The Issue The issues are whether IMC Phosphates Company is entitled to an environmental resource permit for phosphate mining and reclamation on the Ona-Ft. Green extension tract, approval of its conceptual reclamation plan for the Ona-Ft. Green extension tract, and modification of its existing wetland resource permit for the Ft. Green Mine to reconfigure clay settling areas, relocate mitigation wetlands, and extend the reclamation schedule.
Findings Of Fact Parties, Phosphate Mining, and Physiography Respondent IMC Phosphates Company, a Delaware general partnership authorized to do business in Florida (IMC), has applied to Respondent Department of Environmental Protection (DEP, which shall include predecessor agencies) for an environmental resource permit (ERP) to mine phosphate rock at the Ona-Ft. Green extension tract (OFG), approval of a conceptual reclamation plan (CRP) to reclaim the mined land at OFG, and modification of a previously issued wetland resource permit (WRP) to relocate and shrink clay-settling areas (CSAs), relocate mitigation wetlands, and extend the reclamation schedule at the Ft. Green Mine, which is an existing mine that is immediately west and north of OFG. Except for the submerged bottom of Horse Creek, which is sovereign submerged land, IMC owns all of the land on which OFG will be located, except for a 1.8-acre parcel owned by Valerie Roberts in Section 16, which is described below with the other sections forming OFG. IMC is negotiating with Ms. Roberts to purchase her land, and she has authorized IMC to pursue mining permits for the entire parcel, including her land. IMC Global, Inc., owns 80 percent of IMC. IMC Phosphates MP Inc., a Delaware corporation, is the managing general partner of IMC. As a successor to International Mining and Chemical Corporation, IMC has been in business for over 100 years. IMC is the largest producer of phosphate in the world. References in this Recommended Order to phosphate mining companies include all forms of business organizations. At present, IMC is operating four phosphate mines in Florida. The largest is the Four Corners Mine, which extends into Hillsborough, Polk, Manatee, and Hardee counties and three river basins. IMC also operates the Hopewell Mine in Hillsborough County, the Kingsford Mine in Hillsborough and Polk counties, and the Ft. Green Mine. Petitioner Charlotte County is located south of Sarasota and DeSoto counties and west of Glades County. The majority of Charlotte Harbor lies within Charlotte County. Charlotte Harbor is a tidal estuary at the mouths of the Peace and Myakka rivers. An Outstanding Florida Water and an Aquatic Preserve, Charlotte Harbor provides critical habitat for a variety of species. Charlotte Harbor is now an estuary of national significance under the U.S. National Estuary Program. Directly or indirectly, Charlotte Harbor supports 124,000 jobs and generates $6.8 billion in sales annually. To protect this unique natural resource, Charlotte County has adopted a local government comprehensive plan directing residential densities away from Charlotte Harbor. Charlotte County has also expended over $100 million in sanitary sewer capital expenditures for, among other things, the protection of Charlotte Harbor, such as by replacing private residential septic tanks with central sewer. Charlotte County's opposition to phosphate mining and reclamation in the Peace River basin is based on concerns about reduced river flows, reduced abundance and diversity of fish species, the loss of wetlands and first-order streams, and degraded water quality. Petitioner Peace River/Manasota Regional Water Supply Authority (Authority) is an agency authorized by Section 373.196(2), Florida Statutes, and created by interlocal agreement among Charlotte, Sarasota, DeSoto, and Manatee counties. The purpose of the Authority is to supply potable water to several suppliers in southwest Florida. Relying exclusively on the Peace River as its source of raw water, the Authority withdraws water from the Peace River two miles downstream of the point that Horse Creek empties into the Peace River. This point is about midway between Arcadia and Charlotte Harbor. As discussed below, the Authority's permit to withdraw water from the Peace River is dependent upon flows at a point upstream of the confluence of Horse Creek and the Peace River. The Authority's current water use permit expires in 2016. From its water treatment plant, which is located near the withdrawal point, the Authority pumps finished water to Charlotte, Sarasota, and DeSoto counties and the City of North Port. Approximately 250,000 persons rely on these suppliers, and, thus, the Authority, for their potable water. At present, the Authority is obligated to supply 18 million gallons per day (mgd), but anticipates demand to increase to 32 mgd by 2015. Petitioner Sarasota County (Sarasota County) owns and operates a water utility system, which currently supplies 24 mgd of potable water to 125,000 persons. Sarasota County obtains potable water from its wellfields, Manatee County, and the Authority, from which it may take up to 3.6 mgd. By 2017, Sarasota County plans to take 13.7 mgd of potable water from the Authority, partly to offset anticipated reductions in the amount of potable water presently being supplied by Manatee County. By 2017, the Authority will supply over half of Sarasota County's potable water. Sarasota County also shares Charlotte County's concerns about the overall environmental integrity of Charlotte Harbor, a small part of which is in Sarasota County. Intervenor Lee County (Lee County) is immediately south of Charlotte County. Nearly half of Charlotte Harbor lies within Lee County. Tourism produced an estimated $1.8 billion to Lee County's economy in 2002. Tourists are attracted to Lee County in part due to the high quality of Charlotte Harbor and its unique chain of barrier islands, passes, sounds, and bays that are integral to local fishing and boating. Lee County shares Charlotte County's concerns about the overall environmental integrity of Charlotte Harbor. Lee County is concerned about, among other things, degraded water quality from the discharge of turbid water, increased pollutant loads to the Peace River and Charlotte Harbor, adversely affected freshwater flows in the Peace River, and the consequences of the phosphate mining industry's inability to restore secondary tributaries, which provide base flow and environmental benefits to Charlotte Harbor. Petitioner Alan R. Behrens (Behrens) resides in Wimauma, Florida, which is in Hillsborough County. He has owned two five-acre tracts along Horse Creek since 1985 and owns a 2.5-acre lot in DeSoto County that fronts Horse Creek for 100-200 feet. The Horse Creek property is 10-15 miles downstream from OFG. Behrens has canoed the entire main stem of Horse Creek from the Peace River to OFG. On May 9, 2004, Behrens canoed up Stream 4w, which is a tributary of Horse Creek on OFG and is described in detail below. Behrens is a founder of Petitioner DeSoto Citizens Against Pollution, Inc. (DCAP), which was incorporated in 1990 as a Florida not-for-profit corporation and has operated in that status continuously since that time. DCAP's purpose is to protect fish, wildlife, and air and water resources; promote public health and safety; increase public awareness of potential environmental hazards; and discourage activities that may be adverse to public health or the environment. DCAP has 52 members, of whom 27 reside in Hardee County, 23 reside in DeSoto County, and two reside in Sarasota County. A substantial number of DCAP's members use Horse Creek for swimming, boating, canoeing, and fossil hunting. At least nine DCAP members own property abutting Horse Creek. Behrens and many DCAP members use wells on their property for potable water. Behrens and DCAP members are concerned that the clay- settling areas described below will increase flooding, the project will adverse affect the timing and volume of the flow and degrade the water quality of Horse Creek, the project will destroy wildlife habitat that--even if reclaimed--will be lost for many years, and the project will cause spills that will destroy fish and wildlife and adversely affect the ability of Behrens and DCAP to enjoy Horse Creek. OFG is in northwest Hardee County, about one-half mile east of the Manatee County line. OFG is about six miles south- southeast of the Four Corners, where Hardee, Manatee, Polk, and Hillsborough counties meet. OFG is about 35 miles east of Bradenton, 12 miles west of Wauchula, several miles south of State Road 62, and 2000 feet north of State Road 64. OFG represents the southernmost extent of phosphate mining in the Peace River basin to date. A nonrenewable resource for which no synthetic substitutes exist, phosphate is an essential nutrient and a major component of manufactured fertilizer. Less important uses of phosphate are for animal feed, soft drinks, and cosmetics. Mining phosphate rock and processing it into phosphoric acid or phosphorus make possible high-yield agriculture, which, by producing more food crop on less land, may reduce worldwide pressure to convert native habitat to improved agricultural land uses. Phosphate is available in limited quantities. Three- quarters of the recoverable phosphate rock in the United States is found in Florida, mostly in discrete deposits ranging from north-central Florida to Charlotte Harbor. Ten to fifteen million years ago, when peninsular Florida was submerged marine bottom, dead marine organisms accumulated as bone and shell on the ocean floor. These accumulations formed the Bone Valley Formation, which, as the seas withdrew and the peninsula emerged, occupies the lower part of the surficial aquifer at the site of OFG. Briefly, the main elements of the proposed activities in these cases, roughly in the order in which they will take place, are relocating wildlife; constructing a ditch and berm system around the area to be mined; removing topsoil from certain donor areas; removing the overburden and depositing it in rows of spoil within the mine cut; removing the underlying phosphate matrix and slurrying it to a nearby beneficiation plant at the Ft. Green Mine for processing to separate the phosphate rock from the sand and clay tailings; slurrying the clay tailings from the beneficiation plant to two CSAs at the southern end of the Ft. Green Mine; slurrying the sand tailings from the beneficiation plant back to the mine cut to backfill the excavation; applying topsoil to certain areas or green manuring areas for which topsoil is unavailable; applying muck to certain areas; contouring the reclaimed land to replicate pre-mining topography; analyzing the post-reclamation hydrology; reclaiming wetlands, streams, and uplands on the reclaimed landscape of OFG; maintaining and monitoring the reclaimed wetlands, streams, and uplands until DEP releases IMC from its ongoing reclamation obligations; correcting any problems in reclaimed areas; and removing the ditch and berm system and reconnecting the reclaimed mined area to the areas adjoining it. In the Findings of Fact, this Recommended Order uses "reclaim" to describe the process by which, post-mining, IMC and its reclamation scientists will construct wetlands, other surface waters, and wetlands at OFG. Likewise, in the Findings of Fact, this Recommended Order uses reclamation and mitigation interchangeably. In the Conclusions of Law, this Recommended Order discusses distinctions in these terms. IMC plans to use multiple draglines to dig a series of long, linear trenches in the mined areas of OFG. Each dragline will first remove overburden and place it in piles parallel to the trench being excavated. After removing the overburden, each dragline will remove the phosphate matrix, which consists of phosphate rock, sand, and clay, and deposit it in shallow depressions. Adding water from the mine recirculation system to the phosphate matrix, IMC will slurry the phosphate matrix to the Ft. Green beneficiation plant, which is about 12 miles from OFG. At the beneficiation plant, the phosphate rock will be separated from the sand and clay tailings, again using water from the mine recirculation system. After recovering the phosphate rock, IMC will slurry the sand tailings, which do not retain water, from the Ft. Green beneficiation plant to OFG for backfilling into the mined trenches with the overburden. Not used in the reclamation at OFG, the clay tailings, which retain water for an extensive period of time, will be slurried to the CSAs O-1 and O-2 on the Ft. Green Mine. CSAs O- 1 and O-2 are the subject of the WRP, which is discussed below. The volume of the clay leaving the beneficiation plant is greater than the clay in situ, pre-mining, because the slurrying process has saturated the clay. The CSAs provide a place to store the saturated clay while it drains and decreases in volume. The clay-settling process takes a long time, extended by IMC's intention to fill the CSAs by stages to make the most efficient use of the areas designated for the settling of clay. By stage-filling the CSAs, IMC will initially install the clay to a considerable height, using an embankment of approximately 50-60 feet. The water that separates from the clay will then drain across the sloped CSA until it enters the mine recirculation system for reuse. The remaining clay will dry and consolidate. After refilling each CSA approximately three times over about ten years, IMC will allow the clay to settle and consolidate a final time. When the clay has consolidated sufficiently to support agricultural equipment, IMC will regrade the area, reduce the side slopes, and remove the embankments, leaving the CSAs at a finished elevation 20-25 feet above the surrounding grade. Given the ongoing nature of IMC's phosphate mining operations, it is likely that some sand and clay tailings from OFG will go elsewhere, rather than return to the OFG mine cuts and CSAs O-1 and O-2, and that some sand and clay tailings from non-OFG mining operations will go to the OFG mine cuts and CSAs O-1 and O-2. However, these facts are irrelevant to the issues raised in these cases, except for consideration of IMC's sand- tailings budget, which is discussed below. Phosphate mining and reclamation practices have changed dramatically in the past 40 years. Although mining operations and reclamation practices are discussed below in detail, one development in mining and one development in reclamation bear emphasis due to the resulting reductions in water losses to the drainage basin. As explained below, mining operations are dependent upon large volumes of water, which flow through the mine recirculation system. Before 1963, phosphate mining pumped roughly 3000 gallons of water for each ton of mined phosphate rock. By the mid-1970s through 1990, the industry had reduced its groundwater consumption to 1500 gallons per ton of mined rock. From 1991 to 1999, the industry again reduced its groundwater consumption from 1200 gallons per ton to 650 gallons per ton, partly by achieving a 97 percent rate of water- recycling in the mine recirculation system. During roughly the same period, phosphate reclamation activities have expanded considerably. Prior to July 1, 1975, reclamation of mined land was voluntary, encouraged only by the availability of state funds to offset reclamation costs. Today, post-mining reclamation is required by law. As a consequence, post-mining reclamation 30 years ago was relatively modest in scope and intensity. One important development in reclamation practices is the phosphate mining industry's transition from early reclamation techniques that relied on relatively inexpensive contouring of the overburden that remained in the mine cuts following the extraction of the phosphate ore. These reclamation practices--aptly called Land-and-Lakes reclamation-- yielded post-reclamation excavations, such as reclaimed lakes or deep marshes, that, compared to pre-mining conditions, retained considerable volumes of surface water. The resulting increase in surface water area, compared to pre-mining surface water area, meant substantial loss of water from the drainage basin due to increased evapotranspiration. More recent reclamation practices, such as those proposed for OFG, feature more extensive backfilling of the mine cuts with tailings to restore pre-mining topography. The result is that less water is lost to evapotranspiration by retention in newly created lakes and deep marshes and more is timely held and passed by the natural drainage conveyances through detention, attenuation, runoff, and base flow--eventually entering the main basin river in volumes, rates, and times (relative to storm events) comparable to pre-mining conditions. Located near the western divide of the Peace River basin, OFG is near a topographical high point marking the divides among five drainage basins. From north to south, the four other basins are drained by the Alafia River, Little Manatee River, Manatee River, and Myakka River. OFG is located toward the bottom of an escarpment where the Polk Uplands descends into the DeSoto Plain. OFG is located almost entirely within a portion of the Horse Creek basin or sub-basin within the Peace River basin. This Recommended Order shall refer to the drainage basins that form the larger Peace River basin as sub-basins. A small portion of the western edge of OFG is within the West Fork Horse Creek (West Fork) sub-basin, and a small portion of the eastern edge of OFG is within the Brushy Creek sub-basin. OFG is toward the upper end of the Horse Creek sub-basin. The West Fork and Brushy Creek sub-basins within OFG contain no streams or stream segments and only, between them, about a half dozen wetlands of one-half acre in size or greater. Obviously, as separate sub-basins, these two areas on OFG are relatively far from Horse Creek. West Fork joins Horse Creek a couple of hundred feet south of OFG and just north of State Road 64. Brushy Creek joins Horse Creek six miles southeast of OFG. Horse Creek joins the Peace River at Ft. Ogden, about 40 miles south of OFG and 15 miles northeast of the mouth of the Peace River at Charlotte Harbor. The Peace River basin comprises about 2350 square miles and extends from its headwater lakes in north Polk County to Charlotte Harbor. By comparison, the Horse Creek sub-basin comprises about 241 square miles, or roughly ten percent of the Peace River basin. At Charlotte Harbor, the average flow of the Peace River is about 1700 cubic feet per second (cfs). By comparison, Horse Creek, at its confluence with the Peace River, flows at an average rate of about 170 cfs--again ten percent of the average rate of flow of the Peace River. West Fork, at its confluence with Horse Creek, flows at an average rate of about 10 cfs. The largest tributary on OFG flows at an average rate of about 0.75 cfs. Forming a little south of Four Corners, Horse Creek is one of five major tributaries of the Peace River. An ecological backbone of this region of Florida, Horse Creek is the only long-term, reliable flowing water system between the Manatee River on the west and Peace River on the east. OFG occupies the upper reaches of Horse Creek. Horse Creek is in good condition, notwithstanding 100 years of nearby cattle ranching. Most of Horse Creek is Class III waters, although a segment near the Peace River is Class I waters. Horse Creek is a moderately incised stream at OFG, especially over its southern two-thirds running through the mine site. Over the little more than three miles that Horse Creek flows through OFG, the streambed drops from nearly 120 feet National Geodetic Vertical Datum (NGVD) at the north end to about 75 feet NGVD at the south end. Within OFG, the valley that Horse Creek occupies is also relatively well-defined. The northern half of the streambed of Horse Creek within OFG is mostly around 100 feet NGVD. The highest adjacent elevations on OFG are about 120 feet NGVD. At least partly for this reason, most of the tributary streams, except in the flat northern portion of OFG, are also well-incised. OFG extends about 4 1/2 miles north to south, and ranges from 2/3 to 2 1/2 miles from east to west, for a total area of about 6 1/2 square miles. Lying entirely within Township 34 South, Range 23 East, OFG, from its northernmost border, occupies three sections, which are, from north to south: Sections 4, 9, and 16. Immediately west of the southern half of Section 9, OFG occupies most of the southern half of Section 8. Immediately west of Section 16, OFG occupies Section 17, as well as, immediately south of Section 17, all of Section 20 and most of the northern half of Section 29. OFG also extends to parts of four other sections: Sections 10 and 15 east of Sections 9 and 16, respectively, and Sections 18 and 19, west of Sections 17 and 20, respectively. The existing surface waters and nearly all of the existing wetlands are on the two columns of sections running north and south: on the east, Sections 4, 9, and 16 and, on the west, Sections 17, 20, the south part of Section 8, and the north part of Section 29. The northernmost extent of OFG, which consists of Section 4 and the north half of Section 9, is known as the Panhandle. Horse Creek enters OFG at the southwest corner of the Panhandle, at a point midway along the west border of Section 9. The stream flows south through the approximate center of OFG for about 1 1/2 miles until it leaves OFG for a very short distance at the southwest corner of Section 16, as it crosses a corner of property owned by the Carlton-Smith family (Carlton cutout). Horse Creek re-enters OFG at the northeast corner of Section 20 and runs just inside the eastern border of Section 20 and the portion of Section 29 within OFG. Horse Creek leaves OFG near the midpoint of the east border of Section 29. Numerous tributary streams enter Horse Creek within OFG, from the east and west sides of the creek. IMC and DEP have assigned to each of these streams or stream segments a number, followed by a letter to indicate if the stream or stream segment enters Horse Creek from the east or west. To the west of Horse Creek, proceeding from south to north, the streams are 0w, 1w, 2w, 3w, 4w, 5w, 6w, 7w, 8w, and 9w. To the east of Horse Creek, proceeding from south to north, the streams are 12e, 11e, 10e, 5e, 9e, 4e, 8e, 7e, 6e, 2e, 3e, and the Stream 1e series, consisting of Streams (sometimes referred to as stream segments) 1ee, 1ed, 1ec, 1eb, and 1ef. All of the streams join Horse Creek on OFG except Stream 2e, which joins Horse Creek a few hundred feet upstream of the point at which Horse Creek enters OFG, and Stream 7w, which empties into a backwater swamp (G185/G186) that, in turn, empties into either Horse Creek or the lower end of Stream 6w immediately before it empties into Horse Creek. The alphanumeric designation of the backwater swamp in the preceding paragraph is based on the Map F-2 series, which assign such a designation to each existing wetland community and then identifies the wetland community. For example, the backwater swamp consists of a wet prairie (G185) surrounded by a mixed wetland hardwoods (G186). If a wetland consists of more than one wetland community, this Recommended Order will refer to it either as a wetland complex with its lowest-numbered wetland community--here, wetland complex G185--or the combination of wetland communities--here, G185/G186. Reclaimed wetlands are identified by Figure 13A5-1, which assigns each wetland an alphanumeric designation and identifies its community. The letter indicates if the reclaimed wetland is east ("E") or west ("W") of Horse Creek. Table 13A5-1 2AI identifies each reclaimed wetland by its alphanumeric designation, community, acreage, and status as connected, isolated, or isolated and ephemeral. Table 13A5-1 2AI identifies 110 wetlands to be reclaimed. The largest wetland is E003, which is a 23.8-acre mixed wetland hardwoods that constitutes the riparian wetland of the Stream 1e series. The next largest is W003, which is a 20.7-acre wet prairie at the headwaters of Stream 9w. Only three other reclaimed wetlands will be at least ten acres: E018, an 11.3-acre wet prairie fringe on the east side of Section 4; E020, an 11.5-acre freshwater marsh at the center of E018; and W039, an 11.2-acre bay swamp at the headwater of Stream 1w. Thirteen reclaimed wetlands are at least five acres, but less than ten acres, and 30 reclaimed wetlands are less than one acre. Table 13A5-1 2AI identifies 44 reclaimed ephemeral wetlands totaling 101 acres. Reclaimed uplands are identified by Map I-2. Although the scales of Map I-2 (one inch equals about 820.5 feet) and the Map F-2 series (one inch equals about 833.3 feet) are larger than the scales of nearly all of the other maps and figures in these cases, acreages derived from these maps for uplands and existing wetlands are very rough approximations and do not approach in accuracy the acreages derived from Table 13A5-1 2AI for reclaimed wetlands. These maps and figures omit one stream segment to be reclaimed. IMC and DEP restricted the designation scheme to streams and stream segments that had once been natural systems, thus excluding artificially created waterways, such as those created by agricultural ditches cut into swales to drain upslope wetlands and uplands. During the hearing, older aerial photographs revealed that, under this scheme, the parties had omitted one stream segment, which they designated Stream 3e?. Stream 3e? is northeast of Stream 3e, from which it is separated by a wetland (G133/G134/G135/G136). Besides the streams, two other areas within OFG require early identification due to their prominence in these cases. The northerly area is the Heart-Shaped Wetland (G138/G139/G140/G141/G143/G143A), which is the large wetland in Section 4 into which the Streams 1e series and Stream 3e empty. The other area of heightened importance is in the center of OFG in Sections 17 and 16 and is called the East Lobe, Central Lobe, and West Lobe or, collectively, the Lobes. Dominated by large bayhead headwaters (West Lobe--G197; Central Lobe--G179; East Lobe--G178), the Lobes and the streams connecting them to Horse Creek are entirely within the no-mine area. The West and Central Lobes connect to the west bank of Horse Creek by Streams 6w and 8w, respectively. The East Lobe connects to the east bank of Horse Creek by Stream 9e. The no-mine areas of the West and East Lobes are much larger than the no-mine area of the Central Lobe, and the East Lobe contains a large area of uplands extending east of, and supporting, the large bayhead. Most OFG wetlands are connected or contiguous, and many of these wetlands are riparian wetlands within the 100-year floodplain of Horse Creek or a floodplain of one of the tributaries of Horse Creek. (As used in this Recommended Order, the floodplain of Horse Creek runs roughly parallel to the banks of Horse Creek and excludes any portion of the floodplain more directly associated with Horse Creek's tributaries or their connected wetlands.) All or nearly all of the isolated wetlands on OFG are ephemeral and permanent, except in very low rainfall periods. The scale of mining is large. The phosphate matrix, which contains the phosphate rock, is overlaid by a layer of sand and clay overburden, which, with topsoil, is projected to range from 20-40 feet, averaging 27 feet, in thickness. The phosphate matrix is projected to range from 25-35 feet, averaging closer to 25 feet, in thickness, although as much as four feet of the matrix may consist of interburden, such as sand, clay, limerock, or gravelly materials. Thus, mining will remove, on average, 52 feet of the earth's surface. In no area will mining extend deeper than the top of the limey clay bed, which is the confining layer dividing the surficial aquifer from the intermediate aquifer, of which the limey clay bed is a part. (Technically, the matrix is part of the confining layer, but it provides so little confinement that it is easier to consider it part of the surficial aquifer. A consequence of this fact is that the removal of the matrix does not increase the rate of deep recharge, at least where the matrix is replaced with cast overburden.) At OFG, the thickness of the surficial aquifer varies from 65-70 feet at the basin divide to 50 feet or less at the riparian wetlands and averages 55 feet. Beneath the intermediate aquifer, which is about 300 feet thick at OFG, lies the Floridan Aquifer. IMC projects OFG to yield 24 million tons of phosphate rock, 26 million tons of clay tailings, and 68 million tons of sand tailings. IMC projects that the no-mine areas, which are discussed below, will result in five million tons of phosphate rock reserves remaining in the ground post-mining. The scale of the environmental impact of mining is correspondingly large. Mining removes all flora and fauna, all the topography, soils, and upper geology, in the path of the electric dragline, which, as long as a football field (including one end zone), removes the uplands, wetlands, streams, and soils covering the matrix. At the depths at which mining will take place, IMC will be removing the entire surficial aquifer. Applications, ERP, CRP Approval, and WRP Modification Preliminary Matters These cases involve permits and an approval of the phosphate mining and reclamation processes. These cases do not involve the processes by which IMC transforms phosphate into end products, mostly fertilizer. With one exception, these cases do not involve the processes by which IMC separates the phosphate ore from the sand and clay (i.e., the beneficiation process). (The exception is that IMC is seeking to extend by ten years the life of the Ft. Green beneficiation plant to separate the phosphate from the matrix slurried from OFG.) These other post- mining processes, which are separately permitted, are not directly involved in these cases because IMC will slurry the phosphate matrix mined from OFG to the existing Ft. Green beneficiation plant, which is already permitted and operating. Even though the WRP modification will authorize the relocating of already-permitted CSAs at the Ft. Green Mine, the WRP modification will not authorize the design or construction of the embankments that retain the water within these CSAs while they are essentially clay ponds. DEP will separately permit the construction and operation of CSAs O-1 and O-2. Application and Proposed Agency Action On April 24, 2000, IMC filed a Consolidated Development Application for an ERP to mine phosphate from the proposed 20,675-acre Ona Mine, approval of the CRP for the Ona Mine following the completion of mining, and modification to the existing WRP for the Ft. Green Mine to install three CSAs in the area of the Ft. Green Mine immediately west of the Ona Mine and extend the life of the Ft. Green beneficiation plant by ten years to process the matrix from the Ona Mine. On January 17, 2003, DEP issued an Intent to Issue an ERP and proposed approval of the CRP. Petitioners in several of the above-styled cases challenged this proposed agency action, and the parties embarked upon an energetic prehearing process of preparation, including extensive discovery and prehearing telephone conferences with the Administrative Law Judge, in anticipation of a final hearing in the fall of 2003. IMC and DEP entered into a Team Permitting Agreement, pursuant to 1996 legislation creating the concept of Ecosystem Management. The Team Permitting Agreement incorporates the concept of "net ecosystem benefit," but, on its face, is not binding on IMC. The obvious purpose of the Team Permitting Agreement was to induce the permitting agencies (i.e., DEP, Florida Fish and Wildlife Conservation Commission (FWC), Southwest Florida Water Management District (SWFWMD), two regional planning councils, the Florida Department of Community Affairs, the Florida Department of Transportation (DOT), Hardee County, DeSoto County, and the U.S. Army Corps of Engineers) to use a common development application and coordinate, to the greatest practical extent, their respective reviews of the proposed activities of IMC. Three weeks prior to the start of the final hearing, on September 15, 2003, DEP issued the Final Order in Charlotte County et al. v. IMC Phosphates Company and Department of Environmental Protection, 2003 WL 21801924, 4 ER FALR 42 (Altman Final Order). The Altman Final Order denies IMC's application for a WRP/ERP and disapproves IMC's proposed CRP for the Altman tract, which is a short distance northwest of OFG. Although the final and recommended orders are detailed and complex, the Altman Final Order essentially concludes that IMC's CRP was inconsistent with applicable law because its basic reclamation concept was "to replace an existing system of high-quality wetlands . . . with a deep freshwater marsh." On the same date of the Altman Final Order, DEP Deputy Secretary Allan Bedwell ordered DEP's Bureau of Mine Reclamation (BMR) to re-examine IMC's application for an ERP and request for approval of the CRP for the Ona Mine to assure consistency between the proposed agency action approving the ERP, CRP, and WRP modification and the Altman Final Order. The Bedwell memorandum specifically directs BMR to verify IMC's classification and characterization of the extent and quality of wetlands on the site; verify that IMC's proposed reclamation activities, including its proposed control of nuisance or exotic species, "maintain or improve the water quality and function" of the biological systems present at the site prior to mining; and verify that IMC meets the financial assurance requirements of law. The memorandum concludes by directing BMR to modify any proposed agency action, if necessary. By memorandum dated January 5, 2004, Richard Cantrell and Janet Llewellyn, Deputy Directors of DEP's Division of Water Management Resources, responded to the memorandum from Deputy Secretary Bedwell. With respect to IMC's classification and characterization of wetlands, the January 5 memorandum states that DEP staff had conducted additional review of available aerial photographs, reviewed field notes from previous field inspections, conducted new field inspections, and received comments from IMC and Charlotte County. To describe better onsite habitats and communities, DEP staff had also revised the DOT Florida Land Use, Cover, and Forms Classification System (FLUCFCS) for use at OFG. The FLUCFCS codes are a three-digit numbering system to classify and identify individual vegetative communities or land uses. With respect to the ability of the proposed reclamation to maintain or improve the water quality and function of biological systems, the January 5 memorandum states that Deputy Directors Cantrell and Llewellyn had recommended to IMC that it consider phasing the mining on Ona, so that it could apply its experience in reclaiming OFG to the remainder of the original Ona Mine; preserving additional onsite natural stream channels and proposing more detailed reclamation plans for mined streams; preserving additional onsite bay-dominated wetland systems; providing additional assurances that upgradient sand/scrub areas will continue to support hydrologically, through seepage, preserved and restored bayheads; providing a plan to control nuisance and exotic species in the uplands, which, if infested, would degrade adjacent wetlands post-mining; and providing assurances that groundwater flows to Horse Creek and its preserved tributaries will be maintained during mining and post-reclamation. With respect to financial responsibility, the January 5 memorandum states that Deputy Directors Cantrell and Llewellyn had advised IMC that it must provide its financial responsibility for the mitigation of all wetlands authorized to be mined, rather than providing its financial responsibility on a phased basis, as it had previously proposed. On January 30, 2004, IMC filed a voluminous amendment to the Consolidated Development Application in a package known as the January submittal. The most evident change made by the January submittal is the reduction of the Ona Mine to OFG, which was the westernmost one-fifth of the original Ona Mine. The introduction to the January submittal highlights the changes that IMC made to the original application. The introduction explains that IMC has employed a revised mapping protocol to ensure that all waters of the State, including wetlands delineated by Florida Administrative Code Rule 62-340.300 and other surface waters delineated by Florida Administrative Code Rule 62-340.600, are classified as wetlands or water, pursuant to the modified FLUCFCS codes. Rejecting the nomenclature of the January 5 memorandum regarding the phasing of mining at the Ona site, the introduction to the January submittal identifies OFG as a 4197- acre, "free-standing" mining tract, not in any way "coupled to or dependent on the development of the remainder of the Ona Tract," from which it was taken. The introduction explains that "free-standing" means that OFG is a "complete mining, reclamation, and mitigation proposal" and that the OFG ERP will be "for a single-phase project." The introduction to the January submittal notes that IMC has enlarged the no-mine area to include "nearly all of the natural stream channel tributaries to Horse Creek present in the portions of the Parcel that have not been converted to improved pasture." The amendments thus avoid disturbing four additional natural stream segments. The introduction explains that IMC considered a series of factors in determining whether to mine a stream segment: "stream segments length, the existing land cover adjacent to the stream and its watershed, the complexity of the channel geometry[,] and historical agricultural impacts." The introduction adds that IMC has added a "state-of-the-art" stream restoration plan for mined natural streams. The introduction to the January submittal states that IMC responded in two ways to the suggestions about bay swamps in the January 5 memorandum. First, IMC modified the conventional mapping protocol for bay swamps. Rather than require that the canopy of the subject community be dominated by loblolly bay, sweetbay, red bay, and swamp bay trees, as prescribed by the FLUCFCS codes, IMC designated as bayheads "depressional, seepage-driven forested headwater wetlands, surrounded, at least in part, by moderately to well drained upland soils, with a defined outlet connection to waterways such that the 'bay head' soils are perennially moist but infrequently inundated." This new mapping protocol did not require the presence of bay trees in the canopy. Second, IMC enlarged the no-mine areas to avoid disturbing all but nine percent of existing bay swamps at OFG, totaling less than ten acres. IMC based its mine/no-mine decisions for particular bayheads on analysis of the hydrological, water quality, and relative functional value provided by these communities to fish and wildlife. The introduction concludes that IMC has also developed detailed plans to mitigate for the few mined bayheads. The introduction to the January submittal states that IMC has added new protections for the sand/scrub areas upgradient from, and providing seepage into, the bayheads in the West and East Lobes. First, IMC will avoid mining certain of these areas, presumably adjacent to the East Lobe. Second, IMC will employ special mining techniques and schedules to reclaim these upland areas quickly and effectively. Additionally, the introduction notes that IMC is proposing to: align the dragline "cut patterns" such that the spoil piles will be aligned with the groundwater seepage path where feasible or, where not feasible, to grade the spoil piles prior to backfilling the mine voids with sand so as not to impede post- reclamation groundwater flow; accelerate the sand backfilling schedule of the mined voids adjacent to avoided "bay heads" to one year following mining disturbance; and create a reclaimed stratigraphy that results in post-reclamation seasonal high and normal water table elevations and hydraulic conductivities in the seepage slopes that will provide the hydrologic support required to sustain these communities. As explained in a later section of the introduction to the January submittal, "stratigraphy" refers to the soil layers or horizons, which are described in detail below. The introduction states: "The majority of the overburden will be placed at depths below the surface soil horizons. As a result, the surface soils will either be comprised of translocated surface soils or a loose mixture of 'green manure organics,' overburden, and sand that both resembles the native soils and provides a suitable growing medium for the targeted vegetative communities." The introduction adds that, at final grade, sand tailings will always overlie overburden by at least 15 inches. The introduction asserts that the overburden underlying the backfilled sand tailings will be "comprised of and have properties which are similar to B horizons (subsoils) and C horizons (substratums) of native Florida soils." The introduction to the January submittal identifies a Habitat Management Plan (also known as the Site Habitat Management Plan) that, with the Conservation Easement and Easement Management Plan discussed below, will guide the revegetation of upland natural systems, control nuisance and exotic species in uplands, and manage all potential listed species that may be present, whether or not observed, in areas to be mined. The introduction also mentions habitat enhancements "to relocate Florida mice" and to manage gopher tortoises. The introduction concludes with IMC's undertaking to ensure that exotic/nuisance cover does not exceed ten percent in all reclaimed wetlands and to provide a 300-foot buffer around wetlands where cogongrass--a highly invasive nuisance exotic described in more detail below--will not exceed five percent coverage. The introduction to the January submittal notes that the proposed activities will maintain groundwater flows to Horse Creek and tributaries in the no-mine areas during mining and post-reclamation. The introduction again mentions IMC's commitment, where feasible, to align spoil piles with groundwater flow and, where not feasible, grade spoil piles before backfilling so as to add a thicker band of sand to these areas. The introduction also cites the ditch and berm system as a means to maintain groundwater seepage during mining. The introduction to the January submittal states that IMC will meet its financial-responsibility requirements for the entire cost of wetland-mitigation at OFG. The January submittal contains a discussion of community-mapping protocol. IMC's methodology for mapping bay swamps is discussed above. The most common vegetative communities and land uses are described in the following paragraphs. Improved pasture is actively grazed pasture dominated by cultivated pasture grasses, such as bahiagrass, but may support native grasses. Improved pasture may contain sporadic shrubs and trees. Pine flatwoods occupy flat topography on relatively poorly drained, acidic soils low in nutrients. The overstory is discontinuous with areas of dense, species-rich undergrowth or groundcover. Longleaf pine and slash pine predominate. Pine flatwoods require frequent fires, which are carried by grasses, and the pines' thick bark helps prevent fire damage to the trees. At one time, about three-quarters of Florida was covered by pine flatwoods. Palmetto prairies typically represent the undergrowth of pine flatwoods. Once the trees are removed, such as by timbering, the resulting community is a palmetto prairie, which is characterized by an often-dense cover of saw palmettos with no or scattered pines or oaks. Occupying dry, sandy, well-drained sites, sand live oak communities feature a predominance of sand live oaks and often succeed in relatively well-drained pine flatwoods after the removal of the pines, conversion to palmetto prairie, and suppression of fire. Sand live oak may also occupy xeric oak communities. Moister soils may support live oak communities, which also may succeed pine flatwoods after the removal of the pines, conversion to palmetto prairie, and suppression of fire. Hardwood-conifer mixed is a blend of hardwoods and pines with trees of both categories forming one-third to two- thirds of the cover. Hardwoods are often laurel oak and live oak, and pines are often slash pine, longleaf pine, and sand pine. The midstory is typically occupied by younger individuals of the overstory communities and wax myrtle. If sufficient light reaches the ground, groundcover may exist. Temperate hardwoods are often a forested uplands transition to a wetland. Temperate hardwoods are usually dominated by laurel oak, but other canopy species may include cabbage palm, slash pine, live oak, and water oak. Mixed hardwoods is a similar community, except that water oak is predominant in the canopy. Two of the three most prevalent forested wetlands on OFG are bay swamps, which have been discussed, and hydric oak forest, which, because of their location in the Horse Creek floodplain, will not be mined. At DEP's request, IMC remapped some of the floodplain that was uplands (and already in the no- mine area) to hydric oak forest. The other prevalent forested wetlands on OFG is mixed wetland hardwoods, which consists of a variety of hardwood species, such as the canopy species of red maple, laurel oak, live oak, sweetbay, and American elm. Slash pines may occur, but may not constitute more than one-third of the canopy. Suitable shrubs include primrose willow, wax myrtle, and buttonbush. Ferns are often present as groundcover. Often immediately downgradient of bay swamps, mixed wetland hardwoods are typically in the hydric floodplains of small streams. Transitioning between uplands, such as palmetto prairies, and the wetter soils hosting bay swamps and mixed wetland hardwoods, wetland forested mixed communities (also known as wetland mixed hardwood-coniferous) often occupy wet prairies from which fire has been suppressed for at least 20 years and, as such, "are largely or entirely an artifact of land use practices during the past sixty years or so that have allowed the conversion of wet prairies . . . to this cover type." The canopy of wetland forested mixed is slash pine, laurel oaks, live oaks, and other hardwoods that tolerate or prefer wetter soils. Wet prairies are a dense, species-rich herbaceous wetland, usually dominated by grasses. Wet prairies occupy soil that is frequently wet, but only briefly and shallowly inundated. Similar to freshwater marshes, but with shorter hydroperiods, wet prairies often fringe marshes, and their border will shift in accordance with rainfall levels over several years. Freshwater marshes consist predominantly of emergent aquatic herbs growing in shallow ponds or sloughs. Typical marsh herbs include pickerelweed, maidencane, and beakrushes. Hydroperiod and water depth drive the presence of species in different locations within a freshwater marsh. Marshes may be isolated or may occupy a slough in which their water flow is unidirectional. Heavily grazed or drained marshes may suffer dominance of primrose willow. Abundant softweed may indicate ditching, and soft rush, which cattle avoid, may indicate heavy grazing. Shrub marshes succeed stillwater freshwater marshes from which fire has been excluded. Shrub marshes form after agricultural ditching or culverted fill-road building. Common shrub species include buttonbush, southern willow, and primrose willow. Hydric trees, such as red maple and swamp tupelo, may occupy the edges of shrub marshes. IMC supplemented the January submittal with submittals dated February 26 and 27, 2004. Collectively, these are known as the February submittal. The February submittal is much less- extensive than the January submittal, although it includes substantive changes. After examining the January and February submittals, on February 27, 2004, DEP issued a Revised Notice of Intent to Issue an ERP for OFG, approved a revised CRP for OFG, and issued a revised WRP modification for the Ft. Green Mine, which now authorizes two CSAs--O-1 and O-2--that have the effect of relocating the previously approved CSAs farther away from Horse Creek and reducing their size due to the reduced scale of OFG as compared to the original Ona Mine; reconfiguring certain mitigation wetlands, necessitated by the relocation of CSAs O-1 and O-2, with a net addition of 2.7 acres of herbaceous wetland area; and changing the reclamation schedule to conform to the already-approved CRP for the Ft. Green Mine. IMC supplemented the January and February submittals with submittals dated March 30, April 18, and April 21, 2004. These submittals, which are known as the Composite submittal, are much less-extensive than the February submittal. DEP expressly incorporated the February submittal into the ERP, CRP approval, and WRP modification dated February 27, 2004. DEP has impliedly incorporated the changes in the Composite submittal into the ERP, CRP approval, and WRP modification. Thus, this Recommended Order uses the latest version of these documents when discussing the relevant permit or approval. The March 30, 2004, submittal updates the following maps, figures, and tables: Map F-2 (to correct legend), Map I-2 (to correct the post-reclamation vegetation in the vicinity of Streams 3e, 1w, 2w, 3w, and 4w), Figures 13A5-1 and 13B-8 (to reflect changes to Map I-2), Tables 12A1-1 and 13A1-1 (revised land uses in several stream locations), and Tables 13A5-1, 345A-1, and 26O-1 (to reflect above changes). The March 30, 2004, submittal also includes the Draft Study Plan for Burrowing Owls and Amphibians and revised Tables A and B for the Financial Responsibility section of the ERP. No material revisions are included in the submittals after March 30, 2004. Submittals after March 30, 2004, include financial responsibility forms, including a draft escrow agreement, and updated information on the temporary wetland crossing at the point that Stream 2e forms at the downstream end of the Heart-Shaped Wetland. The last item, dated April 20, 2004, is a revision of Figure 13B-8, but solely for the purpose of showing that the Heart-Shaped Wetland remains connected to Stream 2e, despite the temporary presence of a crossing. This is the last revision to the CDA prior to the commencement of the hearing. During the hearing, IMC submitted modifications of the mining and reclamation activities, and DEP agreed to all of these modifications. During the hearing, DEP proposed modifications of the mining and reclamation activities, and IMC agreed to all of these modifications. These modifications, such as identifying the annual hydroperiod of bay swamps as 8-11 months and the final changes to post-reclamation topography, are identified in this Recommended Order and incorporated into all references to the ERP or CRP approval. In general, the ERP addresses wetlands, surface waters, and species dependent upon either, and the CRP addresses uplands and species dependent exclusively upon uplands. Later sections of the Recommended Order will discuss the ERP, the CRP approval, and the WRP modification. All of the maps, figures, and tables incorporated into the ERP, CRP approval, or WRP modification are contained in the CDA. Overview of Mined Areas, No-Mine Areas, and Reclaimed Areas The ERP permits IMC to mine 3477 acres and requires IMC to reclaim 3477 acres. The ERP recognizes that IMC will not mine 721 acres, which is about 17 percent of the 4197-acre site. (Most acreage figures are rounded-off in this Recommended Order, so totals may not always appear accurate.) Although various exhibits and witnesses sometimes refer to the no-mine area as the preserved area, this label is true only insofar as IMC will "preserve" the area from mining. However, post-reclamation, the area is not preserved. After the property reverts to the Carlton-Smith family, it will return to its historical agricultural uses, subject to a Conservation Easement that is discussed below. Table 12A1-1 is the Mine Wide Land Use Analysis. Table 12A1-1 identifies, by acreage, each use or community presently at OFG, such acreage proposed to be mined, and such acreage proposed to be reclaimed. When not listed separately, this Recommended Order combines all non-forested wetlands, including mostly herbaceous wetlands and shrub marshes, into the category of herbaceous wetlands. Shrub marshes presently account for only 4.7 acres at OFG and will account for only 10.3 acres, post-reclamation. Ignoring 35 acres that presently are barren or in transportation or urban uses, the present uses or communities of OFG are agricultural (2146 acres), upland forests (904 acres), rangeland (510 acres), forested wetlands (380 acres), herbaceous wetlands (208 acres), and open water (15 acres). Nearly all of the existing agricultural uses are improved pasture (1942 acres); the only other use of significance is 165 acres of citrus. Well over half of the area to be mined is agricultural. Over half of the area to be mined is improved pasture (1776 acres, or about 51 percent of the mined area). Adding the citrus groves, woodland pasture, and insignificant other agricultural uses to the area to be mined, the total of agricultural uses to be mined is 1976 acres, or 57 percent of the mined area. The two most prevalent upland forest communities presently at OFG are sand live oak and pine flatwoods; the next largest community, hardwood-conifer mixed, accounts for about half of the size of sand live oak or pine flatwoods. These upland forests contribute about one-fifth of the area to be mined (731 acres, or 21 percent of the mined area). Cumulatively, then, agricultural land and upland forests constitute 78 percent of the mined area. For all practical purposes, all of the rangeland presently at OFG is palmetto prairie. This unimproved rangeland contributes a little less to the mining area that do upland forests; mining will consume 475 acres of rangeland, which is 14 percent of the mined area. Cumulatively, then, agricultural land, upland forests, and native rangeland will constitute 92 percent of the mined area. The addition of the remaining upland uses--25 acres of roads, 5 acres of barren spoil areas, and one acre of residential--results in a total of 3213 acres, or still 92 percent, of the 3477 acres to be mined. This leaves eight percent of the mined area, or 264 acres, as wetlands and other surface waters. As noted above, the wetlands are divided into forested and herbaceous wetlands. Forested wetlands will contribute 82 acres, or about two percent, of the mined area. Nearly all of the forested wetlands presently at OFG are divided almost equally among mixed wetland hardwoods, hydric oak forests, and bay swamps. Bay swamps total 104 acres. In terms of the forested wetlands present at OFG, mining will consume mostly mixed wetland hardwoods, of which 43 acres, or 36 percent of those present at OFG, will be mined. Mining will eliminate only nine acres, or nine percent, of bay swamps and six acres, or six percent, or hydric oak forests. Mining will eliminate a large percentage-- 67 percent--of hydric pine flatwoods present at OFG, but this is 12 acres of the 18 existing acres of this wetland forest community. Herbaceous wetlands will contribute 168 acres, or about five percent, of the mined area. Nearly all of the herbaceous wetland communities are wet prairies (108 acres) and freshwater marshes (81 acres). Mining will eliminate 95 acres, or 88 percent, of the wet prairie present at OFG, and 67 acres, or 83 percent, of the freshwater marshes present at OFG. IMC will mine 13.5 acres of open water, which consists primarily of cattle ponds and ditches. The only natural water habitat is natural streams, which total 2.2 acres. IMC will mine 0.9 acres of natural streams. Also incorporated into the ERP, Table 13A1-5, provides another measure of the impact of mining upon natural streams. According to Table 13A1-5, IMC will mine 2.8 acres of the 25.6 acres of natural streams. As noted in Table 13A1-5, reclamation of streams, which is discussed in detail below, is based on length, not acreage, and, under the circumstances, a linear measure is superior to an areal measure. Table 12A1-1 also provides the acreage of reclaimed community that IMC will construct. These habitats or uses are listed in the order of the size of the area to be reclaimed, starting with the largest. For agriculture, IMC will reclaim 1769 acres after mining 1976 acres. Adding the 170 acres of agriculture in the no-mine area, agricultural uses will total, post-reclamation, 1939 acres. For upland forest, IMC will reclaim 1055 acres after mining 731 acres. Adding the 173 acres of upland forest in the no-mine area, upland forest habitat will total, post- reclamation, 1227 acres. For rangeland, IMC will reclaim 323 acres after mining 475 acres. Adding the 35 acres of rangeland in the no- mine area, rangeland will total, post-reclamation, 358 acres. For herbaceous wetlands, IMC will reclaim 217 acres after mining 168 acres. Adding the 39 acres of herbaceous wetlands in the no-mine area, herbaceous wetlands will total, post-reclamation, 256 acres. For forested wetlands, IMC will reclaim 106 acres after mining 82 acres. Adding the 298 acres of forested wetlands in the no-mine area, forested wetlands will total, post-reclamation, 404 acres. ERP ERP Specific Condition 3 requires IMC to provide to DEP for its approval the form of financial responsibility that IMC chooses to use to secure performance of its mitigation costs. IMC may not work in any wetland or surface water until DEP has approved the method by which IMC has demonstrated financial responsibility. DEP shall release the security for each individual wetland that has been released by BMR, pursuant to Specific Condition 17. The escrow agreement is a two-party contract between IMC and J.P. Morgan Trust Company, as escrow agent. The escrow agreement acknowledges that IMC will transfer cash or securities to the escrow agent in the stated amount, representing IMC's obligations to perform ERP mitigation plus the ten percent add- on noted in the Conclusions of Law. If IMC fails to comply with the ERP or Section 3.3.7 of the SWFWMD Basis of Review, the escrow agent is authorized to make payments to DEP, upon receipt of DEP's written certification of IMC's default. The escrow agreement may be amended only by an instrument signed by IMC, DEP, and the escrow agent. ERP Specific Condition 3 requires IMC to calculate the amount of the security based on Table B, which is the Wetland Mitigation Financial Summary. Table B lists each forested and wetland community from Table 12A1-1, the acreage for each community, and the unit costs per acre of mitigation. The acreage figures are the acreage figures on Table 12A1-1. The unit costs per acre are as follows with the FLUCFCS codes in parentheses: herbaceous (641, 643)--$7304; forested bay wetland (611)--$11,692; other forested wetland (613, 617, 619, 630)--$11,347; shrub (646)--$8780; hydric palmetto prairie (648)--$9231; and (hydric) pine flatwoods (625)--$10,568. Table B also shows 10,141 feet of streams to be reclaimed at a cost per foot of $37, stream macroinvertebrate sampling at a total cost of $48,100, and water quality/quantity monitoring at a cost of $293,000. Adding the costs of wetland and stream reclamation, sampling, and monitoring, plus ten percent, Table B calculates the mitigation liability of IMC as $3,865,569. IMC has agreed to increase this amount for the reclamation of Stream 3e?. ERP Specific Condition 4 requires IMC to submit to BMR annual narrative reports, including the actual or projected start date, a description of the work completed since the last annual report, a description of the work anticipated for the next year, and the results of any pre-mining surveys of wildlife and endangered or threatened species conducted during the preceding year. The reports must describe any problems encountered and solutions implemented. ERP Specific Condition 5 requires IMC to submit to BMR annual hydrology reports. Relative to initial planting, IMC shall submit to BMR vegetative statistic reports in year 1, year 2, year 3, year 5, and every two years after year 5, IMC must submit to BMR vegetation statistic reports. ERP Specific Condition 6 addresses water quality in wetlands or other surface waters adjacent to, or downstream of, any site preparation, mining, or reclamation activities. Specific Condition 6.a requires, prior to any clearing or mining, IMC to sever the areas to be disturbed from adjacent wetlands. IMC severs or isolates the mining area when it constructs the ditch and berm adjacent to, but upland of, the adjacent wetlands not to be mined. Figure 14E-1 portrays the elements of the ditch and berm system as all outside of the no-mine area (or OFG property line, where applicable). In the illustration, from the mine cut toward the no-mine area (or OFG property line), IMC will construct the ditch, the 15-foot wide berm, the monitoring wells, and the silt fence. ERP Specific Condition 6.b requires the ditch and berm system to remain in place until IMC has completed mining and reclamation, monitoring indicates that no violation of "State Water Quality Standards" are expected, and DEP has determined that "the restored wetlands are adequately stabilized and sufficiently acclimated to ambient hydrological conditions." DEP's decision to allow the removal of the ditch and berm system shall be based on a site inspection and water quality monitoring data. Upon removal of the ditch and berm system, the area that had been within the ditch and berm system shall be restored to grade and revegetated according to the methods and criteria set forth in Specific Condition 14. ERP Specific Condition 6.c requires IMC to use best management practices for turbidity and erosion control to prevent siltation and turbid discharges in excess of State water quality standards, under Chapter 62-302, Florida Administrative Code. Specific Condition 6.d requires IMC daily to inspect and maintain its turbidity-control devices. If the berm impounds water above grade, IMC must daily visually inspect the integrity and stability of the embankment. ERP Specific Condition 7 requires that IMC implement a baseline monitoring program for surface water and groundwater and continue the program through the end of the mine life. The data from this program shall be included in the annual narrative reports described in Specific Condition 4. The locations of the sampling sites are depicted on Map D-4. ERP Specific Condition 7.a identifies three monitoring stations, which are in Horse Creek just upstream of the stream's entrance onto OFG (and possibly just upstream of the offsite confluence of Stream 2e with Horse Creek), in Horse Creek at State Road 64, and in West Fork a short distance upstream of its confluence with Horse Creek. Before and during mining, IMC must monthly monitor 18 parameters, including temperature, pH, dissolved oxygen, total suspended solids, conductivity, turbidity, color, total phosphorous, ammonia, nitrate/nitrite, and chlorophyll a. During mining, IMC must semi-annually monitor 11 additional parameters, including alkalinity, biological oxygen demand, chloride, and iron. ERP Specific Condition 7.b identifies one monitoring station, which is at the junction of Stream 6w and Horse Creek. Before and during mining, IMC must monthly monitor ten parameters, including temperature, pH, dissolved oxygen, total suspended solids, conductivity, and color. During mining operations, IMC must semi-annually monitor the same 11 additional parameters described in Specific Condition 7.a. ERP Specific Condition 7.c identifies two clusters of monitoring wells, one located near the offsite confluence of Stream 2e with Horse Creek and one located near the collecting station on West Fork near its junction with Horse Creek. During mining operations, IMC must semi-annually monitor 23 parameters, including pH, temperature, conductivity, alkalinity, total phosphorous, color, turbidity, chloride, iron, and nitrate/nitrite. ERP Specific Condition 8 requires IMC immediately to cease all work contributing to turbidity violations of "State Water Quality Standards established pursuant to Chapter 62-302, F.A.C." Specific Condition 8 requires IMC to stabilize all exposed soils contributing to the violation, modify work procedures that were responsible for the violation, repair existing turbidity-control devices, and install more such devices. Specific Condition 8 requires IMC to notify BMR within 24 hours of the detection of any turbidity violation. ERP Specific Condition 9 requires IMC to report all unauthorized releases or spills of wastewater or stormwater in excess of 1000 gallons per incident to BMR, as soon as practicable, but not later than 24 hours after detection. ERP Specific Condition 10 addresses water levels and flows in wetlands and other surface waters adjacent to, and downstream of, any site preparation, mining, and reclamation activities. Prior to any clearing or mining activities adjacent to no-mine wetlands and other surface waters, Specific Condition 10.a requires IMC to install monitoring wells and staff gauges and commence monitoring water levels, as required by ERP Monitoring Required, which is a part of the ERP that is discussed below. IMC shall monitor water levels in each of the no-mine streams at the point that it intercepts the 100-year floodplain of Horse Creek. ERP Specific Condition 10.a provides: During mining, recharge ditches adjacent to no-mine areas shall be charged with water or recharge wells shall be installed to maintain base flows and/or minimize stress to the vegetation in the preservation areas. Water levels in the recharge ditches shall be maintained at levels sufficient to support the normal seasonal water level fluctuations in the wetlands as determined from the baseline monitoring included in Table MR-1. Under ERP Specific Condition 10.a, prior to any clearing or mine activities, IMC must install monitoring wells and staff gauges and monitor water levels, as specified in the ERP Monitoring Required. IMC must daily monitor water levels in each of the no-mine streams at the point of its interception with the 100-year floodplain of Horse Creek. During mining, IMC shall charge recharge ditches with water or install recharge wells to maintain base flows and minimize stress to vegetation in no-mine areas. IMC must maintain water levels in the recharge ditches at levels sufficient to support the normal seasonal water level fluctuations in the wetlands, as determined from the baseline monitoring included in Table MR-1, which is described below. IMC must daily check the water levels in the recharge ditches, record this information in logs, and make these logs available to BMR during its quarterly inspections. IMC shall monthly inspect the water levels in adjacent no-mine wetlands and notify BMR in writing if these wetlands show signs of stress. If adjacent no-mine wetlands become stressed, upon DEP's approval, IMC will take additional actions, such as altering mining and reclamation procedures, modifying the recharge ditch, providing additional sources of water, and conducting additional monitoring. During the hearing, IMC hydrologist and engineer Dr. John Garlanger testified: "[IMC] will install a recharge well system along the preserved areas." (Tr., p. 2800) The parties treated recharge wells as a part of the ditch and berm system, both at the hearing and in their proposed recommended orders (DEP, paragraph 75; Charlotte County, paragraph 575; and IMC, paragraph 339.) However, Specific Condition 10.a imposes no such obligation upon IMC, nor does any other provision in the ERP or the CDA. The above-quoted provision of Specific Condition 10.a identifies recharge wells as an alternative. The other option in Specific Condition 10.a is to charge the ditches with water. This condition is confusing because it poses, as alternative requirements, one option of a specific effect--i.e., recharged ditches--and the other option of a means of achieving that effect--i.e., recharge wells. The objective is sufficient water in the ditch. The means of charging the ditch would appear to be limited to direct rainfall, pumping water from the mine cuts, diverting water from the mine recirculation system, or pumping water from the intermediate or Floridan aquifer through recharge wells; at least the first two of these charging options are already incorporated into the OFG ditch and berm system. Confirming that recharge wells are optional is Figure 14E-1, which labels the recharge well depicted at the bottom of the ditch as "Alternate--Recharge Well." Figure 14E-1 illustrates a pump forcing the water from the bottom of the deeper mine cut to the bottom of the recharge ditch. (Figure 14E-1 also illustrates that--in order, running from the mine cut toward the no-mine area (or OFG property line)--the ditch, the 15-foot wide berm, the monitoring wells, and the silt fence will all be located outside of the no-mine area (or within OFG).) ERP Specific Condition 10.b prohibits reductions in downstream flows from the project area that will cause water quality violations in Horse Creek or the degradation of natural systems. IMC shall monitor surface water levels continuously at the above-described points at State Road 64 and West Fork and monthly near the above-described junction of Stream 2e and Horse Creek. IMC shall monitor monthly at the above-described clusters of monitoring well locations and at piezometers located across Section 9 from the no-mine area into the uplands to the east, in the West Lobe and the adjacent uplands to the west, in the East Lobe and the adjacent uplands to the east, and in Horse Creek about one-quarter mile from the southern border of OFG. IMC shall daily monitor rainfalls at a rain gauge near the junction of Stream 2e and Horse Creek. IMC shall report the results of the monitoring in the reports required in Specific Condition 4. ERP Specific Condition 11 requires IMC to obtain authorization from FWC before relocating gopher tortoises or disturbing their burrows. ERP Specific Condition 11 also requires IMC to relocate gopher frogs and other commensals to FWC-approved sites before clearing. At the time of the hearing, FWC had not yet approved IMC's plan to relocate gopher tortoises, but this approval was expected shortly. ERP Specific Condition 12 requires IMC to complete mining, filling, and reclamation activities generally in accordance with the schedule stated in this condition. Specific Condition 12.a prohibits IMC from commencing severance or site preparation more than six months prior to mining, except as approved by DEP for directly transferring topsoil or muck to a contoured mitigation site. IMC must complete final grading, including muck placement, not later than 18 months after the completion of mining operations, which include the backfilling of sand tailings. IMC must conduct its hydrological assessment in the first year after contouring. ERP Specific Condition 12.a provides a timetable for work in wetlands and other surface waters. IMC may not commence severance or site preparation more than six months prior to mining. IMC shall complete final grading, including muck placement, not more than 18 months after the completion of mining operations, including backfilling with sand tailings. IMC shall complete Phase A planting, which is of species that tolerate a wide range of water levels, not more than six months after final grading or 12 months after muck placement. IMC shall conduct the hydrological assessment in the initial year after coutouring. IMC shall complete Phase B planting, which is of species that tolerate a narrower range of water levels, within 12 months after the hydrological assessment and Phase C planting, which is shade-adapted groundcover and shrubs, as well as additional trees and shrubs required to meet the density requirements of ERP Specific Condition 21 [sic; probably should be ERP Specific Condition 16], at least two years prior to release of forested wetlands. ERP Specific Condition 12.b provides that IMC shall clear, contour, revegetate, and reconnect wetlands and watersheds as shown in Tables 3AI-6A and 3AI-10A, Maps H-1, H-9, and I-6, and Figures 13B-8, 13A5-1, and CL-1. Table 3AI-6A lists each reclaimed wetland by number, the last year in which it will be disturbed, the last year in which it will be mined, the year in which grading will be completed, the year in which revegetation will be completed, and the number of years between mining or disturbance and reclamation and revegetation. The span of years between mining or disturbance and reclamation ranges from three (two wetlands) to eight (six wetlands). Table 3AI-10A is the Reclamation Schedule Summary. The table identifies four reclamation units in the Horse Creek sub-basin, one reclamation unit in the West Fork sub-basin, and one reclamation unit in the Brushy Creek sub-basin. For each reclamation unit, Table 3AI-10A shows the period of mining, period of mine operations, period for contouring, and period for revegetation. These years are relative: mining runs four years, mine operations run seven or eight years (starting one year after mining starts), contouring runs seven or eight years (starting within one year of the end of mining), and revegetation runs five or six years (starting one year after the start of contouring). Map H-1 is the Mine Plan. Map H-1 assumes four draglines will operate in OFG for five years of active mining. IMC's tentative plan is first to mine the west side of OFG, which is nearer the Ft. Green Mine at which the draglines are presumably deployed at present, and then to mine adjacent mining blocks. For instance, IMC would mine the northwest corner of Section 4 in Year 1, the southwest corner of Section 4 in Year 2, the northeast corner of Section 4 in Year 3, and the southeast corner of Section 4 in Year 4 before removing the dragline south of Section 4 to mine an unmined area in Year 5. Map H-1 depicts the ditch and berm system running continuously along the edge of the no-mine area from the north end of OFG, south along the no-mine borders that trace the east and west edges of the 100-year floodplain of Horse Creek, to their southern termini. On the east floodplain, the ditch and berm system turns east at the northwest corner of Section 21, near the Carlton cutout, runs to the easternmost extent of OFG, turns north to the northeast corner of Section 4, and runs to the northwest corner of Section 4, where the ditch and berm system ends. On the west floodplain, the ditch and berm system runs to the southernmost extent of OFG near its confluence with West Fork, turns west and north, as it traces the border of OFG along Sections 29, 20, and 19, where it ends at a point about one-quarter mile from the northern boundary of Section 19. For the areas closest to the no-mine area, Map H-1 also depicts the direction of the mine cuts and, inferentially, the spoil piles. These cuts and piles are generally perpendicular to the direction of Horse Creek. Figure 2AI-24 displays the locations of the six reclamation units identified in Table 3AI-10A. The West Fork and Brushy Creek reclamation units occupy the sub-basins bearing their names, so they are at the western and eastern edges, respectively, of OFG. The HC(1) reclamation unit is almost all of Section 4. According to Table 3AI-10A, IMC will mine this reclamation unit from 2006-09, contour it from 2009-15, and revegetate it from 2010-15. Combining the information from Map H-1 for the Stream 1e series, all of it but Stream 1ee, which is the most-downstream stream, will be mined in the first year of the sequence, and Stream 1ee will be mined in the second year. However, Stream 1ee will be disrupted longer because a 200 foot- wide dragline access corridor runs across it, just upstream of the Heart-Shaped Wetland, as shown on Map H-1 and Figure RAI 514-1. Map H-9 is the Tailing Fill Schedule. The tailings are the sand tailings; the clay tailings, which are called waste clays, are deposited in the CSAs. Sand tailings are backfilled into mine cuts starting in year 3, and the process is completed in year 7. Map H-9 reproduces the blocks shown on Map H-1, except for one change in Section 20, and adds two years to each block. An explanatory note on Map H-9 states that IMC will backfill and grade the upland areas immediately west of the West Lobe and east of the East Lobe with sand tailings within one year of mining. Map I-6 is the Post-Reclamation Streams. This Recommended Order addresses streams in detail below. As already noted, at the hearing, DEP identified Stream 3e? as another stream eligible for restoration under the eligibility criterion used in these cases, and IMC has agreed to restore this stream and add it to Map I-6. Figure 13B-8 is the Post-Reclamation Connection Status of the reclaimed wetlands. A map, Figure 13B-8 depicts connected wetlands, isolated wetlands, isolated wetlands that are ephemeral, and cattle ponds. Figure 13A5-1 is the Identification of Created Wetlands. Also a map, Figure 13A5-1 assigns numbers to each reclaimed wetland and identifies the habitat to be reclaimed. These two figures provide a good basis for comparing the reclaimed wetlands to the existing wetlands by type, location, size, and proximity to streams. These two figures confirm the removal of cattle ponds to points considerable distances from Horse Creek, streams, riparian wetlands, or even most isolated wetlands. Thirteen cattle ponds totaling 7.6 acres will be reclaimed on OFG. Generally, these cattle ponds are located as far away as possible from the 100-year floodplain of Horse Creek. Except for the cattle ponds and three connected reclaimed wetlands that drain to the West Fork or Brushy Creek, all of the connected reclaimed wetlands will be connected to Horse Creek, usually by streams, but in several cases directly to the 100-year floodplain of Horse Creek. Connected reclaimed wetlands include the headwater and intermittent wetlands of the Stream 1e series (E003/E006/E007/E008/E009/E013/E015/E016), the headwater wetlands of Stream 3e (E022/E023/E024), and the headwater wetlands of Stream 3e? (E018/E019/E020). The decision at the hearing to reclaim Stream 3e? is not reflected on Figure 13A5-1 or 13B-8, which depicts as isolated the large wetland to the northeast of the headwater wetland of Stream 3e. The Stream 1e series reclaimed wetlands complex totals 44.9 acres. The Stream 1e series existing wetlands complex covers a smaller area, perhaps 10 fewer acres. However, the reclaimed wetlands will be somewhat simpler. IMC will reclaim one freshwater marsh (E006) where five presently exist (G108, G115, G125, G126, and G129). IMC will replace two gum swamps (G123 and G121) and two wetland forested mixed (G102 and G132) with the predominant mixed wetland hardwoods (E003). IMC will replace one of the freshwater marshes with hydric oak forest. Just west of the riparian corridor, IMC will replace a wet prairie (G119) with a little hydric flatwoods (G119A) with another freshwater marsh (E014) and will mine a small wet prairie (G028) to the east of the corridor and not replace it with any wetland. On the plus side, IMC will add two very small bayheads (E008--0.7 acres and E013--0.7 acres) to the west side of the corridor and will relocate and expand a large hydric flatwoods (G107) that is beside a small unreclaimed community--a hydric woodland pasture (G105). The reclamation of the headwater of Stream 3e better re-creates the existing wetlands, in size and type of community. The only change is the conversion of a shrub marsh (G134) in the center of the wetland to a freshwater marsh (E023), essentially enlarging the freshwater marsh (G135) presently in the center of this wetland. The size of the existing and reclaimed wetlands associated with the riparian corridor of Stream 3e and its headwater wetland appear to be the same. The reclamation of the headwater of Stream 3e? provides a more complicated complex of wetland communities than presently exists at that location. The ditch (G019) will be replaced with a natural stream, whose riparian corridor is not depicted due to the fact that IMC agreed to reclaim Stream 3e? at the hearing; however, the reclaimed wetland corridor undoubtedly will be more functional than the present ditch. Presently, the headwater wetland is a large freshwater marsh (G016) fringed by mixed wetland hardwoods (G014) and a wet prairie (G105). A cattle pond (G017) is in the wet prairie, and another cattle pond is at the point where Stream 3e? forms. The north side of this wetland is heavily ditched. The reclaimed headwater wetland, which will be about the same size as the present wetland, will consist of an interior shrub marsh (E019) and freshwater marsh (E020) and a wet prairie fringe (E018). A replacement cattle pond (E026) is moved farther away from the headwater wetland. Reclamation around the Heart-Shaped Wetland results in a more complicated array of wetlands than presently exists. Three ephemeral wet prairies (E021, E026, and E031) will be reclaimed north and west of the Heart-Shaped Wetland and Stream 2e where no wetland exists presently. An isolated freshwater marsh (E034) will be reclaimed south of the Heart-Shaped Wetland where no wetland exists today. Two ephemeral wet prairies (E026 and E037) totaling 4.5 acres will be reclaimed south and east of Stream 2e, close to the no-mine area surrounding Streams 6e and 7e, again where no wetland exists presently. However, IMC will not reclaim a hydric flatwoods (G157) connected to the south border of the headwater wetland of Stream 8e. Reclamation will relocate the headwater wet prairie of Stream 9w closer to Horse Creek. Mining two wet prairies (G047 and G048) and reclaiming them with a single wet prairie of at least the same size (W003--20.7 acres), IMC will also reclaim the downstream portion of Stream 9w with a mixed wetland hardwoods and add a gum swamp (W005--2.4 acres) at the end of Stream 9w, as it enters the no-mine corridor of Horse Creek. IMC will also reclaim an ephemeral wet prairie (W002) just north of the reclaimed segment of Stream 9w. Across Horse Creek from its junction with Stream 9w, IMC will mine the eastern half of a roughly five-acre bayhead (G166), reclaiming the mined part of the bayhead with a mixed wetland hardwoods (E048--6.0 acres). However, where no wetlands presently exist, IMC will reclaim an ephemeral wet prairie (E044) and a larger wetland consisting of a freshwater marsh (E047--9.0 acres) fringed by an ephemeral wet prairie (E046--7.1 acres). In RAI-173 in the CDA, IMC explains that no-mine lines initially ran through some wetlands due to the limited level of detail available in the small scale maps used at the time. IMC representatives have discussed each such bifurcation with DEP biologist Christine Keenan, and IMC made adjustments that satisfied DEP, obviously not eliminating all of the bifurcated wetlands. Alluding to the impracticability of eliminating all bifurcated wetlands, IMC notes in its response to the request for additional information: "A small feature protruding into a mining area is one of the more difficult features to effectively mine around. It requires significant extra distance of ditch and berm systems, which both increases costs and results in greater losses of phosphate ore recovery." Subject to two exceptions, the southernmost extent of reclaimed ephemeral wetlands will be close to the Lobes, especially the West and Central Lobes. Eight such wetlands (W021, W015, W017/W018, W019/W020, W012, W013, W016 and W011) will be west of Horse Creek, and three such wetlands will be east of Horse Creek (E057, E061, and E053). (Although the headwater wetland of Stream 7w, W012 is depicted as ephemeral in Figure 13B-8.) Most of these wetlands will be wet prairies. Three of these reclaimed ephemeral wetlands appear to be in the location of existing wetlands (G093/G094, G091/G092, and G090), and the existing wetlands are freshwater marshes fringed with wet prairies, except that the smallest, G090, is a wet prairie. The last reclaimed wetland on the east side of Horse Creek is just north of the Carlton cutout. In reclaiming Stream 5e, IMC will reclaim a small bayhead (E063--1.3 acres) in the middle of the stream's OFG segment. This replaces a wet prairie/hydric oak forest (G204/G205) in the same location and of the same size. On the other side of Horse Creek and to the south of Stream 5e, IMC will reclaim the headwater wetlands of Streams 5w, 4w, 3w, and 2w. The headwater wetland of Stream 5w is a long freshwater marsh (G210) with a small shrub marsh (G207) that drains an elaborate array of agricultural ditches to the west. These ditches shifted some of the drainage that historically entered Stream 4w into Stream 5w. Reclaiming the stream with a wider wetland forested mixed corridor, as it will do for Streams 4w, 3w, and 2w, IMC will expand the headwater wetland by reclaiming a long freshwater marsh (W024--7.9 acres) fringed on its upgradient side by a small wet prairie (W023--2.2 acres). IMC will also remove a cattle pond (G209) presently abutting the center of the freshwater marsh. IMC will reclaim an ephemeral wet prairie (W026) between Streams 5w and 4w, relatively close to the Horse Creek floodplain. Except for a very small ephemeral wet prairie just west of the headwater wetland of Stream 4w and an ephemeral, largely mixed wetland hardwoods reclaimed in the West Fork sub- basin (W041/W042/W043), W026 is the southernmost reclaimed ephemeral wetland on OFG. The pattern of the reclamation of Streams 4w, 3w, and 2w is otherwise identical: each reclaimed stream, in a reclaimed wetland forested mixed corridor, will receive water from reclaimed freshwater marshes of 3.5 to 5.1 acres in size. Presently, Stream 4w has no headwater marsh, instead receiving water from the elaborate ditching scheme described in connection with Stream 5w. Streams 3w and 2w presently receive water from small headwater wetlands, although Stream 2w also receives water from an agricultural ditch. The last major reclamation on the west side of Horse Creek relates to Stream 1w. Alone of all the streams, Stream 1w is an agricultural ditch throughout its length, except for a short segment just upstream from the no-mine area. However, alone of all the streams at OFG, Stream 1w drains a primarily seepage-supported wetland. This well-defined headwater wetland complex comprises, from upstream to downstream, a cattle pond (G505), freshwater marsh (G506), mixed wetland hardwoods (G507), bay swamp (G513), wetland forested mixed (G512), wet prairie (G514), hydric oak forest (G511), and ditch (G512A). Reclaimed, this headwater will be the largest reclaimed bay swamp (W0399-1.2 acres). In addition to the two small bay swamps in the wetland corridor of Stream 1e series, the small bay swamp in Stream 5e, and the Stream 1w headwater bay swamp, the only other bay swamp to be reclaimed on OFG will be a part of a wetland (W037/W036) that will be in the center of Section 19 and drain into the West Fork. The bay swamp component of this wetland will be 4.4 acres and will replace a similarly sized wetland (H008/H009/H009A) with a smaller bay swamp core. Map CL-1 is the Reclamation Schedule. This map identifies the year in which specific areas within OFG will be reclaimed. With two exceptions, Map CL-1 tracks Map H-9, which is the Tailing Fill Schedule, by identifying the same blocks and adding two years to each of them. One exception may be due to the February 19, 2004, and February 26, 2004, revisions of Map H-9. The latter revision changed the year of backfilling part of northwestern Section 20 from year 7 to year 5. Map CL-1 tracks the older version of Map H-9 and provides for reclamation of this area within Section 20 for year 9, not year 7. This means that part of the northwestern Section 20 would remain backfilled, but not revegetated, for four years. This may be an oversight in Map CL-1 because it was last revised January 22, 2004. The other exception concerns the uplands immediately east of the East Lobe. Map H-9 provides for sand tailings for the northern half of this area in year 6 and for the southern half of this area in year 5, but Map CL-1 provides for both areas to be reclaimed in year 7, so the southern half would remain backfilled, but not revegetated, for two years. This may be intentional, as ERP Specific Condition 12.d requires that IMC backfill and contour the two areas upslope of the bayheads in the West and East Lobes within one year after the completion of mining, but nothing in the ERP requires expedited revegetation of these upland areas. ERP Specific Condition 12.b requires IMC to include mining and reclamation schedule updates in the annual reclamation report that it files, pursuant to Chapter 62C-16, Florida Administrative Code. Specific Condition 12.b warns that "significant changes" to these schedules may require a permit modification. ERP Specific Condition 12.c states, in its entirety: "Mine cuts shall be oriented in the direction of ground water flow, generally perpendicular to Horse Creek as shown on Map H-1." The introduction to the January submittal, witnesses, and parties agree that IMC is required to orient the spoil piles in the direction of groundwater only to the extent practicable, so the unconditional language of ERP Special Condition 12.c is inadvertent. ERP Specific Condition 12.d provides that sand tailings placement and final contouring shall be completed within one year after the completion of mining, as shown on Map H-9, in the two areas upslope from the unmined bayheads (G178 and G197), which are in the East and West Lobes. ERP Specific Condition 13 addresses the construction, removal, and revegetation of the pipeline corridor shown on Figure RAI 514-1. This figure depicts a narrow "Mine Access Corridor (Pipelines, Road, Powerlines)" passing at the point that Stream 2e forms at the downgradient end of the Heart-Shaped Wetland. Specific Condition 13 contains seven subsections governing the pipeline corridor to minimize its impact on the wetlands and other surface waters that it crosses. Figure RAI 514-1 also depicts a 200-foot wide "Dragline Walkpath Corridor" that crosses Stream 1ee and Stream 3e within 100 feet of the Heart-Shaped Wetland. No conditions attach to the construction, operation, removal, and reclamation of this area because, unlike the pipeline corridor as it crosses Stream 2e, all of this portion of the dragline corridor will be mined. ERP Specific Condition 14 states that IMC shall restore as mitigation 322 acres of wetlands, as shown in Maps I-1, I-2, I-3, and I-6; Figure 13A5-1; and the post-reclamation cross-sections. Map I-1 is the Post Reclamation Topo. IMC updated this map with several limited changes at the end of the hearing, and DEP accepted the new Map I-1. Comparing Map I-1 with Map C-1, which is the Existing Topography, the post-mining topography substantially replicates the pre-mining topography, although Table 26M-1 reveals a lowering of some of the highest pre-mining elevations, including the highest elevation by eight feet. Maps I-2 and I-3 are, respectively, Post Reclamation Vegetation and Post Reclamation Soils. As noted above, Specific Condition 14 references these maps, but only in connection with the restoration of 322 acres of wetlands. Maps I-2 and I-3 cover all of OFG, so they cover wetlands and other surface waters, which are properly the subject of an ERP, and uplands, which are properly the subject of a CRP approval. Naturally, the ERP does not incorporate the all of Maps I-2 and I-3 because they include all of the uplands. Unfortunately, as discussed in the next section, the CRP approval likewise fails to obligate IMC to reclaim the uplands in accordance with Map I-2 and the upland soils in accordance with Map I-3. This omission is inadvertent, so the Recommended Order will assume that IMC will reclaim the uplands as depicted in Map I-2 and the upland soils as depicted in Map I-3. Although the upland portions of Maps I-2 and I-3 should be discussed in the next section, they will be discussed in this section because the CRP approval fails to incorporate them and discussing both maps in one place allows for a more coherent presentation. Map I-2 is the Post Reclamation Vegetation. Map I-2 depicts the post-reclamation upland and wetland vegetation on OFG. This map reveals wide edges of roughly one-quarter to one- half mile of reclaimed improved pasture on the east and west edges of OFG. The core of OFG is Horse Creek and its 100-year floodplain, which are always within, but do not always define, the no-mine area. Between the no-mine area and the reclaimed improved pasture are the reclaimed wetlands described above and larger area of reclaimed uplands described below. Map I-2 and Map F-1, which is Pre Mining Vegetation, allow a comparison, by community, location, and area, of reclaimed uplands with existing uplands. In broad overview, IMC will reclaim everything in Section 4 outside the Heart-Shaped Wetland, which is the northernmost extent of the no-mine area, and Stream 2e. From the point that Horse Creek enters OFG, IMC will reclaim a broad area between the no-mine area and reclaimed improved pasture, south to the Carlton cutout. From this point, reclamation will be limited to the west side of Horse Creek, and the area between the no-mine area and reclaimed improved pasture will narrow progressively for the remaining 1 1/2 miles that Horse Creek runs in OFG. The width of the core, or no-mine area, is generally about 750 feet, but widens considerably at different points. Where Horse Creek enters OFG, the no-mine area is approximately 1750 feet wide, but narrows south of Stream 8e to about 750 feet. From the Central Lobe to the East Lobe, the no-mine area expands to nearly 4000 feet across. Except for another expansion at the West Lobe, the width of the no-mine area south of the Lobes remains at about 750 feet until Horse Creek exits OFG. The riparian wetlands of Horse Creek, which are within the no-mine area, are mixed wetland hardwoods for the first mile that Horse Creek flows in OFG and hydric oak forest for the remainder of Horse Creek's passage through OFG. The width of the non-pasture uplands adjacent to the no-mine area also varies. In describing the width of these upland areas between the no-mine area and the reclaimed improved pasture, this Recommended Order will include the reclaimed wetlands described above. These wetland areas are small, except for the headwater wet prairie of Stream 9w, the headwater freshwater marshes of Streams 5w, 4w, 3w, and 2w, and a few isolated wetlands. On both sides of Stream 2e, IMC will reclaim a band of hardwood conifer mixed of about one-half mile in width. At present, this area is occupied by a smaller area of hardwood conifer mixed and nearly a one-half mile wide band of pine flatwoods or, to the south, pine flatwoods and sand live oak. East of Streams 6e, 7e, and 8e, IMC will reclaim a band 1500-3000 feet wide of hardwood conifer mixed, shrub and brushland, and sand live oak, between the no-mine area and the reclaimed improved pasture. This replaces a broader area of pine flatwoods, sand live oak, palmetto prairie, and xeric oak. From Stream 8e south, IMC will reclaim uplands on both sides of Horse Creek. At this point, the reclaimed area between the no-mine area and the reclaimed improved pastures measures about 1750 feet wide on the west of Horse Creek and about 2000 feet wide on the east of Horse Creek. Including the no-mine area in the center, these reclaimed areas average about one-mile wide south to the Lobes. From Stream 8e south to the East Lobe, IMC will reclaim largely hardwood conifer mixed. This replaces a large citrus grove, a larger area of improved pasture, and three smaller areas of palmetto prairie. On the west side of Horse Creek, the vegetation is more varied, both at present and as reclaimed. North of Stream 9w, IMC will reclaim a large palmetto prairie, a sizeable area of sand live oak, and a small area of temperate hardwood. South of Stream 9w, IMC will reclaim a large area of hardwood conifer mixed, areas of pine flatwoods, sand live oak, and palmetto prairie, and a small area of temperate hardwood. The uplands surrounding Stream 9w presently consist of improved pasture along the downstream half of the conveyance and palmetto prairie and sand live oak along and near its upstream reach. South of Stream 9w are a large area of improved pasture, pine flatwoods, and sand live oak and two smaller areas of palmetto prairie. The combination of no-mine area and reclaimed area, exclusive of reclaimed improved pasture, attains its greatest width--about 10,000 feet--from the western edge of the West Lobe to the eastern edge of the East Lobe, although this includes a 1000-foot strip of improved pasture between the bayhead in the East Lobe and sand live oak east of the bayhead. This area narrows to less than 6000 feet, just north of the Carlton cutout. South of this point, at which the reclaimed upland habitat will be found only on the west side of Horse Creek, the total width of the no-mine area and reclaimed area east of the reclaimed improved pasture tapers down from a little over 3000 feet to less than 1500 feet at the south end of OFG. Map I-2 also discloses the communities or habitats that will exist, post-reclamation, on OFG. These communities or habitats include those that will be in the no-mine area and those that will be reclaimed. At present, the West Lobe is mostly bayhead, wet prairie, and wetland forested mixed with smaller areas of hydric woodland pasture and shrub marsh. The West Lobe also includes upland communities of palmetto prairie, temperate hardwoods, and pine flatwoods. A large wet prairie extends from the northwest corner of the West Lobe. IMC will reclaim this wet prairie as improved pasture with a small strip of hardwood-conifer mixed. To the west of the West Lobe is a small strip of improved pasture and a large area of hardwood-conifer mixed. IMC will reclaim the improved pasture with hardwood-conifer mixed and sand live oak and most of the hardwood-conifer mixed with sand live oak. The areas surrounding the no-mine area associated with Stream 6w are currently improved pasture; IMC will reclaim these areas as hardwood-conifer mixed. The Central Lobe is mostly bayhead with small areas of wetland forested mixed and wet prairie. Palmetto prairie is also within the Central Lobe, nearer to Horse Creek. IMC will reclaim the areas around the Central Lobe and Stream 7w with hardwood-conifer mixed and some palmetto prairie. At present, the Central Lobe and Stream 7w are surrounded by palmetto prairie and some pine flatwoods with an area of sand live oak to the northwest of the Central Lobe. Unlike the no-mine areas forming the West and Central Lobes, which incorporate insubstantial areas of uplands, the no- mine area forming the East Lobe, like the no-mine area around Streams 6e, 7e, and 8e, incorporates a substantial area of uplands. Upgradient of the large bayhead forming the western half of the East Lobe is the 1000-foot strip of improved pasture, and upgradient of the pasture is a large sand live oak area. IMC will mine the eastern half of this sand live oak area and reclaim it as xeric oak. IMC will mine a small wet prairie presently at the southern tip of the bayhead in the East Lobe and reclaim the area as hardwood-conifer mixed. From the East Lobe south to the Carlton cutout, the reclaimed uplands will consist of a long area of temperate hardwoods abutting the no-mine area and a wider area of hardwood-conifer mixed abutting the temperate hardwoods. This area is presently improved pasture. On the west side of Horse Creek, south of the Carlton cutout, the area outside the no-mine area is presently improved pasture, except for a large palmetto prairie around and south of the headwater wetland of Stream 1w. Between the no-mine area and reclaimed improved pasture, IMC will reclaim palmetto prairie and a small area of hardwood-conifer mixed between the headwater wetlands of Streams 5w and 3w. Map I-3 is the Post Reclamation Soils. The legend classifies the soils by "[moderately well-drained]--greater than 30"; "[poorly drained]--greater than 30"; "[poorly drained]-- less than 30"; "[poorly drained]--stream"; "[very poorly drained]--muck"; and "[very poorly drained--mineral depression]." The references to "30" are the thicknesses, in inches, of sand tailings over overburden. Maps E-1 and E-2 are, respectively, Detailed Existing Soils and General Existing Soils. Comparisons between these two maps, on the one hand, and Map I-3, on the other hand, reveal specifics of the soil-reclamation process. The most distinctive feature of soils present at OFG is the thin band of Felda Fine Sand, Frequently Flooded, that runs down the center of OFG. As always, this reinforces the most distinctive feature of OFG--Horse Creek. However, the Felda Fine Sand extends beyond the Horse Creek floodplains to Stream 2e, the Stream 1e series, and the headwater wetland of Stream 5w. All of these soils are in the no-mine area except at the Stream 1e series and headwater wetland of Stream 5w. A closely related soil underlies the floodplain of the lower end of Stream 6w, which is also in the no-mine area. These are the only locations on OFG with these soils. The Felda Fine Sand is a "poorly drained soil having layers of loamy and/or spodic materials underlying sandy surfaces at least 20 inches thick on streams terraces and floodplains." Exclusive of the loamy or spodic materials, Map I-3 shows that IMC will reclaim the drainage characteristics of this type of soil at the Stream 1e series, but not at the headwater wetland of Stream 5w. IMC will also reclaim this type of soil at Streams 9w, 5w, 4w, 3w, 2w, and 1w. Another distinctive soil, pre-mining, is "moderately well to excessively drained soils having layers of loamy and/or spodic materials underlying sandy surfaces greater than 30 inches thick on gentle upland slopes and rises." Except for a couple of areas at the eastern end of the East Lobe, these soils presently are all outside of the no-mine area. IMC will reclaim these soils, generally in the areas previously described as sand live oak or xeric oak, as well as in a long band along the southern border of the slough associated with Stream 9w and a large area on the west sides of Sections 29 and 20. These areas correspond reasonably well in area and location to the existing soils with the same drainage characteristics. The two most poorly drained soils, pre-mining, are "very poorly drained to poorly drained mineral soils in depressions" and "very poorly drained soils with organic surfaces on low gradient seepage slopes." The latter are exclusively mucky soils, and the former range from mucky fine sand to fine sand. Most of the mucky soils are in the no-mine area, such as in each of the Lobes and along Streams 6e and 7e. IMC will not reclaim with similar soils the three areas with these mucky soils that are outside the no-mine area. The mucky fine soils are more widely distributed outside the no-mine area. The only significant areas of fine mucky sand presently at OFG underlie the Heart-Shaped Wetland, the headwater wetland of Stream 8e, and parts of the West Lobe. IMC will reclaim these mucky fine soils generally in accordance with their present areas and locations. The most significant reductions in area are from the slough of Stream 9w and the northeast corner of Section 4. Except for another category of poorly drained soil and four small areas of a somewhat poorly drained soil--all within the no-mine area--the remaining soil is "poorly drained soils having layers of loamy and/or spodic materials underlying sandy surfaces predominantly greater than 30 inches thick primarily on gently sloping uplands." The reclaimed counterpart of this poorly drained soil occupies the largest part of OFG, post-reclamation. This represents a substantial expansion of coverage of this type of soil, mostly at the expense of "poorly drained soils having layers of loamy and/or spodic materials underlying sand surfaces less than 30 inches thick primarily on gently sloping uplands." Map I-6 is the Post Reclamation Streams. These are addressed below. Figure 13A5-1 is the Identification of Created Wetlands. These wetlands have already been discussed. ERP Specific Condition 14 states that IMC shall reclaim wetlands in accordance with the schedule contained in Table 3AI-6A, which has been discussed. Specific Condition 14 lists various requirements applicable to the wetlands that IMC will create. ERP Specific Condition 14.a requires IMC to remove "suitable topsoil" prior to mining wetlands. IMC must time the clearing of topsoil donor sites and reclaiming of other sites so that it optimizes the opportunities for the direct transfer of topsoil, without any intervening storage time. If IMC must remove wetland topsoil more than six months before it will be spread at a reclamation site, IMC must store the topsoil in such a way as to minimize oxidation and colonization by nuisance species. Specific Condition 14.a encourages IMC to relocate any endangered or threatened plant species to appropriate mitigation sites. ERP Specific Condition 14.b requires IMC to grade reclaimed forested wetland areas after backfilling them with sand tailings and/or overburden and cap them with "several inches of wetland topsoil." IMC shall use direct transfer of topsoil and live materials, such as stumps, shrubs, and small trees, where feasible. However, Specific Condition 14.b states in boldface: "All reclaimed bay swamps shall receive several inches of muck directly transferred from forested wetlands approved for mining." Specific Condition 14.b provides that wetland topsoil should be reasonably free of nuisance and exotic plant species before application to wetland mitigation areas. ERP Specific Condition 14.c requires IMC to grade reclaimed herbaceous and shrub marsh wetland areas after backfilling them with sand tailings and/or overburden and cap them with "several inches of wetland topsoil when available." Specific Condition 14.c provides that wetland topsoil should be reasonably free of nuisance and exotic plant species before application to wetland mitigation areas. ERP Specific Condition 14.d requires IMC to design marshes and wet prairies "to maintain the diversity of community types that existed prior to mining in order to support a wide range of wildlife species including birds, reptiles, and amphibians." Specific Condition 14.d requires IMC to reclaim marshes and wet prairies with variations in hydroperiod and slope "to provide the greatest diversity of available habitat," with marsh hydroperiods ranging from ephemeral through permanently flooded. Specifying a range of slope values, Specific Condition 14.d adds that most marshes shall have slopes gradual enough to support wide transition zones with a diversity of vegetation. ERP Specific Condition 14.d provides that IMC shall construct ephemeral marshes and wet prairies as identified in Figure 13B-8, which, discussed above, addresses the status of individual wetlands as connected, isolated, or isolated and ephemeral. Although not incorporated into the ERP, Table 13A1-4 indicates that IMC will mine 27 of the 29 ephemeral wetlands or 22 of the 27 acres of ephemeral wetlands, but will reclaim 44 ephemeral wetlands totaling 101 acres, as indicated on Table 13A5-1 2AI discussed above. ERP Specific Condition 14.e provides that at least half of all herbaceous and shrub marshes shall be rim mulched with several inches of wet prairie, pine flatwoods, or palmetto prairie topsoil, and IMC shall use direct transfer, where feasible. ERP Specific Condition 14.f requires IMC to use "several inches" of wet prairie, hydric pine flatwoods, or hydric palmetto prairie topsoil for all wet prairie and hydric palmetto prairie areas, and IMC shall use direct transfer, where feasible. However, instead of topsoiling, IMC may use "[o]ther innovative methods" that are likely to produce the same diversity of wet prairie forbs and grasses. ERP Specific Condition 14.g requires IMC to construct, in forested wetlands, hummocks several inches above the wet-season high water line. The hummocks shall be 8-12 feet long and 3-6 feet wide. To increase habitat heterogeneity, IMC shall place brushpiles, logs, and tree stumps in the reclaimed area, which it shall roughly grade in some areas. ERP Specific Condition 14.h requires IMC to construct streams in accordance with the Stream Restoration Plan. Specific Condition 14.h also requires IMC to employ an experienced stream restoration scientist, subject to BMR approval, to provide project oversight and conduct regular inspections during construction and planting. First appearing in the January submittal, the Stream Restoration Plan is a design document that specifies, in detail, the physical characteristics of each reclaimed stream. For each reclaimed stream or stream segment, the Stream Restoration Plan provides detailed information of physical structure; channel planform or shape; hydrologic characteristics in terms of such factors as storage, conveyance, and attenuation; geomorphic characteristics such as the substrate and floodplain soil types and the effects of flows upon these materials; vegetation along the stream corridor, including the addition of snags and debris dams to re-create natural microhabitats; construction supervision; and monitoring. The Stream Restoration Plan focuses upon the design of the basin, reach, and microhabitat of each reclaimed stream. For microhabitat, the Stream Restoration Plan promises that: the ecology of most of the reaches is expected to be improved through reclamation. For all reaches except 1e and 3e (which are wholly situated in generally native land cover), the forested riparian zone will be substantially increased since improved pasture adjacent to the stream channels will [be] replaced with forested canopy. Acknowledging the importance of small headwater streams to the overall integrity of a large watershed, the Stream Restoration Plan recognizes the hydrological and biological functions of the tributaries and their riparian wetlands--namely, flood conveyance, attenuation, and storage and aquatic and wetland habitat. Among other things, the Stream Restoration Plan repeatedly stresses the importance of achieving "rapid closure of the riparian canopies." In addition to providing habitat, a riparian canopy reduces solar heating of the stream, thus lowering the water temperature and minimizing weedy vegetation on the stream banks. Among the effects of lowering the water temperature is lowering the amount of water lost to evaporation. The installation of trees along and sometimes within the reclaimed channels will facilitate the rapid development of root systems to stabilize the substrate and provide submerged root structure, which is an important microhabitat for macroinvertebrates and fish. Mature trees in the floodplain also provide additional attenuation. In addition to serving as a design document to govern the reclamation of mined streams on OFG, the Stream Restoration Plan is also a descriptive document, detailing the relevant characteristics of the streams presently at OFG. The Stream Restoration Plan uses several classifications that are useful in analyzing streams and their functions. These classifications include the Rosgen classification of stream shape (the Rosgen classification of bottom sediment is irrelevant because all existing and reclaimed streams at OFG have sandy bottoms), the Strahler convention of stream orders, the duration of flow, and the channel morphology. The Rosgen classification of stream shape divides the streams at OFG into type E and type C. Type E streams are well- incised and hydraulically efficient; their width-to-depth ratios are less than 12:1. Shallower and wider than type E streams, as these values relate to each other, type C streams at OFG are often associated with small wetland riparian zones and depressions, which are absent from type E streams at OFG. The Strahler convention classifies streams based on their relative location in the upstream order of conveyances with the most-upstream streams classified as first-order streams. Except for Stream 2e and the Stream 1e series downstream of Streams 1eb and 1ef, all of the tributary streams on OFG are first-order streams, meaning essentially that they are the most upstream channelized conveyance receiving runoff or groundwater flow. Streams 2e, 1ec, 1ed, and 1ee are second- order streams, meaning that they receive flow from at least two first-order streams. In terms of flow, perennial streams receive groundwater flow throughout the year in most years, ephemeral streams flow sporadically in response to rain and typically lack groundwater inputs, and intermittent streams flow during the wet season in response to groundwater and rain inputs and during the dry season sporadically in response to rain inputs only. Most, if not all, of the tributary streams on OFG are intermittent. However, almost all of the streams cease to flow due to low rainfall and overflow their banks due to very high rainfall. Even Horse Creek dried up at State Road 64 during the low-rain conditions in 2000. In terms of morphology, all streams at OFG are either in uninterrupted channels or interrupted channels. Interrupted channels mean that the stream passes through flow-through marshes and swamps. Describing the existing streams in a slightly larger setting, the Stream Restoration Plan divides them into three groups, based on channel morphology and the vegetation and land uses adjacent to the channel. First, Streams 3e and 1e series are "surrounded by native habitat used for low-intensity cattle grazing. These are type C streams with a more diffuse riparian canopy and associated wetlands along the stream channel." Second, the portions of Streams 5e, 1w, 2w, 3w, 4w, 5w, 7w, and 9w within the floodplain forest of Horse Creek are type E streams with oaks and palmettos along, and often crowding, the channel. Third, the portions of the same eight streams that are outside of the floodplain forest of Horse Creek are type E streams, devoid of riparian vegetation and degraded by agricultural land uses, such as improved pasture and cattle grazing. The Stream Restoration Plan describes the Stream 1e series as follows: Reach 1e provides drainage for a series of interconnected flow-through wetlands punctuated by five relatively short stream segments. The segments represent a total of some 2,039 linear feet of channel. They have shallow, sandy banks with little vegetation in the stream channel. A wide riparian canopy of slash pine, laurel oak, dahoon holly and wax myrtle is present along most of this reach. The palmetto edge of the floodplain varies in width, but is generally more than 100 feet from either bank, suggesting frequent inundation. The channel substrate is sandy except where near a swamp, where it becomes increasingly more organic. Each flow-through wetland occurs in shallow depressions which overflow into C-type channels that are typically several hundred feet long. Key components of this conveyance type include the lip elevation at which wetland flow enters the channel and the elevation at which the streams dissipate their discharge to the downstream flow- through wetland. Most of the stream segments in this conveyance system appear to be in good geomorphic condition. Most of these channels typically have wetland and/or upland hardwood trees in the riparian zone with little understory. The Stream Restoration Plan reports that the channel of Stream 3e is in good geomorphic condition. The upper part of the channel flows through a scattered open canopy of trees with herbaceous cover in the riparian zone. The lower part of the channel mostly flows through treeless banks lined with palmettos. The channel has vegetation in it where it is exposed to sunlight. In other respects, Stream 3e is like Stream 1e series, except that the channel is uninterrupted and shorter. The length of Stream 3e is 611-630 feet. Stream 1eb is 486 feet, Stream 1ef is 223 feet, Stream 1ec is 315 feet, Stream 1ed is 283 feet, and Stream 1ee is 732 feet. The 2039-foot length of the Stream 1e series is exclusive of the system's headwater and flow-through wetlands. The Stream 1e series has the most linear feet of any tributary stream on OFG. In addition to the Stream 1e series and Stream 3e, the only other stream on the east side of Horse Creek to be mined is Stream 5e, which is an agriculturally disturbed stream with a narrow riparian canopy. The Stream Restoration Plan states that the lower portion of Stream 5e, which is within OFG, is in better condition than the upper portion, which is frequented by cattle and leads to a cattle pond and agriculturally altered wetland. However, in contrast to the Stream 1e series and Streams 6e, 7e, and 8e, Stream 5e is isolated in a vast monocommunity of improved pasture. The streams on the west side of Horse Creek have all been impacted by agricultural practices, mostly cattle ranching, ditching streams, sloughs, and other wetlands, and excavating cattle ponds in wetlands. The only streams entirely in the no- mine area on the west side of Horse Creek are Streams 8w and 6w, which are part of the Central and West Lobes, respectively. Relative to their surrounding communities, the streams on the west side of Horse Creek fall into three groups. Streams 6w and 8w are integrated into diverse communities of uplands and wetlands. Like Stream 5e, Streams 5w, 4w, 3w, and 2w are lonely departures from the monocommunity of improved pasture and, thus, attractors of thirsty or hot cattle. All of these streams have been impacted, to varying degrees, by ditching, which, with cattle disturbances, has led to unstable banks and erosion. Functionally, Streams 9w, 7w, and 1w are between these two groups. As a stream, Stream 9w is surrounded by improved pasture; however, it drains a large wet prairie surrounded by large areas of palmetto prairie to the south and west and sand live oak to the north and east. Prior to agricultural disturbance, Stream 9w was much higher functioning, at least with respect to flood conveyance, attenuation, and storage. At one time, this stream led upgradient to a long slough. After the slough was ditched to hasten drainage, the channel of Stream 9w suffered from excessive hydraulic forces, resulting in bank instability and a curious channel formation that fits the type E stream, even though the valley slope is consistent with other type C streams at OFG. Stream 9w is the second-shortest stream on OFG at 472 feet. Draining the smallest area of all tributaries on OFG (30 acres), Stream 7w lies between a large palmetto prairie to the north and improved pasture to the south. Stream 7w is the shortest stream on OFG at 456 feet. Stream 7w's upper section is characterized by unstable banks vegetated by pasture grasses. Stream 1w runs from Horse Creek through improved pasture, but enters a large palmetto prairie before draining a wetland that includes a relatively small bayhead. The upper half and extreme lower portions are in good condition with appropriate vegetation, but the channel is eroded in areas where it runs through pasture. IMC will reclaim the headwater wetland of Stream 1w with a large bayhead. ERP Specific Condition 14.i requires IMC to survey the final contours of each mitigation wetland to the precision of a one-foot contour. Within 60 days of final grading, IMC shall submit to BMR, for its approval, a topographic map and representative cross sections for each wetland and extending at least 200 feet into the adjacent uplands. IMC must also submit surveyed profiles and cross sections for all reclaimed streams. All topographic maps must meet the minimum technical standards of Chapter 472, Florida Statutes. ERP Specific Condition 14.j states that IMC shall assess the hydrology of the modeled wetlands through the installation of monitoring wells and staff gauges at mutually agreed-upon sites in these reclaimed wetlands. For at least two years after the final contouring of each wetland, IMC shall monitor the hydrology for the parameters listed in Table MR-2, which is described below. IMC shall submit the analysis to BMR within 30 days of its completion. If BMR does not approve the hydrology, IMC shall have 60 days to submit a remedial plan. ERP Specific Condition 14.k requires that freshwater marsh and ephemeral marsh vegetation shall develop from direct placement of donor topsoil or planting of herbaceous marsh species in the densities and numbers specified in the Freshwater Marsh and Wet Prairie/Ephemeral Marsh planting tables, so as to meet the requirements of ERP Specific Condition 16. Both tables require plantings on three-foot centers, or 4840 plants per acre, and specify suitable water levels for each species. The Freshwater Marsh planting table lists 22 approved species, and the Wet Prairie/Ephemeral Marsh planting table lists 35 approved species. ERP Specific Condition 14.l requires IMC to plant the uplands surrounding wet prairies with collected native grass seed, such as creeping bluestem, sand cordgrass, blue maidencane, bluestem, lovegrass, and eastern gamma grass, to prevent invasion by non-native or range grasses. ERP Specific Condition 14.m provides that IMC shall develop shrub marsh vegetation by directly placing donor topsoil at the location of the reclaimed shrub marsh and planting herbaceous and shrub marsh species in the densities and numbers specified in the Shrub Marsh planting table, so as to meet the requirements of ERP Specific Condition 16. The Shrub Marsh planting table requires IMC to plant herbaceous species on three-foot centers, or 4840 plants per acre, and shrub species at an average density of 900 plants per acre. The planting table lists 18 approved species and requires IMC to plant at least five different shrub species. The planting table also specifies suitable water levels. ERP Specific Condition 14.n provides that IMC shall plant forested wetlands in the densities, species richness, and dominance specified in the Bay swamp/Gumswamp/Hydric Oak Forest/Wet Pine Flatwoods/Mixed Wetland Hardwood/Mixed Forest Swamp, "as appropriate for each community type" to meet the requirements of ERP Specific Condition 16. IMC shall plant appropriate species based on the design elevations, hydrology monitoring, and mitigation goals. ERP Specific Condition 14.o provides that IMC shall plant shade-tolerant herbaceous species after establishing suitable shade, by year 7, in hardwood swamps, mixed forest swamps, and bay and gum swamps. Specific Condition 14.o states: "At least 5 of the species listed in the Tables in n above and others like goldenclub . . . and swamp lily . . . shall be planted." The items listed in Specific Condition 14.n, however, are communities, not species. ERP Specific Condition 15 requires IMC to implement a monitoring and maintenance program to promote the survivorship and growth of desirable species in all mitigation areas. ERP Specific Condition 15.a requires IMC to conduct "quarterly or semi-annual" inspections of wetlands for nuisance and exotic species. IMC shall control these species by herbicide, fire, hydrological, or mechanical means "to limit cover of nuisance species to less than ten (10) percent and to remove exotic species when present in each created wetland." IMC must annually use manual or chemical treatment of nuisance and exotic species when their cover in any area of at least one acre is greater than ten percent or any exotic species are present. IMC must use manual or chemical treatment if cogongrass covers more than five percent within 300 feet of any reclaimed wetland. ERP Specific Condition 15.b allows IMC to control water levels with outflow control structures and pumps, as needed to enhance the survivorship and growth of sensitive taxa. However, IMC must remove all water management structures at least two years prior to requesting release. ERP Specific Condition 15.c requires IMC to make supplemental tree and shrub plantings, pursuant to Specific Condition 14, when tree/shrub densities fall below those required in ERP Specific Condition 16. Specific Condition 15.d requires IMC to make supplemental herbaceous plantings, pursuant to ERP Specific Condition 14, when cover by a "diversity of non- nuisance, non-exotic wetland species as listed in Chapter 62-340.450, F.A.C.," falls below that required in ERP Specific Condition 16. ERP Specific Condition 16 provides the conditions for DEP to release IMC of further obligation for reclaimed wetlands. DEP shall release the 105 acres of reclaimed forested wetlands and 217 acres of herbaceous wetlands when IMC has constructed them in accordance with the ERP requirements; IMC has not intervened, for two consecutive years (absent BMR approval), by irrigating, dewatering, or replanting desirable vegetation; and the remaining requirements of ERP Specific Condition 16 have been met. IMC must indicate in its annual narrative, which is required by Specific Condition 5, the start date for the non- intervention period. ERP Specific Condition 16.A requires that the water quality meet Class III standards, as described in Florida Administrative Code Chapter 62-302. ERP Specific Condition 16.B addresses water quantity. ERP Specific Condition 16.B.1 requires each created wetland to have hydroperiods and inundation depths sufficient to support wetland vegetation and within the range of conditions occurring in the reference wetlands of the same community for the same period, based on the monitoring data developed in accordance with ERP Specific Condition 14.j. Tributary wetlands must have seasonal flow patterns similar to specified reference wetlands for the same period. ERP Specific Condition 16.B.2 states that IMC modeled 24 representative reclaimed wetlands that IMC has modeled during the application process to predict subsurface conditions after excavation and backfilling. Figure 13-3 depicts these modeled wetlands, which are within 13 wetland complexes, and the proposed transects. All of the modeling transects are aligned east-west, which is the direction of groundflow. As discussed in detail below, the primary hydrological model used by Dr. Garlanger requires an input for the length of the upland in terms of the distance from the basin divide to the riparian wetland. Therefore, the transects probably must run in the direction of groundwater flow. Absent an ability to model the hydroperiod and inundation depth of a wetland across a sand tailings valley and cast overburden plateau--i.e., in a north-south direction-- multiple east-west transects in wetlands with long north-south dimensions would better reveal whether the wetland design were adequately accounting for the alternating pattern of sand tailings valleys and cast overburden plateaus. For all the areas for which Map H-1 provides probable orientations of spoil piles--basically, for present purposes, everywhere but Section 4--the spoil piles are oriented in the same alignment as the transects, so the transects will not cross the sand tailing valleys/cast overburden peaks. In other words, each of the transects will run along the portion of each wetland for which the relative depths of sand tailings and cast overburden remain constant, avoiding the potentially more problematic situation of alternating rows of sand tailing valley and cast overburden peak. As noted below, the north-south dimension of W039 assures that one cast overburden spoil pile and part of another will underlie W039. The north-south dimensions of W003 and E046/E047 also are long enough to guarantee significant alterations in geology. ERP Specific Condition 16.B.2 requires that, prior to the construction of the modeled 24 wetlands, IMC shall reassess and, if necessary, modify their design. The modifications shall be based on the targeted hydroperiods and inundation depths set forth in Table 1, which is described below, and updated analysis from an "integrated surface and ground water model that has been calibrated to actual field conditions at the location of the wetland to be constructed." Lastly, ERP Specific Condition 16.B.2 requires IMC to use a similarly calibrated model to design the other reclaimed wetland, so that they achieve the targeted hydroperiods and inundation depths set forth in Table 1. For the 24 modeled wetlands, Table 1 identifies eight types of wetland community, prescribes hydroperiods and inundation depths for each wetland habitat, and projects a hydroperiod for each of the 24 modeled wetlands. As amended at the hearing for bay swamp hydroperiods, the hydroperiods and inundation depths for the wetland communities are: bay swamps-- 8-11 months with inundation depths of 0-6 inches; gum swamps-- 3-12 months with inundation depths of 0-12 inches; mixed wetland hardwoods and wetland forested mix--3-9 months with inundation depths of 0-6 inches; hydric pine flatwoods--1.5-4.5 months with inundation depths of 0-6 inches; freshwater marshes--7-12 months with inundation depths of 6-30 inches; wet prairies--2-8 months with inundation depths of 0-6 inches; and shrub marshes--7-12 months with inundation depths of 6-24 inches. The 24 reclaimed wetlands to be modeled include three bay swamps: W039, which is the headwater wetland of Stream 1w; E008, which is a small part of the wetland into which Streams 1eb and 1ef drain; and E063, which is a small bay swamp in the middle of Stream 5e. The only other bay swamps to be reclaimed are E007, which is a small part of the wetland into which Stream 1ec drains, and W036, which is in the center of Section 19 and drains offsite into West Fork. The only other modeled wetlands that are part of the riparian wetlands of Stream 1e series are E007 and E009, which are near E008 and are the only hydric pine flatwoods to be modeled. The only other hydric pine flatwoods to be reclaimed is E015, which is also part of the riparian wetlands of Stream 1e series. Other modeled wetlands of particular importance are W003, which will be a large wet prairie wetland serving as the headwater wetland of Stream 9w; W031, which will be the freshwater marsh serving as the headwater wetland of Stream 3w; E018, E046, and E057, which are wet prairie fringes; E018, E042, E046, and E057, which are ephemeral wetlands (E042 is the only modeled ephemeral wet prairie that is not a fringe wetland); and all of the connected wetlands of Streams 3e and 3e?: E024, which is a wetland forested mix that is the riparian wetland along Stream 3e; E023, which is a freshwater marsh immediately upstream of E024; E022, which is a mixed wetland hardwoods joining the upstream side of E023; E018, which is a wet prairie fringing the headwater wetland of Stream 3e?; E019, which is a shrub marsh (the only modeled shrub marsh) fringed by E018; and E020, which is a freshwater marsh joining E019 and also fringed by E018. ERP Specific Condition 16.B.3 states the IMC shall monitor the 24 modeled wetlands, as prescribed by ERP Monitoring Required Section D and Table MR-2, which are discussed below. ERP Specific Condition 16.B.4 requires that the ephemeral wetlands shall remain inundated no more than eight months per year during a normal water year, which is between the 20th and 80th percentiles of historical record in terms of total rainfall and major storm occurrence. ERP Specific Conditions 16.C.1 and 2 apply to all mitigation areas within the scope of the ERP. Specific Condition 16.C.1 requires that non-nuisance, non-exotic wetland species listed in Florida Administrative Code Rule 62-340.450 cover at least 80 percent of the groundcover or attain the range of values documented in specific reference wetlands of the target community. Desirable groundcover plant species must be reproducing naturally. ERP Specific Condition 16.C.2 provides that nuisance vegetation species, such as cattail, primrose willow, and climbing hemp vine, shall cover less than 10 percent of the total wetland area. Invasive exotic species, such as melaleuca, Chinese tallow, and Brazilian pepper, shall not be considered as an acceptable component of the vegetative community. For herbaceous marshes, ERP Specific Condition 16.C requires that native species typical of the reference marshes dominate the cover and that they be distributed in zonation patterns similar to reference marshes. Species richness and dominance regimes shall be within the range of values documented within the reference marshes. For wet prairies, ERP Specific Condition 16.C requires that native species typical of the reference wet prairies dominate the cover. Species richness and dominance regimes shall be within the range of values documented within the reference wet prairies. Range grasses, such as bahiagrass and Bermuda grass, shall cover, in total, less than 10 percent of the wet prairie. For shrub marshes, ERP Specific Condition 16.C requires that native species typical of the reference shrub marshes dominate the cover. Carolina willow and wax myrtle shall cover, in total, less than 30 percent of the marsh. For all forested wetlands, ERP Specific Condition provides that the forested canopy shall have an average of at least 400 live trees per acre that are at least 12 feet tall, except for cabbage palms, which shall have a leaf, including the stalk, that is at least three feet long. In the alternative, the forested canopy shall meet or exceed the range of canopy and sub-canopy tree densities in specified reference wetlands. No area greater than an acre shall have less than 200 trees per acre. Hydric pine flatwoods shall average 50 trees per acre. For all forested wetlands, ERP Specific Condition provides that the shrub layer shall average at least 100 shrubs per acre or shall meet or exceed the range of shrub densities in specified reference wetlands. Early successional species, such as Carolina willow, saltbush, and wax myrtle, do not count in meeting this density requirement, but the monitoring reports shall include such species. Hydric pine flatwoods shall have an average density of 350 shrubs per acre, and the primary species shall be typical of hydric pine flatwoods, such as saw palmetto, gallberry, and fetterbush. For all forested wetlands, ERP Specific Condition states that the canopy and shrub strata shall each have the species richness values and dominance regimes within the range of values in specified reference wetlands/floodplains of the target community. Canopy and shrub measurements are limited to those indigenous species that will contribute to the appropriate strata of the mature forested wetlands/floodplains. Up to half of the trees and shrubs in the upper transitional zone may consist of appropriate upland and facultative species, as found in specified reference wetlands. Desirable canopy and shrub species shall be reproducing naturally. For all forested wetlands, ERP Specific Condition provides that herbaceous vegetation shall have the species richness values and dominance regimes within the range of values in specified reference wetlands/floodplains of the target community. In making this evaluation, DEP shall consider the relative age of the mitigation site, as compared to specified reference wetlands. ERP Specific Condition 16.D.1 requires that all stream banks be stable, subject to normal erosion and deposition zones, as evidenced by the conformance of the stream with the applicable Rosgen type C or E, as described in the appropriate reference streams. ERP Specific Condition 16.D.2 requires that the physical characteristics of the reclaimed stream conform to its design. ERP Specific Condition 16.D.3 requires that tree roots, log jams, snags, and other instream structure shall be present at desirable intervals along the reclaimed stream. ERP Specific Condition 16.D.4 provides that species diversity and richness of the macroinvertebrate community shall be within the range of values documented in the reference streams or reported values of similar streams systems in central Florida. Also, all functional feeding guilds of macroinvertebrates found in the reference streams shall be present in the reclaimed streams. In the alternative, IMC may show that the reclaimed stream has met the minimum thresholds for the "good" classification in DEP's Stream Condition Index for macroinvertebrates and habitat quality. ERP Specific Condition 16.E provides that, throughout OFG, at least 105 acres of reclaimed forested wetlands and 217 acres of reclaimed herbaceous wetlands shall be determined to be wetlands or other surface waters. IMC shall achieve the minimum acreage for each wetland, as indicated on Map I-2 and associated figures and tables. However, IMC may make minor changes in the size, shape, or location of individual reclaimed wetlands, subject to BMR's approval. ERP Specific Condition 17 provides that DEP shall release IMC from further obligation regarding mitigation when ERP Specific Condition 16 has been met. IMC initiates the release procedure by notifying DEP that IMC believes the mitigation is ready for release, but this notice may not be earlier than two years after the completion of mitigation. DEP must respond within 120 days. ERP Specific Condition 17.d provides: "[DEP] may release the mitigation wetlands based on a visual evaluation, notwithstanding that all the requirements of Specific Condition 16 have not been met." ERP Specific Condition 18 applies to the surface water management system. The system must conform to the plans, specifications, and performance criteria approved by the ERP. ERP Specific Condition 19 requires IMC clearly to identify all no-mine areas in the field within two years of the issuance of the ERP. ERP Specific Condition 20 states that BMR will review the ERP at the end of the first five-year term after its issuance and at the end of each succeeding five-year term, if any. The purpose of the review is to determine compliance with general and specific conditions, including monitoring requirements. BMR staff shall quarterly inspect the mine for compliance with these requirements. ERP Specific Condition 21 requires IMC to provide a phased Conservation Easement, in favor of DEP, on 525 acres of OFG, as depicted on Figure F-6. Figure F-6 shows two easement areas. Phase A, which is 372 acres, corresponds to the 100-year floodplain of Horse Creek. Phase A is in the no-mine area. Phase B, which is 153 acres, is a wider band running along both banks of the northernmost 1 1/2 miles of Horse Creek and mostly on only the west bank for the southernmost 2 miles of Horse Creek. Phase B consists of part of the reclaimed area. The corridor covered by both phases of the Conservation Easement is generally not wider than 1000 feet and thus does not capture all of the non-improved pasture upland communities reclaimed on either side of Horse Creek and described above. IMC is required to grant the Conservation Easement on the Phase A lands within six months of the issuance of the ERP. IMC is required to grant the Conservation Easement on the Phase B lands within six months of the release by DEP of IMC from further obligations regarding reclamation and mitigation. ERP Specific Condition 21 incorporates the Conservation Easement and Easement Management Plan. The Conservation Easement implicitly acknowledges the fact that IMC is contractually obligated to convey OFG back to the Carlton- Smith family, after IMC has been released from further obligations regarding reclamation and mitigation. Thus, post- mining, OFG will return to its historic agricultural uses-- mostly, cattle ranching. The restrictions and encumbrances included in the Conservation Easement are designed to provide some protection to the wetlands, streams, and uplands within the Phase A and Phase B areas. Granted to the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, for which DEP serves as an agent, the Conservation Easement allows IMC and its successors, including the Carlton-Smith family, to use the encumbered property for cattle ranching, but only to the extent consistent with "sustainable native range management practices." These sustainable native range management practices require, among other things, the natural renewal of the grazing capacity of the land by allowing native grasses and other native forage species to regenerate. The Easement Management Plan contemplates prescribed burns of portions of the corridor. The Conservation Easement also allows IMC and its successors, upon obtaining the necessary permits, to construct a commodious 200-foot wide accessway across the encumbered property for a road, pipelines, draglines, and/or utilities. ERP Specific Condition 22 requires IMC to enhance 80 acres of existing pastureland within several areas of the Horse Creek floodplain, as indicated on Figure F-5, which is Habitat Enhancements. Most of the depicted enhancement areas are on OFG, but two of them are a short distance from OFG. ERP Specific Condition 22 requires IMC to plant 100 longleaf pines and/or oaks per acre within several sites, covering 80 acres of existing pastureland, adjacent to the 100-year floodplain of Horse Creek. Most of the sites are on the west bank of Horse Creek, mostly south of the Lobes, but a couple of sites are on the east bank in the vicinity of the East Lobe. ERP Specific Condition 23 requires that IMC plant these areas within one year of the issuance of the ERP and that the overall survival rate be at least 80 percent, as of the time of the release of the last mitigation parcel. ERP Specific Condition 23 requires IMC to enhance existing xeric and scrub habitats within areas designated as ACI (Area of Conservation Interest)-2, ACI-4, and ACI-6, as depicted on Figure F-5. Specific Condition 23 states that IMC shall enhance the wildlife habitat of these areas by performing controlled burns, cutting overgrown trees, planting desirable species, and controlling nuisance and exotic species. Specific Condition 23 obligates IMC to complete these enhancements within three years of the issuance of the ERP. ACI-2 is about 1 1/2 miles west-southwest of the southern end of OFG, between State Road 64 and the West Fork. ACI-2 consists of about 60 acres of overgrown xeric habitat, featuring 40 acres of sand scrub, predominantly sand live oak. Gopher tortoises occupy ACI-2 at a density of about 1.6 reptiles per acre. Florida mice occupy ACI-2 at a density of 0.4 rodents per acre, meaning that only 15-25 Florida mice may occupy ACI-2. By fence-posting overgrown sand pine and sand live oak and conducting a prescribed burn, IMC will reduce the heavy canopy existing on ACI-2 and enhance the suitability of ACI-2 for gopher tortoises and Florida mice. IMC will also apply herbicides to nuisance exotic species, such as bahiagrass, after which IMC will direct seed the flatwoods on the site with suitable vegetative species. Following this work, IMC may relocate Florida mice from OFG to ACI-2, upon approval from the FWC. ACI-6 is about one mile east of the southern end of OFG. ACI-6 consists of about 421 acres of a mixture of open land and overgrown oak scrub. Gopher tortoises occupy ACI-6 at densities ranging from 0.7 to 1.8 animals per acre. After fence-posting overgrown oaks and sand pine, conducting prescribed burns, installing fencing to exclude cattle and feral hogs, applying herbicide to kill exotic species, and direct seeding appropriate vegetation, IMC may relocate Florida mice from OFG to ACI-6, upon approval from FWC. ACI-4 consists of about 82 acres at the eastern end of the East Lobe and is within the no-mine area. The western end of ACI-4 slopes to the west through a bahia pasture before it enters a large bay swamp at the western end of the East Lobe. This area has been impacted by partial clearing and the depositing of animal carcasses--the latter practice yielding the name assigned to this area, the "boneyard" scrub. ACI-4 is dominated by mature scrub oaks. Gopher tortoises occupy ACI-4 at the rate of 0.85 terrestrial turtles per acre, and gopher frogs frequent the mouths of tortoise burrows at the site, although no signs of Florida mice exist. After conducting enhancement activities similar to those to be conducted on the other ACIs, IMC intends to create and maintain more suitable habitat for Florida mice. Specific Condition 23 states that IMC shall enhance 25 acres of pasture on ACI-4 by planting 100 longleaf pines and/or oak trees, and IMC shall manage these areas to achieve an overall survival rate of 80 percent through release of the final reclamation parcel. ERP Specific Condition 24 notes that IMC has committed to initiate the management and evaluation of amphibians, including the Florida gopher frog, and shall adhere to the management plans outlined in the IMC Minewide Gopher Tortoise and Burrow Conceptual Management Plan that FWC has examined, but not yet approved. IMC shall expend at least $30,000 to compare amphibian use of reclaimed and unmined wetlands. IMC shall include progress reports as to this study with its annual narrative reports required under Specific Condition 4. ERP Specific Condition 25 incorporates Tables 2AI-1 and 2AI-2 to provide assurance that IMC has sufficient sand tailings for the timely reclamation of wetlands contemplated in the ERP. Table 2AI-1 is the IMC Overall Sand Balance. Table 2AI-2 is the [OFG] Sand Balance. Table 2AI-1 shows the sand tailings production of IMC's Four Corners and Ft. Green mines from 2004-2014 and assumes an initial mining year of 2006 for OFG. For each of these 11 years, Four Corners produces 27,000,000 tons of sand tailings. For the first seven of these years, Ft. Green produces 17,000,000 tons of sand tailings. During these 11 years, IMC needs anywhere from 13,300,000 to 54,900,000 tons of sand tailings to meet all of its reclamation obligations. The closest that IMC will come to exhausting its sand tailings stockpile will be in year 6 of the OFG mining operation (2011, if OFG mining starts in 2006). For this and the following year, the sand tailings stockpile will total 300,000 tons. By this time, IMC's requirements for sand tailings begin to taper off, so that, by the final year on the schedule (2014), the sand tailings stockpile increases to 20,600,000 tons. Table 2AI-2 shows that IMC can meet its reclamation obligations for the Ft. Green Mine and OFG without using any stockpiled sand tailings. The next section of the ERP is Monitoring Required. The designations for this section start with a letter. As its name suggests, ERP Monitoring Required describes the monitoring program. The presence of monitoring does not imply the presence of standards or criteria applicable to what is monitored or the presence of a remedy or sanction for noncompliance with any standard or criterion. The existence of this section of the ERP does not mean that other sections of the ERP may impose monitoring requirements, applicable standards and criteria, and remedies or sanctions for noncompliance. ERP Monitoring Required A.1 requires IMC to submit annual narrative reports to BMR detailing the progress of the restoration program identified in ERP Specific Condition 4. As required in ERP Specific Condition 5, IMC shall submit to BMR hydrology reports annually and vegetation reports annually for the first three years and every other year thereafter, until release. At least 60 days prior to sampling, ERP Monitoring Required A.2 requires IMC to submit, for agency approval, vegetation, hydrology, and macroinvertebrate monitoring plans detailing sampling techniques and locations. ERP Monitoring Required A.3 requires IMC to include in its annual hydrology reports the daily rainfall amounts for the Ft. Green and OFG gauges shown on Map D-4. ERP Monitoring Required A.4 states that, if BMR determines that restoration efforts are not trending toward achievement of the release conditions set forth in ERP Specific Condition 16, IMC shall have 30 days from notification to submit proposed corrective actions. IMC shall implement corrective actions within 90 days of their approval. ERP Monitoring Required B states that data compiled in the CDA will be the primary source of reference wetland information. IMC shall then collect additional stage and hydroperiod data from the modeled wetlands. Within one year of the issuance of the ERP, IMC shall submit to BMR, for approval, a proposed sampling plan, including locations, frequencies, and vegetation, hydrology, and macroinvertebrate sampling methods. ERP Monitoring Required B provides that IMC shall select several wetlands of each community and submit them to BMR for approval. It appears that this process has already been completed, and DEP should updated ERP Monitoring Required B by incorporating into the ERP Figure RF-1, which, although not presently incorporated into the ERP, identifies 26 reference wetlands on OFG and nine reference wetlands on the original Ona Mine to the east of OFG. These reference wetlands include the most important components of the Lobes, the Heart-Shaped Wetland, Stream 2e's riparian wetlands, several wetlands in the Stream 1e series, the headwater wetland of Stream 3e, isolated wetlands south and east of the headwater wetland of Stream 3e, parts of the headwater wetland of Stream 1w, and the riparian and headwater wetlands of Stream 8e. As noted below, the riparian and headwater wetlands of Stream 8e, which are selected as reference wetlands, are moderate functioning, but the riparian and headwater wetlands of Stream 7e, which are not selected as reference wetlands, are high and very high functioning. ERP Monitoring Required C is Compliance Monitoring. Monitoring Required C.1 provides that IMC shall submit water quality data with the annual narrative reports submitted pursuant to ERP Specific Condition 7. All monitoring reports must include specified information, such as the dates of sampling and analysis and a map showing sampling locations. ERP Monitoring Required C.2 states that IMC shall submit hydrology data with its annual narrative reports. ERP Monitoring Required C.3 states that IMC shall monitor water levels in wetlands in no-mine areas in accordance with Table MR-1, which is described below. ERP Monitoring Required C.4 notes that IMC shall measure and report surface water flows in accordance with ERP Specific Condition 10. IMC must include in its reports to BMR all U.S. Geologic Service data collected at State Road 64 and State Road 72, which is south of State Road 64, and rainfall data collected by the U.S. Geologic Service, Southwest Florida Water Management District, and IMC. The annual hydrographs for Horse Creek at State Road 64 and State Road 72 "should" be similar. IMC must obtain and report hydrological data from 30 days after the issuance of the ERP until three years after the hydrological reconnection of the last reclaimed area upstream of a water level monitoring location. Within 60 days of the receipt of such data, BMR shall notify IMC of any changes to mining or reclamation that are necessary, and IMC shall have 60 days to respond to this notice. ERP Monitoring Required C.5 grants IMC a 50-meter temporary mixing zone adjacent to construction and in waters of the state; provided, however, this mixing zone is in effect only during the construction of the pipeline crossing just downstream of the Heart-Shaped Wetland. IMC must halt construction if monitoring reveals that turbidity at the site is more than 29 NTUs above upstream locations. ERP Monitoring Required C.6 states: "Compliance Monitoring Summary--See Table MR-1." Table MR-1 is discussed below, in connection with Table MR-2. ERP Monitoring Required D is Release Criteria Monitoring. Applying to vegetation, Monitoring Required D.1 provides that IMC shall conduct all monitoring of herbaceous vegetation during or immediately after the summer growing season. Monitoring Required D.1 requires the reports to include a description of collection methods and location maps. IMC must report data separately for individual wetlands. IMC must report separate density and cover information for trees, shrubs, and groundcover, as well as information about any supplemental planting. Applying to water quantity, ERP Monitoring Required D.2 provides that IMC shall submit water quantity data with its annual narrative reports, as required in ERP Specific Condition 4. IMC shall collect onsite daily rainfall data at OFG. ERP Monitoring Required D.3 requires: "Soils, macroinvertebrates and stream channel integrity/morphology shall be monitored as described in Table MR-2." ERP Monitoring Required D.4 states: "Release Monitoring Criteria Summary--See Table MR-2." Tables MR-1 and MR-2 refer to the monitoring required for compliance and release, respectively. The identification of these tables as "summaries" and the vague references to them in ERP Monitoring Required C.6 and D.4 suggest that the tables do not contain any performance standards and may imply that, except for the asterisked notes in Table MR-1, they summarize all of the performance standards and criteria contained in the ERP. If summaries, the tables should not introduce new elements, but they do just that with respect to the methods, sampling schemes, and frequency of monitoring. For water quantity monitoring, for instance, Table MR-2's promise of weekly readings of monitoring wells and piezometers for part of the year conflicts with the monthly reading required in ERP Specific Condition 10.b. If summaries of performance standards and criteria, the tables should capture all of the compliance and release criteria, but they do not. For water quality, for example, Table MR-2, which is limited to five parameters, potentially conflicts with ERP Specific Condition 16.A's broad assurance of compliance with Class III water quality standards, which encompass a broad range of parameters, including iron. For water quantity, Table MR-2 also omits the enforceable streamflow criteria of ERP Specific Condition 10.b. For soil, Table MR-2 includes one parameter--litter accumulation--for which no corresponding criterion exists and includes substrate-- for which important criteria exist as to the depths of sand tailings, topsoil, green manure, and muck--but omits any release criteria. Addressing two of the most important parts of the ERP--monitoring and performance criteria--these tables must be interpreted as subordinate to the remainder of the ERP, so that if they conflict with another ERP provision, the other ERP provision controls, but if they add a requirement not elsewhere found in the ERP, the requirement applies to the proposed activities. Table MR-1 is the Compliance Monitoring Criteria Summary. Table MR-1 identifies two monitoring parameters: water quality and water quantity. Asterisked notes state that the Table MR-1 requirements for water quality are in addition to those set forth in Specific Condition 7, which are discussed above, and the Table MR-1 requirements for water quantity are in addition to those set forth in Specific Condition 10.b, which are discussed above. For water quality, Table MR-1 addresses only turbidity. The compliance criterion is the Class III standard. The "proposed methods" are for IMC to monitor water, at mid- depth, 50 meters upstream and downstream from the point of severance and reconnection of each wetland. The frequency of monitoring is daily during severance or reconnection or during pipeline corridor construction or removal. The duration of monitoring is at least one wet season prior to mining, during mining, and through contouring. For water quantity, Table MR-1 addresses water levels, flow, hydrographs, soil moisture, and plant stress. The compliance criteria are soils sufficiently moist to support wetland vegetation and prevent oxidation and water levels in recharge ditches sufficient to simulate normal seasonal fluctuations of water in adjacent wetlands and other surface waters. The "proposed methods" are for IMC to install staff gauges, monitoring wells, piezometers, and flow meters in recharge ditches and wetlands in the no-mine area and at the point that the 100-year floodplain of Horse Creek intercepts the unmined portions of Streams 2e, 6e, 7e, 8e, 9e, 6w, and 8w. The frequency of monitoring is to check rainfall and recharge ditches daily, staff gauges in streams "continuously," and monitoring wells and piezometers weekly. The duration of monitoring is at least one wet season prior to mining, during mining, and through contouring. Table MR-2 is the Release Monitoring Criteria Summary. Table MR-2 identifies five monitoring parameters: water quality, water quantity, stream channel integrity and morphology, soils, and vegetation. For water quality, Table MR-2 addresses dissolved oxygen, turbidity, temperature, pH, conductivity, and, for all streams, all of the parameters in ERP Specific Condition 7.a. The compliance criteria are Class III standards. The locations are at or near the connection of wetlands in the no-mine area and at or near vegetative transects in streams and representative wetlands. The frequency is monthly from May to October prior to the reconnection to wetlands in the no-mine area and monthly from May through October of the year prior to the release request. The duration of monitoring is at least two years after the completion of contouring. For water quantity, Table MR-2 addresses water levels, flow, hydroperiod, rainfall, and hydrographs. The release criteria are values within the range of values documented in specified reference wetlands for each community type and, for hydroperiods and water levels, within the range of values predicted by modeling. The "proposed methods" are the same instruments identified for water quantity in Table MR-1. The locations for sampling are at or near the connection to wetlands in the no-mine area and at representative locations, including the deepest depths, of several representative wetlands of each community type. The frequency of monitoring is to check rainfall daily, staff gauges in streams "continuously," monitoring wells and piezometers weekly from May through October and monthly from November through April, and flow at sufficiently frequent intervals to generate rating curves for the streams. The duration of monitoring is at least two years after the completion of contouring. For stream channel integrity and morphology, Table MR-2 addresses channel stability and erosion, channel sinuosity channel profile, and cross sections. The release criteria are: "Stable channel and banks, no significant erosion, or bank undercutting, stream morphology within the range of values appropriate for the designed stream type (Rosgen C or E)." The location of sampling is over the entire channel length and representative cross sections. The frequency of monitoring for channel stability and erosion is after "significant" rain events for at least the first two years after contouring. The frequency of monitoring for channel sinuosity, channel profiles, and cross sections is years 2, 5, and 10. For soils, Table MR-2 addresses substrate description, litter accumulation, and compaction, but lists no release criteria. For vegetation, Table MR-2 addresses the species list and percent cover, FLUCFCS Level III map, percent bare ground and open water, nuisance species cover, upland species cover, tree density, shrub density, tree height, tree breast height diameter starting in year 5, and fruit and seedlings (starting in year 7). The release criteria are 400 trees per acre that are 12 feet tall, 100 shrubs per acre, species richness and diversity within the range of reference forested and herbaceous wetlands, 80 percent groundcover, and less than ten percent nuisance species. The location of sampling is randomly selected sites along several transects across each wetland, and the frequency of monitoring is years 1, 2, 3, 5, and every other year through the year prior to release. For macroinvertebrates, Table MR-2 addresses the number and identity of each taxon, diversity, functional feeding guilds, and the DEP Stream Condition Index. The release criteria are: "Species diversity, richness within range of reference wetlands, all functional feeding guilds or qualify as 'good' or better in the SCI." The location of sampling is in at least one representative 100-meter reach in each stream, and the frequency is at least twice yearly for at least the year prior to the release request for a stream. CRP The introductory CRP narrative describes IMC's plans to reclaim uplands, but does not impose any obligations upon IMC. Instead, the narrative introduces the reclamation project and summarizes the provisions of the general and specific conditions of the CRP. The failure to incorporate Map I-2, whose wetlands were incorporated by the ERP, and Map I-3 is material. CRP General Conditions 8, 9, and 10, discussed below, impose upon IMC certain requirements when reclaiming certain communities, but do not themselves impose the requirement of reclaiming these communities. The same is true for CRP Specific Condition 8. The only subcondition mentioning Map I-2 is Specific Condition 8.c, which alludes to Map I-2 while imposing upon IMC the reclamation technique of backfilling at least 15 inches of sand tailings upon those areas to be reclaimed as temperate hardwoods, live oak, and hardwood-conifer mixed. If this indirect reference imposes upon IMC the obligation of reclaiming these three upland forests pursuant to their depiction on Map I- 2, it is odd that Specific Conditions 8.a and 8.b fail even to mention Map I-2 in their discussion of the sand tailing and topsoil requirements for reclaimed pine flatwoods and sand live oak and xeric oak, especially when these three upland forest communities account for over 400 acres of reclaimed uplands, according to Table 12A1-1, which is also not incorporated into the CRP. The narrative portion of the CRP states that IMC's reclamation plan is to create 1769 acres of pasture, 50 acres of herbaceous, shrub, and mixed rangeland, 273 acres of palmetto prairie, 194 acres of pine flatwoods, 33 acres of xeric oak, 43 acres of temperate hardwood forest, 39 acres of live oak forest, 196 acres of sand live oak forest, and 550 acres of hardwood- conifer mixed forest. The CRP notes that most of the communities in the no-mine area, enhanced areas, and reclaimed communities will form part of a "larger mosaic of diverse upland and wetland habitat associated with Horse Creek and will serve as important wildlife corridors." The failure of the CRP approval to incorporate Map I-2 is an oversight. In the introduction to the January submittal, IMC proposed to reclaim the uplands, by community and area, as enumerated in Table 12A1-1, and, by community and location, as depicted on Map I-2. The failure to incorporate Map I-3 is probably an oversight, based on the second CRP narrative quoted below. The CRP narrative states that IMC has developed a Habitat Management Plan (HMP), which includes detailed pre- mining wildlife surveys and relocation programs. The narrative states that IMC will relocate, disturb the habitat of, and reclaim habitat for Florida mice, gopher tortoises, gopher frogs, and other commensals, pursuant to approvals from FWC. The narrative reports that IMC's Indigo Snake Management Plan has already received approval from the required agencies. Also, IMC will spend at least $30,000 to fund research on the potential of relocating burrowing owls onto reclaimed landscapes and at least $30,000 to analyze amphibian use of natural and reclaimed wetlands. However, the ERP and CRP approval incorporate only parts of the HMP. The CRP narrative adds: In addition to wetlands, a significant portion of the reclamation plan will focus on wildlife habitat through the creation of a diversity of upland habitat types adjacent to the Horse Creek corridor. This will provide a contiguous corridor averaging half a mile wide. IMC has committed to reclaim significant areas of pine flatwoods, palmetto prairie, sand live oak, and other upland habitats well beyond what is required by existing reclamation rules. This will be accomplished mainly through topsoiling and planting of a diversity of native species including shrubs and groundcover species. The use of exotic forage grasses will be minimized and native grass species will be emphasized in the groundcover of reclaimed upland habitat areas. A diversity of shrubs will also be planted in reclaimed upland forest areas. In addition, most of the mitigation wetlands will be created with diverse upland habitats surrounding them, resulting in enhanced wildlife and water quality functions. The CRP narrative addresses reclaimed soils: Special emphasis has also been placed on improving post reclamation soils. . . . Emphasis has been placed on restoring soils to more closely mimic native soils and existing soil horizons by making greater use of native topsoil and incorporating a greater percentage of sand at the surface. Green manure will be incorporated into surface soils where native topsoil is not used. In most cases, existing overburden spoil piles will be graded down and then capped with several feet of sand tailings. The thickness of the sand layer will be determined based on the targeted reclaimed land use with some wetlands requiring additional overburden to restore appropriate hydrology. The CRP narrative acknowledges that IMC has developed an Integrated Site Habitat Management Plan that includes plans for the reclamation of uplands, control of nuisance and exotic species in uplands, and management of all listed species. The CRP narrative asserts that IMC will reclaim and manage over 1378 acres of uplands, such as by removing cogongrass and maintaining it to less than 10 percent coverage, except less than 5 percent coverage within 300 feet of wetlands. The CRP narrative mentions that IMC has "volunteered" the Conservation Easement and Easement Management Plan to encumber not less than 525 acres associated with Horse Creek. CRP General Condition 7 states: "[IMC] is encouraged to implement the Integrated Habitat Network (IHN) concept (where possible) when establishing reclaimed upland and wetland forested areas." As overlaid on OFG, the IHN, which is developed by DEP, is depicted in Figure 12-5. The IHN covers almost all of the no-mine area; the floodplains and headwater wetlands of the Stream 1e series, Stream 3e, and Stream 3e?; much of the non-pasture reclaimed uplands; and a large area of reclaimed improved pasture south and west of the reclaimed sand live oak area immediately west of the West Lobe. The backbone of the IHN is the network of rivers and streams, with their floodplains, that provide multifunctional habitat for wildlife. As noted in the introduction to the January submittal, the HMP helps implement the portion of the IHN located at OFG. Although only selectively incorporated into the ERP and CRP approval, the HMP describes IMC's overall plan for reclaiming OFG. The stated goal of the HMP is "to maintain or improve the biological functions of the wetlands and uplands . . . as an integrated component of the mining and reclamation plans." The HMP adds: "By preserving and managing the highest quality habitats on [OFG], these reserves will serve as source populations to recolonize the remainder of the site following completion of reclamation." Overall, the reclamation plan and HMP try to restore a functional interrelationship of uplands, wetlands, and surface water to replace the reduced functions that result from the agricultural alterations to uplands, wetlands, and most of the surface water, leaving large areas of a patchwork fragmentation of habitats. The HMP covers habitat management prior to land clearing, species-specific management techniques immediately prior to land clearing, species-specific management techniques during mining, habitat management in no-mine areas, reclamation goals for habitat, reclaimed habitat management after release, and, in the second part of the HMP, specific actions for each listed wildlife and plant species. Prior to land clearing, IMC will engage in little active habitat management, apart from surveys, as the Carlton- Smith family continues its agricultural uses of the land, which it is entitled to do under its contract with IMC. Immediately prior to land clearing, IMC will relocate each species, after obtaining the necessary permits, either by capture or, for the more mobile species, controlled burns or directional clearing to encourage wildlife migration into an adjoining refuge area. For listed bird species, IMC will protect their nesting areas or restrict land clearing to non-nesting season. During mining, aquatic- and wetland-dependent species will continue to have access to Horse Creek and its riparian wetlands, which are never isolated by the ditch and berm system. The only permitted direct disturbance of the no-mine area is outside Horse Creek's direct floodplain. During mining, the vast water recirculation system will provide incidental, temporary habitat for many aquatic- or wetland-dependent species. The second part of the HMP identifies management techniques for specific listed species of vertebrates. The HMP states that no listed plants exist on OFG. The HMP addresses 15 listed species observed on OFG and nine listed species that could potentially use OFG. The HMP mistakenly lists the Florida panther in the latter category, rather than the former category, but the error is harmless given the limited use of OFG by the Florida panther and the apparent lack of a breeding population north of the Caloosahatchee River. The following paragraphs describe the HMP's treatment of several listed species using OFG. Noting that the American alligator, which is a species of special concern, occupies freshwater habitats throughout Florida, plenty of such habitats exist around the mining areas, and the alligator is mobile, IMC expects that the American alligator will move out of the way of mining activities, so no management measures will be used for alligators. Presumably well-served by former Land-and-Lakes reclamation and an opportunistic inhabitant of deep wetland reclamation, alligator management is of no importance in these cases. The HMP reports two possible observations on OFG of the Florida panther, which is an endangered species. There is no doubt about one of these observations. On the other hand, there is no doubt that OFG is far from prime panther habitat. Thus, IMC will check for panther signs during pre-clearing surveys and anticipates that the unmined floodplains that are part of the IHM will maintain suitable habitat--presumably, for travel. IMC has already mapped the distribution on OFG of the gopher tortoise, which prefers well-drained, sandy soils characteristic of xeric and mesic habitats. IMC has already prepared a management plan for gopher tortoises, which are a species of special concern, and, upon DEP approval, will engage in several measures to reduce mortality due to mining activities, including, upon receipt of an FWC permit, relocating gopher tortoises, as well as other commensal species found in or near the tortoises' burrows, to appropriate locations, including one or more of the above-described ACIs. The Sherman's fox squirrel, which is a species of special concern, prefers sandhill communities and woodland pastures, and many of these squirrels use suitable areas of OFG. They are mobile, and, during mining operations, they will move to the no-mine areas adjacent to Horse Creek. Prior to land clearing, IMC will survey each area, and, if it finds active nests, these areas will be avoided until the young squirrels have left the nests, pursuant to FWC requirements. The Florida Mouse, which is a species of special concern, inhabits sand pine scrub and other xeric communities and is a commensal of the gopher tortoise. Prior to land clearing of suitable Florida Mouse habitat, IMC will conduct live-trapping. If any such mice are captured, IMC will relocate them to a suitable relocation site, such as to ACI-2, ACI-4, or ACI-6 or to xeric or pine flatwoods/dry prairie habitat that will be reclaimed on OFG. IMC will employ similar procedures for the Florida gopher frog, which is another commensal of the gopher tortoise. A species of special concern, the Florida gopher frog will also be the subject, with other amphibians, of research regarding use of reclaimed habitats and funded by IMC with at least $30,000. The Audubon's crested caracara, which is a threatened species, prefers dry prairie with scattered marshes and improved pasture. They typically nest in cabbage palms or live oak trees. Observers have seen a pair of caracaras on OFG, but attempts to locate a nest onsite have been unsuccessful. Prior to clearing cabbage palms, IMC will again survey the area for nests. If IMC finds a nest onsite or within 1500 feet of OFG, it will develop an FWC-approved management plan. The post- reclamation palmetto prairie and pine flatwoods are good caracara habitat. One of the few listed species whose habitat needs have been well-served by agricultural conversions to improved pasture, the burrowing owl occupies numerous areas on OFG. IMC intends to schedule land clearing in areas with active burrows during non-nesting season, but, if this is impossible, IMC will attempt to empty the burrow prior to clearing the land. Additionally, IMC will spend at least $30,000 to fund research to improve the technology to relocate onto reclaimed land burrowing owls, which are a species of special concern. Although IMC found on OFG no nests of sandhill cranes, which are threatened, or little blue herons, which are a species of special concern, sandhill cranes nest in reclaimed wetlands on the Ft. Green Mine, and IMC expects sandhill cranes to nest in the reclaimed wetlands at OFG. Prior to mining, IMC will survey marshes for sandhill crane and little blue heron nests, and, if it finds any, it will disturb those areas in non- nesting season. Wood storks, which are endangered, use OFG for foraging, but IMC found no evidence of wood stork rookeries on or nearby OFG. The nearest known active rookery is 22 miles from OFG. Prior to landclearing during wood stork nesting season, IMC will survey each wetland with the potential to support stork nesting sites. If IMC finds any nests, it will follow the latest guidelines from FWC or U.S. Fish and Wildlife Service for protecting the site. For the white ibis, snowy egret, and tricolored heron, which are species of special concern, IMC will survey those wetlands that are suitable nesting site prior to landclearing. If any active nests are found, IMC will schedule landclearing during non-nesting season. CRP General Condition 8 provides that groundcover in all upland forests shall include one or more of the following native plants: fruit-bearing shrubs, low-growing legumes, native grasses, and sedges. CRP General Condition 9 provides that IMC shall use native grasses and shrubs when reclaiming grasslands and shrub and brushlands. CRP General Condition 10 provides that IMC shall incorporate clumps of trees in reclaimed improved pasture so that each ten acres has "some trees." CRP General Condition 11 states that IMC shall make "every effort" to control nuisance and exotic species within the mine. CRP Specific Condition 1 is ERP Specific Condition CRP Specific Condition 2 is ERP Specific Condition 23. CRP Specific Condition 3 is ERP Specific Condition 11. CRP Specific Condition 4 is for IMC to obtain authorization from the FWC to trap and relocate Florida mice. Specific Condition 4 requires the trapping and relocation of Florida mice prior to clearing areas inhabited by them. CRP Specific Condition 5 requires IMC to make "every effort" to relocate listed plant species to suitable reclamation sites when such species are encountered prior to or during land clearing. CRP Specific Condition 6 is ERP Specific Condition 12.c. CRP Specific Condition 7 is ERP Specific Condition 12.d. CRP Specific Condition 8.a provides: Areas designated as pine flatwoods . . . and palmetto prairie shall be reclaimed by placing a minimum layer of fifteen (15) inches of sand tailings over the overburden and topsoiling with three (3) to six (6) inches of direct transferred or stockpiled native topsoils from pine flatwoods or palmetto prairie areas as that topsoil is available and feasible to move. Feasible means of good quality, relatively free of nuisance/exotics species, and within 1.5 miles of the receiver site. If topsoil is not available or feasible to move, a green manure crop will be seeded and disked in after it has matured before applying a flatwoods or palmetto prairie native ground cover seed mix to this site. In flatwoods, longleaf pine . . . or slash pine . . . shall be planted in the appropriate areas to achieve densities between 25 and 75 trees per acre. In flatwoods and palmetto prairie, shrubs typical of central Florida flatwoods and palmetto prairies will be recruited from the topsoiling, planting, and/or seeding to achieve a minimum average density of 300 shrubs per acre. The total vegetation covered by hydric flatwoods will be greater than 80 percent, in mesic flatwoods and palmetto prairies will be greater than 60 percent, and in scrubby flatwoods, greater than 40 percent. CRP Specific Condition 8.b provides: Areas designated as sand live oak or xeric oak scrub . . . shall be reclaimed by placing several feet of sand tailings over the overburden and topsoiling with three (3) to six (6) inches of direct transferred or stockpiled native topsoil from scrubby flatwoods or scrub areas. Feasible means of good quality, relatively free of nuisance/exotics species, and within 1.5 miles of the receiver site. If topsoil is not available or feasible to move, a green manure crop will be seeded and disked in after it has matured before applying a scrubby flatwoods or scrubby native ground cover seed mix to this site. Trees and shrubs typical of central Florida scrubs will be recruited from the topsoil, planted, and/or seeded to achieve a minimum density of 600 plants per acre. Vegetative cover in these areas will be greater than 40 percent. CRP Specific Condition 8.c provides: Other upland forest areas, including [temperate hardwoods, live oak, and hardwood-conifer mixed], shall be reclaimed, as illustrated by Map I-2, by placing a minimum layer of fifteen (15) inches of sand tailings over the overburden, capping the area with approximately three (3) inches of overburden and disking the surface to reduce compaction of the upper soil layer prior to revegetation. Other uplands shall be revegetated with a native ground cover, planted with trees to achieve a density of 200 plants per acre, and planted with shrubs to achieve a density of 200 shrubs per acre. CRP Specific Condition 8.d provides that IMC shall incorporate native grass species into the groundcover of all reclaimed uplands. CRP Specific Condition 8.e allows IMC to use bahia grass, Bermuda grass, and exotic grass species as groundcover in native habitats only in "limited amounts" needed for "initial stabilization in areas highly prone to erosion." When using these grasses, IMC must maintain them to prevent their proliferation. CRP Specific Condition 9 is ERP Specific Condition CRP Specific Condition 10 is ERP Specific Condition 21. CRP Specific Condition 11 resembles ERP Specific Condition 11, but requires more of IMC. CRP Specific Condition 11 states that IMC "has committed" to initiate the management and evaluation of amphibians, including the Florida gopher frog, and shall adhere to the provisions of the IMC Minewide Gopher Tortoise and Burrow Conceptual Management Plan. IMC shall pay at least $30,000 to conduct a study of amphibian use of reclaimed and unmined wetlands. IMC shall report its progress in the annual narrative reports that it must file, pursuant to Florida Administrative Code Rule 62C-16.0091. CRP Specific Condition 12 contains similar provisions for the burrowing owl. Related to ERP Specific Condition 15.a, CRP Specific Condition 13 requires IMC to make "every effort" to control cogongrass by eradicating it prior to mining, removing it after it colonizes spoil piles during mining, inspecting donor topsoil sites to prevent infestation by it, and regularly treating it on reclaimed sites to maintain coverage below 10 percent, or 5 percent within 300 feet of any reclaimed wetland. WRP The WRP at issue is for the Ft. Green Mine, not OFG. The basic purpose of the WRP is to permit IMC to dispose of the clay tailings extracted from OFG in CSAs O-1 and O-2, which are located at the southern end of the Ft. Green Mine. In an unchallenged action, DEP, on March 20, 2001, approved a requested modification of the CRP approval for the Ft. Green Mine to permit the changes sought in these cases for the Ft. Green Mine WRP. Thus, the WRP modification sought in these cases is merely a conforming modification. Normally, a WRP/ERP would take precedence over a CRP approval because mining may not start without a WRP/ERP, but may start without a CRP approval. In the unusual situation at the Ft. Green Mine, where the mining has been completed, the analysis of the WRP modification is limited to, primarily, the sufficiency of the changes in mitigation to offset the already- completed mining and, secondarily, the relevant impacts of the mitigation itself. DEP issued the WRP on May 1, 1995. This permit allowed IMC to mine 524.6 acres of wetlands at the Ft. Green Mine. On February 3, 1997, DEP issued an ERP to allow IMC to disturb 1.39 acres of surface water for a utility corridor. Following the receipt of a request by IMC for a major modification of the WRP to permit the mining of 7.6 acres of wetlands, DEP consolidated this request, the utility-corridor ERP, and the original WRP into a new WRP issued July 28, 1999. After a modification to the new WRP in 2000 that is irrelevant to the present cases and other irrelevant permitting activity, IMC has requested the modification that is at issue in these cases. Because this WRP modification follows the completion of mining and the near-completion of backfilling of sand tailings into the mine cuts, a denial would not spare the wetlands and other surface waters from the impacts of mining. Rather, a denial would leave the Ft. Green Mine with greater impacts and less mitigation. In simplest terms, a denial would harm the water resources of the District. Strengthening the already-approved mitigation and diminishing the impacts of the already-approved CSAs, this WRP modification will authorize IMC to reduce the size of the two CSAs (O-1 and O-2) in the southern end of the Ft. Green Mine and relocate them farther from Horse Creek; to relocate several reclaimed wetlands in the vicinity of CSAs O-1 and O-2 and expand their area by 2.7 acres with minor changes to some sub- basin boundaries; and to modify the reclamation schedule to conform to a modification already approved without challenge for the Ft. Green Mine CRP. The record demonstrates that the reduction in size and relocation of the CSAs away from Horse Creek will reduce the hydrological and biological impacts from those already permitted. The record demonstrates that the expansion of the area of reclaimed wetlands will add mitigation to offset the hydrological and biological impacts from already-completed mining activities. The record demonstrates that the relocation of the reclaimed wetlands and modification of the reclamation schedule will not affect the impacts or mitigation. Other Mitigation/Reclamation Projects Introduction The formation of wetlands vegetation, according to IMC biologist Dr. Andre Clewell, is a function of topography, hydrology, soils, and physical environment--to which should be added time. The formation of soils, according to Charlotte County soil expert Lewis Carter, is a function of parent material, time, relief, vegetation, and climate. Hydrology is dependent upon, among other things, topography, soils, geology, vegetation, and climate. Successful reclamation must thus account for the complex interdependency of the dynamic processes involving vegetation, soil, and hydrology. Although actual reclamation follows a clear order-- geology, soils, contouring, and planting--the order of the design process is not so clear. Presumably, in designing a reclamation plan, the biologist, soil scientist, and hydrologist would each prefer to have the final--as in last and authoritative--word. In general, the comparison of older mitigation sites to newer mitigation sites requires caution due to two factors, which somewhat counterbalance each other. The vegetation of the older sites has had longer to establish itself. The importance of this factor varies based on the type of vegetation. Groundcover establishes more quickly than shrubs, and shrubs establish more quickly than trees, but groundcover that requires protection from the tree canopy may not be able to colonize an area until the trees are well-established. Soils take a longer time to recover, generally longer than the timeframes involved in phosphate mining reclamation in Florida. The soils present in Hardee County took 5000 to 10,000 years to form. The A horizon, or topsoil layer, at OFG formed over 300-500 years. However, if the soil and hydrology are suitable at a reclaimed site, an A horizon may start to reform in as little as 10 years, but, even under ideal conditions, it will take several hundred years to reform to the extent and condition in existence prior to mining. The mucky soils underlying bay swamps form at the rate of about one inch per 1000 years. Offsetting the advantage of age for vegetation and soils, the older reclamation sites may suffer from less advanced designs and construction techniques. Newer sites benefit from advances in science and technology that have enabled phosphate mining companies to design and implement reclamation projects that more successfully replace the functions of the natural systems and communities lost to mining. Some of these advances have resulted in dramatic, sudden improvements in reclamation. The assessment of past reclamation projects must account, not only for the age of each project, but also the willingness of the phosphate mining company at the time to employ the then-available science and technology. The ratio of the cost of reclamation to projected revenues depends on the variables of specific mitigation expenses, mining expenses, and the value of the phosphate rock. These economic factors operate against the backdrop of a dynamic regulatory environment. In these cases, for example, IMC's willingness to reduce its mining impacts and expand its mitigation was a direct result of the Altman Final Order and DEP's decision to revisit its earlier decision to permit the Ona Mine. Uplands The uplands at OFG are more amenable to successful reclamation than the wetlands or streams at OFG. Uplands provide crucial functions. Certain uplands, such as those that provide seepage to wetlands or prime recharge to deep aquifers, provide hydrological functions as complex as the hydrological functions of many wetlands. Certain uplands provide irreplaceable habitat. Certain uplands vegetation is as vulnerable to climactic or anthropogenic disturbance as any wetlands vegetation. However, for the most part, the functions of uplands are not as complex or important as the functions of wetlands and other surface waters, when examined from the perspective of the water resources of the District, and these functions are more easily reclaimed. Over 77 percent of OFG and over 90 percent of the uplands at OFG are agricultural (2146 acres) or pine flatwoods, palmetto prairie, or sand live oak (1120 acres). (As noted above, palmetto prairie and sand live oak share many attributes of pine flatwoods, which they often succeed.) In terms of function, tolerance to ranges of hydrology and soils, and robustness of post-reclamation vegetation, these 3266 acres of uplands communities will be easier to reclaim than all of the proposed streams and wetlands, except for deep marshes, although pine flatwoods and palmetto prairies present the greatest difficulties in uplands reclamation due to their soil and hydrological requirements, including access to the post- reclamation water table. Impacts to uplands include the disappearance--even temporarily--of critical habitat for listed species, the susceptibility of uplands to post-disturbance nuisance exotics, and, for upland forested communities, the relatively long period required for restoration of the canopy. However, these impacts can be offset in most cases. Management plans can mitigate the temporary or permanent loss of specific upland habitat, depending on the availability of habitat and the robustness and abundance of the species requiring the habitat. Absent the presence of rare uplands habitat and/or rare species requiring the habitat, a greater problem with uplands reclamation is controlling nuisance exotics. Various grass species, including Bahia, Bermuda, torpedo, centipede, Natal, and cogon, impede progress in the development of a healthy uplands community. One of the world's ten worst weeds, cogongrass is limited to uplands, although it may extend into the higher parts of wet prairies and drier areas within forested wetlands. Although nuisance and exotic species may invade undisturbed areas, the removal of existing upland vegetation exacerbates the problem by removing native competitors and stimulating unwanted germination. However, ongoing maintenance, through a combination of herbicides, manual removal, and fire, controls the nuisance exotics long enough that the native vegetation can colonize the disturbed area. Upland forested communities require protection from grazing and mowing to permit their establishment. Canopy development takes years for any upland forested community and, for slower-growing xeric systems, at least a decade. The timely restoration of an appropriate fire regime is also important for the health of many upland communities. Not surprisingly, the record demonstrates the successful reclamation of uplands at several mitigation sites. In recent years, reclamation scientists have restored uplands structure of uplands by restoring the understory and midstory. Uplands restoration has improved with the introduction of new, more effective reclamation techniques, such as topsoiling and seeding. Until 1987, for instance, restoration biologists did not know that wiregrass--a key component of the understory of pine flatwoods--produced seeds. This knowledge has assisted in the reclamation of a proper understory of pine flatwoods. The favorable prognosis of uplands reclamation means that extensive areas of OFG uplands may be mined. Their functions will be substantially replaced, in a reasonable period of time, upon the establishment of the reclaimed upland community, although the destruction of xeric communities means their absence for relatively long periods of time and the destruction of uplands providing seepage support to wetlands requires the close-tolerance hydrology and soils associated with the most difficult wetlands reclamation. Approved in 1989 and amended in 1994, constructed by 1986, and released in 1994, Best of the West (NP-SWB(1D)) was targeted for 15-18 acres of xeric habitat. Best of the West was constructed on sand tailings overlaying overburden, although this site exhibits some stunted vegetative growth where the sand tailings may not be very thick and the roots of trees may have encountered the hardened overburden. FWC assisted the phosphate mining company in designing the reclamation plan for this site, which has resulted in the successful reclamation of 10 acres of xeric habitat. The CDA provides some background on Best of the West. The West Noralyn Xeric Scrub Reclamation (N-5), which was constructed by 1986, contained "mulched overburden plots" and 60 acres of unmined scrub. Containing a total of 462 acres of reclaimed and unmined land, Noralyn was the first attempt to create a large-scale xeric community. About 120 acres of Noralyn received 12 inches of donor topsoil from a comparable xeric community. Due to a lack of representation in the donor site, supplemental plantings of longleaf pine, sand pine, and rosemary followed. The overall project has been "moderately successful," but the 18 acres that yielded "exceptional results" were dubbed "Best of the West." Best of the West thus illustrates a recurrent feature of much reclamation activity, in which successful projects are actually small parts of the original project area, the rest of which is substantially less successful. The CDA states that, in January 2000, IMC initiated a land management program for Noralyn that includes herbicide applications and prescribed burns. After herbicide was applied to kill cogongrass, IMC conducted the first burn in March 2001. Noralyn is now being managed for four to five families of Florida scrub jays, a listed species. Four Eastern Indigo snakes, 225 gopher tortoises, numerous gopher frogs, and 119 Florida mice have been relocated to Noralyn. Approved in 1988, constructed in 1991, and released in 1992, Hardee Lakes topsoil (FG-PC(1A)) has a 7.9-acre uplands component that was topsoiled with one inch over overburden. Despite receiving no maintenance, the site displays few weeds or nuisance exotics, although cogongrass has invaded the site. The reclaimed site displays saw palmetto, gallberry clumps, creeping bluestem grass, and, in topsoiled areas, flowering milkwood. The site includes an ecotone between pine flatwoods and a wet prairie, which developed due to the appropriate slope and soil. The CDA identifies two one-acre demonstration projects with Hardee Lakes topsoil. The Ft. Green-Hardee Lakes Pine Flatwoods Project, a topsoiled site, has achieved a lower ratio of saw palmetto to pines than is presently typically of fire-suppressed communities and is more typical of historic Florida pine flatwoods. The Ft. Green-Hardee Lakes Palmetto Prairie Site, also topsoiled, has been successfully revegetated with saw palmettos and other appropriate species. An interesting uplands reclamation site, for its different use of soils, is the Bald Mountain complex (KC-LB(2) and LB(4)), which is a 180-acre site. In a reclamation project approved in 1989 and 1996, constructed in 1993, and released in 1994 and 2002, IMC backfilled the Bald Mountain site with sand tailings down to 40 feet, capped the sand tailings with six inches of overburden, and then mixed the soils. Nearby, Little Bald Mountain received only sand tailings. Scrub were planted on both locations, but Bald Mountain also received sandhill plantings. Bald Mountain contains suitable sandhill species, such as sandhill buckwheat, although natal grass has been a problem. Natal grass is an invasive grass that colonizes quickly and often requires manual removal. Little Bald Mountain contains appropriate understory grasses, including short-leaved rosemary, an endangered species; Gopher apple, an important wildlife food; and Ashe's [savory] mint, a listed species. The rosemary and mint are reseeding themselves. The site also contains several large palmettos that were started from seed. Approved in 1996, constructed in 2000, and not yet released, Ft. Green/Horse Creek Xeric (FG-HC(3 & 5)) is a 99-acre uplands site reclaimed as xeric oak. IMC backfilled at least six feet of sand tailings over the overburden and then added topsoil over the sand. Already, this site, which is in the nearby Ft. Green Mine, has developed all levels of structure in the appropriate ecosystem, although, according to the CDA, it received irrigation "frequently" from an irrigation system at the start of the project. The site includes denser vegetation, such as shrub palmetto, grasses, and forbs. The direct transfer of topsoil has added species diversity, such as a Florida spruce and a listed orchid. The site also contains a small number of longleaf pines. IMC has hand-removed natal grass at this site, but has lately been using a new selective herbicide. According to the CDA, though, the presence of invasive exotics throughout the site is limited to 0.4 percent. One of the best upland reclamation sites is MU 15E Topsoil (FCL-LMR(6)), which was approved and constructed in 2002 and has not been released. This is a 30-acre topsoiled site in which IMC transferred topsoil carefully: if topsoil was taken from a depression on the donor site, the topsoil was placed in a depression in the receiving site. This site already displays a rich diverse plant palette with hardly any weedy or exotic species. In this site, palmetto and wet prairies slope down to a flatwoods marsh. This site also contains a reclaimed ephemeral wet prairie--possibly the only known ephemeral wet prairie ever reclaimed after phosphate mining. With modest efforts regarding soils and possibly more strenuous efforts regarding nuisance exotics, the reclamation of uplands is relatively easily attained, provided the sites can be protected for the longer timeframes necessary to establish upland forests and especially upland xeric communities and an appropriately shallow water table is reclaimed for pine flatwoods and palmetto prairies. Wetlands Wetlands reclamation is generally more difficult than uplands reclamation. Successful wetlands reclamation typically requires better command of post-reclamation topography, hydrology, soils, and physical environment. Material deviations in these parameters reduce, or eliminate, many wetlands functions, such as floodplain communication, nutrient sequestration, floodwater attenuation, ecotone transitions, and habitat diversification. The loss of such functions may result in immediate problems with water quality, water quantity, and habitat. Given the greater difficulty in successful wetlands reclamation, experience in wetlands reclamation is, not surprisingly, more mixed than the generally favorable experience in uplands reclamation. The greater difficulty in, and more guarded prognosis of, wetlands reclamation, as compared to uplands reclamation, means that the disturbance of wetlands demands closer analysis of the functions of the wetlands proposed to be mined, the functions of the wetlands proposed to be reclaimed, and the reclaimed soils, hydrology, topography, and physical environment on which the reclamation scientists will rely in reclaiming wetlands functions. The most important factor in wetlands reclamation is hydrology. Wetlands with less rigorous hydrological needs, especially if they also tolerate deeper water over longer periods of time, reclaim much more easily than wetlands with more precise hydrological needs, especially if they require shallower water over shorter periods of time. The phosphate mining industry has repeatedly reclaimed marshes and cypress swamps that are inundated deeply and for extended periods of time, but has had a much harder time reclaiming shallower wetlands requiring shorter hydroperiods or shallower water levels. The two most difficult wetlands of this type to reclaim are bay swamps and wet prairies. Among herbaceous wetlands, deep marshes are the easiest to reclaim. Often a target of Land-and-Lakes reclamation, deep marshes also are the result of reclamation projects that failed to create targeted shallower wetlands. Charlotte County ecologist Kevin Irwin noted that deep marshes are easier to reclaim than forested wetlands, for which the post-reclamation hydrology must be more precise. Similarly, a freshwater marsh, which tolerates 6-30 inches of water from 7-12 months annually, is easier to reclaim that a wet prairie, which tolerates 0-6 inches of water from 2-8 months annually. Among forested wetlands, bayheads or bay swamps, as defined in these cases as seepage forested wetlands, are harder to reclaim than mixed wetland hardwoods, as IMC biologist Dr. Douglas Durbin testified--likely, again, due to the requirement of more precise post-reclamation hydrology. Accordingly, the parties do not dispute the ability of the phosphate mining industry to reclaim deep marsh habitat, including freshwater marshes and shrub marshes, as well as deep swamps--principally cypress swamps. Like wet prairies, which sometimes fringe deep marshes, deep marshes provide habitat, supply food, attenuate floodwaters, and improve water quality. Deep marshes may host large numbers of different plant species. However, like lakes, deep marshes remove larger amounts of water from the watershed, as compared to shallower wetlands with shorter hydroperiods, due to evapotranspiration. The reclamation projects known as Morrow Swamp, Ag East, 8.4-acre Wetland, and 84(5) trace a short history of the reclamation of deep-marsh habitat. Permitted in 1980, constructed in 1982, and released in 1984, 150-acre Morrow Swamp represents a prototype, second- generation wetlands reclamation project. According to the CDA, Morrow Swamp is from an era in which reclamation did not attempt to restore topography: "This ecosystem included the reclamation of 150 acres of wetland (freshwater marsh, hardwood swamp, and open water) and 216 acres of contiguous uplands. The reclamation site was originally pine flatwoods and rangeland before it was mined in 1978 and 1979." Designed and built before reclamation scientists concentrated on soils, the hydrological connection between Morrow Swamp and Payne Creek, into which Morrow Swamp releases water, is a concrete structure in a berm that leads to a swale that empties into Payne Creek. Morrow Swamp reveals one obvious shortcoming of mechanical outflow devices, at least if they depend on ongoing maintenance, because vegetation and sedimentation in the infrequently maintained outflow device have blocked the flow of water and contributed to water levels deeper than designed. The reclamation scientists pushed the row-plantings of trees in Morrow Swamp in an effort to understand the relationship of vegetation and hydroperiod. In doing so, they killed thousands of trees, such as the cypress trees that Authority ecologist, Brian Winchester, found that grew to 6-8 inches in diameter and suddenly died. This tree mortality was likely due to problems with water depths and hydroperiods, as suggested by the healthier cypress trees lining the shallower fringe of the marsh. Morrow Swamp operates as a basin with a perched water table atop compacted, relatively impermeable overburden. Beneath the dry overburden is moist soil, so there is no groundwater connection between the marsh and the surficial aquifer. According to Mr. Carter, sand is 15 times more permeable than overburden. Morrow Swamp presents numerous shortcomings, but not to alligators, who find ample food and habitat in and about the deep marsh. More importantly, the emergent-zone vegetation within Morrow Swamp is sequestering nutrients and thus providing water-quality functions. Unfortunately, the deeper water supports only floating vegetation, which is much less efficient at sequestering nutrients, and less diverse than the shallower emergent vegetation, so the excessive depths of Morrow Swamp limit its water-quality functions. Although short of a model wetlands reclamation project, Morrow Swamp was an important milestone in the development of wetlands reclamation techniques and clearly functions as a deep shrub marsh today. Permitted in 1985, constructed in 1986, and released in 2002, 214-acre Ag East (PC-SP(1C)) was built on the knowledge acquired from Morrow Swamp. At Ag East, which is just northeast of Morrow Swamp, the reclamation scientists, planting a large variety of trees, focused on water levels and hydroperiods. The reclamation scientists engineered a wetland system with less open water than Morrow Swamp. They also inoculated the surface with a layer of organic mulch material 2-4 inches thick. However, the design of Ag East again incorporated mechanical devices to control water levels. A weir at one corner of Ag East contains boards; by removing or adding boards, reclamation scientists could control the water depths behind the weir. The deep marsh within Ag East is excessively deep with an excessively long hydroperiod. In certain respects, Ag East has functioned better than Morrow Swamp, although there is some question as to vegetative mix establishing the site and the associated functions that the vegetation will provide. Again, though, Ag East features a functioning deep marsh. One clear shortcoming of Ag East was the failure to create appropriate upland habitat, such as pine flatwoods, around the wetlands, so that wetland species could find appropriate uplands habitat for breeding, nesting, or feeding. The CDA notes the availability of quarterly water quality monitoring data, over a five-year period, for pH, dissolved oxygen, conductance, and total phosphorus, among other parameters, but the results are not contained in this record. Permitted in 1983, constructed by 1986, and released in 1995, 8.4-Acre Wetland (FG-83(1)), which was targeted for 8.4 acres of wetland forested mixed, represents an early use of topsoil, which was a good seed source for herbaceous species and helped increase the effective depth of overburden. As noted above, shallower overburden discourages tree growth past a certain stage. However, 8.4-Acre Wetland also uses a water- control weir to control water depths on the reclaimed wetland. Despite its smaller size than Morrow Swamp or Ag East, 8.4-Acre Wetland was a more ambitious project hydrologically, as it attempted to replace a seepage wetland with a seepage wetland that would receive water from the surrounding uplands. Unlike Morrow Swamp and Ag East, 8.4-Acre Wetland was designed to reclaim only forested wetlands, not forested wetlands and marsh wetlands. Unfortunately, 8.4-Acre Wetland did not re-create a seepage wetland due to excessively deep water and excessively long hydroperiods. Emphasizing instead the creation of microtopography, the reclamation scientists added sand-tailings hummocks within the deeper marsh, effectively lowering the water table under the mound, and planted wetland herbaceous and forested species that could not tolerate the wetter conditions around the hummock. The evidence is conflicting as to the success of these hummock plantings, but the idea was sound. Parts of 8.4-Acre Wetland are at least half infested with cattails, and sizeable areas within 8.4-Acre Wetland are reclaimed marsh, not swamp--despite the attempt of the reclamation scientists to reclaim forested wetlands only. Permitted in 1985, constructed by 1987, and released in 1998, 84(5) (FG-84(5)) was targeted for 17.1 acres of wetland forested mixed and 2.3 acres of freshwater marsh. This site is notable for its soil characteristics. After two soil borings, Mr. Carter could not find a water table in the first 80 inches beneath the surface. However, he found an A horizon, but the CDA notes that this site received 18 inches of donor topsoil. Even more recent reclamation projects have tended to yield deep marshes. Permitted in 1997, constructed in 2002, and not yet released, 198-acre P-20 (FG-HC(9)) exists behind the berm that remains from the ditch and berm system that existed during mining. The sole outlet of the marsh is a discharge pipe, which, presently clogged with vegetation, appears to be contributing to excessively high water depths and excessively long hydroperiods, resulting in an abrupt transition from marsh to uplands without the zonal wetlands associated with natural transitions from marsh to uplands. Water in the marsh spreads into the surrounding uplands, which are planted with upland trees. The berm also prevents natural communication between the marsh and the floodplain of Horse Creek, which is a short distance to the west of P-20. In the reclamation projects described above, more often than not, the reclamation scientists reclaimed deep marshes while targeting shallower wetland systems or at least shallower marshes or swamps. By the mid-1980s, wetlands reclamation scientists were addressing more closely hydrology, vegetation, topsoil, and surrounding upland design, and DEP was imposing post-reclamation monitoring requirements on the phosphate mining companies. One common feature of most of these deep-marsh reclamations is their reliance upon artificial drainage outlets. Inadequate or nonexistent maintenance of these outlets causes excessive water depths for excessive periods. Additionally, reliance on artificial drainage outlets betrays the choice not to attempt more sophisticated design and more precise contouring of the post-reclamation landscape. Improvements in the design and execution of contouring could produce relief from the deep- marsh tendencies of reclamation practices in at least three ways: by flattening the slopes of the edges of the marshes to encourage the formation of more emergent vegetation and wet prairie fringes; introducing a more irregular microtopography in the submerged bottom, including hummocks, to develop greater habitat diversity; and engineering and grading more closely the topographical outlets of marshes, instead of relying on manmade drainage devices that required more maintenance than they received, to better reproduce pre-mining drainage features and access effectively the reclaimed water table. After 8.4-Acre Wetland, reclamation scientists produced, in addition to the P-20s, other marshes with better fringes, so as to support wet prairie fringes, but the most, and evidently only, successful example of shallow-wetland reclamation over an extensive area is PC-SP(2D) (SP-2D). Permitted in 1988, constructed in 1992, and released in 1998 (wetlands), SP(2D) comprises 97 acres of forested and herbaceous wetlands. According to Mr. Winchester, SP-2D exhibits a more natural hydroperiod than the other reclaimed wetlands that he studied. Mr. Winchester visited SP-2D during the dry season, and the shallow wetland was appropriately dry, even though other reclaimed wetlands at the time were inappropriately wet. Mr. Winchester also found less than ten percent coverage by exotic vegetation. Wet prairie fringes deeper marsh at SP-2D, rather than forming larger areas of isolated or connected wet prairie, but this wetland achieves extensive shallow-water areas. According to Authority ecologist Charles Courtney, the marsh of SP-2D appears fairly healthy and contains appropriate vegetation. SP-2D contains sawgrass and forbs, including maidencane and duck potato. Crayfish occupy the wet prairie fringe and are eaten by white ibis and otter. The marsh zonation found at SP-2D is partly a result of appropriate soil reclamation. Mr. Carter found good communication between the shallow marsh at SP(2D) and the surficial aquifer. In the wet season, Mr. Carter found the water table at eight inches above grade, demonstrating that the dry conditions found by Mr. Winchester during the dry season did not extend inappropriately into the wet season. Mr. Carter determined that the first four inches of the wetland is mulched topsoil overlying at least four feet of sand tailings. The subsurface soils were appropriately saturated. Permitted in 2002, constructed in 2003, and not yet released, 1.3-acre FCL-NRM(1) (Regional Tract O, ACOE #362) also contains wet prairie vegetation, but the value of this site, for present purposes, is limited by two factors: its age and its use of a technique not proposed for OFG. Regional Tract O, ACOE #362, is a new site that showcases the success--one year after planting--of the technique of cutting wet prairie sod at a donor site and laying it at the recipient site. Sod-cutting is a good technique, earlier used at Morrow Swamp, but is more expensive than the topsoil transfer proposed for OFG. The reclamation of forested wetlands has improved in recent years. To some extent, the history of forested-wetlands reclamation tracks the path of herbaceous-wetlands reclamation: deeper water for longer periods followed by instances of shallower water for shorter periods. Early in the forested-wetlands reclamation process, reclamation scientists and phosphate mining companies favored cypress trees due to their tolerance of a wider range of water depths and hydroperiods than other wetland trees. However, cypress trees do not occur naturally in the forested wetlands being mined in this part of Florida. Over time, reclamation scientists deemphasized the number of species of wetland trees and emphasized instead species that corresponded to those in comparable forested wetlands. Herbaceous and forested wetlands present different reclamation challenges due to the time each type of wetland requires for revegetation. An herbaceous wetland takes 1-2 years to revegetate, but a forested wetland may take 1-2 decades to gain "really good structure," as Dr. Clewell testified. In addition to taking longer to establish than herbaceous wetlands, forested wetlands require two stages of plantings because the groundcover cannot be added until 4-5 years after planting the trees, so that the trees provide sufficient cover for the appropriate groundcover to grow. The hydrological requirements of different forested wetlands vary. IMC will be reclaiming mostly mixed wetland hardwoods (44 acres), bay swamps and wetland forested mix (each 18 acres), and hydric pine flatwoods (15 acres). All of these communities require water depths equal to those required by wet prairies. Hydric pine flatwoods have a very short hydroperiod-- shorter even than the wet prairie. Bay swamps have a long hydroperiod, comparable to that of the freshwater marsh. And mixed wetland hardwoods and wetland forested mix have hydroperiods roughly equal to that of the wet prairie. The dryness required by mixed wetland hardwoods, wetland forested mix, and especially hydric pine flatwoods make them difficult to reclaim. At first glance, the longer hydroperiod of the bay swamp would seem to make it easier to reclaim, among forested wetlands, but two factors make the bay swamp the most difficult of forested wetlands to reclaim. First, as defined in these cases, the bay swamp provides a critical seepage function, which is hard to create because of its reliance on a precise reclamation of topography, hydrology, and soils, at least with respect to the soil-drainage characteristics. Second, the mucky soils of the bay swamps are difficult to reclaim, given their slow rate of formation, as noted above. Thus, even without the requirement of the dominance of bay trees within the bay swamp, as defined in these cases, bay swamps are very difficult to reclaim, as reclamation experience bears out. An early reclaimed forested wetland is 4.9-acre Bay Swamp (BF-1), which was created on land that had been cleared, but at least large portions of it were never mined, so, except possibly for a disturbed A horizon, the pre-mining soils and site hydrology were intact. Permitted under a predecessor program in 1979, constructed by 1980, and released in 1982, Bay Swamp earned restrained praise from the Authority as, with Dogleg Branch, one of the two highest-functioning reclamation sites. This praise is quickly conditioned with the warning that Bay Swamp did not reclaim as a bay swamp, but as another type of forested wetland, albeit a relatively high functioning one. For all these reasons, Bay Swamp is of limited relevance in evaluating the success of forested wetlands reclamation projects. However, in commenting upon Bay Swamp, the CDA offers some insight into the evolution of reclamation design standards and objectives and the optimism of reclamation scientists when it notes the difficulty of establishing loblolly bay-dominated swamps, "apparent[ly because they require] perennially moist, or wet, soil that is not inundated. Heretofore, these moisture conditions have not been specified as an objective in reclamation design. If these moisture conditions were targeted for reclamation, loblolly bay swamp creation would likely become routine." Another candidate for a reclaimed bay swamp is Lake Branch Crossing (BF-ASP(2A)). Permitted in 1993 and modified in 1997, constructed in 1996, and not yet released, 13.4-acre Lake Branch Crossing contains numerous sweet bays, loblolly bays, and black gums. However, this site was replanted with 4000 trees in mid-2002, and over one-quarter of these trees are displaying signs of stress, so they may not survive. Lake Branch Crossing is bound by a berm with culverts, which may not share a common elevation. Lake Branch Crossing is another excessively deep wetland with an excessively long hydroperiod. Although Lake Branch Crossing exhibits some seepage, it derives its water from a nearby CSA with a much-higher elevation and thus does not compare to the seepage systems to be reclaimed at OFG. The final candidate for a reclaimed bay swamp is Hardee Lakes (FG-PC(1A)), which is a 76-acre wetland forested mixed at the top of the Payne Creek floodplain. Permitted in 1989 and modified in 1994, constructed by 1991, and released in 2000, Hardee Lakes (which is not Hardee Lakes topsoil--the uplands site described above) contains a narrow seepage slope between the berm along the edge of a reclaimed lake and the natural Payne Creek floodplain. Although Hardee Lakes contains some bay trees and operates as a seepage wetland, the setting is inapt for present purposes, given the narrow slope descending from the nearby reclaimed lake, which provides the water for the seepage system. Like Lake Branch Crossing, Hardee Lakes presents an unrealistically easy exercise in the reclamation of a seepage slope and is therefore irrelevant to these cases. At OFG, broader seepage slopes will receive much of their water from upgradient groundwater that is not derived from a lake or other surface water, so the reclamation scientists must reclaim more accurately the topography, hydrology, and soils, again, at least with respect to soil-drainage characteristics. Reclamation scientists monitored Hardee Lakes following reclamation. Besides the seepage slope described in the preceding paragraph, Hardee Lakes contains shallower wetlands, including productive wet prairie and mixed wetland hardwoods that are growing without the need of hummocks, but these areas appear to be more isolated than extensive. As IMC restoration ecologist John Kiefer noted, shallow swamps are better than deep swamps. Again, the tendency toward deeper reclaimed systems, even recently, has plagued reclaimed forested wetlands, such as Lake Branch Crossing, as it has plagued reclaimed herbaceous wetlands. Permitted in 1992 and modified in 1998, constructed in 2002, and not yet released, North Bradley (KC-HP(3) and PD-HP(1B)) was reclaimed for 12 acres of wetland hardwood forest, 21 acres of wetland conifer forest, and 87 acres of herbaceous marsh. North Bradley suffers from poor communication with its water table, as evidenced by Mr. Carter's discovery of a perched water table under the marshes and an excessively deep water table, at 48 inches, under the forested wetlands, as compared to a water table at 40 inches under the uplands. Although the marsh is present, the forested wetland is largely absent. The SP(2D) of forested reclamation projects is Dogleg Branch (L-SP(12A)). The 19.8-acre wetland component of Dogleg was targeted exclusively for wetland hardwood forest. Another 83 acres of Dogleg was reclaimed as upland hardwood forests. Permitted in 1983, constructed by 1984, and released in 1991 (uplands) and 1996 (wetlands), Dogleg's hydrology is better, as one reclaimed area reveals seepage from a mesic area sheetflowing into the stream channel, which was also reclaimed and is discussed in the following section. Due to its proximity to the reclaimed wetlands, this mesic area was probably part of the reclaimed uplands. According to the CDA, Dogleg received transfers of its own mulch and received several phases of tree plantings over several years. The CDA notes that Dogleg was the first forested wetland mitigation project under Florida's dredge and fill rules. Trees were established in part by the transplanting of rooted tree stumps. Forest herbs and shrubs and mature cabbage palms were transplanted from nearby donor sites. Despite these and other efforts, according to the CDA, "design flaws attributable to a lack of prior restoration experience required costly mid-course corrections." Due to high tree mortality, trees had to be replanted over 11 years. The CDA concludes that the problem was a depressed water table due to nearby ongoing mining operations--if Dogleg had a ditch and berm system, it certainly did not have recharge wells. Following mining, according to the July 1995 semi-annual report, over 30 acres of mine pits immediately east and north of the unmined headwaters of Dogleg were filled with sand tailings, which then released "[c]onsiderable in-bank storage of ground water from this sand[, which] has seeped ever since through Dogleg Preserve and into the replacement stream." Prior to the cessation of mining, though, Dogleg suffered dehydration. According to the CDA, due to the drawdown, the topsoil dried out, and the overburden, on which the topsoil had been placed, hardened in the dry season, retarding root extension. The actual soil conditions are described in greatest detail in the July 1995 semi-annual report, which states that 12 inches of topsoil overlaid the "overburden fill," which was "clayey sand." Repeated and persistent replanting of trees, seedlings, and saplings eventually succeeded in establishing an appropriate wetland forest, which, given the prevalence of hardwoods, would constitute the successful reclamation of a mixed wetland hardwoods community, given the negligible representation of cypress trees and other conifers at the site. As reclaimed, Dogleg hosts 24 different species of wetland trees, including all that occur on OFG. Dogleg's forested wetlands are functioning well, although the reclaimed uplands have a major cogongrass infestation. Permitted in 1985, constructed by 1987, and released in 1998, 19.4-acre FG-84(5) (84(5)) was targeted almost entirely for wetland forested mixed, and small areas within 84(5) have achieved this objective. However, reclamation scientists planted so many cypress trees that their dominance today precludes the application of the wetland forested mixed label to the overall wetland. Nonetheless, 84(5) is a relatively high- functioning forested wetland community today. Engineered to contain hummocks, 84(5) also featured the use of transferred topsoil overlying cast overburden to a depth of at least six feet. Despite the presence of the topsoil layer, the proximity of the cast overburden to the surface, without an intervening sand layer, may have discouraged the formation of an appropriate water table. Although drawing on a lake, 84(5) displayed, in one soil boring during the middle of the wet season, no water table--not even a perched one--through the first 80 inches below grade. A small strip of saturated soil existed at the surface, but the highly compacted and impermeable overburden prevented communication between the wetland and the surficial aquifer. The slopes of 84(5) are also excessively steep. Substantial efforts are required to reclaim the shallow herbaceous wetlands and forested wetlands to be reclaimed at OFG. Deeper marshes and swamps require less effort to reclaim, although they develop more often than targeted when the reclamation scientists overshoot the mark as to hydrology. For shallow wetland systems, which are more important to reclaim, the failures far outnumber the successes, even today, so considerable caution is required in mining high-functioning shallow wetland systems and considerable effort is required in their reclamation. No bay swamps have been reclaimed, except under atypical conditions. Streams The successful reclamation of streams has also proven elusive to reclamation scientists and the phosphate mining industry. Although only one reclamation of a high-functioning, extensive shallow herbaceous wetland exists, fringe and small- scale shallow wetlands have been reclaimed. The difference between the reclamation of shallow herbaceous wetlands and streams is that reclamation scientists have benefited from 25 years of trial and error in engineering shallow wetlands. No similar history exists in the engineering of streams. Only nine stream-reclamation sites are identified in these cases, and, as DEP contends, only one of these sites is successful: Dogleg Branch. And even Dogleg Branch fails to access its floodplain properly and probably never will. The biggest difference between shallow wetlands reclamation and stream reclamation is that, until OFG, the phosphate mining industry has not intensively designed stream-reclamation projects, so IMC and its reclamation scientists have little experience on which to draw. A wetlands-reclamation practice, as found in a Florida Institute of Phosphate Research study described by Mr. Irwin, has been to reclaim wetlands downslope from their pre-mining location. Concentrating reclaimed wetlands downslope facilitates the re-creation of supporting hydrology. For OFG, IMC proposes to relocate wetlands downslope--probably to good effect, given the reversion of OFG to cattle ranching, post- reclamation. However, an adverse aspect of this practice has been the mining of upslope, lower-order tributaries and their replacement with downslope deeper marshes. Although difficult to quantify, this and similar reclamation practices have resulted in the destruction, by phosphate mining, of many lower- order streams and their permanent loss to the watershed and ecosystem. When attempting to reclaim streams, rather than convert them to downslope marshes, the phosphate mining industry and reclamation scientists have enjoyed little success. Two reasons likely explain this poor record: the complexity of the functions of a lower-order stream system, including its riparian wetlands and floodplain, and an excessive reliance on the ability of streams, post-reclamation, to self-organize. The importance inherent in the stream, its riparian wetlands, and its floodplain, as a functional unit, is reflected in the decision of IMC to extend the no-mine area to Horse Creek and its 100-year floodplain. Dr. Durbin accurately observes that IMC and its 100-year floodplain are, respectively, the first and second most important natural resources present at OFG. Horse Creek's tributaries and their floodplains are important for many of the same reasons. Relying upon reclaimed systems to self-organize is an essential element of effective reclamation. Natural and anthropogenic forces shape all of the natural systems present at OFG, and these forces will shape the reclaimed systems. Good reclamation engineering accounts for the dynamic nature of these reclaimed systems by establishing initial conditions, such as natural outfalls instead of weirs and culverts, that can evolve productively in response to the forces to which they are subject and eventually become high functioning, self-sustaining ecosystems. On the continuum between intensively engineered reclamation projects and reclamation projects that rely on self- organization, stream-reclamation projects in the phosphate mining industry have so heavily emphasized the latter approach over the former that they may be said to have reclaimed streams incidentally. That is, reclamation scientists have reclaimed streams by contouring valleys so that the erosive process of flowing water would form a stream channel over time: often, a long time. At DEP's urging after the issuance of the Altman Final Order, IMC has introduced a much more intensively engineered stream-reclamation effort in its Stream Restoration Plan. The main problem in assessing the likelihood of the success of the highly engineered Stream Restoration Plan is its novelty. On the one hand, the incidental reclamation of streams typically has been so slow in restoring functions that a more intensively engineered plan could generate quick gains, at least in the replacement of the functions of low-functioning stream systems, such as those that have been substantially altered by agricultural uses. On the other hand, the Stream Restoration Plan has little success--and no engineered success--on which to build, and misdesigned elements could take longer to correct than the undesigned elements in an incidentally reclaimed stream. Thus, when the uncertainties of successful stream reclamation are combined with the complex functions of lower-order tributaries, their riparian wetlands, and their floodplains, the higher- functioning streams at OFG are less attractive candidates for mining and reclamation than even the shallow wetlands discussed above. Horse Creek's tributaries are not necessarily low- functioning due to their status as intermittently flowing, lower-order streams. Even intermittently flowing, lower-order streams, such as all of the tributaries of Horse Creek, restrict the erosion of sediment into higher-order streams, uptake nutrients, maintain appropriate pH levels, and provide useful habitat for macrobenthic communities, macroinvertebrates, amphibians, and small fish. Intermittently flowing lower-order streams attenuate floodwaters by diverting floodwaters into the streams' floodplains, thus reducing peak flows, extending the duration that floodwater is detained upstream, and increasing groundwater recharge and, thus, streamflow. Intermittently flowing lower-order streams also supply energy for higher-order streams and the organisms associated with these stream systems, as organic material from vegetation, algae, and fungi in the lower-order streams eventually is flushed downstream to serve as food sources to downstream organisms. The functions of streams, including intermittently flowing lower-order streams, become even more complex and difficult to replace when considered in relation to the functions of the riparian forested wetlands associated with many lower-order streams, such as the Stream 1e series. The riparian forested wetlands provide additional attenuation of floodwaters, as the trees impede the flow of floodwater more than would ground-hugging herbaceous vegetation. Mature trees lining the stream provide a canopy that can cool the waters in the warmer months (thus reducing water loss to evaporation), provide downstream food in the form of leaf litter in the seasonal loss of leaves, shield interior water and habitats from the effects of wind, provide habitat for feeding and hiding for wildlife, and protect the channel from the impact of cattle (thus reducing the damage from the production of waste and turbidity and destruction of the channel and vegetation). The riparian forested wetlands are important in the sequestration of nutrients. If accompanied by flow-through wetland systems, such as those present in the Stream 1e series, riparian forested wetlands display a complex interrelationship between the roots and soils that contributes to improved water quality, among other things. The riparian forested wetlands also provide microhabitats whose detail and design would defy the restoration efforts of even the most dedicated of stream- restoration specialists, of whom IMC's stream-restoration scientist, John Kiefer, is one. For some of the stream-restoration projects, DEP explicitly permitted or approved the reclamation of a stream. For other such projects, DEP, at best, implicitly permitted or approved the reclamation of a stream. Four of the projects are tributaries to the South Prong Alafia River and are in close proximity to each other. From upstream to downstream, they are Dogleg Branch, whose forested wetland component has been discussed above; Lizard Branch (IMC-L-SP(10)); Jamerson Junior (IMC-L-CFB(1)); and Hall's Branch (BP-L-SPA(1)). Hall's Branch is about 4-5 miles upstream from the confluence of the South Prong Alafia River and North Prong Alafia River. All four of these reclaimed streams are now part of the Alafia River State Park. As noted above, Dogleg, a 19.8-acre wetland hardwood forest and 83-acre upland hardwood forest, was constructed in 1984 and is the oldest of these four reclamation sites adjoining the South Prong Alafia River. Next oldest is Hall's Branch, which was permitted as a 3.8-acre wetland hardwood forest in 1982, constructed by 1985, and released in 1996. Next oldest is Jamerson Junior, which was permitted as a 4.3-acre wetland forested mixed in 1984, constructed in 1986, and released in 1996. Ten years younger than the others is Lizard Branch, which was permitted in 1983 and modified in 1991, constructed in 1994, and released in 1996; some question exists as to its target community, but it was probably a swamp. The reclaimed stream at Dogleg Branch is part of a second-order stream, although the CDA reports that Dogleg Branch was a first-order stream. Pre-mining, Dogleg Branch and Lizard Branch joined prior to emptying into South Prong Alafia River. Portions of the record suggest that the reclaimed stream lies between unmined stream segments upstream and downstream, although one exhibit, cited below, implies that the mining captured the point at which the stream started. The CDA and the July 1995 semi-annual report state that the headwaters of Dogleg were unmined or preserved. The CDA adds, with more detail than the other sources, that the headwater and first 600 feet of the stream were unmined, and the next 1000 feet, down to the forested riparian corridor of South Prong Alafia River, was mined. Due to its detail, the CDA version is credited, as is the July 1995 semi-annual report: the headwaters of Dogleg Branch are unmined. The July 1995 semi-annual report states that the stream-reclamation component of Dogleg Branch required persistence, as did its forested wetlands component. In 1987, one year after the filling of the mine cuts with sand tailings, as described above, it was necessary to cut a new channel, because the gradient of the old reclaimed channel was too shallow and forced water to back up in the unmined headwaters. Reflective of the age of the reclaimed stream, the understory vegetative species associated with Dogleg Branch are more successional, having replaced the lower-functioning pioneer vegetative species that first predominated after reclamation. As a stream-reclamation project, Dogleg Branch has achieved close to the same success that it has achieved as a reclaimed wetlands forest or that SP(2D) has achieved as an extensive herbaceous shallow water wetland. The slope of Dogleg Branch's reclaimed channel is steeper than the slopes of its unmined channels, and the reclaimed segment, which functions well vertically within the banks of the channel, does not access its floodplain properly, largely due to its entrenched nature. Due to the entrenchment underway, it is unlikely that the reclaimed segment of Dogleg Branch will ever communicate with its floodplain, as its unmined segments do. Entrenchment is a measure of channel incision-- specifically, the width of the floodprone area, at a water level at twice bankfull, divided by the bankfull width. Entrenchment may cause excessive erosion, which may result in adverse downstream conditions, such as turbidity and lost habitat. Proceeding perpendicular to the flow of the water, entrenchment extends the channel into the riparian wetlands or uplands alongside the stream, dewatering any nearby wetlands and disturbing the local hydrology. Especially if entrenchment is associated with head-cutting, which operates up the streambed, the resulting erosion deepens the channel sufficiently that the water in major storm events can no longer enter its floodplain, but rushes instead downstream. Although the failure of Dogleg Branch to access its floodplain would not affect macroinvertebrates, which do not use the floodplains, the failure of the reclaimed stream to access its floodplain harms fish, which cannot access the floodplain during high water levels to forage, spawn, and escape predators or high water volumes, and reduces valuable aquatic-upland ecotones. This failure also reduces the ability of the stream to attenuate floodwaters. By chance, Charlotte County's stream- restoration expert Frederick Koonce visited Dogleg Branch shortly after a June 2003 storm event and saw the water from the stream enter the floodplains adjacent to the unmined segments of Dogleg Branch, but not the reclaimed segment. The less-rigorous approach of incidental stream restoration, at least in the mid-1990s, is evident the summer 1994 semi-annual report on Dogleg Branch, in which Dr. Clewell provides a detailed discussion of the biological aspects of the reclamation of this site. Implying that the incidental stream element of the Dogleg reclamation project may be nine years younger than provided in the parties' stipulation, Dr. Clewell writes: The temporary land use area was abandoned and reclaimed during the autumn of 1993. The perimeter canal was filled and the access road removed between Dogleg marsh and the unmined tip of original Dogleg Branch. Within a few days of a site inspection on December 2, 1993, final grading and revegetation had been completed, and water was discharging from Dogleg marsh into unmined Dogleg Branch for the first time ever. The water was free of turbidity. The entire connection had been sodded with bahiagrass turf. Dogleg Branch enjoys good water quality. On the two days that Charlotte County water quality scientist William Dunson tested its waters, in October 2003 and March 2004, the reclaimed Dogleg Branch had dissolved oxygen of 6.8 and 8.6 mg/l, iron of 325 and 212 ug/l, manganese of 41 and 22 ug/l, and aluminum of 160 and 132 ug/l. The Class III water standard for dissolved oxygen is 5 mg/l, except that daily and seasonal fluctuations above 5 mg/l must be maintained. The Class III water standard for iron is no more than 1.0 mg/l (or 1000 ug/l). There are no Class III water standards for manganese and aluminum. Dogleg Branch also passed chronic toxicity testing for reproductivity and malformation. However, Dogleg Branch is distinguishable from at least one of the OFG streams. Dogleg Branch is a much less complex restoration project because reclamation scientists did not need to re-create headwaters, the first 600 feet of stream downstream of the headwaters, or flow-through wetlands. Also, the mined segment of Dogleg was much shorter than the mined segment of the Stream 1e series: 1000 feet versus 2039 feet for the Stream 1e series. Betraying an emphasis on forested wetlands to the exclusion of streams, Dr. Clewell places Hall's Branch a close second to Dogleg among stream-reclamation projects. However, DEP properly did not add a second stream to its list of successful stream-reclamation projects. Reclaimed Hall's Branch is not close to performing the functions of reclaimed Dogleg Branch, and, because of the large gap between Dogleg and all of the other reclaimed streams, it is irrelevant which of them occupies second place. The most visible shortcoming of the reclaimed stream at Hall's Branch is its color. Parts of the water in the reclaimed stream within Hall's Branch are highly discolored with iron flocculent leaching from the surrounding mesic forest and shrub communities. Mr. Dunson's water quality tests in reclaimed Hall's Branch, in October 2003 and March 2004, revealed iron levels of 117,000 ug/l and 4025 ug/l, which are 117 times and 4 times the Class III water standard. Dissolved oxygen was also well below Class III standards at 1.5 mg/l and 2.1 mg/l. Manganese was 1880 ug/l and 392 ug/l, and aluminum was 226 ug/l and 35 ug/l. Like Dogleg Branch, Hall's Branch also passed chronic toxicity tests for reproductivity and malformation. The hydrological connection between the surficial aquifer and the reclaimed stream at Hall's Branch is probably interrupted. Mr. Carter, who did not visit Dogleg Branch, inspected Hall's Branch and found the water table 12 inches below the surface. A soil sample reveals overburden with a layer of topsoil. The CDA seems to indicate that part of Hall's Branch was backfilled with sand tailings of an unspecified depth and part of it was merely contoured overburden--a pattern suggestive of that planned for OFG. The CDA states that trees were planted in mulched areas. The reclaimed forest is dominated by cypress, not the targeted wetland hardwoods. Jamerson Junior is a 4.3-acre reclamation site permitted as a wetland forested mixed community in 1984, constructed by late 1985, and released in early 1996. Part of the reclaimed stream is a second-order stream. Like Hall's Branch, Jamerson Junior also shows signs of orange-colored water leaching in to the stream from the nearby mesic zone. However, the water quality in Jamerson Junior is closer to the water quality in Dogleg Branch than Hall's Branch. Mr. Dunson's iron readings, in October 2003 and March 2004, were 583 ug/l and 195 ug/l, which are within Class III standards. Dissolved oxygen was slightly higher than at Dogleg Branch: 7.0 mg/l and 8.0 mg/l. Manganese was 136 ug/l and 21 ug/l, and aluminum was 391 ug/l and 101 ug/l. However, Jamerson Junior failed chronic toxicity testing for reproductivity, but passed for malformation. This is the only stream that IMC also tested for toxicity, and IMC obtained similar results, according to Dr. Durbin. Soil samples reveal a highly variable soil structure underlying Jamerson Junior. Subsequent reclamation work on the stream required the addition of material to change the elevation of the stream bed and possibly to change the drainage characteristics of the original backfilled material. On the day that Mr. Carter visited Jamerson Junior on August 14, 2003, he found the stream flowing. During the wet season, the water table should normally be expressed in the stream. Presenting a more interrupted relationship between the surficial aquifer and the stream than at Hall's Branch, Jamerson Junior displays no connection between the stream bed and water table, at least to a depth of 40 inches. A soil boring revealed water immediately underneath the stream bed, but, at about 15 inches beneath the bottom of the bed, the soil dried to moist; at 40 inches, Mr. Carter found the water table under the stream. Likewise, the Jamerson Junior channel was poorly integrated with the surrounding wetlands and uplands. At the banks of the stream, Mr. Carter did not find the water table within 80 inches of the surface, which is additional evidence of a discontinuity between the water table and the stream. Much of the reclaimed forested areas are mesic, not hydric. The reclaimed floodplains are narrower than the floodplains in the unmined adjacent area, and the slope of the reclaimed channel is steeper than the slope of the unmined channel. The reclaimed uplands are infested with cogongrass, although less than is present at Dogleg. Lizard Branch is a 6-acre reclamation site permitted as a swamp community in 1983 and modified in 1991, constructed by 1994, and released in 1996. Few of the planted gums and maples are surviving. The uplands surrounding the reclaimed area are infested with cogongrass, which has penetrated the shallower wetlands. Lizard Branch is one of the lowest- functioning forested wetlands. Lizard Branch joins Jamerson Junior as one of only two of six reclaimed stream sites to fail chronic toxicity testing for reproduction, although it passed for malformation. Lizard Branch had the highest two dissolved oxygen readings of all six sites tested by Mr. Dunson: 12.6 mg/l and 7.1 mg/l. Its iron levels were 547 ug/l and 352 ug/l. Manganese was second lowest, behind only Dogleg Branch, at 71 ug/l and 30 ug/l. Aluminum was second highest at 445 ug/l and 45 ug/l. Lizard Branch is an interesting, recent reclamation site for several reasons. Lizard Branch represents a relatively recent instance of the destruction of a stream without its re- creation and either the failure of the incidental reclamation of a stream or the subsequent permission by DEP to allow the permanent elimination of the stream. Mr. Winchester testified that he could not even find a stream at Lizard Branch. Charlotte County ichthyologist Thomas Fraser treated Lizard Branch as a stream, but grouped it with marshes in his analysis, apparently due to the lack of channel formation. The fact is that, despite any effort to reclaim a stream, little, if any, stream structure is present at Lizard Branch. However, a stream once flowed over the reclaimed portion of Lizard Branch. In the summer 1994 semi-annual report, Dr. Clewell notes that Brewster Phosphate received a dredge and fill permit in 1983 to dredge and fill the "headwaters of two streams, Dogleg Branch and Lizard Branch" in connection with the mining at Lonesome Mine. Dr. Clewell adds: The permit was issued with the stipulation that the streams and their attendant riverine forest would be restored on adjacent physically reclaimed lands, concomitant with mining. The permit further stipulated that restoration would be monitored and that semi-annual reports documenting progress in vegetational restoration would be submitted to [DEP.] In the report, Dr. Clewell notes that reporting on Lizard Branch has been "discontinued" and DEP issued a new permit in 1991. The 1991 permit modification is not part of this record, but the result was the elimination of a stream, or at least any signs of a stream ten years after construction. Three of the remaining reclaimed-stream projects were built at about the same time as Lizard Branch project. For only one of these projects did the reclamation scientists explicitly target a stream. Permitted in 1985 and subject to a consent order in 1996, constructed in 1991-92 and 1995, and not yet released, 9.6-acre Tadpole Wetland (H-SPA(1)) was targeted to be about one-third wetland forested mix and two-thirds freshwater marsh. Much cogongrass has infested Tadpole, whose stream enters the Alafia River floodplain and leads to a ditch that runs the remainder of the distance to a point close to the Alafia River. Tadpole's water passed chronic toxicity testing for reproductivity and malformation. However, its water violated Class III standards for dissolved oxygen, with readings of 2.8 mg/l and 2.1 mg/l, and for iron, with readings of 11,300 ug/l and 1100 ug/l. Manganese levels were 166 ug/l and 20 ug/l, and aluminum levels were 660 ug/l--the single highest reading among the four reclaimed streams tested--and 95 ug/l. Permitted in 1985, constructed by 1996, and not yet released, Pickle Wetland (H-SPA(1)) is a 34-acre site, 0.8 acres of which was to be reclaimed as stream. A deep marsh that requires treatment of its nuisance exotics, such as cattails and primrose willow, Pickle is just northeast of Tadpole and a few miles north of Morrow Swamp and Ag East. Pickle's stream is surrounded by uplands. Pickle is the only reclaimed stream of six tested to fail chronic toxicity testing for malformation, although it passed for reproductivity. Pickle has the lowest dissolved oxygen of the six reclaimed streams tested by Mr. Dunson: 0.8 mg/l and 1.2 mg/l. Its iron levels violated Class III standards in October 2003, with a level of 4230 ug/l, but passed in March 2004, with a level of 786 ug/l. Manganese was 127 ug/l and 72 ug/l, and aluminum was 107 ug/l and less than 5 ug/l. Permitted in 1991, constructed in 1995, and not yet released, Trib A ((BF-ASP(2A)) is a 120-acre site to be reclaimed as a wetland forested mix, but it includes a slough that empties into an unmined channel with streamflow. To the extent that a reclaimed stream channel is discernible on Trib A, nine years after the completion of its reclamation, the channel is much more steeply sloped than the adjacent unmined channel-- steeper than the two percent slope, beyond which sandy stream bottoms begin to erode. Not surprisingly, the reclaimed channel has begun to head cut and entrench. In an adjacent unmined area, a stream exists within a floodplain with a very flat slope. In the mined area, the reclaimed floodplain is steeper, suggestive of impeded communication between the reclaimed stream and its floodplain. The groundwater communication at Trib A is almost as interrupted as it was at Jamerson Junior. At Trib A, the uppermost 20 inches of soil was saturated, at the time of Mr. Carter's site inspection. Beneath a moist soil layer, the water table occurred at 40-50 inches deep. Parts of Trib A were topsoiled, but the next layer down was originally from an area below the C horizon. However, the soil-formation process is underway. Permitted in 1995, constructed by 1998, and not yet released, 17.6-acre File 20-2B and 70-3 Dinosaur Wetland (FG- GSB(7)) was reclaimed as a freshwater marsh. Dinosaur is due south of Morrow Swamp and is a headwater wetland. The site is still undergoing treatment for cattails. The record describes little, if anything, about the status of this stream. The last two stream-reclamation reclamations were built at least five years after the last pair. Again, DEP and the phosphate mining company identified a stream as a target for only one of the projects. Permitted in 1989, 1992, and 1998, constructed in 1999, and not yet released, South Bradley (KC-HP(1A) is a 171- acre site, 1.7 acres of which was to be reclaimed as stream. South Bradley is just north of Pickle. The channel is steeply incised and deep at points. The channel runs through forested and unforested areas. Charlotte County ichthyologist Thomas Fraser found iron flocculent in South Bradley and no fish within this area of the reclaimed stream, but three species of fish in a nearby area. Permitted in 1999, constructed by 2003, and not yet released, MU R Wetland H (KC-HB(1)) is a 4.8-acre site to be reclaimed as wetland hardwood forest. Monitoring has not yet begun for this site. Although a tailwater system receiving water from a ditch running to a lake, rather than a natural stream, the channel that has formed in MU R Wetland H does not join the existing downstream channel; the two channels are offset by 75-100 feet. Also, the reclaimed floodplain of MU R Wetland H is more steeply sloped than the floodplain of the adjacent unmined area. The slope of the reclaimed channel is steeper than the slope of the unmined channel, and, due to poor design parameters, the new channel is headcutting into the floodplain, which does not appear to be communicating appropriately with the stream. Combining a more steeply sloped reclaimed floodplain with a headcutting reclaimed stream means, among other things, substantially less communication between the stream and its floodplain. The hydrology of MU Wetland H appears to have been ineffectively reclaimed. In the forested wetland a short distance from the stream, the soil remained unsaturated until 80 inches deep. Closer to the stream, the soil was saturated at a depth of 18-20 inches, but the underlying overburden remained dry to a depth of 70 inches, indicating again a failure to reclaim the water table at appropriate depths. As with all of the almost countless reclamation sites on which the parties' expert witnesses copiously opined, MU R Wetland H is not well-developed in the record in terms of pre- mining conditions, design elements, construction techniques, and post-reclamation conditions. However, the dislocated stream that has formed within this reclaimed wetland stream reinforces the principle that even incidental stream reclamation requires some engineering. The excessive reliance upon a contoured valley to self-organize into a stream, as noted above, has impeded the progress of the science of stream restoration, as applied to mined land in Florida. This factor is unique to streams and does not apply to uplands and wetlands. However, another factor has impeded progress in reclaiming successful systems--whether uplands, wetlands, or streams. This factor is undue emphasis on the identity of post-reclamation vegetation, as compared to pre- mining or reference vegetation, at the expense of function. Charlotte County and the Authority stressed the process of the identification of vegetative species, at the expense of undertaking complex functional analysis and attempting to situate reclaimed systems in the process of energy consumption and production. In part, their cases relied on showing that past reclamation projects, as well as that proposed for OFG, do not replicate pre-mining or reference-site vegetation. An undue emphasis on species identity suffers from two major flaws. First, as Dr. Clewell and Ms. Keenan testified, reclaimed sites undergo stages of colonization, and, during early stages, less-desirable species, such as Carolina willow and wax myrtle, may predominate at more-desirable canopy-forming species succeed them. Ms. Keenan added that the life expectancy of Carolina willow, in this part of Florida, is about 25 years, and no reclaimed site older than 15 years is dominated by Carolina willow. Second, any measure of species identity risks the elevation of replication over function, as DEP has already recognized. A criterion of replication, for example, discredits a reclaimed site with a lower species-identity score because it has been colonized by a greater share of more-desirable species than occupy the reference site. DEP has wisely discontinued the practice of assessing reclamation success in partial reliance upon the Morisita's Index. This index measures the identity of species between two sites or the same site pre-mining and post-reclamation, as a criterion of successful wetlands reclamation. In a similar vein, DEP has recently recognized that vegetative analysis cannot preemption functional analysis, especially as to streams. This recognition is evidenced by a report entitled, "Riparian Wetland Mitigation: Development of Assessment Methods, Success Criteria and Mitigation Guidelines," which was managed by Ms. Keenan, revised May 10, 2001, and filed with the U.S. Environmental Protection Agency Grants Management Office (Riparian Wetland Mitigation). Riparian Wetland Mitigation notes the unsatisfactory history of stream reclamation projects with their emphasis on vegetation to the exclusion of stream hydrology and geomorphology. Riparian Wetland Mitigation states: The more recent methods [of stream restoration] recognize that streams are not simply water conveyance structures, but are complex systems dependent on a variety of hydrological, morphological, and biological characteristics. It is now recognized that in order to successfully restore or create a stream, hydrology, geology and morphology must be considered in the design. Noting the increasing extent to which the phosphate mining industry is applying for permits to mine more and larger stream systems and reclaim them on mined land, Riparian Wetland Mitigation frankly admits: The success criteria included in permits issued by the Department for these newly created streams have been based primarily on vegetational characteristics as is typical of most permits requiring wetland mitigation. However, vegetation alone is a poor indicator of stream function and community health. The results of regular permit compliance inspections of existing stream mitigation projects . . . have suggested that for several projects, although existing riparian vegetation was meeting or trending toward meeting permit requirements, problems existed with site hydrology and habitat quality of the stream channel itself. DEP thus adopted a rapid bioassessment method known as BioRecon, which tests macroinvertebrates, and added two other components: habitat assessment and physical/chemical characterization. DEP then performed "BioRecon, habitat assessment, and physical/chemical sampling" on eight reclaimed streams. Of the eight sites sampled, "only one passed the BioRecon and Habitat Assessment." (It is unclear whether Riparian Wetland Mitigation intends to imply that this site-- obviously, Dogleg Branch--also passed the physical/chemical composition, but it probably did.) DEP then tested smaller, unmined streams and confirmed that they, too, could pass BioRecon and Habitat Assessment. Riparian Wetland Mitigation states that DEP will collect data from comparable unmined streams and attempt to relate geomorphological, hydrological, and biological data to develop more refined criteria by which to assess proposed stream-reclamation projects. When DEP issues these criteria, the likelihood of success of a specific stream-reclamation project will be easier to assess. Until then, the assessment of a specific stream-reclamation project remains more difficult, in the context of past reclamation projects that have reduced or even eliminated important functions of streams. Although DEP's new guidelines for stream restoration will mark a transition from a predominantly vegetative to a multi-variable analysis of stream function, even a predominantly vegetative analysis of stream function is superior to IMC's analysis of streams predominantly from the perspective of flood control, as set forth in the CDA prior to the Altman Final Order. In a remarkably candid admission of the difficulty of reclaiming the many functions of unaltered stream systems, including their riparian wetlands and floodplains, IMC, in its response to RAI-102 in the CDA, states: Although it is impossible in a reasonable amount of time to expect to restore the functionality of the creek systems and associated uplands which historically occurred on the One site and are proposed for mining, it is reasonable to conclude that the reclamation plan restores the primary functions of the watershed[:] i.e. the capture, storage, distribution, and release of precipitation. IMC's subsequent discussion in RAI-102 emphasizes the efficacy of mitigation, from a biological perspective, but only as to stream systems whose pre-mining condition is substantially altered. For relatively unaltered systems, IMC's message remains that the reclamation of functions, besides water quantity, within a reasonable period of time is "impossible." Summary of Findings on Past Mitigation/Reclamation Any attempt at assessing past reclamation projects is impeded by the general lack of data presently available, for each reclamation site, describing pre-mining hydrological, topographical, soil, and geological conditions; the functions of pre-mining communities; reclamation techniques; post-reclamation hydrological, topographical, soil, and geological conditions; and the functions, as they have evolved over time, of reclaimed communities. For post-reclamation water tables, the auger and shovel work of one or two men substitutes for several years of weekly piezometer readings in the wet season and monthly piezometer readings in the dry season--correlated to daily rainfall data collected at the same site. For post-reclamation water quality, a few preliminary toxicity and a few dozen water quality readings--some under less than optimal conditions-- substitute for systematic water-quality testing of a broad range of parameters, again over years. For post-reclamation soils, one soil scientists finds an A horizon and concludes substantial formation has taken place within 10 years; another finds an A horizon--never the same one at the same place--and concludes topsoil transfer; and both are probably correct. Absent better data, reliable analysis is difficult because a wide variety of factors may have contributed to the successes of SP(2D) and Dogleg and the failures of too many other sites to list. Even so, a few facts emerge. IMC can reclaim extensive areas of uplands, deep marshes, and cypress swamps, although difficulties remain with each of these types of reclamation projects. With greater difficulty, IMC can reclaim pine flatwoods and palmetto prairies. With even greater difficulty, IMC can also reclaim forested wetlands, except bay swamps. Far more difficult to reclaim than the communities mentioned in the preceding paragraph are extensive shallow wetlands, seepage bayheads, and streams. Any finding of present ability to reclaim these systems must uneasily account for the numerous failures littering the landscape, the failure ever to reclaim successfully a bayhead as bay swamps typically occur in the landscape, and the unsettling fact that nearly all reclamation successes of shallow wetlands are small patches-- almost always far smaller than designed. Any finding of present ability to reclaim these systems must rely heavily on SP(2D) and Dogleg Branch and the design of the current reclamation plan. The probability of the successful reclamation of any community, but especially extensive shallow wetlands, seepage bayheads, and streams, requires careful analysis of each community proposed to be mined and each community proposed to be reclaimed. For each such community, it is necessary to assess its ultimate functions of consuming and producing energy within a robust, sustainable ecosystem. Additional Features of OFG, Mining, and Reclamation Introduction The preceding sections detail the ERP, CRP approval, and WRP modification and other mitigation sites involving the reclamation of uplands, wetlands, and streams. This section adds information concerning OFG in its pre-mining condition, the proposed mining operations, and the proposed reclamation. OFG IMC adequately mapped the vegetative communities at OFG. As Doreen Donovan, IMC's wetlands biologist testified, trained persons using the FLUCFCS system of classifying vegetative communities tend to fall into one of two categories: lumpers or splitters. Scale dictates FLUCFCS code in many cases. Where one biologist may designate a larger, more varied area with one code, another biologist may designate the same area with several codes. The purpose of FLUCFCS coding dictates the scale. Subordinating vegetative-identity analysis to functional analysis undermines the arguments of Charlotte County and the Authority for an unrealistic level of precision in this exercise. The discrepancies in vegetative mapping noted by Mr. Erwin were insignificant. Many were the product of scaling differences, as noted in the preceding paragraph. Some were the product of distinctions without much, or any, difference, given the context and extent of the proposed activities. For present purposes, absent demonstrated differences in wildlife utilization, groundwater movement, or soil, distinctions between, for example, xeric oak and sand live oak on ten acres are essentially irrelevant. In total area, as compared to the 4197 acres of OFG, the claimed discrepancies did not rise to the level of noteworthy. As for the wetlands at OFG, DEP's acknowledged expert in wetlands identification, Deputy Director Cantrell, personally visited OFG and confirmed the accuracy of the wetlands determinations made three years earlier in December 2000 when DEP issued a Binding Wetland Jurisdictional Determination, which remains valid through December 2005. Deputy Director Cantrell noted minor omissions that might total a couple of acres, but these are insignificant, again given the scale of the proposed activity. The sole material flaw in IMC's mapping of OFG is in the omission of floodplains of the tributaries from Map C-3, although Dr. Garlanger's hydrological analysis, described below, adequately considered the storage and conveyance characteristics of these floodplains. Proper analysis of the tributaries' functions, besides flood control, and proposals to reclaim them is impeded by IMC's failure to depict graphically the 2.3-, 25-, and 100-year floodplains. The record suggests that BMR may have waived any requirement for maps of the floodplains except for those of Horse Creek, but the record does not suggest that, if BMR actually waived this requirement, it thus insulated the CDA from scrutiny with respect to all the information that would have been contained in floodplain maps or assured IMC of favorable analysis of this missing information. Charlotte County hydrologist John Loper prepared floodplain maps, which are Charlotte County Exhibits 1762 (mean annual floodplain), 1763 (25-year floodplain), and 1764 (100- year floodplain). These are credited as accurate depictions of the floodplains of the tributaries of Horse Creek. Mr. Loper's maps reveal little difference between the 25- and 100-year floodplains over much of OFG, including the Panhandle. The two floodplains of Stream 3e are slightly different, but the two floodplains of the Stream 1e series are less noticeably different. Focusing on the 25-year floodplain, the only wide, lengthy floodplain outside of the no-mine area is the floodplain along the Stream 1e series, which is the widest band of floodplain outside the no-mine area. At places, the floodplain of the Stream 1e series is as wide as the corresponding floodplain of Horse Creek. Even at its narrowest, which is along Stream 1ee, the floodplain of the Stream 1e series is as wide as that of Stream 2e and wider than that of Stream 3e. No 25-year floodplain runs along ditched Stream 3e?. The only other portions of the 25-year floodplain contiguous to the floodplain of Horse Creek, but outside the no-mine area, are the large wet prairie at the head of Stream 9w, the large wet prairie at the head of Stream 5w, and the headwater wetlands of Streams 1w-4w. As already noted and discussed in more detail below, all of these wetland systems, including the headwaters of Streams 1w and 3e, are lower-functioning than the wetland system associated with the Stream 1e series. As noted above, over half of the area to be mined is agricultural and another quarter of the area to be mined is uplands consisting largely of sand live oak, pine flatwoods, and palmetto prairie. Accordingly, OFG is characterized by native flatwoods soils, which exhibit high infiltration rates, but restricted percolation due to underlying hardpan or loamy horizons. About one-fifth of the soils at OFG are xeric soils. The wet season water table in the wetter areas will be 0-2 feet below grade and in the uplands over 3 feet below grade. Nothing in the record suggests that IMC will have much difficulty in reclaiming agricultural land or sand live oak communities. Nothing in the record suggests that any of the sand live oak that will be mined is atypically valuable habitat. As noted above, the pine flatwoods and palmetto prairie are more difficult to reclaim, but the pine flatwoods and palmetto prairie at OFG are not atypical instances of these common upland habitats. Some of these communities have been stressed by the lack of fire, so that hardwoods, such as oaks, have become sufficiently established as to resist thinning by fire. Lack of fire has also resulted in overgrown vegetation in more xeric areas. Among forested wetlands, IMC will mine 43 acres of mixed wetland hardwoods, 12 acres of hydric pine flatwoods, 9 acres of bay swamps, and 6 acres of hydric oak forests. Among herbaceous wetlands, IMC will mine 95 acres of wet prairie and 67 acres of freshwater marsh. Map F-3 depicts these wetlands with color-coding for ranges of wetlands values, under the Wetland Rapid Assessment Procedure (WRAP), which is used by the U.S. Army Corps of Engineers. Following a weeklong investigation of wetlands at the Ona Mine, as well as other IMC mines in the vicinity, the U.S. Army Corps of Engineers expressly approved revisions to WRAP to accommodate local conditions at OFG. DEP used a different assessment procedure, but WRAP remains useful for general indications of wetlands function. The WRAP scoring scale runs from 0-1, with 1.0 a perfect score. For ease of reading, the following sections shall identify wetlands scoring below 0.31 as very low functioning, wetlands scoring from 0.31 to 0.5 as low functioning, wetlands scoring from 0.51 to 0.7 as moderate functioning, wetlands scoring from 0.71-0.8 as high functioning, wetlands scoring from 0.81-0.9 as very high functioning, and wetlands scoring from 0.91-1.0 as the highest functioning. The asymmetry of the labeling scheme is to allow differentiation among the wetlands in the highest three categories, which, at OFG, are disproportionately represented, as compared to the lowest three categories. The purpose of these descriptors is only to differentiate relative values. As already discussed, the Map F-2 series identifies existing wetlands alphanumerically and by community, and Map I-2 similarly identifies all post-reclamation communities. In contrast to all reclaimed wetlands, which, as already noted, start with an "E" or "W," all existing wetlands start with a "G" or "H." The ease with which freshwater marshes are reclaimed obviates the necessity of extensively analyzing the condition of marshes presently at OFG, absent evidence of atypical habitat value. In general, the wetland corridor of Horse Creek, as defined by the no-mine area, ranges in quality from very high functioning in Section 29, which is the southernmost end of Horse Creek in OFG, to high functioning north of Section 29. However, narrow fringes of this corridor north of Section 29 are low functioning. Starting from the south, in Section 29, three wetlands are outside of the no-mine area: H031/H032/H033/H034, the G005 wetland complex, and a fringe of the wetlands running adjacent to Horse Creek--the western edges of G262, G266, and G259A are outside of the no-mine area. H031 is the largest part of the H031 complex and is mixed wetland hardwoods. H032 is a small freshwater marsh, and H033 is a hydric oak forest of the same size. H034 is a slightly larger wet prairie. H033 is low functioning. The remainder are high functioning. IMC will reclaim the same communities, as an ephemeral wetland complex. Pre-mining and post-reclamation, this wetland drains into West Fork Horse Creek. Considerably larger than H031, the G505 wetland complex is the headwater wetland of Stream 1w. G512 is the largest component of the G505 wetland complex and is wetland forested mixed. G513 is the next largest component and is a bay swamp. G514 is a fringe wet prairie. Slightly larger than G514, G511 is hydric oak forest. G507 is mixed wetland hardwoods, G506 is a small freshwater marsh, and G505 is a cattle pond. The mixed wetland hardwoods and fringe wet prairie are very high functioning, the bay swamp is high functioning, and the remaining wetlands are moderate functioning. IMC will reclaim the G505 wetland complex as a single bay swamp. G262 and G266 are wet prairie and hydric rangeland, respectively. G259A is mixed wetland hardwoods. The wet prairie and hydric rangeland are moderate functioning, and the mixed wetland hardwoods is very high functioning. IMC will reclaim these wetlands as wet prairie. Section 20 contains the headwater wetlands of Streams 2w, 3w, 4w, and 5w. These are mostly marshes, and they are all low to moderate functioning. These systems have been heavily impacted by agricultural uses. IMC will reclaim these as headwater systems, mostly marshes. IMC will also create one small and one medium ephemeral wet prairie near the headwater wetland of Stream 4w. Section 19, which drains to West Fork Horse Creek, contains three wet prairies (H002, H005, and H006) and a complex consisting of a bayhead (H009A) surrounded by a mixed wetland hardwoods (H009), which is fringed by a small wet prairie (H008). These wetlands are all low to moderate functioning. IMC will reclaim the H008 complex with a bay swamp buffered by a temperate hardwood, and it will restore a cattle pond at the site of the H002 complex. The reclaimed bay swamp will drain to West Fork Horse Creek. Section 18 contains a very low functioning, small wet prairie (H056), which is the only wetland in one of the three lowest ranges of WRAP scores outside of the wetland corridor of Horse Creek. Section 18 also contains a small part of a large wetland that is mostly in Section 17. The latter wetland is addressed in the discussion of wetlands in Section 17. Section 17 contains the West and Central Lobes. The entire Central Lobe is in the no-mine area, but a large wet prairie (G188) abuts the wetlands in the no-mine area of the West Lobe. IMC will reclaim this wet prairie, which is low functioning, as improved pasture, with a strip of hardwood conifer mixed. Several wetlands unassociated with the West and Central Lobes are outside the no-mine area, but on either side of Stream 6w, which leads to the West Lobe. G183, which is the headwater wetland of Stream 7w, is a freshwater marsh, which is moderate functioning. IMC will not reclaim the existing portion of Stream 7w upstream of the no-mine area, so the connected headwater marsh will be reclaimed as an ephemeral wet prairie. South of Stream 7w is a group of four small wetlands: G089, G090, G091/G092, and G093/G094. G089 and G090 are very small wet prairies. G091 and G093 are freshwater marshes, and G092 and G094 are wet prairie fringes. G090 is low functioning, and G089 and G091 are moderate functioning. G093 is very high functioning, and G094 is high functioning. Even the maps on the February submittal CD are unclear, but it appears that G089 and G090 will be reclaimed as ephemeral wet prairies. IMC will reclaim G091 as a small freshwater marsh fringed by a large mixed wetland hardwood and G093 as a large freshwater marsh fringed on the east by a small mixed wetland hardwood. The last version of Figure 13B-8 depicts the small freshwater marsh as isolated, but the large freshwater marsh as ephemeral. IMC will also create two small ephemeral wet prairies due south of the West Lobe and one small ephemeral wet prairie just east of the north end of the West Lobe. About one mile west of Horse Creek is a large wet prairie surrounding a smaller freshwater marsh that has been ditched for agricultural purposes. Part of this wet prairie extends into Section 18. The portion of this system in Section 18 is low functioning; the rest of it is moderate functioning. IMC will reclaim this entire area as improved pasture, except for replacing a single cattle pond. Section 16 spans Horse Creek, but mostly covers an area east of the stream, including the East Lobe. The only wetland outside the no-mine area on the west side of Horse Creek is G076/G077, a freshwater marsh fringed by a wet prairie. This small wetland is moderate functioning, and IMC will reclaim it as an ephemeral wet prairie. East of Horse Creek lies Stream 5e and its flow- through wetland, G204/G205. Predominantly a wet prairie, G204 is low functioning. IMC will reclaim it as a bay swamp. A small fringe wet prairie (G177) lies at the south end of the East Lobe, outside of the no-mine area, but it is low functioning, and IMC will reclaim it as hardwood-conifer mixed. A mixed wetland hardwood (G096), which is moderate functioning, fringed by a wet prairie (G097), which is low functioning, lie just north of where the no-mine area of the East Lobe joins the main no-mine area along Horse Creek. IMC will reclaim this wetland as a freshwater marsh fringed on the east by a wet prairie, and this wetland will be connected to the wetlands of the Horse Creek corridor. A freshwater marsh (G058) lies outside the no-mine area just north of the northeast tip of the East Lobe. This wetland is moderate functioning. IMC will reclaim this site as improved pasture, but will create a small ephemeral wet prairie just to the west of G058 and a larger freshwater marsh to the west of the created wet prairie. Section 8 contains two large areas of wet prairie (G048 and G047) at the head of Stream 9w. These wet prairies are moderate functioning, as are a couple of small wet prairies in Section 8 at the western boundary of OFG. IMC will reclaim these areas mostly as improved pasture, although it will create a large, connected wet prairie over the southeastern part of G048, but extending farther to the south and east. This reclaimed wet prairie will form the headwater wetland of reclaimed Stream 9w, which, as already mentioned, will be shortened from its current length. The only other wetland in Section 8 and outside the no-mine area is a freshwater marsh (G052). This marsh is high functioning. IMC will reclaim this site with a marsh and wet prairie. Like Section 16, Section 9 spans both sides of Horse Creek. On the west side of Horse Creek is mixed wetland hardwoods (G055) fringed by hydric woodland pasture (G054). The mixed wetland hardwoods is high functioning, and the hydric woodland pasture is moderate functioning. IMC will reclaim this site with a gum swamp fringed by temperate hardwoods upland. On the east side of Horse Creek, a small wet prairie (G167) is outside the no-mine area. This very high functioning wet prairie is connected to a large bay swamp (G166) to the north. The bay swamp, which is high functioning, lies partly within and partly outside the no-mine area and is connected to the wetland corridor of Horse Creek. Although high functioning, G166 is overdrained by a tile drain system that drains the citrus grove immediately upland and east of G166. Two mixed wetland hardwoods, which are outside the no-mine area, fringe the bay swamp; they are high functioning. IMC will reclaim a gum swamp for the wet prairie and all mixed wetland hardwoods for the east side of the bay swamp. Just north of the bay swamp that straddles the no- mine boundary is a much smaller bay swamp (G163) fringed by mixed wetland hardwoods (G164) that also straddle the no-mine boundary. Also connected to the wetland corridor of Horse Creek, these wetlands are very high functioning, and IMC will reclaim them with pine flatwoods. Between these two bay swamps straddling the no-mine boundary and the headwater wetland of Stream 8e is a small wet prairie (G041), which is moderate functioning and outside the no-mine area. IMC will reclaim this site with another ephemeral wet prairie. At the southern tip of the headwater wetland of Stream 8e is hydric flatwoods (G157), which is moderate functioning. IMC will reclaim this connected wetland with sand pine flatwoods. A smaller hydric woodland pasture (G154) also connects to another section of hydric flatwoods, which is in the no-mine area between the headwater wetlands of Streams 8e and 7e. The hydric woodland pasture is moderate functioning, and IMC will replace it with hardwood-conifer mixed, although IMC will reclaim a somewhat larger area of mixed wetland hardwoods just north of the present site of the hydric woodland pasture, where no wetland presently exists. The remaining wetlands outside the no-mine area in Section 9 are six isolated wet prairies. They are small wetlands, except for G039/G040, which is a wet prairie fringing a cattle pond, and G039, which is at the eastern boundary of OFG. However, they are all high functioning, even the wet prairie fringing the cattle pond. In this general area, IMC reclaims three ephemeral wet prairies, much closer to the no- mine area than the sites of the six isolated wet prairies, and a small freshwater marsh fringed by a community that is not listed in the legend in Map I-2. Interestingly, IMC also reclaims a large area of shrub and brushland and larger area of sand live oak, again closer to the no-mine area than the sites of some of the six isolated wet prairies. The remainder of the area will be reclaimed as improved pasture. Section 4 contains no-mine area in its southeast corner: Stream 2e and the Heart-Shaped Wetland. Almost all of the wetlands outside the no-mine area in Section 4 are in the top three scoring categories of functioning. Of the six wetlands complexes on OFG that are, in whole or in part, highest functioning, four of them are in Section 4. The two highest functioning wetlands outside Section 4 are in the no-mine area, and one of the highest functioning wetlands in Section 4 is in the Heart-Shaped Wetland. Three of the highest functioning wetlands are thus to be mined. Outside of Section 4, there are 14 wetlands or wetlands complexes outside the no-mine area that are in the second- and third-highest scoring categories. These are the mixed wetland hardwoods (H031) in Section 29; a small piece of mixed wetland hardwoods (G259A) straddling the no-mine boundary in Section 29; the bay swamp and mixed wetland hardwoods to the north in the headwater wetland of Stream 1w, which straddles Sections 29 and 20; the freshwater marsh partly fringed by wet prairie (G093) south of Stream 6w in Section 17; the freshwater marsh (G052) connected to Stream 9w and straddling Sections 17 and 8; the mixed wetland hardwoods flow-through wetland (G055) in Stream 9w and straddling Sections 8 and 9; the two bisected bay swamps (G166 and G163) and their mixed wetland hardwoods fringes in Section 9; and the six isolated wet prairies in the northeast corner of Section 9. In Section 4, there are only nine wetlands or wetlands complexes outside the no-mine area that are not in the second- or third-highest scoring categories, and all but two of them--a very small wet prairie fringe (G006) and half of a larger hydric woodland pasture (G105)--are at least moderate functioning. The wetlands in Section 4 fall into three categories: connected to the Stream 1e series, connected to Streams 3e and 3e?, and isolated. The long connected wetland of Stream 1e is mixed wetland hardwoods (G110). This wetland is high functioning, except for the headwater wetland of Stream 1ef, which is highest functioning. A narrow strip of wetland forested mixed (G132) runs along Stream 1ee. This wetland is moderate functioning. Proceeding from south to north, upstream the Stream 1e series, a freshwater marsh (G129) immediately upstream of Stream 1ee is high functioning, as is a smaller freshwater marsh (G125) immediately upstream of Stream 1ed. Two gum swamps (G123 and G121) in the flow-through wetland at the head of Stream 1ed are very high functioning, as is a freshwater marsh (G126) in the same wetland complex. Just downstream of Stream 1ef is a small freshwater marsh (G115) that is high functioning. Part of the mixed wetland hardwoods abutting this marsh to the east is very high functioning. Just upstream of Stream 1eb is the largest wetland complex of the Stream 1e series wetlands system. The largest communities forming this complex are hydric flatwoods (G107) and mixed wetland hardwoods (G110). The mixed wetland hardwoods envelope a small freshwater marsh (G108) and are fringed on the north by a strip of wetland forested mixed (G102). At the northernmost end of this complex is hydric woodland pasture. All of these communities are high functioning except the hydric woodland pasture, which is moderate functioning, and the hydric flatwoods and half of the marsh, which are very high functioning. Working back downstream, IMC will reclaim the mixed wetland hardwoods of the stream corridor, neglecting to replace the complexity provided by the three of the four flow-through marshes (G108, G125, and G129), the larger headwater marsh (G126), and the two gum swamps. IMC will also neglect to replace even the wetland function of the large hydric flatwoods (G107) and smaller hydric woodland pasture, as these sites are reclaimed as upland communities: pine flatwoods and temperate hardwoods, respectively. However, IMC will add complexity by adding a small marsh abutting the temperate hardwoods, two small bay swamps along the west side of the upper end of the Stream 1e series, a band of hydric flatwoods on both sides of part of the upper stream and a thicker area of hydric flatwoods east of Stream 1ed, a moderately sized area of hydric palmetto prairie within the thicker area of hydric flatwoods, and a thickened wetland corridor--mixed wetland hardwood--along Stream 1ee. The long connected wetland of Stream 3e (G137), which is wetland forested mixed, connects to a headwater or flow- through wetland, whose southern component (G136) is also wetland forested mixed. These wetlands are moderate functioning. The remainder of the wetland upstream of Stream 3e is marsh (G135), wet prairie (G134), and mixed wetland hardwoods (G133); they are all high functioning. The narrow wetland corridor of Stream 3e? is high functioning. The headwater wetland of Stream 3e? is a freshwater marsh (G016) fringed on the south by wet prairie (G015) and the north by mixed wetland hardwoods (G014). The mixed wetland hardwoods is moderate functioning; the marsh and wet prairie are high functioning. Working downstream along Streams 3e and 3e?, IMC will reclaim a large freshwater marsh/shrub marsh complex, fringed by wet prairie, at the site of the large headwater wetland of Stream 3e?. In place of the ditch, where IMC will restore Stream 3e?, IMC will probably reclaim mixed wetland hardwoods. (At present, Map I-2 shows improved pasture, but that was before IMC agreed to reclaim Stream 3e?.) IMC will reclaim the wetland complex between Stream 3e? and 3e with the same vegetative communities, except that it will eliminate some of the present system's complexity by replacing the wet prairie with freshwater marsh. Although Map I-2 inadvertently omits any reclaimed wetland community along Stream 3e, Figure 13A5-1 shows reclaimed wetland forested mixed. There are four isolated wetlands in the vicinity of Stream 1e series. At the northern boundary of OFG is a small wet prairie (G027), which is high functioning. Just west of Stream 1ec is a small hydric flatwoods (G118), which is moderate functioning. Just south of this hydric flatwoods is a larger wet prairie (G119) with a small area of hydric flatwoods (G119A), which are both high functioning. Just east of Stream 1ec is a small wet prairie (G028), which is high functioning, even though it is ditched. IMC will reclaim the high-functioning wet prairie (G027) with a freshwater marsh, the small, moderate-functioning hydric flatwoods (G118) with hydric flatwoods and possibly part of one of the bay swamps, the high-functioning wet prairie/hydric flatwoods (G119) with rangeland abutting a freshwater marsh, and the small, high functioning wet prairie (G028) also with the upland community of rangeland. There are four isolated wetlands south and east of Streams 3e and 3e?. The two largest are freshwater marshes (G024 and G021) fringed by wet prairies (G023 and G022, respectively). These are all highest functioning, except that G023 is high functioning. The two smaller wetlands are wet prairies (G025 and G026), which are both very high functioning. IMC will reclaim all four of these wetlands at their present sites with the same communities, except that IMC will replace one very high functioning wet prairie (G026) with improved pasture. North of the headwater wetland of Stream 3e? are five isolated wetlands. The largest is a large freshwater marsh (G004) at the northeast corner of OFG. A wet prairie (G005) fringes the southern edge of this wetland complex, which is ditched. The marsh is high functioning, but the wet prairie is moderate functioning. Two smaller ditched marshes (G008 and G010) lie southwest of this large complex; they are moderate functioning. A small mixed wetland hardwoods (G007) fringed by a narrow wet prairie (G006), which are north of the two marshes, are moderate and low functioning, respectively. The final isolated wetland is a freshwater marsh (G012) fringed by wet prairie (G011) and connected by ditch to the G014 wetland complex. The marsh is high functioning, and the wet prairie fringe is moderate functioning. IMC will reclaim improved pasture at the sites of four of these five wetlands. At the site of the large freshwater marsh (G004), IMC will reclaim a freshwater marsh, which will be fringed by wetland forested mixed. The wetland forested mixed will be fringed by hydric oak forest, which will be fringed by palmetto prairie. IMC will mine 10,566 linear feet of streams, reclaiming 10,919 linear feet. The current condition of these streams has already been adequately addressed, largely by Mr. Kiefer's assessment in the Stream Reclamation Plan, described above. All the tributaries are Class III waters, although, as Deputy Director Cantrell testified, they might not meet all Class III water standards. In fact, it is unlikely, given the level of agricultural alteration, for these tributaries, both within and without the no-mine area, to meet all Class III standards. As Deputy Director Cantrell testified, the unditched streams are the Stream 1e series, Stream 3e, and Stream 5e, although upstream of OFG, Stream 5e and its headwater wetlands have suffered extensive agricultural impacts. With the exception of the Stream 1e series and probably Stream 3e, elevated levels of turbidity and nutrients and reduced levels of dissolved oxygen are to be expected in the water of the tributaries on OFG due to the extensive ensuing erosion and low- flowing characteristics of these streams. Mining Ditch and Berm System Six months prior to the commencement of mining of each block, IMC will construct a ditch and berm system between the block and the adjoining no-mine area. The ditch and berm system captures the stormwater runoff that would otherwise leave the mine site and releases the groundwater that would otherwise remain at the mine site. The phosphate mining industry began using ditch and berm systems during mining in the late 1980s and early 1990s. IMC has designed the ditch and berm system to capture the water from the 25-year, 24-hour storm event with several feet of freeboard. For storms not in excess of the design storm, the ditch, which runs between the berm and the mine cut, will carry water around the perimeter of the mining block. During periods of high rainfall, IMC will pump the water in the ditch into the mine recirculation system to prevent unintended discharges. When the mine recirculation system reaches its capacity, it releases excess water into Horse Creek upstream of OFG at two outfalls that have already received National Pollutant Discharge Elimination System (NPDES) permits for use with the Ft. Green beneficiation plant. Maintained during all phases of mining operations, ditch and berm systems have effectively protected water quality during mining operations. The only indication in this record of a breach of a ditch and berm system has been one designed to meet older, more relaxed standards. The other function of the ditch and berm system is to dewater the mine site and restore the water table to nearby wetlands in the no-mine area. The removal of the water from the surficial aquifer at the mine cut effectively lowers the water table by, typically, 52 feet, which is the average depth of the excavation at OFG. Lowering the water table in the mine cut by any sizeable amount creates a powerful gradient, which draws more water from the unmined, adjacent surficial aquifer to fill the void of the removed water. Unchecked, this process would fill the mine cut with water so as to prevent mining operations and empty nearby wetlands of water so as to deprive them of their normal water levels and hydroperiods. To prevent these diversions of the unmined surficial aquifer from taking place, pumps send the groundwater entering the mine cut into the mine recirculation system and ditch. To maintain adequate groundwater flow from the ditch into unmined wetlands, the ditch must maintain adequate water levels. While constructing the ditch and berm system, IMC will construct monitoring wells between the ditch and the wetland or surface water, which will indicate when groundwater flows are less than the pre-mining flows, for which IMC will have already collected the data. Varying permeabilities of adjacent soils or inadequate maintenance of the ditch may cause the system to fail to maintain the proper hydration of nearby unmined wetlands. Due to failures of its ditch and berm system, IMC has several times dewatered nearby wetlands. Recent failures occurred at the East Fork Manatee River in November or December 1999, the North Fork of the Manatee River in March 2000, and two more recent failures at the Ft. Green Mine. To maintain the ditch and berm system, an inspector will daily drive a vehicle along the top of the berm to check the berm and the water level in ditch. However, recharge wells are also necessary to ensure that the ditch and berm system prevents the dehydration of unmined wetlands is recharge wells. Recharge wells would reduce the frequency and extent of wetland drawdowns. Strategically located throughout the length of the ditch, recharge wells would be drilled into the bottom of the ditch to the intermediate or Floridan aquifer. By this means, recharge wells actively maintain appropriate water levels in the ditches and prevent drawdowns. IMC has several alternative sources for the water for these recharge wells: the water pumped from the surficial aquifer during the dewatering of the mine, the groundwater that has returned to areas already backfilled with sand tailings, or the water from the mine recirculation system, provided it is filtered. Notwithstanding testimony to the contrary, neither the CRP approval nor the ERP requires IMC to install recharge wells. These documents fail to impose upon IMC any specific action, if the monitoring wells reveal reduced or eliminated groundwater flows into the wetlands and surface waters. Both documents acknowledge the possibility that IMC may need to install recharge wells to recharge the ditch. In his testimony, Dr. Garlanger recommended the installation of floats on the top of each recharge well to allow the inspector visually checking the ditch and berm readily to check each recharge well at the same time. Clearly, the presence of floats atop recharge wells would allow early identification and repair of malfunctioning recharge wells, prior to the loss of water from the ditch and the dehydration of nearby unmined wetlands. 2. Mine Recirculation System In addition to recycling the water used in mining operations, the mine recirculation system draws on sources deeper than the surficial aquifer, as well as rain. Water leaves the mine recirculation system through evapotranspiration and surface runoff. When water leaves the system as runoff, during or after major storm events, it does so through NPDES outfalls, and the high water volumes associated with the storm generally assure that any contaminants in the discharged water are sufficiently diluted. 3. Sand Tailings Budget For OFG, IMC has presented a reasonable sand tailings budget. Dr. Garlanger, whose expertise in geotechnical matters finds no match on the opposing side, has opined that the supply is ample. Charlotte County and the Authority have challenged the adequacy of the sand tailings budget. In part, Charlotte County and the Authority base their challenge to the sand tailings budget in part on an earlier comment by Dr. Garlanger concerning changing volumes of sand tailings, but he adequately explained that their reliance was misplaced. As noted above, the sand tailings budget at OFG requires sand from the Four Corners and Ft. Green mines. Conjuring up images of a sand Ponzi scheme, Charlotte County and the Authority seem to argue, in part, that there are not enough sand tailings, and DEP has allowed phosphate mining companies that have run out of nearby sand to substitute a Land-and-Lakes reclamation for the more sand-intensive reclamation that had originally been permitted and approved. OFG is early enough in the post Land-and-Lakes reclamation era that, if sand tailings from post-reclamation excavations are being moved around, OFG will get them. The obligation imposed upon IMC to obtain sand tailings backfill is not contingent upon feasibility; IMC must backfill the mine cuts with sand. The possibility that DEP would allow OFG to abandon one of the central tenets of this reclamation project by substituting Land-and-Lakes reclamation for topographic replication is inconceivable. Reclamation BMR Reclamation Guidelines BMR program administrator James (Bud) Cates supervises reclamation by the phosphate mining industry. Mr. Cates and Janine L. Callahan, also of BMR, prepared a document entitled, "Guidelines for the Reclamation, Management, and Disposition of Lands within the Southern Phosphate District of Florida" (Reclamation Guidelines). The document is dated August 2002. Although it is marked, "draft," Reclamation Guidelines is a revision of the first draft, which was prepared in 1993. The Administrative Law Judge commends the authors and DEP for the close attention to detail that has resisted finalization for nine years, but it would be imprudent to disregard the second draft while awaiting the next novennial revision, especially when DEP offered it as an exhibit (DEP Exhibit 37). Consistent with an emphasis on functional analysis and the creation of vegetative, hydrologic, and soils conditions that facilitate self-organization, Reclamation Guidelines defines "reclamation" as: the attempt to identify and replace those components/parameters of a community, resulting in the creation of a functional natural community analog. Emphasis is placed on the creation of functional soil, hydrology, and floral precursors that serve as the basis for food-web development. Because of the ecological need for fully functional communities, analogs are typically designed on a whole habitat basis rather than being designed around the specific needs of one or two species. These analogs are designed to incorporate a maximum initial diversity potential, based upon the premise that with proper management, the initial input will yield, over time, maximum ultimate diversity. Reclamation plans for and the activities used to create these replacement communities will be guided by existing knowledge of earthmoving, soils, hydrology, vegetation, general ecology, and wildlife management. Data in every applicable field should be constantly collected and used to increase knowledge and improve the results of the reclamation of natural community analogs. Focusing on specific reclamation techniques for soils, Reclamation Guidelines adds: The use of Topsoil/Vegetative Inoculum (T/VI) is extremely important to the introduction of organic matter, soil microbes, mycorrhizae, and plant propagules. These factors are critical to the creation of a living soil precursor. The T/VI is also the best known source of plant propagules that will provide the diversity inherent in a given community. Therefore, to the extent of material availability and economic feasibility, T/VI is recommended for use in the replacement of natural community analogs. The goal should be a three to six inch average depth with a minimum depth of no less than one inch over the base of sand, overburden, or sand/overburden mixture. Where T/VI availability problems occur, an artificially created topsoil precursor may be used in combination with all available T/VI or as a replacement for T/VI. Topsoil precursor may be created by incorporating a mixture of overburden, clay, and organics (hay mulch, wood chips, manure, green manure, or combinations thereof). All artificially created topsoil precursors should contain an organic portion and should be treated with microbial and mycorrhizal inoculum. For Sandhill, which has the least burdensome requirements among the three habitats most analogous to sand live oak (sand pine scrub, xeric oak scrub, and sandhill), Reclamation Guidelines notes that the objective is to concentrate a "deep layer of well-drained sands around/upon a topographic high to prove an area of rapid, positive infiltration and positive down-gradient seepage." The reclaimed sandhill habitat is adapted to excessively drained sands and requires "substantial depth to water table (although not as excessive or deep as scrub)." For soils, Reclamation Guidelines offers two options: six to eight feet of sand tailings covered with a layer of T/VI from a suitable donor scrub or eight to ten feet of sand tailings covered with a minimum four inch layer of artificially created topsoil precursor. For sand pine scrub and xeric oak scrub, the soil requirements are the same, except that the first option is for sand tailings eight to ten feet deep, not six to eight feet deep. As already noted, CRP Specific Condition 8.b requires IMC to reclaim sand live oak and xeric oak scrub with "several feet" of sand tailings and three to six inches of topsoiling from donor scrub or, if topsoiling is not feasible, the seeding and disking of a green manure crop. (Although omitted, the feasibility condition presumably qualifies the topsoiling requirement because Specific Condition 8.b defines "feasible.") For Pine Flatwoods and Dry Prairie, Reclamation Guidelines notes that the objective is to locate these communities on moderately to poorly drained soils, so that the depth to the water table is moderate to shallow. Most vegetation of these two communities is adapted to predominantly sand soils. For soils, Reclamation Guidelines offers two options: two to four feet of sand tailings covered with a layer of T/VI from a suitable donor flatwoods/dry prairie area or two to four feet of sand tailings covered with a minimum four inch layer of artificially created topsoil precursor. As already noted, CRP Specific Condition 8.a requires IMC to reclaim pine flatwoods and dry prairie with a minimum of 15 inches of sand tailings and three to six inches of transferred or stockpiled topsoil, if feasible, or, if not, the seeding and disking of a green manure crop. For Wetland Mixed Forest, Reclamation Guidelines notes that this community will occupy the outer limit of the floodplain down to the stream channel and the forested edge of deeper marshes. Likely to receive runoff from major storm events, Wetland Mixed Forest should be designed to contain and slow runoff while maintaining sufficient water for wetland viability. For soils, Reclamation Guidelines offers three options: decompacted overburden to a depth below the dry season water table overlying by a layer of T/VI from an appropriate donor site, two to three feet of sand tailings under a layer of T/VI, or either overburden or two to three feet of sand tailings covered by a minimum of four inches of artificially created topsoil precursor. As already noted, ERP Specific Condition 14.b requires IMC to reclaim all forested wetlands by backfilling with sand tailings or overburden to an unspecified depth under "several inches of wetland topsoil," if feasible. However, for bay swamps, Specific Condition 14.b adds in boldface: "All reclaimed bay swamps shall receive several inches of muck directly transferred from forested wetland approved for mining." Reclamation Guidelines treats Bay Swamp (and Cypress Swamp) separately from other forested wetlands. Noting that Bay Swamps are in areas of significant surficial seepage or high average groundwater elevation, Reclamation Guidelines states that Bay Swamps require sufficient seepage to remain saturated or a deep organic profile at and below the average water table elevation. For soils, Reclamation Guidelines states: "Bay swamps require the placement of one to three feet of organic muck as a depressed lens. The muck should be obtained from a suitable donor wetland." For Non-Forested Wetland, which includes wet prairies and freshwater marshes, Reclamation Guidelines is of value more to identify why the phosphate mining industry and DEP have overseen the routine reclamation of deeper wetlands, but not shallower wetlands. Treating these two very different communities under the same category, Reclamation Guidelines states: "All of the sub-categories may be constructed on overburden, with the exception of sand pond." Although the overburden option for reclaimed forested wetlands seems a stretch, given repeated problems of mature tree growth into overburden relatively close to grade, the overburden option for reclaimed wet prairie, other than fringing deeper marshes when properly sloped, can no longer merit serious consideration, given only one successful, extensive shallow-wetland reclamation site--SP(2D), whose reclaimed soil is four inches of mulched topsoil overlying four feet of sand tailings. However, consistent with its Reclamation Guidelines, DEP did not differentiate between wet prairies and deep marshes in the soil-reclamation requirements contained in the ERP. ERP Specific Condition 14.c allows backfilling with sand tailings or overburden and requires only "several inches of wetlands topsoils when available." Tellingly, Reclamation Guidelines divides aquatic systems into two categories: shallow (less than six feet deep) and deep. Shallow systems comprise swamps, marshes, sloughs, and ponds, but not streams. Nowhere does Reclamation Guidelines explicitly address the reclamation of streams. Comparing the soil-reclamation requirements that DEP has imposed on IMC in the CRP approval and ERP to the soil- reclamation specifications stated in BMR's Reclamation Guidelines, material discrepancies emerge as to the depth of sand tailings underlying four upland communities. If IMC transfers topsoil, sand live oak communities require at least six feet of sand tailings, not "several" feet; if IMC uses green manure, sand live oak communities require at least eight feet of sand tailings. Regardless whether topsoiled or green manured, xeric oak scrub communities require at least eight feet of sand tailings, not "several" feet. Regardless whether topsoiled or green manured, pine flatwoods and palmetto prairie require at least two feet of sand tailings, not 15 inches. There is a material discrepancy between the ERP and Reclamation Guidelines as to bay swamps. Reclamation Guidelines specifies one to three feet of organic muck for reclaimed Bay Swamps. ERP Specific Condition 14.b requires only "several inches of muck." Given the poor record reclaiming bay swamps, DEP, in forming this condition, is not relying on any experience-based knowledge that it has acquired, or, if it is, it did not add this information to the present record. There is no discrepancy as to wet prairies, but this is clearly due to a shortcoming in Reclamation Guidelines, at least as to non-fringe wet prairies. Under Reclamation Guidelines, wet prairies, at best, will continue to reclaim only as fringes, and only then if the edges of deeper wetlands have shallow slopes. Given the otherwise-uniform failure to reclaim extensive shallow wetlands, the actual soil regime at SP(2D) of four feet of sand tailings under four inches of topsoil must set the minimum soil criteria for wet prairie. 2. Geology and Soils For purposes of this Recommended Order, soils occur predominantly in the first two meters of the earth's surface. Below that depth, geologic characteristics predominate, so this Recommended Order refers to these deeper structures as geology. Post-reclamation, all of the soil and the top 45-50 feet of the geology are a product of IMC's reclamation activities. The post-reclamation geologic characteristics follow from the mining process, which deposits overburden within the mine cut in two locations. Most of the overburden is deposited in spoil piles within the cut. Some of the overburden is piled against the sides of the mine cut to reduce the seepage of water from the surrounding surficial aquifer into the cut. Both types of overburden are sometimes called "cast overburden." At OFG, prior to backfilling, the creation of cast overburden spoil piles will either leave alternating bands of sand tailings valleys and cast overburden spoil piles, each 330 feet wide, or each 165 feet wide; the record is not entirely clear on this point. The scenario with the greater hydrological impact is that each valley and the base of each spoil pile is 330 feet wide, but, even under this scenario, relatively little backfilled area would have less than five feet of sand tailings. If each sand tailings valley is 330 feet and each cast overburden spoil pile is also 330 feet at its base, the profile of each cast overburden spoil pile would appear to be a two- dimensional pyramid with its top cut off just below midpoint along its two slopes. The sides of the spoil piles of cast overburden are not perpendicular to the surface, but are sloped at about 1.5:1, according to Dr. Garlanger. Rounding off the depth of the mine cut to 50 feet, this 33-degree slope would travel 50 feet vertically at the point at which it had traveled 75 feet horizontally. Matching this slope with another on the other side of the spoil pile, 150 feet of the 330-foot wide overburden spoil pile would be consumed by the sloped sides, and 180 feet would be a plateau, at a constant elevation of 50 feet above the bottom of the mine pit. Adding 7.5 feet on either side of the plateau gains a depth of 5 feet, so the width of overburden under less than five feet of sand tailings would be 195 feet. Under the less-favorable scenario, for a 660-foot wide band of reclaimed geology, without regard to topsoil additions, the sand tailings, for the above-described 660-foot slice, will be at least 10 feet deep for a distance of 450 feet, or 68 percent of the reclaimed area, and will be at least 5 feet deep for a distance of 475 feet, or 72 percent of the reclaimed area. Adding the U-turns at the end of the rows would add only a little more area to the 28 percent of the reclaimed area with an overburden plateau within five feet of the surface. If the cast overburden spoil piles fill only half of each 330-foot wide cut, then the overburden plateaus would be much narrower. Each sand valley of 165 feet would abut a 33-degree slope that would again run 75 feet horizontal while climbing 50 feet vertical. Two of these slopes would consume 150 feet horizontal, leaving an overburden plateau of only 15 feet, leaving much less land with an overburden plateau within five feet of the surface. The shaping of the overburden that precedes the backfilling, the backfilling of sand tailings, and the transfer of topsoil are aided by substantial technological improvements in earthmoving equipment in recent years. Most importantly, earthmoving equipment has incorporated global positioning systems, so that they can now grade material to a tolerance of two centimeters, as compared to tolerances of six inches and one foot not long ago. This achievement permits the reclamation scientists to supervise backfilling more closely so as to replicate the design topography, which is a necessary, although not sufficient, condition of successful establishment of targeted hydroperiods and inundation levels. IMC soil scientist Joseph Schuster and Mr. Carter both presented detailed, well-documented testimony and are both competent soil scientists. They start from the same point, which is that pedogenesis, or soil formation, is a function of five factors: parent material, relief, climate, vegetation, and time. From there, they travel separate paths in their analysis and conclusions concerning the soil aspects of IMC's reclamation plan. In the successful reclamation of soils, Mr. Schuster highlights the creation of appropriate drainage characteristics, and Mr. Carter highlights the creation of appropriate soil horizons, although both experts acknowledge the importance of both these factors, and others, in soil formation and function. Their reasoning seemed mostly to be a question of differing emphases, although their conclusions were mutually exclusive. As already noted, the A horizon is the topsoil layer. (A mucky wetland may have an O horizon.) There is some variability among horizons--for example, the C horizon, which is described below, may occur immediately beneath the A horizon, especially in sandy material. But, for this part of Florida, typically, the E horizon forms under the A horizon. The E horizon is a leaching zone, through which rainwater transmits substances from the A horizon down to the B horizon, which is the accumulation zone beneath the E horizon. Florida typically has two types of B horizons: the Bh (or spodic) horizon, which is composed of loamy or spodic materials, and the Bt (or argyllic) horizon, which is composed of clayey materials. The spodic horizon is a mineral soil horizon containing aluminum and organic carbon, and possibly iron, which formed in a much colder climate, probably at least 10,000 years ago. Spodic horizons typically occur in the top two feet of the soil profile. Although spodic horizons may occur as deep as 40 feet, they occur at OFG within 20 inches of the surface, sometimes within only 10 inches. Beneath the B horizons is the C horizon, which is the parent material for pedogenesis. For the most part, Mr. Schuster's emphasis on reclaiming appropriate drainage is credited as the single most important factor in reclamation, and his seven drainage categories are ample for guiding the reclamation of the drainage characteristics of soils. More reclamation failures may necessitate the implementation of one of Mr. Carter's suggestions to carefully restore the soil horizons within the top two meters of the mine cut, as it is backfilled, or to use more clayey soils, such as those from drained CSAs, to add more nutrient-retaining capacity to the B and C horizons than nutrient-poor sand tailings provide. Mr. Carter's soil cores from reclamation sites, which reveal overburden close to the surface, presented stark contrasts to soil cores of native soils in the area, although drainage concerns outweigh pedogenic concerns. Mr. Carter correctly points out that, from a soils perspective, pre-mining overburden is not post-reclamation overburden. From a mining perspective, what lies above the unmined phosphate ore is overburden, and what lies in the ground, post-reclamation, is also overburden, which, to a certain depth, is dominated by characteristics of the B horizon and underlying C horizon. However, in a 52-foot deep phosphate mine, as opposed to typical road construction, which Mr. Schuster unpersuasively offered as a comparable, the overburden is ultimately dominated by geologic material from below the C horizon. From a soils perspective, what lies in the unmined ground are soil horizons that took many years to form, and what lies in the ground, post- reclamation, is nothing but an admixture of former soil horizons and geologic material that normally resides a little deeper in the earth's crust. As Mr. Carter notes, the result, post- reclamation, is less like soil and more like unconsolidated soil material with little horizonization even several years after reclamation, and, if an overburden layer is present close to the surface, it typically is tightly compacted. Soil horizons are not an incidental or random characteristic of undisturbed soils; soil horizons are an important component in the formation and functioning of soil. Mr. Schuster himself disclaims reliance upon overburden epipedons--which are organically influenced horizons typically above the B horizon--in the restoration of native ecosystems, although he does not object to the presence of such epipedons in agricultural restoration. If sand were displaced by overburden in the area of the E horizon, the E horizon will be unable to contribute to the formation of the B horizon, as it must, especially after the comprehensive disturbance of all soil horizons contemplated at OFG. Mr. Schuster's disclaimer bodes ill for the ERP provisions allowing overburden as an alternative to sand tailings for forested and herbaceous wetlands. However, Mr. Schuster's disdain for cast overburden near the surface is well-founded. His emphasis on drainage over soil horizons, including even overburden epipedons, may find support at Dogleg, which, according to the CDA, suffered the loss of its 12-inch topsoil layer due to oxidization and was left with overburden of a "clayey sand" texture that may have been more permeable than typical, less permeable overburden. This loss appears to have taken place over sufficient time that other conditions may have commenced to form an A horizon. However, when adjacent mining ended and the water table re-established itself, the reclaimed trees began to survive. Mr. Schuster accounts for the importance of pedogenesis, in addition to drainage characteristics, by identifying the topsoil/green manure, sand, and overburden as analogs of soil horizons. Certainly, the topsoil/green manure is a functional analog, and its thickness is not much of a variable. Sand tailings provide an appropriate texture for an A horizon. But the variability of the depths of sand tailings limits the force of Mr. Schuster's argument for functional analogs. For all wetland communities, overburden may occur at depths of only several inches, and, for pine flatwoods and palmetto prairies, overburden may occur at depths of 15 inches. Or sand tailings may be over 50 feet deep, atop a clay confining layer, not overburden. Setting aside the problem with the variability of depths of sand tailings, it is possible to treat sand tailings as a functional E horizon, through which materials will leach from the A horizon and into the B horizon, which is the zone of accumulation. However difficult it may be to cast the sand tailings in the role of a B horizon, it is impossible to cast them in the role of a C horizon. Ignoring the considerable amount of geologic material contained in cast overburden and possible textural issues, Mr. Schuster plausibly offers overburden as good B and C horizon material because of its higher clay or spodic content. Thus, the apparent impairment of pedogenesis may not be as extensive as first appears, provided overburden remains below the A and E horizons. Still, mining and reclamation, at least as designed for OFG, mean the loss of some soil functions for extensive periods of time, but proper reclamation of drainage characteristics and hydrology sufficiently mitigate these losses of function. Even Mr. Schuster's emphasis on drainage is not unconditional, as he relies on the application of topsoil or the implementation of a green-manure process to provide an immediate A horizon and accelerate the process by which the A horizon continues to form. Endorsed by Mr. Carter as a good idea to increase organic material and loosen the structure of the topsoil, green manure is the process by which a quick-growing cover crop is planted on the finished surface, post-reclamation. The crop is then disked into the soil to provide a quick infusion of nitrogen and organic matter. This approach has not previously been used in reclamation following phosphate mining, but it has been used in other applications and is effective. Post-reclamation, fire too will pump nutrients into the A horizon. Herbaceous wetlands, with their shallower roots, ought to be adequately served by Mr. Schuster's focus on the drainage characteristics of reclaimed soils. Forested wetlands present a different challenge due to their deeper root systems. Past reclamation of forested wetlands has experienced tree loss after several years of growth, possibly indicative of a problem with root development beyond a certain depth. Perhaps the roots cannot penetrate the overburden or cannot find the necessary nourishment, after penetrating the overburden; however, it is at least as likely, given the record of reclamation, that the mitigation site suffered from a poorly reclaimed water table, so that, for example, the water table was too high for too long, perched, or even too low for too long. Given the repeated problems with establishing appropriate water tables, post-reclamation, this factor looms as a likely explanation for tree die-off. However, Mr. Schuster's emphasis on drainage characteristics over pedogenic conditions carries more weight as to herbaceous wetlands and xeric habitats, where sandy soils predominate to relative great depths, and somewhat less weight as to forested wetlands. Mr. Schuster's emphasis on drainage over pedogenesis carries even less weight as to pine flatwoods and palmetto prairies, which are less tolerant to the disturbance of the spodic horizon in reclaimed soils. Obviously, overburden presents different textures and drainage characteristics than do native flatwoods soils. However, pine flatwoods and palmetto prairies are more dependent upon higher water tables than more xeric upland communities, so, again, past problems in reclaiming these upland communities again likely involve the failure to create an appropriate water table, post-reclamation. Differences between Mr. Schuster and Mr. Carter were harder to reconcile regarding the role of pH in soil. Mr. Schuster and Mr. Carter reached different results in field tests of soil pH. However, Mr. Schuster's testimony is credited that most ecosystems tolerate a wide range of pH, and the most important soil characteristic remains its drainage characteristics. Hydrology Introduction Removing and replacing the topography, soils, and geology, including the surficial aquifer, to a depth of 52 feet, under nearly 3500 acres of land necessitates hydrological analysis. Hydrological analysis is necessary to support three sets of projections: the streamflows of Horse Creek, downstream of OFG, during mining and after reclamation; hydroperiods and inundation depths of reclaimed wetlands, as the wetlands created in the reclaimed topography and soils fill and empty with water based on inputs and outputs from runoff and groundwater, inputs from rainfall, and outputs from evapotranspiration; and peak discharges from OFG, during mining and after reclamation. All hydrological analysis must account for the water budget, which balances the inputs and outputs of water. The elements of the water budget are rainfall, runoff, percolation (or infiltration), evapotranspiration, deep recharge (the recharge of the deeper aquifers), and groundwater outflow. Rainfall is the most important factor because it is the sole means by which water enters the system. Equal to the total of the outputs, annual rainfall is a large number, typically measuring in this part of Florida in excess of 50 inches. Rainfall is also a variable number in two respects. It varies from year to year. For the Peace River basin, annual rainfall from 1933 to 2002 has ranged from 35.89 inches to 74.5 inches with an average of 52.4 inches. However, rainfall in the Peace River basin has varied over eras. From 1933 to 1962, average annual rainfall was 55.48 inches. From 1962 to 2002, average annual rainfall was 51.02 inches. For the Peace River basin, the average annual rainfall has decreased about 4 1/2 inches in the past four decades when compared to the preceding three decades. Especially over shorter time intervals, rainfall also varies considerably from location to location within a relatively small area. Subject to these variabilities, especially the distance of the rainfall gauge to the location for which the water budget is constructed, rainfall is easily measured by rainfall gauges. Measurement means straightforward collection of data without elaborate modeling, calculation, or simulation. After rainfall, the most important element in the water budget is evapotranspiration, which is the combined effect of evaporation of water from soil, plant surfaces, wetlands, and open water and transpiration of water through vegetative processes. In this part of Florida, evapotranspiration releases about 75 percent of the rainfall back into the atmosphere, which, by convention, counts as a loss to the system. Unlike rainfall, evapotranspiration typically cannot be measured, except that the maximum evaporation, which is a pan containing water in the direct sun, is subject to direct measurement. Hydrologists have measured evapotranspiration from irrigated golf courses at 58-62 inches annually, and Dr. Garlanger has measured evapotranspiration from reclaimed CSAs at 39-41 inches annually, although both of these measurements may have been somewhat indirect. However, hydrologists widely recognize ranges of evapotranspiration for this part of Florida for different land uses. Annual rates of evapotranspiration for open water is 49-1 inches, for riparian wetlands is 47-49 inches, and for isolated wetlands is 43-44 inches. The annual evapotranspiration for pine flatwoods is 37-39 inches and for xeric uplands is 34-36 inches. Impervious surface, such as pavement or a roof, produces only 8-10 inches annually--absent weeds, all evaporation. In addition to land use, the amount of water available controls the amount of evapotranspiration. Elevations of the water table will affect evapotranspiration. Thus, hydrologists often measure potential and actual evapotranspiration. Anthropogenic impacts may increase or decrease evapotranspiration. Net additions of impervious surface, such as parking lots, roads, and rooftops, increase runoff and decrease evapotranspiration. Net additions of open water, such as lakes, ponds, and streams, decrease runoff and increase evapotranspiration. At the other end of the spectrum, deep recharge removes very little water at OFG. Even during mining, when the impacts would be greatest due to high withdrawals, the increase to deep recharge is 30-60 gallons per minute--insignificant as compared to the average recharge rate in the Peace River basin of 190,000 gallons per minute. In fact, according to RAI-192 in the CDA, rainfall, not deepwell water, is the primary source of water for the mine recirculation system. Deep recharge is typically one inch annually, although Charlotte County hydrologist Phillip Davis, in one of his scenarios, claimed that 2.5 inches of water annually would enter the intermediate aquifer from the surficial aquifer. This range of values for deep recharge is within the specified ranges for most types of evapotranspiration. Deep recharge cannot be directly measured. The record does not suggest much variability in deep recharge, which is controlled by the elevation of the water table and potentiometric surface of the Florida Aquifer, in undisturbed geologic systems in this part of Florida. Although the replacement of part of the confining layer between the surficial and intermediate aquifers could affect deep recharge, the potential impact at OFG appears to be very small due to the permeability of the matrix layer and impermeability of the clay bed beneath it. However, historic anthropogenic disturbances may have increased deep recharge. All groundwater withdrawals induce recharge, at least of the surficial aquifer. Withdrawals from the deeper aquifers, such as those taken by the phosphate mining industry prior to expanded recycling, could have caused increased rates of deep recharge, depending on the confining layers above the Floridan Aquifer within the area influenced by the withdrawals. To the extent that the effect of these deep withdrawals extended to the surficial aquifer, evapotranspiration and streamflow would have been reduced. Groundwater outflow has been measured in this area by Bill Lewelling of the U.S. Geologic Service. (Mr. Lewelling seems to have measured groundwater outflow indirectly by measuring chloride concentrations at different locations.) He found a range of 1.7-17.9 inches annually with an average of 9.2 inches annually. An important component of groundwater outflow, infiltration depends on soil type and antecedent saturation, so it is variable in terms of location and climate. However, it appears to vary within a relatively narrow range at OFG, pre- mining. One combination of water-budget elements that may be measured easily is streamflow, which, as noted above, is a combination of the runoff and groundwater outflow reaching the stream. Streamflow equals rainfall minus evapotranspiration minus deep recharge minus the change in uplands storage. For the purposes of Dr. Garlanger's analysis, uplands are everything, including wetlands, above riparian wetlands, and riparian wetlands are the area adjacent to a stream channel that remain perennially wet and are typically within the 25-year floodplain. Streamflow is not variable like rainfall as to location because the river or stream is fixed and so is the location of the gauge, but streamflow is highly variable as to volume, even from year to year. For Horse Creek at State Road 64, for example, annual streamflow from 1977 to 2001 has averaged 9.7 inches, but has ranged from one inch to 17 inches. For the Peace River at Arcadia, annual streamflow from 1950-1962 was 13.25 inches or 1334 cfs. From 1963 to 2002, average streamflow at the same location was 8.78 inches or 884 cfs. The SWFWMD has not yet set minimum flows and levels for the Peace River, but is presently in the process of setting these values. In these cases, streamflow is most often calculated to compare a model's output in streamflow to measured values for the same period of time, to determine streamflow for locations without a streamflow gauge, or to determine streamflow for locations with a streamflow gauge, but after changes in land use, such as the construction of a ditch and berm system or post-mining reclamation. Another combination of water-budget elements that can be measured, although with more difficulty than streamflow, is the water table. Most water table data are fairly recent, dating from the early 1990s. Mr. Davis testified that the water table data available for OFG were the most limited that he had ever encountered. Varying daily, the water table is the top of the surficial aquifer. The elevation of a non-perched water table, at any given time, is ultimately driven by all of the elements of the water budget, but is immediately reflective of surficial aquifer inputs and outputs and hydraulic conductivity. Hydraulic conductivity is the ability of a porous medium to transmit a specific fluid under a unit hydraulic gradient, so it is highly dependent on the physical properties of the medium through which the fluid is transmitted. Although hydraulic conductivity exists in the horizontal and vertical planes, this Recommended Order considers only horizontal hydraulic conductivity. Hydraulic conductivity is an important hydrological factor that can be measured, at least horizontally, although with difficulty. Hydraulic conductivity varies by location due to the variations in permeability of the geological structure through which the groundwater is passing. The hydraulic conductivity of sand tailings is about 38 feet per day, and the hydraulic conductivity of cast overburden is about one foot per day. Native soils are typically somewhere in between these two extremes. In one area, the matrix, pre-mining, had a permeability of 5-15 feet per day. IMC's assurances concerning streamflow, wetlands hydroperiod and inundation depths, and peak discharges must be assessed against three different backdrops. At one extreme, at least based on the present record, phosphate mining and reclamation, as distinguished from other phases of phosphate processing, have not caused adverse flooding; the sole example of flooding from a failed ditch and berm system--designed to meet more relaxed standards--occurred at the Kingsford Mine on January 1, 2003, and no serious environmental damage occurred. At the other extreme, reclamation after phosphate mining has routinely failed to reclaim targeted hydroperiods and inundation depths for shallower wetlands and many forested wetlands. In between these two extremes, although closer, at least recently, to the industry's flooding experience, is streamflow. Historic impacts to the Peace River are considered below, but an example of the minimal impact on streamflow of recent mining is found in the last 15 years' mining of the upper reaches Horse Creek. During this period, the streamflow of Horse Creek at State Road 64 has remained unchanged. The record does not support Mr. Davis's suggestion that high volumes of groundwater pumping and high volumes of NPDES discharges artificially added streamflow during this period. Resolution of the hydrological evidence in these cases requires close examination of the testimony of Dr. Garlanger, who addressed all three areas for IMC; Mr. Davis, who addressed streamflow and wetland hydroperiods and inundation depths for Charlotte County; and Mr. Loper, who addressed peak discharges for Charlotte County. All three of these witnesses are highly competent and patiently and thoroughly explained their hydrological analyses. Mr. Loper proved adept at finding flaws in IMC's analyses of peak discharges. Dr. Garlanger and his staff several times refined their work, even during the hearing, to incorporate Mr. Loper's findings. Differences remained between Mr. Loper and Dr. Garlanger, and, although it is possible that Mr. Loper is correct on these remaining points, Dr. Garlanger successfully discounted the importance of Mr. Loper's objections in projecting peak discharges. Examining the evidence in the backdrop of a record almost devoid of failures that have resulted in flooding, it proved impossible not to credit Dr. Garlanger's assurances about peak discharges. Mr. Davis was less successful in finding flaws in IMC's analysis of streamflow, or at least in finding material flaws. As detailed below, his theory attributing to phosphate mining a greater share of historic reductions in the streamflow of the Peace River seems less likely than Dr. Garlanger's theory attributing a lesser share of these historic reductions to phosphate mining. Mr. Davis substituted an integrated simulation model for Dr. Garlanger's uplands model and spreadsheet. The advantages of Mr. Davis's model emerged to a greater extent in simulating wetlands hydroperiods and inundation depths, not in simulating streamflows. This is discussed in detail below. The conflict between Mr. Davis and Dr. Garlanger over the ability to reclaim targeted hydroperiods and inundation depths has proved very difficult to resolve. Dr. Garlanger has vast experience in the phosphate mining industry and thus a clear advantage in projecting, as he has since 1974 at several hundreds of projects, peak discharges and streamflow. But this experience is no advantage as to projecting wetland hydroperiods and inundation depths. Dr. Garlanger did not state that he has projected hydroperiods and inundation depths for 30 years at several hundreds of projects. If he has done so, he has contributed to the numerous failures, described above, of reclaiming shallow wetlands. More likely, the phosphate mining industry has infrequently targeted shallow wetlands for reclamation, so Dr. Garlanger does not have extensive experience in creating the necessary hydroperiods and inundation depths for shallow wetlands. The reclamation of specific hydroperiods and inundation depths for shallow wetlands is likely a fairly recent development, perhaps due to the relaxed restoration expectations of earlier eras or the inability of earthmoving equipment to execute fine specifications in finished topography. In the CDA discussion of Bay Swamp, noted above, the author admits that reclamation historically has not attempted to reclaim the kind of interface necessary between shallow wetlands and the water table to support bay swamps. The parties' understandable, but unrealistic, pursuit of findings that all previous shallow-wetland reclamations of any size have failed or succeeded may have discouraged testimony candidly analyzing what hydrologists have learned from the limited successes and the many failures. Especially unfortunate is the omission of any discussion of the success of Dogleg, where, according to the CDA material, persistent replanting of trees over many years in soils with prominent, but perhaps atypically permeable, cast overburden profiles eventually succeeded, after the completion of nearby mining allowed the water table to reestablish itself. The record does not even indicate if Dogleg mining took place behind a ditch and berm system, nor does it adequately describe the texture of the overburden on which the topsoil rested. In addition to different levels of confidence attaching to the demonstrated ability of the phosphate mining industry to avoid adverse flooding and significant reductions in streamflow, on the one hand, and the routine inability of the phosphate mining industry to re-create the hydroperiods and inundation depths required for shallow wetlands, another point of differentiation exists between Dr. Garlanger's streamflow projections and his hydroperiod and inundation depth projections. Although he uses the same uplands model and similar wetlands models for both tasks, certain characteristics of his relatively simple modeling do not work as well in projecting hydroperiods and inundation depths as they do in projecting streamflows. Accurate projections of streamflow, at a discrete point downstream of the 4197 acres constituting OFG, are amenable to averaging, smoothing out input values, and substituting assumed values for calculated values. Accurate projections of hydroperiods and inundation depths require precise analysis of reclaimed wetlands--few over 10 acres, most less than a couple of acres--distributed over the 3477 acres of OFG to be mined. For each wetland, precision means daily accuracy to within a few inches of elevation of topography and water table and no more than a few feet of hydraulic conductivity. Streamflow projections, which have worked in the recent past, will continue to work, whether each projection within an area is accurate or any errors within an analyzed area offset errors in other areas, so that, notwithstanding flow discharge curves, small discrepancies in projected streamflow average out over longer periods of time. Hydroperiod and inundation depth projections, which may have been attempted, if at all, only rarely in the past, must be accurate over very small areas for very specific time intervals. Also, streamflow projections are less sensitive to misallocations between runoff and groundwater flow than are projections of shallow wetland hydroperiod and inundation depth. The record suggests that reclaiming short wetland hydroperiods and shallow inundation depths places new and more difficult demands upon the phosphate mining industry and its reclamation scientists. Although long accustomed to producing projects that did not flood and at least recently accustomed to producing projects that did not reduce streamflow, the phosphate mining industry and its reclamation scientists are only now acclimating to newer regulatory expectations that they produce projects that reliably reclaim shallow wetlands by re-creating functional relationships between these wetland systems and surface runoff and groundwater flow. Streamflow Streamflow in Horse Creek downstream of OFG and the Peace River is reduced during mining because the ditch and berm system captures all of the runoff, at least up to the capacity of the ditch and berm system. The ditch and berm system is designed to handle the 25-year, 24-hour storm event, although additional, unspecified freeboard is built into the system. The capacity of the ditch and berm system may be exceeded by more intense storms or perhaps even lesser storms, unless the 25-year storm design accounts for antecedent water levels, which may be higher in systems with recharge wells than in systems without the recharge wells. In any event in which the capacity of the ditch and berm system is exceeded, IMC pumps the water through the mine recirculation system and releases it through one of two NPDES outfalls upstream at Horse Creek. Because the ditch and berm system captures all of the runoff, under normal conditions, the reduction in streamflow after reclamation is generally less than the reduction in streamflow during mining. The removal of the ditch and berm system allows runoff again to contribute to streamflow. To analyze the impacts upon streamflow, Dr. Garlanger first performed a simplified water budget analysis at three locations: Horse Creek at State Road 72 (near Arcadia), the Peace River at Ft. Ogden (where the Authority withdraws its raw water--downstream of the confluence of Horse Creek and the Peace River), and the point at which the Peace River empties into Charlotte Harbor. Although Dr. Garlanger used uplands exclusively for this simplified exercise in constructing a conceptual water budget, adding the riparian wetlands would not substantially change the result because the wetlands runoff and evapotranspiration would be higher, but the wetlands groundwater outflow would be lower. Either way, Dr. Garlanger's analysis, which is sometimes called an analytic model, was merely a prelude to more sophisticated modeling. For his during-mining analysis, Dr. Garlanger assumed that the ditch and berm system would capture all the runoff from the 5.4 square miles of the Horse Creek sub-basin behind the ditch and berm system. In sequential mining, the ditch and berm system would not capture all of the 5.4 square miles at once. But, assuming the worst-case scenario, Dr. Garlanger assumed the capture of the runoff from entire sub-basin for a period of 25 years. Initially, Dr. Garlanger also assumed that the ditch and berm system would likewise not release any base flow. This is an unrealistic scenario because, as noted above, one of the two purposes of the ditch and berm system is to permit base flow into wetlands and streams. Later, Dr. Garlanger alternatively assumed that the ditch and berm system would release all of the base flow. If the ditch and berm system is equipped with recharge wells, it is reasonable to expect that the system will release all of the base flow. Calculating that the Horse Creek sub-basin upstream of State Road 64 is 39.5 square miles, Dr. Garlanger divided the average streamflow of 29.1 cfs at State Road 64 by the area of the sub-basin and determined that each square mile contributed 0.74 cfs of streamflow. Multiplying this number by the 5.4 miles captured by the ditch and berm system, Dr. Garlanger determined that, during mining, the ditch and berm system would reduce streamflow by 4 cfs, if it removed all base flow (and runoff). This very worst-case scenario would generate the following reductions in streamflow: in Horse Creek at State Road 72, 2.3 percent; in the Peace River at Ft. Ogden, 0.3 percent; and in the Peace River at Charlotte Harbor, 0.2 percent. Dr. Garlanger then calculated the reduction in streamflow in the probable scenario in which the ditch and berm system, with recharge wells, operates properly and releases the base flow, while still retaining all the runoff. Relying principally upon Mr. Lewelling's report on groundwater outflow in various locations within the Horse Creek sub-basin, Dr. Garlanger calculated that the capture rate would decrease from 0.74 cfs per square mile to 0.28 cfs per square mile. Applying a capture rate of 0.28 cfs per square mile times 5.4 miles, the reduction in streamflow, during mining, is more realistically 1.5 cfs. This means that, under the simplified analytic model, the ditch and berm system would reduce streamflow in Horse Creek at State Road 72 by less than one percent, in the Peace River at Ft. Ogden by .13 percent, and in the Peace River at Charlotte Harbor by .09 percent. These figures would represent the same reduction in streamflow caused by a decrease in average annual rainfall of 0.01 inches. Although, as discussed below, Dr. Garlanger also undertook more sophisticated modeling of streamflow during mining, this is a good point at which to address three of Mr. Davis's objections to Dr. Garlanger's during-mining analysis because these objections are more conceptual in nature and are not directed to Dr. Garlanger's model. Mr. Davis contended that the unmined wetlands would become dehydrated because: 1) the ditch and berm system would deprive them of surface flow or runoff from the areas behind the ditch and berm system; 2) the ditch and berm system would deprive them of adequate base flow or groundwater; and 3) water in the ditch would be lost to evapotranspiration. These objections are more applicable to a ditch and berm system without recharge wells. If the only source of water to rehydrate the wetlands is the groundwater running into the mine and rainfall directly on the area behind the berm, the loss of runoff into the area behind the berm and the loss of water to increased evaporation would require additional analysis to assure that adequate water remained to recharge the downstream wetlands through groundwater inputs. However, the recharge wells add additional water, probably from the deeper aquifers, so that adequate water can be supplied the downstream wetlands through groundwater inputs. To the extent that intercepted surface flow reduces water levels in the unmined wetlands, IMC can offset this loss by pumping more water into the ditch and increasing groundwater inputs into these wetlands. Mr. Davis's additional objection about additional evapotranspiration from the riparian wetlands assumes the condition that he claims will not occur--adequate hydration of the riparian wetlands--so it is impossible to credit this concern. Dr. Garlanger next analyzed streamflow by applying a simulation model. More sophisticated than the analytic model discussed in the preceding paragraphs, the uplands portion of this modeling also aided Dr. Garlanger's analysis of the hydroperiods and inundation depths of the wetlands in the no- mine area and the reclaimed wetlands, which are discussed in the next subsection. Dr. Garlanger's simulation model calculates site-specific groundwater outflows based on day-to-day hydrological conditions. Unlike the analytic model, which examined the effect on streamflow only during mining, the simulation model determines streamflow contributions from OFG without any mining disturbance for a 25-year period into the future, during mining, and after reclamation for the same 25- year period used in the no-mining analysis. The modeling proceeded in two stages. First, Dr. Garlanger modeled uplands. Then, inserting the groundwater and runoff outputs from the uplands model into a streamflow model, Dr. Garlanger modeled the riparian system to determine its contributions to streamflow at a point just downstream of OFG. Thus, rainfall is the only addition of water into the uplands system, but rainfall, groundwater outflow from the uplands into the riparian wetlands, and runoff from the uplands into the riparian wetlands are the additions of water into the riparian system. The uplands model is the Hydrological Evaluation of Landfill Performance (HELP) model. Developed for use in analyzing groundwater movement in landfills, HELP generally calculates groundwater outflow based on the hydraulic conductivity of the surficial aquifer divided by the square of the distance from the riparian wetland to the basin divide. In 2001, Dr. Garlanger modified the HELP model (HELPm). The modification multiplies the output from HELP by the square of the maximum height of the water table above the confining layer at the basin divide minus the square of the minimum height of the water table above the confining layer at the riparian wetlands. The only variable in HELPm is the maximum height of the water table above the confining layer; all other values, including those set forth above for HELP, are fixed. The modification improved the HELP model by allowing Dr. Garlanger, among other things, to reduce the extent to which the model is constrained by enabling him to input more realistic hydraulic conductivities. Using HELP, unmodified, Dr. Garlanger had had to input unrealistically high values for hydraulic conductivity. Hydraulic conductivity is either measured in the field or assumed. To simulate OFG without any mining for 25 years into the future, Dr. Garlanger had to obtain an input for hydraulic conductivity. Based on collected data from near the Panhandle as to daily fluctuations in the water table over a two-year period and sub-surface soil composition, as well as other information, Dr. Garlanger determined an average weighted hydraulic conductivity for OFG, pre-mining, of 19 feet per day with a low of 10 feet per day. Dr. Garlanger settled on an initial average weighted hydraulic conductivity of 15 feet per day for the surficial aquifer, but also identified a low-end average of 10 feet per day. As noted above, the contribution of an area of land to streamflow is dependent upon rainfall, evapotranspiration, deep recharge, and the change in storage, which is driven by the elevation of the water table (i.e., the top of the surficial aquifer) as it changes from day to day. Focusing on the vertical components of the water budget, HELPm calculates daily changes in storage, based on water table levels, so as to permit projections of runoff and groundwater outflow from the uplands. For rainfall, Dr. Garlanger relied upon the records of the Wauchula gauge, which is about 10 miles northeast from OFG. Rainfall data for this gauge go back to 1933, although to supplement some missing months, Dr. Garlanger relied on the Ft. Green gauge, which is closer to OFG, but does not go as far back as the Wauchula gauge. To supplement this information on the volume of rainfall, Dr. Garlanger added inputs on the frequency and rate of rainfall. For this calculation, Dr. Garlanger only used rainfall data for the period from 1978 to 2002 because the U.S. Geologic Service has collected streamflow data for Horse Creek at State Road 64 only as far back as 1978. Similar streamflow data for Horse Creek downstream at State Road 72 and for the Peace River go further back. Dr. Garlanger selected this timeframe so he could compare the model output of predicted streamflow to actual streamflow. HELPm calculates evapotranspiration, typically the largest source of water loss, on a daily basis. Dr. Garlanger calibrated evapotranspiration in his simulation by comparing HELPm calculations against average annual values for evapotranspiration for riparian wetlands, uplands, and wetlands in uplands, so as to permit the calculation of an average value of evapotranspiration for the Horse Creek basin above State Road Calibration is the process by which a hydrologist modifies the data inputs to the model based on measured data in order to produce a better match between observed and predicted data. Using generally accepted evapotranspiration values and the standard water-budget formula, Dr. Garlanger calculated average annual evapotranspiration for the Horse Creek basin above State Road 64 of 40.3 inches. He determined the following annual average evapotranspiration rates: riparian wetlands-- 47.5 inches; depressional wetlands--44 inches; seepage wetlands- -47.5 inches; well-drained uplands--34.5 inches; and other uplands--39 inches. Using this information, Dr. Garlanger then found the appropriate average annual evapotranspiration for the OFG uplands that he was modeling, and he reran the model five or six times until it produced outputs for uplands evapotranspiration consistent with this value. For uplands runoff, Dr. Garlanger turned to a well- recognized methodology for estimating the storage available in the uppermost foot of soil, as infiltration is an important factor in determining runoff. For groundwater outflow, Dr. Garlanger uses the one available equation, which is derived from Darcy's Law. Dr. Garlanger then ran his model for the no-mining, during-mining, and after-reclamation options, and he validated the model. In validation, the hydrologist confirms the model's outputs to measured data. In these exercises, Dr. Garlanger compared the predicted groundwater outflows with the empirical values published by Mr. Lewelling and predicted groundwater levels with those measured by IMC near the Panhandle. Dr. Garlanger ran the model with hydraulic conductivities of 10-15 feet per day and drainage times of 5-12 days. He eventually settled on an average hydraulic conductivity of 10 feet per day and an average drainage time of 12 days. Using these values, Dr. Garlanger validated his output by projecting streamflow from the entire 39.5-square mile area upstream of State Road 64, for which data exist. He found that the model produced a reasonable prediction of the flow duration curve. Dr. Garlanger then validated the output by comparing predicted and measured cumulative streamflow from 1978 through 1987, during which time mining in the Horse Creek basin was insignificant. He found a very good matchup between actual data and his model's predictions. Validating the output for average daily and average annual streamflow against actual data, Dr. Garlanger again found that the model performed acceptably. Dr. Garlanger then was prepared to model the 5.4 square-mile area for impact on Horse Creek streamflow at State Road 64 for 25 years without mining, during mining, and for 25 years after reclamation. For during-mining conditions, Dr. Garlanger assumed that the ditch and berm system would capture all of the runoff and none of the groundwater. For post-reclamation conditions, Dr. Garlanger assumed that the cast overburden spoil piles would be parallel to the flow of groundwater or, where that is not practicable, that the top of the spoil piles would be shaved by progressive amounts, ranging from five feet at the groundwater (or basin) divide progressively to 15 feet at the riparian wetland. This is vital to his calculations because of the vast difference in hydraulic conductivity of cast overburden spoil piles as compared to sand tailings. When oriented perpendicular to groundwater flow and unshaved, these spoil piles would act as underground dams, blocking the flow of groundwater. Dr. Garlanger modeled streamflow, in Horse Creek at State Road 64, which is just downstream of the confluence of Horse Creek and West Fork Horse Creek, under two scenarios: hydraulic conductivity of ten feet per day and drainage time of 12 days and hydraulic conductivity of fifteen feet per day and drainage time of five days. For post-reclamation hydraulic conductivity, Dr. Garlanger used 12 feet per day. With the higher streamflow reductions resulting from the lower hydraulic conductivities, Dr. Garlanger projected streamflow reductions, during mining, from 1.07-2.41 cfs and, after reclamation, from 0.10-0.14 cfs. These are average annual values. Generating a flow duration curve for Horse Creek at State Road 64 and using the more adverse data from the lower hydraulic conductivity value, Dr. Garlanger found a slight decrease, during mining, in flow during low-flow conditions, reflecting the mining of the Panhandle tributaries that contributed to groundwater outflow. Generating a stage duration curve, to depict the elevation of the water in the stream during the low-flow condition, Dr. Garlanger demonstrated that the difference is about three inches. After reclamation, as compared to pre-mining conditions, Dr. Garlanger determined that the average flow is decreased by 0.1 cfs, probably due to increased evapotranspiration from the additional reclaimed wetlands. This generates no discernible difference in the two flow duration curves for Horse Creek at State Road 64. Dr. Garlanger thus reasonably concluded that mining would not adversely affect the flow of Horse Creek at State Road 64 or dehydrate wetlands in the no-mine area. He concluded that, after reclamation, the impact would be de minimis as a decrease of 0.1 cfs is beyond the ability to measure flows. Farther downstream, at State Road 72, which is downstream of the confluence of Brushy Creek and Horse Creek, Dr. Garlanger calculated projected streamflow reductions, during mining, from 1.2-2.8 cfs and, after reclamation, from 0.12-0.16 cfs, which are too small to measure. Likewise, there are no discernible differences in the flow duration curves at State Road 72. Downstream of the confluence of Horse Creek and the Peace River, at Ft. Ogden, Dr. Garlanger calculated that the reduction in streamflow caused by mining at OFG would be equivalent to the reduction caused by a decrease of 0.01 inches of rainfall in the Peace River basin. Mr. Davis voiced many objections to Dr. Garlanger's streamflow calculations based on his reliance on HELPm. These objections are addressed at the end of the next section. Mr. Davis also voiced objections to Dr. Garlanger's calculations based on his understatement of the impact of phosphate mining on streamflow. As already noted, Dr. Garlanger made the better case on this issue. Distinguishing between the two rainfall eras in the Peace River basin--1933-1962 and 1969-1998--Dr. Garlanger reported that the measured average streamflow of the Peace River in the latter era was about 4.33 inches lower than the average streamflow of the Peace River in the former era. Finding that decreased average rainfall reduced streamflow by 3.75 inches per year, Dr. Garlanger calculates that the remaining 0.58 inches per year reduction in streamflow was largely due to an increase in deep recharge from 3.37 inches annually in the earlier era to 6.3 inches annually in the latter era. Anthropogenic changes in the Peace River basin have had opposing effects on streamflow. Urbanization, which causes increases in impervious surface, have increased runoff at the expense of evapotranspiration, thus increasing streamflow-- although certain demands of urbanization, such as groundwater pumping for potable water and industrial uses, will increase deep recharge, thus decreasing streamflow. Groundwater withdrawals by agriculture, industrial, utilities, and phosphate mining, net of the returns of these waters, have increased deep recharge, which, as just noted, decreases streamflow. Historically, phosphate mining's profligate use of deep groundwater also released much of the water back to streamflow, although the industry's historic predilection for Land-and-Lakes reclamation increased evapotranspiration and thus reduced streamflow. Converting inches of streamflow to cfs, Dr. Garlanger makes a good case that the streamflow of the Peace River is down about 500 cfs, mostly due to reduced rainfall amounts. About 50 cfs of that reduction is due to anthropogenic effects, and 5-15 cfs of man-caused reductions in the streamflow of the Peace River are due to phosphate mining. By contrast, Mr. Davis unconvincingly attributed a three-inch reduction in streamflow at the South Prong Alafia River to phosphate mining. This reduction in streamflow may be explained by Mr. Davis's failure to apply a lower and more reasonable streamflow assumption, absent mining; a lower and more likely rainfall amount; and a higher and more likely evapotranspiration rate. Wetland Hydroperiods and Inundation Depths 694. In making his groundwater calculations, Dr. Garlanger attempted to predict the behavior of the surficial aquifer, post-reclamation, and the ability of runoff and the water table to support the hydroperiods and inundation depths of the wetlands in the no-mine area and reclaimed wetlands. For this phase of his hydrological work, Dr. Garlanger again used the HELPm for the uplands and a long-term simulation model for the depressional wetlands in the uplands. The long-term simulation model is very similar to the streamflow model used for the riparian-wetland component of the streamflow modeling. Notwithstanding the replacement of the present geology with its more limited vertical permeability with wide bands of sand tailings down to the clay confining layer, Dr. Garlanger believes that deep recharge will remain unchanged by mining and reclamation because groundwater levels will return to their pre-mining elevations. To analyze the ability of the post-reclamation water table to support the reclaimed wetlands, Dr. Garlanger took 12 wetland cross-sections and projected fluctuations in water table and hydroperiod. These are presumably the 13 wetland complexes identified in Figure 13-3, described above. Dr. Garlanger testified about one modeled reclaimed wetland in detail--a freshwater marsh fringed by a wet prairie. This is E046/E047, which is a combined 16.1-acre wetland that is upgradient from E048, which is six-acre mixed wetland hardwoods that will replace the east half of a bay swamp (G166) and mixed wetland hardwoods fringes (G166B and G166C). Dr. Garlanger performs an iterative process based on a post-reclamation topographic map that starts with substantially pre-mining topography. Identifying the HELPm inputs, Dr. Garlanger takes the length of the upland to the riparian system and the assumed hydraulic conductivity based on the relative depths of sand tailings and cast overburden, and he then runs HELPm to determine the daily upland runoff and groundwater outflow. Dr. Garlanger then calculates the maximum height of the water table above the confining layer at any point downgradient from the basin divide to the riparian wetland. To input hydraulic conductivity, Dr. Garlanger testified that he obtains a value "based on the spoil piles and the depth that the spoil pile will be cut down to adjacent to the preserved area." (Tr, p. 2993) Applying the output to a wetlands model that is similar to the streamflow model, Dr. Garlanger then engages in an iterative process in which he adjusts and readjusts the post- reclamation topography to produce the proper elevation of the bottom of each modeled wetland for the hydroperiod that is stipulated for the vegetative community to be created in that location. Besides changing the bottom slope of each seepage wetland, the major adjustments for each wetland are narrowing its outlet or lowering its bottom elevation to extend its hydroperiod and deepen its inundation depth or broadening its outlet or raising its bottom elevation to shorten its hydroperiod and make its bottom elevation more shallow. Dr. Garlanger modeled the iterative process by continuing it late into the hearing, as he and IMC surveyor, Ted Smith, produced a "final" post-reclamation topographic map at the end of the hearing. Actually, even this map is not final, as Dr. Garlanger testified that he and Mr. Smith will produce the final topographic map, for wetlands, after the area is mined, photographed, backfilled, and graded, at which time they will know the location and direction of the cast overburden spoil piles. Dr. Garlanger will then use a calibrated model to account for actual in situ conditions. Due to the flatness of OFG, it is possible, even at this late stage, to regrade the sand tailings, if necessary for hydrological purposes. Monitoring wells will produce substantial data on the hydraulic conductivity of the no-mine area, as well as the hydroperiods of existing wetlands and the frequency with which seepage wetlands release water. Dr. Garlanger and IMC employees will also measure the hydraulic conductivity of the sand tailings and overburden in the reclaimed areas, also to assist their preparation of the final topographic map. As noted above, ERP Specific Condition 16.B.2 requires IMC to model 24 reclaimed wetlands to demonstrate successful water table re-creation and hydroperiod and inundation depth reclamation. Dr. Garlanger applied his models to confirm that, for each of the 24 modeled wetlands, the design topography and hydrology would produce the targeted hydroperiod and inundation depth. Mr. Davis modeled three reclaimed bay swamps. Bay swamps are the hardest wetlands for which to reclaim an appropriate water table due to their long hydroperiod, shallow inundation depths, and seepage characteristics. As noted above, no successful reclamation of bay swamps has ever taken place, except under circumstances inapplicable to OFG. The three reclaimed bay swamps are: E008, a 0.7-acre bay swamp abutting the west side of the Stream 1e series; E063, a 1.3-acre flow-through bay swamp in Stream 5e; and W039, an 11.2-acre bayhead from which Stream 1w will flow. W039 is a very large reclaimed wetland. After the 20.7-acre wet prairie (W003) to be reclaimed at the headwaters of Stream 9w and the 23.8-acre mixed wetland hardwoods (E003) lining the Stream 1e series, W039 is the largest reclaimed wetland at OFG, along with E018/E020, which are the isolated wet prairie fringe and freshwater marsh on the east side of Section 4. Mr. Davis testified as a witness in surrebuttal, which was necessitated by a late change by IMC in post- reclamation topography for these three bay swamps. Mr. Davis implied that he understood these three bay swamps better than he did the other reclaimed wetland systems. The fact is that he did understand these three reclaimed bay swamps better than he did any other reclaimed wetlands. Prior to testifying, at the order of the Administrative Law Judge, Mr. Davis and Dr. Garlanger conferred so that Mr. Davis, in preparing to respond to the "final" post-reclamation topography, would clarify any uncertainty about how Dr. Garlanger was modeling these wetlands and projecting their hydroperiods and inundation depths. Mr. Davis identified Dr. Garlanger's topographical changes to these three bay swamps. For E008, Dr. Garlanger lowered the west end of the wetland by 0.5 feet, extended a 114-foot contour up the channel, just east of an existing 115- foot contour, and possibly adjusted the slope. For E063, Dr. Garlanger lowered the bottom elevation by one foot, so that it can now store 0.3 feet of water, given its overflow popoff elevation. And for W039, Dr. Garlanger removed a slope and flattened the bottom, so that it can store 0.3 feet of water. From Dr. Garlanger's spreadsheets, Mr. Davis found the values for runoff, groundwater, and rainfall entering each wetland. Mr. Davis found that E008 received only 10 percent of its water from runoff, more of its water from rainfall, but most of its water from groundwater inflow. Noting that E008 abuts a reclaimed xeric area, Mr. Davis recalled a 6:1 ratio of groundwater inflow to runoff inflow. Mr. Davis explained that E008 loses most of its water to runoff. Mr. Davis found that the groundwater input for this wetland was consistent with the testimony of biologists, such as Deputy Director Cantrell, that bay swamps are primarily groundwater-driven systems, but questioned the absence of groundwater outflow to the adjacent, down-gradient riparian wetland (E003). For E063, however, Mr. Davis found that inputs from runoff, a more important source of water for this wetland, were about the same as inputs from groundwater. Although he did not testify to this fact, E063 is an unusual reclaimed bay swamp because it is the only one that will serve as a flow-through wetland, situated, as it is, in the middle of Stream 5e. This would seem to explain the larger role of surface water inputs than is typical of bay swamps adjacent to uplands. For W039, Mr. Davis found a small percentage of surface water and larger percentages of groundwater and rainfall as water sources for this wetland. Rainfall inputs would be greater due to the large area of the wetland, according to Mr. Davis. As a headwater wetland abutting uplands, W039 would be expected to have a higher input ratio, than E063, of water from groundwater versus runoff. Mr. Davis noted that W039 lost about half of its water to evapotranspiration, which would also make sense given its large surface area, and half to runoff, which would make sense given its status as a headwater wetland for Stream 1w. Mr. Davis then ran his MIKE SHE model to predict the hydroperiod for each wetland. This model is described in more detail at the end of this subsection. In simulating the hydrology of the reclaimed OFG, Mr. Davis assumed that the overburden spoil piles would be parallel to the direction of groundwater flow and eliminated any differential depressional storage, but he continued to assume two inches of depressional storage. (These assumptions are also discussed in connection with the MIKE SHE model.) Mr. Davis found that the 11.2-acre W039 will have a perfect hydroperiod. Its inundation hydroperiod will range from 8.6 months to 11.0 months, from bottom to top. Its saturation hydroperiod, which is water measured to a depth of 0.5 foot below the bottom of the wetland, will range from 8.8 months to 11.1 months, from bottom to top. Mr. Davis found that the 1.3-acre E063 will have a hydroperiod of 11.9 months, which is 0.9 months too long. Mr. Davis found that the 0.7-acre E008 will have a hydroperiod of 2.7 months for inundation and 4.6 months for saturation, which is about four months too short. 714. Crediting Mr. Davis's testimony, IMC's successful reclamation of an 11.2-acre bay swamp, dependent upon upland surface water and groundwater inputs, would be an unprecedented success. As discussed below, Mr. Davis's depressional assumption is not credited, so the hydroperiod of E063 would be shorter than the 11.9 months that he has calculated. Also, this reclaimed system will be a seepage system that would not permit the build-up of much standing water, so, even crediting Mr. Davis's calculations, Dr. Garlanger has achieved the proper hydrology for its reclamation too. It is more difficult to resolve the conflict in simulated hydroperiods for E008. E008 is a more complicated wetland to model because it is part of a reclaimed complex consisting of nine reclaimed wetlands. No other wetland complex to be reclaimed at OFG approaches this number of different communities in a single complex. Except for E018, which, although 30.7 acres, is a much simpler wetland system because it is an isolated complex of three wetlands, no other wetland complex to be reclaimed at OFG comes close to the area of the Stream 1e series' wetlands complex, which totals 35.1 acres, or over 10 percent of the wetlands to be reclaimed at OFG. Mr. Davis's unjustified depressional assumption generates excessively wet conditions, but, for E008, he found its hydroperiod to be too short by at least 3.4 months. And, of course, E008 is the difficult-to-reclaim bay swamp. The two models invite comparisons at this point. Mr. Davis's model, MIKE SHE, enjoys wide usage for calculating streamflows, hydroperiods, and inundation depths, as it has been used in these cases. MIKE SHE has been used successfully in large-scale settings. On the other hand, HELP was designed for calculating water levels in landfills. For calculating the uplands component of streamflow and hydroperiod, HELPm is used by Dr. Garlanger alone. The author of HELP's routine for lateral drainage and the subroutine for unsaturated vertical flow, Bruce McEnroe, pointed out that this model could accommodate only a regular, homogenous drainage layer, as would be found in a landfill, and could not accommodate the irregular, heterogeneous aquifer layer, which Dr. Garlanger was modeling. Mr. McEnroe also explained that the downstream boundary condition of HELP, which is free drainage, does not resemble the actual downstream boundary condition, in which groundwater cannot typically drain freely, and this limitation applies equally to the pre-mining and post-reclamation scenarios. Mr. McEnroe also found a mathematical error, but Dr. Garlanger later showed that it would alter results inconsequentially. Complaining about Dr. Garlanger's failure to provide comment lines in his source code, where he modified HELP, Mr. McEnroe emphasized that the model, as modified and used by Dr. Garlanger, really was no longer the HELP model. Counterposed to Mr. McEnroe's testimony was the testimony of Mark Ross, an associate professor of civil and environmental engineering at the University of South Florida College of Engineering. Professor Ross has 20 years' experience in hydrological modeling and has worked with the Florida Institute of Phosphate Research model that Mr. Davis helped develop, but which no longer is supported or in much use. Professor Ross conducted a peer review of the HELPm model, spending 20-30 hours in the process, exclusive of time spent discussing the model with Dr. Garlanger. Professor Ross endorsed Dr. Garlanger's use of a single value of .75 for evapotranspiration in riparian wetlands and his use of a weighted hydraulic conductivity. Professor Ross acknowledged that more complex models were available, but correctly opined that the simplest model was best if it could accommodate all of the available data. Although the emphasis in his testimony was on streamflow, Professor Ross addressed wetlands and their hydroperiods sufficiently to assure that his opinion of the sufficiency of the HELPm model covered both tasks. The interplay between the complexity of the model and availability of data emerged more clearly with the testimony of Authority hydrologist Henrik Sorensen, who developed code for the MIKE SHE model. Successful applications of this model range from the Danube River to Kuala Lampur to South Florida. The Danube River project was the construction of a dam, and hydrologists ran MIKE SHE to project the impact of the diverted streamflow on riparian wetlands. The Kuala Lampur project was the construction of a new city, and hydrologists ran MIKE SHE to project the impact of vastly changing land uses on the water level in the peat wetlands. South Florida projects have included a number of analyses of wetlands impacts of proposed activities. At Lake Tohopekaliga, hydrologists used MIKE SHE to project the effects on the water table and nearby wetlands of a 6-7 foot drawdown of the lake to remove muck. Unlike HELPm, MIKE SHE is an integrated model, meaning that all of its components are contained in a single model. Significant for present purposes, MIKE SHE integrates surface water and groundwater analysis in a single model, so as to facilitate the modeling of the interaction between a stream and surficial aquifer. This is especially important for simulating interactions between the surface and shallow water tables. MIKE SHE is a physically based model, meaning that it is based on equations derived from the laws of nature. In using HELPm and the spreadsheet models for streamflow and hydroperiod, Dr. Garlanger of course relies on laws of nature, but also relies on conceptualizations to link equation-driven outputs. As Mr. Sorensen explained, MIKE SHE is based on differential equations, so that it is dynamic as to time and space, but Dr. Garlanger's models are based on analytic equations, so they are limited to state-to-state solutions. The conceptualizations that link outputs and essentially integrate Dr. Garlanger's pairs of models are only as good as the conceptualizer, who, in the case of Dr. Garlanger, is very good, but conceptualizations can become so pervasive that the model loses its reliability and adds little or nothing to a conceptual exercise using an analytic model. Unlike MIKE SHE, HELPm is a lump-parameter model, which necessitates the input of average hydraulic conductivities, evapotranspiration rates, and leaf area indexes over relatively large areas and, in the case of evapotranspiration rates, sometimes at the expense of their calculation. Constraining a model, by inputting, rather than calculating, values to force results within an expected range, may resemble validation, but when the inputs become unrealistic, as Dr. Garlanger's hydraulic conductivity values were before he modified HELP, the model's credibility is impaired, not enhanced, by the process. Conceptualizations can eventually constrain modeled simulations so as to undermine confidence in the model's outputs. Unlike HELPm, MIKE SHE is spatially distributed, so that different land use types may be distributed throughout the model. HELPm may input different land uses for different basins, but MIKE SHE allows the user to input different land uses for different cells, each of the user's choice as to size. As noted by Mr. McEnroe, HELP was developed to simulate a shallow system running to a drain, and it remains well-suited for this task. In tracking the water table, HELPm assumes a constant thickness of the drainage layer, which reflects the design of landfills, not natural systems. As IMC contends, the post-reclamation geology will be far simpler than the pre-mining geology at OFG, but even the post-reclamation hydrology is far more complex than that of a landfill. With a 35:1 ratio of hydraulic conductivities, the surficial aquifer must negotiate the 330-foot wide valleys of sand tailings separated from 180-foot wide plateaus by 33-degree overburden slopes. Overburden peaks would have been simpler than overburden plateaus because the effective depth of sand tailings would have been at least five feet over nearly all of the mined area; as already noted, these overburden plateaus mean that, exclusive of shavings and toppings, overburden at less than five feet finished depth occupies about 28 percent of the surface of the mined area. This geology is much more complicated than the uniform geology of a landfill, especially when trying to project the surface water and groundwater inputs and outputs of shallow wetlands and streams, some of which will span several phases of this unusual geology. Unlike HELPm, MIKE SHE is used for its designed purpose when used for projecting streamflow and wetlands hydroperiods and inundation depths. It is widely used, peer- reviewed and supported with two or three updates annually. Mr. Sorensen made an interesting point when he opined that HELPm does a good job with average flows. This explains HELPm's reliability in calculating streamflows. Notwithstanding the calculation of peak discharge curves, accurate streamflow calculations--at least in this part of Florida--tolerate calculations based on average conditions and approximations much better than do accurate calculations of hydroperiod and inundation depths, especially concerning shallow wetlands in wetland complexes. MIKE SHE is not without its shortcomings, at least as applied in these cases. For his MIKE SHE simulation, Mr. Davis did not simulate first- and second-order streams, perched groundwater flow (i.e., interflow), or shallow concentrated overland flow, and, despite the model's sophistication, he still had to perform conceptualizations, such as of drainage. Mr. Davis's first two post-reclamation runs, prior to his final run of the three bay swamps, suffered from faulty assumptions. First, he assumed depressions and differential depressions based on a settling that Dr. Garlanger, with geotechnical engineering experience that Mr. Davis lacks, testified convincingly would not occur. Second, Mr. Davis assumed that the spoil piles would be oriented perpendicular to the direction of groundwater flow. Mr. Davis likely knew that IMC had agreed on December 23, 2003, to orient the mine cuts parallel to the direction of groundwater flow, to the extent practicable. Mr. Davis modeled the perpendicular scenario presumably due to the vagueness of the assurance, set forth only in the introduction to the January submittal, and thus unenforceable, that IMC would grade or shave the tops of overburden plateaus of spoil piles running perpendicular to groundflow. When performing his modeling, Mr. Davis could not have known of Dr. Garlanger's recommendation, as contained in a letter dated April 29, 2004--less than two weeks prior to the start of the final hearing--that IMC shave 5-15 feet off any perpendicular cast overburden spoil piles or that IMC would accept Dr. Garlanger's recommendation during the final hearing. As agreed to by IMC during the hearing, it will bulldoze any spoil piles oriented perpendicular to the direction of groundwater flow from 5-15 feet: the cut would allow five feet of sand tailings nearest the groundwater divide and would progressively deepen to allow 15 feet of sand tailings nearest the stream. For an average width of overburden of 195 feet with five feet thickness of sand tailings, which is the width calculated above under the less-favorable hydrological scenario with regard to the bases of the sand tailings valleys and cast overburden plateaus, Dr. Garlanger calculated a hydraulic conductivity of seven feet per day. Mr. Davis assumed that IMC would not be able to orient the spoil piles parallel to groundwater flow, but nothing indicates that the proper orientation of these piles will be impracticable over significant areas of land. If a turn of the dragline near Horse Creek leaves a relatively short area of spoil perpendicular to groundwater flow and if IMC will shave this area as it does rows, shaving the pile down 15 feet would substantially improve water table/shallow wetland interaction over the portion of the mined area that is left with an overburden plateau. Conceptualizing the contingency of a spoil pile blocking groundwater flow close to Horse Creek, such as from the U-turn of the dragline at the end of a row, the bulldozing of that spoil pile down to an effective 15-foot depth would leave a depth of at least 15 feet of sand tailings running 1095 feet, as measured alongside of Horse Creek out to a point at which the spoil piles would again run parallel to groundwater flow. If all of the spoil piles turned at Horse Creek and assuming that IMC will cut down the cast overburden piled against the sides of the mine cuts, for the distance equal to the distance between the edge of the no-mine area to the start of the curve, sand tailings would be at least 15 feet deep. The real problem with MIKE SHE, as applied at OFG, is its sophistication. Mr. Sorensen admitted that he had not reviewed the data available for this part of Florida, but claimed that he knew, based on his work in South Florida, that sufficient data existed to run the MIKE SHE model. This is highly unlikely. In addition to Mr. Davis's observation about the lack of data, the record reveals a slimmer universe of data than Mr. Sorensen imagined to exist. Measured values for the hydraulic conductivity of pre-mined or post-reclaimed areas are largely unavailable. For specific reclamation sites, little data exist of pre-mining and post-reclamation soil textures, water tables, and wetland hydroperiods and stage elevations. By volume, the two most critical inputs are rainfall and evapotranspiration, which must be calculated or assumed because, for practical purposes, it cannot be directly measured. A major determinant of evapotranspiration is the water table elevation. The critical inputs of rainfall and water table elevations illustrate the shortcomings of the data for these cases. Rainfall records in the general area cover a long period of time, except that collection points are usually far enough away from the site to be analyzed as to raise the probability of significant daily fluctuations, which average out over time. MIKE SHE inputs rainfall spatially and hourly while HELPm inputs a single daily value. Without regard to any particular application, MIKE SHE is the superior model on this point, but its superiority is wasted when the data of hourly rainfall for individual cells are unavailable and values, often based on much longer intervals at much greater distances, must be interpolated. Records for most surficial aquifer monitoring wells in the area date back only to the early 1990s and are fairly spotty as to locations. MIKE SHE inputs spatially distributed groundwater elevations, while HELPm inputs a single value. If, as Mr. Davis testified, multiple inputs of water table elevations, for which direct OFG data are unavailable, must rely on a hydrologist's knowledge of surficial aquifer responses, MIKE SHE would share the same tendency of HELPm--at least for this variable--of relying on external guidance to produce its output. By contrast, the scientists studying the Danube River had lacked the resources for many years to do much more than collect data, so the data for the Danube MIKE SHE simulation was much richer than the data available at OFG. In such data-rich environments, MIKE SHE is the superior model for wetland hydroperiods and inundation depths. The question in these cases is whether, given the limitations of the OFG data and HELPm in simulating hydroperiods and inundation depths, IMC has still provided reasonable assurance of the reclamation of functional hydroperiods and inundation depths for reclaimed wetlands. IMC's case as to reclaimed hydroperiods and inundation depths is undermined by certain aspects of the use of HELPm in these cases. The scientific method, which lends confidence to analysis-driven conclusions to the extent that others can reproduce the analytic process, is poorly served by computer code that is modified without notation and modeling results that no one can reproduce due to the repeated intervention of the modeler, applying his touch and feel to the simulation. Only at the end of nearly eight weeks of hearing and a conference between Dr. Garlanger and Mr. Davis could Mr. Davis finally gain sufficient understanding of Dr. Garlanger's modeling process to make a meaningful comparison between his conclusions and Dr. Garlanger's conclusions for the hydroperiods and inundation depths of three wetlands. When applied to project streamflow, with its relative amenability to average inputs, and when applied to projecting the hydroperiods and inundation depths of deeper and more isolated wetlands, HELPm, as used by Dr. Garlanger, who, as an experienced and highly competent hydrologist, can adjust and re- adjust inputs and outputs, produces reasonable assurance. However, Mr. Davis's analysis of Dr. Garlanger's work and other factors preclude a finding that Dr. Garlanger has provided reasonable assurance that IMC will reclaim a functional hydroperiod and inundation depths for E008. The finding in the preceding paragraph implies no similar rejection of Dr. Garlanger's modeling of the other wetlands. Most of the modeled reclaimed wetlands are isolated and do not present the challenge of simulating complex interactions among them, where an error in modeling an upgradient wetland will cause an error in modeling a downgradient wetland. A couple of the modeled reclaimed wetlands are headwater wetlands, which Dr. Garlanger has demonstrated his ability to model in W039. Outside of the Stream 1e series, the only wetlands similar in location to E008, as attached to a riparian system, will be E040, E048, E054 complex, and W044, of which only E048 is to be modeled. Mr. Davis also addressed E048 in surrebuttal. A wetland forested mixed, E048 will replace a high-functioning bay swamp abutting, or a part of, the riparian wetlands of Horse Creek. Mr. Davis admitted that he could agree with Dr. Garlanger's analysis of inputs into E048 from isolated reclaimed wetlands upgradient of E048, so that he could agree with Dr. Garlanger's projected hydroperiod for this reclaimed wetland. However, Mr. Davis explained that E008 is located in the flatter Panhandle, but that E048, as well as the other reclaimed wetlands listed in the preceding paragraph, are located in areas characterized by steeper grades and more xeric conditions, which support Dr. Garlanger's emphasis on groundwater inputs over surface water inputs. Peak Discharges During mining, the ditch and berm system prevents adverse flooding. If it operates as intended, the ditch and berm system delays the release of runoff from OFG by re-routing it through one of the NPDES outfalls. This decreases peak discharge downstream of OFG. Presumably, IMC will operate the recharge wells in anticipation of storm events--allowing the water levels to lower in advance of storms and maintaining higher water levels in advance of drier periods--so as not to raise the possibility of flooding by way of accelerated discharges through the NPDES outfalls. Failure of the ditch and berm system is highly improbable. The sole failure reported in this record did not involve a system as engineered as the one proposed for OFG, according to Dr. Garlanger. Another possible source of flooding during mining arises from the designed blockage of flow from unmined areas. IMC plans a single, elevated pipeline crossing across Stream 2e, and Dr. Garlanger explained that the design of the culvert, as part of this temporary crossing, will not result in adverse flooding during mining. Similar design work by Dr. Garlanger will be necessitated, if DEP issues a Final Order incorporating the recommendation below that the Stream 1e series and its 25-year floodplain also be placed in the no-mine area. The riparian wetlands for the Stream 1e series are narrowest along Stream 1ee, so this may be the location that DEP determines for the dragline walkpath corridor, if DEP determines that IMC may maintain a dragline crossing anywhere along the Stream 1e series. The sole issue, during mining, involving peak discharges is a legal question, which is whether IMC's ditch and berm system has the capacity to accommodate the design storm. As noted below, the design storm is the 25-year storm, if the ditch and berm system is an open drainage system, and the design storm is the 100-year storm, if the ditch and berm system is a closed drainage system. The capacity of the proposed ditch and berm system is designed to accommodate the 25-year storm, but not the 100-year storm. The facts necessary to determine if the ditch and berm system is open or closed are set forth above. In its Final Order, DEP must characterize a system that is closed in the sense of the availability of a passive discharge outfall, but open in the sense that, with the intervention of pumps--assuming the availability of electricity during a major storm or alternative sources of power--excessive volumes of water may be moved to an NPDES outfall. This is a minor issue because, even if DEP determines that the ditch and berm is a closed system, IMC may easily heighten the berm as necessary to accommodate the 100-year storm. Post-reclamation, many of the changes that IMC will make to OFG will reduce peak discharges. The agricultural alterations that ditched and drained wetlands accelerated drainage and increased peak discharges downstream, as compared to pre-existing natural drainage rates and peak discharge volumes. The removal of these ditches, the net addition of 24 acres of forested wetlands and 48 acres of herbaceous wetlands, the addition of sinuosity and in-stream structure to the reclaimed streams, and the redesigning of the banks of the reclaimed streams so as to permit communication between the reclaimed streams and their floodplains will attenuate floodwaters, slow the rate of runoff, increase temporary storage, and ultimately reduce peak discharges from their present values. Dr. Garlanger modeled peak discharges using the Channel Hydrologic Analysis Networking (CHAN) model, which is a widely accepted model to simulate peak discharges. As already noted, Mr. Loper found several inconsistencies and flaws in earlier modeling, but Dr. Garlanger, undeterred, re-ran the CHAN simulations, incorporating Mr. Loper's findings, as Dr. Garlanger deemed necessary. The bottom line is that, post-reclamation, very small increases in peak discharges will occur at the Carlton cutout and would occur at some property immediately downstream of the point at which Horse Creek leaves OFG. The owners of the Carlton cutout consented to the very minor flooding of their pasture land, and IMC, of course, has no objection to the very minor flooding of its downstream property. Even absent these consents, the very limited extent and frequency of flooding, given the prevailing agricultural uses in the area, could not be characterized as adverse. Among the points raised by Mr. Loper was the absence of mapping of any floodplain besides the 100-year floodplain of Horse Creek. The omission of other floodplains is of environmental or biological importance, but not direct hydrological importance. If for no other reason than that IMC will replicate pre-mining topography, especially at the lower elevations, there will be no loss of floodplain storage. 4. Water Quality Water quality violations characterize past efforts to reclaim streams, other than Dogleg Branch, but the good water quality at Dogleg Branch means that the phosphate mining industry can reclaim streams and maintain water quality, post- reclamation. The intensive engineering in IMC's Stream Restoration Plan raises the prospect of successfully reclaimed water quality, especially among the simpler, more altered stream systems to be reclaimed. There is little doubt that, during mining, few impacts to water quality take place. The ditch and berm systems in place during the upstream mining in the Horse Creek sub-basin have permitted no degradation of water quality. Given the present condition of most of the tributaries and extensive agricultural alterations of most of OFG, successful reclamation may be expected to result in certain changes to water quality, among already-altered tributaries, at least once the reclaimed communities have established themselves. Successful reclamation of these streams and their channels should lower turbidity, by replacing their incised, unstable stream channels and banks with stable channels and banks. The addition of riffles and structure to the stream bed should raise dissolved oxygen levels in these streams. Excluding cattle from these streams, by placing cattle ponds away from Horse Creek and vegetatively screening Horse Creek and the tributaries, should lower adverse impacts, such as turbidity, due to cattle damage to the banks, and nutrient loading, due to cattle waste discharges. Phosphorus is sometimes temporarily higher after mining, but this may be merely a trophic surge. Water temperature will cool with the addition of forested riparian wetlands, once the canopy develops, where none presently exists. However, none of these effects can be anticipated with the reclamation of the relatively pristine Stream 1e series. Other reclamation activities may also be anticipated to improve water quality. These activities include adding net wetlands area, replacing low-functioning wetlands with wetlands with the potential to achieve high-functioning levels, concentrating wetlands more around streams, adding supportive uplands, and otherwise increasing storage and slowing runoff. These activities will raise the level of natural filtration, compared to the natural filtration presently performed at OFG. Wildlife Management and Habitat The wildlife management plans are reasonable accommodations of wildlife that presently use OFG, based on the frequency of the usage by each species and the degree of protection afforded certain species. It is important that IMC update wildlife utilization information for the period that elapses between the site visits and the commencement of mining; wildlife usage by some species, especially the Audubon crested caracara, was discovered shortly before the hearing and, if later found to be more intense, will require more intensive wildlife management plans. Likewise, DEP will need confirmation of FWC's approval of IMC's gopher tortoise relocation plan. Always of especial concern is the Florida panther. Obviously, the accommodations necessary for one or two male Florida panthers visiting OFG are far less intensive than those necessary if a breeding pair had established themselves at the site. Ms. Keenan testified that the ERP/CRP approval should have incorporated the entire Habitat Management Plan. Although the ERP and CRP approval would be strengthened by the incorporation of the Habitat Management Plan, and DEP may elect to do so in its Final Order, the provisions actually incorporated adequately address wildlife management concerns. The evidence fails to establish that OFG, which has been logged over the years, presently supports red cockaded woodpeckers. Clearly, as is the case with the Audubon's crested caracara, IMC is committed to develop, prior to mining, appropriate management plans that meet the needs of whatever species are found using OFG between the hearing and the start of mining. In general, the reclamation of OFG will improve the value of the area for wildlife habitat. The concentration of reclaimed wetlands reduces induced edge by 36 miles. Induced edges artificially increase predation and decrease the function of the upland/wetland interface for those aquatic- or wetland- dependent species that rely on adjacent uplands during parts of their life cycle. The increased breadth of the riparian wetlands, which has been detailed above, also improves wildlife utilization and habitat values by discourage cattle from using the streams and adjacent wetlands. IMC's reclamation plan slightly increases the area of cattle ponds and locates them farther away from sensitive wetlands and streams. IMC's reclamation plan also serves the often- overlooked needs of amphibians. The creation of isolated and ephemeral wetlands, which will not receive floodwaters from Horse Creek or its tributaries in most storm events, will enable these amphibians to develop sustainable populations and flourish. At present, two factors have led to artificially high levels of predation of these amphibians by small fish. Ditching of formerly isolated wetlands and the proximity of still- isolated wetlands to tributaries and their connected wetlands-- so as to allow runoff to connect the two systems during storm events--allow small fish to enter the habitat of the amphibians and prey upon them at artificially high rates. Mitigation/Reclamation--Financial Responsibility IMC has never defaulted on any of its reclamation or mitigation responsibilities. Its mitigation cost estimates are ample to cover the listed expenses of the proposed wetlands mitigation, with two exceptions. For reasons set forth in the Conclusions of Law, IMC is not required to post financial security at this time for any CRP reclamation, such as the reclamation of uplands not relied upon by aquatic- and wetlands- dependent species, that is not also ERP mitigation. However, the listed expenses omit two important items of ERP mitigation. First, the listed expenses omit Dr. Garlanger's fees for final engineering work on wetlands hydroperiods and inundation depths after backfilling has been completed. This is an expense covered under reclamation, as well as mitigation, pursuant to Chapter 378, Part III, and Chapter 373, Part IV, Florida Statutes, respectively. Second, the listed expenses omit the cost of acquiring sand tailings, transporting them to the mine cut, and contouring them. For the reasons discussed in the Conclusions of Law, the cost of obtaining and transporting the sand tailings is not required under reclamation, pursuant to Chapter 378, Part III, Florida Statutes, but is required under mitigation under Chapter 373, Part IV, Florida Statutes. Charlotte County contends that the cost of obtaining, transporting, and contouring sand tailings is $35,588 per acre, according to Mr. Irwin. This represents $10,588 per acre, as Mr. Irwin's "best guesstimate" for earthmoving, which seems to include the stripping and preserving of the A and B horizons, and $25,000 per acre for the shaping of wetland reclamation units. This testimony includes items for which financial security is not required, such as preserving the A and B horizons, and excludes the third-party cost of acquiring sufficient sand tailings to backfill the OFG mine cuts to the post-reclamation topography and transporting these sand tailings to OFG. The record supplies no information on these costs.
Recommendation It is RECOMMENDED that the Department of Environmental Protection issue a Final Order: Granting the ERP with the conditions set forth in paragraph 884 above. Approving the CRP with the conditions set forth in paragraph 919 above. Approving the WRP modification when the ERP and CRP approval become final and the time for appeal has passed or, if an appeal is taken, all appellate review has been completed. Dismissing the petition for hearing of Petitioner Peace River/Manasota Regional Water Supply Authority for lack of standing. DONE AND ENTERED this 9th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 2005. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Greg Munson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Douglas P. Manson Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606-2543 John R. Thomas Thomas & Associates, P.A. 233 3rd Street North, Suite 101 St. Petersburg, Florida 33701-3818 Edward P. de la Parte, Jr. de la Parte & Gilbert, P.A. Post Office Box 2350 Tampa, Florida 33601-2350 Renee Francis Lee Charlotte County Attorney's Office 18500 Murdock Circle Port Charlotte, Florida 33948 Alan R. Behrens Desoto Citizezs Against Pollution 8335 State Road 674 Wimauma, Florida 33598 Alan R. Behrens 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Gary K. Oldehoff Sarasota County Attorney's Office 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Thomas L. Wright Lee County Attorney's Office 2115 Second Street Post Office Box 398 Ft. Myers, Florida 33902 Rory C. Ryan Holland & Knight, LLP Post Office Box 1526 Orlando, Florida 32802-1526 Frank Matthews Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Susan L. Stephens Holland & Knight, LLP Post Office Box 810 Tallahassee, Florida 32302-0810 Francine M. Ffolkes Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. D. "Sonny" Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issues to be decided in this case are whether Respondents are liable for the violations charged in the NOV, whether Respondents should pay the penalties assessed in the NOV, and whether Respondents should be required to take the corrective actions demanded in the NOV.
Findings Of Fact The Department is the state agency with powers and duties related to the regulation of construction activities in wetlands and surface waters, including filling in wetlands. Respondents are individuals who own real property on Bayshore Road in North Fort Myers, Florida. Some confusion exists in the record about the street number for the property. It is alternately described as 11590, 11620, 11650, and 11850. This is partly due to the fact that the property consists of at least two recorded parcels. The actual location of the filled area is not disputed, nor is it disputed that Respondents own the property where the fill was placed. The property is adjacent to the Caloosahatchee River. It contains freshwater marsh wetlands dominated by Leather Fern. The Department conducted a site inspection of Respondents’ property and determined that Respondents had filled 0.96 acres of wetlands. The Department produced evidence that it incurred costs of $1,824.50 in this case. The corrective actions ordered in the NOV, which are designed to restore the wetlands that were filled, are reasonable.
Findings Of Fact The Respondents, Noel S. Brown and Carolyn D. Brown, are the owners of a parcel of land on the shore of the Yellow River, situated near the northeast corner of Government Lot 3, Section 30, Township 1 North, Range 27 west, in Santa Rosa County, Florida. In August, 1980, while engaged in an aerial inspection, an employee of the Department of Environmental Regulation noticed what appeared to be unauthorized filling activities on this property. These filling activities occurred in the Yellow River marsh system. The Yellow River is classified as a Class II water of the State, an Aquatic Preserve, and an Outstanding Florida Water. These classifications entitle the Yellow River to special protection from degradation to its natural landward extent. In response to the violation report submitted by the DER inspector, a warning letter was sent to the Respondents, the purpose of which was to provide them with notice of the alleged violation and the statutes and rules which DER sought to enforce. Such a warning letter is one means by which DER initiates an enforcement proceeding. Several pieces of correspondence were exchanged between DER and the Respondents. DER repeatedly gave the Respondents notice of the statutes and rules which it alleged were being violated. In this correspondence the Respondents acknowledge receipt of the Department's communications. The Respondents also questioned the integrity and character of certain DER personnel and threatened the Department with a lawsuit for trespassing. Due to the threatened trespass action, DER personnel deemed it advisable to obtain a search warrant prior to conducting an on-site inspection of the subject property. Such a warrant was obtained from the County Judge for Santa Rosa County. On June 29, 1981, DER personnel conducted the on-site inspection, and determined that fill activities had taken place in a marsh area adjacent to and contiguous with the Yellow River without a permit from the Department. Access to the property was obtained pursuant to the search warrant. The filling and bulkheading activities conducted by the Respondents around the boatslip occurred in an area dominated by cattail (Typha sp.), with lesser amounts of needle-rush (Juncus roemerianus) and sawgrass (Cladium jamaicensis). Each of these species is listed in Section 17-4.02(17), Florida Administrative Code. The area landward of the boatslip consisted of a broad band of transitional species dominated by salt meadow cordgrass (Spartina patens) and salt grass (Distichlis spicata), both of which are listed in Section 17-4.02(17), Florida Administrative Code, with some Fimbristyus spadicea. The transitional species listed above were, prior to the filling, adjacent and contiguous to an area dominated by needle-rush (Juncus roemerianus) which has, due to the fill, been isolated and impounded. Holes were dug in the fill, and the vegetation covered by the fill consisted of Juncus roemerianus and/or Cladium jamaicensis. The Respondents at no time had a permit from DER to dredge and/or fill, issued pursuant to Chapter 403, Florida Statutes. This activity of the Respondents resulted in the alteration of the chemical, physical, and biological integrity of the waters of the Yellow River, including the marsh area fringing the river, by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the lake waters. The discharge of fill onto the marsh areas in waters of the State has resulted in injury to the biological community that existed there. As a result of the violations found on the property of the Respondents, DER served a Notice of Violation and Orders for Corrective Action on them. The Notice of Violation gave the Respondents notice of what DER considered to be violations on their property, and informed them of each statute and rule which DER considered to be violated. The Orders of Corrective Action set forth the following requirements: "A. The Respondents shall conduct no further dredging or filling activities or other construction in waters of the State unless they have obtained the required permit from the Department or unless the Respondents receive notice from the Department that the project is exempted pursuant to Chapter 17-4, Florida Administrative Code. Within 30 days of the effective date of the Orders for Corrective Action, the Respondents shall reimburse the Department for expenses incurred in investigating the violation in the sum of $483.60. Within 45 days of the effective date of the Orders for Corrective Action, the Respondents shall submit a plan of total restoration which shall include the following minimum criteria: Removal of all fill material in the jurisdictional marsh areas to their original contour elevations as indicated by the adjacent marsh areas and by any remaining root mats of marsh grass underlying the fill material. Removal of the bulkhead from the waters of and landward extent of the Yellow River. If natural revegetation or recruitment is determined to be insufficient, the Respondents shall within 30 days of such notice, revegetate the areas with an appropriate, suitable wetland vegetation. The vegetation shall be obtained from adjacent undisturbed marsh areas and planted utilizing 3" x 3" plugs centered 18" apart. Excess spoil materials shall be placed in an approved upland area. The Respondents shall take measures necessary to control and prevent sediment and/or runoff from entering Yellow River during construction, restoration and stabilization of the affected areas. The Respondents shall initiate the restoration immediately upon notification of approval by the Department. In no event shall the restoration period exceed 180 days. In the event the Respondents' restoration plan is not acceptable or in accordance with the minimum features outlined in these Orders, the Respondents shall implement a plan of restoration as directed by the Department. The Respondents shall allow authorized representatives of the Department access to and on the property during reasonable (daylight) hours for the purpose of determining compliance with the Final Order and/or rules and regulations of the Department. Within 60 days of the effective date of the Final Order, the Respondents shall pay to the Department's Pollution Recovery Fund the sum of $4,837.58 for damages occurring to the waters of the State including its landward extent as a result of the unauthorized placement of fill material." The restoration plan proposed by DER is a more desirable alternative to the status quo, in that it would restore much of the marshland vegetation which provides the filtrative and assimilative functions in removing nutrients and other pollutants. In addition, these orders are reasonable and are capable of being completed within the designated time periods. The Notice of Rights contained in the Notice of Violation and Orders for Corrective Action advised the Respondents of their right to contest the DER findings, and informed them how to do so. By letter dated October 8, 1981, the Respondents requested a hearing. This request was sent to the Division of Administrative Hearings on October 20, 1981. The Respondents continue to operate and maintain the stationary installation, consisting of a bulkhead and fill, on the subject property without an appropriate and valid permit from DER.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue a Final Order to the Respondents requiring the following actions: Pursuant to Section 403.141(1), Florida Statutes, the Respondents shall, within 30 days of the effective date of the Final Order, pay to DER the sum of $483.60 for expenses of the State in tracing, controlling, and abating the source of pollution constructed and maintained on the Respondents' land. Within 45 days of the effective date of the Final Order, the Respondents shall submit plans and a compliance schedule for restoration of the unauthorized dredge and fill site, as set forth in the Order for Corrective Action (recited above) or as otherwise acceptable to DER. The Respondents shall completely restore the unauthorized dredge and fill site pursuant to the plan contained in the Order for Corrective Action (recited above), or other plan acceptable to DER, within 180 days from the effective date of the Final Order. Within 60 days of the effective date of the Final Order, the Respondents shall pay damages as outlined in the Order for Corrective Action (recited above). THIS RECOMMENDED ORDER entered on this 3rd day of February, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 3 day of February, 1981. COPIES FURNISHED: Mr. Noel S. Brown and Mrs. Carolyn D. Brown 10 Hopson Road Jacksonville Beach, Florida 32250 E. Gary Early, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact On November 13, 1990, the St. Johns River Water Management District (SJRWMD) Governing Board voted to issue to the University of North Florida (UNF), a Management and Storage of Surface Waters (MSSW) permit #4-031-0359GM for the construction and operation of a surface water management system associated with road and parking lot construction on the UNF campus in Jacksonville. On the same day, the board also voted to issue water resource management permit #12-031-0007G authorizing dredging and filling in waters of the state related to said road and parking lot construction. Petitioners timely petitioned for hearing, challenging the SJRWMD decision to award the permits. Neither the standing of the Petitioners nor the Intervenor is at issue in this proceeding. The UNF campus contains approximately 1000 acres in Duval County, Florida, and lies completely within the jurisdiction of the SJRWMD. The UNF is an agency of the State of Florida, and has the apparent authority to make application for the referenced permits. The UNF campus is designated as a wildlife sanctuary. Of the 1,000 acres, wetlands constitute approximately 450 acres. Prior to development of the UNF campus, the property was utilized for silviculture, with pine trees farmed and harvested on the land. The property was and continues to be crossed by numerous logging roads and trails. During the 1970's extensive alterations occurred in the property related to local development activity. Swamps and stream flows were disrupted. Wetlands headwaters were altered by the construction of lakes. Adjacent highways and office developments were constructed, borrow pits were utilized, and wetlands were filled. There is some planted pine forest, generally no more than 40 years old, remaining on the UNF campus. Much of the UNF property remains undeveloped and consists of a variety of common habitat, including pine flatwoods, oak hammocks, and various wetlands. The existing UNF campus is crossed by a series of wetlands located generally north to south through the property. The wetlands include Sawmill Slough, Buckhead Branch, Boggy Branch, and Ryals Swamp. The water in the area flows to the southeast. Previous construction of UNF Drive required the crossing of Buckhead Branch and the filling of portions of Boggy Branch. The UNF now proposes to construct approximately .66 miles of three lane roadway across the southern portion of the campus to connect the existing UNF access drive into a loop (the "loop" road), approximately .34 miles of two lane roadway from a point on the loop into an upland area in the southeastern part of the campus (the "eastern connector"), pave an existing parking lot near UNF nature trails, and construct related surface and stormwater management facilities. The purpose of the loop road project is to enhance access around the UNF campus. The eastern connector will provide access to an undeveloped upland area of the campus. The expansion is related to and required by the anticipated continued growth of the University. The on-campus silviculture logging roads and trails, which remain from the pre-development period, have long been utilized by the UNF community as nature trails. The trails bisect a substantial part of the remaining undeveloped campus. In 1978, approximately 12 miles of trails were listed by the UNF with the United States Department of the Interior as National Recreational Trails, a national collected listing of recreational trails. These named trails, (the "maintained trails" as identified below, and the White Violet, Switchcane, and Turkey Trace trails) were marked by means of paint blazing and signs. In some locations, such markings, and at least one sign remain visible, even though the paint markings have not been repainted since the original blazing occurred. The UNF is fiscally unable to maintain all twelve miles of trail for general public use. The UNF concentrates maintenance and education efforts on three of the trails, the Blueberry, the Red Maple and the Goldenrod (hereinafter referred to as the "maintained trails"). The maintained trails, approximately 6 miles in total length, are signed and marked to provide clear and safe direction through the area. For public use, the UNF provides educational materials related to the maintained trails. Approximately 17,000 persons use the maintained trails annually. Two rangers are employed to supervise the maintained trails. In the most recent two year fiscal period, about $21,000 has been spent rebuilding and upgrading parts of the maintained trails. The UNF provides no security for the logging trails (hereinafter the "unmaintained trails") which are not part of the maintained trail system, and does not encourage the use of the old logging roads as trails. The proposed road construction project will adversely affect the use of the unmaintained trails because the road projects will intersect and overlap several of the trails. The evidence fails to establish that the UNF is without authority to amend, alter, relocate or abandon trails listed with the United States Department of the Interior as National Recreational Trails, or that notice need be provided to the Department prior to such action. There are additional recreational facilities available on the UNF campus, including two jogging trails, as well as a multi-sport facility in the north part of the campus. Approximately 10 total miles of trails exist (including the maintained trails and excluding the unmaintained logging trails). Persons who travel to the maintained trails by automobile currently park in an unpaved lot. The proposed roadway construction for which permits are being sought includes expansion and paving of the nature trail parking lot. This improvement will provide for better access to, and increased utilization of, the maintained trails and eliminate maintenance problems experienced in relation to the unpaved parking area. Notwithstanding the adverse impact on current use of the unmaintained logging trails, the project will enhance recreational development. Operation of the stormwater system, which will result in improved water quality discharged into the receiving waters, will not adversely affect recreational development. Although the recreational values of the impacted unmaintained trails will be adversely affected, on balance the additional access to the maintained trails and the recreational opportunities presented elsewhere on the UNF campus negate the impact on the unmaintained trails. Construction of the roadway will adversely impact portions of the Boggy and Buckhead Branches, which contains wetlands (as defined by, and under the jurisdiction of, the SJRWMD) and waters of the State of Florida (as defined by, and under the jurisdiction of, the Florida Department of Environmental Regulation, which has authorized the SJRWMD to review projects on the DER's behalf). The extent of the wetland impact was determined by the UNF and corroborated by the SJRWMD in an reliable manner. The wetlands impact areas are identified as follows: Area 1, at the upper margin of Boggy Branch, includes slash pine canopy and mixed bay trees; Area 2 is primarily second growth loblolly bay canopy, dense undergrowth, swamp. The loblolly is approximately 20 years old; Area 3 is a west flowing connection between Boggy and Buckhead Branches; Area 4, (the Buckhead Branch crossing), is bay canopy and bottomland hardwood. Areas 1, 2 and 4 will require filling for the construction of the loop road. Area 3 requires filling for the construction of the eastern connector. A total of approximately 2.3 total acres of forested wetlands are included within the impacted area. Of the 2.3 acres identified as wetlands for MSSW permitting purposes, 1.5 acres are classed as waters of the state for purposes of dredge and fill permitting. The wetlands are generally classified as fair to poor quality, although there is a limited wetland area classified as fair to good quality. The wetlands impact of the project on wetland dependent and off-site aquatic species would, without mitigation, be unpermittable. The loop road project includes three drainage areas. Accordingly to plans, drainage area #1 is served by curbs and gutters into storm sewers and discharging into wet detention pond E, drainage area #2 is served by curbs and gutters into storm sewers and discharging into wet detention pond F, and drainage area #3 is served by curbs and gutters discharging into a dry retention swale located adjacent to the road. Stormwater management and treatment for the eastern connector will be provided by a swale system located adjacent to the eastern connector. The western portion of the loop road and the newly paved nature trail parking lot will be separately served by a dry swale system and two retention ponds at the newly paved nature trail parking lot. Wet detention ponds retain the "first flush" stormwater runoff and discharge the water at a reduced rate through a "bleed down" structure. Pollutant removal occurs when first flush runoff is retained and mixed with additional water. Pond and soil organisms and littoral plants provide additional treatment. Such ponds are effective and require minimal maintenance, generally involving removal of nuisance species and cleaning of the "bleed down" structure. Oil skimmers will prevent the discharge of oils and greases from the site. The wet detention ponds have side slopes no steeper than a 4 to 1 horizontal to vertical angle and will be mulched or vegetated to prevent erosion. Dry retention facilities retain the "first flush" runoff and attenuate peak stormwater discharge. The water within the dry swale is filtered as it percolates down through the soil. Maintenance of dry swale systems requires mowing and removal of silt buildup. The design of the system provides that the post development peak rate of discharge will not exceed the pre-development peak rate of discharge for a 24 hour duration storm with a 25 year return frequency. The project will not cause a reduction in the flood conveyance capabilities provided by a floodway. The project will not result in flows and levels of adjacent streams, impoundments or other water courses being decreased so as to cause adverse impacts. The projects detention basins will provide the capacity for the specified treatment volume of stormwater within 72 hours following a storm event. The project is not located in and does not discharge directly to Class I or Class II waters, to Class III waters approved for shellfish harvesting, or to Outstanding Florida Waters. The receiving waters for the system are Boggy and Buckhead Branches, both Class III surface waters. Operation of the system will not cause or result in violation of state water quality standards for the receiving waters. The discharge from the system will meet Class III water standards. There is no evidence that operation of the system will induce pollution intrusion. The design and sequence of construction includes appropriate Best Management Practice provisions for erosion and sediment control, including silt barriers and hay bales. Such provisions are required by the SJRWMD permit conditions. Silt barriers will completely enclose the dredging locations. The bottoms of silt curtains will be buried and will extend 3.5 to 4 feet above the land surface. Slopes will be stabilized by sodding or seeding. The locations of the wet ponds and dry swales, nearby the roadways, will facilitate maintenance activities. Maintenance requirements are included within the SJRWMD permit conditions and are sufficient to ensure the proper operation of the facilities. Although the Petitioners asserted that prior violations of SJRWMD rules related to water quality discharge by the UNF indicate that the UNF is not capable of effectively and adequately operating and maintaining the system, the evidence establishes that the permit conditions are sufficient to provide for such operation and maintenance. The project also includes replacement of an existing culvert at a connection between Boggy and Buckhead Branches. The existing culvert is impounding water during the wet season. The replacement culvert will be installed at the connection floor elevation and will serve to restore the natural hydrology. The new culvert will also be substantially larger than the existing pipe, and can allow fish and wildlife passage under the road. In order to mitigate the impact of the project on wetland dependent and off-site aquatic species, the UNF has proposed to create a 6.3 acre freshwater forested wetland at a site contiguous to Buckhead Branch. The wetlands creation project includes 2.9 acres of submerged wetlands and 3.4 acres of transitional wetlands. Of the 6.3 acres, 4.1 acres of the created wetlands are designated to mitigate the adverse impacts related to the dredge and fill activities. The mitigation proposal constitutes a ratio of 2.7 acres of wetlands creation for every acre of wetland impact. The mitigation site is a low upland pine flatwood and mesic flatwood area surrounded on three sides by wetlands related to Buckhead Branch. The mitigation area will be scraped down to a suitable level and over-excavated by six inches. The elevation of the proposed wetland creation area is based upon water table data and surveying of the Buckhead Branch, located adjacent to the proposed mitigation area, which serves as the wetlands reference area. The UNF monitors surface and ground water elevation in the proposed mitigation area and in Buckhead Branch, and records rainfall amounts. The hydrology of the proposed wetland creation area is based upon the connections of the created wetlands with Buckhead Branch and is sufficient to assure an appropriate hydroperiod. The six inch over-excavation will receive muck soils removed from the impacted wetland areas. The subsurface soils in the wetland creation area are, because of the existing water table level, compatible with the wetland creation. The muck soil will naturally contain seeds and tubers of appropriate vegetation. Additionally, wetland trees, based upon trees in adjacent wetland areas, will be planted in the wetland creation. Prior to planting, the UNF will be required to submit an as-built survey demonstrating that the hydrology and elevation newly- created wetland is proper. The UNF proposal to monitor and maintain the created wetland includes physical and aerial examination of the site, which will be protected by a deeded conservation easement. The monitoring and maintenance plan will continue for three years. The mitigation effort must achieve a ground cover of not less than 80% to be considered successful. Nuisance species will comprise less than 10% of the site's vegetation, and excessive nuisance species will be removed. The UNF is required to periodically report the status of the site to the SJRWMD. The mitigation proposal is adequately detailed and sufficient to offset adverse impacts to wetlands resulting from construction and operation of the system and the dredge and fill project. The wetland creation permit conditions indicate that the wetlands will function as designed and approved by the SJRWMD. The wetland creation is greater in size than the impacted wetlands, will replace the habitat and function of the impacted wetlands and will offset the adverse impacts of the loss of existing wetlands. There will be no impact on any threatened or endangered animal species. The evidence that such species utilize impacted sites is limited. Existing utilization of the impacted site will be accommodated by the remaining wetlands and the created wetland mitigation area. There is no evidence that fish will be adversely affected by the project. Construction and operation of the system will not cause adverse changes in the habitat, abundance, diversity or food sources of threatened and endangered species or off-site aquatic and wetland dependent species. More than five years ago, a bald eagle, listed as endangered by the State of Florida, was observed perched on an upland tree in an area where a retention pond will be constructed. The eagle was not nesting or feeding at the time of observation. The closest known eagle's nest is more than four miles away from the site. None of the impacted area provides appropriate feeding ground for a bald eagle. Colonies of red-cockaded woodpeckers exist between one and one half to ten miles away from the UNF campus. Red- cockaded woodpeckers have been observed on the UNF campus but not in the vicinity of the areas to be impacted by the project. Red- cockaded woodpeckers habitat pine trees at least 50 years old. While the existing pine may provide red-cockaded woodpecker habitat in the future, the pine trees to be impacted by this project are not suitable habitat for red-cockaded woodpeckers at this time. There are no pines on the UNF campus which would currently provide suitable red-cockaded woodpecker habitat. Woodstorks have been sighted on the UNF campus, but not in the impacted area or the mitigation area. Woodstorks feed in areas dissimilar to the impacted areas, therefore there should be no impact on the species. Gopher tortoises have been observed on the UNF campus, but not in the impacted wetland areas or in the mitigation areas. There is no evidence that gopher tortoises would be impacted by this project. A number of animal species identified as wetland dependent have been observed on the campus. However, the evidence of actual utilization of impacted areas by such species is unclear as to frequency and manner of utilization. Such wetland-dependent species are capable of utilizing proximal habitat and will be absorbed by the unimpacted wetland acreage on the UNF campus. Further, the impact on potential habitat caused by the project will be effectively mitigated through the created wetland area. Five hooded pitcher plants are located within the wetland impact area and will be destroyed by construction activities. The hooded pitcher plant is listed by the State of Florida as a threatened species, however, the plant is common in wet areas throughout Duval, Clay, St. Johns and Nassau Counties. Because the muck soils removed from the area will contain seeds, roots and rhizomes from existing vegetation, the plants will likely reproduce in the created wetland area which will contain the muck soil removed during the permitted construction activity. There is no evidence that the dredge and fill project will adversely affect public health, safety and welfare. There are no significant secondary impacts resulting from the proposed project. The SJRWMD considered the environmental impacts expected to occur related to the construction of the roadways for which the permits are sought. In this case, the anticipated secondary impact of the project relates to the effect of automobiles on existing wildlife. The evidence does not establish that there will be such an impact. The road poses no obstacle to wildlife migration. The replacement of the existing culvert with a new culvert at the proper ground elevation may provide enhanced access for some wildlife. The cumulative impacts of the project include the potential expansion of the eastern connector which would require the crossing of Boggy Branch, and future building construction in the southeast portion of the UNF campus. There is no evidence that such impacts, which would require additional permitting, could not be offset with additional mitigation at such time as the permitting is sought.
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 11-12, 1991, in Jacksonville, Florida.
The Issue The issue is whether an Environmental Resource Permit (ERP) and a Letter of Consent to Use Sovereignty Submerged Lands (Letter of Consent) should be issued to Respondent, Palm Beach County (County), authorizing it to fill 7.97 acres of submerged lands for a restoration project in Lake Worth Lagoon.
Findings Of Fact Based upon all of the evidence, the following findings are determined: The Parties Trump is the owner association for a two-towered residential and commercial condominium building located at 525 South Flagler Drive in downtown West Palm Beach, upland and west of the project site in the Lagoon. Each tower rises thirty floors and together they have of two hundred twenty units. The first five floors are common areas including a lobby on the first floor, while a pool and patio are located on the fifth floor of the north tower. The property is separated from the Lagoon by Flagler Drive, a four-lane divided road with landscaping and sidewalks which runs adjacent to, and on the western side of, the Lagoon. There is no dispute that Trump has standing to initiate this action. Flagler owns, manages, and leases two multi-story office buildings located at 501 Flagler Drive on the upland real property directly west of the project location. Like the Trump property, the Flagler property is separated from the Lagoon by Flagler Drive. There is no dispute that Flagler has standing to participate in this matter. The County is a political subdivision of the State and is the applicant in this proceeding. The Department is the state agency with the authority under Part IV, Chapter 373, Florida Statutes,2 to issue to the County an ERP for the project, as well as authority as staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to authorize activities on sovereign submerged lands pursuant to Chapter 253, Florida Statutes, and Chapter 18-21. Background On October 29, 2007, the County submitted to the Department its Joint Application for an ERP and Letter of Consent to use sovereignty submerged lands in the Lagoon owned by the Board of Trustees. The application was assigned File No. 50- 0283929-00. After an extensive review process, including three requests for additional information, on August 12, 2008, the Department issued its Notice of Intent authorizing the County to fill 7.97 acres of submerged lands in the Lagoon with approximately 172,931 cubic yards of sand and rock material to create the following: (a) approximately 1.75 acres of red mangrove habitat including 1.52 acres of mangrove islands and 0.23 acres of red mangrove planters; (b) approximately 0.22 acres of cordgrass habitat; (c) approximately 0.90 acres of oyster habitat; (d) approximately 3.44 acres of submerged aquatic vegetation habitat; and (e) a 10-foot by 556-foot (5,560 square feet) public boardwalk with two 3-foot by 16-foot (48 square feet) educational kiosk areas and a 16-foot by 16-foot (256 square feet) observation deck for a total square footage of approximately 5,912 square feet. The Notice of Intent also included a number of general and specific conditions particular to this project. Trump (by timely Petition) and Flagler (by intervention) then challenged the Notice of Intent. They contend generally that the project unreasonably infringes upon or restricts their riparian rights and fails to meet the permitting and consent to use criteria set forth in Chapters 18-21 and 40E-4, as well as Chapter 373, Florida Statutes, and Section 253.141, Florida Statutes. Conflicting evidence on these issues was presented at the hearing. The conflicts have been resolved in favor of the County and the Department, who presented the more persuasive evidence. The Project The project area is a cove in the Lagoon, a Class III water body which extends within the County from North Palm Beach to Manalapan. The western side of the water body in the project area is lined with a vertical concrete seawall approximately 6.64 feet above the mean low water line. The waters immediately adjacent to the Trump and Flagler upland property are generally two to five feet deep along the seawall. To the east lies the island of Palm Beach, to the south is the Royal Park Bridge, which connects West Palm Beach and the Town of Palm Beach, while to the north is the Flagler Memorial drawbridge. The Lagoon is approximately 2,000 feet from shore to shore. The Intracoastal Waterway (ICW) runs roughly through the middle of the Lagoon in a north-south direction. Currently, there is an artificial dredge hole in the project area around four hundred feet from the western seawall. The dredge hole, which descends to approximately twenty feet at its deepest location, is filled with muck, which can be re- suspended by wave energy into the water, blocking the sunlight necessary for the support of biotic life. The muck covers the natural hard bottom, consumes oxygen, and presents an unsuitable environment for benthic organisms. The dredge hole is too deep to support seagrasses. The project calls for filling the dredge hole to intertidal elevations, i.e., between the high and low tide elevations, for mangroves and elevations suitable for seagrass. In all, approximately 173,000 cubic yards of fill will be placed in and around the hole to build up three separate islands within the project footprint, on which the County will plant 10,000 red mangroves, which naturally grow between fifteen and twenty-five feet in height. (The County estimates that eighty to ninety percent of the mangroves will survive and grow to a height of at least fifteen feet.) The top of the islands, not including mangroves, will be just below the mean high water mark. The County also proposes locating planters along the seawall and oyster reefs along the southern end of the project. The planters are designed to extend out approximately twenty feet from the seawall and will be placed on sovereign submerged lands. The last five feet will consist of limestone rock. Mangrove, spartina, and seagrass habitats will provide a biodiverse source of food and habitat for other species, and occurs naturally within the Lagoon but has been lost over time. Oyster habitat is proposed for additional bio-diversity and to provide a natural water filtration function. From the County's perspective, the restoration project would be incomplete without all the habitats proposed. The planters will be at an intertidal elevation, planted with red mangroves and spartina, and faced with rock to reduce wave energy in the area. The oyster reefs are rock structures designed to rise one foot above mean high water line for visibility to boaters. The project also includes a boardwalk and attached educational kiosks on the south side of the project to bring the public in contact with the habitats. The County will maintain the boardwalk, empty the trash daily, and open/close the gates at sunrise/sunset. The County proposes a minimum ten-foot buffer between seagrass beds and the fill area. The project is part of the County's Lagoon Management Plan, which outlines the County's restoration goals within the Lagoon. The County has performed numerous other restoration projects within the Lagoon to re-introduce mangrove and seagrass habitat, such as Snook Island, which consisted of filling a 100- acre dredge hole, installing mangrove islands, seagrass flats, and oyster reefs. The Snook Island project restored mangrove habitat and recruited fish and bird species, including endangered and threatened species. Snook Island has remained stable, with no sediment deposition or erosion. The County intends to fill the dredge hole with native lagoon bottom sediment. A clam-shell machine will deposit the sediment below the water line to reduce turbidity. Sediment will be placed around the edges of the dredge hole, reducing the velocity of the fill as it settles to the bottom and encapsulates the muck, as required by Draft Permit Special Condition No. 19. The County will use turbidity curtains, monitor conditions hourly, and stop work if turbidity levels rise beyond acceptable standards. These precautions are included in Draft Permit Conditions 12, 13, and 14. The County will use construction barges with a four- foot draft to avoid propeller dredge or rutting and will place buoys along the project boundary to guide the construction barges, precautions integrated into the Draft Permit conditions. The County's vendor contracts require maintenance of construction equipment to prevent leakage. A similar condition is found in the Draft Permit. Both the intertidal and seagrass flats elevations at the top of the islands will be built at a 4:1 slope; elevations subject to wind and wave energy will be reinforced with a rock revetment constructed of filter cloth and rock boulders. Seagrass elevations will have no reinforcing rock because they are deep enough to avoid significant currents. Proposed drawings were signed and sealed by a professional engineer. The ERP Criteria To secure regulatory approval for an ERP, an applicant must satisfy the conditions in current Rules 40E-4.301 and 40E- 4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality. The latter rule requires that a public interest balancing test be made, and that cumulative impacts, if any, be considered. Also, the BOR, which implements the rule criteria, must be taken into account. a. Rule 40E-4.301 21. Paragraphs (1)(a), (1)(b), (1)(c), (1)(g), (1)(h), and (1)(k) and subsections (2) and (3) of the rule do not apply. Although Trump and Flagler have focused primarily on paragraphs (1)(d), (f), and (i) in their joint Proposed Recommended Order, all remaining criteria will be addressed. Paragraph (1)(d) requires that an applicant give reasonable assurance that the proposed activity "will not adversely affect the value of the functions provided to fish and wildlife and listed species by wetlands and other surface waters." Based on the project design, the filling of the dredge hole and capping of muck, the restoration of seagrass habitat, and the creation of mangrove habitat, the project will have no adverse impacts but rather will be beneficial to the value of functions for fish and wildlife. Paragraph (1)(e) requires that an applicant give reasonable assurance that the proposed activity will not adversely affect the quality of receiving waters. The County will be required to manage turbidity that may be generated from the project. In part, the turbidity will be contained by the proposed construction method for filling the dredge hole. As noted earlier, the native sand will be deposited using a clamshell-type arm to dump the sand under the water around the periphery of the edge of the downward slope of the dredge hole. This will continue around the periphery of the hole, building up a lip and letting it slide down towards the bottom of the hole, squeezing the muck into the center of the hole and beginning to encapsulate it. Once there are several feet of native sand over the muck to encapsulate it, the County will resume the filling at the target rate. Subsection 4.2.4.1 of the BOR requires that the County address stabilizing newly created slopes of surfaces. To satisfy this requirement, the County will place the fill at a 4:1 slope. The outer edge of the mangrove islands slope back to a 4:1 slope and use rock rip-rap to stabilize that slope. Also, filter cloth, bedding stones, and boulders will be used. Because water currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de-stabilize. There will be turbidity curtains around the project area. Those are floating tops and weighted bottoms that reach to the bottom and are intended to contain any turbidity that may be generated by the project. Specific Conditions 12, 13, and 14 require extensive monitoring of turbidity. The County proposes to use a barge with a draft no greater than four feet. This aspect of the project will require a pre-construction meeting and extensive monitoring throughout the project. As a part of the application review, the County performed a hydrographic analysis which was coordinated with and reviewed by the Department staff. There are no expected debris or siltation concerns as a result of the project. The more persuasive evidence supports a finding that over the long term, the project is expected to have a beneficial effect on water quality. By filling the dredge hole and providing habitat for seagrass, mangroves, and oysters, the project will provide net improvement to water quality. The requirements of the rule have been met. Paragraph (1)(f) requires that the applicant provide reasonable assurance that the activities will not "cause secondary impacts to the water resources." More detailed criteria for consideration are found in BOR Subsection 4.2.7. The County has provided reasonable assurance that through best management practices, it will control turbidity. Also, Specific Conditions in the proposed permit require that water quality monitoring be conducted throughout the process. There will be no impacts to upland habitat for aquatic or wetland dependent species. This is because a vertical seawall is located upland of the project site, and no surrounding uplands are available for nesting or denning by aquatic or wetland dependent listed species. A secondary impact evaluation also includes an evaluation of any related activities that might impact historical and archaeological resources. There are, however, no historical or archaeological resources in the area. If resources are uncovered during the project, Draft Permit conditions require notification to the Department of State. Finally, there are no anticipated future activities or future phases on the project to be considered. Rule 40E-4.301(1)(i) requires that the applicant provide reasonable assurance that the project "will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Trump and Flagler contend that the project cannot be constructed and successfully operated as proposed. Trump's expert witness, Joseph Pike, testified that there were ambiguities and conflicts within the plan drawings that would require changes upon build-out; either fill will be placed outside of the fill area, or the mangrove islands will be smaller than depicted. Mr. Pike also voiced concerns that a 4:1 slope would not be stable and might cause fill to migrate to existing seagrass beds. He further stated that the Snook Island project included 18:1 slopes, and he thought providing rock revetment only at the intertidal zone was insufficient. Mr. Pike acknowledged that he had used 4:1 slopes in lake projects; however, in a tidal project involving fill placement, he opined that a 4:1 slope was likely to "relax." He did not do calculations about what slope might hold and admitted that prior experience using similar slopes with the same type of fill might change his opinion. Finally, Mr. Pike noted that a portion of the dredge hole would not be filled and concluded that the project would not fully cap the muck. Trump's biologist, James Goldasitch, speculated that the water flow changes would cause sediment deposition on existing seagrass beds, possibly causing the seagrasses to die. He admitted, however, that the County's plans called for the creation of 3.44 acres of seagrass and did not know the amount of habitat created compared to the amount of habitat he anticipated being affected. The Department's engineer, Jack Wu, approved the hydrologic aspects of the County's plan, but Mr. Goldasitch speculated that Mr. Wu was more focused on shoreline stability than on depositional forces. Mr. Goldasitch never actually spoke to Mr. Wu regarding his analysis, and Mr. Wu's memorandum refers not only to engineering and construction aspects of the proposal but also to the criteria in Rules 40E-4.301 and 40E-4.302. Mr. Goldasitch believed the County's boardwalk will impact the seagrass beds by blocking sunlight, but acknowledged that the Draft Permit required the boardwalk to be elevated and portions to be grated. Both the Florida Fish and Wildlife Conservation Commission and the Department's expert witness concluded that the permit conditions for constructing the boardwalk, which are common, eliminated impacts to seagrass. Mr. Goldasitch further opined that the 4:1 slope might slump, but then deferred to the opinion of a registered engineer on this type of engineering matter. The County presented its professional engineer, Clint Thomas, who worked on the project design. Mr. Thomas explained that permit drawings are not intended to be construction-level in detail, but are merely intended to provide sufficient detail for the regulator to understand the project within the 8 and 1/2 by 11-inch paper format required by the Department. The County will ultimately prepare permit-level, construction-level, and as-built drawings. Permit conditions also require a pre-construction meeting. No fill will be placed outside the area designated for fill, and the 4:1 slope will start at the outer boundary of the designated fill area until it reaches the specified elevation. Mr. Thomas acknowledged that the plan view drawings depict a mangrove island too close to the western project boundary, but stated that the mangrove island would simply be placed farther to the east during the construction-level plan process. Islands will become smaller islands, but will not be relocated, and in no event will the fill area expand; the fill boundary is a very strict limit. There is no evidence that the County has ever violated a fill boundary established in a permit. The 4:1 slope was based on the type of fill proposed for the project and to maximize project features. Mr. Thomas has successfully used 4:1 slopes with non-compacted fill in the Lagoon, both at Snook Island in its as-built state and at other projects. The islands at Snook Island are similar to those proposed. Other areas in the Lagoon have held slopes steeper than 4:1 with the same type of fill. Therefore, Mr. Thomas opined the 4:1 slope would hold. In rendering this opinion, he explained that the currents in the project vicinity are only around 1.2 knots. Because currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de- stabilize. Mr. Thomas addressed the contention that a change in water flow velocity would cause sediment to deposit on existing seagrass. The oyster reefs are rubble structures that allow the water to flow through. If any sediment flows through, it will deposit on the north side of the oyster bar, rather than on the seagrass beds. Given these considerations, the evidence supports a finding that the project will function as proposed. Finally, paragraph (1)(j) requires that the County provide reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit. The evidence supports a finding that the County has complied with this requirement. In summary, the evidence supports a finding that the County has given reasonable assurance that the project satisfies the criteria in Rule 40E-4.301. b. Rule 40E-4.302 In addition to the conditions of Rule 40E-4.301, the County must provide reasonable assurance that the construction of the proposed project will not be contrary to the public interest. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7. Rule 40E-4.302(1)(a)1. requires that the Department consider whether the activity will adversely affect the public health, safety, or welfare or the property of others. Trump first contends that the project will increase the mosquito population. The evidence shows, however, that the mangroves will be placed below the mean high water mark and therefore no increase in mosquitoes should occur. Also, the design of the project, coupled with the local mosquito control program, should ensure that there will be no increase in mosquito population or a risk to the public health. Trump also raised the issue of an increase in trash along the boardwalk area or in the newly-created mangrove islands. The County presented evidence that there will be appropriate trash receptacles in the area as well as regular garbage collection. In terms of safety, navigation markers are included as a part of the project for safe boating by the public. The County consulted with the United States Coast Guard regarding navigation issues. Further, the project will not cause flooding on the property of others or cause an environmental impact on other property. Although a number of Trump residents expressed sincere and well-intended concerns about the project impacting the value of their condominiums (mainly due to a loss of view), BOR Subsection 4.2.3.1(d) provides that the "[Department] will not consider impacts to property values or taxes." Rule 40E-4.302(1)(a)2. requires that the Department consider whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Subparagraph 4. of the same rule requires that the Department consider whether the activity will adversely affect the fishing or recreational value or marine productivity in the vicinity of the activity. The proposed activity is a restoration project for the creation of seagrass and mangrove habitats. As such, it is beneficial to the conservation of fish and wildlife and is expected to increase the biotic life in the project area. Besides providing additional habitat for fish and wildlife, the project will add to the marine productivity in the area. In terms of recreational opportunities, the project is expected to be a destination for boating, kayaking, fishing, and birdwatching. The Florida Fish and Wildlife Conservation Commission has also recommended issuance of the permit with the standard manatee condition for in-water work. This recommendation has been incorporated as Specific Conditions 23 through 25 Rule 40E-4.301(1)(a)3. requires that the Department consider whether the activity will adversely affect navigation and the flow of water, or cause harmful erosion or shoaling. The nearest navigation channel is the ICW. The project is located outside of that area. Subsection 4.2.3.3 of the BOR provides additional guidance on the evaluation of impacts of this nature. Paragraph (a) of that subsection provides that, in evaluating a proposed activity, the Department "will consider the current navigational uses of the surface waters and will not speculate on uses which may occur in the future." Trump residents indicated that in the project area persons are now picked up off the seawall and then travel to the ICW. Access to the seawall is possible from the east and south, although existing shoals currently limit the approach from the south. Large boats do not use the area because of shoals. In general, "[t]here's not a whole lot of boating activity in the project area." The parties agree that if the project is constructed as designed, boats will not be able to travel directly out from the seawall in front on Trump or Flagler to the ICW, as they now do. However, navigation in the area will still be available, although not as convenient as before. As to water flow, shoaling, and erosion, the more persuasive evidence supports a finding that the 4:1 slope will be stable and will not cause fill to migrate outside of the boundaries of the project into existing seagrass beds. The tidal flow will continue through the area after construction without sediment deposition into existing seagrass beds or destabilizing the 4:1 slope. There will be no shoaling or erosion. Finally, the project will be permanent and there are no significant historical and archaeological resources in the area. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6. In summary, the evidence supports a finding that the County's proposal is neutral as to whether the activity will adversely affect the public health, safety, welfare, or the property of others; that the County's proposal is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the County's proposal is positive with respect to the conservation of fish and wildlife, recreational values and marine productivity, permanency, and current values and functions. When these factors are weighed and balanced, the project is not contrary to the public interest and qualifies for an ERP. D. Proprietary Authorization Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. In making its review, the Department reviews the rule in its entirety; it also looks at the forms of authorization (e.g., letters of consent, leases, deeds, or easement) to determine the most appropriate form of authorization for an activity. Trump and Flagler have raised contentions regarding the proprietary authorization, including whether the application should have been treated as one of heightened public concern, whether the proper form of authorization has been used, and whether their riparian rights are unreasonably infringed upon by the project. Heightened Public Concern Rule 18-21.0051 provides for the delegation of review and decision-making authority to the Department for the use of sovereign submerged lands, with the following exception found in subsection (4) of the rule: (4) The delegations set forth in subsection (2) are not applicable to a specific application for a request to use sovereign submerged lands under Chapter 253 or 258, F.S., where one or more members of the Board, the Department, or the appropriate water management district determines that such application is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location. On March 13, 2008, the Department's West Palm Beach District Office sent a "heightened public concern [HPC]) memo" to the Department's review panel in Tallahassee,3 seeking guidance as to whether the project required review by the Board of Trustees under the above-cited rule. The Department emailed the County on March 14, 2008, stating that the project would be elevated to the Board of Trustees for review to approve the entire Lagoon Management Plan. The County asked for reconsideration, concerned over timing restraints on grant opportunities. This concern is based on the fact that the County will receive grant monies to assist in the construction of the project and must have regulatory approval by a date certain in order to secure those funds. A second HPC memorandum was sent to the review panel on April 22, 2008. Part of the interim decision to elevate the application to the Board of Trustees concerned the boardwalk connection to the City of West Palm Beach's existing seawall. The City of West Palm Beach is the upland owner of the seawall, sidewalk, and Flagler Drive. On June 9, 2008, the Mayor of West Palm Beach sent a letter to the Department stating that the City "fully supports" the proposed activity, and that the County and the City collaborated on the design of the project, held joint public meetings, and produced a project video. See Department Exhibit Trump and Flagler argue that under the City Charter, the Mayor cannot unilaterally bind the local government to allow structures to be built on City property. Assuming this is true, one of the remaining conditions for the County to initiate the project is to obtain a "letter of concurrence" from the City of West Palm Beach authorizing the County to connect the boardwalk to the seawall. Therefore, the review panel ultimately concluded that the application could be reviewed at the staff level and did not require Board of Trustees review. The evidence at hearing did not establish that the application was one of heightened public concern, given the limited size of the project, its location, and the net benefit to both environmental and natural resources. Compare Brown, et al. v. South Fla. Water Mgmt. Dist., et al., DOAH Case No. 04-0476, 2004 Fla. ENV LEXIS 112 (DOAH Aug. 2, 2004, SFWMD Sept. 8, 2004). Therefore, review by the Board of Trustees was not required. Form of Authorization Trump and Flagler contend that an easement is required by the County, rather than a consent of use. The standard for obtaining an easement is more stringent than a consent of use, and an easement offers a greater interest in sovereign lands. Rule 18-21.005(1) provides the general policy direction for determining the appropriate form of authorization and reads in relevant part as follows: It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged lands necessary for the activity. For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate. This rule requires that the Department should apply the lowest and least restrictive form of authorization. Trump and Flagler argue that the County's project constitutes a spoil disposal site under Rule 18-21.005(1)(f)8., a public water management project other than public channels under Rule 18-21.005(1)(f)10., or a management activity which includes "permanent preemption by structures or exclusion of the general public," as described in Rule 18-21.005(1)(f)11. Each of these activities requires an easement rather than a letter of consent in order to use sovereign submerged lands. The evidence shows that the County's project is not a spoil disposal site. Also, it is not primarily a public water management project as there is no evidence that the project relates in any way to flood control, water storage or supply, or conservation of water. Likewise, there is no evidence indicating that the activities will prevent access by the public by exclusion. Even though many of the features (structures) of the project will be permanent, the project is intended to generally increase public access to water resources, as well as the islands, boardwalk, and kiosks. Besides raising the issue of heightened public concern, the second HPC Memorandum dated April 22, 2008, sought guidance as to whether the project required a consent of use or an easement. The review panel concluded that the project qualified for a consent of use, rather than an easement under Rule 18- 21.005(1)(f), because the County's project most closely fits the definition in Rule 18-21.005(1)(c)15. That rule provides that if the proposed activity involves "[h]abitat restoration, enhancement, or permitted mitigation activities without permanent preemption by structures or exclusion of the general public," an applicant may use sovereign submerged lands with a consent of use. Because the County's project increases public access not only to water resources in the Lagoon but also to the permanent structures being built, it more closely falls within the type of activity described in Rule 18-21.005(1)(c)15. Notably, all of the County's restoration projects in the Lagoon have been previously authorized through a consent of use. Finally, the review panel concluded that the project did not fall under Rule 18-21.005(1)(f)16., which requires an easement for environmental management activities that include "permanent preemption by structures or exclusion of the general public" because of the rule's focus on the exclusion of the general public. Riparian Rights The parties have stipulated, for the purpose of this proceeding, that Trump and Flagler have riparian rights, including view, ingress/egress, fishing, boating, swimming, and the qualified right to apply for a dock, that should be considered. Trump and Flagler contend that their right to wharf out (build a dock) from the seawall, ingress/egress from navigable water, and view will be unreasonably infringed upon if the application is approved. See Fla. Admin. Code R. 18- 21.004(3)(a)("[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands"). For the reasons given below, the greater weight of evidence establishes that none of these riparian rights will be unreasonably infringed upon. Currently, while access is possible from the east and the southern approaches, existing shoals limit the southern approach. The boardwalk will further limit boat traffic on the south end, and boats would not be able to cross over the islands. Boat traffic will still be able to access the cove from the north end, and the restoration project will create a boating destination. Trump witness Pike opined that the County's project would negatively affect navigation between the upland parcels and the ICW because the project would eliminate the eastern and southern approaches and leave only the northern approach, which could not be used by both parcels fully. The County's expert, Dr. Nicholas De Gennarro, testified that, during his site visits, he observed boat traffic waiting for the drawbridges using the east side of the ICW away from the project site. Dr. De Gennarro noted that several existing structures are closer to the ICW than the proposed County project, which lies 220 feet away from the ICW. Thus, Dr. De Gennarro concluded that the project would not impact navigation in the ICW. With respect to ingress/egress, Dr. De Gennarro acknowledged that access to the Trump and Flagler properties would not be available from the southern and eastern approaches, but concluded that the restriction represented nothing more than an inconvenience. He noted that the southern approach was already a less preferable approach due to existing shoals. At present, there is very little boating in the area outside of special events. While the project would limit the use of boats directly over the one and one-half acres of mangrove islands, the project will provide a boating destination. Further, both the City docks to the north of the site and the temporary docks in front of Flagler's property –- both used for special events –- will still be available under the County's proposal. There is no swimming and very little fishing in the area because of the degraded conditions caused by the dredge hole. Accordingly, while the project will fill a small portion of water currently available, but not used, for swimming, it will greatly enhance swimming by providing a destination for swimmers. The mangroves planned for the intertidal islands are likely to reach a height of fifteen feet and will be interspersed with spartina. The seawall is located six feet above the water line, making a person's view at eye level already several feet above the water. Trump and Flagler's buildings are built at even higher elevations. Therefore, the mangroves will not substantially obscure the view from either property, even at street level where the view is already partially obscured by existing landscaping. The Lagoon is approximately 2,000 feet across. From north to south around one hundred acres of water can now be viewed from the vicinity. Since the intertidal islands only comprise one and one-half acres, the overall impact to the view of the water body is very small. The mangroves in the planters extending out from the seawall will be trimmed to one foot above the seawall; the County requested the condition and committed at hearing to trimming the mangroves if the City of West Palm Beach does not. County photographs show Trump and Flagler's present view of the water body and demonstrate the comparatively small percentage of the view affected by the one and one-half acres of mangrove islands. See County Exhibits 133a-e and 134a-d. The photographs also demonstrated that sizeable palm trees are already part of the existing view. Additionally, the County photographs depicted the small impact that trimmed mangrove planters would have on the view. The area obstructed by the mangrove islands and seagrass is negligible compared to the expanse of the existing view. Trump and Flagler offered no evidence to contradict the County's analysis regarding the scope of the impact on the view. Trump residents Dale McNulty, Dean Goodman, and Charles Lemoine testified that they personally would not want to view mangrove islands regardless of tree size or the size of the islands. Understandably, after years of unfettered view and an open expanse of water, they are opposed to any type of project in this area of the Lagoon. However, Mr. Goodman acknowledged that he would still be able to see the Town of Palm Beach from his unit. The evidence supports a finding that while the project will undoubtedly alter the view of the water from both Trump and Flagler's property, the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights. Mr. Lemoine stated that he had a forty-foot trawler that he would like to dock in front of his property. He currently docks the boat at a marina twenty miles north of the Trump property. He prefers to bring his boat in stern first and enter slips oriented north to south. He indicated that he can drive his boat in five feet of water, but prefers six feet; however, he also testified that he has brought his boat directly up to the bulkhead in front of Trump, which is approximately a two- or three-foot depth. The witness has seen sailboats and other boats moored near the bulkhead over extended timeframes. Mr. Lemoine speculated that Trump might seek a dock, either alone or in conjunction with Flagler, but admitted that Trump has never applied for a dock permit. He stated that Trump has had discussions about the possibility of a dock over the last fifteen years and speculated that a dock plan might include anything from the purchase/lease of the City docks to a lease of Trump's riparian interests to a third party. By contrast, Trump resident and former Board member Dean Goodman indicated "the idea was to provide an amenity [for] a number of people that are in the building that are boaters." Mr. Goodman stated that he hoped to be able to have a boat in front of the building someday, but did not own a boat in Florida. Association president Dale McNulty explained that, while informal discussions have occurred regarding the possibility of a dock, no official action had been taken. Mr. McNulty characterized the dock plans as being "sort of in the land of wishful thinking." Mr. Pike, while acknowledging that both parcels would still be able to design a dock for their property, opined that the County's project unreasonably limited the size and configuration of the docks possible. Mr. Pike initially admitted that a safe navigation depth for a forty-foot boat, or even a sailboat, was four feet below mean low water (MLW), but stated that he would prefer to design a dock with an additional two-to- three feet of water below the four-foot draft to avoid propeller damage. However, Mr. Pike conceded that he has designed docks for boats in four feet below MLW and ultimately based his own calculations on an assumption of a four-foot draft and one-foot cushion, or five feet below MLW. Mr. Pike also opined that a north-south alignment for boat slips was a preferred slip orientation. Given the bathymetry in the area and the documented seagrasses, Mr. Pike estimated that twenty slips could be designed for the Flagler property, rather than the thirty-four slips provided for by the County Manatee Protection Plan. He thought that a design might accommodate thirty to thirty-two slips for Trump, rather than the forty-slips provided for by the County Manatee Protection Plan. Based on the limitation on number of slips and configurations, the witness opined that the County's project would unreasonably interfere with Trump and Flagler's ability to design a dock. He admitted, though, that the numbers derived from the County Manatee Protection Plan represent a maximum number, rather than a specified or guaranteed number. He further admitted that other agency limitations may further restrict Trump and Flagler's right to dockage. Without a permit application or plan from Trump or Flagler, County witness Robbins concluded that the most reasonable assumption was an owner-oriented facility designed for the building owners/tenants. The County introduced a graphic illustrating areas available for dock construction, with sufficient depth for 35- to 40-foot boats (-6 feet NGVD) and with no seagrasses present. Rule 18-21.004(4)(b)2. limits ownership-oriented facilities generally to forty square feet for each foot of riparian shoreline, giving Trump the ability to apply for a dock that preempted a maximum of 16,000 square feet, and Flagler a maximum of 14,000 square feet. Under the County Manatee Protection Plan, Trump would be limited to forty slips; Flagler would have the potential for thirty-four slips. Mr. Robbins testified that, in his experience, a minus five MLW is a common depth for docks, but that elevations as shallow as a minus four MLW could be used depending on the type of boats and the dock configuration. Mr. Robbins explained that, even with the County's project in place and factoring in the other limitations, Trump would still have 61,842 square feet of potential space within which to design a dock. Flagler would still have 41,481 square feet of potential space, even considering the need to retain a path for ingress and egress from the Trump parcel. A more detailed analysis of the seagrasses might make more square footage available for dock construction. Dr. De Gennarro also evaluated whether a dock could be designed to serve Trump and Flagler's parcels. The vessel owner statistics for the County indicate that at least ninety-five percent of the boats registered in the County are thirty-nine feet or less; consequently, Dr. De Gennarro focused on boats forty feet or less. Dr. De Gennarro considered the water depths and the existence of subaquatic vegetations and concluded that the graphic presented by Mr. Robbins was conservative, but still provided adequate space for both Trump and Flagler to construct appropriate dockage, allowing thirty-eight boats for Trump and thirty-two for Flagler of varying size. However, Dr. De Gennarro concluded that a dock design of forty slips for each would also be possible, depending on the size of the boats. Dr. De Gennarro proposed that a single, double-loaded parallel dock design would be a good layout for a potential docking facility in front of both Trump and Flagler's property that would be protected by the County's proposed islands, provide sufficient water depths, and provide an attractive facility. He specified, however, that the single, double-loaded parallel dock design was simply one of "many" that might work in the given space. Dr. De Gennarro explained that the existing dredge hole would not be a preferable location for either a mooring field or a dock because the deep muck-bottom would drive up the costs for either type of facility. Accordingly, Dr. De Gennarro concluded that the County's project would not foreclose or even substantially restrict the ability to locate a dock in front of Trump and Flagler’s property. The more persuasive evidence supports a finding that neither the right of ingress/egress nor the right to boat in the vicinity is unreasonably infringed upon by the County's project. Trump and Flagler will continue to have reasonable access to navigation. The northerly approach preserved by the County's project will allow for boat traffic to safely navigate in the area. While the southerly and easterly approaches are eliminated by the County's plan, the evidence indicates that the two approaches were less preferable than the northerly approach because of the presence of shoals. Based on the above considerations, the County's project will not unreasonably infringe upon Trump or Flagler's qualified right to a dock. The fact that the project might preclude the design and permitting of a dock that would host very large vessels does not mean that Trump and Flagler's rights regarding docking have been unreasonably infringed. The evidence shows that substantial docking facilities of multiple configurations are still possible even if the County's project is approved. In summary, the County's application for proprietary authorization should be approved. Other Contentions All other contentions raised by Trump and Flagler have been considered and are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the County's application for a consolidated ERP and consent to use sovereignty submerged lands. DONE AND ENTERED this 24th day of September, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2009.
The Issue The issue to be determined in this case is whether Respondent Oculina Bank is entitled to a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization to construct three single-family homes, an access drive, surface water management system, and three single-family docks in Indian River County.
Findings Of Fact Parties Petitioner Pelican Island Audubon Society has more than 25 members residing in Indian River County, was in existence for more than a year before Oculina Bank filed its application for the Permit, and was formed for the purpose of protecting the environment, fish, and wildlife resources. Petitioners Carolyn Stutt and Garrett Bewkes live approximately one mile north of the proposed project site, on John's Island, which is on the opposite side of the Indian River Lagoon from the proposed project site. Petitioner Carolyn Stutt uses the Lagoon for boating, nature observation, nature photography, and sketching. Petitioner Garrett Bewkes uses the Lagoon for boating and fishing. Petitioners Orin Smith and Stephanie Smith did not testify at the final hearing nor present other evidence to show they have substantial interests that could be affected by the proposed project. Respondents did not stipulate to any facts that would establish the Smiths’ substantial interests. Respondent Oculina Bank has an undivided ownership interest in the project site and is the applicant for the Permit that is the subject of this proceeding. DEP is the state agency responsible for regulating construction activities in waters of the State. DEP also has authority to process applications for authorization from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") to use sovereignty submerged lands for structures and activities that will preempt their use by the general public. The Project Site The project site is 15.47 acres and located along 45th Street/Gifford Dock Road in Vero Beach. It is on the western shoreline of the Indian River Lagoon. The Lagoon in this area is part of the Indian River- Malabar to Vero Beach Aquatic Preserve. It is an Outstanding Florida Water. The Lagoon is an estuary, but it is almost non-tidal in this area. There is a seasonal rise in sea level that occurs from August to November and it is during this season that waters of the Lagoon flood into adjacent wetlands. The wetlands may be inundated at other times as a result of large storms. The wetlands along the western shore of the Lagoon play a role in regional tarpon and snook fisheries. Wetlands provide essential refuges for early-stage tarpon and snook. When the wetlands are inundated, larval tarpon and snook can move into the wetlands and seek out shallow areas to avoid predation by larger fish. The project site is dominated by salt marsh wetlands. In order to control salt marsh mosquitoes, the site was impounded by the Indian River Mosquito Control District sometime in the 1950s by excavating ditches and building earthen berms or dikes along the boundaries of the site. The mean high water line of the Lagoon in this area is 0.78 feet. The berms were constructed to an elevation of about five feet, but there are now lower elevations in some places. The wetlands on the site are isolated for much of the year because the waters of the Lagoon cannot enter the wetlands unless the waters rise above the lowest berm elevations. This connection only occurs in unusually high water conditions. The impoundment berms have decreased the frequency and duration of the project site’s inundation by waters from the Lagoon. There are almost 14 acres of wetlands impounded by the berms. The impounded wetlands are dominated by salt grass. There are also mangroves, mostly white mangroves, along the side slopes of the berms. Most of the upland areas are dominated by Brazilian pepper trees and Australian pine trees, which are non- native, invasive vegetation. Within the wetlands are three ponds. Before the project site was impounded for mosquito control, it had "high marsh" vegetation such as saltwort and glasswort, as well as black and red mangroves. The impoundment resulted in the reduction of these species. There is now reduced nutrient export from the impounded wetlands to the Lagoon. The project site still provides nesting, denning, and foraging habitat for birds and other wildlife. However, the environmental health and productivity of the wetlands on the site have been reduced by the impoundment berms. The adverse effects of impounding wetlands for mosquito control are widely understood by environmental scientists. Therefore, reconnecting impounded wetlands along the Indian River Lagoon has been a local and state governmental objective. North and south of the project site are salt marsh wetlands that have been restored. To the north is a portion of the mitigation area for a development called Grand Harbor. To the south is the CGW Mitigation Bank. Both adjacent wetland areas were restored by reconnecting them to the Lagoon and removing exotic vegetation. The restored wetlands to the north and south now contain a dominance of saltwort and glasswort. They also have more black and red mangroves. These environmental improvements, as well as an increase in species diversity, are typical for former mosquito control impoundments that have been restored. In the offshore area where the three proposed docks would be constructed, there are scattered seagrasses which are found as close as 25 feet offshore and far as 100 feet offshore. They include Manatee grass, Cuban shoal grass, and Johnson’s seagrass. The Proposed Project The proposed home sites are on separate, recorded lots ranging in size from 4.5 acres to 6.5 acres. The home sites would have 6,000 square feet of "footprint." The houses would be constructed on stilts. There would be a single access driveway to the home sites, ending in a cul-de-sac. The displacement of wetlands that would have been required for the side slopes of the access drive and cul-de-sac was reduced by proposing a vertical retaining wall on the western or interior side of the drive. Each home site has a dry retention pond to store and treat stormwater runoff. The ability of these retention ponds to protect water quality is not disputed by Petitioners. The home sites and access drive would be constructed on the frontal berm that runs parallel to the shoreline. However, these project elements would require a broader and higher base than the existing berm. The total developed area would be about three acres, 1.85 acres of which is now mangrove swamp and salt marsh and 0.87 acres is ditches. One of the onsite ponds would be eliminated by the construction. The houses would be connected to public water and sewer lines. Oculina Bank would grant a perpetual conservation easement over 11.69 acres of onsite salt marsh wetlands. It would remove Brazilian Pepper trees, a non-native plant, from the site. Petitioners' original objection to the proposed project and their decision to file a petition for hearing appears to have been caused by Oculina Bank's proposal to build docks over 500 feet in length. The dock lengths in the final revision to the project vary in length from 212 to 286 feet. The docks do not extend out more than 20 percent of the width of the waterbody. The docks do not extend into the publicly maintained navigation channel of the Lagoon. Because the docks meet the length limit specified in Florida Administrative Code Chapter 18-21, they are presumed not to create a navigation hazard. To reduce shading of sea grasses, the decking material for the docks would be grated to allow sunlight to pass through the decking. There are no seagrasses at the waterward end of the docks where the terminal platforms would be located and where boats would usually be moored. The dock pilings will be wrapped with an impervious membrane to prevent the treatment chemicals from leaching into the water. In Oculina I, the Administrative Law Judge determined that the condition for vessels moored at the proposed docks should be stated as a maximum permissible draft. The Permit imposes a maximum draft for boats using the docks. Fish Survey Oculina Bank conducted a fish sampling survey in 2014 to obtain additional information about the presence of tarpon, snook, rivulus, and other fish on the project site. Twenty-three sampling stations were established and sampled from January 16, 2014 to February 16, 2014. The survey was conducted during a period of seasonal high water in order to catalog the highest number of fish that might migrate in and out of the site during high water. Oculina Bank collected five species of fish that are typically found in impounded areas. No tarpon or snook were found. Oculina Bank did not find Florida Gar or Least Killifish during the fish survey, but Dr. Taylor observed these two species on his site inspection in 2015. He also saw three to five juvenile tarpon. No testimony about snook was presented at the final hearing nor was this fish mentioned in Petitioners’ Proposed Recommended Order. Mangrove Rivulus Rivulus marmoratus, or mangrove rivulus, is designated a species of special concern by the FWC. See Fla. Admin. Code R. 68A-27.005(2)(b). Species of special concern are those species for which there are concerns regarding status and threats, but for which insufficient information is available to list the species as endangered or threatened. Some research indicates rivulus are more common than originally believed. Certain populations of rivulus in Florida are healthy and thriving. A team of scientists who participated in a biological status review of the rivulus for the FWC recommended that the rivulus be delisted. The team included Dr. Taylor and Dr. Wilcox. In Oculina I, Dr. Gilmore did not find any rivulus on the project site, but he expressed the opinion that the site had rivulus habitat and they were probably on the site. In his more recent visits to the project site in conjunction with the current proceeding, Dr. Gilmore did not observe any rivulus. Oculina Bank did not find any rivulus during its fish survey. Dr. Taylor sampled for rivulus on the site on five different days in 2015 and found five rivulus in a ditch outside (waterward) of the impoundment berm. Dr. Taylor sampled “extensively” for rivulus in the interior of the project site, but found none there. Still, he believes there are probably some in the interior. The area where the rivulus were found outside the impoundment berm would not be changed by the proposed project. However, Oculina Bank’s proposal to scrape down the impoundment berm would eliminate many crab burrows, which are habitat for the rivulus. Dr. Taylor and Dr. Wilcox agreed that rivulus are more likely to be found in areas that are tidally connected. The preponderance of the evidence does not support Petitioners’ claim that the proposed project would, on balance, adversely affect the mangrove rivulus. However, the recommended permit modifications should benefit the species. Tarpon In Oculina I, Dr. Gilmore testified that the project site was “one of the critical habitats maintaining regional tarpon fisheries.” However, he only observed one “post larval” tarpon in 2012 and none in 2014. Dr. Gilmore stated that a small mesh seine is the best method to sample for these nursery phase tarpon, but he never used such a seine to sample for them on the project site, nor did anyone else. Extensive evidence regarding on-site investigations and literature related to tarpon was presented at the final hearing. Sometimes the testimony failed to distinguish between early stage (larval) tarpon and later stage (juvenile) tarpon, whose habitat needs are not the same. The nursery and refuge functions of the wetlands on the project site relate primarily to larval tarpon, not juvenile tarpon. The shallow ponds on the project site are an important habitat type that can be used by larval tarpon when related hydrologic conditions are compatible. The preponderance of the evidence does not support the characterization of the wetlands on the project site as “critical habitat” for tarpon in the region. The current hydrologic conditions diminish the value of the nursery and refuge functions provided by the wetlands. Improving the connection between the wetlands and the Lagoon can enhance the tarpon nursery function if the improved connection is made without giving predators of larval tarpon access to the interior ponds. Dr. Gilmore stated, “you don’t have to take down the entire dike, you can create low spots.” By low spots, he means areas like the one that currently exists in the southern impoundment berm that is at about elevation 2.0 feet. The preponderance of the evidence shows the proposed project would not adversely affect the nursery function of the wetlands for tarpon if the recommended modifications are made to the Permit to improve the connection to the Lagoon while keeping the interior ponds isolated from the Lagoon for most of the year. Mitigation DEP conducted a Uniform Mitigation Assessment Methodology (“UMAM”) analysis for the proposed project that assumed direct impacts to 2.72 acres of mangrove swamp. It did not account for secondary impacts that could be caused by the proposed project. DEP’s UMAM analysis determined there would be a functional loss of 1.269 units. It further determined that these losses would be offset by the creation of 0.88 acres of salt marsh and the enhancement of 10.81 acres of mangrove swamp, resulting in a net functional gain of 2.342 units. DEP concluded that, if functional losses caused by secondary impacts were included, there would be a functional loss of 2.350 units, which still results in a net gain of 3.056 units. Because DEP determined there would be a net gain in functional value, it did not require Oculina Bank to provide additional on-site mitigation or to purchase mitigation credits from an off-site mitigation bank. The UMAM analysis performed by DEP did not adequately account for the lost tarpon nursery function and the proposed mitigation could further diminish the nursery function. The purchase of mitigation bank credits would not offset the lost nursery function because the mitigation bank was not shown to provide a nursery function.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Department of Environmental Protection issue Permit No. 31-0294393-003-EI, with the following modifications: The impoundment berm will not be scraped down to mean sea level, but, instead, two new low spots will be created in the impoundment berm at an elevation of approximately 2.0 feet. A new isolated pond will be created to replace the one that will be eliminated by the construction, similar in size to the one that will be eliminated. Internal ditches and other channels will be filled as needed to eliminate predator access to the ponds. If these modifications are not made, it is recommended that the Permit be denied. DONE AND ENTERED this 1st day of June, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2016. COPIES FURNISHED: Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608-4922 (eServed) Glenn Wallace Rininger, Esquire Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Nicholas M. Gieseler, Esquire Steven Gieseler, Esquire Gieseler and Gieseler, P.A. 789 South Federal Highway, Suite 301 Stuart, Florida 34994 (eServed) Jonathan P. Steverson, Secretary Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Craig Varn, General Counsel Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
The Issue Whether FDOT has provided reasonable assurances that the activities it proposes to conduct pursuant to proposed District SWM Permit Application No. 940606-10, WRM Permit Application No. 940606-2-D and modification to ROW Permit No. 2584 will comply with the relevant permit criteria set forth in Chapters 373 and 403, F.S., and applicable rules and criteria promulgated thereunder.
Findings Of Fact THE PARTIES Petitioner, 1000 Friends of Florida (1000 Friends), is a not-for-profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. The principal office of 1000 Friends is 926 East Park Avenue, Tallahassee, Florida 32314 and it also maintains an office at 3305 College Avenue, Ft. Lauderdale, Florida 33314. Petitioner, Florida Bay Initiative, Inc. (FBII), is an entity incorporated under the laws of Florida with its principal office located at 250 Australian Avenue South, Suite 500, West Palm Beach, Florida 33401. Petitioner, the Florida Keys Fishing Guides Association, is an association of sport fishing guides who live in the Florida Keys and is headquartered at 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Michael Collins, is a private individual. His address is 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Charles W. Causey, is a private individual. His address is Post Office Box 448, Islamorada, Florida 33036. Petitioner, the Florida Keys Concerned Citizens Coalition (FKCC), is a not-for-profit Florida corporation whose address is West Shore Drive, Big Pine Key, Florida 33043. Petitioner, AG Intus, Inc., filed a Notice of Voluntary Dismissal on August 9, 1996. DOAH Case 95-5524, the proceeding filed by Intus, was previously consolidated with the other cases to this proceeding. On August 12, 1996, the Intus case was severed from this proceeding and the Intus hearing cancelled. Respondent, the South Florida Water Management District (the District or SFWMD), is a public corporation in the State of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, F.S., and Title 40E, F.A.C., as a multi-purpose water management district, with its principle office in West Palm Beach, Florida. Respondent, the Florida Department of Transportation (FDOT), is an agency of the State of Florida. Its District Six address is 1000 N.W. 111th Avenue, Miami, Florida 33172. Intervenor, Monroe County, is a political subdivision of the State of Florida. For the purposes of this proceeding the address for Monroe County is c/o Apgar and Pelham, 909 East Park Avenue, Tallahassee, Florida 32301. The District, FDOT and Monroe County did not object to the standing of the Petitioners at the formal hearing and represented that they will not object to the standing in the event of an appeal. Based on the representations of the Respondents, the Petitioners were not required to put on a case as to their standing. THE THREE PERMIT APPLICATIONS FDOT has applied to the District for a Wetland Resource Management (WRM) permit, a Surface Water Management (SWM) permit, and a Right of Way (ROW) occupancy permit. On June 6, 1994, the Applicant submitted applications for surface water management and wetland resource management permits for the purpose of widening and modifying this 20.4 mile stretch of U.S. 1. The surface water management permit application is identified as Application No. 940606-10. The wetland resource management permit application is identified as Application No. 940606-2-D. On October 24, 1995, the District issued Staff Reports on Permit Application No. 960606-10 and Permit Application No. 94060-2-D. These Staff Reports recommended issuance of the permits subject to general and special conditions as specified therein. An addendum to the staff report was issued November 3, 1995. On September 27, 1994, the Applicant submitted a request to modify its existing ROW Occupancy Permit to enable it to replace the bridge where U.S. 1 crosses the C-111 Canal. The land encompassed by the ROW occupancy permit challenged in this proceeding is located in Section 16 and 17, Township 59 South, Range 39 East, Dade County, Florida. A draft right-of-way occupancy permit with standard limiting and special conditions was produced as part of a package that went to the Governing Board and others. The proposed authorization for use of the ROW is for the following: REMOVAL OF EXISTING U.S. HIGHWAY 1 BRIDGE AND REPLACEMENT WITH A NEW FIXED BRIDGE. PROJECT INCLUDES CONSTRUCTION OF A NEW SERVICE/ACCESS ROAD, 2 DETENTION PONDS, 2 CATCH BASINS, 2-15" R.C.P. OUTFALLS, BOAT RAMP WITH LOADING DOCK, PARKING AREA, PEDESTRIAN GATE AT S-197, FENCING AND WILDLIFE CROSSING ALL WITHIN THE NORTH AND SOUTH RIGHT OF WAY OF C-111 (STATION 938+00 - 955+00). The draft right-of-way occupancy permit modification, identified as “SFWMD PERMIT NO. MOD 2548," should correctly be identified at “SFWMD PERMIT NO. MOD 2584.” The numbers “8” and “4” were inadvertently transposed. STIPULATIONS AS TO APPLICABLE LAW The parties have accurately set forth the applicable permitting criteria and the appropriate Basis of Review in their prehearing stipulation. CRITERIA FOR ROW PERMIT Rule 40E-6.301, Florida Administrative Code, provides, in pertinent part, as follows: In determining whether an occupancy permit should be issued, the District shall consider whether the proposed activity: interferes with the present or future construction, alteration, operation or maintenance of the works of the District; is consistent with the policy and objectives of Chapter 373 F.S., the legislative declaration of policy contained in Section 373.016, F.S. and the state water policy, Chapter 17-40, F.A.C.; has an actual or potential negative impact upon environmentally sensitive areas, which include: wetlands; endangered or threatened species habitat; aquatic preserves; outstanding Florida waters; federal, state and privately owned parks and wildlife management areas; designated areas of critical state concern; lands purchased by federal, state and local governments for the purpose of environmental protection, water resource protection and esthetics; and lands which contain native terrestrial plant species in significant amounts. Environmentally sensitive areas include areas on and off- site that are affected by activities which occur on, or are initiated from, the District’s works; degrades water quality within the receiving water body or fails to meet the provisions of Ch. 373, F.S., the state water policy, and Ch. 40E, F.A.C.; involves a discharge of wastewater from a new wastewater source or an increased discharge from an existing wastewater source; will discharge debris or aquatic weeds into District lands or works or cause erosion or shoaling within the works of the District; is supported by financial assurances, which will ensure that the proposed activity will be conducted in accordance with Chapter 373, F.S., and Chapter 40E-6, F.A.C.; presents an increased liability risk to the District; meets the general and specific criteria in the Basis of Review which is incorporated by reference in Rule 40E- 6.091, F.A.C.; interferes with actual or potential public use of the District’s works or public, recreational or other facilities not within the District’s works; is consistent with local zoning and other private land uses in the area; interferes with the quality or quantity of a public or private water supply; meets applicable criteria in Chapters 40E-61 and 40E-62, F.A.C.; ROW occupancy permits typically have standard limiting conditions which are incorporated as part of the permit. The permit may also have special limiting conditions. CRITERIA FOR PERMITTING THE SWM SYSTEM Rule 40E-4.301(1), Florida Administrative Code, contains the following criteria that, at the times pertinent to this proceeding, were used by SFWMD in determining whether to permit a surface water management system: In order to obtain or modify a permit under this chapter, an applicant must give reasonable assurances that the surface water system: provides adequate flood protection and drainage, without causing over- drainage, will not cause adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, F.S., will not cause discharges which result in any violations, in surface waters of the state, of the standards and criteria of chapter 17-302, F.A.C., will not cause adverse on-site or off-site impacts on surface and groundwater levels and flows, including impacts to sources of water supply and wetland hydrology, will not cause adverse environmental impacts, can be effectively operated and maintained, will not adversely affect public health and safety, is consistent with the State Water Policy, chapter 17-40, F.A.C., for a DRI with a signed Preliminary Development Agreement with the Florida Department of Community Affairs, pursuant to section 380.06(8), F.S., provides a surface water management system for that portion of the site approval for development which is able to operate separately from the surface water management system for the balance of the project site and still meet applicable District criteria. meets any applicable basin criteria in chapter 40E-41, F.A.C., will not otherwise be harmful to the water resources of the District, will not interfere with the legal rights of others as defined in subsection 17-40.401(8), F.A.C., is not against public policy, will meet general and specific criteria in the document described in subsection 40E-4.091(1)(a), F.A.C., (0) will meet criteria for isolated wetlands, which are found in Appendix 7 of the document described in rule 40E- 4.091(1)(a), F.A.C., (p) will meet the criteria for above ground impoundments, which are found in Appendix 6 of the document described in rule 40E-4.091(1)(a), F.A.C. The SFWMD has adopted certain procedures and criteria contained in a document, referred to as “Basis of Review for Surface Water Management Permit Applications Within The South Florida Water Management District” (BOR). Subsection 40E-4.091(1)(a), F.A.C. incorporates this document by reference into Chapter 40E-4, F.A.C. The BOR is a document that is “described in subsection 40E-4.091(1)(a), F.A.C.,” within the meaning of Rule 40E-4.301(1), F.A.C. The BOR establishes a rebuttable presumption that water quality criteria are met through specified volumetric retention and detention requirements. These performance based criteria are designed to be flexible. CRITERIA FOR THE WRM PERMIT In 1992 DEP entered into an Operating Agreement with the District, which delegated to the District responsibility for issuing wetland resource management (WRM) permits, which are required for dredge and fill activities in wetlands. Both DEP and the District implement the same wetland resource permit and MSSW permit rules. The District agrees with DEP's interpretation and application of the WRM permitting rules and non-rule policy, and applies the same when issuing such permits. Section 403.918, Florida Statutes (1991), provides the pertinent criteria that must be applied by the District in determining whether to grant or deny the WRM permit. That criteria requires the applicant to provide reasonable assurance that water quality standards will not be violated. In addition, for projects in OFW, the applicant must provide reasonable assurance that the project is clearly in the public interest. THE PUBLIC INTEREST TEST The District is required to balance the following criteria, found at Section 403.918(2)(a), Florida Statutes (1991), in determining whether a project is clearly within the public interest: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. MITIGATION If the applicant is unable to otherwise meet the public interest test, the District shall, pursuant to Section 403.918(2)(b), Florida Statutes, “consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project . . .” The District thereafter re-evaluates the project to determine whether the project, as mitigated, meets the public interest test. The criteria for mitigation is found in Chapters 373 and 403, Florida Statutes, Title 40 E (including the Basis of Review) and Rule 62-312, Florida Administrative Code. Rule 62-312.330, Florida Administrative Code, states the general criteria for evaluating mitigation proposals as follows: The goal of the mitigation proposal shall be to offset the expected adverse impact of the project that have resulted in the project being deemed unpermittable such that the resulting project with mitigation is not contrary to the public interest or, in the case of Outstanding Florida Waters, is clearly in the public interest. Each project must be separately evaluated to determine whether the proposed mitigation is sufficient. Rule 62-312.340, Florida Administrative Code, provides guidelines that are to be used in evaluating proposed mitigation projects. GENERAL DESCRIPTION OF THE PROJECT AREA FDOT proposes to widen a 20.4 mile portion of U.S. 1 in southern Dade County and northern Monroe County. Approximately seven miles of the project area is in Monroe County and approximately thirteen miles is in Dade County. The northern terminus of the project is the intersection of U.S. 1 and Card Sound Road, which is located in Dade County south of Florida City. The southern terminus of the project is the intersection of U.S. 1 and Abaco Road on Key Largo in Monroe County. The corridor of the proposed project passes through Sections 6, 7, 16, 18, 21, 27, 28, Township 59 South, Range 39 East; Sections 24, 25, 36, Township 58 South, Range 38 East; Sections 16, 19, 30, 31, Township 58 South, Range 39 East, Sections 16, 30, 31, Township 60 South, Range 40 East; Sections 25, 26, Township 60 South, Ranges 39 East, Dade and Monroe Counties, Florida. U.S. 1 is the main highway between northern Monroe County and southern Dade County. The only other road between Monroe County and Dade County is Card Sound Road. The Florida Keys is designated as an Area of Critical State Concern, pursuant to Section 380.0552, Florida Statutes. The Dade County portion of the road, north of the C- 111 canal, lies within typical Everglades habitat, which is classified as environmentally protected lands of Dade County. Most of the project corridor in Dade County is part of or adjacent to the Everglades National Park. Valuable wetlands exist throughout the project corridor. The following bodies of water will receive discharges if the surface water management system is permitted: C-111 Canal, Jewfish Creek, Lake Surprise, Blackwater Sound, Barnes Sound, Little Blackwater Sound, Long Sound, Manatee Bay, Sarge Lake, andManatee Creek. The receiving bodies of water are Outstanding Florida Waters (OFWs) or are connected to OFWs. THE EXISTING ROADWAY As it presently exists in the project area, U.S. 1 is a two lane undivided highway with two passing zones that are each one mile in length. Each travel lane on the existing facility is twelve feet wide. The existing shoulder on either side of the road consists of four feet of pavement and six feet of grassed area. FDOT Exhibit 7 accurately depicts the existing roadway typical section. Exotic vegetation, generally limited to the areas immediately adjacent to the highway, exist throughout the project corridor. These exotic species are present because FDOT has failed to properly maintain its right of way. A clear zone is an unobstructed area that includes the shoulder of the roadway and typically extends beyond the shoulder. The purpose of the clear zone is to provide a driver who has lost control of his or her vehicle a sufficient clear recovery area to regain control of the vehicle so that it can be maneuvered back onto the road. The clear zone for the existing road is inadequate to provide a safe recovery area. There is at present a two lane bridge over Manatee Creek, a two-lane bridge crossing the C-111 Canal, a bascule bridge, which is a drawbridge, over Jewfish Creek, and a two lane causeway through Lake Surprise. The two existing passing zones are located in Dade County. The first is south of U.S. 1’s intersection with the C-111 canal between mile markers 113-115. The second passing lane is approximately four miles south of the northern terminus of the project between mile markers 120-122. Each existing passing zone is undivided and consists of two northbound lanes and two southbound lanes, with each travel lane being twelve feet in width. The shoulders in the passing zones are the same as for the typical section. A surface water management (SWM) system is defined by Rule 40E-4.021(5), Florida Administrative Code , as being "the collection of devices, improvements or natural systems whereby surface waters are controlled, impounded, or obstructed.". There is no surface water management system presently associated with the road. The roadbed is elevated approximately five feet above mean sea level according to the National Geodetic Vertical Datum and was constructed on the old railroad bed of the Florida East Coast Railroad. No hydrologic culverts have been placed within the roadbed. Consequently, surface water flow between the eastern and western sides of the road north of the C-111 Canal has been cut off. C-109 AND C-111 CANALS In the 1960's, the C-109 and C-111 canals were constructed as part of an overall water management system in the area. As a result of the roadbed and the canals, water has been impounded on the western side of U.S. 1 at a level higher than on the eastern side. Due to cutoff of waterflow by the roadbed embankment, historic freshwater flow between the eastern and western sides of the project area has been restricted, which has resulted in an adverse impact on the Everglades ecosystem north of the C-111 Canal. The restricted water flow has resulted in less fresh water being available for shorter periods of time. Consequently, aquatic life has had reduced opportunities to develop. The restricted flow also has impeded the ability of aquatic life to reach freshwater areas during times of drought. On the east side of the road marine conditions have displaced what naturally should be freshwater conditions. PROJECT HISTORY While FDOT has been aware of traffic safety and hurricane evacuations concerns on the roadway for a long time, the current project originated in 1986 when Monroe County identified this project as a need in its 1986 Comprehensive Plan. Pursuant to agency practice, the proposed project was incorporated into FDOT's five year work program and a study was performed pursuant to FDOT’s Project Development and Environment (PD&E) Manual. FDOT's PD&E manual describes the process by which FDOT determines whether to construct or improve a road. The PD&E process includes an Environmental Impact Statement (EIS) to analyze existing conditions, assess the need for improvement, and develop alternatives. A Draft EIS is performed and circulated for comment to governmental agencies and the public. Based upon comments and further review a Final EIS is prepared. Metric Engineering ("Metric") began the PD&E study of the project in 1988 pursuant to a contract with FDOT. Metric identified seven factors which it concluded supported the need for the project. First, the improved corridor would improve the linkage between the four lane road at the northern terminus and the four lane road at the southern terminus. Second, the project would improve navigation by replacing the existing bascule bridge at Jewfish Creek. Third, the project would improve the level of service for the road. Fourth, the project would improve the safety of the road. Fifth, the project would improve the clearance time for hurricane evacuation. Sixth, the project was consistent with the long range transportation plans adopted by Monroe County. Seventh, the project would accommodate increased traffic, which can be expected with or without the project. Based on the needs evaluation, Metric performed a corridor analysis to determine the best way to get from Florida City to Key Largo, including improving only Card Sound Road, improving only U.S. 1, or improving a combination of the two. Metric concluded that the best resolution was to improve the project corridor. Metric also analyzed various alternatives in an effort to reduce the size of the typical section of the roadway in the U.S. 1 corridor and thereby minimize environmental impacts of the project. Because of concerns from Everglades National Park that no aspects of the project construction occur within its boundaries, FDOT agreed to conduct all construction east of FDOT's existing right of way line. The conclusions of the Metric studies were memorialized in a Final EIS and Final Engineering Report published in 1992. Conclusions regarding alternatives and project needs were then incorporated into the permit application and have continued to be updated. The 1992 version of the project was for a four lane roadway with four lane bridges throughout the project corridor. Subsequent to its June 6, 1994, permit applications to the District for a four lane roadway, FDOT went through an extensive process of providing the District with additional information in an effort to provide the District with the necessary reasonable assurance that the proposed project would comply with the permit criteria. The final series of modifications contained the three lane alternative, which will be described in detail below and is now the subject of this proceeding. The three lane proposal is a compromise that FDOT agreed to in an effort to minimize the direct, secondary, and cumulative impacts of the project. Monroe County passed Resolution No. 315-1995 on September 7, 1995, asking FDOT to build a three-lane road on a four-lane embankment. This resolution provided, in part, that “. . . Monroe County finds that the '3-lane alternative' as described in the Statement of Agency Commitments is the most viable proposal of those considered, because it balances the needs for a widened highway with safeguards designed to address secondary impacts.” The secondary impacts referred to in the resolution included concerns that two southbound lanes would result in more growth. The rationale behind the resolution was that more growth would result from two southbound lanes than from one southbound lane with the proposed passing zones. In response to the request of Monroe County and in response to a similar request made by the District, FDOT notified the District by letter dated September 5, 1996 of FDOT's decision to redesign the project to change the roadway from four to three lanes. FDOT HAS MINIMIZED THE IMPACTS OF THE PROJECT During the PD&E process prior to permit application FDOT studied project needs and alternative alignments, and conducted corridor analyses. FDOT originally considered a proposal that included approximately 250 acres of wetlands impacts. At the District's suggestion, FDOT revised its proposal prior to the permit application to reduce the wetland impacts and project footprint. The application submitted contained approximately 165 acres of impact. FDOT changed the typical section of the proposed roadway again after substantial interagency coordination in an effort to reduce wetlands impacts even further. FDOT agreed to reduce the footprint by changing the design of the median from 22 feet and a Jersey barrier (which is a minimum barrier) to 20 feet with a tri-beam rail barrier. The more substantial barrier was added because the median was narrowed. Additionally, instead of ten-foot paved shoulders on each side of the median, FDOT would use two-foot paved shoulders with sixteen feet of grass in the middle. These minimization efforts resulted in a wetland impacts decrease from 164 acres to 149.07 acres, the current impact of the project. Avoidance, or choosing alternate routes to avoid impacts to wetlands, was not a possible option because only wetlands and open waters exist between the northern and southern terminus of the project. FDOT explored all reasonable alternatives to the proposed project, including a two lane alternative proposed by a consultant for FBII. As discussed below, FDOT did not adopt the two-lane alternative, because the alternative did not address all of FDOT's identified needs for the project. FBII prepared a report with a two-lane alternative to the proposed project. FBII's original proposal included one 12-foot northbound lane with a 10-foot paved shoulder covered with thermoplastic rumble strips to deter vehicular use of the shoulder. In the southbound direction, FBII proposed a 12-foot travel lane with a 4-foot paved shoulder, essentially the same as currently exists. That proposal was analyzed by Metric Engineering on behalf of FDOT. FDOT rejected the FBII alternative for several reasons. First, though the 10-foot northbound shoulder theoretically may be used by cars during hurricane evacuation, removal of the rumble strips would be impractical due to lack of time to do so under threat of a hurricane, and due to the costs involved. It would be unrealistic to require people to otherwise drive over the rumble strips, without removal, because they are designed to prevent such access. Using the 10-foot shoulder during an evacuation would result in there being no shoulder area to remove accident vehicles from the roadway which would otherwise threaten to restrict the flow of traffic or cease it altogether. The reduced width of the shoulder lane below the standard 12-foot lane would also decrease the flow of evacuees. FBII's proposal for a two-lane fixed-height bridge at Jewfish Creek would not completely eliminate rear-end collisions at the bridge. The two-lane alternative proposed by FBII is not a signed and sealed cross section. The proposal by FBII does not include the area necessary for a SWM system or for clear zones. FBII did not do an analysis to determine whether its proposal complies with pertinent FDOT roadway and traffic design standards or with pertinent highway safety and improvement standards. The FBII proposal does not account for removal of the Lake Surprise causeway or construction related impacts from barge traffic. FBII did not do a wetlands survey to determine the impact of its two-lane proposal. At the Final Hearing, Petitioners presented for the first time a new proposal to use "flexible diverters" to pave a third northbound lane and to block that lane from travel traffic with poles. However, no research was conducted into the feasibility of such a proposal, nor was it adequately thought out. Such a use of "flexible diverters" is unprecedented in FDOT's history, is impractical to implement, and would violate FDOT's design standards contained in its Manual on Uniform Traffic Control Devices. Petitioners also presented for the first time at the Final Hearing a proposal to add an 8 to 10 foot paved northbound shoulder which could be converted to a travel lane with traffic control cones in the event of an evacuation. This plan is also not feasible, because the resulting lanes would not be wide enough to safely accommodate evacuating traffic, and because the contradiction between existing road striping and the placement of cones would likely cause accidents, which would halt evacuation. The proposals submitted by FBII do not sufficiently improve hurricane evacuation or traffic safety and, consequently, are not acceptable alternatives to the project. FDOT can do nothing else to minimize the impacts of the project and still address the needs for the project. Minimization of wetlands impacts was accomplished to the greatest extent possible. FDOT has proposed mitigation to offset the impacts that could not be avoided. THE PROPOSED PROJECT - IN GENERAL STIPULATION AS TO DESIGN AND CONSTRUCTION Petitioners stipulated that the design and construction specifications of the roadway proposed to be permitted in this case comply with all applicable design and construction standards for structural integrity, and adequately describe the three-lane divided roadway proposed to be constructed on a four-lane roadbed/embankment. PROPOSED LANES, SHOULDERS, AND MEDIAN FDOT proposes to widen the roadway in the project area to a three lane divided roadway with two northbound lanes and one southbound lane, plus three passing zones. The proposed project will be constructed on a four lane roadbed embankment. FDOT does not presently have plans to add the fourth lane to this roadway. FDOT Exhibit 8 contains an accurate description of the proposed typical section of the roadway. The typical section will consist of two twelve-foot northbound lanes with a six-foot paved shoulder and a four foot stabilized area adjacent to the paved shoulder; a twenty-foot median consisting of a two-foot paved shoulder, sixteen feet of grass and a tri-beam guardrail in the middle as a separator; and one twelve-foot southbound lane with an eight-foot paved shoulder. The proposed typical section also includes a storm water management system that will be described in more detail below. The proposed typical section includes a clear zone thirty feet in width, which is adequate. THE THREE PASSING ZONES The existing passing zone located in Dade County between mile markers 113 and 115 is one mile in length. FDOT proposes to alter this passing zone to 1.44 miles in length. The existing passing zone located in Dade County between mile markers 120 and 122 is also one mile in length. FDOT proposes to alter this passing zone to 2 miles in length. In addition, FDOT proposes to construct a 1.5 mile long passing zone between mile markers 110 and 112 in Monroe County. If permitted, the proposed project will include 2 passing zones in Dade County and 1 passing zone in Monroe County, for a total of 3 passing zones. The total length of the passing zones will equal 4.94 miles. ELEVATION There are no plans to change the elevation of the existing roadway. HYDROLOGIC CULVERTS The project contemplates the construction of 25 hydrologic culverts north of the C-111 Canal. These culverts will remain capped until further hydrological studies are completed and input from all concerned regulatory agencies can be obtained. It has not yet been determined how these culverts will be utilized to maximize the improvement to the ecosystem north of the C-111 Canal. WILDLIFE CROSSINGS INCLUDING THE C-111 BRIDGE The project contemplates the construction of three wildlife crossings north of the C-111 Canal in Dade County with fencing designed to funnel wildlife through the crossing. These crossing, sometimes referred to in the record as “panther crossings” are located between mile markers 118-119, 122-123, and 126-127 and will be constructed as overland bridges. In addition, the replacement bridge over the C-111 Canal (located between mile markers 116-117 in Dade County) is intended to serve as a wildlife crossing and will also employ fencing to funnel wildlife through the crossing. All four of these structures will be constructed as four-lane bridges, but will be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular traffic in that lane. There will be an eight foot outside shoulder. FDOT proposes to construct 18 culverts south of the C-111 Canal for crossings by crocodiles, alligators, manatees, and other wildlife. These crossings will consist of 15 box culverts and 3 bridges. MANATEE CREEK BRIDGE The proposed bridge at Manatee Creek would be constructed as a four lane bridge, but would be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular travel in that lane. There would be an eight foot outside shoulder. BRIDGING JEWFISH CREEK AND LAKE SURPRISE Jewfish Creek, which is part of the Intracoastal Waterway, and Lake Surprise would be bridged by a continuous structure. The Jewfish Creek bascule bridge would be replaced by a high-level four-lane fixed bridge. The Lake Surprise causeway would be replaced by a low-level four-lane bridge. The total distance for this bridging is approximately 2.35 miles. AREA OF PROJECT THAT WILL BE OPERATED WITH FOUR-LANES The three passing lanes (4.94 miles) and the bridge over Jewfish Creek and Lake Surprise (2.35 miles) would be operated with four lanes. Those areas total 7.29 miles of the 20.4 mile project corridor. Approximately 43 percent of the proposed roadway would have four lanes of pavement. Excluding the areas where the fourth lane will be blocked from travel with rumble strips, only 35 percent of the completed project will contain four travel lanes. This area consists of the three passing zones and the bridges over Jewfish Creek and Lake Surprise. THE PROPOSED SWM SYSTEM The proposed project would provide for a SWM system consisting of inlets, culverts, swales, berms and dry/wet retention areas. For the typical roadway section, runoff from the paved roadway surfaces will be directed to roadside swales designed to provide retention for 50 percent of 2.5 inches times the impervious area. The SWM system for the bridges will collect runoff in inlets and culverts and direct it to either swales or dry or wet retention ponds. The berms of the SWM system provide additional protection by restricting spills of pollutants, such as petroleum from overturned tankers or other vehicle accidents, from running into the surrounding waters. The berms and swales of the SWM are designed to catch pollutants and prevent their discharge into the surrounding waters. FDOT Exhibit 18 consists of four separate drainage reports submitted to the District in 1995 in connection with the project, one report for each section of the project. The reports accurately document the drainage calculations, the drainage design, the rationale behind the drainage design, and compliance of the design with the laws and regulations of the permitting agencies for the original four-lane proposal. On or about September 5, 1995, FDOT submitted revised drainage calculations to the District, determining the amount of stormwater treatment for the three-lane project. The revised calculations established that at least 95% percent of all stormwater runoff from the project would be captured in the proposed SWM system. Because the swale design was based on the originally proposed four-lane road, retention will be in excess of the required volume for most sections of the roadway. The required retention volume for this project is approximately 166 percent of what is required by the BOR. The surface and subsurface geology of the roadway consists of Miami oolite limestone overlain with Perrine maral. Underlying this is Thompson formation, anastasia and Key Largo limestone. Based on these constituencies, the swales proposed by the SWM system would be effective in rapidly removing heavy metals and phosphorous. The revised calculations established that approximately five percent of the project area will not have a SWM system. These areas will not have a SWM system because properly-sized retention systems in those areas can not be constructed without causing a disproportionate, adverse impact to surrounding wetlands. FDOT has provided reasonable assurances that the proposed SWM system’s total water quality treatment exceeds the District's permitting requirements and provides sufficient treatment to exceed the BOR requirements. The water discharged from the proposed system would be of higher quality than that currently discharged, which is not treated. FDOT has provided reasonable assurances that the proposed SWM system complies with the permitting criteria found in Rule 40E.301(1)(a)-(p), Florida Administrative Code. The following findings are made as to that criteria. Rule 40E-4.301(1)(a), F.A.C. The parties stipulated that Rule 40E-4.301(1)(a), F.A.C., pertaining to flood protection and the adequacy of drainage, is not at issue in this proceeding. Rule 40E-4.301(1)(b), F.A.C. The quality of water being discharged from the SWM system will be of substantially higher quality than the existing discharges. Consequently, it is concluded that the system will not cause adverse water quality impacts within the meaning of Rule 40E-4.301(1)(b), F.A.C. In addition, the evidence established that there will likely be less water discharged from the roadway if the project is constructed because of the amounts of water that will likely be retained in the swales that are a part of the SWM systems. Rule 40E-4.301(1)(c), F.A.C. Because the receiving bodies of water are designated Outstanding Florida Waters, the District is required to apply the DEP's most stringent water quality requirements -- the antidegredation requirements for discharge to OFWs, to this project. Those standards will be discussed in more detail below. The evidence established that the proposed project will not violate those requirements. Rule 40E-4.301(1)(d), F.A.C. Impacts to sources of water are not at issue. The District reviewed the potential effect of the SWM system upon on-site and off-site impacts to surface or groundwater levels and flows. The evidence supports the District's conclusion that no adverse impacts will be caused. Petitioners failed to present any evidence on groundwater levels and flows. Consequently, it is found that the criteria found at Rule 40E-4.301(1)(d), F.A.C., has been satisfied. The 25 hydrologic culverts north of C-111 have the potential to re-establish historic surface water flow in the area. They were sized, based on rainstorm events, to help equalize water levels from one side of the road to the other. The culverts are capable of transferring water from west to east to assist in the historic restoration of flows. In order to assure the proper usage of the culverts, they will remain gated until the District develops a management plan in conjunction with other agencies. The District will determine the maintenance entity. The FKAA water main runs beneath this section of the road. As a result, there is no other more hydrologically efficient alternative for the placement of the culverts. The culverts would also provide a means for overwash from storm events, over the U.S. 1 roadbed, to flow back to its point of origin, stabilizing the roadbed and allowing release of the accumulated salt water. Rule 40E-4.301(1)(e), F.A.C. In addition to providing for a net improvement in water quality, the project will offset any adverse impacts through mitigation and other environmental enhancements for which no mitigation credits are being assigned, as described below. Rule 40E-4.301(1)(f), F.A.C. FDOT has a history of adequate maintenance of SWM systems, and has provided reasonable assurance that it has the staff and budget to comply with District operation and maintenance requirements. FDOT will also be able to comply with the District's requirements to control exotic plants and other foliage along project corridor. Rule 40E-4.301(1)(g), F.A.C. The SWM system will not adversely affect public health and safety. The dispute as to the public interest test focused more on the WRM permitting requirements. Findings as to the public interest test are discussed in more detail below. Rule 40E-4.301(1)(h), F.A.C. The evidence established that the SFM system is consistent with State Water Policy. Rule 40E-4.301(1)(i), F.A.C. This project does not pertain to a DRI and, consequently, this criteria is not applicable. Rule 40E-4.301(1)(j), F.A.C. There are no basin criteria applicable to this project. Rule 40E-4.301(1)(k), F.A.C. The evidence established that the SWM system will not be harmful to the water resources of the District. While there will be adverse environmental impacts caused by the project, those adverse impacts have, as will be discussed in more detail below, adequately offset by mitigation. Rule 40E-4.301(1)(l), F.A.C. This issue was not at issue in this proceeding. Rule 40E-4.301(1)(m), F.A.C. As will be discussed in greater detail in a subsequent section of this Recommended Order, the project is not against public policy. For the reasons set forth in that subsequent section, it is found that the project is clearly in the public interest. Rule 40E-4.301(1)(n), F.A.C. Rule 40E-4.091(1)(a), F.A.C., constitutes the BOR. As discussed in detail above, the SWM system complies with the BOR. Rule 40E-4.301(1)(o), F.A.C. There are no isolated wetlands pertaining to this project. Rule 40E-4.301(1)(p), F.A.C. There are no above ground impoundments, as described in Appendix 6 of the BOR, pertaining to this project. WATER QUALITY - DISCHARGES INTO OFW Because the project will involve discharges into Outstanding Florida Waters, it was necessary for FDOT to establish that the discharges from the SFW system will not degrade those OFWs. The evidence established that FDOT's proposed project complies with and exceeds applicable water quality standards and permitting criteria. There will be no significant degradation of ambient water quality as a result of the project. It is expected that there will be a net improvement in ambient water quality resulting from the proposed project, as opposed to the continued degradation if nothing is done to treat stormwater runoff. In FDOT Exhibit 46, FDOT provided baseline water quality data in the form of STORET data for waters adjacent to the project area. STORET is a centralized repository and database for water quality data throughout Florida. It is Florida's principal source of water quality data. STORET contains the best scientific database on water quality in Florida. The STORET data set forth in FDOT Exhibit 46 provided sufficient evidence on ambient water quality for the waters adjacent to the proposed project. In addition to providing the water quality data in FDOT Exhibit 46, FDOT is required by Special Permit Condition 37 to submit appropriate water quality data in the surrounding waters prior to any construction activities. SFWMD Exhibits 5 and 6 contain amendments to Proposed Agency Action made after the beginning of the formal hearing. These amendments include a requirement that an appropriate water quality monitoring plan be submitted within 30 days of the permit issuance. FDOT has provided reasonable assurances that water quality standards will be met and that there will be appropriate water quality monitoring during construction. DIRECT IMPACTS OF THE PROJECT The proposed roadway design will result in the following direct impacts to wetlands adjacent to the roadway corridor: 1) the dredging of 11,028 cubic yards of material from 2.1 acres, 2) the placement of 1,689,553 cubic yards over 147.0 acres of wetlands, and 3) 6.9 acres of (potential) permanent impact due to shading and 4.1 acres (potential) of temporary impacts from the Jewfish Creek Bridge construction activities to seagrass habitat. In order to determine the project's direct impacts, the area surrounding the project was surveyed to determine the number of affected acres. This was done by using a computer aided design ("CAD") system, and by categorizing the various forms of wetlands and associated flora and fauna into the following communities: mangrove, emergent freshwater, open water, and tidal, consisting of seagrass and non-vegetated bottoms. Using these categories and the CAD system, every square foot of direct impacts were accounted for. The adverse direct wetland and surface water impacts of this project are as follows: 1) 27.83 acres Non- Vegetated Tidal Bottom; 2) 11.27 acres Seagrasses; 3) 46.85 acres Mangroves; 4) 42.35 acres Sawgrass/Cattail/Spikerush; 5) 14.31 acres Shrub Wetlands; and 6) 6.46 acres Open Fresh Water; totaling 149.07 acres. Though some wetlands to be impacted may be of lesser quality, FDOT stipulated that all wetlands to be directly impacted by the project should be considered to be high quality wetlands for the purpose of mitigating the impacts. The impacted wetlands are part of larger wetland systems. Petitioners assert that the District should have required studies as to impacts as to the larger wetland systems. The evidence established that the District appropriately considered the type and location of the wetlands involved so that additional study suggested by Petitioners was unnecessary. Petitioners also assert that impacts to isolated wetlands should have been studied. The evidence established that there will be no such impacts. SECONDARY AND CUMULATIVE IMPACTS RECOGNIZED BY SFWMD In addition to the direct impacts of the project, the District is required to analyze secondary and cumulative impacts. A project's secondary impacts are those that, though outside of the project footprint, are very closely linked and causally related to the project. This is a "but for" test. Secondary impacts are those impacts which, if not for the proposed project, would not occur. Both positive and negative secondary impacts are considered. When there are both positive and negative secondary impacts caused by a project, the permitting agency must consider the severity of the impacts and balance these together with the other factors in the public interest test to determine whether or not the project is clearly in the public interest. WRM statutes, and DEP rules and policies pertaining to those statutes do not regulate growth or traffic increases, per se. Only if such increases are very closely linked and causally related to the project will they be considered. The District identified several secondary impacts that would be temporary in nature since they would occur while the project is being constructed. One is the use of a barge facility, primarily at Jewfish Creek, where the anchoring of the barge may result in temporary impacts to seagrass during construction. This impact is addressed by a component of the seagrass mitigation at Boca Chica, discussed below. Another impact is turbidity associated with the dredge and fill and the barge activities. That issue is appropriately addressed by permit conditions, through the use of turbidity control screens and other techniques. The District also identified secondary impacts directly associated with the project footprint that would be permanent in nature. The removal of the exotic vegetation potentially opens up the areas adjacent to the road north of the C-111 canal to off-road vehicles or four-wheel driving and the potential impacts caused by those vehicles. That impact is appropriately addressed by fencing north of the C-111 canal. When a road is widened, animals have a greater distance to travel back and forth from one side of the road to the other. A wider road exposes such animals to greater risk of being hit by a motor vehicle while crossing the road. That impact is addressed in this project by the fencing, the wildlife crossings, and the wildlife box culverts. The crossings are designed for large mammals and some species, such as the Indigo snake, will likely not use these crossings. The wildlife crossings will not entirely mimic the crossing patterns of all wildlife that need to cross U.S. 1 and will result in some wildlife habitat fragmentation. The fencing that will be erected to funnel wildlife through the crossings will fragment the habitat of some species by altering wildlife crossing patterns and blocking access of some species to certain areas of habitat. The greater weight of the evidence established that any habitat fragmentation should, when compared to existing conditions, be minimal. The District appropriately evaluated the advantages and disadvantages of using wildlife crossing and hydrological culverts and appropriately concluded that there would be a net benefit to wildlife as a result of their construction. The District properly concluded that the culverts, bridges and fencing located south of the C-111 canal, construction of wildlife crossings and fencing north of the C- 111 canal, construction of the hydrologic culverts, and removal of the Lake Surprise Causeway are positive secondary benefits of the project. These benefits should be considered when applying the public interest test. THE FKAA PIPELINE RELOCATION The project requires the relocation of two segments of the existing pipe owned by the Florida Keys Aqueduct Authority (FKAA) around Jewfish Creek Bridge. The segments total approximately 1.5 miles. The District inspected the area where the pipeline will be relocated to assist in determining its impact. The pipeline relocation is a temporary disturbance during construction. It is a small linear facility, which will not generate pollution in and of itself. The pipeline relocation is not expected to result in a violation of State water quality standards. The FKAA is responsible for obtaining the necessary permits for the relocation. Direct impacts to wetlands will occur in a 4 to 5 foot wide strip along the length of the relocated aqueduct. The FKAA has submitted a permit application to the DEP for a permit to relocate the aqueduct. DEP believes that adequate mitigation can be achieved to make the project permittable. Once the FKAA submits an adequate mitigation plan, then relocation of the aqueduct will not be an adverse secondary impact caused by the U.S. 1 project. The permit for the subject project should contain a condition that the FKAA obtain a permit for the relocation of these two segments of its pipeline. THE C-111 BOAT RAMP There is an existing boat ramp designed for small boats to access District canals that is located on the north side of the C-111 canal. As a result of the proposed project, it will be relocated to the southern side of the project. This relocation is a relatively minor project requiring a cut in the canal bank and a fourteen-foot wide slab for the boat ramp. When the District considered the potential impacts associated with this relocation in conjunction with the impact of the proposed project, it was determined to be a relatively insignificant impact in terms of the project as a whole. Relocation of the boat ramp is not expected to result in a violation of state water quality standards. All direct, cumulative, and secondary impacts, whether positive or negative, should be considered in balancing the public interest test. ARE THERE ADDITIONAL SECONDARY AND CUMULATIVE IMPACTS Petitioners assert that there are additional cumulative and secondary impacts that the District failed to consider. Petitioners argue that the project cannot meet permitting criteria if those additional impacts are considered. The additional impacts pertain to additional development throughout Monroe County because of the “rate of growth ordinance” (ROGO), additional development along the project corridor, impacts to the coral reefs of the Keys, impacts to Key Deer, generalized impacts, and impacts from increased number of “day trippers." For the reasons discussed below, it is found that the District has considered all appropriate direct, secondary, and cumulative impacts of the project. The additional impacts that Petitioners assert should have been considered are not causally connected or directly linked to the project. THE RATE OF GROWTH ORDINANCE Monroe County adopted its Year 2010 Comprehensive Plan (the "Plan") to meet the requirements of Chapter 163, F.S. The Plan, adopted May 15, 1993, is unusual in that the County limits future growth based on a carrying capacity analysis of its hurricane evacuation clearance time. No other jurisdiction in Florida, and few others in the United States, have used a carrying capacity planning approach. To implement the carrying capacity limitation, Monroe County determined the total number of dwelling units that could be permitted while maintaining an acceptable hurricane evacuation clearance time of 24 hours. This number of dwelling units, less an allowance for vested development and development in municipalities, was the basis for a ROGO that was adopted by the County in 1992. The ROGO allocates the available units at a uniform annual rate of growth (currently, 255 units per year). The ROGO regulates all proposed new residential buildings, including hotels, motels, and other transient tourist accommodations as well as permanent residences. The number of building permits that Monroe County can issue is, at present, directly related to how rapidly the County can be evacuated in the event of a hurricane. The lower the clearance time, the greater the number of permits that can be issued. The Comprehensive Plan requires that the County be able to evacuate within a 24-hour period. As of March 7, 1995, the hurricane evacuation time for Monroe County was determined to be 21.25 hours.1 The project is expected to reduce by six or seven hours the modeled hurricane evacuation capacity for Monroe County, regardless of whether it consists of three or four lanes. This is because both the three lane and four lane plans provide for two northbound lanes. Because of the rate of growth provisions in county law, this reduction of clearance times results directly in an increase in the number of building permits that the county can issue annually. Under ROGO, Monroe County can, with this project, issue 255 permits each year through the year 2026. Without this project, Monroe County can issue 255 permits each year only through the year 2001. Alternatively, without this project, the county can issue 88 permits each year through the year 2010 if it chooses to issue permits over a longer period of time. Following extensive litigation before the Division of Administrative Hearings in an unrelated proceeding2, the Administration Commission entered a final order on December 12, 1995, that approved approximately 97 percent of the Plan. In addition, the Administration Commission has published a proposed rule to bring the remainder of the Plan into compliance and assure its financial feasibility. The central feature of the proposed rule is a five- year work program, with annual reviews by the Administration Commission. It is likely that the proposed rule will eventually result in the complete revision of the ROGO. The proposed rule provides that Monroe County's annual rate of growth be revised within five years, no later than December 31, 2001, "to establish a rate of growth and a set of development standards that ensure that any and all new development does not exceed the capacity of the county's environment and marine systems." A carrying capacity study will comprehensively assess water quality, habitat protection, and public facility issues to determine the capacity of the Keys to sustain further development. The proposed project is but one of many factors that will be considered in future rate of growth regulations. If the expected revisions occur, it would be speculative to predict what development would be allowed. While the studies are underway the rate of growth will remain at 255 units per year. The rate of growth will be reviewed annually, and may be reduced a minimum of 20% if the goals of the studies are not being met. The DCA has determined that Monroe County’s Comprehensive Plan and its land development regulations are sufficient to prevent or mitigate any potential adverse secondary impacts of the project caused by development. The DCA has consistently supported the proposed project, even in its earlier four-lane configuration, because it was consistent with Monroe County's 1986 Comprehensive Plan, and because the project would improve hurricane evacuation clearance times and improve water quality in the vicinity of the roadway. The 1986 plan supported widening of the roadway to four lanes based on projected travel demand. The DCA prefers the current, three-lane proposal to the earlier four-lane. On September 7, 1995, the Monroe County Commission adopted Resolution 315-1995 in support of the proposed project because "it balances the needs for a widened highway with safeguards designed to address secondary impacts." Lorenzo Aghemo, an expert in comprehensive planning, served as Monroe County Planning Director during the development of the Plan and ROGO. In Mr. Aghemo's opinion, the widening of the roadway to either three or four lanes would generate minimal growth pressure in Monroe County, particularly because the Plan limits the rate of growth. Because the Keys are designated by Section 380.0552, F.S., as an area of critical state concern, the DCA is charged with oversight of Monroe County's Comprehensive Plan, its LDRs, and all development that takes place in Monroe County. Additionally, the Administration Commission may amend Monroe County's plan or regulations by rule (See Section 380.0552(9), F.S.). There is virtually no action that Monroe County can take related to the use of land without review and approval of a state agency. The Administration Commission’s proposed rule demonstrates its intent to revise comprehensively Monroe County's ROGO within five years to ensure that future development does not exceed the capacity of the Keys' environmental resources. It also demonstrates the Administration Commission's intention to closely monitor growth and development in the Keys during the five-year study period. Some of the studies required by the proposed rule are already underway: 1) the DCA has entered into a contract with the ACOE to complete the environmental carrying capacity study; 2) the HRS study of advanced on-site waste water treatment systems is underway; 3) Monroe County is developing the required Marathon central sewer facilities plan; and 4) Monroe County and HRS have begun the cesspit identification and elimination process. Caution should be exercised in relying on this or on any other proposed rule. Likewise, caution should be exercised in relying on changes to ROGO that may or may not occur. It is likely that the present status of the law will be changed in the near future so that future development will be based on environmental carrying capacity as opposed to hurricane evacuation clearance times. However, for the purposes of this proceeding the District should accept the fact that the issuance of future building permits is closely linked and causally related to the project. Consequently, it is found that under the present status of the law, the issuance of additional building permits in Monroe County is closely linked or causally related to the project. MONROE COUNTY LDRS AND DCA OVERSIGHT Although Petitioners established that there is a causal relation between the project and the existing status of the law governing the number of building permits that can issued in the future, the evidence was insufficient to establish at a level above speculation that adverse environmental impacts will result because of the issuance of those building permits. The Monroe County Comprehensive Plan contains land development regulations that govern all development in Monroe County. These regulations are among the most stringent in the State and are designed to avoid or minimize adverse environmental impacts caused by development. All development orders in Monroe County are closely scrutinized by the Department of Community Affairs to ensure compliance with applicable permitting criteria. Those regulations and the DCA’s close scrutiny are intervening factors that break any causal relation between the project and the speculative adverse environmental impacts that the Petitioners assert will be caused by future issuance of building permits by Monroe County. Petitioners failed to establish that the impacts of future development are very closely linked or causally related to the project. Consequently, it is found that such impacts are not secondary or cumulative impacts of the project. DEVELOPMENT ALONG THE PROJECT CORRIDOR A major portion of the area next to the road has little or no development potential because it is either water, land in public ownership, or land slated for public ownership. The areas east of the road are mostly in private ownership, but are primarily submerged lands and mangrove areas. The Crocodile Lakes National Wildlife Refuge is federally owned and is managed by the U.S. Fish and Wildlife Service (USFWS). The Southern Glades lands, located immediately west of the project and Everglades National Park (ENP) in Dade County, have been acquired by the District and are managed by the Florida Game and Freshwater fish Commission (FGFWFC). The Model Lands Basin in Dade County is in private ownership but proposed for public acquisition in the future. The land adjoining the roadway in Dade County is designated as open area or environmentally sensitive. Almost half of the land along Monroe County's portion of the roadway is in public ownership. At least 90% of the land in private ownership is mangroves or wetlands that cannot be developed. The small area of uplands is currently being used by a resort marina which will not be allowed to develop further under the new comprehensive plan. There is very little potential for future development in the project area. The comprehensive plan designation for areas in Dade County are open space, and the ones in Monroe County have the conservation designation. The District's regulatory programs consider areas adjacent to the project as sensitive wetland habitats. Based on the District's regulatory authority and comprehensive plan designation for those lands, which would have to be obtained prior to obtaining a permit for development, it is very unlikely that those lands could be developed. Florida Rock and Sand Co. (FRS) has a permit to mine approximately 1,100 acres of wetlands. As part of its mitigation program, FRS will donate this land to the District once its mining and mitigation projects are complete. The FRS mitigation lands are preserved as a permit condition and will ultimately be transferred to the District. This land will not be developed. In addition, the District established that the U.S. 1 project and the FRS project do not constitute a cumulative impact that the District failed to consider. The evidence established that development along the project corridor will not be a secondary or cumulative impact of the project. IMPACTS ON CORAL REEF SYSTEM The evidence was insufficient to establish a close link or causal connection between the project and the coral reef system. As reflected elsewhere, it is found that there will be no degradation of ambient water quality as a result of the project. Therefore, there is no need to resolve the conflicting testimony as to the present status of the coral reef system. IMPACT ON KEY DEER There are no key deer in the project area. The nearest key deer habitat, Big Pine Key, is approximately 70 miles from the southern terminus of the project. The evidence is insufficient to establish that there is a very closely linked and causally related connection between the project and key deer mortality on Big Pine Key. GENERALIZED IMPACTS The Petitioners presented certain opinion testimony that the Keys cannot be developed in an environmentally sensitive manner because of potential adverse impacts of new development in Monroe County, or new boats operating in the waters of the Florida Keys. The credibility of that testimony need not be evaluated because the evidence was not sufficient to tie those generalized concerns into the specific regulatory criteria of the permitting agency. There was insufficient evidence to establish that those alleged impacts would be very closely linked or causally related to the proposed project. DAY TRIPPERS Induced demand is new travel that occurs solely because additional capacity is added to a highway. Petitioners' transportation experts, Michael Replogle and Robert Morris, testified that FDOT's traffic studies, and FDOT's projected rate of traffic growth of approximately 3 percent annually, are incorrect because the studies do not predict the amount of "induced demand" that would result from the proposed project. Petitioners assert that induced demand would generate an unknown number of people who drive to the Keys for the day from south Dade County, referred to as “day trippers,” will have an impact on the Keys that has not been evaluated. The assertion that this potential impact has not been analyzed is rejected as being contrary to the greater weight of the evidence. Induced demand is accounted for in Monroe County's Long Range Transportation Plan, which was never evaluated by Mr. Replogle or Mr. Morris. The Long Range Transportation Plan was prepared by an experienced traffic engineering consulting firm, Barton-Aschman, using an FDOT- approved traffic demand model, the FSUTMS model, that includes all traffic generators and attractors, and all travel on U.S. 1 on weekdays and weekends. The FSUTMS model does not restrict demand based on the existing road capacity. The model uses an "unrestrained assignment" that incorporates the total predicted trip generation on recreational facilities, hotels, and all other attractors. The Long Range Traffic Plan was used to develop the Monroe County Comprehensive Plan, which takes into consideration the projected increases in traffic and makes appropriate provisions for those increases. FDOT has provided reasonable assurances that it has properly projected the amount of traffic for the project corridor after the project is completed and that the projected increases have been appropriately addressed by Monroe County's Comprehensive Plan. MITIGATION - IN GENERAL For the reasons discussed above, it is found that there are no secondary or cumulative impacts that the District failed to consider. Petitioners also contend that the mitigation proposal is insufficient to offset the direct and secondary impacts recognized by the District. This is a large dredge and fill project that will permanently fill 149 acres of wetlands. The wetlands that will be adversely impacted by the project include OFWs that provide a great variety of functions and serve as habitat for fish and wildlife, including threatened and endangered species. The wetlands are unique and of high quality. Mitigation for direct, secondary and cumulative impacts was considered as part of the permit evaluation. In- kind mitigation is considered to be most effective, but out- of-kind mitigation may be offered by the applicant where it is impractical to conduct in-kind mitigation due to historic changes in the project area or sensitivity of the habitat type for which mitigation is offered. Such mitigation is also appropriate to address regional alteration of an ecosystem, such as the Everglades ecosystem alteration caused by the original roadway embankment. FDOT developed a conceptual mitigation plan that took into account project impacts on the freshwater, marine and estuarine components of the ecosystems involved, as well as the impacts on threatened and endangered species of wildlife which may be affected by the project. FDOT coordinated the plan's development with the National Parks Service, U.S. Fish and Wildlife Service, the Army Corps of Engineers, the National Marine Fisheries Service, the U.S. Environmental Protection Agency, the Dade County Department of Environmental Resources Management, the Florida Game and Fresh Water Fish Commission, and the Florida Department of Environmental Protection. The conceptual mitigation plan evolved as a result of project modifications and agency comments into what is now proposed as mitigation for the project. The current proposal is summarized in FDOT Exhibit 26, consisting of Attachment H to FDOT's SWM and WRM permit applications. The timing of their construction falls into two general categories: mitigation previously permitted and concurrent mitigation. UPFRONT MITIGATION Typically, mitigation is done concurrently with project construction rather than prior to permit issuance. Mitigation is often done afterwards because of construction timing constraints. Here, FDOT applied for and, in May 1994 received, permits to conduct mitigation prior to applying for the permits at issue, with the understanding that performance of these activities does not require the District to issue permits for the proposed projects. A total of 385.22 acres of mitigation has already been completed. The applicant received 203.02 mitigation credits from the District on May 12, 1994, for several mitigation projects that the applicant proposes to apply to the proposed U.S. 1 widening project provided it is approved. Table 2 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the up- front portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. The four mitigation activities already authorized are: enhancement of the wetland habitat in the Harrison Tract located adjacent to Barnes Sound within the Crocodile Lakes National Wildlife Refuge on the north end of Key Largo (70.37 acres credit for 252.6 acres of restoration); removal of the spoil mounds on the eastern bank of the C-111 canal east of U.S. 1 located on the District’s ROW (10.65 acres credit); the back filling of the C-109 canal levee located on the District ROW within the Southern Glades Save Our River project (112.7 acres credit); and the removal of the roadside spoil mounds on the west side of U.S. 1 located between C-111 and the Dade Work Camp Road within the District’s Southern Glades Save Our Rivers Project (9.30 acres credit). The mitigation projects pertaining to the roadside spoil removal along U.S. 1, the backfill of the C-109 Canal, and the removal of spoil along the C-111 Canal are similar projects because they each involve existing deep ditches cut through wetlands. When these deep ditches were cut, the spoil material from the ditch was deposited alongside the ditch. This resulted in areas that were previously Everglades wetlands becoming spoil, supporting the growth of exotic species and, for the most part, not exhibiting wetland functions. FDOT is proceeding with the backfilling the C-109 canal located between mile markers 122.5 and 117, and removal of the corresponding spoil mounds created during construction of the C-109 canal. In connection with this mitigation, marsh areas, tree islands and deep water aquatic refugia have been restored. In this area, there has been considerable attraction of wildlife subsequent to restoration, including otters, alligators, and turtles, which could not previously use the habitat because the canal was too deep. Upon completion waterflow between the east and the west will be restored, and the area will be restored to a wetland habitat from its current uplands habitat type. Backfilling of the C-109 canal is part of an interagency effort with the ACOE to restore as closely as possible to natural conditions the flow of water in the C-111 watershed area. C-111 mitigation includes removal of roadside spoil along the C-111 canal to restore the natural condition of the area. The mitigation was devised in coordination with the National Maine Fisheries Service (NMFS), which required mitigation for non-vegetated habitat types. Restoration also includes preserving some spoil areas as islands to maintain habitat for endangered species of plants. When the C-111 spoil mounds are scraped down, the fill will not fill the whole ditch. The ditch will, therefore, be a bit more valuable but will not be completely restored to its former elevation. FDOT will also remove roadside spoil along the west side of U.S. 1, upon which exotic species of plants had grown, and returning the area to its original grade. The Harrison Tract is a known habitat and nesting area for American crocodiles. Its wetlands functions were altered or eliminated by prior development of the land by its original owners. Restoration includes regrading the area to restore its original wetlands functions, including habitat for young and adult crocodiles. FDOT's mitigation of the Harrison Tract also includes restoration of tidal flushing to increase contributions of nutrients and food sources to the surrounding tidal bay system. Crocodiles have been observed using the restored areas. FDOT has installed additional nesting berm habitat, basking habitat and shallow lagoon habitat to promote juvenile crocodile development. The District established that the credit awarded for this mitigation and the conversion ratios utilized for determining this credit were consistent with agency practice and its pertinent rules. FDOT was given a 1:1 credit ratio for areas involving full restoration of wetlands. In other portions of the Harrison Tract mitigation involving restoration of flushing to existing wetlands, FDOT was given not full credit, but credit based on the severity of limitation of the existing wetland functions. Based on this evaluation, mitigation credits were given in a range of a 3:1 ratio for restoration of severely disrupted or non-existent wetlands to a 20:1 ration for restoration of higher quality but not fully functional wetlands. FDOT is being awarded 70 mitigation credits for the 252 acres in the Harrison Tract that are being restored or enhanced. CONCURRENT MITIGATION Based on the mitigation ratios developed by the District, additional mitigation credits were required. Consequently, the project contemplates mitigation that will be undertaken concurrently with the construction of the project in addition to the upfront mitigation. FDOT proposes to earn these additional credits by projects involving creation and/or restoration of emergent vegetation, mangrove and seagrass habitats. FDOT’s proposal to mitigate mangrove impacts with "out of kind" mitigation of emergent vegetation habitats was viewed by the District as being necessary and appropriate because there were no sufficiently large areas of mangrove habitat suitable for restoration. Table 7 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the concurrent portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. In addition, the table references certain credit for the placement of the hydrological culverts. As will be discussed later, that credit was withdrawn at the formal hearing. The four mitigation activities that will constitute the concurrent portion of the mitigation plan are: the removal of the Lake Surprise causeway (2.90 acres credit); the scrape down of the Jewfish Bridge approaches (0.67 acres credit); the restoration of the FGFWFC road (10.34 acres credit); and the Boca Chica project (27.17 acres credit) The Lake Surprise Causeway removal mitigation involves 5.26 acres of on-site seagrass restoration and 0.54 acres of unvegetated bottom mitigation through the excavation of 52,220 cubic yards of material. Lake Surprise historically was a shallow tidal lake supporting seagrasses before a causeway was built across the lake over the seagrasses. FDOT proposes to remove the causeway and restore the previous elevation, after which it is anticipated that seagrasses that grow on the east side of the causeway will fully recruit naturally to the excavated area. Removing the Lake Surprise Causeway will establish 5.26 acres of seagrass, for which FDOT received 2.63 acres of on-site mitigation credit based on a 2:1 ratio. Through natural recruitment after removal of the causeway, there is a high likelihood that the entire 5.26 acres will recolonize with seagrass. FDOT minimized the seagrass impacts to the greatest extent possible. The mitigation credit pertaining to Lake Surprise does not include credit for the removal of the causeway itself. This awarded credit is for the restoration of seagrass areas. The mitigation pertaining to the Jewfish Creek Bridge approaches proposes the scrape down of 1.33 acres of existing fill to allow the area to become recolonized with mangroves. Boca Chica is located in southern Monroe County over one hundred miles from the southern terminus of the project. This site was chosen by FDOT as a site for seagrass mitigation project after FDOT reviewed several other potential sites. Two other sites were rejected. The area around the C- 111 canal was rejected because the land proposed for use was in private ownership. Several defunct marinas in Port Bougainville were rejected due to poor conditions not conducive to seagrass growth. Boca Chica was finally chosen as the site because it was a large enough area with light and hydrological flow conditions conducive to seagrass growth. The evidence establishes that the Boca Chica site is the most viable for seagrass mitigation. The seagrasses to be impacted at Lake Surprise are healthy and productive turtle grass, manatee grass and cuban shoalgrass. Turtle grass is considered an extremely valuable “climax community” of seagrasses which hold sediments in place, cleanse water quality, and forms the base of the food chain. It is valuable to sea turtles, manatees and recreationally important fish and shellfish. The cuban shoalgrass that will colonize at Boca Chica is a pioneer colonizer species that grows in disturbed areas. It is not as valuable to the marine system as turtle grass. The Boca Chica seagrass mitigation permit condition proposed to offset impacts to 11.27 acres of seagrass. This will involve the removal of 306 cubic yards of sediment and hydraulically dredging approximately 1,175 cubic yards of spoil material. The proposed permit conditions state that FDOT shall provide future maintenance of the culvert areas to maintain adequate flushing. FDOT will plant 25.92 acres of seagrasses to mitigate for the remaining 8.64 acres of impacts, for a mitigation ratio of 3:1. In addition, 8.46 acres of seagrass will be planted to mitigate for the barren bottom area that will be affected, and 1.62 additional acres will be planted to compensate for any unexpected impacts to Boca Chica based on the necessary improvements. Overall, there will be of 36 acres of seagrass mitigation by FDOT, for which FDOT is receiving 27.17 acres credit. FDOT will also increase the water flow between the east and west lagoons of Boca Chica, and maintain the culverts connecting the two sides, in order to further promote growth of seagrass therein. FDOT is responsible for 80% survival of each acre of seagrass mitigation, as well as monitoring once a year for five years. Based on historical data obtained from Boca Chica during past mitigation efforts, there is a high likelihood that the entire 36 acres of mitigation will survive, and that the remaining 74 acres of the Boca Chica lagoons will experience natural recruitment of seagrass as a result of FDOT's efforts. The FGFWFC access area was built by excavating a ditch, and putting fill on the wetlands and creating a dirt road bed. After the C-109 canal is backfilled, the access road will no longer be needed. The mitigation project will excavate the existing road bed, back fill it into the ditch, thereby recreating the wetlands that were there previously. FDOT will receive 10.34 mitigation credits based on a 1:1 ratio of acres restored. EVALUATION OF MITIGATION There is no mitigation in this permit for any wetland impact beyond the direct loss of the specific 149 acres that will be dredged or filled. Mitigation was provided only for the direct, footprint impacts of the project. None of the up front mitigation involves the creation of wetlands, which entails converting areas that were not previously wetlands or open water and turning them into wetlands. It will likely take between 20 and 50 years for the mitigation areas to achieve full functional value required by the South Florida Water Management District mitigation permit. In the interim, there will be a net loss of wetland functional value. With time, the proposed mitigation has a high likelihood of success. Based on FDOT's past successes in mitigation of construction-related impacts, FDOT is able to comply with permit conditions relating to best management practices associated with the construction of bridges and pilings and turbidity screens around road construction, as well as restoration of seagrasses and mangroves. Petitioners assert that the District erred in determining the credit to be given for the up-front portion of the mitigation. While it is true that the SFWMD Rules do not mention "up-front" mitigation, the District has the authority to consider all aspects of a mitigation project in weighing its relative value. Consulting engineering inspectors have been retained by FDOT to insure that all permitting requirements are met during mitigation and construction, and that the technical special provisions for protection of threatened and endangered species are complied with by FDOT. The proposed permits contain appropriate conditions that require FDOT to monitor and maintain the mitigation areas. FDOT will be responsible in perpetuity for maintaining the tidal flushing connection at the Boca Chica mitigation site. Special permit condition 6 to the SWM and WRM staff reports require wetland and upland monitoring. If wetland and upland monitoring or other information demonstrate that additional adverse impacts have occurred due to this project, FDOT would be required to offset the loss of any additional wetland impacts. MITIGATION IS APPROPRIATE The evidence established that the mitigation projects were fairly and appropriately reviewed by SFWMD and that the mitigation credits were fairly and appropriately awarded. The evidence also established that there is appropriate mitigation for the direct, secondary, and cumulative impacts of this project. ACTIVITIES NOT RECEIVING MITIGATION CREDIT Mitigation credits for the 25 hydrologic culverts north of C-111 were originally included in the permit staff reports. Those mitigation credits were removed in an addendum to the staff reports, introduced as District's Exhibits 5 and 6. These credits were not necessary to offset project impacts. After the staff report was issued, they became a point of contention by the Petitioners because they will not be utilized until a management plan is developed. Since they were not necessary to meet mitigation requirements, the credits were removed from this project. These credits were never included in the mitigation ratios for these permit applications. The addendum removed the 9.6 credits initially contemplated for the culverts. No credit has been awarded for the relocation of threatened and endangered species of plants, such as Joewood and Bay Cedar by FDOT from the C-111, C-109 and roadside spoil mitigation areas. These species have been relocated to tree islands constructed by FDOT on the mitigation sites, or to other areas that would not be impacted by the project. FDOT also was not given mitigation credits for: (1) the wildlife crossings and the fencing that will funnel wildlife through these crossings; (2) installation of pipe culverts north of the C-111 canal and bridges and box culverts south of C-111; and which, in addition to providing a corridor for aquatic species, will increase the tidal flushing of the area; (3) the removal of the Lake Surprise Causeway, which will restore historical hydrological flow between the eastern and western sides of Lake Surprise; (4) FDOT's commitment to improve and maintain the flushing of the west lagoon culverts in Boca Chica (mitigation is in the east lagoon); and (5) FDOT's contribution of $300,000 to assist Monroe County in performing a carrying capacity study for the County. Additionally, FDOT will preserve the Jewfish Creek Bridge abutment, which will be preserved for local historical purposes. FDOT will prepare the Jewfish Creek Bridge pilings for an artificial reef at Long Key during construction. THE PUBLIC INTEREST TEST It is appropriate for the SWFMD to consider, in balancing the public interest test, to consider traffic safety and hurricane evacuation.3 Because of FDOT's expertise in those areas, it is appropriate for the permitting agency to give great weight to highway safety concerns, including hurricane evacuation, presented by FDOT. The application of the public interest test does not involve consideration of non-environmental factors other than those expressly set forth in the statutes such as navigation or preservation of historical or archaeological resources. Specifically, aesthetics, quality of life, the potential for a project to cause increased crime, and school overcrowding are not properly considered within any of the seven factors contained in Section 403.918(2)(a), Florida Statutes (1991). The District concluded that the project is clearly in the public interest based upon consideration and balancing of the following factors: hurricane evacuation improvements, public safety improvements, a SWM system where no SWM system currently exists; wildlife crossings and fencing north of the C-111 canal where no such crossings or fencing currently exist; wildlife box culverts to accommodate crocodiles, alligators, manatees and marine life where no such culverts currently exist; and hydrologic culverts, which have the potential to assist in the restoration of hydrologic flows, and the mitigation projects, both upfront and concurrent. SECTION 403.918(2)(a), FLORIDA STATUTES Section 403.918(2)(a), Florida Statutes, requires the permitting agency to determine “[w]hether the project will adversely affect the public health, safety, or welfare or the property of others." The property of others is not at issue. As discussed below, the evidence clearly established that the project will greatly enhance the safety of the road during normal operations and facilitate evacuation in the event of a hurricane. There will be clear benefits to the public safety as a result of this project. As part of the PD&E process, FDOT, through Metric, prepared "A Safety Evaluation" of the existing roadway. The safety analysis was based on FDOT accident statistics for the years 1983-1988, as well as engineering review of the conditions causing the accidents. Specifically, FDOT based their safety analysis on the following: 1) calculation of the abnormally high accident rate on the roadway based on the rate quality control formula set forth in the FDOT Highway Safety Improvement Guidelines, and approved by the Federal Highway Administration; 2) copies of the actual crash reports filed with the Florida Division of Highway Safety and Motor Vehicles, which provided detail greater than that generally available through FDOT's own accident data reports, and which formed the basis of the collision diagram in the Safety Evaluation (FDOT Exhibits 36; and 3) and its August 1996 update thereto (FDOT Exhibit 41), on-site evaluation and review of the roadway to determine geometrics of the roadway, locations of driveway accesses and side roadways and the degrees at which roadways intersected. Metric prepared an update of the Safety Evaluation for the years 1989-1994, to determine the continuing validity of the Safety Evaluation, as well as to review alternative proposals to the original proposed roadway configuration. In preparing the update, the recent accident data (FDOT Exhibit 37) and the underlying research in the Safety Evaluation were used by Metric Engineering in reaching its conclusions. The Safety Evaluation performed by Metric in 1989 established high accident rates on the roadway based on a detailed segmental analysis of the roadway. In August of 1996, the Safety Evaluation was updated by Metric, which update confirmed the findings of the Safety Evaluation, and further stated that accident frequency on the Monroe County portion of the roadway exceeded the state average accident rate and the abnormally high accident rate for the years 1990 through 1994 (notwithstanding the rear-end accidents occurring at Jewfish Creek). Fatal accidents on the Dade County portion exceed the state average on the same stretch by 37 percent for the same years. The most severe accidents occur on the Dade County portion. The Monroe County portion of the roadway exceeds the statewide average in the abnormally high accident rate four out of the last five years that FDOT studied. The Dade County portion does not exceed the accident frequency or the number of accidents, but the fatality rate in Dade County is much higher than the state average. Presently an abnormally high accident rate exists in three locations along the project corridor, two of which are in the vicinity of the Jewfish Creek bridge. The third location is north of the bridge on Cross Key. Replacing the Jewfish Creek Bridge with the fixed-height bridge proposed by FDOT will substantially increase the safety on the project corridor. The District considered this to be an important positive element in the public interest balancing test. The existing 2:1 slopes of the roadway make it difficult for drivers to recover from running off the roadway, resulting in a greater frequency of this type of accident. Moreover, the existing clear zone is not large enough to overcome the 2:1 slope to allow safe recovery of errant vehicles. As a result, catastrophic crashes occur rather than safe recoveries. Also, as with hurricane evacuation discussed in the following section, actual accidents on the roadway prevent traffic from accessing or leaving the Keys, and also prevent emergency vehicles from rapidly accessing the Keys and a crash site. This occurs because there is little or no shoulder or clear zone along the sides of the road to allow emergency vehicles to efficiently access an accident site, and in the event of a severe, head-on type collision, the roadway is blocked off. U.S. 1 through the project corridor is regarded as so unsafe for travel that Monroe County law enforcement officials call it "death alley." There are many head-on collisions due to the two-lane, no-median alignment. Law enforcement is difficult and dangerous along the roadway, because it has very few areas wide enough to allow law enforcement officials to detain driving violators. It is also very dangerous, for the same reasons, for a driver to pull off the roadway with a broken-down vehicle. High rates of speed and impaired drivers contribute to the accident rates along the project corridor. The efforts of law enforcement to control speeders and drunk drivers is impeded since it is practically impossible for enforcement officers to turn their vehicles around to pursue violators without running a high risk of causing an accident on their own. The project would significantly improve safety on the roadway by reversing the problems identified in the this section, as well as the previous sections of this Recommended Order. The project would virtually eliminate head-on collisions which largely contribute to serious injuries and fatalities along the roadway. The project would also help eliminate problems with emergency vehicle access to accident sites and restoration of service in the event of accidents, and would increase the roadway's level of service as discussed below. Improved level of service was an additional need considered by FDOT during the PD&E process. While the District did not consider the traffic level of service by itself to be weighted as part of the positive public interest criteria in this project, the impacts of resulting congestion are relevant to the public interest consideration of traffic safety as discussed in the foregoing sections. Lower quality level of service, as presently exists on the roadway through level of service F, adversely affects the safety of the roadway. When traffic levels rise, driver frustration increases leading to drivers passing in no-passing zones and potentially resulting in head-on collisions and high-severity accidents. Additionally, due to the narrow shoulders of the existing roadway, accident vehicles pose a threat to and impede normal traffic flow on the roadway. The Highway Capacity Manual set the standards for traffic engineering and is used in all fifty states. The manual classifies the existing roadway as a two-lane arterial rural road. Applying the standards for measuring level of service for two-lane rural roads set forth in the Highway Capacity Manual, FDOT determined that the existing level of service on the roadway is E, which is a very poor level of service that does not meet the established standard of level of service C required by the Highway Capacity Manual. Monroe County uses a speed based method of calculating level of service. Using that method, the level of service for U.S. 1 is at an acceptable level. The parties disagree as to which method of calculating the level of service is appropriate. That conflict is resolved by finding that the method used by FDOT is the appropriate method because of its wide acceptance and long-term use. Traffic volume in the area of the southern terminus of the project is growing at a rate average annual rate of 3.07 percent. In the present condition of the roadway, level of service will degrade to F, or forced-flow conditions, by the year 2006. Even with the improvements proposed by FDOT, the level of service in the northbound direction would improve to level of service B, but the level of service in the southbound direction would remain at level of service D or E due to the single southbound land configuration. Hurricanes pose a serious threat to the safety and welfare of residents and visitors of the Keys. Monroe County is the most vulnerable hurricane-prone area in the United States because it is surrounded by tropical waters, land elevation is low throughout the islands, and the evacuation routes are limited to U.S. 1, an extended route that starts in Key West and runs to the mainland, and Card Sound Road. The greatest potential for loss of life during a hurricane in the Keys is from storm surge. Storm surge is a dome of water near the center of a hurricane which is created by the winds on the water's surface. In a category 3, 4 or 5 storm, the entire land mass in the path of the storm will be inundated. Because of the wind and storm surge associated with hurricanes, the best response to a hurricane warning in the Keys is to evacuate people to the mainland away from the water and the storm surge threat. Accordingly, Monroe County orders a mandatory evacuation in a category 3, 4, or 5 hurricane, and no shelters are opened. There is little or no disagreement as to the vulnerability of the Keys to hurricanes or as to the danger posed by a hurricane. There is disagreement as to whether the proposed project is needed for improved hurricane evacuation. The conflicting evidence in this regard is resolved by the following findings, which are based on the more credible, substantial evidence. The existing road does not have sufficient hurricane evacuation capacity to meet the present and projected future needs of Monroe County residents and visitors. In current hurricane evacuations, the two northbound lanes on U.S. 1 between mile marker 90 and 106 are split at Key Largo. Sixty percent of the traffic is directed up the northbound lane of U.S. 1; forty percent of the traffic is diverted onto the northbound lane of Card Sound Road. One southbound lane of U.S. 1 and Card Sound Road must remain open for emergency vehicles to reach an accident or a disabled vehicle, or to bring emergency supplies into the Keys. Improving the roadway is critical to the success of Monroe County's hurricane evacuation plan. FDOT relied on hurricane evacuation and needs modeling performed by Monroe County and the ACOE to confirm the need for improvements. All of the models used indicated that the project corridor is the controlling roadway segment for improving hurricane evacuation of the Keys. Additionally, FDOT relied on the Lewis Report of January 15, 1993, a study commissioned by the Governor of Florida. Recommendation No. 17 of the Lewis report recommends that FDOT expedite the design and construction of the project, which is viewed as being critical for increasing the rate of emergency evacuation. Dr. Robert Sheets, former director of the National Hurricane Center, testified that the failure to make improvements to the roadway would be "unconscionable." Dr. Sheets and Billy Wagner, the Director of Emergency Management for Monroe County, presented very compelling and very persuasive testimony that this project is essential for hurricane evacuation purposes. The proposed project is the minimum transportation improvement that will achieve a significant improvement in evacuation safety and clearance time. With the present two- lane configuration and narrow shoulders, evacuating traffic would be halted completely by a vehicle breakdown or an accident blocking one lane. Replacement of the Jewfish Creek Bridge will also facilitate the hurricane evacuation need for the project. In addition to improving the rate of evacuation, the project will make an evacuation safer. Emergency personnel cannot reach accidents on the roadway during an evacuation because, in certain segments, no roadbed exists adjacent to the northbound lane. A second northbound lane and wider road shoulders would enable disabled vehicles to be serviced and removed from the highway. The proposed changes to the road would improve emergency vehicles' access to an accident scene. The elevation of the roadway at Lake Surprise is so low that it can be flooded easily by a storm. The proposed project would replace the existing muck bed of the roadway with more stable material. The existing roadway is subject to settling and washout during storm events, which reduce the safety of the roadway itself and reduce the evacuation capacity of the roadway. If washout occurs, moving equipment to the islands for recovery efforts following a hurricane will be difficult or impossible. The proposed project will prevent erosion and reduce the effects of storm surge and wave action on the road during a hurricane. When the project has been completed, three lanes of evacuating traffic, two lanes from U. S. 1 and a third from Card Sound Road, will converge at Florida City. Representatives of FDOT, the Monroe County Sheriff's Department, the Florida Department of Law Enforcement and Monroe County Emergency Management have planned to manage the northbound traffic when it reaches Florida City during an evacuation. Several feasible alternatives exist, but additional planning is needed to prevent a monumental bottleneck at the northern terminus of the project. While it is clear that this project will not resolve all problems that exist as to hurricane evacuation, it is also clear that this project is essential to improve hurricane evacuation. SECTION 403.918(2)(a)2, FLORIDA STATUTES Section 403.918(2)(a)2, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats.” The District considered the effect of the direct loss of dredging and filling 149.07 acres of wetland. As set forth in previous sections, it is found that this loss will be offset by the mitigation. For use during construction of the project, FDOT will adhere to technical special provisions and special permit conditions 9 through 13 to protect manatees, crocodiles, alligators, indigo snakes, marine turtles, and valuable trees, palms and other wildlife, to minimize or preclude any impacts to those species. Additionally, any osprey nests around the Jewfish Creek Bridge area at the time of construction will be relocated by FDOT if necessary. As part of the development of the FEIS, as required by the Federal Highway Administration under the National Environmental Protection Act, FDOT obtained official letters of concurrence from the USFWS and NMFS that the project would cause no adverse impacts to endangered species under section 7 of the Endangered Species Act. That process also established the project's consistency with Florida Coastal Zone Management Program, as determined by the State Clearinghouse within the Office of the Governor, in coordination with DEP, the Department of National Resources and FGFWFC. The project also contains provisions to impact positively or enhance the conservation of fish and wildlife, including threatened or endangered species and their habitat, as described below. These were positive factors that further helped neutralize and offset the 149.07 acres of direct impacts. In addition, FDOT is required to evaluate the effectiveness of the fencing along the entire project corridor, discussed below, and report to the District on that effectiveness. If the District determines that the fencing could be more effective, it may require FDOT to implement those suggestions. South of the C-111 canal, construction of box culverts and bridges addresses impacts to the American crocodile, a listed endangered species. Problems were identified with placement of existing culverts, which did not provide enough clear space and which caused the crocodile to cross over the roadway rather than through the culvert. To address this problem, 15 larger box culverts and three bridges will be placed within the roadway. These provide the necessary clear space to allow the crocodile to safely pass under rather than over the road. The location of the box culverts was chosen by reviewing crocodile mortalities associated with road crossings. Placement of these box culverts and bridges will also improve the hydrological flow of water within the project area, provide a crossing area for manatees, and allow greater dispersal of the crocodile population throughout Florida Bay. Species expected to use these box culverts include aquatic and aquatic water dependent species in the area. They were primarily targeted for crocodiles, alligators, and manatees, but certain fishes, turtles, frogs and other species in the wetlands along the project corridor will utilize the culverts. The box culverts will have 100 feet of wingback fencing extending north and south of each culvert. The intent of the wingback fencing is to funnel wildlife into the box culverts. Intermittent or wingback fencing is appropriate south of the C-111 canal for two primary reasons. First, the animals which will be guided into the box culverts are aquatic dependent. The area south of the C-111 canal is primarily water, washed mangrove areas and tidal creeks. Crocodiles tend to move in tidal creeks. Second, it was not possible to ensure continuous fencing along all portions of the project south of the C-111 canal because there are existing businesses. It could not be assured that these businesses would keep a gate closed. The project originally proposed continuous fencing alongside the road where it abuts ENP. Continuous fencing was initially proposed because the initial application included a solid concrete barrier down the median of the road. If a crocodile did enter the road from the side with discontinuous fencing, after crossing one lane the crocodile would hit the barrier, but then easily find its way back to the area it came from. However, the project was later modified to include a tri-beam barrier because it lessens the footprint of the project and thereby lessens the wetland impact. Since the current application does not include a continuous barrier down the middle of the road, if a crocodile enters the road it would cross the tri-beam barrier, go across another lane of roadway before hitting a continuous fence. The animal would then run up and down that fence with nowhere to go except back across the road again. This would increase their exposure to a road kill. With the installation of bridges and culverts along the southern portions of the project corridor, there is no need for continuous fencing because aquatic wildlife, such as the American crocodile, will tend to follow the flow of water through the culverts rather than climb over the roadway. The FGFWFC and ENP oppose continuous fencing and prefer intermittent fencing south of C-111 canal since the project now includes a tri-beam barrier. Positive benefits also include construction of panther crossings at four locations north of the C-111 canal to account for impacts to the Florida panther, a listed endangered species, in the vicinity of the project, along with continuous fencing on both sides of the road north of the C- 111 canal. The crossings will be placed at locations that show historical use by wildlife, including areas at the Dade County Correctional Institute access roadway, the water control structure on the C-109 canal, and the berm of the C- 111 canal. The wildlife crossings are indicated by blue dots on FDOT's Exhibit 1. FDOT underwent years of extensive coordination with the environmental regulatory and resource agencies to design a project that would accommodate their ecosystem management plans. The location of the wildlife crossings was based upon radio telemetry data, collected from radio-collared panthers, and their typical corridor movement. The location was further chosen based on input from the USFWS and the FGFWFC. The continuous fencing north of the C-111 canal will prevent wildlife from crossing the road, and instead force them to use the wildlife crossings. The crossings were designed for panther use, the panthers being the shyest animal in the area. If panthers can be accommodated, then other threatened and endangered species and other wildlife are expected to use them. DOT studies of the effectiveness of wildlife crossings, with fencing, including crossings installed on Alligator Alley, establish that wildlife will use the crossings, both singly and in groups, and that the crossings substantially reduce, if not eliminate, automobile- related mortality of wildlife. Documented wildlife include panthers, wild turkeys, wading birds, alligators, deer, bobcats, black bears and raccoons. SECTION 403.918(2)(a)3, FLORIDA STATUES Section 403.918(2)(a)3, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling.” The replacement of the bascule bridge at Jewfish Creek with a 65-foot high fixed-height bridge will be a benefit to navigation. Because Jewfish Creek is part of the intracoastal waterway, the existing bridge has to be frequently raised or lowered to accommodate marine traffic. Because of the age of the existing structure, frequent breakdowns have been experienced. Marine traffic is stopped or delayed if the bridge cannot be raised or if there is a delay in raising the bridge. Vehicular traffic is stopped while the bridge is raised. Regarding the flow of water, the project incorporates wildlife box culverts and bridges, which will improve tidal flushing and the flow of water south of the C- 111 canal. The District considered this to be a positive consideration under the public interest test. The 25 hydrologic culverts north of the C-111 canal were also a positive factor in the test because the culverts provide future water management capability. Erosion and shoaling are neutral factors in the public interest test because the permit conditions contain a plan to control erosion and shoaling during construction and to provide for road stabilization after construction. In addition, there is a positive factor regarding shoaling in that the roadway area now has a lot of storm action, causing problems with erosion on the side of the road. The project provides for road stabilization, which is a neutral to positive factor in the public interest test. SECTION 403.918(2)(a)4, FLORIDA STATUTES Section 403.918(2)(a)4, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the fishing or recreational values or marine productivity of the project.” A positive factor pertaining to marine productivity is the box culverts and bridges south of C-111, which will allow marine species to travel beneath the road to access the water on both sides of the road. Removal of the causeway along Lake Surprise opens that water body back up to one contiguous system, which is also a positive factor. The seagrass mitigation addressed in previous sections will also improve marine productivity and provide habitat for fish. SECTION 403.918(2)(a)5, FLORIDA STATUTES Section 403.918(2)(a)5, Florida Statutes, requires the permitting agency to consider “[w]hether the project will be of a temporary or permanent nature.” The project is permanent, though some construction impacts are temporary in nature. Once temporary impacts have ended and the project is complete, the project will be a positive benefit, because of the construction of the SWM system, culverts, animal underpasses and other benefits as set forth above. SECTION 403.918(2)(a)6, FLORIDA STATUTES Section 403.918(2)(a)6, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061.” This factor is not at issue. SECTION 403.918(2)(a)7, FLORIDA STATUTES Section 403.918(2)(a)7, Florida Statutes, requires the permitting agency to consider “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity.” A percentage of wetlands immediately adjacent to the road are impacted by exotic vegetation. Areas further out are part of a significant wetland ecosystem and are considered high quality. This project contains an exotic control program within FDOT's right of way, which is a positive consideration in the public interest test. Wetlands are currently receiving untreated storm water, which runs off the road immediately into the adjacent wetlands and water bodies without treatment. The project will include a SWM system where none currently exists as is detailed in the previous sections. This is a positive factor in the public interest test. The direct impacts of the project on 149 acres of wetlands alongside the roadway is not as large or significant as the impact caused by placement of the original embankment and resulting cut off of the eastern and western portions of the Everglades north of the C-111 canal. Overall, the concurrent and upfront mitigation efforts of FDOT are of regional significance and benefit to Everglades ecosystem by helping to repair the damage caused by the original embankment. THE PROJECT IS CLEARLY IN THE PUBLIC INTEREST The District appropriately weighed all considerations in determining that the project is clearly in the public interest. The greater weight of the competent, credible evidence established that the project is clearly in the public interest. RIGHT OF WAY PERMIT APPLICATION The land encompassed by the ROW permit has been properly adopted as a "work" of the District, requiring District authorization via a ROW Permit Modification to FDOT. The District's real property interest in the C-111 ROW applicable to the ROW permit modification consists of both fee simple and easement interests. The evidence is clear that DOT's application for the permit modification was thoroughly reviewed by the District, consistent with the District's established ROW permit review process. The District presented uncontroverted evidence and expert testimony to establish by a preponderance of the evidence that issuance of the permit modification to FDOT is consistent with all applicable District statutes, rules and other criteria, including the District's conditions for issuance of ROW Permits set forth in Rule 40E-6.301, F.A.C. FBII offered no evidence or testimony to the contrary. FUTURE MODIFICATIONS Modifying the project at a later date to pave a second southbound lane would require a District ERP permit. The addition of impervious surface triggers the District's SWM jurisdiction in this regard. However, FDOT established that that it had no current plans for further widening. The permit conditions require secondary and cumulative impacts associated with the increased capacity be addressed in accordance with the rules and criteria in effect at the time of any application for future widening. In addition, the permits require that FDOT must comply with any more stringent water quality criteria in effect at the time of any future widening. MODIFICATIONS AT THE FINAL HEARING At the Final Hearing, the District issued an Addendum to Staff Report for each of the SWM and WRM permits. The amendments made non-substantive changes to the District's staff reports regarding fencing along the roadway, performance of a study of fencing on the roadway by FDOT, water quality sampling along the roadway, assignment of mitigation credits, and other technical changes in wording for purposes of clarification. The changes set forth in the District's Exhibits 5 and 6 do not create impacts to the environment beyond those addressed elsewhere herein.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order that issues the three permits challenged in this proceeding (SWM Permit No. 940606-10, WRM Permit No. 9460606-2-D, and ROW Permit No. 2584) subject to the conditions contained in the staff reports on the SWM permit application and the WRM permit application and subject to the additional permit conditions reflected by District Exhibits 5 and 6 and by the Findings of Fact pertaining to the permit for the relocation of the FKAA pipe. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Leon County, Florida. ___________________________________ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings 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 this 11th day of April, 1997.
The Issue The issue in this proceeding is whether four agency memoranda describing policy on mitigation for dredge and fill projects are unpromulgated rules and were relied on by the agency in violation of Section 120.535(1), F.S. During the hearing, and afterwards in writing, Petitioner sought leave to amend its pleadings to incorporate other policies allegedly relied on by the agency in the process of the dredge and fill application review. That request was denied in an order entered on August 23, 1993. Those policies are addressed in the recommended order in DOAH #93-3367.
Findings Of Fact Petitioner, SIP Properties Limited Partnership (SIP) is the record owner of the parcel at issue, approximately thirty-five (35) acres located in the southwest area of Orlando, Orange County, Florida. SIP proposes to prepare the site for commercial and office use by developing the site into separate parcels or lots with proposed uses such as restaurant or fast food establishments, offices and retail stores. Development of the site requires the construction of compensating storage ponds that will act as retention/detention ponds and filling the site. The proposed improvements will result in the filling of 7.47 acres and dredging of 0.42 acres of wetlands claimed to be jurisdictional by DEP. Based on statements made to SIP by staff regarding department "mitigation policies" applicable to SIP's dredge and fill permit application, SIP believed that department policy memoranda were applied during permit review. SIP attached these various memoranda regarding mitigation to its Petition for Administrative Determination of Violation of Rulemaking Requirement dated May 27, 1993, and identified these memoranda as nonrule policies utilized by the department. The department retains on file and makes available for use by its staff the identified memoranda. However, in this case the department did not rely on or apply the mitigation guidelines contained in the memoranda in SIP's Petition. Instead, it applied Part III of Chapter 17-3120, F.A.C. In Part III of Chapter 17-312, F.A.C., the agency has adopted rules addressing the mitigation issues contained in the memoranda in SIP's Petition. For example, the agency has adopted guidelines in rule 17-312.340(2), F.A.C., for applying ratios when mitigation involves creation of state waters, as in this case. The department presently relies on these rules when reviewing mitigation plans, and does not rely on the policy memos referenced in the petition. Determining the mitigation needed to successfully offset impacts from a project is difficult and depends on many factors, including hydrology, soils, planting methods, and monitoring plans. Determining what is needed to reasonably assure successful mitigation must be done on a case by case basis. Not enough is known about the subject to apply any particular set of directions and expect success. DEP is presently in the process of developing rules to further address most aspects of mitigation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection issue its Final Order granting SIP's dredge and fill permit #48-2086169, with the mitigation proposed by the applicant, and establishing an expiration date and monitoring and evaluation plan for determining success of the mitigation as provided in rules 17-312.320 and 17-312.350, F.A.C. DONE AND RECOMMENDED this 11th day of January, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 11th day of January, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings 1.-3. Adopted in paragraph 2. 4.-6. Adopted in paragraph 7. 7.-8. Rejected as unnecessary. 9. Adopted in paragraph 8. 10.-11. Adopted in substance in paragraph 9. 12. Adopted in substance in paragraph 10. 13.-16. Rejected as unnecessary Adopted in paragraphs 11 and 12. Rejected as unnecessary. 19.-21. Adopted in substance in paragraph 13. 22.-23. Adopted in substance in paragraph 14. 24.-25. Adopted in paragraph 15. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. Adopted in paragraph 16. Substantially rejected as contrary to the greater weight of evidence. Adopted in part in paragraph 17, otherwise rejected as immaterial. Rejected as immaterial. Adopted in paragraph 18. Rejected as immaterial. The agency witnesses established that the vegetation along the canal evidences the physical connection and there is evidence that water flows from the site into the canal. Rejected as unsubstantiated by reliable competent evidence. Adopted in substance in paragraph 22. 36.-40. Rejected as unsupported by reliable competent evidence. Rejected as immaterial. Rejected as unsupported by the weight of evidence. Rejected as unnecessary, and as to characterization of merely "relic" wetlands, unsupported by the weight of evidence. Rejected (the conclusion of jurisdictional limit) as unsupported by the greater weight of evidence. 45.-53. Rejected as immaterial or unnecessary. 54.-56. Adopted in paragraphs 33 and 34. 57. Adopted, as to the limited function, in paragraphs 22 and 23. 58. Adopted in paragraph 26. 59.-60. Adopted in paragraph 23. 61. Rejected, as to the absolute conclusion of "no function", as contrary to the greater weight of evidence. 62. Adopted in paragraph 25. 63.-64. Adopted in paragraph 26. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 34. Adopted in substance in paragraph 31. Adopted in substance in paragraphs 30 and 34. Adopted in paragraph 31. 71.-73. Adopted in paragraph 33. 74.-77. Rejected as unnecessary. 78.-79. Adopted in paragraph 31. 80.-81. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 33. 84.-90. Rejected as unnecessary. Respondent's Proposed Findings Adopted in paragraph 15. 2.-3. Adopted in paragraph 16. 4.-5. Adopted in paragraph 17. Adopted in paragraph 15. Adopted in paragraph 17. Adopted in paragraph 16. Rejected as unnecessary and as to "binding" effect, unsupported by the weight of evidence. Adopted in paragraph 19. 11.-15. Adopted in substance in paragraph 21. 16. Rejected as contrary to the weight of evidence and inconsistent with proposed findings #18 with regard to the constant level in the canal. 17.-18. Adopted in substance in paragraphs 21 and 23. 19.-21. Adopted in paragraphs 19 and 20. 22.-26. Adopted in summary in paragraph 21. Adopted in paragraph 27. Adopted in substance in paragraphs 1 and 2. Adopted in paragraph 2. Adopted in part in paragraph 16. That the forests are "healthy and viable" is rejected as unsupported by the weight of evidence. Adopted in substance in paragraph 17. Adopted in part in paragraph 25; otherwise rejected as contrary to the weight of evidence. 33.-34. Adopted in part in paragraph 27; otherwise rejected as contrary to the weight of evidence. 35.-37. Rejected as contrary to the weight of evidence. 38.-43. Rejected as unnecessary. 44. Rejected as contrary to the weight of evidence. The stormwater management plan and mitigation will restore the stormwater treatment functions. 45.-47. Adopted in substance in paragraph 30. Rejected as substantially contrary to the greater weight of evidence (as to the negative impact). Adopted in part, as to water quality problems generally, but rejected as to the ultimate conclusion, as contrary to the greater weight of evidence. Rejected as unnecessary. 51.-52. Adopted in summary in paragraph 31. 53.-54. Rejected as cumulative and unnecessary. 55. Rejected as contrary to the greater weight of evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ronald M. Schirtzer, Esquire Martha H. Formella, Esquire R. Duke Woodson, Esquire FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 Douglas H. MacLaughlin, Esquire John L. Chaves, Esquire Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property"). A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the 24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District, enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For Agriculture Or Forestry General Surfacewater Management Permit. DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida. DANIEL S. MANRY 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 2nd day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656 Petitioners' Proposed Findings Of Fact. 1.-4. Rejected as immaterial 5. Rejected as recited testimony 6.-7. Rejected as not supported by credible and persuasive evidence 8. Rejected as irrelevant and immaterial 9.-13. Rejected as not supported by credible and persuasive evidence 14.-15. Rejected as irrelevant and immaterial 16.-19. Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as recited testimony 23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact. Respondent, Bridges, did not submit proposed findings of fact. Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance. COPIES FURNISHED: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E Trenton, FL 32693 Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693 Janice F. Bessinger, Esquire Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029 Lake City, FL 32056-1029 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, FL 32060
