staff report's water budget calculations are conservative.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that a ten year permit be issued to the applicant for a maximum annual diversion of 3,831 million gallons; a maximum daily diversion of 18.37 million gallons and a maximum installed field capacity of 15,400 gallons per minute, utilizing 22 or 23 wells with a capacity of 700 gallons per minute each. It is further recommended that the applicant be subject to the conditions set forth on page 5 of the staff report (Exhibit 8) concerning the submission of monthly reports of daily pumpage and actual connections or population served, conformance with health department standards of the water quality of all wells, and the installation and maintenance of an observation well and monthly reports of the data obtained therefrom. Respectively submitted and entered this 10th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. John R. Maloy Executive Director Central and Southern Florida Flood Control District P.O. Box V West Palm Beach, Florida 33402 Mr. Edward B. Deutsch 350 Southern Federal Building 400 North State Road 7 Margate, Florida 33063 Mr. John Wheeler P.O. Box V West Palm Beach, Florida 33402 Attorney for the Central and Southern Florida Flood Control District
The Issue The issues are whether Respondent Lennar Homes, Inc., is entitled to an environmental resource permit to construct a 516- acre residential development in Miami-Dade County known as Lakes by the Bay South Commons Project and, if so, under what conditions.
Findings Of Fact On May 18, 2001, Respondent Lennar Homes, Inc. (Lennar Homes), filed an application with Respondent South Florida Water Management District (District) for an environmental resource permit (ERP) for a 516-acre residential development in Miami- Dade County known as Lakes By The Bay (Project). On June 12, 2002, Lennar Homes filed a revised ERP application for the Project. The application, as revised, is for an ERP conceptually approving the construction of a surface water management system to serve the Project and authorizing the construction to clear the site, excavate the wet retention areas, and expand an existing lake. Providing 3300 single- family residences, the Project is the last phase of a master planned residential development, which presently contains over 1500 residences north and west of the Project. The Project is bordered by Southwest 97th Avenue to the west, Southwest 87th Avenue to the east, Southwest 216th Street to the north, and Southwest 232nd Street to the south. Immediately south of the Project are a regional wastewater treatment plant and county solid waste landfill. These facilities occupy opposing banks of the C-1 Canal, which runs a short distance from the southwest corner of the Project. The Project site is drained, cleared, and infested with Brazilian pepper and melaleuca. The Project will impact 135 acres of wetlands, but these wetlands are severely degraded due to the construction of roads, berms, and canals. No evidence suggests that the site is presently used by any listed species. At present, drainage across the site is from west to east, where stormwater is intercepted by the L-31E levy and canal running along the west side of Southwest 87th Avenue. At its nearest point (the southeast corner), the Project is about one mile from the southern part of Biscayne Bay. Biscayne Bay is an Outstanding Florida Water. Much of its central and southern parts, including the area closest to the Project site, are within Biscayne National Park. In contrast to the northern part of Biscayne Bay, the central and southern parts contain significant mangrove-lined coastal wetlands. The bay bottom in southern Biscayne Bay hosts dense seagrass beds, and coral reefs within Biscayne National Park support a diverse community of marine life. The L-31E levy and canal redirect stormwater from the Project site south to the C-1 Canal, which runs, in this area, in a northwest-to-southeast direction before emptying into Biscayne Bay. The C-1 Canal drains an extensive area to the north and northwest of the Project. The landfill and water treatment plant are a short distance downstream of the Proposed Project. The parties have stipulated that the Project meets the following ERP criteria (with minor rephrasing from the stipulation): The Project will not adversely affect significant historical and archaeological resources. The Project is not located within an Outstanding Florida Water and will not result in the direct discharge of surface water into an Outstanding Florida Water. Lennar has proposed mitigation to offset the adverse impacts of the Project, and the mitigation is in the same drainage basin as the adverse impacts. Therefore, the Project will not generate unlawful cumulative impacts, in violation of Section 373.414(8)(a)-(b), Florida Statutes. The Project will not cause adverse water quality impacts to receiving waters and adjacent lands, in violation of Rule 40E-4.301(a), Florida Administrative Code. The Project will not cause adverse flooding to onsite or offsite property, in violation of Rule 40E-4.301(b), Florida Administrative Code. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities, in violation of Rule 40E-4.301(c), Florida Administrative Code. The Project will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes, in violation of Rule 40E-4.301(g), Florida Administrative Code. The Project will not cause adverse impacts to a work of the District established pursuant to Section 373.086, Florida Statutes, in violation of Rule 40E-4.301(h), Florida Administrative Code. The Project will be conducted by an entity with sufficient financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, as required by Rule 40E-4.301(j), Florida Administrative Code. No special basin or geographic area criteria established in Chapter 40E-41, Florida Administrative Code, are applicable to the Project. The Project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling, as prohibited by Section 373.414(1)(a)3, Florida Statutes. The Project will be permanent, as addressed by Section 373.414(1)(a)5, Florida Statutes. The District issued its Staff Report on March 13, 2002. The Staff Report approves the proposed mitigation plan, which would enhance or create and preserve 135 acres of onsite wetlands by creating an upland buffer, emergent marsh and transitional herbaceous shrub areas, and tree island areas. Much of the proposed mitigation area will occupy the southern half of the perimeter of the Project site. As proposed in the mitigation plan, Lennar Homes will grant the District a conservation easement over the mitigation area and will be required to meet certain mitigation performance conditions. Shortly prior to the commencement of the final hearing in this case, the District decided to change the proposed permit regarding mitigation. The purpose of the change was to require Lennar Homes to allow the mitigation area to be used as a flowway between the C-1 Canal, upstream of the nutrient loads deposited by the landfill and water treatment plant, and an area to the east of the Project site. The receiving area consists of vestigial tidal creeks leading to presently remaining tidal creeks that empty into small embayments within Biscayne Bay. The general purpose of the change was to remediate the loss of freshwater flows into these tidal creeks, the embayments, and Biscayne Bay that resulted from the construction of drainage canals and levies, such as C-1 and L31-E. Accordingly, the District issued an Addendum to Staff Report on August 9, 2002. The Addendum adds an easement to the original mitigation plan by adding Special Condition #24, which states: No later than 30 days after permit issuance and prior to commencement of construction resulting in wetland impacts, the permittee shall submit two certified copies of the recorded flowage easement for the mitigation area and associated buffers and a GIS disk of the recorded easement area The recorded easement shall be in substantial compliance with Exhibit 41. Any proposed modifications to the approved form must receive prior written consent from the District. The easement must be free of encumbrances or interests in the easement which the District determines are contrary to the intent of the easement. . . . Exhibit 41 (actually Exhibit 41A) is entitled, "Perpetual Flowage, Inundation, Construction, and Access Easement." Representing a grant from Lennar Homes to the District, the easement (Flowage Easement) is for any and all purposes deemed by [the District] to be necessary, convenient, or incident to, or in connection with, the unrestricted right to regularly, or at any time, and for any length of time[,] overflow, flood, inundate, flow water on, across, and through, store water on, and submerge the [encumbered property], together with the unrestricted right at any time to enter upon and access the [encumbered property], with any and all vehicles and equipment, including but not limited to the right to move, transport, store, operate, and stage equipment, materials and supplies, in order to construct, operate, and maintain any and all structures, improvements, equipment, pumps, ditches and berms upon the [encumbered property] deemed by [the District] to be necessary, convenient, incident to or in connection with the implementation of the BBCW Project on the [encumbered property], or in connection with any project in the interest of flood control, water management, conservation, environmental restoration, water storage, or reclamation, and allied purposes, that may be conducted now or in the future by the [District], or to carry out the purposes and intent of the statutory authority of the [District], presently existing or that may be enacted in the future, together with all right, title, and interest in and to the [BBCW] Project Structures. * * * This Easement shall at no time be construed to alleviate or release [Lennar Home's] responsibilities and require [sic] under ERP Permit No. to construct and maintain an on-site mitigation area as described and authorized in the ERP Permit. Other provisions of the Flowage Easement impose all risk of loss in connection with the flowway upon Lennar Homes, which indemnifies the District from all losses, costs, damages, and liability in connection with the flowway. On September 5, 2002, after the hearing, but a few days before the taking of the post-hearing testimony, the District issued a Revised Addendum to Staff Report. The Revised Addendum restates Special Condition #24 with a few relatively minor changes and adds Special Conditions ##25 and 26. Special Condition #25 attempts to harmonize the Flowage Easement with the original mitigation plan contemplated by the Staff Report. Special Condition #25 provides that when the District exercises its rights under the Flowage Easement, other special conditions shall be deleted, so as, for example, to relieve Lennar Homes of its obligations to maintain the mitigation area (except for a 25-foot buffer) and post a mitigation-performance bond. Special Condition #26 changes the language in the conservation easement, which was contemplated by the original Staff Report and mitigation plan, to harmonize this easement with the Flowage Easement. Lennar Homes has submitted a version of the Revised Addendum to Staff Report that would satisfy its concerns. The Lennar Homes version would require the District, within 30 days after issuing the ERP to Lennar Homes, to obtain permits from the U.S. Army Corps of Engineers and the local environmental regulatory agency, although not the Florida Department of Environmental Protection, which, under state law, would have to issue an ERP to the District before it could construct the flowway. The Lennar Homes version would also give the District only 90 days after issuing the ERP to Lennar Homes within which to exercise its right to construct the flowway and would sequence events so that Lennar Homes would not spend the estimated $2 million on wetland enhancement and creation and then lose the investment due to the inundation of the mitigation site with water, as authorized by the Flowage Easement. The Comprehensive Everglades Restoration Plan plays a crucial role in this case. But for this plan, the District would not have attached the additional conditions contained in the Addendum to Staff Report and Revised Addendum to Staff Report--without which conditions, the District now contends that Lennar Homes is not entitled to the ERP. Congress initially authorized the Central and Southern Florida (C&SF) Project in 1948. Objectives of the C&SF Project included flood control, water supply for municipal, industrial, and agricultural uses, prevention of saltwater intrusion, and protection of fish and wildlife. The C&SF Project attained these objectives, in part, through a primary system of 1000 miles each of levees and canals, 150 water-control structures, and 16 major pump stations. Unintended consequences of the C&SF Project have included the irreversible loss of vast areas of wetlands, including half of the original Everglades; the alteration in the water storage, timing, and flow capacities of natural drainage systems; and the degradation of water quality and habitat due to over-drainage or extreme fluctuations in the timing and delivery of freshwater into the coastal wetlands and estuaries. In 1992, Congress authorized the C&SF Project Comprehensive Review Study (Restudy). The objective of the Restudy was to reexamine the C&SF Project to determine the feasibility of modifying the project to restore the South Florida ecosystem and provide for the other water-related needs of the region. Completed in April 1999, the Central and Southern Florida Project Comprehensive Review Study Final Integrated Feasibility Report and Programmatic Environmental Impact Statement (Restudy Report) notes that, among the unintended consequences of the C&SF Project, was "unsuitable freshwater flows to Florida and Biscayne bays and Lake Worth Lagoon [that] adversely impact salinity and physically alter fish and wildlife habitat." The Restudy Report states that, absent comprehensive, new restoration projects, the "overall health of the [South Florida] ecosystem will have substantially deteriorated" by 2050. The Restudy Report recommends a comprehensive plan for the restoration, protection, and preservation of the water resources of Central and South Florida. This plan is known as the Comprehensive Everglades Restoration Plan (CERP). Acknowledging the complex dynamics of the restoration goals identified in CERP, the Restudy Report establishes Project Implementation Reports to tie together CERP and the detailed design necessary for the construction of individual restoration projects and adaptive assessments to monitor the performance of individual components, incorporate new data, and refine future components. The Restudy Report is, among other things, a programmatic environmental impact statement. The Restudy Report states: "Due to the conceptual nature of [CERP] and the associated uncertainties, many subsequent site-specific environmental documents will be required for the individual separable project elements." In May 2002, the District and U.S. Army Corps of Engineers completed a draft of the Project Management Plan for the Biscayne Bay Coastal Wetlands (BBCW PMP). Noting that a "major goal of [CERP] is to improve freshwater deliveries to Biscayne Bay," the BBCW PMP identifies the BBCW project as the means by which to restore some of the coastal wetlands and tributaries in south Dade County. The BBCW PMP states that the primary purpose of the BBCW project, which is one of sixty projects contained in CERP, is to "redistribute freshwater runoff from the watershed into Biscayne Bay, away from the canal discharges that exist today and provide a more natural and historic overland flow through existing and or improved coastal wetlands." The Cutler Wetlands subcomponent of the BBCW project encompasses the Project site. One of the objectives of the Cutler Wetlands subcomponent is to divert water from the C-1 Canal upstream of the landfill and water treatment plant to the east of the L-31E levy and canal. In connection with the Cutler Wetlands subcomponent and the possible role of the flowway identified in this case, the District retained Dr. John Meeder, a Biscayne Bay ecologist associated with the Southeast Environmental Resource Center at Florida International University, to perform an abbreviated study and issue a report concerning the conditions required for the restoration of the coastal wetlands in the vicinity of the coastal wetlands to the north of the C-1 canal and east of the Project site (Meeder Report). The Meeder Report studies two feasible freshwater delivery options and prefers a bypass flowway along Southwest 224th Street, across roughly the middle of the Project site and north of most of the proposed mitigation area, to the L-31E levy and canal. The distribution system resulting from the preferred route would use the natural grade of the land to divert the water to the coastal wetlands and tidal creeks to the east and south that are targeted for rehydration. The alternative flowway route would run along Southwest 232nd Street, in the approximate area of the Flowage Easement, but would require pumping to distribute the water north along the L-31E levy and canal for release to the targeted coastal wetlands and tidal creeks. Obviously, the District has chosen the less-preferred route to minimize the impact on the Project. The Meeder Report considers the amount of freshwater required for two rehydration options. In the first option, water diverted from the C-1 Canal and passing through the flowway would rehydrate only the tidal creeks, which then empty into the embayments that lead to Biscayne Bay. In the second option, water diverted from the C-1 Canal and passing through the flowway would rehydrate the tidal creeks and the surrounding coastal wetlands. To maintain an appropriate salinity range and rehydrate only the tidal creeks, the flowway would need to deliver 70 acre/feet per day in the dry season and 95 acre/feet per day in the wet season. To maintain an appropriate salinity range and rehydrate the tidal creeks and surrounding coastal wetlands, the flowway would need to deliver 209 acre/feet per day in the dry season and 1139 acre/feet per day in the wet season. Several factors militate against an attempt to rehydrate the coastal wetlands surrounding the targeted tidal creeks. Potential errors in data and analysis increase in magnitude with the larger freshwater diversions needed to rehydrate the tidal creeks and surrounding coastal wetlands, and Dr. Meeder admitted that the largest value was very approximate. Potentially serious impacts upon salinity and associated vegetative communities increase in likelihood with the larger freshwater diversions needed to rehydrate the tidal creeks and surrounding coastal wetlands. Also, the diversion of larger volumes of water from the C-1 Canal may have adverse impacts on downstream conditions. At the point of the C-1 Canal where it first enters the landfill and wastewater treatment plant (just downstream from the flowway), the average flow of the C-1 Canal is 350 acre/feet per day, but the median flow is only 160 acre/feet per day. (The average flow rate is skewed by occasional, very high daily flows of 4000 acre/feet during large storm events.) The larger volumes diverted to rehydrate the tidal creeks and surrounding coastal wetlands would, at times, withdraw a relatively large portion of the water from the C-1 Canal. For these reasons, the District justifiably elected to seek a flowway that would rehydrate only the tidal creeks, including the vestigial tidal creeks, but not the surrounding coastal wetlands. Petitioners and Lennar Homes have raised numerous other issues about the flowway that the District seeks to obtain. The District requires a 200-acre flowway to rehydrate adequately the vestigial tidal creeks, the presently remaining tidal creeks, the small embayment, and then the subject area of Biscayne Bay, but the mitigation area potentially available on the Project site is limited to about 135 acres, and some uncertainty exists as to whether the District can obtain control of the remaining land necessary to assemble a 200-acre flowway. Even the 200-acre flowway is probably insufficient to accommodate significant water treatment, so water quality issues remain outstanding, notwithstanding the better water quality upstream of the landfill and water treatment plant. Other issues arise from the requirement that the District obtain an ERP from the Florida Department of Environmental Protection, as well as one or more federal agencies, before it could construct the flowway. To the extent that this requirement delays and possibly precludes the construction of the flowway, this requirement militates against the inclusion of the Flowage Easement and new special conditions in the ERP. To the extent that this requirement insures that the flowway will not cause flooding or adverse water quality in the tidal creeks, embayment, and ultimately Biscayne Bay, this requirement militates in favor of the inclusion of the Flowage Easement and new special conditions in the ERP; the absence of detailed specifications for the design and construction of the flowway precludes any assurance that the flowway would not flood or otherwise damage the upland portion of the Project site, so subsequent permit-review is essential to the present inclusion of the Flowage Easement and new special conditions in the ERP. It is impossible to credit the District's evidence that various transition-zone wetland species would survive inundation under unknown flow rates, of variable depths, and of unknown and possibly indefinite duration. Lennar Homes legitimately is concerned that its substantial investment in mitigation, pursuant to the original mitigation plan, would be wasted if the District constructs the flowway. As presently drafted, the Flowage Easement and new special conditions contemplate that Lennar Homes would construct the original mitigation, at a substantial cost, and the District would later construct and inundate the flowway through largely the same area. Marketing of parcels in close proximity to the flowway might be complicated by the uncertainty concerning what will occupy the area beyond a resident's backyard--a benign passive mitigation area or a flowway that may range from a intermittently wet slough or glade to a placid lake to a raging swollen river--and by the probability that the District would not construct the flowway until 2009. The District justifies the Flowage Easement and new special conditions on two grounds. First, the District contends that the ERP without the Flowage Easement and new special conditions is harmful to the District's water resources. Second, the District contends that the ERP without the Flowage Easement and new special conditions is inconsistent with the overall objectives of the District. The first argument misses the mark. A project that is otherwise permittable, except for the fact that it interferes with the establishment of a restoration project, does not harm the water resources of the District; such a Project interferes with the improvement of the water resources of the District. In this case, the parties have stipulated that the Project will not cause adverse impacts due to the original mitigation plan. If adverse impacts means anything, it means harm to the water resources of the District. The second argument requires the identification of the District's objectives. The Florida Legislature has declared at Section 373.1502(2)(a), Florida Statutes, that CERP implementation is "in the public interest and is necessary for restoring, preserving and protecting the South Florida ecosystem . . .." In May 2000, the Florida Legislature enacted the Everglades Restoration Investment Act, which commits Florida to contribute over $2 billion for the implementation of CERP-- Florida's share for the first ten years of implementation. The Florida Legislature has made the implementation of CERP an overall objective of the District. Several factors are important in determining whether the ERP without the Flowage Easement and new special conditions would be inconsistent with the overall objective of the District to implement CERP. These factors require consideration of the purpose of the proposed restoration project; the extent of completion of the project's design, permitting, and construction; if the project has not yet been designed or permitted, the likelihood of construction; when the project would be constructed; the impact of the ERP without the Flowage Easement and new special conditions upon the proposed restoration project; and the existence of feasible alternatives to accomplish the same objectives as those achieved by the proposed restoration project. These factors generally favor the issuance of the ERP, but only with the Flowage Easement and new special conditions. The flowway project would rehydrate a portion of the estuarine waters of southern Biscayne Bay that are sufficiently healthy to respond vigorously to the new freshwater infusions, so the project is important. The C-1 Canal appears to be the only readily available source of sufficient volumes of freshwater to achieve the rehydration of the tidal creeks, and the proposed path through the Lennar Homes mitigation area appears to be the only readily available means by which to divert the freshwater to the targeted tidal creeks. If the flowway project is limited to the tidal creeks and does not extend to the surrounding coastal wetlands, the likely environmental impacts appear to be positive on the receiving areas and the downstream portion of the C-1 Canal. For these reasons, even though the project is at an early conceptual stage and construction would not start for six years, it seems likely to be constructed. The apparent difficulty in securing the necessary additional 65 acres may yet be overcome through property acquisition, and, if not, the District may be able to increase the capacity of the flowway without jeopardizing the adjacent uplands. For the reasons stated in the Conclusions of Law below, other factors in determining whether the ERP without the Flowage Easement and new special conditions would be inconsistent with the overall objective of the District to implement CERP require consideration of the impact upon Lennar Homes in accommodating the Flowage Easement and new special conditions. With two exceptions, the Flowage Easement and new special conditions do not impose an inordinate burden upon Lennar Homes. The flowway would occupy the portion of the Project site that would have been subject to the conservation easement that was part of the original mitigation plan. Lennar Homes' responsibility for maintenance is considerably lessened if the District constructs the flowway, whose special maintenance needs can only be met by the District or its contractors. Although Lennar Homes may experience some sales resistance due to the uncertainty of the use of the mitigation area, the assurances gained from the subsequent permitting process, during which the District will seek an ERP from the Florida Department of Environmental Protection for the construction of the flowway, should allay reasonable concerns about flooding and other damage to the adjacent uplands. In three respects, though, the District has abused its discretion in preparing the Flowage Easement and new special conditions. First, the District abused its discretion in requiring Lennar Homes to perform mitigation work in the mitigation area, pursuant to the original mitigation plan, to the extent that the products of such work will likely be destroyed or substantially harmed by the construction and operation of the flowway. The value of mitigation rests largely in the functions that it can support through longterm viability. The construction and operation of the surface water management system, the posting of a sufficient bond to guarantee future performance under either mitigation scenario, the execution and delivery into escrow of deeds and other legal instruments sufficient to meet the requirements of the Flowage Easement and new special conditions (subject to the two matters discussed in this and the two following paragraphs), and the construction of the portion of the original mitigation that would not be impacted by the flowway sufficiently respond to the need for mitigation, until the District finally determines the need for it to exercise its rights under the Flowage Easement. Second, the District abused its discretion by omitting any timeframe for the District to exercise its rights under the Flowage Easement and new special conditions. The timeframe proposed by Lennar Homes for the District to make this final determination of whether to proceed with the flowway is unreasonable and ignores the substantial period of time required to design, fund, and permit the flowway. But a timeframe may be especially important if Lennar Homes encounters more marketing resistance than might be reasonably anticipated. Therefore, the new conditions should provide that if construction of the flowway is not substantially completed by 2011, then the Flowage Easement shall be released and returned to Lennar Homes, upon its commencement, without delay, of the construction of any of the original mitigation that it did not already complete. Third, the District also abused its discretion in the Flowage Easement and new special conditions in the allocation of liability for the flowway, including apparently its construction, maintenance, and operation. The District would impose this liability upon Lennar Homes, which would have to indemnify the District for construction damage or any malfunctions in the operation of the flowway, such as damage to adjacent uplands by flooding, erosion, or contamination. The District has imposed this restoration project on Lennar Homes and has done so, not to avoid harm to the District's water resources, but to achieve the overall objective of the District to implement CERP. The District and its contractors, not Lennar Homes, will construct, maintain, and operate the flowway. The District, not Lennar Homes, has the expertise in the design, construction, and operation of water-control facilities of this type. This record does not disclose a single legitimate reason to impose upon Lennar Homes the liability for any aspect of the flowway that does not result from the acts or omissions of Lennar Homes or its assignees as owners of the adjacent uplands. Although, as stated in its proposed recommended order, the District does not object to the standing of Petitioners, Respondents did not stipulate to the standing of any Petitioners. Petitioners The Everglades Trust, Inc., and The Everglades Foundation, Inc., offered no witnesses concerning their standing, and no exhibits address the standing of these parties. The record thus fails to demonstrate that Petitioners The Everglades Trust, Inc., and The Everglades Foundation, Inc., are substantially affected by the proposed agency action. Petitioner National Parks Conservation Association, Inc., (National Parks) is a not-for-profit corporation registered in Florida as a foreign corporation. The corporate purpose of National Parks is to protect and enhance America's national parks, including Biscayne National Park, for present and future generations. National Parks seeks the protection and enhancement of the Biscayne National Park through the successful implementation of CERP. National Parks has 350,000 members, including 19,900 in Florida. Members of National Parks use Biscayne National Park for recreational boating, fishing, snorkeling, fish watching, scuba diving, and camping (on the barrier islands). Members of National Parks are actively monitoring the implementation of CERP. Petitioner Florida Audubon Society, Inc. (Florida Audubon), is a Florida not-for-profit corporation that was originally incorporated in Florida in 1900. The corporate purpose of Florida Audubon is to protect, conserve, and restore Florida's heritage through the preservation of the state's natural resources. Florida Audubon has adopted as its highest priority the design and implementation of CERP. Florida Audubon has 32,000 members in Florida, including over 2100 members in Dade County. Numerous of these members engage in bird watching, recreation, and scientific research in Biscayne National Park. Florida Audubon organizes membership trips to Biscayne Bay, conducts its annual Bird-athon and Christmas Bird Count in the vicinity of Biscayne Bay, and conducts various environment educational programs in and concerning Biscayne Bay. The issuance of the ERP without the Flowage Easement and new special conditions would substantially impact the ability of the District to restore this part of Biscayne Bay. Without such restoration, the functions of Biscayne Bay will slowly decline until eventually the overall health of the entire South Florida ecosystem will be substantially deteriorated. Thus, National Parks and Florida Audubon would be substantially affected by the issuance of the ERP without the Flowage Easement and new special conditions.
Recommendation It is RECOMMENDED that the District issue the environmental resource permit with the Flowage Easement and new special conditions, as modified in accordance with the matters presented in paragraphs 39-41. DONE AND ENTERED this 10th day of January, 2003, 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 10th day of January, 2003. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Richard Grosso Louise Caro, Certified Legal Intern Environmental & Land Use Law Center, Inc. Shepard Broad Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 Marcy I. LaHart Marcy I. LaHart, P.A. 711 Talladaga Street West Palm Beach, Florida 33405 Erin L. Deady Environmental Counsel 444 Brickell Avenue, Suite 850 Miami, Florida 33131 E. Thom Rumberger Rumberger, Kirk & Caldwell, P.A. 403 East Park Avenue Tallahassee, Florida 32301 Luna Ergas Phillips Douglas H. MacLaughlin Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Frank E. Matthews Gary V. Perko Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
The Issue Whether Petitioner should be granted No Notice General Environmental Resource Permits for Lots 61, 245, and 247 within Unit of Development 11 of the Indian Trail Improvement District, pursuant to permitting criteria of Chapter 373, Part IV, Florida Statutes, Chapters 40E-40 and 40E-400, Florida Administrative Code, and the South Florida Water Management District's "Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District--November 1996."
Findings Of Fact Petitioner, Royal Palm Beach Colony (Royal Palm), is a limited partnership registered and authorized to do business in the State of Florida. Respondent, South Florida Water Management District (SFWMD), is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a water management district, with its principal office in West Palm Beach, Florida. Intervenor, 1000 Friends of Florida, Inc., is a not- for-profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. Intervenor, Indian Trail Improvement District (ITID), is a special district of the State of Florida established by special act of the Legislature, Chapter 57-646, Laws of Florida, and operating pursuant to applicable provisions of Chapter 298, Florida Statutes, as well as special acts of the Legislature. Royal Palm owns approximately 171 lots within Unit of Development 11 of ITID (Unit 11) in Palm Beach County, Florida. Each lot is approximately 1.25 acres. Not all of the lots owned by Royal Palm in Unit 11 are contiguous. Unit 11 is a rural subdivision within ITID, in which there are numerous private property owners. The property of Royal Palm that is the subject of dispute is comprised of three lots, Lots 61, 245, and 247. Unit 11 is within the C-18 Basin. Prior to the construction of the C-18 Canal, the area was typically drained by sheet flow to the north. Because of the flat topography, the drainage in the C-18 Basin is poor; therefore, following periods of heavy rainfall much of the land is inundated. Unit 11 contains an extensive amount of wetlands. There are currently no habitable structures within Unit 11. It consists of vacant lots with an interconnected network of roads, canals, and roadside swales. On August 15, 1975, SFWMD's predecessor, The Central and Southern Florida Flood Control District, issued ITID a surface water management permit, Permit No. 50-00136-S (the 1975 permit) for construction and operation of a surface water management system serving Unit 11. The permit authorizes discharge from Unit 11 to the west leg of the C-18 canal via three culverts. In 1988, SFWMD undertook a comprehensive examination of the C-18 Basin, which resulted in a publication entitled "Technical Publication 88-11, Flood Management Study of the C- 18 Basin, August, 1988." The study documented that the western leg of the C-18 canal lacked capacity to accept the permitted discharge from Unit 11. SFWMD determined that the development of Unit 11's flood control and water quantity management system according to Permit No. 50-00136-S would be inconsistent with the overall objectives of SFWMD, harmful to the water resources and the public's health, safety, and welfare, and to the policies and purposes of Chapter 373, Florida Statutes, and not in the best interest of future residents of Unit 11. SFWMD and ITID entered into a consent agreement concerning Unit 11 on July 7, 1989 (the Consent Agreement). SFWMD and ITID agreed that ITID would apply for, process, and obtain a modification of Permit No. 50-00136-S to address and resolve SFWMD's flooding and water quality concerns. In addition, ITID was to construct the surface water management system authorized in the permit modification in accordance with the terms of the permit. ITID received a permit from SFWMD in 1990 authorizing modifications to the surface water management system in order to address the issues identified in the Consent Agreement, namely potential flooding of homes constructed for future residents of Unit 11. The improvements approved in the 1990 permit were never implemented, and the permit expired. In 1992, ITID proposed a different modification to the surface water management system that proposed an impoundment for retention of stormwater. The permit application was recommended for denial by SFWMD staff, but has never been presented to the SFWMD Governing Board for final agency action. The problems regarding the water quality and flooding problems set forth in the Consent Agreement have not been remedied. On December 4, 1997, Royal Palm obtained variances from the Palm Beach County Health Department (the Health Department), granting Royal Palm the right under certain specified conditions to construct on-site sewage treatment and disposal systems (OSTD Systems) on Lots 61, 245, and 247. Originally, the Health Department had denied Royal Palm's request for permission to construct the OSTD Systems on lots 61, 245, and 247 on the grounds that the lots were located in an area subject to frequent flooding and the drainage in the subdivision had not been constructed in accordance with SFWMD's requirements. Subsequent to the granting of the variance, Royal Palm revised its site plans for the three lots, and those revised plans have not been reviewed by the Health Department for compliance with applicable rules. On March 19, 1998, Royal Palm notified SFWMD that Royal Palm was entitled to a No Notice General Permit (NNGP) for Lots 61, 245, and 247 for activities in uplands pursuant to Rule 40E-400.315, Florida Administrative Code. On April 9, 1998, SFWMD issued its agency action by letter that informed Royal Palm that SFWMD staff had determined that the three lots did not qualify for a NNGP. The letter stated the reasons for denial as follows: Reasonable assurances have not been provided to show that the proposed system or project is not part of a larger common plan of development. See Rule 40E- 400.315(1)(f), Fla. Admin. Code. Royal Palm Colony is the owner of approximately 170 lots within Unit 11 of the Indian Trail Improvement District, and the three proposed lots appear to be merely part of this large common plan of development. Reasonable assurances have not been provided to show that construction and/or operation of the proposed system with use of septic systems and the associated lack of water quality treatment will not cause pollution in violation of water quality standards. See Rule 40E-4.301(1)(e), and 40E-400.215(11), Fla. Admin. Code. There is not a viable or functioning stormwater management system in place or proposed to provide reasonable assurance that the septic systems would properly function. Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause adverse secondary impacts to the water resources, including, but not limited to, significant interference with the construction and operation of a regional stormwater system needed for adequate flood protection and stormwater treatment in the Unit 11 area. See Rule 40E-400.301(1)(f), Fla. Admin. Code. Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause water quality impacts to receiving waters and adjacent lands. See Rule 40E- 4.301(1)(a), Fla. Admin. Code. The proposed project adds impervious area and eliminates water storage. This consideration is especially relevant when considering the larger common plan of development. Reasonable assurance has not been provided to show that construction and/or operation of the proposed system will not cause adverse flooding to on-site and or/or (sic) off-site properties. See Rule 40E- 4.301(10)(b), Fla. Admin. Code. The proposed project adds impervious area and eliminates water storage. This consideration is especially relevant when considering the larger common plan of development. Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause adverse impacts to existing surface water storage and conveyance capabilities. See Rule 40E-4.301(10)(c), Fla. Admin. Code. The proposed project adds impervious area and eliminates water storage. This consideration is especially relevant when considering the larger common plan of development. Reasonable assurance has not been provided to show that construction and/or operation of the proposed system will not adversely impact the value of functions provided to fish and wildlife and listed species and other surface waters. See Rule 40-4.301(1)(d), Fla. Admin. Code. This consideration is especially relevant when considering the larger common plan of development. Reasonable assurance has not been provided to show that the proposed system or project is capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed. See Rule 40E- 4.301(1)(i), Fla. Admin. Code. On April 23, 1998, Royal Palm filed its Petition for Formal Administrative Hearing with the clerk of SFWMD, initiating this proceeding. Rule 40E-400.315(1)(f), Florida Administrative Code, is intended to authorize only very minor activities that have no potential to cause harm to water resources. Because the NNGP is issued by rule, SFWMD does not typically review projects that are conducted pursuant to a NNGP. A NNGP does not authorize projects that are part of a common plan of development or sale. In determining whether an activity is within a larger common plan of development, SFWMD staff look to see whether the project has shared infrastructure that facilitates development, such as canals, swales, and roads. A surface water management is in place in Unit 11. It consists of roads, swales, and drainage canals. The system drains to the C-18 canal via three culverts. The system was put into place as a result of the issuance of the 1975 permit, but there have been no modifications to the system as required by the Consent Agreement. During the last ten years ITID has done minimal maintenance to the system. A common road network within Unit 11 provides access to each of the three lots. The lots will depend on the swales and drainage canals as part of overall stormwater management system that serves Unit 11. Unit 11 is a common plan of development. Accordingly, the activities proposed by Royal Palm, filling in order to construct three single family houses with driveways, mounded septic tank systems, and wells within Unit 11 are not authorized pursuant to a NNGP. Royal Palm's predecessor company originally owned all the lots in Unit 11. Royal Palm is presently liquidating its assets. Royal Palm selected the three lots at issue in this case for permitting for individual homes because the lots represented a good overview of the different types of Royal Palm's holdings in the area. If Royal Palm is able to build homes on the three lots and depending on the market conditions and other outside factors, Royal Palm will make a decision on how to liquidate the other 168 lots in Unit 11. It is anticipated that the construction of the homes on the lots at issue will involve placement of fill. Land development, including the placement of fill, displaces stormwater that would, on a property in its natural condition, pond on the surface or soak into the ground. In order to determine whether a project complies with the flood protection criteria, SFWMD staff must consider the effect the proposed land development has off-site, and the effects surrounding lands may have on the lot to be developed. The flood routing calculations provided by Royal Palm in its application did not provide any analysis of how discharges from surrounding properties would affect the performance of the surface water management systems constructed on the lots at issue. Nor did Royal Palm address the potential for flooding of off-site properties by stormwater displaced by fill and impervious areas that are contemplated on Lots 61, 245, and 247. The three lots are not hydrologically separate from the remainder of Unit 11. Royal Palm's failure to include a detailed analysis of the surrounding area also precluded SFWMD from making a determination as to the impacts of the proposed activities upon existing surface water storage and conveyance capabilities. The proposed projects are single family houses. It is reasonable to expect that some discharge of untreated stormwater runoff from the system directly into wetlands and other surface water will occur. For Lots 245, 247, and 61, the proposed stormwater management system includes a dry detention area. Considering the topographic information for this site, part of the runoff from the fill area will not flow into the dry detention area but will flow untreated directly into wetlands and other surface waters. The runoff could reasonably be expected to include oils, grease, and petroleum from the driveway area and herbicide and pesticides from the yard area. The untreated runoff could pose an adverse impact. Development adjacent to wetlands has the potential to disrupt the usage of those wetlands by wildlife. Section 4.2.7 of the Basis of Review provides that secondary impacts to the habitat functions of wetlands associated with adjacent upland activities are not considered adverse if buffers with a minimum width of 15 feet and an average width of 25 feet are provided abutting those wetlands. In certain circumstances, additional measures are necessary. The Basis of Review provides that buffers must be in undisturbed condition, except that drainage features can be located in the buffer if their construction and operation will not negatively impact the wetlands. The design drawings for Lots 245 and 247 demonstrate that the buffers are not undisturbed because fill will be placed in the buffer areas. There is no treatment system in place for the roads in Unit 11; thus, there is a potential for untreated runoff from the roads, which could contain oils, grease, and petroleum constituents, to reach wetlands or surface waters. The roads in Unit 11 are sometimes under water and will require increased maintenance to correct erosion from increased vehicular traffic. Road maintenance and grading present the potential to discharge sediment laden water into adjacent wetlands. This threat is particularly great in Unit 11 because many of the roads go directly through wetlands. The engineering calculations submitted by Royal Palm anticipate that the elevation of the roads will be raised. Raising the elevations will require additional fill, and because several roads in Unit 11 go through wetlands, additional filling of wetlands can be anticipated. Section 6.9(a) of the Basis of Review, requires that residential projects must have the calculated ability to discharge a sufficient volume of stormwater such that the system can return to the control elevation within 12 days of a design storm event. Royal Palm failed to provide information demonstrating that the storage volume provided by the systems proposed for the three lots can be recovered and therefore available for subsequent storm events. Without an adequate understanding of the functioning of the overall surface stormwater management system in Unit 11, it is impossible to determine the amount of time necessary for the systems on the three lots to bleed down to control elevation. In order to allow access to the three lots from the roads, fill must be placed in the roadside swales. Because the elevation of the roadside swales is below the seasonal high water table, they are defined as other surface waters. The swales are depressional areas that support an abundance of obligate wetland vegetation; thus, they are encompassed within the definition of jurisdictional wetlands. Thus, the project will involve direct impacts to wetlands.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Royal Palm Beach Colony, L.P.'s application for No Notice General Permits for Lots 61, 245, and 237. DONE AND ENTERED this 9th day of March, 1999, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 9th day of March, 1999. COPIES FURNISHED: Samuel H. Poole, III, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Douglas H. MacLaughlin, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Alfred J. Malefatto, Esquire Teresa J. Moore, Esquire Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. 777 South Flagler Drive Suite 300 East West Palm Beach, Florida 33401 Terrell K. Arline, Esquire 1000 Friends of Florida Post Office Box 5948 Tallahassee, Florida 32301 Charles F. Schoesch, Esquire Caldwell & Pacetti 234 Royal Palm Way, Suite 300 Palm Beach, Florida 33480
The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue The issue is whether Florida Administrative Code Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority for the reasons alleged by Petitioners.
Findings Of Fact Austin is the owner of real property located at 1580 Indian Pass Road, Port St. Joe, Florida. Heslin is the owner of real property located at 1530 Indian Pass Road, Port St. Joe, Florida. Lighthouse is the applicant for a coastal construction control line (CCCL) permit for structures and activities proposed to occur on property located adjacent to Austin’s property. Heslin’s property is located within 500 feet of the proposed project site. The property for which the CCCL permit is sought is located landward of the mean high water line (MHWL). On January 31, 2006, the Department gave notice of issuance of a CCCL permit to Lighthouse. The proposed permit authorizes activities 228 feet seaward of the CCCL, specifically, the construction of a subdivision roadway/cul-de- sac including asphalt and limerock foundation, excavation of soil, filling of soil, ornamental street lights, stormwater management swales, below grade utilities, and dune enhancement plantings. Lighthouse obtained a subdivision plat for the site from Gulf County, Florida, on June 28, 2005, which includes 12 platted lots seaward of the CCCL, each approximately one quarter acre in size. When issuing the CCCL permit, the Department did not consider the platted subdivision that will be serviced by the permitted roadway project. Austin filed a petition challenging the issuance of the CCCL permit to Lighthouse. The challenge is styled Gloria Austin v. Lighthouse Walk, LLC and Department of Environmental Protection, DOAH Case No. 06-1186 (hereafter “the Permit Challenge”), and is pending before Judge Alexander. Heslin sought and was granted leave to intervene in the Permit Challenge. Paragraphs 6, 10, and 18 of the Petition for Formal Administrative Proceeding (Petition) in the Permit Challenge state as follows: 6. The proposed subdivision that is intended to be built by Lighthouse, will result in incompatible high density residential development seaward of the costal control line and seaward of the Petitioners’ homes. The incompatible and inappropriate nature of this subdivision will greatly increase the danger of Petitioners’ homes being damages by storm driven debris in the event of a major storm event such as a hurricane occurring in this area. * * * The area in question on Cape San Blas is presently developed in very low density single family home sites. The proposed development would create high density development seaward of the coastal construction control line for which construction is totally unnecessary and could easily be greatly minimized. The parcel in question could accommodate a residential subdivision without encroaching seaward of the present coastal construction and control line. In light of the above, it is clear the project violates Rule 62B- 33.005(3), Florida Administrative Code. * * * 18. The proposed permit would create a high density subdivision which would create a multitude of small single family lots on this site. By granting the permit for this site development, the Department is condoning the intended construction of a multitude of single family residences which are totally inappropriate for the beach dune system in this area. The combined effect of the construction of single family residences on the proposed plat seaward of the coastal construction control line will maximize impacts to the beach dune system, not minimize the impact as required by the Department’s rules in Chapter 62B-33, Florida Administrative Code. Lighthouse moved to dismiss the Petition in the Permit Challenge, to strike certain allegations, and for an Order in limine in that case. The Department filed a memorandum of law in support of Lighthouse’s motion, stating, in part: Contrary to Petitioner’s argument in paragraph 2(b), the Department’s rule contains a standard for determination of “cumulative effects.” Rule 62B- 33.005(3)(a), F.A.C., provides that “[I]n assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell.” The Department’s rules also contain a regulatory definition of “impacts” (not “cumulative impacts” as argued by the Petitioner). Therefore, consideration of future applications not yet pending with the Department is outside the scope of the Department’s permitting jurisdiction under the rule. Contrary to the arguments made by Petitioner in paragraph 2(c) and (d) construction of a “residential subdivision” is not a foregone conclusion. First, in Rule 62B-33.005(3)(a), F.A.C., it states that “[e]ach application shall be evaluated on its own merits in making a permit decision; therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Second, use by an applicant of the single family home general permit authorized by Section 161.053(19), F.S., and existing in Rule 62B-34.070, F.A.C., is not governed by the principle that a general permit is authorized without additional agency action. The concept of a general permit adopted by rule exists in many different permitting programs of the Department. The different permitting programs are created and governed by their organic statutes, and only those statutes (and rules promulgated under them) should be looked to for the legal principles that apply in the permitting program. (See paragraph 4. above). The case law cited by Petitioner in paragraph 2(c) of her response refers to general permits established under Chapter 403, F.S., specifically authorized by Section 408.814, F.S. Section 403.814(1) provides for use of a general permit 30 days after giving notice to the department “without any agency action by the department.” See § 403.814(1), Fla. Stat. (2005). No similar provision appears in Section 161.053(19), F.S. In addition, Section 403.814, F.S. provides for administrative review of the use of a general permit where the Department publishes or requires the applicant to publish notice of its intent to use a general permit. See § 403.814(3), Fla. Stat. (2005); Hamilton County Bd. of County Comm’rs v. State, Department of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991) and City of Jacksonville v. Department of Environmental Protection, 24 F.A.L.R. 938 (Fla. DEP 2001). By Order dated May 23, 2006, Judge Alexander struck paragraphs 6, 10, and 18 of the Petition in the Permit Challenge, holding, in part: Second, the Motion to Strike is granted in part, and paragraphs 6, 10, and 18 are stricken. The Motion to Strike paragraphs 9 and 19 is denied since paragraph 9 simply tracks the language in Florida Administrative Code Rule 62B-33.005(3)(a), and neither paragraph makes specific reference to impacts from the proposed construction of a residential subdivision. Although paragraphs 5 and 13 refer to alleged impacts to “wildlife habitat,” “drainage,” and “wind and water borne missiles during a storm,” which might arguably include matters unrelated to this action, the granting of the Motion in Limine below precludes Petitioner from introducing evidence regarding impacts to habitat other than sea turtles, the stormwater exemption, and wind and water borne missiles caused by the proposed construction of a residential subdivision. Finally, the Motion in Limine is granted, and Petitioner (and Intervenor) shall be precluded from introducing evidence in support of allegations relating to cumulative impacts caused by the proposed construction of a residential subdivision, debris and wind and water borne missiles from the proposed construction of a residential subdivision, the exemption of swales from stormwater discharge permit requirements, and any habitat impacts unrelated to sea turtles. See § 161.053, Fla. Stat. (2005); Fla. Admin. Code R. 62B- 33.005, 62B-33.007, and 62-25.030(1)(c). Petitioners have alleged in this case that Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority. Lighthouse has disputed that allegation in its Motion for Summary Final Order, which is fully supported by the Department. Section 161.053(5)(a), Florida Statutes, was first adopted by the Legislature in 1983. The statute was amended without any substantive changes to its text in 1987. Section 161.053(5)(a)3., Florida Statutes (2005),2 currently states in pertinent part: Except in those areas where local zoning and building codes have been established pursuant to subsection (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: The department may authorize an excavation or erection of a structure at any coastal location as described in subsection (1) upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including: * * * 3. Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system, which, in the opinion of the department, clearly justify such a permit. Rule 62B-33.005(3)(a) was amended in 1996 as follows: (3) After reviewing all information required pursuant to this Chapter, the Department shall: (a) Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other activities proposed within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. * * * (7) An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site, however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event. An exception to this policy may be made with regard to those activities undertaken pursuant to Subsections 16B-33.005(3)(d) and 16B- 33.006(2), Florida Administrative Code. Rule 62B-33.005(3)(a) was amended in 2000, as follows: After reviewing all information required pursuant to this Chapter, the Department shall: * * * Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Rule 62B-33.005(3)(a) currently appears as set forth in the preceding paragraph, but without the underlining. One of the provisions in Rule 62B-33.005(3)(a) that is being challenged in these cases states that the Department shall: [d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. This provision was first added to Rule 62B-33.005 in 1996. It was amended on August 27, 2000. The other provision in Rule 62B-33.005(3)(a) that is being challenged in these cases is the requirement that: [e]ach application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. This provision was first added to Rule 62B-33.005 in 1996. Rule 62B-33.005 is intended by the Department to implement Section 161.053(5)(a)3., Florida Statutes. Rule 62B-33.005(3)(a) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.053(5)(a)3., Florida Statutes. Petitioners disagree with the Department’s construction of the statute. Rule 62B-41.002 was first developed on August 23, 1992, as part of the newly enacted Rule Chapter 16B-41, which was later designated as Rule Chapter 62B-41. Rule 62B-41.002(28), first developed in 1992, is the precursor to Rules 62B-41.002(19)(a) and (b), which were added on October 23, 2001. Rule 62B-41.002 is intended by the Department to implement Section 161.041, Florida Statutes. Rule 62B-41.002(19)(b) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.041(2)(c), Florida Statutes. Petitioners disagree with the Department’s construction of the Statute. The current language of Section 161.041(2), Florida Statutes, was adopted by the Legislature in 1987, as follows: The department may authorize an excavation or erection of a structure at any coastal location upon receipt of an application from a property or riparian owner and upon consideration of facts and circumstances, including: Adequate engineering data concerning inlet and shoreline stability and storm tides related to shoreline topography; Design features of the proposed structures or activities; and Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system or coastal inlet, which, in the opinion of the department, clearly justify such a permit. Rule 62B-41.002(19) was amended to its current form in 2001, as follows: Renumbered as (19) * * * “Adverse Impacts” are those impacts to the active portion of the coastal system resulting from coastal construction. Such impacts are caused by coastal construction which has a reasonable potential of causing a measurable interference with the natural functioning of the coastal system. The active portion of the coastal system extends offshore to the seaward limit of sediment transport and includes ebb tidal shoals and offshore bars. "Cumulative Impacts" are impacts resulting from the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell individual coastal construction which, if permitted as a general practice on other coastal properties in the same general area, or if added to the adverse impacts from existing coastal construction are expected to result in an adverse impact. The scope of the "cumulative impact" review under the Environmental Resource Permit (ERP) program is described in the “Basis of Review” used by the South Florida Water Management District, St. Johns River Water Management District, and Southwest Florida Water Management. Under the “Basis of Review,” cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities, would result in a violation of state water quality standards or significant adverse impacts to functions of wetlands or other surface waters. The cumulative impact evaluation is conducted using an assumption that reasonably expected future applications with like impacts will be sought, thus necessitating equitable distribution of acceptable impacts among future applications. In reviewing impacts of a current ERP project application, the agency will review impacts from pending projects and extrapolate from those impacts to see what impacts future projects could contribute, using objective criteria, such as comprehensive plans, plats on file with local governments, or applicable land use restrictions and regulations. Tony McNeal, the administrator of the Department’s CCCL permitting program, acknowledged in his deposition testimony that the last sentence of Rule 62B-33.005(3)(a) “is a way of saying that the Department is not going to be bound by its prior actions in similar cases.” However, he also explained that the sentence does not allow the Department to act inconsistently because the Department “consistently applies the same rules” to each project that comes before it and “[t]he only thing that changes are the facts surrounding the project.”
The Issue The issue for consideration in this case is whether the Department should impose administrative penalties in the form of fines, costs and points assessment because of the matters alleged in the Administrative Complaint and Order entered herein.
Findings Of Fact At All times pertinent to the issued herein, the Petitioner, SWFWMD, was the governmental agency responsible for the licensing of well contractors and the permitting of well drilling and abandonment within its jurisdictional area. Respondent, Edward Tanner, was a licensed water well contractor, holding license Number 2276 issued on July 21, 1982. On January 16, 1996, SWFWMD issued Well Construction permit 575267.01 to Respondent for the abandonment of a four-inch diameter water well on property owned by Mr. McCrimmon located at Five Tera Lane in Winter Haven. The well, a domestic water well, had failed and Respondent applied for a permit to construct a new well at the site and abandon the failed well. Stipulation Number Four of the permit issued to the Respondent provided that the well must be examined for debris or obstructions from the land surface to the original depth of construction, and further required that any debris or obstruction discovered be removed from the well prior to the commencement of abandonment. In addition, the stipulation called for the well to be plugged from bottom to top by an approved method of grouting. According to the permit, if any other method of abandonment was to be used, it must be approved in advance by specifically denoted District personnel. Though Respondent did not utilize the approved method of abandonment in this project, he did not apply for a variance from the District. Had he done so, he would have been required to show some emergency or hardship which would have prevented him from properly filling the abandoned well with cement from top to bottom and justified an alternative method of abandonment. In this case, Respondent plugged the well in issue, which was 210 feet in depth, from the land surface down to fifty five feet, utilizing six bags of portland cement. Deviation from the 210 foot plug required a variance to be granted by the District. Respondent did not seek this variance. Well abandonment is a regulated practice because, inter alia, improper abandonment may result in contamination of the aquifer. The well in question here is located in an area susceptible to contamination by ethylene dibromide, (EDB), recognized as a human carcinogen, which is known to be present in the area. In addition to failing to properly abandon the well, Respondent also failed to file a well completion report within thirty days of completion of his abandonment effort. The required report was submitted on June 10, 1996, nearly four months after it was due. Respondent relates that in January 1996, after he had worked on a well “commonly known” to be the subject of litigation, he was asked to try to fix the well in issue. When he saw the problem, he contends he repeatedly advised the authorities that the well was leaking sand and could not be cleaned out to the bottom as the District required. Therefore, to preserve the integrity of the well, he plugged it at a point below the break in the well lining. At that time, he told Mr. McCrimmon what the situation was and advised him the well needed to be abandoned, but he, Tanner, did not do that type of work. Respondent contends, supported by his son, that on January 16, 1996, while he was at Mr. McCrimmon’s property, he was told by Mr. Wheelus and Mr. Lee, both District officials, that Mr. Calandra, also a District official had said he, Tanner, had to pull a well abandonment permit or Calandra would not sign off on the new well. At that point, Respondent claims, he went to the District’s Bartow office to argue with Mr. Calandra, and asked Mr. Calandra to show him the law which supported Calandra’s position. Calandra persisted in his position and even, according to Respondent, bet with another District employees that Respondent had to do what he was told. This other employee does not recall any such bet. Therefore, under protest and only so he could get paid for the work he had done on the new well, Respondent agreed to pull the abandonment permit. At that time, he claims, he asked the District personnel in charge how many bags of concrete would be required to abandon the well and was told, “six”. When the time came to do the actual work, Respondent called for the required observer to be present from the District office, but because no one was available at the time, he was granted permission to do it without observation. He did the job as he felt it had to be done, and thirty days to the day after that, was served with the notice of violation. Respondent contends either that the witnesses for the District are lying in their denials of the coercive statements he alleges, or the situation is a conspiracy to deprive him of his civil rights. He does not believe a well contractor should be required to stay current regarding all the District rules regarding well construction and abandonment because the rules change so often. Respondent admits, however, that the rules in existence at the time in question required the filling of a well all the way down and that he did not do that nor did he seek a variance., He knew he was required to comply with the conditions of a permit. He also admits that a completion report was due within thirty days of work completion. In that regard, however, he contends that when the issue went into litigation, he felt the district would advise him of what he had to do. In this he was mistaken, but he was not misled into believing so by anything done or said by District personnel. Taken together, the evidence does not demonstrate that anyone from the District staff coerced Respondent into abandoning the well. He was issued a permit to drill the new well for Mr. McCrimmon with no conditions thereon. By the same token, the abandonment permit he obtained did require the complete clearing and total plugging of the abandoned well, and this was not done. The costs incurred by the District in the investigation and enforcement of this alleged violation totaled in excess of $500.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order finding Respondent, Edward Tanner, guilty of improperly abandoning the well in issue and failing to file the required report in a timely manner, and assessing enforcement costs in the amount of $500.00 in addition to an administrative fine of $250.00. DONE and ENTERED this 29th day of January, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1997. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward Tanner 1137 Saint Anne Shrine Road Lake Wales, Florida 33853 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue is whether to approve the City of Gulf Breeze's (City's) application for a Consolidated Wetland Resource Permit and Sovereign Submerged Lands Authorization to conduct a restoration project in Pensacola Bay.
Findings Of Fact Background This dispute involves a challenge by Petitioners to the third phase of a restoration project by the City designed to preserve the Island and protect its historical resources. The project site is located in sovereign submerged lands adjacent to the Island on the southwest side of the Highway 98 Bay Bridge which traverses Pensacola Bay connecting the Cities of Gulf Breeze and Pensacola. The Island is not a true island, but has always been connected to the mainland by a strip of land referred to as an isthmus, which meets the shoreline at Lot 36 of an older subdivision known as the First Addition to Casablanca Parcel No. 1 and platted almost sixty years ago. The isthmus juts out from Lot 36 into Pensacola Bay in a northwesterly direction for several hundred feet before making a 90-degree turn to the southwest where the Island then runs roughly parallel to the shoreline for around a half mile. See Joint Ex. 5-7, 14, and The Island, isthmus, and shoreline form the boundary around a small body of water known as Gilmore Bayou, an ecologically important and pristine salt marsh area. According to aerial photographs, at its widest point, the Island appears to be no more than a few hundred feet wide. Petitioners reside at Lot 37, which is just northeast of the isthmus on the shoreline. The rear part of Lot 37 faces Pensacola Bay and the City of Pensacola to the northwest. Lots 36, 35, and 34 (running to the southwest along the shoreline and facing Gilmore Bayou), are owned by Patricia Moreland, Robert Ozburn, and Intervenor Paul Tamburro, respectively, all of whom testified at the final hearing. Except for Petitioners, the project is supported by virtually all of the residents of the area as well as numerous civic organizations. See Joint Ex. 33. On July 14, 2008, the City filed with the Department its Joint Application for Works in the Waters of Florida, which would allow the City to complete the third phase of the project by (a) planting native submerged vegetation over approximately three acres of sovereign submerged lands, and (b) placing approximately 16,000 cubic yards of fill material and planting native emergent vegetation to stabilize the fill material on sovereign submerged lands at the north end of the Island. See Joint Ex. 3. The Department has authority under chapter 373, Florida Statutes, and Florida Administrative Code chapter 18-21 to approve the application. After an extensive review of the application, on August 9, 2010, the Department issued a Consolidated Notice of Intent to Issue Wetland Resource Permit and Consent to Use Sovereign Submerged Lands, which authorized the proposed project. See Joint Ex. 4. The proprietary authorization (letter of consent) was issued under the authority of rule 18- 21.005(1)(c), which identifies a number of activities that qualify for a letter of consent. In this case, because of the range of proposed activities, the project could qualify for a letter of consent under subparagraphs 8., 15., and 16. of the rule. On September 1, 2010, Petitioners filed their petition challenging the proposed agency action. While their initial pleading raised a number of issues, and cited two rules as a basis for reversing the agency action, these allegations have been substantially narrowed over the course of the proceeding and are now limited to the following: whether the project constitutes management activities associated with the protection of a historic site, thus qualifying for a letter of consent under rule 18-21.005(1)(c)16.; and whether the project unreasonably restricts or infringes upon their riparian rights of navigation, boating, swimming, and view, as proscribed by rule 18-21.004(3)(c). They also question whether Intervenor has standing to participate, but that issue is not dispositive of the primary issues in this case. Petitioners do not contest the issuance of a Wetland Resource Permit. Finally, Respondents and Intervenor question whether Petitioners have standing to initiate this action. The Project Site The project is located on sovereign submerged lands adjacent to the Island, a "naturally occurring sandy beach," as that term is contemplated in rule 18-21.005(1)(c)8. This is true even though portions of the "sandy beach" have eroded over time. The City owns the entirety of the Island. See Joint Ex. 14 and 15. This was not disputed by Petitioners. The Island is a public park, natural preserve, and historic site that is owned and maintained by the City exclusively for public use. Deeds by which the property was conveyed to the City require that it be forever used as a natural preserve and maintained in its natural state. See Joint Ex. 14 and 15. The Island and the area immediately adjacent thereto have a long and significant history dating back to the 1700's. Throughout the 1700's and 1800's, various portions of the Island were used as a careening facility for the repair and maintenance of large vessels. A marine railway was also built. In the late 1800's, a quarantine station was constructed on the Island where people who had contracted yellow fever were isolated. A cemetery exists upon the Island containing the remains of many who perished from the yellow fever epidemic. Also, there were many shipwrecks at the Island, of which some of the remains still exist. Accordingly, there are historic resources and artifacts such as shipwrecks and human remains on and around the Island. The Island has sustained significant erosion over the past 70 years. The northeast shoreline has eroded some 450 to 500 feet during that period of time. There has been a significant loss of vegetation and land mass. Without protection, the Island is in a perilous condition and subject to a permanent breach. The peat bog underlying the Island is vital to the stability of the Island and has been greatly damaged. It requires protective measures, such as those contemplated by the proposed project in order to assure its preservation. Due to the effects of hurricanes and storms, the erosion has substantially increased during the past decade. The erosion has caused the unearthing of and damage to historic artifacts and the salt marsh in Gilmore Bayou. There are clearly visible remnants of the former marine railway on the Island, which are being weakened by current weather events and require protection in order to preserve them. Caskets from the cemetery as well as human bone remains have been unearthed and additional damage will occur without protective restoration efforts. If the erosion continues, there will be more damage to the historic artifacts and the salt marsh will be destroyed. The Project To prevent further erosion and to protect the Island and Gilmore Bayou, the City has applied to the Department for three separate phases of a project to stabilize the shoreline. The first two phases of the project involved the construction of an artificial reef breakwater and the planting of shoreline vegetation. See Joint Exhibit 7a. They have already been approved by the Department and are no longer in issue. The first and second phases were challenged by Petitioners but the cases were eventually settled. See Case No. 09-4870, which involved the second phase. The third phase of the project is being conducted primarily for the maintenance of essentially natural conditions and for the propagation of fish and wildlife. This phase can be described as follows: restoration or nourishment of a naturally occurring sandy beach as contemplated by rule 18-21.005(1)(c)8.; habitat restoration or enhancement as contemplated by rule 18-21.005(1)(c)15.; management activity associated with protection of a park as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a preserve as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a historic site as contemplated by rule 18-21.005(1)(c)16.; and management activity associated with protection of habitat restoration or enhancement as contemplated by rule 18- 21.005(1)(c)16. While the project implicates each of the above provisions, the application and proposed agency action indicate that the letter of consent is granted on the theory that the project is associated with protection of historic sites. See Joint Ex. 4. The third phase is also designed to minimize or eliminate adverse impacts on fish and wildlife habitats and other naturally occurring resources. The project consists of the placement of 16,000 cubic yards of fill material in the area between the existing artificial oyster reef and the shoreline to restore and replace conditions that previously existed. The fill will consist of beach compatible sand that will be approximately six inches to a foot above mean high water. This phase also involves the planting of appropriate native wetland vegetation in the fill area, which will help stabilize the fill. The planting of vegetation in the third phase is separate and distinct from the plantings authorized in the second phase of the project. The project is needed in order to prevent further damage to a public park; public preserve; threatened, endangered, or special concern species of vegetation/habitat; and historic artifacts. These protection efforts were requested and recommended by the Florida Department of State. Petitioners contest only the propriety of the fill materials and the planting of the emergent stabilizing grasses on the fill. The fill portion of the project is located a significant distance from Petitioners' property. The closest portion of the project is estimated to be at least 550 feet from Petitioners' property, while the bulk of the project will take place between some 750 to 1,200 feet from their property. The Proposed Vegetation Planting In the third phase of the project, the City proposes to plant and establish emergent grasses (those that grow in water but partially pierce the surface) and sea grasses, all of which are appropriate native wetland vegetation on the Island. The proposed emergent grasses are Spartina alterniflora (also known as smooth cordgrass) and Juncus roemerianus (also known as black needle rush), which will be used for stabilization of wetlands. The proposed submerged seagrasses are Halodule wrightii (a type of shoal grass) and Ruppia maritime (a type of widgeon grass), which will help stabilize the fill. The smooth cordgrass is native to the Island. It will be planted in the fill area to prevent the fill from eroding. It is expected that once they mature, the height of the plants will not exceed two and one-half feet. Due to the water depth in the area, the shoreline slope, the sediment supply, and the wave action, the smooth cordgrass will not spread outside the proposed project area. Also, it will not interfere with navigation, boating, swimming, fishing, or view. The vegetation will, however, help fishing in the area. The black needle rush is also native to the Island. It will only grow to approximately two and one-half feet in height due to stressful conditions caused by the salt content in the water and wave action. It will not spread beyond the proposed project area and will not interfere with navigation, boating, swimming, fishing, or view. Like the smooth cordgrass, it will enhance fishing in the area. Both Halodule wrightii and Ruppia maritime are native to the Island. Both have slow growth rates, which when coupled with the "high energetics of the system," will hinder their ability to spread outside the project area. Neither seagrass will hinder navigation, boating, swimming, fishing, or view. They will afford a greater opportunity for snorkeling, recreation, and fishing; they will serve as a nursery habitat for finfish and shellfish; they will increase the habitat value of the area; and they will improve water quality. Petitioners submitted no evidence to contradict these findings. They also failed to submit any evidence that the fill material or grasses would spread into any riparian area that might be appurtenant to their Lot 37. The above findings are reinforced by the results of a separate project known as Project Greenshores located across Pensacola Bay from the Island. Project Greenshores involved the restoration of wetlands using dredge material to restore islands that are then protected by the construction of a breakwater and are stabilized by the planting of the same grasses that are proposed for the Island project. The two projects are in relatively close proximity to each other and have essentially the same environment. One difference, however, is that Project Greenshores receives a small source of sediment from stormwater outfalls, which means that it has a higher chance of grasses growing than does the Island. Even with the increased sediment, the grasses at that project have not spread beyond the project area, they have not interfered with navigation, boating, swimming, view, or fishing, and they have enhanced fishing in the area. Historical Artifacts Petitioners contend that the project does not qualify for a letter of consent under rule 18-21.005(1)(c)16. That provision authorizes the Department, acting on behalf of the Board of Trustees of the Internal Improvement Trust Fund, to issue a letter of consent for "management activities associated with . . . historical sites . . . provided there is no permanent preemption by structures or exclusion of the general public." As noted above, the Island has a long and significant history dating back to the early 1700's and there are historic resources and artifacts on the Island. See Finding of Fact 10, supra. When there is an archeological site issue in a permit, the Department typically relies on information from the Division of Historical Resources of the Department of State. See Fla. Admin. Code R. 18-21.004(2)(c)("reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands"). Here, the Department relied on information from that agency, which indicates that there are archeological resources at the project site. The Department of State also recommended placing fill over the artifacts to protect them, which will be accomplished by the proposed fill. In addition, the Department relied upon information contained in a survey conducted by Mr. Empie, a registered professional surveyor, to generally show where those artifacts are located. See Joint Exhibit 5, also referred to as the Empie survey. The evidence supports a finding that the project is for management activities associated with historical sites. The record shows that there is strong public support for the project. See Joint Ex. 33. Although many of the artifacts will be covered by the fill, the fill will actually protect them from damage, destruction, theft, and removal. By protecting them, future generations will be able to enjoy the artifacts. No "structures," as that term is defined in rule 18- 21.005(1)(c)16., are part of the project. Therefore, the project will not cause permanent preemption by structures. Contrary to Petitioners' assertion, the project will not exclude the general public from the fill area. The City contemplates that other activities, such as underwater snorkeling, will encourage the public to utilize the project site. The evidence supports a finding that the project qualifies for a letter of consent under this rule. Riparian Lines The Empie survey provides a reasonable depiction of the various riparian lines in the areas adjacent to the proposed project. See Joint Ex. 5. A professional surveyor with the Division of State Lands, Mr. Maddox, agreed that it was a reasonable depiction of the angle of the riparian lines and a "fair distribution of riparian areas," including that of Lot 37. The only property owner adjacent to the Island is Patricia Moreland, who owns Lot 36 and has resided on that parcel since 1956. As noted above, the isthmus meets the northwest boundary line of Lot 36. By executing a Letter of Concurrence, Ms. Moreland conferred upon the City all rights, both proprietary and riparian, that she has with respect to Lot See Joint Ex. 16. Petitioners contend that they own riparian rights appurtenant to their Lot 37, which is to the east of Lot 36. The City and Intervenor dispute this claim and contend that Lot 37 does not adjoin any navigable water and thus there are no riparian rights appurtenant to Lot 37. Assuming arguendo that Lot 37 adjoins Pensacola Bay, it is still separated from the project site by riparian areas appurtenant to the Moreland property (Lot 36) as well as the riparian areas appurtenant to the City property, i.e., the Island and isthmus. The Empie survey, which reasonably depicts the riparian lines in the project area, shows the project site as being approximately 300 feet inside the existing breakwater, which is shown as being no closer than 48.9 feet away from the westernmost riparian line appurtenant to Lot 37. See Joint Ex. The primary portion of the fill site is located around 370 feet from the closest point of the western riparian line appurtenant to Lot 37. Id. No portion of the project is located within 25 feet of the Lot 37 riparian line. Id. Petitioners presented no evidence disputing the riparian areas identified on the Empie survey or otherwise identifying the areas of riparian rights appurtenant to their property. While they engaged the services of Mr. Barrett, a professional land surveyor to prepare a boundary survey, the purpose of the survey was to show that Lot 37 adjoins Pensacola Bay, rather than depicting the riparian areas appurtenant to that lot. See Petitioners' Ex. 1. Infringement on Riparian Rights Rule 18-21.004(3)(c) requires that "activities [in submerged lands] must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland property owners." (emphasis added) Petitioners contend that, even though they do not routinely use their riparian rights, the project will restrict or infringe upon their riparian rights of boating, swimming, navigation, and view. To make this determination, they assert that the appropriate test under the rule is mere infringement, and not "unreasonable" infringement; however, this interpretation is contrary to the plain wording in the rule. The main living floor of Petitioners' residence is approximately 50 feet above sea level. The emergent grasses will be located no closer than 500 feet from the edge of Lot 37 and 600 feet from their residence and are expected to grow only to a height of no more than two and one-half feet. The concern that the grasses will impair Petitioners' view is without merit. Although Dr. Cope initially believed that fill or grass would be placed or planted "all the way up to and abutting our lot 37," this interpretation of the City's plans was incorrect. A photograph taken from his back yard indicated that he could view the northeastern corner of the Island where new vegetation or fill might be placed, but the photograph depicted an area outside of the Lot 37 riparian area. See Petitioners' Ex. 18. While Dr. Cope initially stated that the new emergent grass would "clearly degrade the view from both the house and the shoreline," he later acknowledged that the project would not have any effect upon his view of Lot 37's riparian areas. There are a boathouse and dock in the waters behind Petitioners' house. However, Petitioners submitted no evidence to support their suggestion that the project might cause the water behind Lot 37 to become more shallow and adversely affect boating and navigation. Contrary evidence by the Department and City was unrefuted. Finally, Dr. Cope stated at hearing that he has never been swimming in Gilmore Bayou or Pensacola Bay and has no intention of doing so. His wife offered no evidence that she ever intends to swim in those waters. In summary, the activities undertaken in the project area will not unreasonably restrict or infringe upon Petitioners' riparian rights of swimming, boating, navigation, or view within the meaning of rule 18-21.004(3)(c). Petitioners' Standing Respondents and Intervenor contend that Petitioners lack standing to bring this action for two reasons: that they do not own Lot 37 individually but rather as trustees, and the petition was not filed in that capacity; and that Lot 37 does not adjoin navigable waters. See § 253.141(1), Fla. Stat. ("[r]iparian rights are those incident to land bordering upon navigable waters"). As described by the City's real estate expert, in June 2010, or before the instant petition in this case was filed, the Copes executed two deeds for estate planning purposes, which resulted in "legal title [being] owned part by Dr. and Ms. Cope as to one-half life estate and for Ms. Cope as to one-half for her life estate [and] then the remainder interest is vested in the trustees [of the D. Nathan Cope or Cynthia Russell Cope revocable trust agreements] for the remainder interests." Put in plainer language, this meant that the ownership of Lot 37 is now divided as follows: an undivided 50 percent is owned by the wife as to a life estate and by the wife's revocable trust as to the remainder interest, and the other undivided 50 percent is owned by the wife and husband as to a life estate for the husband's lifetime and by the husband's revocable trust as to the remainder interest. Therefore, there are four entities or persons with an ownership interest in the property: Dr. Cope, Mrs. Cope, Dr. Cope's trust, and Mrs. Cope's trust. The City presented expert testimony regarding the chain of title of Lot 37, beginning in June 1952 when the subdivision was first platted, and running through June 2010, when Petitioners conveyed the property to themselves as trustees of two revocable trusts. According to the expert, the subdivision plat in 1952 reflects a narrow strip of property (described as a hiatus strip) separating the entire subdivision, including Lot 37, from the waters of Gilmore Bayou, Pensacola Bay, and Woodland Lake, a nearby body of water. The strip was a park that was dedicated to the public. See Joint Ex. 1. In 1962, the developer conveyed by quit claim deed the entire strip to the record title holder of each lot in the subdivision. At that time, Lot 37 was owned by the Blaylocks. The expert found that each conveyance of Lot 37 that occurred after 1962, up to and including the Copes' purchase of the property in February 2008, did not include the hiatus parcel. Therefore, he opined that title in the strip property continues to remain with the Blaylocks. Besides his title search, the expert further corroborated this opinion by referring to a topographic survey of Lot 37 prepared in June 2005, see Joint Ex. 2a; a title insurance policy on Lot 37 issued in 2008 when the Copes purchased the property that specifically excludes title insurance for the hiatus parcel; and a recent Santa Rosa County tax bill describing the property without the hiatus parcel. In response, Petitioners contend that the hiatus strip never existed or the 1952 plat is invalid because it failed to comply with section 177.08, Florida Statutes (1951), which required that "all land within the boundaries of the plat must be accounted for either by blocks, out lots, parks, streets, alleys or excepted parcels." Because a dispute over the exact boundary lines of Lot 37 exists, this issue must be resolved in the appropriate circuit court. See § 26.012(2)(g). For purposes of deciding the merits of this case, however, it is unnecessary that this determination be made. Intervenor's Standing Dr. Tamburro currently resides on Lot 34, which faces Gilmore Bayou, and jointly owns the property with his wife. He uses the Bayou to boat and for other recreational purposes. He also uses the Island to swim, walk, and boat. The preservation of the Island is important to him since it serves as a barrier island in protecting his home during storm events. Although Dr. Tamburro's wife did not join in his petition to intervene (but appeared as his counsel), he still has a recognized ownership interest in the property.1
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 approving the City's application for a Wetland Resource Permit and Letter of Consent to Use Sovereign Submerged Lands. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2011.
