Conclusions On May 11, 2007, the Division of Administrative Hearings (‘DOAH’) submitted a _ Recommended Order (“RO”) to the Department of Environmental Protection (‘DEP’) i in . these consolidated proceedings. Copies of the RO were served upon the Petitioners, Mellita A. Lane, Jacqueline M. Lane, Peter A. Lane, (“Lane Petitioners”); Friends of Perdido Bay,.Inc., and James A. Lane (“FOPB”); and the Co-Respondent, International Paper Company (“IP” ). On May 29, 2007, all Petitioners and Respondent IP filed Exceptions to the RO. Respondent DEP filed Exceptions to the RO and Motion for Remand. ; On June 8, 2007, the FOPB filed a Reply to IP’s Exceptions and a Response to DEP’s Motion for Remand and Exceptions. The Lane Petitioners filed their Response to iP’s and DEP’s Exceptions. Respondent DEP filed Responses to the Exceptions filed . by the FOPB, the Lane Petitioners and IP. Respondent IP filed Responses to the Exceptions of FOPB, the Lane Petitioners and DEP. This matter is now before me for. final agency action. . _ BACKGROUND » Florida Pulp and Paper Company first began operating the Cantonment paper mill in. 1941. St. Regis Paper Company (St. Regis” ) acquired the mill in 1946. In 4984, Champion International Corporation (“Champion”) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such a as printing and writing grades c of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to | be printing and writing paper. ' The mill s wastewater effluent i is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is . sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class I water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama, on the west. The dividing line between ‘the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 98 crosses the Bay, going east and west, and forms the boundary between what is-often referred to as the “Upper Bay” and “Lower Bay.” The Bay is relatively shallow, especially | in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay i is designated asa Class ill water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. Itis primarily a freshwater river but itis sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (“OFW’) in 11979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, isa large tract of land owned by IP called the Rainwater Tract, The northern part of the tract is primarily freshwater wetlands. The southern partis a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. | ' Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (‘DER’) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The United States Environmental Protection Agency ("EPA") issued St. Regis a National Pollutant Discharge Elimination System (“ NPDES") permit i in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its wastewater treatment plant (‘WWTP’) in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production - process. In 1987, Champion applied to DER for an operating permit-for its modified WWITP and also petitioned for a variance from the Class iI water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's . subsequent proposal to issue the operating permit and variance was formally challenged. In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for the operating permit and requested a . temporary operating permit ("TOP"), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 (‘the 1989 Consent Order’). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violations of state water quality standards in Elevenmile Creek for dissolved oxygen (“DO”), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommend measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed bya series of related scientific studies, which are referred to collectively in the RO as “the Livingston studies.” The 1989 Consent Order had no expiration date, but it was tied to the TOP, , which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The mill was not in compliance with all water quality standards in December 1 994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. instead, the Department agreed through correspondence with . Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. - In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1 995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal ‘operating permits into a single permit identified as Wastewater Permit Number FLO002526-002-IWF/MT. During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmiie Creek or the Escambia River. . In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WwTP upgrades consist of converting toa. modified activated sludge treatment process, incteasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (‘MGD’). IP proposes to convey the treated effluent by-pipeline 10.7 miles to the 1,464-acre wetland tract owned by IP (contained within-the larger Rainwater Tract), where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and Upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to: reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department published notice of its intent fo issue a proposed permit, consent order, experimental wetland exemption, and waiver. The — Department authorizations would allow IP to change its industrial wastewater treatment system at the mill, construct an effluent distribution system within the wetland tract, construct the 10.7-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands. In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane (“Lane Petitioners”) filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge (“ALJ”) and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions. In May 2005, Friends of Perdido Bay, Inc., and James Lane filed a petition for | hearing to challenge the Department authorizations. The FOPB petition was forwarded to DOAH and the pending cases were consolidated for the fi nal hearing. The FOPB petition was subsequently amended. In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the DEP could review and act on the permit revision. In January 2006, DEP issued a proposed revised | NPDES permit and a corresponding First Amendment to Consent Order. On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision {o Consent Order filed on July 26, 2006. The DOAH Administrative Law Judge CALL") held a lengthy final hearing in these consolidated cases on May 31, June 1, 2, and.26 through 30, and July 17, 27, and 28, 2006. Prior to the hearing, the parties filed their Joint Pre-Hearing sit on May 24, 2006. The ALJ subsequenty submitted his RO on May 11, 2007. -
The Issue The issues for disposition are whether BJM Associates, Inc. is required to apply for and obtain a drainage connection permit pursuant to rule 14-86, Florida Administrative Code, and if so, whether BJM Associates, Inc., has failed to obtain that permit.
Findings Of Fact Respondent, BJM Associates, Inc. (BJM) is the owner and developer of Rosetta Villas Subdivision, located in Orange County, Florida, (Respondent’s prehearing Statement) Petitioner, Department of Transportation (D0T) purchased an adjacent parcel, including a retention pond, “Pond A”, in 1991, in anticipation of a road-improvement or extension project for Maitland Boulevard. The pond was purchased from Rose Industrial Park, a permitted development also adjacent to the pond. Rosetta Villas Subdivision received Orange County subdivision approval in 1986 and 1988, and a St. John’s River Water Management District permit for stormwater facilities in 1991. Lots have been platted, streets have been constructed and homes have been sold. Rosetta Villas Subdivision includes a water retention pond on-site, built in 1995. There is a pipe from that pond which discharges water into a ditch that is partially within the DOT right of way. The ditch has a 30-inch concrete pipe which discharges into DOT’s Pond A. There is some indication in the record that a diversion ditch was part of an over-all permit for the Rose Industrial Park development prior to DOT’s purchase of Pond A. The diversion ditch was intended to convey stormwater around, and not into Pond A. The diversion ditch south of Rosetta Villas and north of Pond A does not convey Rosetta Villas’ run off around Pond A. Instead the 30-inch concrete pipe conveys Rosetta Villas’ overflow water into Pond A. The 30-inch concrete pipe was constructed by BJM in 1995 after an existing, much smaller, pipe became clogged. BJM contends that the pipe was replaced at the direction of someone from DOT. While that contention is not disputed, nothing in this record supports any suggestion that DOT is now estopped from requiring a drainage connection permit. At hearing BJM’s own expert witness opined that the 30-inch pipe which now discharges into Pond A requires a connection permit. (Transcript, p. 130) BJM does not have that permit and, after meetings and extensive discussion with DOT staff, has not applied for the permit.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Department of Transportation issue its Final Order requiring BJM to apply for a drainage connection permit pursuant to chapter 14-86, Florida Administrative Code. DONE and ORDERED this 24th day of February 1997 in Tallahassee, Leon County, Florida. MARY CLARK 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February 1997. ENDDNOTE 1/ BJM presented extensive evidence regarding the diversion ditch or swale and its intended purpose. It may be possible for BJM to redirect its out-flow however, the current status of the drainage system. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Transportation Burns Building, Mail Station 58 608 Suwannee Street Tallahassee, Florida 32399-0458 Bernard J. Martin, Esquire 506 Wymore Road Winter Park, Florida 32789 Pamela Leslie, General Counsel 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn.: Diedre Grubbs Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
Findings Of Fact At all times pertinent to the issues herein, the Department was the state agency responsible for the regulation and issuance of dredge and fill permits for waters of the state. Hunt is a real property development company which owns the property in issue located contiguous to Sarasota Bay on the east and an artificial canal, dredged many years ago, located to the south. The property in issue includes submerged lands. Petitioners, Manasota and Manatee are environmental interest associations whose standing as parties hereto was stipulated to by Hunt and the Department. The Rosens are owners of a piece of land at the bayward end of the property located to the south of the artificial canal to the south of the property in issue. On September 2, 1988, Hunt applied to the Department for a dredge and fill permit to construct a dock system four feet wide and approximately one thousand feet in length along the northern edge of the artificial canal. Four access walkways would extend from the existing berm to the north out to the proposed dock. The request also sought permission to trim mangroves to facilitate construction of and provide access to the dock; to place 22 cubic yards of fill to stabilize an existing private road; and to relocate the existing access channel by dredging approximately 700 cubic yards of material. Petitioners do not object to the placement of the 22 cubic yards of fill. During the review process, the Department identified several deficiencies in the proposal which it required be modified before a permit could be issued. Hunt agreed to comply with all of the Department's modifying requirements. As a result, in its amended form the proposal calls for the dock to be reduced in size from 5,080 square feet to approximately 3,800 square feet; access points to be reduced from four to three; the installation of a flushing system consisting of a 30 inch culvert between the west end of the canal and the mangrove swamp to the north to enhance the water quality in the artificial canal; the submittal of historical information to demonstrate the existence of a historic canal which would support maintenance dredging; and the submittal of a mitigation proposal for the seagrasses which would be destroyed by the dredging of a new channel and for the mangroves to be trimmed to facilitate the dock construction. The revised application also sought permission to construct a previously approved (different permit) boardwalk, the mitigation for which has been completed and is apparently successful. This mitigation is located in the northern boundary of the Hunt property. The wetlands area adjacent to Hunt's north property line is a Class II, Outstanding Florida Water, (OFW). The property in issue is located contiguous to Sarasota Bay, a Class II water body designated as an OFW). This portion of the bay is not approved for shellfish harvesting. Sometime between 1951 and 1957, a channel was dredged from the Intracoastal Waterway running generally north and south in the bay, west across approximately 400 feet of bay bottom into what was then a mangrove forest on the east side of Longboat Key. The westernmost 1400 foot extension of that channel into the forest is the artificial canal in issue which receives untreated storm water runoff from Jungle Queen Way, the roadway to the south of the canal. The canal is a Class III water and is not an OFW. Approximately 1,225 feet of the southern shoreline of that canal is seawalled, with approximately 35% of the southern shoreline having mature mangrove trees along it. The entire northern shoreline is vegetated by mature mangrove trees. There is no seawall on the northern shore. The canal varies in depth from less than one foot at points to a maximum of 7 1/2 feet at other points. As a result of shoaling at the canal juncture with the bay, a sand spit has formed, and at low tide, water depth is minimal but allows the passage of shallow draft vessels if their motors are raised. The original channel has silted in to a great degree and has become vegetated by approximately 1,350 square feet of various shoal grasses. It is home to several species of water animal including crown conch, lightning whelk, venus sunray clams, jingle shell, banded tulip snail and common nassa snail as well as supporting a diverse and abundant group of bottom dwelling organisms. The grass beds are fish habitats as well as nursery and feeding grounds and fish species present include some important to commercial and sport fishing. Though the remains of the original channel are often indistinct and difficult to define, the Department, in its analysis of the application for permit, determined from a review of the documentary evidence presented , and it is also found here, that a historic channel exists as described, and is navigable at least fifty percent of the time. As such, the Department concluded that that channel qualified for the maintenance dredge exemption. The Department also concluded that a minimum amount of dredging would be required to clear the historic channel sufficiently to allow boats to utilize it during a full range of tidal conditions. The seagrass beds currently existing in the historic channel would be substantially damaged by a maintenance dredging in the area. Though the Department has no authority to require mitigation for this impact should Hunt exercised its right to maintenance dredge, as an alternative, Hunt proposed to dredge a hook shaped channel curving to the north around that portion of the historic channel which penetrates the grass beds. This alternative site is also located in Class II waters and an Outstanding Florida Water. Dredging at the alternative site would displace much the same amount of material, (approximately 700 cubic yards), and the resultant channel would be approximately the same length, width, and depth overall. The alternative site will cross an area which contains a shoal grass, Cuban Shoalweed, but utilization of this site will have a substantially lesser impact to the overall seagrass population than would dredging of the historic channel. If Hunt chooses to utilize the alternative route, it would have to comply with the Department's mitigation requirements which include transplanting the displaced grass from the alternative channel to another location. The conditions for the mitigation were developed by Department personnel in conjunction with the Department of Natural Resources whose personnel have agreed to participate in the transplantation. Hunt has agreed to undertake additional mitigation planting regardless of whether the transplant is successful. The Department has determined that Hunt's total mitigation program is sufficient to offset the adverse impacts of the proposed dredging. Any sea grasses in the area of the channel will be protected by the installation of signs indicating their location. Speed will be limited by the installation of "No Wake" zone signs, and, in addition, the natural dog-leg in the channel should minimize the impact to adjacent shorelines and reduce the potential for shoaling or erosion. The Department gathered water quality data for the area from 1988. This is consistent with the current statutory and rule criteria which permits the use of data existing in the year prior to application. To supplement this, however, the Department also required that Hunt submit water quality data for the actual project site as a part of the application process. From this input, existing ambient water quality standards were established. To insure that these existing ambient water quality standards within the OFW are maintained during construction, the Department has established a mixing zone and has indicated a requirement for the use of double turbidity curtains. Additional safeguards include limiting dredging to periods of low tide. The Department has concluded that these prosthetic activities will most likely result in maintenance of the water quality standards required for Class II and OFW. Any diminishment of those standards would be of limited duration. The Department was also satisfied that the project would not adversely impact in this area after construction was completed and the facility in operation. In support of this position, the Department relied on evidence tending to show that the design of a culvert proposed for incorporation into the project should significantly improve flushing of the water within the canal. Pollutant loading to the system should be reduced as a result of the biological filtration of the mangrove community which will absorb many of the excess nutrients currently in the canal water, and the removal of suspended solids. Expert evidence on the subject indicates that flushing time, currently estimated at 9 days, will be reduced to less than 4 days. Polluting activities, such as fueling facilities, live-aboards, and major repair and maintenance of boats in the canal will be prohibited. Any pollutants not removed by the natural filtration process described above will, therefore, remain in the canal water for less time than before. If vessels are docked in the canal, the minimal amount of resulting oil and grease pollution should not be sufficient to degrade water quality in either the canal or the bay to a point below acceptable established standards. In fact, such impact should be both non-detectable and non-measurable.. Hunt's plan calls for the removal of approximately 20 of the approximately 2,400 mangrove trees and the trimming of approximately 230 additional ones. Though this trimming, as a part of an exempt activity, is also exempt, and as a result, mitigation in not required, Hunt indicates its intention to plant 3 trees for every tree removed or trimmed, and this proposal, considered acceptable to the Department, has been incorporated as one of the permit conditions. The new mangrove area to be planted in mitigation should be fully established within 3 years of planting and will provide the same beneficial function as the replaced trees. Hunt's mitigation planting for the previously mentioned boardwalk project has been successful. To protect the manatee population as much as possible, the Department has also included conditions to the permit requiring the posting of manatee awareness signs along the canal and channel and the installation of a permanent informational display at the facility. These measures, though no guarantee of compliance by individual boaters, are currently the most effective safeguards short of prohibition of boat activity. The Department has concluded, and it is so found, that, considering the proposed project against the statutory criteria relating to dredge and fill permitting of this nature, the project, as conditioned, is in the public interest and would have no cumulative impact on the environment in the area. When the 36 special conditions attached to the permit by the Department are complied with, the effect on fish and wildlife resources in the area should be beneficial. As a result of the mitigation activities, both mangrove and seagrass populations should be increased and the shoreline enhanced. Water quality in the canal should be significantly improved above existing conditions, and the abandonment of the historic maintenance dredging operation, with its associated impacts, is clearly in the public interest. The incorporation of a permit condition precluding any subsequent maintenance dredging in the historic channel upon completion of the relocation is a safeguard clearly in the public interest. The evidence also indicates, supporting Departmental findings to that effect, that the project will not adversely affect the public health, safety, welfare or property of others; nor will it adversely affect the conservation of fish and wildlife, endangered, threatened or other. It will not adversely affect navigation or flow of water or cause harmful erosion or shoaling. It will not adversely affect fishing or recreational values or marine productivity in the area; nor will it endanger significant historical or archaeological resources which exist currently in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case granting a Dredge and Fill permit to Hunt Building Corporation consistent with the terms and conditions outlined in the Department's Intent to Issue, dated March 29, 1990, under file NO. 41-1542543. RECOMMENDED this 3rd day of January, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASES NO. 90-2350 & 90-2736 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR PETITIONERS, MANASOTA AND MANATEE: 1. Accepted. 2(a) - (e). Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. Rejected as contrary to the evidence. Accepted. - 17. Accepted and incorporated herein. Accepted. - 22. Not appropriate Findings of Fact. Should be in Conclusions of Law. 23. - 26. Rejected. 27. - 30. Accepted and incorporated herein. 31. - 33. Accepted. Accepted except for last clause. Not a Finding of Fact but a comment on the state of the evidence. Rejected. Not proven. Not a proper Finding of Fact and not supported by authority. Accepted and incorporated herein except that the canal is a Class III water body. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. Rejected. Accepted. Accepted but not determinative of any issue of fact or law. Ultimate Fact. Rejected. FOR RESPONDENT HUNT Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. 6. & 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. 13. Repetitive information. 14-1 & 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. FOR RESPONDENT DEPARTMENT: 1. - 5. Accepted and incorporated herein. 6. - 8. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. - 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. 23. & 24. Accepted. Accepted and incorporated herein. - 31. Accepted and incorporated herein. 32. Accepted and incorporated herein. COPIES FURNISHED: Martin Rosen 672 Jungle Queen Way Longboat Key, Florida 34228 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Patricia Petruff, Esquire John V. Quinlan, Esquire Dye & Scott, P.A. P.O. Box 9480 Bradenton, Florida 33506 Cecile I. Ross, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel DER 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner SFWMD is a public corporation of Florida. It is charged with the responsibility of issuing permits and enforcing orders relating to surface water management within its jurisdictional boundaries. Respondents Hubschman, as trustees, have full rights of ownership in 1,280 contiguous acres located in Sections 17 and 20, Township 47 South, Range 26 East, Lee County, Florida. These lands are known as Bonita Farms I and II. They are located within the jurisdictional boundaries of SFWMD. In their pre- developed state, these lands could generally be categorized as marsh and wetlands with cypress forest and some uplands in the northern half of the project area. After deciding to develop the acreage for use as pasture and farmland for small vegetable crops, Respondents Hubschman applied for a surface water management permit from SFWMD. The purpose of the permit was to allow the construction and operation of a water management system that would serve both farms. A system was designed to drain water off both parcels through a 62-acre retention area into a natural slough system which runs water into Kehl Canal. In order to create the system, the Respondents Hubschman had the following facilities designed for the site: internal ditches, dikes, pumps, a retention area and control structures. On April 15, 1982, SFWMD issued Surface Water Management Permit No. 36- 00315-S, and Respondents Hubschman were allowed to proceed with their proposed construction plan. A modification to the permit was issued on April 14, 1983. The retention area was enlarged from 62 acres to 88 acres by relocating the perimeter dike. The outfall structure was revised in that the two pumps and the weir were to be replaced by three 18" CMP culverts that would discharge the drained water by gravity flow from the retention area through the slough into Kehl Canal. The duration of the construction phase of its permit was a three-year period, unless the construction of the permitted project discharge structure or equivalent had been completed prior to that date. After the close of the three-year period, there was a dispute between the Respondents and SFWMD as to whether the permit had expired. The controversy was resolved through a compromise agreement. An application for the reissuance of Permit No. 36-00315-S was filed on October 13, 1986. Instead of reissuing Permit No. 36-00315-S, as requested by Respondents Hubschman, SFWMD decided to issue a new permit on May 14, 1987. As part of the processing procedures, SFWMD again reviewed and approved the entire surface water management system designed to serve the 1,280 acres of land proposed by Respondents. Because the additional work proposed for Section 17, the northern section was limited at this stage of development to the selective clearing of additional upland areas to create more improved pasture, the new permit directed attention to Section 20, the southern section of the land. The new permit advised the Respondents that if they wanted to propose additional development to Section 17, they were required to seek a modification of this new permit, Surface Water Management Permit No. 36-00764-S, to include those changes. The Respondents applied for a modification of Permit No. 36-00764-S on July 30, 1987. The proposed modification sought to change the status of the development of Section 17 from improved pasture to small vegetable farmland on 639 acres. The surface water management system plan was modified to drain water in Section 17 to the reservoir on Section 20. The water would be directed via a series of lateral ditches and swales. A six foot high dike and one 27,000 GPM pump were also required. Two additional 18" CMP culverts were required at the discharge facilities to accommodate the increased outflow. The Modification of Permit No. 36-00764-S was approved and issued on June 16, 1988. The original Permit NO. 36-00764-S and its modification are similar to a contract novation because the new permits substituted new obligations between the parties for the old ones under Permit No. 36-00315-S. Based upon this approach to the situation, SFWMD allowed the construction work completed under Permit No. 36-00315-S prior to the Stop Work Order of August 27, 1986, to vest. The completion of the berm around the reservoir in Section 20, as set forth in the letter from Elizabeth D. Ross, attorney for SFWMD, on September 19, 1986, was also allowed to vest. However, if the vested matters were changed in the subsequent permits, they became revisions. The revisions take precedence over the vested matters. Otherwise, completed construction under Permit No. 36- 00764-S as modified, and post Stop Work Order construction remains in effect perpetually for the operation portion of the permit. In order to determine with certainty what was permitted when the Notice of Violation was issued on December 20, 1988, the parties would have to look to the project work actually completed on August 27, 1986, the specific construction approved by SFWMD after that date, the subsequent Surface Water Management Permit No. 36-00764-S issued May 14, 1987, and its Modification issued June 16, 1988. The substantial compliance determination issued by Richard A. Rogers, P.E., Resource Control Department dated September 24, 1987, should also be considered as authorized activity. The Notice of Violation dated December 20, 1988, was issued to Respondent Samuel Hubschman, Trustee. He was advised that recent routine inspections indicate that current on-site activity was in violation of Special Conditions 2,3,4,7,14, 17 & 23 of Permit No. 36-00764-S (issued 5/14/87) and Special Conditions 5,16 & 22 of 36-00315-S (modified 6/16/88). A meeting to resolve these issued was suggested by SFWMD. Respondent Hubschman agreed to attend the meeting through his consultants. Both parties elected to attempt resolution of the Notice of Violation controversy through negotiations in a meeting scheduled for January 5, 1989. To demonstrate their sincerity, the parties agreed not to bring attorneys to the meeting. During the meeting, the parties resolved the controversy by agreeing to the following: SFWMD would no longer consider the project to be in violation of Florida law if the Respondents submitted certain items that would cause SFWMD to issue certain permits and modify others. The Respondents would promptly file an application for a dewatering permit so that the governing board could issue the permit at its March 9, 1989 meeting. The Respondent's contractor would make no field changes in the mitigation or excavation areas without first obtaining appropriate permit modification from SFWMD. Small jockey pumps were to be installed to pump water from the internal water management system into certain cypress and/or mitigation areas for the sole purpose of establishing wetland vegetation within the areas. Respondents were to apply for a modification of Permit No. 36-00764-S, as currently modified, to allow a single phase of mining for the entire affected area. The perimeter dike was to be made structurally adequate. Respondents were to submit an alternative proposal for the disposal of cap rock within ninety days. In the meantime, the contractor could continue to bury the cap rock within the mitigation areas. Both parties demonstrated their reliance on the settlement reached in the meeting by their subsequent actions towards completing and processing the applications for permit modifications and additional permits. Although the noted violations were not cured by these actions, the parties intended to reach a cure or to mitigate for present permit violations through new permit conditions. The preliminary staff review of the Respondents' application for modification of Permit No. 36-00764-S, as currently modified, was completed by March 31, 1989. The following information was requested by SFWMD staff: Revised engineering calculations which reflect that the permitted discharge structure is five 18" CMP culverts. An explanation as to why the 6.3 acre maidencane/juncus marsh designated as a preserve area and the adjacent western preserve area were excavated and otherwise disturbed by project activities. The scrapedown methodology for the replanting of mitigation areas. The Respondents' plans for the area delineated on the plans as pine, which is currently permitted as part of a cypress preservation area. Dike certification and reservoir certification. The above-listed information was required to be returned to the SFWMD within ninety days from the date of the written request. At the close of the ninety days, the information was not received. A second request for a response within thirty days was submitted by SFWMD on August 4, 1989. In September 1989, the Respondents attempted to comply with SFWMD's second request for information. Communications continued in regard to the filed application for modification of Permit No. 36-00764-S, as currently modified, into December 1989. After the thirty days expired for the response to the second request for information dated August 4, 1989, SFWMD filed the Administrative Complaint in these proceedings. After the second request for information, a partial response was received from Respondent Hubschman's consultants. The application continues to go through the review process. It has not yet been deemed complete by SFWMD. As part of the resolution of the Notice of Violation dated December 20, 1988, SFWMD issued permit No. 36-01023-W to Respondent Hubschman for construction dewatering, excavation of an irrigation pond, and water storage at the site. The permit was issued on March 9, 1989. Special condition No. 20 of this permit requires a 200-feet setback from the cypress mitigation area and the irrigation pond being dewatered. The setback is shown on Exhibit 10 of the Bonita Farms Dewatering Application which was made part of the permit. A copy of the permit was attached to the Administrative Complaint. No evidence was submitted by SFWMD regarding alleged violations of Special condition No. 20 which were allegedly observed and documented after the permit was issued, before the filing of the Administrative Complaint Respondent Bob Cadenhead is the contractor hired by Respondents Hubschman to construct the surface water management system. There was no evidence presented to show the connection of another party, Respondent, Cadenhead & Sons Construction, to the project.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Surface Water Management Permit No. 36-00315-S be deemed to have vested as to all construction activity completed under the permit which was not addressed in the subsequent permit issued by SFWMD. The completion of the berm, as set forth in Attorney Ross' September 19, 1986 letter, should also be allowed to vest. That Permit No. 36-00764-S and its later modification be ordered to supercede the prior permit in all matters specifically addressed. That the parties be held to their prior agreements to resolve pending permit violations through the permit modification process. That the alleged dewatering violation in paragraph 19 of the Administrative Complaint be dismissed for lack of evidence. That a specific deadline be set to reasonably complete pending application modifications. That all future enforcement action specifically comply with Rule 40E- 1.612, Florida Administrative Code, and remain separate from any permit or permit modification applications. That the parties create a new, active permit file with current drawings and a specific construction schedule. That the Administrative Complaint and Order filed in these proceedings be dismissed. That future agreements be reduced to writing and signed by the proper parties before they are relied upon by either party. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5737 Petitioner's Proposed Findings of Fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO number 4. Accepted. See HO number 3. Accepted. Rejected. Improper summary. Accepted. See HO number 6. Rejected. Improper opinion testimony. Rejected. Irrelevant. Argumentative. Rejected. Legal argument. Accepted. See HO number 5. Rejected. Legal argument. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. See HO number 15. The argument presented in this paragraph is overly punctilious. It ignores the detrimental reliance of opposing parties to the agreement. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Legal argument and improper opinion. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Matters presented were either not ripe for these proceedings or not proved at hearing. See HO number 16-number 20 and HO number 23. Rejected. Contrary to fact and law. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings as separate from the Notice of Violation. Irrelevant. Accepted as fact, resolved by agreement. Rejected. Improper opinion testimony. Rejected. Improper opinion testimony. Rejected. Irrelevant. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. Accepted. Rejected. See HO number 15. Rejected. Cumulative. Rejected. See HO number 11-number 12. Contrary to fact. Accepted. See HO number 9. Accepted. Accepted. See HO number 16-number 20. Rejected. Matter is still pending. See HO number 16-number 20. Rejected. Resolved through agreement. See HO number 15. Rejected. Matter is still pending. See HO number 16- number 20. Rejected. Legal argument. Rejected. Not in pleadings. Irrelevant. Rejected. Irrelevant. Accepted. See HO number 21. Accepted. Accepted. Rejected. Speculative. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO number 13. Rejected. See HO number 23. Contrary to fact and pleadings. Accepted. See HO number 14. Accepted. See HO number 15. Accepted. See HO number 15. Accepted. See HO number 20. Accepted. Rejected. Argumentative. See HO number 20. Accepted. See HO number 4-number 7. Rejected. Contrary to fact. The permit modifica- tion specifically required replacement of a pump with 3 culverts. See HO number 5. Accepted. See HO number 5. Accepted. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. Rejected. Contrary to fact. See HO number 7 and number 11. Rejected. Contrary to fact. See HO number 11. Accepted. Accepted. Rejected. See HO number 15. Additional matters were agreed upon which were not reflected in the letter. This is an incomplete summary. Rejected. Irrelevant. Rejected. Irrelevant to these proceedings. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Contrary to fact. See HO number 8 and number 9. Rejected. See HO number 8 and number 9. Contrary to fact. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 23. Rejected. Contrary to fact. Accepted. COPIES FURNISHED: John J. Fumero, Esquire Office of General Counsel South Florida Water Management District Post Office Box 24680 West Palm Beach, FL 33416-4680 Kenneth G. Oertel, Esquire OERTEL HOFFMAN FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Russell Schropp, Esquire HENDERSON FRANKLIN STARNES & HOLT, P.A. 1715 Monroe Street Fort Myers, Florida 33902 John R. Wodraska, Executive Director South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
The Issue The issues are whether Respondent, Mosaic Fertilizer, LLC (Mosaic), has provided reasonable assurances that the proposed mining and reclamation of the South Fort Meade Mine in Hardee County can be conducted in a manner that comports with the applicable statutes and rules such that the proposed Environmental Resource Permit (ERP), Conceptual Reclamation Plan (CRP), variance from minimum standards for dissolved oxygen, and variance from littoral zone percentage provisions for the Project should be issued by Respondent, Department of Environmental Protection (Department).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Mosaic is a limited liability company authorized to do business in the State of Florida and is the applicant in these proceedings. It was formed by the merger of IMC Phosphates Company and Cargill, Inc., in 2004. Mosaic has applied for permits to mine, reclaim, and conduct associated activities on property in Hardee County, Florida, known as the South Fort Meade Hardee County tract. These activities are referred to in this Recommended Order as the "Project" or "site." The Department is a state agency with jurisdiction over ERP permitting under Part IV, Chapter 373, Florida Statutes, for phosphate mining activities with jurisdiction over phosphate mining reclamation under Part III, Chapter 378, Florida Statutes, and with jurisdiction over variances associated with phosphate mining under Section 403.201, Florida Statutes. Pursuant to that authority, the Department reviewed the ERP, CRP, DO Variance, and Zone Variance applications for the Project. Lee and Sarasota Counties are political subdivisions of the State of Florida. Both Counties have filed challenges to other mining applications and have been found to have standing in those cases. The site is located within the Greater Charlotte Harbor Basin, approximately sixty percent of which lies within Lee County. In this case, Lee County is concerned about the potential destruction of stream and wetlands in the mine area and the impact of mining and its effects on Charlotte Harbor and the Peace River. Sarasota County is a member of the Peace River Manasota Regional Water Supply Authority, and they jointly hold a water use permit, which authorizes them to withdraw water from the Peace River for potable supply. Sarasota County operates a water treatment plant on the Peace River downstream from the site and is concerned with potential impacts to water quality and wetlands. After three years of data collection and site analysis, on October 13, 2006, Mosaic filed applications with the Department's Bureau of Mine Reclamation for an ERP/Water Qualify Certification for the disturbance of approximately 7,756 acres of uplands, wetlands, and other surface waters within a 10,856– acre area which makes up the site; a CRP for the same parcel; and the associated Zone and DO Variances. Three sets of additional information were requested by the Department, and on January 31, 2008, the applications were deemed to be complete. On June 30, 2008, the Department issued Notices of Intent to issue the permits and grant the variances. The Project is located within the Peace River Basin. Little Charlie Creek, a tributary to the Peace River, enters the site in the northeast part of the tract and flows diagonally across the tract in a general southwest direction. The Project is located to the east of the Peace River, east of the town of Bowling Green, northeast of the City of Wauchula, and just south of the Polk-Hardee County Line in Hardee County, Florida. The Project site is twenty-nine miles from the Sarasota County line and fifty-three miles from the Lee County line. The Peace River eventually empties into Charlotte Harbor near Port Charlotte in Charlotte County. The Project consists of approximately eighty percent of upland land cover types, including large acreages converted to agricultural uses, such as cattle grazing, citrus production, and row crop production. The Project site consists primarily of citrus groves and pasture. Richard W. Cantrell, Deputy Director of Water Resources for the Department, has extensive experience and knowledge concerning agricultural parcels of this size in Central Florida. Based on his familiarity with the site, he indicated that all the streams have been impacted, the impacts to some areas of the site are severe, and the "site contains some of the most polluted streams with respect to sedimentation that I have ever seen." The other Mosaic and Department ecological experts familiar with the site concurred in that assessment, and the substantial data collections and application information support that assessment of the site. Of the 2,590.7 acres of wetlands on the property, approximately 751 acres of wetlands and other surface waters will be impacted. Of that 751, 91 are upland cut ditches or cattle ponds, 108 acres are other surface waters, and 274 acres are herbaceous wetlands. Virtually all of the native upland vegetation on the site has been destroyed due to the agricultural activities that have been undertaken on the site over time. Only remnant patches of native upland remain on the site. These comprise approximately nine percent of the site and are predominantly within the riparian corridors of Little Charlie Creek and the Peace River and are proposed to be preserved. The evidence established that the majority of the wetlands and streams proposed for impact are lower in quality; the higher quality wetlands are typically associated with the riparian stream corridors and are proposed to be preserved. The preserved uplands are primarily pasture but also include one hundred thirty-nine acres of upland forest. Twenty-nine distinct vegetative communities were mapped on the site during approximately two years of evaluation and assessment utilizing the Florida Land Use, Cover and Classification System (FLUCCS). There are numerous natural stream segments that were mapped on the parcel including the primary drainage systems on site, consisting of the Peace River, Little Charlie Creek, Lake Dale Branch, Parker Branch, and Max Branch. Substantial portions of the natural streams and their flood plains will be preserved; sixty-two natural stream segments totaling 58,769 linear feet will be mined. No sovereign submerged lands are proposed to be impacted by the activities. The Peace River to its ordinary high water line is sovereign submerged lands; however, no other streams on site are claimed as sovereign. Therefore, no authorization to utilize or impact sovereign submerged lands is required. The field work assessing the ecological condition of the site's wetlands, streams, and surface waters consisted of detailed quantitative and qualitative assessments using FLUCCS, the Wetland Rapid Assessment Procedure, and the Uniform Mitigation Assessment Methodology (UMAM) codified in Florida Administrative Code Rule Chapter 62-345. The level of assessment expended in evaluating the native upland and wetland habitats on the site was considerable and provided reasonable assurances that the current condition and relative value of the systems were adequately considered in the permitting process. From 2002 to 2004, Mosaic conducted intense ecological evaluations of the site, evaluating historical and aerial photography and other site documentation and conducting extensive examinations in the field, including vegetative, macroinvertebrate, and fish sampling and surveying, surface and ground water quality and quantity monitoring, wildlife observations, surveys and trapping, stream mapping and evaluation, soil analysis, and other efforts, both in areas to be mined and areas to be preserved, and in both uplands and in wetlands. The ecological assessments were primarily conducted prior to the hurricane events of 2004, although additional field work was conducted following the hurricanes. Mosaic and the Department's experts revisited the site in the fall of 2008 and agreed that the various ecological and biological assessments conducted prior to the hurricanes would tend to overstate the quality of the site as compared to its current condition. The hurricanes caused a significant amount of damage to the remaining forested habitats on the site. A formal wetland jurisdictional determination was issued and published without challenge in 2007 and therefore conclusively establishes the boundaries of the wetlands and surface waters on the site for permitting purposes. Seasonal surveys for wildlife on the site were conducted in 2003-2004 using the wildlife survey methodology prescribed and approved by the Florida Fish and Wildlife Conservation Commission. Specialized wildlife surveys and night-time surveys were also conducted. A total of 4,600 man hours of effort were expended to evaluate the presence of fish and wildlife, including threatened and endangered species, on the site. The entire site was surveyed, with over 2,600 miles of wildlife transects, to assess the presence of wildlife, and detailed information was recorded for all wildlife observations, including anecdotal observations by the ecologists performing the wetland assessments. Mosaic also engaged in an extensive effort to identify the natural stream channels proposed for impacts on the site. After discussion with the Department staff, Mosaic distinguished the natural streams in accordance with FLUCCS codes 511, 512, 513, and 514, as required by Florida Administrative Code Rule 62C-16.0051(4). Streams are a subset of the term "other surface waters" for ERP purposes. Although streams are defined in Section 373.019(18), Florida Statutes, as are other watercourses and surface waters, there is no operative use of, or reference to, streams in Part IV, Chapter 373, Florida Statutes, governing ERP permits. Also, there are no specific ERP mitigation requirements applicable to streams. Thus, the only specific regulatory use of the word "stream" occurs in the context of Florida Administrative Code Rule 62C-16.0051, and not the ERP rules. The Department and Mosaic established that the delineation of streams proposed for impact by mining on the site was sufficient and adequate for purposes of the CRP rules. In addition, Mr. Cantrell stated that, for purposes of the acre- for-acre, type-for-type (for wetlands) and linear foot (for streams) reclamation requirements in Florida Administrative Code Rule 62C-16.0051, the Department required Mosaic to delineate a stream as such until the point it enters or after it leaves a wetland area and to delineate the wetland polygon itself as a wetland, not a stream. This is true even if water continues to flow through the wetlands and reform as a stream at the other side. If the stream will not be impacted, then nothing in either the ERP or CRP rules requires its precise delineation, because the CRP rules apply only to reclamation of impacted areas. Thus, Lee County's assertion that "streams" has some special status by virtue of the definition in Section 373.019(18), Florida Statutes, has not been accepted. Mr. Cantrell further testified that the Department utilizes a substantially similar definition to delineate "streams" pursuant to Florida Administrative Code Rule 62C-16.0051(4), but as noted in Findings of Fact 44-46, subsection (5) of the rule requires restoration on a linear foot basis only of natural streams. Lee County contended that over 12,000 feet of natural streams were omitted or misidentified in the application. However, based upon the evidence presented, both historical and current, and applying the applicable regulations and statutes, this argument has been rejected. This contention was based on after-the-fact approximation of stream locations and lengths plotted from memory in a desktop analysis. Further, during his site visit to mark stream locations, Lee County's expert failed to use a handheld GPS device or maps. Therefore, the evidence submitted by Mosaic and the Department as to the location and length of the streams proposed for impact has been credited. Mr. Cantrell testified that even the best of the streams proposed for impact have been subjected to at least sixty years of agricultural disturbance and manipulation. For example, the system 22 series of stream segments will be impacted and replaced by the clay settling areas. While the witness characterized segment 22(o) as the most stable and least impacted of the streams to be mined, that segment is 376 feet long and located at the uppermost reach of the 22 systems. It is an extremely small percentage of the overall 12,000 plus feet of less stable and more severely impacted parts of system 22. Mosaic and the Department analyzed the origins and current condition of the streams to be impacted, most of which are less than three-to-four feet wide and one foot or less deep and flow only intermittently and seasonally. The ecological and hydrologic conditions of the site and its fish and wildlife populations and habitat values were assessed for purposes of the ERP and CRP regulatory criteria. Respondents' characterization of the functional value of the wetlands, streams, and surface waters is supported by a preponderance of the evidence. Lee and Sarasota Counties' assertion that the site wetlands and streams are in "good" condition and can be easily restored is not credited in light of the lack of empirical data to support this contention. The only way to recover the phosphate ore is through mining to remove the overburden layer and expose the phosphate matrix with a dragline. The first step prior to any land disturbance associated with phosphate mining is the installation of a "ditch and berm" system, which is recognized as a best management practice (BMP) by the Department and the United States Environmental Protection Agency. Installation of the ditch and berm system proceeds in phases to protect unmined wetlands and habitats from mining impacts as mining progresses; it is not constructed all at once. The ditch and berm remains in place around an individual mining unit until mining and reclamation have been completed and monitoring indicates the revegetation is sufficiently established such that no violations of water quality standards will occur upon re-connection to adjacent and downstream waters. It is then removed in accordance with the reclamation plan. The system serves a number of purposes described below. Berms are required to be constructed in accordance with specific design criteria. The height of the berm will be designed in accordance with rules specific to such structures to prevent water from overtopping the berm during a 25-year, 24- hour storm event, even if the ditch becomes blocked. Following installation of a ditch and berm system, bulldozers clear the mining area of vegetation. Up to three large electrically powered draglines operate generally in parallel rows to remove the overburden layer (the upper layer of sand and clay soil), which is approximately 23.6 feet thick on average, to expose the phosphate matrix, which is approximately 13-to-15 feet thick on average. The overburden is cast to the side in piles to be later reused in reclamation. The phosphate matrix is a mixture of sand, clay, and phosphate, which must be separated after mining. At the beneficiation plant, washing, screening, and flotation processes are used to separate the phosphate rock from the sand and clay. After washing and screening, the sand is pumped back to the mine cuts for use in reclamation, and the clay is pumped to clay settling areas (CSAs) in slurry form to decant. Both the transport of sand back to the mine areas for use in reclamation and the transport of clays to CSAs are considered "mining operations," not "reclamation." See Peace River/Manasota Regional Water Supply Authority, et al. v. IMC Phosphates Company, et al., DOAH Case No. 03-0791 (DOAH June 16, 2006; DEP July 31, 2006); Fla. Admin. Code R. 62C-16.0021(10) and (15). Thus, contrary to Lee County's allegation, the transportation of clays and sand is not a valid consideration in the financial responsibility required for mitigation. Through testimony and its materials balance tables, which are part of the application, Mosaic demonstrated that it has sufficient sand tailings and other waste materials to meet all of its reclamation requirements mine-wide, including both the Polk side and the Project site. However, while there is sufficient sand available to create the proposed reclamation topography and contours, the tables and testimony demonstrated a need, on a mine-wide basis, for lakes, as voids will remain otherwise. There will be only a very small pile of available sand remaining after all reclamation obligations on both the Polk side and the Project are met, an insufficient amount to eliminate the need for deep lakes as proposed. Mr. Myers, Mosaic's Vice-President of Mining, testified as to the three basic ways the waste materials generated by the beneficiation plant are disposed of on-site to facilitate reclamation. Sand tailings will be utilized in areas to be reclaimed as native habitats, wetlands, and streams. Clays will be disposed of in CSAs. However, based on the materials balance and logistical issues, the "land and lakes" reclamation method, which utilizes only the available overburden material remaining on-site after mining, will be used for the lake reclamation. This method allows sand tailings preferential use in reclamation of native habitats and use of shaped and contoured overburden in areas not proposed for wetland mitigation. Such is the case for the proposed reclaimed lakes. A CSA is an above-grade impoundment to hold clay slurry pumped from the beneficiation plant. This clay slurry is pumped into one side of a CSA in the form of muddy water. The clay settles to the bottom, and the clear water remains at the top. The clear water is drawn out from the opposite side of the impoundment, where it is recycled back to the beneficiation plant and mine for reuse. Over time, the clay consolidates and solidifies to form a solid soil, the surface area is drained, and the impoundment reclaimed. Three CSAs will be constructed on the northern portion of the site to hold the clay that cannot be stored in already- permitted CSAs in Polk County. The use of stage filling has allowed Mosaic to have additional usable space in its CSAs, minimizing the footprint of new CSAs in Hardee County. In addition, approximately fifty percent of the clay waste from the site will be disposed of at the Polk site to further minimize the clay disposal footprint and eliminate and reduce impacts. To evaluate the number of CSAs required, Mosaic asked Ardaman & Associates, a consulting firm, to examine different clay generation scenarios when predicting the CSAs required by mining and beneficiation. The life of mine waste disposal plan, most recently updated in September 2008, indicated that, in all but one scenario (the seventy percent clay containment scenario), all three CSAs would be required. However, Mosaic witness Garlanger established that all three CSAs in Hardee County would be necessary based on the best available information as to the amount of clays reasonably likely to be generated by mining; the seventy percent scenario is not likely. No evidence was presented to rebut that testimony. A diversion system was also voluntarily included for the CSAs by Mosaic. In the highly unlikely event of a dam failure, this system will re- direct any escaped water and/or clay materials to adjacent open mining cuts where they can be safely stored. The diversion system will be reclaimed when the CSAs are reclaimed. The evidence established that the ditch and berm system, CSAs, and diversionary structure are capable of being constructed and functioning as designed. The reclamation plan includes avoidance (no mining) of approximately 3,100 acres, or twenty-nine percent, of the site, including more than seventy-one percent of the total wetlands on-site. Of this, 2,100 acres will be placed in a perpetual conservation easement. There is a wide gamut of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the preserve area. The project includes disturbance of 751.3 acres of wetlands and other surface waters, which include non-wetland floodplains, cattle ponds, and upland-cut ditches, and mining of 58,769 linear feet of natural and modified natural streams. An additional 1,661 linear feet of stream channel will be disturbed but not mined for six temporary crossings for dragline/utility/ pipeline corridors. To mitigate for impacts to streams and wetlands under the ERP rules, Mosaic will create 641 acres of wetlands and other surface waters and 67,397 feet of stream channel and will also provide a conservation easement to the Department on 2,100 acres of unmined wetland and upland habitat associated with the major riparian systems. The conservation easement area will be permanently preserved and protected from secondary impacts. The UMAM rule is applied to ERP applications to measure the functional loss to wetlands and other surface waters proposed for impact and the functional gain associated with the proposed mitigation. Functional loss is compared to functional gain to determine whether sufficient mitigation has been offered that offsets the proposed impacts. The proposed preservation and wetland and surface water creation, along with certain upland enhancements, will provide more than enough UMAM mitigation "lift" (with 48 excess credits) to satisfy the ERP mitigation obligations and offset those wetland impacts that cannot be eliminated or reduced. The UMAM scores for the reclaimed areas are conservative, that is, using higher risk factors by assuming muck or other appropriate topsoil will not be available, and take into account the risk or difficulty associated with creation of a particular system, based on actual UMAM scores for existing reclaimed systems. Time lag, which is normally a factor considered in the UMAM mitigation equation, expressly does not apply to phosphate mines pursuant to Florida Administrative Code Rule 62-345.600. Thus, Lee County's attempt to argue that some greater amount of mitigation of streams is required to account for the time required to construct and reinstate flow and vegetation to the streams is not credited. Mr. Cantrell confirmed that "fat" was built into the foot-for-foot stream reclamation because 7,000 more feet of stream will be reclaimed beyond the amount impacted; some "stream" segments, specifically, stream segment 18(i), probably should not have been required to be reclaimed at all. Under Florida Administrative Code Rule 62C-16.0051, the 511 and 512 classified "natural" streams are the only streams warranting reclamation as streams under the Department's reclamation rules. Only natural streams currently existing immediately prior to mining are required to be reclaimed on a linear foot basis. Reclamation meeting the requirements of Florida Administrative Code Rule 62C-16.0051 is adequate mitigation under the ERP program in Part IV, Chapter 373, Florida Statutes, if it maintains or improves the functions of the biological systems currently existing onsite. See § 373.414(6)(b), Fla. Stat. Mr. Cantrell established that, under subsection (5) of the rule, the Department has discretion to request the applicant to restore wetlands and streams to a different type of system than existing on the site if "mitigating factors indicate that restoration of previously modified streams as a different type of lotic system would produce better results for the biological system and water quality." The evidence established that the rules do not require reclamation of artificially created water courses or remnant stream segments that lack the functions or landscape position one normally associates with natural streams. Instead, a better lotic system will be created that will improve existing functions and water quality, consistent with Section 373.414(6)(b), Florida Statutes, and the CRP rules. In addition to the wetlands and surface waters created to meet mitigation requirements, the Project will also reclaim uplands and will include what is known as "land and lakes" reclamation in the southeastern portion of the site. Utilizing shaped and contoured overburden, Mosaic will create four lakes totaling 180 acres and 43 acres of associated herbaceous littoral zone as CRP reclamation. This is based predominantly on the mine-wide materials balance showing a need for reclaimed lakes to account for mine voids on the Hardee site, the Polk site, or both. As a result, Mosaic has proposed 180 acres of reclaimed lakes in Hardee County in lieu of 500 acres of reclaimed lakes in Polk County, as this results in eliminating overall reclaimed lake acreage while satisfying Hardee County's request for deep lakes. In addition, timing and property logistics in that portion of the site make transport of tailings to the area from the beneficiation plant problematic. As the site is an extension of the existing South Fort Meade Mine in Polk County, Mosaic possesses permits that are not at issue in this proceeding, but are relevant to the project. Discharges from a mine recirculation system require a National Pollutant Discharge Elimination System (NPDES) permit. Discharges may only occur at specified discharge points upon verification that the discharge meets stringent water quality conditions in the permit, which are set to ensure that water quality standards in the receiving water are met at the point of discharge (without mixing) and that downstream water quality will be protected. A separate NPDES permit is not needed for the Project, because Mosaic already has a valid NPDES permit for the Polk County beneficiation facility, which will serve the site. Mosaic currently has a Water Use Industrial Permit (WUP) issued by the Southwest Florida Water Management District (SWFWMD). The WUP includes both the Polk County and Hardee County portions of the South Fort Meade mine and governs both dewatering of the mine area prior to mining and operation of water supply wells located in Polk County that will be used to provide supplemental water to the recirculation system. Mosaic's evidence demonstrated that the Project will not cause adverse water quantity impacts, consistent with Florida Administrative Code Rules 40D-4.301(1)(a), 40D-4.302(1), and 62C-16.0051 and related BOR provisions. Mosaic presented evidence concerning the potential long term impacts of the proposed project on surface and ground water quantities and flows both during active mining and reclamation activities, and after reclamation is complete. Extensive analyses were presented by Mosaic's expert witnesses and evaluated by the Department. Such analyses showed no adverse impacts to water quantity on the site, adjacent properties, or in the Peace River or Charlotte Harbor. The site was studied extensively by Mosaic, and detailed hydrology characteristics were assessed as part of the preparation of the ERP and CRP applications. Various surface water stations, topographic maps, and ground water sampling points were utilized and geologic information was developed by evaluation of various borings across the site. Mosaic witness Burleson, a professional engineer, further considered soil types, land use and vegetative cover, and existing site hydrologic factors such as culverts, bridges, and other such changes to the site by the prior owners. Mosaic's modeling expert, Dr. Mark Ross, considered these factors on a regional scale in his integrated modeling for the 360 square mile regional basin. In the region of Florida that encompasses the site, there are three major hydrogeologic layers that are significant to a hydrologic analysis: (1) the surficial aquifer system, comprised of the overburden (the top layer of soil) and the phosphate matrix; (2) the confining layer and intermediate aquifer system; and (3) the Floridan, or deep, aquifer system. The confining layer separates the surficial from the intermediate and Floridan aquifer systems. By understanding the surface and ground water systems and physical characteristics of the site, the Mosaic experts were able to apply appropriately-calibrated hydrologic models to assess (1) pre-mining and post-reclamation floodplains and storm event runoff comparisons; (2) base flows to reclaimed streams; (3) potential hydrologic impacts of stream crossings; (4) effectiveness of the perimeter "recharge ditches"; (5) hydroperiod of reclaimed wetlands; and (6) potential impacts of the project on flows in the Peace River. These models were used to predict with reasonable certainty the effect of the Project on water quantity on-site, off-site, and on a regional scale. As set forth below, the evidence established that water quantity and flows in adjacent unmined wetlands and streams will be maintained during mining activities as a result of the installation of the ditch and berm system as proposed. Before the ditch and berm system is constructed, Mosaic will refine the design of the system based on actual geological data and gradient information to assure the ditch and berm will function as proposed and modeled. The ditch and berm system is inspected regularly. Recharge wells within the recharge ditch are not required unless localized conditions dictate use of the wells. Contrary to Lee County's assertions, this site is distinguishable from the Ona mine site (which is also in Hardee County), and the depth of mining is far more shallow with relatively few areas mined to a depth of fifty feet, which was common at the Ona mine site. Additionally, Mosaic must install perimeter monitor wells at regular intervals adjacent to and downgradient of the ditch and berm system prior to mining. These wells are monitored prior to mining to establish a baseline and regularly throughout mining in accordance with the requirements of Mosaic's WUP and the ERP to assure that the water table in adjacent areas is not adversely affected by mining activities. The water in the ditch portion of the perimeter system must be maintained at levels sufficient to maintain groundwater levels in undisturbed areas. Maintaining water in the ditch at appropriate levels precludes drainage of groundwater from adjacent sites into open mine cuts. Mosaic witness Pekas, a professional engineer, conducted modeling to determine whether adequate base flow will be provided to protected streams and reclaimed streams during mining. Provided the ditch and berm system is operated properly, proper base flows will be maintained. All of the hydrologic experts agreed that proper operation of a ditch and berm system assures that adequate groundwater outflow, or base flow, is available to support adjacent streams and wetlands during mining. During active mining operations, the ditch and berm system collects rainfall on areas within the system. The ditch and berm system temporarily detains this rainfall, preventing the direct discharge of untreated, turbid runoff to adjacent wetlands and waters, but does not permanently retain the rainfall. The evidence demonstrated that most of the rainfall that falls on areas disturbed by mining and mining-related activities is detained by the perimeter ditches, routed to the mine recirculation system, and is subsequently discharged, when it meets water quality standards, through NPDES-permitted outfalls to waters of the state. This will serve to attenuate surface water flows, allowing surface water retained during storm events to be discharged during extreme low flow events, providing for less "flashiness" in the streams. Lee County's assertion that runoff will be permanently retained is not credited; the evidence clearly established that controlled releases of treated stormwater occur through the permitted NPDES outfalls. The evidence shows that Mosaic will re-connect mined and reclaimed areas at the mine in Polk County at a rate exceeding the rate at which the Project's mine areas will be diverted by the ditch and berm system. Thus, any potential downstream impact of the ditch and berm construction on the site will be offset and buffered beyond the safeguards incorporated in the project design. The evidence demonstrated that the proposed ditch and berm recharge and monitoring system described here is capable, based upon generally accepted engineering principles, of being effectively performed and functioning as proposed and will preclude any adverse impact on the surficial aquifer beneath the preserved areas and adjacent properties and on adjacent surface waters and wetlands. The Department will apply the relevant BOR criteria concerning water quantity impacts on a pre-mining/post- reclamation basis consistent with the application of these same criteria to other non-mining ERP applicants. In this case, the Department reviewed Mosaic's submittals, assessed the impacts, and determined no adverse impacts to water quantity would occur during mining. Mosaic submitted a detailed analysis of potential surface water quantity impacts that may occur after reclamation is complete. This analysis included evaluation of post- reclamation floodplains and storm event run-off compared to pre- mining patterns, and characteristics of reclaimed natural systems. Floodplains, run-off, and reclaimed natural systems were assessed in the manner described below. Mosaic modeled potential impacts of the project on surface water flow using existing site conditions to calibrate and verify the model. Mr. Pekas developed a water balance hydroperiod spreadsheet model calibrated using existing, on-site wetlands to evaluate the expected hydroperiods of various types of wetland systems proposed to be reclaimed at the site. The evidence shows that the Pekas spreadsheet model was an appropriate model for predicting hydroperiods for reclaimed wetlands. Appropriate ranges for the expected hydroperiods and other hydrological characteristics needed for the different types of wetland systems to be created in the post-reclamation landscape were established. In order to reflect natural conditions, the Department specifically requested that the targets for expected hydroperiods of reclaimed wetlands vary across the established range of the hydroperiod for the type of wetland at issue, and these target hydroperiods are summarized in Table E-6 to the draft ERP. Mosaic demonstrated and verified that the Pekas spreadsheet reasonably predicts the hydroperiods to be expected from a given design for a proposed reclaimed wetland. After mining, site-specific conditions such as hydraulic conductivity will be reassessed and final design parameters will be developed accordingly. Lee County's witness Jonas demonstrated the importance of hydraulic conductivity when she adjusted the value for wetland 2-1C (one of Mr. Pekas' verification wetlands) from 0.5 to 30, based on a value not from the Project site, but from an off-site reclamation project. Not surprisingly, she concluded that a conductivity of 30 would not provide hydrology to support the wetland functionality. Her analysis demonstrates the importance of requiring reclamation of subsurface hydrology not based on an off-property conductivity value, but on site- specific hydraulic conductivity information. In his own analysis, Mr. Pekas relied on actual soil borings on-site, and at wetland 2-1C the average hydraulic conductivity was 0.5, which when modeled, provided appropriate hydrology for that wetland. Furthermore, ERP Specific Condition 11 requires Mosaic to reclaim wetlands with functionally equivalent hydraulic conditions based on verified field information as to site- specific hydrologic properties existing after mining, and the wetlands will not be released until functioning as required. The preponderance of the evidence demonstrates that reclaimed wetland can be designed and built in a manner that will achieve the required hydroperiods for each wetland type proposed to be disturbed and reclaimed at the site, including the bay swamps. In addition, each of the wetlands must be individually evaluated immediately prior to construction to provide additional verification of site-specific hydrologic conditions to assess, re-model, and verify the final wetland designs prior to construction. Condition 11c of the draft ERP also requires Mosaic to mimic the existing hydraulic conductivity and gradients near streams to ensure that base flows will be present post-reclamation. All of this will ensure that reclaimed streams will be hydrologically supported, and wetlands with the target hydroperiods requested by the Department will be constructed. The contrary testimony of Lee County's hydrologists does not credibly rebut this evidence. In performing their calculations, they utilized unrealistic numbers. The claim of Lee and Sarasota Counties' experts that they lacked sufficient information to form an opinion as to the accuracy of the modeling is not sufficient to overcome the evidence submitted by Mosaic to meet this criterion. See, e.g., National Audubon Society, et al. v. South Florida Water Management District, et al., DOAH Case No. 06-4157, 2007 Fla. ENV LEXIS 164 at *21 (DOAH July 24, 2007, SFWMD Sept. 13, 2007). Mr. Burleson determined that the original drainage patterns of the site would be restored post-reclamation. Mosaic provided reasonable assurances that the proposed reclamation is capable of being constructed and functioning as proposed. The preponderance of the evidence demonstrated that the proposed mining and reclamation of the site will not cause adverse water quantity impacts post-reclamation, as addressed by Florida Administrative Code Rules 40D-4.301(1)(a) and (c), associated BOR provisions, and Florida Administrative Code Rule 62C-16.0051(8)(b). Mosaic presented evidence demonstrating reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, consistent with Florida Administrative Code Rules 40D-4.301(1)(b) and 62C- 16.0051(8) and associated BOR provisions. During mining, there is no reasonable likelihood that active mining and reclamation activities at the site will result in any increased flooding conditions upstream of, on, or downstream of the site. The ditch and berm system reduces direct surface water runoff from areas disturbed by mining operations during peak rainfall events. Subsequent NPDES discharges of water typically lag slightly behind the rainfall events. This lag during mining decreases peak discharges in adjacent streams while augmenting lower flows slightly, thereby attenuating peak flows. Mr. Burleson evaluated the pre-mining and post- reclamation peak flow analyses for the project site to determine whether the post-reclamation topography, soils, and vegetative cover would result in flooding, using the Interconnected Pond Routing program or "ICPR" model, an accepted model for stormwater modeling, as required by the BOR. Mosaic's evidence established that the Project will not adversely impact existing surface water storage and conveyance capabilities, consistent with Florida Administrative Code Rule 40D-4.301(1)(c) and related BOR provisions. Additionally, Mosaic proposes to preserve from mining the 100-year flood plain of Little Charlie Creek and the Peace River and most of the higher quality small tributaries on the site. The smaller streams to be mined will be restored in a way that maintains or improves pre-mining conditions and will not cause harmful or erosional flows or shoaling. The federal Hydrologic Engineering Center Reservoir Analysis System and the National Flood Frequency Program were used by Mr. Burleson to verify the floodplains are accurately mapped and also that there will not be an increase in flood risk in the post-reclamation condition. The preponderance of the evidence demonstrates reasonable assurances that the proposed mining and reclamation activities at the site will not result in adverse flooding impacts, consistent with Florida Administrative Code Rules 40D- 4.301, 40D-4.302(1)(a)3., and 62C-16.0051(8), and the BOR, including water quality standards in Chapter 4. The evidence presented by Dr. Ross established that the proposed mining and reclamation activities on the site will not adversely impact flows in the Peace River. No adverse effects of the Project will be observable at the Zolfo Springs United States Geological Survey (USGS) gauging station. A minimum flow for the Upper Peace River has been established pursuant to Section 372.042, Florida Statutes. A minimum low flow of 45 cfs from April to June (Upper Peace MFL) was established at Zolfo Springs by the SWFWMD; since the MFL has not been met since adoption, a recovery plan has been instituted. See Fla. Admin. Code R. 40D-8.041(7). Lee County asserts that the Project will violate the Upper Peace MFL and the recovery plan, arguing that a reduction in average annual flow, regardless of how infinitesimal, constitutes a violation of Florida Administrative Code Rule 40D-4.301(1)(g). This argument was refuted by Dr. Ross, who established that the project would increase flows during low flow periods. The Department concurred with, and the evidence supports, Dr. Ross' assessment that the project would not exacerbate the Upper Peace MFL or interfere with the recovery plan. Dr. Ross created a regional-scale integrated model utilizing public domain computer programs in an iterative fashion that coupled surface water and ground water to comprehensively evaluate the effects of the project on the flows in the Peace River post-reclamation. The regional approach included a full range of upstream and downstream influences on the site, not simply mining, that could affect the hydrologic evaluation of any impacts from the Project on the Peace River. The model domain included 360 square miles. To account for site-specific impacts in the model, Dr. Ross increased the refinement and discretization over the site. Thus, the model was capable of considering impacts from the site in its entirety within the region as measured at the Zolfo Springs USGS gauging station. Zolfo Springs is the first USGS gauging station directly downstream of the site and is the point of compliance for minimum flows adopted for the Upper Peace River system. The regional model predicted virtually no change in flows at the Zolfo Springs gauging station after the project as proposed is reclaimed, and that both the high and low flows observed at Zolfo Springs would be maintained post-reclamation. Dr. Ross concluded that there would not be any reduction of low flows at Zolfo Springs due to the Project. He further concluded that the Project will not impact or affect the recovery of minimum flows. Dr. Ross calculated the differences between the model- predicted high flows and low flows from the observed flows and found that the modeled high flows were slightly attenuated and the modeled low flows were slightly augmented at Zolfo Springs. The attenuation is consistent with the increased storage for water in the post-reclamation system. Consistent with Florida Administrative Code Rule Chapter 40D-8, the Department considered potential impacts to low flows as the determining factor in determining whether a minimum low flow requirement like the one set for the Upper Peace MFL will be met. It concluded that the project is consistent with the Upper Peace MFL and its recovery strategy. The recovery strategy discusses projects which, like the one proposed, would yield a long-term increase in low flow conditions by storing some peak flow volumes and releasing them in low flow conditions. The Department's interpretation of its ERP rules and BOR provisions regarding MFLs, as well as other governing rules, is reasonable and has been accepted. Lee County's experts based their MFL testimony on an inappropriate use of annual average flow information and improper interpretation of Mosaic's data. Further, they inappropriately attempted to reach conclusions by estimates and extrapolation, and the overall weight of the evidence supports Mosaic's evidence that mining and reclamation will not cause a violation of the Upper Peace MFL. Accordingly, Mosaic has provided reasonable assurances that the requirements of Florida Administrative Code Rule 40D- 4.301(1)(g) and associated BOR provisions have been satisfied. The ditch and berm system and other proposed BMPs, such as silt fences, at the site will provide water quality protection to adjacent undisturbed surface waters and wetlands during mining and reclamation activities. The actual construction of the ditch and berm and stream crossings will be conducted using BMPs to avoid adverse construction-related impacts. During mining, the ditch and berm system will preclude uncontrolled releases of turbid water to adjacent un-mined areas. The evidence established that the proposed Project will not cause a violation of water quality standards, either in the short-term or long-term. Dr. Durbin, an ecologist, evaluated water quality data from the existing South Fort Meade mine in Polk County and compared data from the 10-year period before the mine opened against the 10-year period after the mining began, finding water quality to be equivalent or better after mining began in Polk County. This allowed him to conclude that water quality on the site will not be adversely affected and, in light of existing agricultural activities, will be maintained or improved both during mining and post-reclamation; water quality in reclaimed systems will be sufficient to maintain designated uses of the systems. Dr. Durbin opined that the ERP contains detailed water quality monitoring requirements that, based on his long experience, are sufficient to establish a baseline, assess compliance, and detect significant trends. Sarasota County's witness has no experience in ERP or CRP permitting and his suggestion for far more frequent monitoring is not credited. No additional monitoring conditions or criteria are warranted. For the above reasons, Mosaic has demonstrated by a preponderance of the evidence that reasonable assurances that water quality standards will not be violated either during mining, while reclamation is underway, or post-reclamation. The evidence further established that accepted BMPs will be used during mining to protect the water quality of adjacent and downstream waters, and that these measures can be expected to be effective to prevent any violations of water quality standards. Dr. Durbin provided unrebutted evidence that water quality standards in waters of the state and downstream of the project will be met post-reclamation and existing water quality in the unmined and reclaimed wetlands and waters will be maintained or improved post-reclamation. Thus, no adverse water quality impacts to the Peace River or Charlotte Harbor will occur during mining or post-reclamation. Therefore, reasonable assurances have been given that the requirements of Sections 373.414(1) and 373.414(6)(b), Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(e) and 62C-16.0051(7), and associated BOR provisions are satisfied as to water quality. There is a wide range of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the no-mine and preserved areas. Mosaic does not propose to mine all or even most of the jurisdictional wetland and surface waters. In fact, seventy-one percent will be avoided. When developing a mining plan, Mosaic considers how to eliminate or reduce proposed impacts to waters and wetlands. The evidence established that Mosaic and the Department engaged in a protracted elimination and reduction discussion throughout the review process associated with the site's ERP/CRP applications. BOR Section 3.2.1 emphasizes the effort required to assess project design modifications that may be warranted to eliminate and reduce impacts to ecological resources found on the site. This effort was undertaken with the Department as early as 2004 during the DRI pre-application conferences. The major project design modifications involved the preservation of the named stream channels, the 100-year floodplain of the Peace River and Little Charlie Creek, and the 25-year floodplain of the other named tributaries. These areas will be permanently preserved by a 2,100-acre conservation easement; 1,000 additional acres will remain unmined. Also, the project design was modified and developed to maximize resource protection by integrating the Polk and Hardee mining operations. The testimony established how the activities at the Hardee operation will be greatly facilitated by relying upon and using the beneficiation plant and infrastructure already in place and permitted at the Polk site. Almost fifty percent of the clays generated at the Hardee mine will be disposed of in the existing Polk County CSAs, thereby eliminating one CSA altogether and substantially reducing the footprint needed for CSAs on the site. Likewise, the Department established that mine-wide, approximately 320 acres of lakes were eliminated. The Department discussed further modifications to the mine plan with Mosaic throughout the lengthy review process, doing a wetland and stream-by-stream assessment of the functions provided and the reclamation capability to maintain or improve the functions of the biological systems present prior to mining. The balance was struck between temporary resource extraction, recognized by Florida law as inextricably related to wetland disturbance, and the significantly altered natural resource features found on the site. In light of the 3,100 acres already eliminated and reduced from impact consideration, the Department in its discretion did not find it necessary to pursue economic data or analysis on the "practicability" of any further reductions. The highly disturbed nature of the wetlands and other surface waters being impacted gave the Department a high degree of confidence that mitigation and reclamation of these areas would in fact maintain and improve the functions provided prior to mining. Specifically, Mosaic has eliminated impacts to stream systems to the greatest extent practicable. Based on a Department field evaluation in late August 2008, Mosaic was directed to revise the no-mine line in the 3A stream system to more accurately reflect the floodplain of the stream draining the two bay heads north of the stream. In October 2008, Mosaic made the revision to add approximately 2.7 acres to the no-mine area. The majority of the streams proposed for impact by mining cannot be avoided, given the location of the three CSAs that are required for clay disposal associated with mining. The evidence established that there is no other location for the three CSAs that will have a lesser ecological or public health, safety, or welfare impact than the proposed location, given the site topography. As noted above, the volume of clays to be disposed of on the site has been reduced by half, and three CSAs are still needed. The location was chosen to move the CSAs as far from the Peace River and Little Charlie Creek as possible in light of the site topography, and this location avoids all impacts to named stream systems. As set forth above, Mosaic has demonstrated by a preponderance of the evidence that the best and most complex habitats on the site have been preserved at the expense of a loss of a significant amount of phosphate reserves in the preserved areas. All significant stream systems have been avoided to the extent practicable in light of the necessary CSAs. Both Mosaic and Department witnesses testified that the proposed no-mine area was the result of design modifications to eliminate or reduce impacts to wetlands to the greatest extent practicable. This satisfies the requirements of applicable rules and Section 373.414(1)(b), Florida Statutes. Florida Administrative Code Rule 62C-16.0051(4) and (5) provides specific guidance on the classification and reclamation of natural streams. The Department provided direction to the applicant through the review process in the identification of natural streams and the design guidance manual to ensure foot-for-foot replacement and functional replacement or improvement. The permit reflects the 58,769 feet of the streams identified as numbers 511 and 512 to be impacted, and Mosaic has proposed approximately 65,700 feet of restored stream. Lee County's assertion that 2.3 miles of additional unmapped streams should be added to the reclamation obligation has been rejected. It is clear many of the areas alleged to be unmapped streams were depressions, low lying areas, or standing water within wetland areas more accurately identified as marshes or swamps. The fact that a discernible natural stream channel exists upstream and downstream of a wetland did not change the accuracy of acknowledging the different structure, form, and functional attributes that result in the wetland being distinct from the stream. Also, many of the alleged unmapped streams were located in the no-mine areas, and thus the alleged lack of delineation is of no consequence. Lee County's witness Erwin admittedly took no measurements of the alleged streams. Also, he provided no evidence that he or his staff delineated the alleged streams on- site. Rather, he reconstructed where they were located as a desktop exercise from memory, without any aids or tools used in the field. He then superimposed an alignment and put it on a GIS layer over an aerial photograph, resulting in an electronically generated approximation. The witness offered no physical evidence of depth, width, length, or bankfull width of stream function, but merely an assertion as to areas that appeared to have a bed or channel, even if dry, and the attributes or functions of a stream were immaterial or irrelevant to his analysis. No other independent witness attested to the alleged stream discrepancy, whereas both Mosaic's expert, Mr. Kiefer, a recognized fluvial geomorphologist, and the state's expert on jurisdictional delineations, Mr. Cantrell, who was the author of the applicable rules, expressly disagreed with these allegations. The testimony of Mosaic and the Department is found to be the most persuasive on this issue. Mosaic and the Department established that the proposed stream restoration plan is more than adequate to meet the requirements of Florida Administrative Code Rule 62C- 16.0051(5) and will ensure the reclaimed streams maintain or improve the biological function of the streams to be impacted. Dr. Janicki, a scientist who testified on behalf of Lee County, was critical of the stream restoration plan. However, he acknowledged he was not an expert in stream restoration and that part of his job was to "look at how we might improve . . . on some of those shortcomings in the [stream] restoration plan." Dr. Janicki incorrectly assumed the design curve numbers were based on regional curves from north and northwest Florida rather than site-specific measurements. He stated that the guidance document was generalized and lacking specificity, but Table 4 contained in the guidance document contains nineteen stream morphological parameters for all forty- nine of the stream segments to be reclaimed. Dr. Janicki has never designed nor implemented a stream restoration project, and he acknowledged that he is not a fluvial geomorphologist. Conversely, Mosaic witnesses Boote and Kiefer, both accepted in this area, stated unequivocally that the plan was sufficiently detailed and that a qualified restoration and construction contractor could implement the plan in the field with appropriate field adjustments and construction level refinements based on site conditions. The allegation that the plan does not comport with ERP and CRP requirements because it lacks sufficient specificity is not credited. First, the ERP rules do not contain stream-specific restoration criteria. Second, the CRP stream rules adopted in May 2006 have never been applied in a prior case, and in this case the Department determined in its discretion that the plan as proposed meets the stream reclamation requirements of the CRP rules. Similarly, the stream restoration plan was criticized because measurements from every single segment or reach of stream were not used to develop the post-mining stream. However, Mr. Boote and Mr. Kiefer confirmed that only the most stable and least impacted of the stream segments on site were used as templates for stream reclamation. None of the recognized stream experts suggested that erosive, unstable "F" and "G" classified stream segments should be replaced in that unstable form or used as the template for reclamation. By a preponderance of the evidence, Mosaic has established that the reclamation plan for the site will more than offset any adverse impacts to wetlands resulting from the mining activities, because it will maintain or improve water quality and the functions of biological systems present on the site today, as required by Sections 373.414(1) and 373.414(6)(b), Florida Statutes. The evidence established that applicable Class III water quality standards will not be violated and that the water in wetlands and surface waters on-site post-reclamation will maintain or improve and be sufficient to support fish and wildlife in accordance with Florida Administrative Code Rules 62C-16.0051 and 40D-4.301(1)(e) and relevant BOR provisions. The proposed mitigation will also restore a more appropriate or more natural hydrologic regime that will allow for a better propagation of fish and invertebrates in reclaimed systems. The reclamation plan will maintain the function of biological systems of wetlands to be mined on-site by replacing the wetlands to be impacted with wetlands of the same type and similar topography and hydrology in the post-reclamation landscape. In many cases, it will enhance the function of those systems by improving the landscape position of the wetlands, relocating them closer to the preserved Little Charlie Creek corridor, and moving cattle ponds and pasture away from the corridor. Likewise, the existing streams proposed for mining will be replaced with stream reaches modeled on streams that are comparable or better than the existing, unstable, and eroded streams. The Department has determined that Mosaic can reclaim the streams and wetlands to at least as good as or better than existing condition on the site. Mosaic has provided reasonable assurances that the proposed reclamation plan will maintain or improve the existing function of biological systems. Mosaic's reclamation plan for the site therefore satisfies the mitigation requirements of Part IV, Chapter 373, Florida Statutes, and the implementing regulations and the BOR, as applied to phosphate mining activities through Section 373.414(6)(b), Florida Statutes. Through the testimony of witnesses Durbin, Kiefer, and Simpson, as well as documentary evidence, Mosaic has established that the proposed project, as reclaimed, will cause no adverse impacts on the value of functions provided to fish and wildlife and will not adversely affect the conservation of fish and wildlife, including endangered or threatened species and their habitats, as required by Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(d) and 40D-4.301(1)(a)2., as well as the associated BOR Section 3.2.2 provisions. Likewise, the CRP criteria pertaining to fish and wildlife will be met. See Fla. Admin. Code R. 62C- 16.0051(11). Mosaic's reclamation and site habitat management plan will maintain or improve the functions of the biological systems on the site with respect to fish and wildlife, including threatened and endangered species and their habitat. Mosaic witness Simpson provided unrebutted testimony that the proposed mining and reclamation will not have adverse impacts on wildlife populations or conservation of wildlife including threatened or endangered species and their habitats and that proposed reclamation would maintain or improve wildlife habitat values. The evidence shows that the mining and reclamation will not have adverse impacts on fish populations or conservation of fish. The fish habitat on the site will either be preserved or, if mined, will be replaced with in many cases superior habitat. There will be a net increase in suitable fish habitat post-reclamation. The wetland and stream fish habitats on the site will provide appropriate habitat for the fish and wildlife that can be expected to occur in the region. The sampling described above can be expected to reflect the majority, if not all, of the fish species reasonably expected to be present on the site. Mosaic witness Durbin further confirmed that the fish species collected on-site are consistent with similar sites in the immediate vicinity with similar agricultural usage with which he is familiar. In August and September 2008, verification of that fish sampling effort was performed by Dr. Durbin, an outside consulting firm (ECT), and the Department. They confirmed that the fish collection efforts reasonably reflect the native and exotic fish species that are likely to occupy the site. Through the testimony of Dr. Fraser, Lee County compared two streams on the Ona mine site with three stream segments on the Project site. However, the sole basis of the witness' comparison was recollections of field work he participated in over four years ago and photos taken at that time compared with photos taken at the new site. The witness conceded that he did not consider or compare sedimentation levels in the two stream systems. On the other hand, Department witness Cantrell established that the streams compared by Dr. Fraser were dissimilar. In fact, one of the streams Dr. Fraser held up as an apparent example of prime aquatic habitat was Stream 20C, which Mr. Cantrell demonstrated is nearly completely choked by sand and sedimentation. All of the streams proposed for impact are first or second order streams; most of them are intermittent, carrying flow only seasonally and therefore are only periodically occupied by fish and macroinvertebrate communities. The fish that do tend to utilize such systems in the wet season tend to be very small, usually less than one inch in size. The proposed preservation will preserve the best aquatic habitat on the property; the streams to be preserved are the main pathways and aquatic habitats utilized by fish. Mosaic witnesses Durbin, Keenan, and Kiefer all testified that the reclamation plan will restore better aquatic habitat for fish and other aquatic organisms than exists presently on site on a greater than acre- for-acre, type-for-type and linear foot basis. They further testified that the proposed reclamation will provide better aquatic habitat for fish and wildlife than currently provided, consistent with both ERP and CRP requirements. In addition, Dr. Fraser's suggestion that the fish sampling done on the site was insufficient and that the ERP should be modified to require fish collection as a success criterion for the reclaimed streams is not credited. This is because such a proposal is not a requirement of the ERP or CRP rules. Dr. Fraser's comparisons of reclaimed to unmined streams were inconsistent with his own anecdotal fish observations, and he testified as to the difficulty of ensuring adequate fish sampling or knowing where fish will be on any given day, given their mobility. Also, he provided no comparisons as to how the reclaimed streams sampled are constructed compared to the plan for the site and admitted he did not know how or when they were built. Dr. Fraser's discussion of fish in basins where mining has occurred was discredited by his own data showing that no reduction in the number of native fish species has occurred over time in those basins. Mosaic's reclamation plan, which consolidates the native upland and wetland habitats along the Little Charlie Creek corridor, will improve the fish and wildlife function of those systems and increase fish and wildlife abundance and diversity, as set forth above. There will be no adverse impacts to fish and wildlife and their habitat or to the conservation of fish and wildlife, including listed species, post-reclamation, because the fish and wildlife function of the tract will be maintained and in many cases improved by the reclamation and habitat management plans. This is particularly true in light of the existing condition, hydrologic connection, location, and fish and wildlife utilization of the wetlands and surface waters on site. Therefore, Mosaic has provided reasonable assurances that the requirements of Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D-4.301(1)(d) and 40D- 4.302(1)(a)2., and the relevant BOR provisions have been satisfied. Mosaic demonstrated that it has reclaimed wetlands, uplands, and streams consistent with the regulatory requirements and permit conditions in place at the time the area was reclaimed. Indeed, many of these reclaimed areas, whether or not under different ownership and control or whether released from further regulatory requirements, continue to demonstrate that they are successful and functioning ecosystems. The reclamation proposed for the site is state-of- the-art, reflecting the most recent evolution of reclamation techniques for uplands, wetlands and streams, with more planning and detail that should achieve the reclamation goals faster. Many older wetland projects were designed to meet a +/- 1-foot contour and were designed with older generations of equipment and survey techniques. However, Mosaic's third party contractor's bulldozers/tractors are now equipped with GPS and sensors to enable grade tolerances within two inches, allowing for much more accurate backfilling and wetland construction. Accordingly, Mosaic's newer wetlands contain both deep and shallow areas with gradation/zonation in between. Hydrologic regimes and hydroperiods can thus be effectively created to target and achieve more specific hydrologic conditions required by certain wetland systems such as seepage slopes and wet prairies. Nonetheless, the projected UMAM scores for the reclaimed systems take into account a higher risk factor for systems that historically were more difficult to reclaim. Mosaic has provided reasonable assurances of its ability to restore the hydrology and types of vegetation found on the site and of its ability to create ecosystems that will maintain or improve the function of the biological systems proposed for mining on the site. Mosaic has restored wetlands in a variety of configurations ranging from small round depressions of less than a few acres to large complex polygons in excess of two hundred acres, as well as wetlands with low slope gradients. For example, Mr. Kiefer described and depicted Mosaic's ability to restore a bay swamp at point 84(5) at the Fort Green Mine and at Alderman Bay. Lee and Sarasota Counties focused on bay swamps in particular, but failed to acknowledge that Mosaic will be reclaiming 98.5 acres of bay swamps while only impacting 62.1 acres. Mosaic demonstrated that herbaceous and forested wetlands can be and have been restored by Mosaic and its predecessors. Mosaic has demonstrated that it can restore the various zones and depths of freshwater marshes, including shrub marshes, from the deep emergent zone to the wet prairie fringe, and has demonstrated that these zones in reclaimed marshes are providing important and key wetland functions, such as water quality, food chain support, habitat, and other functions, similar to those functions provided by site marshes. This evidence was not effectively rebutted by Lee or Sarasota Counties. In fact, Sarasota County witness Lipstein acknowledged Mosaic is proposing to mitigate for all impacts. When asked if the proposed bay swamps will be successful or unsuccessful, she replied that she did not know and, "you will have to just wait and see if it reaches that success criteria." There have been different success criteria applied in Department permits over the years, and Mosaic has demonstrated the ability to meet those changing and more stringent criteria. In the past, stream restoration was accomplished relatively simply by contouring the stream valley and floodplain to support wetland vegetation, then allowing a flow channel to self-organize. While this technique has resulted in successful streams that met Department permit criteria, it can take many years to occur. For example, Dogleg Branch (which is located on the site of another mining operation) took almost twenty years to achieve success. Mosaic has previously developed successful stream restoration projects which have been documented to provide flow regimes similar to that of natural flatwoods streams, with in- stream aquatic habitat diversity similar to or better than the stream segments proposed for mining at the site and which met reclamation criteria. Mosaic witness Kiefer demonstrated this with evidence of the functions that various reclaimed streams provided. He also showed that, in newer stream restoration projects, like Maron Run, certain functions and form, such as habitat availability, bank stability, meander, and pool-riffle sequence, are developing rapidly. Also, Department witness Rivera testified to Mosaic's commitment to achieving stream success in its efforts to retrofit certain of these earlier reclaimed streams to achieve greater function and habitat diversity. Using an average sinuosity of 1.35, over 65,700 linear feet of streams will be created as part of the mitigation plan. The foot-for-foot requirement for the reclaimed streams will be exceeded by 7,000 feet. Mosaic's mitigation proposal incorporates state-of- the-art stream restoration techniques and the post-reclamation topography to be used as guidance for the final construction plans. The guidance is based on extensive data collected from twenty-one cross sections of reference reaches within the project area, including measurements for channel dimensions, sinuosity, bankfull, and entrenchment ratios. Snags, debris, and other woody material will be placed at appropriate intervals within the channel to provide in-stream habitat and aid in-channel stabilization and development. Restored streams will have primarily forested riparian zones. Trees will be planted using techniques that will assist rapid canopy closure and aid in rapid bank stabilization. Biodegradable erosion control blankets will be used to control erosion. The streams will be designed such that the stream morphology fits within the Rosgen Stream Classification System (Rosgen) described in the reference reaches. To create a design template, Mosaic's experts carefully measured the important geomorphic characteristics of the stream segments to be disturbed. The plan incorporates, among other factors, design specifications for meander patterns, longitudinal valley and bed slopes, bank slopes, cross-sectional area, widths, depths, large woody debris, pools, riffles, bends, and sediment composition. It is the second known low-order stream creation plan in Florida to provide this level of detail. The stream plan represents an overall improvement upon the existing conditions at the site, as Mosaic is generally only mining small, shallow, intermittent stream segments of significantly lower ecological value and will create streams that are less erosive and will have greater in-stream habitat diversity and availability than the segments to be mined. Accordingly, the reclaimed streams segments will at least maintain and in many cases improve the ecological functions served by the existing segments. Special emphasis has been placed on assuring that post-reclamation soils are a suitable growing medium for the proposed reclaimed habitat. Soils will be used to closely mimic the native Florida soils profile. Mosaic witness Schuster established that proposed reclaimed soil conditions do not pose limitations on Mosaic's ability to create upland and wetland ecosystems. The soil reclamation plan uses parent materials available after mining in a sequence similar to the textural or horizon sequence in soils present at the site before mining. This soil profile will have a created topsoil layer as a suitable growing medium and subsurface layers whose thicknesses can be adjusted to achieve the drainage class, that is, hydraulic conductivity or permeability, that is needed to support the post-reclamation hydrology. The overburden used to form the lower part of the reclaimed soil sequence is native Florida soil and underlying geologic material. The overburden is excavated so that the matrix can be mined, but then the material is put back in the mined areas in a sequence that resembles native soil horizons. Where available, the top layer of the soil sequence will be a direct transfer of muck/topsoil pursuant to the permit conditions. Where donor topsoil is not available, other appropriate materials can be used if approved by the Department. Possible methods may include establishment of cover crops, green manuring, mulching, and sod placement, all of which have been demonstrated to provide organic matter and a suitable growing medium for reclaimed wetlands and will facilitate success of the wetlands. These methods comport with the requirements of Florida Administrative Code Rule 62C-16.0051(3). For reclamation, Mosaic will use various thicknesses of materials including sand tailings and overburden, depending on the area to be reclaimed and the needed hydraulic conductivity as dictated by the modeling that is required. Sand tailings will be utilized in native habitats. Sand tailings have a much higher rate of hydraulic conductivity than overburden, which is low, but not impermeable. Reclaimed soils behave similarly to native soils. On site development of soil morphology at reclaimed sites has occurred, including organic matter accumulation in the topsoil formation of redox concentrations, and other components of soil structure, which evidence that the same natural processes are present in both reclaimed and native soils. Lee County's witnesses incorrectly assumed an overburden cap that will not be present. Mosaic has provided appropriate cost estimates for financial assurances of reclamation and has satisfied the BOR requirements of providing third-party estimates and draft financial assurance documentation. The first three years of mitigation at one hundred ten percent is $3,957,356.00. This amount is determined to be sufficient. Lee and Sarasota Counties' witnesses could provide no contrary cost estimates of actual comparable large-scale projects. The proffered costs of Lee County witness Erwin were rejected in another mining case (the Ona case), they ignore the definitions of "waste" and "mining operations," and they assume mitigation requirements not found in the BOR. The evidence supports a finding that all adverse impacts, including any secondary impacts, associated with the Project will be temporary and will be offset by the proposed reclamation. All of the proposed impacts from the Project will occur within the Peace River Basin, and Mosaic's proposed mitigation will all occur within the Peace River Basin as well. Therefore, the cumulative impacts review requirements of Section 373.414(8)(a), Florida Statutes, and Florida Administrative Code Rule 40D-4.302(1)(b) are satisfied. The BMPs put into place will prevent adverse secondary impacts from occurring during mining, and no adverse secondary impacts are expected from the project post- reclamation. No secondary impacts to listed wildlife are reasonably expected to occur, based on the buffers and on the post-reclamation habitat that will exist. In summary, Mosaic has demonstrated by a preponderance of the evidence that the proposed project meets the permitting criteria of Florida Administrative Code Rule 40D-4.301 and associated BOR provisions. Florida Administrative Code Rule 40D-4.302(1)(a) requires reasonable assurances the proposed activities "will not be contrary to the public interest" as determined by balancing seven factors. See also § 373.414(1), Fla. Stat. For the reasons set forth below, the preponderance of evidence supports a finding that the public interest factors set forth in the statute and rule weigh in favor of issuing the permit. The Florida Legislature has recognized that phosphate mining "is important to the continued economic well-being of the state and to the needs of society." See § 378.202(1), Fla. Stat. Mosaic has demonstrated by a preponderance of evidence that both the public and the environment will benefit from the project as described above. Mining of the site will also result in a more general benefit to the public, including local residents. It is estimated that mining of the site will result in fifty million tons of recoverable phosphate rock reserves, which will be used to make fertilizer. Mosaic employs 272 people at its South Fort Meade facility and spends approximately $75,000.00 per employee per year for direct wages, benefits, and compensation. In addition, it has been estimated there are four to five persons employed in support industries for each direct Mosaic employee, considering contractors, vendors, and suppliers. The site project is expected to generate up to $23 million in severance taxes, tangible taxes, property taxes, and other benefits to Hardee County over the life of the mine. The evidence shows that the proposed activities will not cause adverse impacts to the public health, safety, or welfare or to the property of others. Fla. Admin. Code R. 40D- 302(1)(a)1. Witness Burleson established that the water quantity criteria in BOR Chapter 4 have been satisfied and that no flooding problems will occur. No environmental hazards or public health and safety issues have been identified. Section 373.414(1)(a)1., Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a)1., and BOR Section 3.2.3.1 have accordingly been satisfied. The evidence established that the proposed mining and reclamation will not cause adverse impacts to the conservation of fish and wildlife or their habitat, including endangered or threatened species, satisfying Florida Administrative Code Rule 40D-4.302(1)(a)2. and BOR Sections 3.2.2, 3.2.2.3, and 3.2.3.2. The evidence shows that the proposed activities will not cause adverse impacts to navigation or flow and will not cause harmful erosion or shoaling. Fla. Admin. Code R. 40D- 4.302(1)(a)3. The evidence shows that the proposed activities will not cause adverse impacts to fishing or recreation or marine productivity, and the lakes will enhance fishing and recreation. Fla. Admin. Code R. 40D-4.302(1)(a)4. As a matter of law, Section 378.202(1), Florida Statutes, provides that phosphate mining is a temporary activity. Fla. Admin. Code R. 40D-4.302(1)(a)5. The parties have stipulated that there will be no adverse impacts on historical or archaeological resources. Fla. Admin. Code R. 40D-4.302(1)(a)6. The evidence shows that the current condition and relative value of functions of the site landscape have been significantly affected over time by agricultural activities, causing alteration of natural streams and wetlands and low fish and wildlife utilization. A preponderance of the evidence established that these negative impacts will be ameliorated by the proposed reclamation. Fla. Admin. Code R. 40D-4.302(1)(a)7. In light of the above, Mosaic has provided reasonable assurances that Section 373.414(1)(a), Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a), and associated BOR requirements for the public interest test have been satisfied, and those criteria weigh in favor of issuing the permit. Section 373.414(6)(b), Florida Statutes, establishes the appropriate mitigation for wetland and surface water impacts associated with phosphate mines as follows: "Wetlands reclamation activities for phosphate and heavy minerals mining undertaken pursuant to chapter 378 shall be considered appropriate mitigation for this part if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities." Part III of Chapter 378, Florida Statutes, addresses phosphate land reclamation, and the Department has adopted specific regulations pursuant to this part, which are found in Florida Administrative Code Rule 62C-16.0051. For the reasons set forth below, Mosaic has demonstrated by a preponderance of the evidence that the reclamation and restoration standards in Florida Administrative Code Rule 62C-16.0051 have been met. The parties stipulated the Project will meet the safety standards in subsection (1) of the rule. Any temporary structures will be removed following mining and the area then reclaimed. Appropriate BMPs will also be installed. The Project will meet the backfilling and contouring requirements of subsection (2). Specifically, the evidence shows that the area will be backfilled and contoured to achieve the desired landforms; slopes will be no steeper than a 4:1 ratio; bank stabilization techniques will be used; and post- reclamation contouring and topography will help ensure that the reclamation plan and hydrologic response is successful. The reclamation will meet the requirement in subsection (3) that Mosaic use good quality topsoil when available and other suitable growing media to achieve the planned vegetative communities. The Project will meet the acre-for-acre requirement for wetlands because more acres of wetlands and surface waters are being proposed to be restored than will be impacted. The Department uses FLUCCS Category II to determine whether the minimum type-for-type requirement is met. Thus, the type-for-type requirement is met by looking at the forested wetlands acreage overall and the herbaceous wetlands acreage overall. Subsection (4) has been satisfied by the proposed CRP. While the herbaceous wetland fringe of the lakes is included in the acre-for-acre, type-for-type calculation, the open waters of the lake are not. The Project will meet the type-for-type requirement in the rule because, category-by- category, type-for-type, more than a 1:1 ratio of forested and herbaceous wetlands are being restored. As noted above, the wetlands and streams were mapped during the application process in accordance with the directives of the Department and the requirements of subsection (4). Where wetlands are directly associated with or adjacent to streams, restoration of both is integrated and included in the restoration plan. Non-wetland and wetland floodplains will be restored as directed by the Department in accordance with this rule. No natural lakes or ponds exist on site, thus the portion of this rule related to natural lakes does not apply. All natural streams proposed for impact will be restored foot-for-foot based on Rosgen Level II. More stream linear feet (65,700 feet) are being replaced than are being mined (58,769 feet). Therefore, the requirements of subsection (5) have been met. Subsection (6) has been satisfied after accounting for the Littoral Zone Variance described below authorized by Florida Administrative Code Rule 62C-16.0051(13). The design of the reclaimed wetlands and lakes will maximize beneficial drainage, provide fish and wildlife habitat, maintain downstream water quality, and incorporate a variety of vegetation and hydraulic zones. Greenbelts of vegetation are incorporated. Subsection (7) has been satisfied. There will be no water quality concerns either during mining or post-reclamation with the reclaimed streams, lakes, wetlands or other surface waters. Subsection (8) has been met; the Project is not expected to cause flooding, and the original drainage pattern will be restored to the extent possible. Subsection (9) has been satisfied with respect to waste disposal. Areas used for clay settling will be minimized, and only three CSAs are proposed for the site, as fifty percent of the clays generated at the site will be disposed of in previously-permitted CSAs in Polk County. Backfilling of mine cuts is the highest priority use for the site's sand tailings. No tailings will be sold. The evidence showed that sand tailings will not be permanently stored above natural grade, although temporary stock piles are authorized to facilitate reclamation. Reclamation of CSAs will occur as expeditiously as possible. Solid waste was not an issue in this proceeding. The revegetation proposed for the Project will succeed to achieve permanent revegetation and meets the requirements of subsection (10). Mosaic has submitted a plan for revegetation that lists species by species what will be replaced through planting or seeding into each of the different types of wetlands. The revegetation plan and planting tables provide clear guidance to the entire reclamation plan and will minimize erosion, conceal the effects of mining, and recognize the requirements for fish and wildlife habitat. Upland cover and forested upland requirements in the rule will be met under the CRP; the appropriate forested densities are set forth in the CRP and can reasonably be expected to be established within one year. Likewise, the wetland vegetative cover requirements in the CRP meet the rule requirements and can be easily met. As set forth above, the wetlands to be created are of the types Mosaic has successfully recreated in the past, and advances in reclamation and maintenance techniques will further ensure the vegetation plan is successfully implemented. The vegetative plans, including the stream plan, provide appropriate habitat for fish and wildlife. The best available technologies will be used to restore and revegetate wetlands. Furthermore, the vegetation plan meets and exceeds the requirements for the use of indigenous species. Native plants and grasses will be used in all native habitats. As required by subsection (11), measures have been identified and incorporated into the CRP to offset fish and wildlife values lost as a result of mining operations. Special programs to restore and/or reclaim particular habitats, especially for endangered and threatened species have been identified. A Site Habitat Management Plan has been incorporated to prevent adverse impacts to threatened and endangered species, and the proposed conservation easement and reclamation plan will protect and restore currently impaired habitat to a better condition. Specifically, Dr. Durbin testified with respect to the CRP requirements for aquatic species, including fish and macroinvertebrates; the best fish and wildlife habitat onsite will be preserved. Mr. Simpson testified regarding habitat preservation and reclamation activities, the proposed wildlife management plans, and the proposed enhancements to habitat that will benefit wildlife, including listed wildlife. Mosaic has sufficiently addressed the requirements of subsection (11) of the rule in the CRP. Subsection (12) has been satisfied. The proposed mining and reclamation schedule in the application documents comports with the rule requirements by including time schedules for mining, waste disposal, contouring, and revegetation, and the completion dates for such activities comport with the rules. Mosaic has proposed, and the DEP has indicated an intent to issue, the Littoral Zone Variance as an experimental technique to improve the quality of the reclaimed lakes pursuant to this subsection and Section 378.212(1)(e), Florida Statutes. Given the depth of the proposed reclamation lakes, Mosaic applied for, and the Department has proposed to grant, a variance from the water quality standard for DO in the lower portions of the lakes. The DO Variance from Florida Administrative Code Rule 62-302.530(31) is being sought pursuant to Sections 373.414(6)(a), 373.414(17), and 403.201(1)(a), Florida Statutes, which provide the minimum standards for DO levels in surface waters. Class III freshwater water quality standards apply to those portions of the site that constitute surface waters as defined by Florida law. For at least those reclaimed lakes that will connect offsite to downstream waters or wetlands (Lakes 1, 3, and 4), there is no dispute that Class III water quality standards would apply. The minimum water quality standard for DO in freshwater systems is 5.0 milligrams per Litre (mg/L). The evidence demonstrated that alternatives to the lakes in terms of both size and location were considered. The Department considered the proposed lakes as part of the elimination and reduction of overall wetland impacts on both South Fort Meade Polk and Hardee. On balance, it is a preferable alternative to use the available sand resulting from mining of the Hardee County portion of the South Fort Meade mine to eliminate lakes and create additional wetlands on the Polk County portion of the mine rather than utilize that sand to eliminate all lakes on the Hardee County portion of the site. This is especially true given the desire of Hardee County for recreational lakes and the Department's preference to reduce the overall acreage of the reclaimed lakes at the South Fort Meade mine. It is not feasible to make the lakes shallower given the available materials. There is no practicable means known or available for increasing DO in the deep pockets of lakes of the proposed depths that would not have a potential negative effect. This fact has been established and recognized by the Florida Legislature in Section 373.414(6)(a), Florida Statutes, which provides that the deep pits left by mining operations may not meet the DO criteria below the surficial layers of the lakes. The Legislature has further provided that a variance from the DO standard can be issued where deep lakes must be left as part of the reclamation plan. Id. The evidence established that lower DO levels may at times occur in the deep pockets of some of the reclaimed lakes to the same extent and effect as those lower levels occur in natural lakes of similar depths. This effect will occur only in the hypolimnion, or lower levels, of the lakes in the hotter summer months. The evidence likewise established that it is very unlikely that DO levels below 1.0 mg/L will occur at any time in any of the proposed reclaimed lakes. Provided the DO levels do not drop below 1.0 mg/L for any extended period of time, the only expected effect of the occasional seasonal reduction in DO in the lowest level of the reclaimed lakes will be to temporarily exclude fish from those lower portions of the lake during the summer months, which is also true of natural deep lakes. The evidence established that reclaimed lakes function well and provide habitat for fish and wildlife. Water quality standards will be met in all of the lakes other than occasional seasonal DO violations in the lower portions of the deepest lake. All water quality standards, including DO, will be met at all lake outlets and discharge points. All other applicable regulatory criteria will be met in the reclaimed lakes. Dissolved oxygen levels in the upper layers of the lakes are expected and required to meet the minimum DO criteria in Florida Administrative Code Rule 62- 302.530 and will be adequate to support healthy fish populations. The evidence showed no downstream impacts will occur due to the DO Variance for the lakes. The evidence showed reclaimed lakes support healthy fish and macroinvertebrate communities and provide recreational fishing opportunities. Even older lakes, such as the Tenoroc lakes (located in an old mining area in Polk County), provide substantial recreational fishing and wildlife utilization opportunities. This testimony was not rebutted. The evidence offered by Lee and Sarasota Counties as a means to increase DO levels in the reclaimed lakes actually demonstrated that artificially attempting aeration of a deeper lake can have negative environmental effects. Therefore, the testimony of witnesses Janicki and Merriam has not been credited. By a preponderance of the evidence, Mosaic proved entitlement to the DO Variance for the lakes pursuant to Sections 373.414(6)(a) and 403.201(1)(a), Florida Statutes. Given the location of the reclaimed lakes and as a means of experimenting with different reclamation planting techniques to create a variety of shorelines, Mosaic also applied for, and the Department has proposed to grant, a variance from the reclamation requirements in Florida Administrative Code Rule 62C-16.0051 pertaining to the planting of littoral shelves or zones around reclaimed lakes. The Littoral Zone Variance is being sought under Section 378.212(1)(e), Florida Statutes, from Florida Administrative Code Rule 62C-16.0051(6)(a) and (b), which provides minimum water zones for emergent and submerged vegetation, known as the littoral zones of the lakes. Subsection (6) of the rule provides for a twenty-five percent high-water zone of water fluctuation to encourage emergent and transition zone vegetation, and that a twenty percent low water zone between the annual low water line and six feet below the annual low water line to provide fish bedding areas and submerged vegetation zones. These vegetative zones are collectively known as the littoral zone of a lake. Traditionally, these percentages have been met in reclaimed lakes by sloping and creation of a uniform fringe of herbaceous wetland vegetation completely encircling the lake; however, such uniform fringes are not typical around natural lakes, which vary in composition and width. Rather than create a uniform band of vegetation around the lakes, Mosaic has proposed to reclaim the littoral zones around the reclaimed lakes by concentrating them in several broad, shallow areas, including the outlets of the lakes where such outlets occur (Lakes 1, 3 and 4). Of the proposed lakes, one will meet the littoral zone requirement, two will have over twenty percent of the total area in littoral zone, and the remaining lake will have a littoral zone of just under fourteen percent of the total area. The littoral zones will be reclaimed by constructing broad shelves of differing depths and planting the shelves with herbaceous wetland plant species. This design provides the environmental benefit of herbaceous vegetation at the outlet to provide increased filtration of nutrients or sediments of any water overflowing from the lakes during other high water events. This increases environmental benefits at the outlet of the lakes and has the potential to improve water quality downstream. Further, the proposed clustering of the littoral zones in several broad shallow shelves, rather than creation of a thin fringe around the lakes as is customary, will benefit wildlife and fish by creating a more extensive wetland ecosystem in lieu of the monoculture typically created by the thin littoral fringe. The proposed littoral zone clustering also creates more useable shoreline for boating, fishing, and recreational activities in the areas where the littoral zones are not clustered, with the added benefit of tending to separate the wildlife usage in the littoral zone clusters from the human usage in the upland forested areas of the shoreline where minimal littoral zones are planned. This is an experimental technique that advances reclamation methods by balancing habitat, water quality, and recreational considerations. Mosaic has demonstrated that the Littoral Zone Variance comports with Section 378.212(1)(e), Florida Statutes, and may be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Mosaic's applications for the requested permits and variances. DONE AND ENTERED this 18th day of December, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2008.
The Issue Whether the applicants own the property in question? Whether the project would comply with the criteria of the South Florida Water Management District contained in Basis of Review for Surface Water Management Systems, specifically Sections 3.1.3 and 3.2? Whether flood protection would be inadequate or septic tanks unsuitable or whether the public health and safety would be compromised or the ultimate purchasers be deprived of usage of the property due to inundation in violation of Chapter 373, Florida Statutes (1981), or Rule 40E-4.301(1), Florida Administrative Code?
Findings Of Fact Ms. Williamson and Messrs. Leggett and Collins hold in fee simple a triangular 117.24-acre parcel in Okeechobee County as tenants in common under a warranty deed executed in their favor by one W. C. Sherman. They propose to develop the property as a trailer park (complete with airstrip) large enough to accommodate 109 trailers. To this end, soil would be dug up from the center of the property and used to raise the elevation of the surrounding land above the 100-year floodplain. (T. 47) The applicants have a dredging permit from the Department of Environmental Regulation authorizing them to excavate 629,889 cubic yards. They are proposing to dig to a depth of 76 feet below ground. This would create an 18-acre body of water ("Poe's Lake") which would overflow a V-notched weir into a county canal. The county canal would take the water to C- 38, one of the large canals to which the Kissimmee River has been relegated, at a point about 18 miles upstream from Lake Okeechobee. Runoff would wash over residential lots and roadways; the site would be graded to assure drainage into Poe's Lake. The minimum road crest elevation would be 30 feet NGVD ("[a]round twenty-nine feet" T.52), as compared to the control elevation for surface waters of 28.5 feet NGVD. WATER QUALITY The developers plan septic tanks for wastewater treatment. At the close of all the evidence, counsel for the applicants stated that sanitary sewers could be installed instead. Respondents' Proposed Recommended Order, p. With all the housing units in use, at least 10,900 gallons of effluent would seep into the ground from the tanks daily. There would be some evapotranspiration, but all the chemicals dissolved in the effluent would eventually end up in the groundwater. During the dry season, septic tank effluent would cause mounding of the groundwater and some groundwater movement toward, and eventual seepage into, Poe's Lake. The eventual result would be eutrophication and the growth of algae or macrophytes on the surface of Poe's Lake. This would cause dissolved oxygen violations in Poe's Lake. Discharges from the lake would inevitably occur, aggravating the situation in C-38, which already experiences dissolved oxygen levels below 5.0 milligrams per liter in the rainy summer months. Some fraction of the nutrients in the effluent from the septic tanks would ultimately reach Lake Okeechobee itself. The sheer depth of the excavation would create another water quality problem. Under the anaerobic conditions that would obtain at the bottom of Poe's Lake, bacteria acting on naturally occurring sulfates would produce hydrogen sulfide, ammonia and various other reduced organic nitrogen compounds. These substances are toxic to human beings and would, in some indeterminate quantity, enter the groundwater from Poe's Lake. This would affect the taste and perhaps the potability of water from any well nearby. It would be "possible to design a better system where there would be nutrient removal and a greatly reduced probability of violation of the dissolved oxygen criterion and obviation of the potential for ground water contamination." (T. 200) Installation of a baffle on the weir would serve to prevent buoyant debris from entering surface waters of the state. BASIS OF REVIEW Official recognition was taken of the "Basis of Review for Surface Water Management Permit Applications Within the South Florid Water Management District," parts of which all parties agree pertain in the present proceedings. Among the criteria stated in this document are: 3.1.3 Waste and Wastewater Service - Potable water and wastewater facilities must be identified. The Applicant for a Surface Water Management Permit must provide information on how these services are to be provided. If wastewater disposal is accomplished on-site, additional information will normally be requested regarding separation of waste and storm systems. 3.2.1.4 Flood protection - Building floors shall be above the 100 year flood elevations, as determined from the most appropriate information, including Federal Flood Insurance Rate Maps. Both tidal flooding and the 100 year, 3 day storm event shall be considered in determining elevations. b. Commercial and industrial projects to be subdivided for sale are required to have installed by the permittee, as a minimum, the required water quality system for one inch of runoff detention or one half inch of runoff retention from the total developed site. State standards - Projects shall be designed so that discharges will meet State water quality standards, as set forth in Chapter 17-3, Retention/detention criteria - Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof . . . Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff from a 3-year, 1-hour rainfall event, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. 3.2.4.1 Discharge structures should include gratings for safety and maintenance purposes. The use of trash collection screens is desirable. Discharge structures shall include a "baffle" system to encourage discharge from the center of the water column rather than the top or bottom. 3.2.4.4.2 b. Control elevations should be no higher than 2 feet below the minimum road centerline elevation in the area served by the control device in order to protect the road subgrade. Simply detaining runoff before discharging it offsite will not insure that the water quality standards set forth in Chapter 17-3 will be met. Whether the standards are met depends on, among other things, the composition of the runoff. FWF'S INTEREST Among the purposes of the FWF, as stated in its charter, Shall be to further advance the cause of conservation in environmental protection, to perpetuate and conserve fish and wildlife, oil, water, clean air, other resources of the State and so manage the use of all natural resources, that this generation and posterity will receive the maximum benefit from the same. (T. 248-9) Four or five thousand Floridians belong to FWF. FWF members "make use" (T. 250) of the waters of Lake Okeechobee, the Kissimmee River and specifically of the waters in C-38. PROPOSED FINDINGS CONSIDERED The applicants and FWF filed post hearing memoranda and proposed recommended orders including proposed findings of fact which have been considered in preparation of the foregoing findings of fact. They have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny the pending application for surface water management permit. DONE and ENTERED this 29th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1983. COPIES FURNISHED: Dennis J. Powers, Esquire Gunster, Yoakley, Criser & Stewart 400 South County Road Palm Beach 33480 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, Florida 33401 Irene Kennedy Quincey, Esquire 3301 Gun Club Road West Palm Beach, Florida 33406 Charles P. Houston, Esquire 324 Datura Street, Suite 106 West Palm Beach, Florida 33401
The Issue Whether the application of Telegraph Cypress Water Management District to modify an existing surface water management system permit should be granted.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida existing pursuant to Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code. The District is a multipurpose water management agency with principal offices in West Palm Beach, Florida. Telegraph Cypress Water Management District (TCWMD) is a water control district organized pursuant to Chapter 298, Florida Statutes. Agricultural operations have been conducted within the TCWMD for more than 30 years by the landowner, Babcock Florida Company. The TCWMD is the permittee of record. James D. English, Jr., owns, along with other members of his family, an orange grove and pasture in Lee County, Florida. The English family has owned the property for approximately 120 years. On November 10, 1992, James D. English, Jr., and the Panacea Timber Company filed a petition for formal administrative hearing challenging the District's intent to issue SWM Permit Modification No. 08-00004-S. Cypress Creek Partnership is a Florida General Partnership of which James D. English, Jr., is a principal. The partnership engages in agricultural activities in Lee County, Florida. The Alva Cemetery, Inc., is a Florida not-for-profit corporation which owns and manages a cemetery facility in Lee County Florida. The cemetery has been in active use for approximately 120 years. In recent years, Alva Cemetery has experienced occasions of excess water encroaching onto the cemetery property. On November 12, 1992, Alva Cemetery, Inc., filed a petition for administrative hearing challenging the District's intent to issue SWM Permit Modification No. 08-00004-S. James D. English, Jr., Cypress Creek Partnership and Alva Cemetery, Inc., are herein referred to as Petitioners. The TCWMD and the Petitioner English share a common property boundary. The Alva Cemetery is surrounded by the English property. All lands involved in this matter historically drain towards the Caloosahatchee River. The TCWMD includes approximately 89,120 acres of land located in Charlotte and Lee Counties, Florida. The land uses within the TCWMD include agricultural, cattle, and timber operations. Generally, the fields have been leased to third party farmers who use the field for several years. When the fields are not actively farmed, they are returned to a fallow state and used as pasture land until fertility is restored at which time they are reactivated for farming. Active farms fields are generally surrounded by a perimeter ditch and dike system. Pumps may be used to water and de-water the fields. When the field is returned to a fallow state, the ditch and dike system are not maintained and become less prominent either by action of weather or by intent. Pumps are not present. All of the TCWMD lies generally north to northwest of the property owned by the Petitioners. Surface waters flow onto the Petitioners' lands from the north. The Telegraph-Cypress system is unique and is the largest of its kind in South Florida Water Management District jurisdiction. The TCWMD system includes storage/detention facilities, control structures, pumping stations and an extensive network of internal canals. There are nine separate water management basins within the TCWMD. The Petitioners asserted that the water management basins identified by the District and the TCWMD are incorrect. The greater weight of the evidence establishes that the District's identification and delineation of the nine basins is based on historical hydrologic characteristics of the TCWMD and is a reasonable determination of basin boundaries. The land encompassed by the instant application for permit modification includes three of the nine basins and encompasses approximately 51,400 acres of the TCWMD. Surface water discharge from the relevant farm fields flows via the internal canal network and sheet flow to the three common detention basins: Telegraph Swamp, North Telegraph Swamp ("Telegraph North") and Curry Lake. The Telegraph North basin lies to the north of and discharges into the Telegraph Swamp basin and includes 13,799 acres of which 4,094 acres are farm fields. The drainage into the Curry Lake basin does not impact either the Telegraph North or Telegraph Swamp basins or the Petitioners' properties. The evidence establishes that as to the Telegraph North and Curry Lake drainage basins, the permit modification meets applicable permitting criteria. There is no credible evidence to the contrary. Telegraph Swamp is the largest of the three relevant detention systems. The Telegraph Swamp basin includes a total of 32,707 acres of which 4,381 acres are farm fields. Telegraph Swamp is a 4,390-acre wetland vegetated by cypress trees and sawgrass, with a base of muck soils, humus, topsoil, leaf litter and other organic material. Located at the south end of Telegraph Swamp are surface water management control structures (the Big Island Dike) built in 1975 and permitted in the original 1980 permit. The structures include three broad-crested weirs and one flash-board weir. Telegraph Swamp has been compared to a "sponge" capable of absorbing vast quantities of surface water discharges within the TCWMD before the control structures at the south end of the swamp are over-topped. Water discharged from the control structures flows through canals and creeks to the Caloosahatchee River. During storm events water is discharged over the control structures and into a swamp area south of Big Island Dike. From there, the water flows southerly, into Telegraph Creek, Big Island Canal and Cypress Creek and then into the Caloosahatchee. The Petitioners expressed concern that TCWMD could inappropriately discharge water from the control gates in the Telegraph Swamp weir. Based on evidence admitted at the hearing, the permit modification should include the following special condition: Discharge structures in the Telegraph Swamp basin shall remain fixed so that discharge cannot be made below the control elevations, except that structure gates and weirs may only be removed during emergency conditions upon notification to and consent by the District's Fort Myers Service Center regulatory area manager or designee. The Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District--September 1989, incorporated into Chapter 40E, Florida Administrative Code, provides the applicable water quantity permitting criteria relevant to this proceeding. The Petitioners assert that the control gates are required to be locked in accordance with Basis of Review section 3.2.4.1.b, which states: Discharge structures shall be fixed so that discharge cannot be made below the control elevation, except that emergency devices may be installed with secure locking devices. Either the District or an acceptable govern- mental agency will keep the keys for any such devices. The Petitioners are correct. The rule requires secure locking devices. Such condition should be added to the permit The keys may remain with the TCWMD as "an acceptable governmental agency." In 1980, the District issued Surface Water Management Permit No. 08- 00004-S for the TCWMD to operate an existing surface water management system for an existing agricultural operation. The 1980 permit specifically authorizes "[o]peration of a water management system serving 89,120 acres of agricultural lands by a vast network of internal drainage and irrigation canals, a major dike, a major canal and 4 water control structures discharging via small tributary creeks and sloughs into the Caloosahatchee River." Although the permit has been subsequently modified, the authorization to operate the system has not been amended. While District enforcement staff have occasionally noted "performance deficiencies" on the TCWMD property, there have been no permit violations by the permittee. Deficiencies which have been called to the TCWMD's attention have been resolved. Special condition number five to the 1980 permit provides that "[d]ischarges of water onto adjacent lands may be continued to the extent that increased problems are not caused by such discharges." The Petitioners assert that the District has failed to acknowledge that water discharged from the Telegraph Cypress system flows into the Cypress Creek canal and has failed to consider the impact on the Cypress Creek receiving body. However in the staff report to the 1980 permit states as follows: The Telegraph Cypress basin has three major drainage outlets. These are Trout Creek on the west, Telegraph Creek in the center and Cypress Creek to the east. There is a fourth outlet in the northeastern corner of the property known as Jack's Branch, however, this outlet is small compared to the three major ones. Much of Telegraph's southeastern area was previously drained by Spanish Creek and County Line Canal. This historical drainage pattern was blocked when a company which is presently known as Golden Grove constructed a dike across their northern boundary. This dike causes increased flow in a westerly direction around the west end of the dike, thence southerly towards Cypress Creek. This increased flow has caused excess water problems to property owners downstream. In addition, the dike has blocked virtually all flow to Spanish Creek. The evidence fails to establish that, as asserted by the Petitioners, the District has failed to acknowledge the discharge of water to Cypress Creek or to consider the condition of the Cypress Creek receiving body. In the instant case, the condition of the Cypress Creek receiving body was not re- addressed because the permit modification being sought will cause no additional adverse impacts on existing conditions. Although not individually numbered and identified in the original 1980 permit, the evidence establishes that in 1980, all of the farm fields which are subject to this permit modification application were in existence. The applicant seeks no new water control structures. Other than that required to reactivate fallow farm fields, there is no new construction proposed in the instant application. The Petitioners assert that the instant permit modification application will result in construction of new farm fields. The evidence is contrary to the assertion. Proposed permit special condition No. 10 states that the permit does not include the construction of any new farm fields. The farm fields covered in the staff report would be permitted for reactivation from a fallow state without further permitting activity in the future, and without individual retention for each farm field. The modifications to the original 1980 permit have increased the total farm land area. There is no evidence that, except as specifically permitted and approved by the District, there has been alteration of historical discharge rates or routes. There has been considerable confusion regarding the permitting status of the operations as farm fields have been reactivated. Such reactivation entails grading and leveling fields, reconstruction of ditches and dikes and installation of pumping equipment. In order to provide for standardization in farm field reactivation, and to better monitor such activities, the District requested that the TCWMD seek to modify the existing permit. On February 8, 1991, the TCWMD submitted an application to modify the existing permit for the purpose of reactivating the existing farm fields located within the Telegraph North, Telegraph Swamp, and Curry Lake drainage basins. The proposed SWM permit modification authorizes the continued use of the previously permitted surface water management system for existing active and fallow farm fields and allows the reactivation of currently fallow farm fields without further permit modification by the District. Proposed SWM permit special condition No. 16 states that the District requires notification in letter form 30 days prior to all farm field reactivation activities. The proposed modification of the permit will provide the District with an enhanced ability to inspect the reactivated farm fields. Inherent in such reactivation is ditching and diking of the fields. Such operations have been authorized since the 1980 permit was issued. The work associated with field reactivation will be conducted in accordance with existing design criteria as set forth in the application. Based on evidence admitted at the hearing, the permit modification should include the following special condition: Ditches and dikes associated with the farm fields encompassed by this authorization shall be constructed/maintained in conformance with the "Typical Field Layout And Detail Sheet," revised 10/12/93. The evidence establishes that the operations of the TCWMD as proposed by the permit modification application are within the authorization of the existing permit as previously modified. Otherwise stated, the award of this modification will have no substantial impact on the operation of the permitted surface water management system. The modification will result in no additional discharge of surface water from the control structures. The District has established water quantity criteria intended to insure that adverse impacts do not occur due to excess discharge. (Based upon the Hearing Officer's ruling on a District's Motion in Limine, water quality issues were not addressed at hearing.) The criteria are set forth at Chapter 40E-4.301, Florida Administrative Code, and in the Basis of Review. In relevant part, the District criteria require an applicant to provide reasonable assurances that the surface water management system provides adequate flood drainage and protection, that the system will not cause adverse water quantity impacts on receiving waters and adjacent lands, and that the system will not cause adverse impacts on surface and groundwater levels and flows. Modification of a permit must not result in additional adverse off-site impacts. In this case, reasonable assurances have been provided that the proposed modification will not exacerbate the historical and current drainage conditions. The permit modification application at issue does not propose to alter the rates or routes of water currently authorized for discharge from Telegraph Swamp. Reactivation of the farm fields will not impact receiving bodies in any manner different from that which presently exists under previous permits. In providing reasonable assurances, the TCWMD analyzed the water storage capacity available in the detention basins, performed flood routing projections and calculated peak discharge rates for the permit area. As required by the district, the TCWMD utilized a standard hypothetical 25-year/3- day storm event in order to determine whether sufficient capacity was available to handle the resulting stormwater. The projections provide reasonable assurances that the common detention areas have the capacity to provide adequate flood drainage and protection and are accepted. Rule 40E-4.091(1)(a), Florida Administrative Code, incorporates by reference a document identified as the "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District--September 1989" Section 3.2.1.2.b requires that: the proposed project modification must meet the allowable discharge rate; and the allowable discharge rate for a previously permitted project is that which was set in the previous permit. The TCWMD prepared and submitted discharge calculations establishing that the post-development discharges will not exceed the discharge rate previously accepted by the District. Since 1984, the District has previously accepted a peak allowable discharge rate of 39 cubic feet per second per square mile (csm). The csm figure is based upon the historical TCWMD discharge rate within the Caloosahatchee River basin. As previously stated, reactivation of the farm fields will not impact the receiving bodies in any manner different from that which presently exists under previous permits. The District asserts that the 39csm discharge rate has been "permitted" since the 1984 modification was approved. The Petitioner asserts that the 39csm discharge rate has never been "permitted" by the District. The evidence establishes that since the 1984 application for permit modification, the discharge rate of 39csm has been utilized by TCWMD and has been accepted by the District, but that the actual permits do not specifically identify the discharge rate as 39csm. In projecting discharge rates, the TCWMD used a time of concentration of one hour. The time of concentration (T.O.C.) is the time in which water would move from the farm fields to the control structure in each sub-watershed. Otherwise stated, a projected T.O.C. of one hour means that the storm water would move from the field to the control structure in one hour. The T.O.C. of one hour is a conservative estimate and likely substantially overestimates the speed at which the water will move. The three basin areas contain a total of more than 80 square miles. Water will travel an average distance of two miles from field to detention basin through ditches, swales and existing low areas. Again conservatively, the TCWMD did not include projected travel time through such conveyances, resulting in a longer T.O.C. and resulting in a higher peak discharge rate than is probable. Although there appeared to be some confusion on the part of the District staff as to the application of the T.O.C. by the TCWMD, the TCWMD engineer who performed the calculation testified at hearing and was qualified as an expert witness in civil engineering, hydrology and surface water management. His testimony and projections are reasonable and are credited. Proposed SWM permit modification special condition No. 11 states that farm field discharge shall be directed to and conveyed via existing ditches, wetlands and/or sheetflow areas per existing site conditions. No new outfall ditches are permitted under this modification. Flood routings were calculated assuming all farm fields would be activated simultaneously and pumping the maximum capacity of 390 gallons per minute per acre (the equivalent of 20-21 inches of surface water pumped from each field daily). It is highly unlikely that all farm fields would be active simultaneously or that stormwater would continue to fall with such velocity to permit continued pumping at maximum capacity for an extended period. Even based on the conservative assumptions utilized by the TCWMD engineers, the projected peak discharge rate at the Telegraph Swamp control structure is 37csm to 38.5csm, within the maximum of 39csm previously accepted by the District. The computer modeling performed by the TCWMD engineer in calculating the peak discharge rate is accepted as reasonable. The TCWMD did not include offsite inflow in its analysis of projected capacity or discharge rates. There is anecdotal evidence that on occasion, water may flow into TCWMD from Jack's Branch or from across roadways to the north and west of the TCWMD; however, given the vast storage capacity of the TCWMD detention areas, there is no evidence that the quantity of offsite inflows is of such significance as to render the TCWMD projections unreasonable. As previously stated, the TCWMD calculations are reasonable and are accepted. The evidence establishes that the peak discharge rate resulting from approval of the instant permit modification will not exceed 39csm. The Petitioners offered their own peak discharge rate calculations, based on a "worst possible case scenario." The assumptions on which the Petitioners' projections are based are unreasonable and are rejected. Based on recommendations received at the hearing, the permit modification should include the following special condition: Pumped discharge from farm fields for which pumps are not currently installed shall be limited to 75 gallons per minute per acre of farmed area. Pumps are currently installed in fields number 7, 8, 9, 10, 12, 14, 15, 24 north and south, 28, east half of 34, 64, 67, 68, 69 and 80. The Petitioners assert that the system is currently causing adverse impacts to their properties in the form of flooding. The greater weight of the evidence establishes that the system presently does not cause adverse water quantity impacts on receiving waters and adjacent lands, and does not cause adverse impacts on surface and groundwater levels and flows. The evidence establishes that award of the application for permit modification will not adversely alter the current operations. It is clear that the Petitioners have been impacted by changes in the historical drainage patterns in the area; however, such changes had substantially occurred by 1980 when the original permit was issued. The greater weight of the credited evidence establishes that such impacts are not the result of the activities authorized in the original 1980 permit and in subsequent modifications, but instead are the result of unrelated actions by third parties not involved in this administrative proceeding. There is no credible evidence that the permit modification sought in the instant proceeding will adversely affect the Petitioners. The 1980 permit addresses existing water quantity problems in the area of the TCWMD project. For example, the construction of the Golden Grove Dike resulted in blockage of historical drainage towards Spanish Creek and the diversion of excess waters into Cypress Creek. During the 1980's the District required that culverts be installed in the Golden Grove Dike which eventually restored some surface water flow through the dike construction and on towards the south, although during some storm events water flow continues around the dike and into Cypress Creek. The Petitioners offered anecdotal evidence as to reduced water flows in some local creeks and increased flows thorough Cypress Creek. The Respondent offered evidence indicating that water flow through Cypress Creek may be less than 30 years ago, due to the digging of a canal between Spanish Creek and Cow Slough and the extension of the Clay Gully Canal's diversion of water into Telegraph Swamp. None of the evidence on this point was persuasive, however it is not relevant. Clearly, the instant permit modification application will not adversely affect the existing situation in the receiving bodies. The Petitioners assert that other receiving waterways have become clogged with vegetation, debris or soil, have accordingly reduced capacities, and are unable to accommodate historical discharge levels. Based on the lack of capacity, the Petitioners suggest that waters move towards the eastern portion of Telegraph Swamp and are discharged, flow towards, into and over the banks of Cypress Creek, and flood their properties. The TCWMD conducted a study of backwater profiles based upon credited field data. The study is found to be reasonable and is credited. Based upon the study, approximately 90 per cent of the water discharged from Telegraph Swamp is conveyed to the Caloosahatchee via Big Island Canal, Telegraph Creek and the swamp area south of the control structure. The remaining 10 per cent of the water enters the Bullhead Strand-Lightered Canal-Cypress Creek watercourse. Water flows from Telegraph Swamp into Cypress Creek via Bullhead Strand and the South Lightered Canal, however, the canal has become so restricted by vegetation that it provides little direct water flow between the strand and the creek and is more properly regarded as an area of enhanced sheet flow. The evidence does not establish that the surface water traveling from Bullhead Strand to Cypress Creek is of significance. Coupled with the existence of the Big Island Canal (which connects Telegraph Swamp to Telegraph Creek) it is unlikely that post-development surface water discharged from the Telegraph Swamp into Cypress Creek exceeds pre-development discharges. The Petitioners claim that two culverts in the Big Island canal restrict the flow of water through the canal and result in increased discharge to the east and to Cypress Creek. The greater weight of the evidence establishes that during period of time when the culverts are unable to accommodate water flow, the water travels into a broad flood plain, around the culverts and returns to the Big Island Canal. The evidence establishes that the proposed modification will not result in additional adverse off-site impacts. The adverse conditions affecting Cypress Creek existed at the time of the 1980 permit and are addressed in the staff report to that permit and to subsequent permit modifications. There is no credible evidence that modification of the permit as sought in this case will result in adverse impacts beyond those which have existed at the time of the award of the original permit. The Petitioners assert that the fields included within the permit modification application lack individual retention areas. The lack of individual detention areas is immaterial in this case where sufficient downstream detention capacity is available through the common detention areas. The Petitioners asserts that the Telegraph Swamp is an "above-ground impoundment" and that as such is fails to comply with requirements related to such water storage systems. The Telegraph Swamp is not a typical "above-ground impoundment" as that term is routinely applied by the District. The regulations addressed by the Petitioners clearly state that they are not intended to be inclusive and are intended to provide guidelines and basic performance criteria for commonly encountered south Florida situations. Telegraph Swamp is not a commonly encountered south Florida situation. There is no evidence that the decision not to apply the "above-ground impoundment" regulations to the Telegraph Swamp is unreasonable. The Petitioner suggest that the TCWMD application for permit modification is deficient and fails to provide information in compliance with the Basis of Review. The Basis of Review is directed towards applications for new construction. The District reasonably does not interpret the all elements of the Basis of Review to apply to existing operations. The original staff report for this permit modification application fails to acknowledge that Cypress Creek is a receiving body. However, as stated previously, the 1980 application and subsequent modifications have clearly addressed the fact that Telegraph Swamp waters discharge to Cypress Creek via intervening waterways. The failure to include the reference in the staff report to this application for modification is irrelevant.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the South Florida Water Management District enter a Final Order issuing Surface Water Management Permit Modification No. 08-00004-S including the additional permit conditions set forth herein, to the Telegraph Cypress Water Management District. DONE and RECOMMENDED this 1st day of April, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASES NO. 92-6900 and 92-6901 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioners James D. English and Cypress Creek Partnership The proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership consist of unnumbered paragraphs. Pages forty-five through fifty-nine of the proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership were stricken as set forth in the Order On Motion To Strike issued March 29, 1994. The paragraphs of pages five through forty-four of the proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership have been consecutively numbered and are accepted as modified and incorporated in the Recommended Order except as follows: 1-2. Rejected, argument, not findings of fact. 7-9. Rejected, argument, not findings of fact. The staff report is not dispositive. 10-12. Rejected. The greater weight of the evidence establishes that, although the 39csm figure is not set forth in the permit, as of the 1984 modification, the TCWMD calculations have been based on a peak discharge rate of 39csm and that the District has accepted the calculations previously. The applicable criteria in the instant case require that the allowable discharge rate for a previously permitted project is that which was set in the previous permit. 13. Rejected, recitation of testimony is not finding of fact. 15-16. Rejected, argument, not finding of fact, irrelevant, cumulative. 17-18. Rejected, recitation of testimony is not finding of fact. 19. Rejected, contrary to the greater weight of credible and persuasive evidence which establishes that 39csm has been the peak discharge rate accepted by the District since 1984. The flow rate projected by the TCWMD does not exceed the accepted peak discharge rate. 24. Rejected, recitation of testimony is not finding of fact. 26-28. Rejected, recitation of testimony is not finding of fact. 29-30. Rejected, argument, not finding of fact. Rejected, irrelevant. Rejected, argument, not finding of fact. Rejected, irrelevant. The greater weight of the credible and persuasive evidence establishes that 39csm has been the District's accepted peak discharge rate and that this modification will not result in peak discharge rates in excess of that which has been previously accepted. Rejected, not supported by the greater weight of credible and persuasive evidence. The assumptions underlying the Petitioners' calculation of theoretical maximum discharge are rejected as unreasonable. Rejected, unnecessary. 36-45. Rejected, irrelevant. The anecdotal evidence fails to establish that offsite inflows are of such quantity as to render the TCWMD projections unreasonable. The proposed findings also consist of recitation of testimony or argument and are not findings of fact. 46-52. Rejected, contrary to the greater weight of credible and persuasive evidence. The evidence fails to establishes that the swamp is an "above-ground impoundment" as that term is routinely applied by the District. The proposed findings also consist of recitation of testimony or argument and are not findings of fact. 53-67. Rejected, irrelevant. An applicant for a permit modification is not required to supply every item on the checklist. An application for a modification to an existing permit often need not contain all the items described. 69. Rejected, cumulative. 70-71. Rejected, argument, not finding of fact. 72-81. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that the identification and delineation of the nine basins is based on historical hydrologic characteristics of the TCWMD and is a reasonable determination of basin boundaries. The proposed findings also consist of recitation of testimony or argument and are not findings of fact. 82. Rejected, subordinate. 83-85. Rejected, irrelevant. The confusion on the part of District staff as to what T.O.C. was utilized by the TCWMD engineer is irrelevant. This proceeding is not a review of preliminary staff activity. The applicant must establish entitlement to the permit at the hearing. 86-87. Rejected, recitation of testimony is not finding of fact. Rejected. The confusion on the part of District staff as to what T.O.C. was utilized by the TCWMD engineer is irrelevant. Rejected, unnecessary. Rejected, recitation of testimony is not finding of fact. 91-94. Rejected, irrelevant, the discharge projections calculated by the TCWMD as explicated at the hearing are credited. In any event, the evidence establishes that this modification will result in no additional discharge of surface water from the control structures. 95-97. Rejected, irrelevant. The evidence establishes that this modification will result in no additional discharge of surface water from the control structures. Petitioner Alva Cemetery Petitioner Alva Cemetery's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, not supported by the greater weight of credible and persuasive evidence. 4-5. Rejected, irrelevant. Rejected, irrelevant. This is a de novo hearing, not a review of preliminary staff work. The evidence at hearing establishes that the permit modification will not cause additional adverse affect on existing receiving bodies. Rejected, irrelevant. The evidence fails to establish that Hall Creek and Fichter Creek are receiving bodies of such capacity that their omission from staff report is material. Rejected, irrelevant. Rejected, irrelevant. The evidence fails to establish that offsite inflows are of such quantity as to be relevant. 11. Rejected, not supported by the greater weight of credible and persuasive evidence. The Applicant's analysis is credited. As to T.O.C., even the less conservative T.O.C. projections indicate a peak discharge rate within that previously accepted by the District. 12-13. Rejected, irrelevant. Rejected, irrelevant. Such return overflows are unnecessary in this situation where the detention areas have the capacity to provide adequate flood drainage and protection. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. 18-20. Rejected, cumulative. 21. Rejected, immaterial. There is no evidence that this permit modification application will cause additional adverse impact on receiving bodies. The failure to address nonexistent impacts is immaterial. Rejected, errors in staff report are irrelevant. The evidence admitted at hearing is accepted as correct. First paragraph is rejected, cumulative. Second paragraph is rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, anecdotal testimony is not supported by the greater weight of credible and persuasive evidence. Rejected. The greater weight of credible and persuasive evidence establishes that all farm fields affected by this permit modification application were in existence by the 1980 permit. Rejected, not supported by the greater weight of credible and persuasive evidence. The assumptions underlying the Petitioners' calculation of theoretical maximum discharge are rejected as unreasonable. Rejected, irrelevant. The greater weight of credible and persuasive evidence fails to establish that the cemetery flooding is related to actions by the TCWMD. Further, the evidence fails to establish that, even if the flooding was related to the TCWMD, the instant permit modification application will cause additional adverse impacts. Respondent Telegraph Cypress Water Management District Respondent Telegraph Cypress Water Management District's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 18. Rejected, subordinate. 19-20. Rejected, not credited and unnecessary. Rejected as to assertion that the 39csm discharge rate was set in the 1984 permit modification, not supported by the evidence. Review of the document admitted into evidence as the 1984 modification fails to reveal that the figure of 39csm is set forth therein. Rejected, cumulative. Rejected, unnecessary. Respondent South Florida Water Management District Respondent South Florida Water Management District's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 30. Rejected as to assertion that the 39csm discharge rate was set in the 1984 permit modification, not supported by the evidence. Review of the document admitted into evidence as the 1984 modification fails to reveal that the figure of 39csm is set forth therein. Pages 17-19 of the Proposed Recommended Order set forth revisions to the staff report which originally form the basis for the preliminary agency action in this matter. As the hearing is a de novo review of this matter, it is unnecessary for this Recommended Order to address the revision of the staff report, which has limited probative value. COPIES FURNISHED: Tilford C. Creel Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 Melville G. Brinson, Esquire 1415 Hendry Street Fort Myers, Florida 33902 Frank A. Pavese, Sr. Esquire 1833 Hendry Street Fort Myers, Florida 33902 Scott Barker, Esquire Post Office Box 159 Fort Myers, Florida 33902 John J. Fumero, Esquire Toni M. Leidy, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33416
