The Issue The issue is whether an amendment to Conservation Element policy 6.11.3(3) adopted by Respondent, Bay County (County), by Ordinance No. 09-36 on October 20, 2009, is in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. RMA is a non-profit association with approximately 100 members whose mission is "to ensure that future growth [in the County] is properly managed to maintain the quality and productivity of the local estuarine system." See Petitioners' Ex. 6. The parties have stipulated to the facts necessary to establish that RMA is an affected person. The County is a local government that administers its Comprehensive Plan (Plan). The County adopted the Ordinance that approved the text amendment being challenged here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. History and Purpose of the Amendment The County adopted its current Plan in December 1999. Section 163.3191(1), Florida Statutes, requires that every seven years each local government adopt an EAR to "respond to changes in state, regional, and local policies on planning and growth management and changing conditions and trends, to ensure effective intergovernmental coordination, and to identify major issues regarding the community's achievement of its goals." In the spring of 2006, the County began the process of preparing an EAR. On October 17, 2006, it submitted an EAR and Supplement to the Department. On December 21, 2007, the Department found the EAR and Supplement to be sufficient pursuant to section 163.3191(2). See County Ex. 7. After approval of the EAR, section 163.3191(10) requires that the local government "amend its comprehensive plan based on the recommendations in the report." Item 15 in the Recommended Changes portion of the EAR recommended that the Conservation Element be amended in the following respect: "The wetland and surface water buffer requirements should be restructured to recognize site-specific conditions such that pristine systems are afforded greater protection than impacted systems." Petitioners' Ex. 35. A similar recommendation is found in the Issues section of the EAR. Id. To implement these recommendations, the County added a second sentence to subsection (3) of Conservation Element policy 6.11.3. As amended, the subsection now reads as follows: (3) Wetland setbacks will be required as specified in Policy 6.7.4 for development on lots or parcels created after the effective date of this policy. Alternate project design and construction may be permitted in lieu of a required buffer when it can be demonstrated that such alternate design provides equal or greater protections to the wetland or its habitat value. On April 16, 2009, the Local Planning Agency conducted a public hearing and recommended approval of the EAR-based amendments. On May 19, 2009, the Board of County Commissioners (Board) voted to transmit the EAR-based amendments to the Department for its review and comments. On July 31, 2009, the Department issued its Objections, Recommendations, and Comments Report. On October 20, 2009, the Board enacted Ordinance No. 09-36, which adopted the EAR-based amendments, including the amendment to policy 6.11.3(3). See County Ex. 2. On December 15, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See County Ex. 8. Notice of this action was published in the Panama City News-Herald on December 16, 2009. See County Ex. 9. Although section 163.3177(6)(d) requires that the conservation element in a comprehensive plan protect wetlands, nothing in chapter 163 or Department rules requires a local government to adopt buffers. Even so, a 30-foot buffer has been in place since the County adopted its first Plan in 1990. Before it was amended, policy 6.11.3(3) provided that "[w]etland setbacks will be required as specified in Policy 6.7.4 for development on lots or parcels created after the effective date of this policy." Thus, it incorporated by reference the buffer zone requirements established in subsection (6) of policy 6.7.4. That provision reads as follows: (6) No building or structure can be located closer than thirty (30) feet from any DEP wetland jurisdiction line, mean high water line, or ordinary high water line except for piers, docks or similar structures and an attendant ten (10) foot wide cleared path through the wetland for purposes of providing access to such structure, or wet- land crossings required to connect dry, upland parcels. All native vegetation, if any exists, will be preserved within the 30- foot setback area. This requirement, including possible alternatives, may be further addressed in the Land Use Code. In short, this provision (a) requires a 30-foot buffer setback area between structures and DEP jurisdictional wetlands and mean or high water lines; (b) requires the preservation of native vegetation in the setback area; and (c) authorizes a 10-foot wide area to be cleared across the setback area to access the water or a dock. However, pursuant to provisions addressed in the Land Use Code (now renamed the Land Development Regulations (LDRs)), alternative project design and construction may be used in lieu of the required buffers. Except for changing the words "Land Use Code" to "Land Development Regulations," policy 6.7.4(6) was not amended in the EAR process. Therefore, all of its requirements remain in place. To address other "alternatives" to the buffer requirements, in September 2004 the County amended section 1909.3.h of the LDRs to allow alternative project design and construction "in lieu of the required buffer when it can be demonstrated that such alternative method provides protection to the wetland or its habitat value that is equal or greater than the vegetated buffer." Petitioners' Ex. 14, p. 19-11. This regulation authorizes the County Planning Commission, on a case- by-case basis through the site plan and variance process, and subject to final approval by the Board, to reduce the 30-foot buffer provided that the reduced buffer is mitigated based upon site-specific circumstances. The processing of these requests has provided the County with experience in approving buffer modifications through the use of alternative methods that provide "equal or greater" environmental benefits. A small number of variances have been authorized by the County under this process since the adoption of the regulation. See County Ex. 10 and 11; Petitioners' Ex. 15-18. In those cases, the County has granted a variance where, for example, the applicant has chosen to cluster wetland access points, elevate walkways in the buffer, enhance the buffer with vegetation or turf, reduce existing stormwater impacts, use swales, or employ other required mitigation to offset the reduction in the buffer. On the other hand, "numerous" other property owners were advised that, absent "special circumstances," a variance would not be granted because the applicant could not demonstrate that there would be an enhanced environmental benefit by reducing the buffer. Under current Plan provisions, a variance is the only way to modify the buffer requirement. The amendment does not eliminate the minimum 30-foot buffer required by policy 6.7.4(6). See Finding of Fact 10, supra. It does, however, provide the County with greater flexibility in approving requests to modify the required buffers and to consider factors that the current Plan does not address. Even though the function and value of wetlands may vary widely, the current Plan makes no distinction between pristine or impacted wetlands, and it does not allow the County to require a larger buffer for a pristine wetland. Under the new policy, the County may establish buffers based on site-specific conditions that consider factors such as location, wetland quality, surrounding land uses, site habitat, and the presence or absence of listed species. This will enable the County, through alternative design and construction techniques, to preserve higher quality wetlands or vegetation with larger buffers while at the same time reducing the buffer size for impacted wetlands in return for mitigation by the owner. The County will also have the flexibility to establish buffers in non-urban settings based on factors other than just erosion potential. The specific process for approving changes in buffer setbacks under the new policy will be established in the LDRs. However, all LDRs must meet the standard in the policy that the alternative design provides "equal or greater protection to the wetland or its habitat value." Under the process envisioned by the County, when a request is made for a buffer reduction under the new policy, the County will require that an analysis be performed by a qualified professional to justify the need for a buffer reduction. If no alternative to a buffer reduction exists, the owner will be required to have a biotic study prepared indicating the extent to which the encroachment would occur, along with justification for the encroachment. Assuming that justification can be shown, the County will then require some form of mitigation by the owner. The effectiveness of the new policy will be monitored, evaluated, and appraised through the use of geographical information system overlay maps. Finally, members of the public, including Petitioners, will be given access to the process through existing notice requirements for development orders. Petitioners' Objections Petitioners contend that policy 6.11.3(3) is internally inconsistent with Conservation Element objectives 6.7 and 6.11; that it is inconsistent with sections 163.3177(6)(d), (8), and (9)(b), 163.3191(10), and 187.201(9); and that it is inconsistent with Florida Administrative Code rules 9J-5.005(2) and (5) and 9J-5.013(1). The essence of the arguments is that the new policy decreases protection for wetlands, that it conflicts with the specific recommendations in the EAR, and that buffers should be based on studies pertaining to wetland setbacks rather than alternative design and construction. To prevail on these contentions, Petitioners must show that even if there is evidence supporting the propriety of the amendment, no reasonable person would agree that the amendment is in compliance. See Conclusion of Law 28, infra. Data and analysis Petitioners contend that the amendment is not supported by adequate and appropriate data and analysis, that the County did not react appropriately to the data and analyses in the EAR, and that the amendment is therefore inconsistent with rules 9J-5.005(2) and 9J-5.013(1) and section 163.3177(8). The data and analysis in the EAR and Supplement, including the Deer Point Reservoir Hydrologic Study, are incorporated by reference into the Plan. See County Ex. 1, Ch. 1, policy 1.1.4.4. As recommended by the EAR, the County reviewed current published scientific literature relating to wetland and surface water buffers. It also conducted a survey of buffer regulations and setbacks in various jurisdictions in the County and throughout the State. As summarized in the EAR, the data and analysis describe the limitations of wetland buffers, including the existing 30-foot buffer; however, they do not suggest that a larger buffer is necessary. Rather, they support the necessity for flexibility in the application of the existing buffer in order to provide equal or greater protection to pristine wetlands, which is the purpose of the new amendment. Petitioners contend that based on current published literature, the County should have reacted to the data and analysis by adopting a series of specific buffer distances up to 300 meters, depending on the type of habitat and wildlife around the wetlands and streams. While the establishment of larger wetland buffers in the Plan is possible, they are not required by state law or Department rules, and section 163.3184(6)(c) provides that a local government does not have to duplicate or exceed a state agency's permitting program. It is at least fairly debatable that the County reacted to the data and analysis in an appropriate manner by adopting a policy that requires that any request for a deviation from the minimum 30-foot buffer be accompanied by a demonstration that the alternative design will provide at least equal or greater protection to wetlands and their habitat values. Internal Inconsistency with Conservation Element Petitioners next contend that policy 6.11.3(3) violates section 163.3177(9)(b) and rule 9J-5.005(5) because it is internally inconsistent with objectives 6.7 and 6.11. The two objectives were not amended during the EAR process. Petitioners contend that the new policy is internally inconsistent with objective 6.7, which requires that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." Petitioners' evidence does not establish beyond fair debate that the new policy is internally inconsistent with this objective. Petitioners also contend that the policy is internally inconsistent with objective 6.11, which requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." Wetlands vary widely in function and value, and the current one-size-fits-all standard does not adequately address the different values and functions. The new policy provides the County with the flexibility to consider numerous site-specific factors and, when warranted, to establish buffers that vary from the 30-foot standard. The evidence shows that the new policy can also assist with the restoration of degraded natural systems to a functional condition. It is at least fairly debatable that the new policy protects and conserves wetlands and their natural functions. Similarly, the policy does not conflict with rule 9J-5.013 and section 187.201(9), which require or encourage that wetlands and other natural functions of wetlands be preserved, as alleged by Petitioners. Consistency with section 163.3191(10) Petitioners contend that the new policy is inconsistent with section 163.3191(10) because the County failed to "amend its comprehensive plan based on the recommendations in the [EAR] report." As a part of this argument, they also assert that, contrary to recommendations in the EAR, the new policy does not give adequate direction for the LDRs; that it contains none of the recommended site-specific criteria needed to evaluate the alternative design; that it fails to include a defined setback size; and that it does not allow the County to increase the size of a buffer. These arguments are based upon item 15 of the Recommended Changes portion of the EAR, which recommends that the County "restructure" the wetland and surface water buffer requirements "to recognize site-specific conditions such that pristine systems are afforded greater protection than impacted systems." Petitioners' Ex. 35. The new policy does not eliminate the 30-foot buffer. See policy 6.7.4(6)("no building or structure can be located closer than thirty (30) feet from any DEP wetland jurisdiction line, mean high water line, or ordinary high water line"). While the policy allows the required buffer to be modified, an applicant must first demonstrate that the alternative design provides equal or greater protection to the wetland or its habitat value. The policy also provides direction for implementing LDRs by requiring that any adopted LDR adhere to the above standard. Notably, through alternative design, the County may require larger buffers for pristine wetlands, while reducing the buffers for those of lower quality in return for mitigation. This is consistent with the EAR recommendation that the County afford pristine systems greater protection than impacted systems. Petitioners further point out that the new policy is flawed because it does not include every site-specific condition mentioned in the EAR. However, there is no requirement for this level of detail in the Plan, so long as the policy achieves the overall recommendation in the EAR, and it provides adequate standards for implementing LDRs. It is at least fairly debatable that the amendment complies with the requirements of the statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendment to policy 6.11.3(3) adopted by the County by Ordinance No. 09-36 is in compliance. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S 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 31st day of May, 2011. COPIES FURNISHED: William A. Buzzett, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Deborah K. Kearney, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Diane C. Brown 241 Twin Lakes Drive Laguna Beach, Florida 32413-1413 Alfred E. Beauchemin 705 Beachcomber Drive Lynn Haven, Florida 32444-3419 Lynette Noor, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Terrell K. Arline, Esquire Bay County Attorney 840 West 11th Street Panama City, Florida 32401-2336
The Issue The ultimate issue in this case is whether the South Florida Water Management District (SFWMD) should grant Environmental Resource Permit (ERP) Application No. 970509-10 for conceptual approval of a surface water management system serving a 167.9-acre commercial development in Broward County known as Pembroke Center and issue ERP No. 0600095-S-15 (Permit) to Arthur D. Weiss, Trustee (Weiss). The primary contested sub-issues involve the extent of use of offsite mitigation of the project's wetlands impacts through purchase of credits purchased from Florida Power and Light Company (FPL's) Everglades Mitigation Bank (EMB) 40 miles away in southern Dade County.
Findings Of Fact Some General Background on the Weiss Site The Weiss project site, which includes wetlands and open-water ditches, is located immediately east of Interstate Highway 75 in Broward County, south of Pines Boulevard, and north of the planned Pembroke Road fly-over of I-75. Before the drainage projects of the twentieth century, the Weiss site was a part of the Everglades having “ridge and slough" characteristics. The Atlantic Coastal Ridge extends along Florida's East Coast from Palm Beach County through Miami at a distance of some ten miles or so inland, then continues in a southwesterly direction, and ends in the vicinity of Homestead and Florida City. Before significant development of south Florida, the ridge acted as a dam to surface water flow, containing most of the interior waters of the Everglades. Lower elevations of the ridge, referred to as the “Transverse Glades,” allowed limited surface water to flow to the Atlantic Ocean, creating a southeasterly flow within the eastern portion of the Everglades. The "ridge and slough" provided a complex community structure, varying from the longest hydroperiod wetlands in the deepest sloughs to interspersed tree islands which provided habitat at or above the seasonal high water levels. In the deeper slough areas, vegetation would be predominantly floating and submerged. The deeper slough areas served to preserve aquatic organisms during periods of drought, allowing fish and other aquatic organisms to return to areas as they were re-hydrated. Progressing up the edges toward the ridge area, there would be emergent plants, such as Pontederia or pickerelweed, as well as some sawgrass. The ridges in the ridge and slough communities were primarily sawgrass. Before development, much of the ridge and slough communities was characterized by relatively long hydroperiods. Peat soils accumulated because the long hydroperiod inhibited aerobic respiration, resulting in an accumulation of partially decomposed organic matter/peat soils. Due to the peat soils, the sawgrass in the ridge and slough communities was relatively tall, thick, and lush. As drainage canals were constructed through these low-lying areas, the rate of drainage to the Atlantic Ocean increased, and the water regime changed. The South Broward Drainage District (SBDD) S-3 Basin was issued SFWMD Permit No. 06-00095-S on February 10, 1977, to construct a regional water management system to serve 5,500 acres of agricultural, recreational, residential, and undeveloped lands. SBDD's S-3 Basin includes an internal canal system and two 45,000 gallons per minute pumps discharging into C-9 canal. Both SFWMD's Western C-9 Basin and the Weiss site are within SBDD's S-3 Basin. An east-west SBDD canal approximately bisects the Weiss site. Also receiving water from Century Village, a development of some 9,000 town homes and condominiums, this canal leads to the SBDD's main north-south canal, which leads to the pump station approximately four miles to the south, which drains the entire S-3. East of the Weiss site has become very urbanized, with a nursery, a small office building, warehouses, shopping centers, Century Village, and the City of Miramar Sewage Treatment Plant. The land to the south of the site is undeveloped but is designated and zoned planned industrial. The Weiss project site subject to this permit proceeding is part of a larger Weiss parcel that received a permit in 1988 for construction and operation of a 375-acre cattle ranch. As a result of that permit, ditches and dikes were constructed to interconnect with the backbone surface water management system operated by the SBDD. The Weiss site now consists of these previous agricultural drainage ditches and flood control canals. The onsite wetlands have been degraded by drainage by these ditches and canals, by being actively mowed for cattle pasture, and by invasion of melaleuca, an undesirable invasive exotic species which dominates in the areas not regularly mowed for cattle pasture. Modification Application On May 9, 1997, R.J. Pines Corporation, on behalf of Weiss, submitted Application No. 970509-10 for modification of Permit No. 06-00095-S, to construct a surface water management system to serve 213 acres of residential and commercial development. SFWMD submitted Requests for Additional Information (RAIs) on June 6, 1997, February 6, 1998, February 27, 1998, May 1, 1998, April 15, 1999, June 16, 1999, April 14, 2000, August 24, 2000, October 6, 2000, and February 22, 2001. Responses to the RAI's were received on January 29, 1998, March 30, 1998, April 1, 1998, March 17, 1999, May 13, 1999, May 14, 1999, May 18, 1999, July 28, 2000, September 7, 2000, January 18, 2001, and March 2, 2001. During approximately four years of application review (including RAIs and responses), changes were made to the original application. The overall size of the project was decreased, and various mitigation options were explored. From early on in the process, offsite mitigation was proposed. Various possibilities for offsite mitigation were explored. Some were within SFWMD's Western C-9 Basin; others were outside but relatively close to the Western C-9 Basin. One 86-acre parcel within the Western C-9 Basin known as the "Capeletti" parcel was rejected for having a less-than-ideal operational entity (as well as for being costly); yet, the majority of the Capeletti parcel has been sold to private parties for mitigation projects, and 14 acres remain available for purchase for mitigation. Eventually, all offsite mitigation possibilities were rejected for various reasons except for one--FPL's Everglades Mitigation Bank (EMB), 40 miles to the south in southern Dade County. Ultimately, Weiss decided to purchase wetlands mitigation credits at the EMB for use as offsite mitigation. Different combinations of onsite mitigation and EMB credits were then proposed and considered. At the conclusion of this phase of the application process, the total size of the proposed project was reduced to 167.9 acres. Of the total project, approximately 149 acres were jurisdictional wetlands; the rest was open water ditches and canals. Ultimately, Weiss proposed to preserve and enhance 24.4 acres onsite as partial mitigation; the balance of the proposed mitigation consisted of 50.25 wetlands credits at FPL's EMB, which Weiss agreed to purchase from FPL. On April 25, 2001, SFWMD issued a notice of intent to issue the Staff Report recommending conceptual approval of the ultimately proposed surface water management system to serve the 167.9 acre commercial development known as Pembroke Center, Application No. 970509-10, ERP Permit No. 06-00095-S- 15. Existing Onsite Wetlands There are three classes of wetlands at the Weiss project site: sawgrass prairie; marsh wetlands; and remnant tree islands. The dominant wetland type is the sawgrass prairie. Sawgrass dominates in these areas, but some other wetland species like sedges and rushes and other grasses are mixed in. Marsh wetlands occur in places where elevations are somewhat (just inches) lower. Here are found wetland marsh species such as pickerelweed, duck potato and possibly spike rush (Eleocharis species). Small bay trees exist on the remnant tree islands, as well as wax myrtle. The soils on the Weiss site have retained their hydric characteristics; muck soils exist throughout the site. The soils have enough muck to stay saturated and allow wetland vegetation to grow on the site. But the site has been impacted by drainage and use as a cattle pasture. The vegetation is impacted to varying degrees by cattle grazing. The more highly-disturbed portions of the site, such as those adjacent to ditches, contain dense stands of melaleuca. Were it not for grazing and regular mowing, melaleuca would spread and probably out-compete the wetland vegetation. While it once had a long hydroperiod, the Weiss property's hydroperiod is currently diminished. The depth of the hydroperiod has been most significantly altered by the pump stations operated by SBDD. Today, the depth and duration of the hydroperiod on the Weiss site has been diminished. Proposed Onsite Mitigation Weiss's proposed onsite mitigation consists of preservation and enhancement of 24.4 acres of wetlands. Muck and peat topsoil will be removed, lower soils will be excavated to achieve optimal elevations, and the topsoil will be replaced. By generally lowering elevations, a regular and deeper hydroperiod will be achieved; by choosing different elevations, different types of wetland habitats (cypress stands, marsh, and tree islands) will be produced; by replacing the topsoil, wetland plant species will be able to grow and thrive in the mitigation area. Exotic plants will be removed and minimized through ongoing management of the mitigation area. Water quality will improve when the cows are removed. EMB The EMB is a 13,455-acre wetland preservation, enhancement and restoration project consisting of herbaceous freshwater wetlands with tree islands, saltwater marsh with tree islands, mangrove wetlands with tree islands, and riverine depressional ecological communities. The EMB was undertaken to provide mitigation to offset adverse impacts to wetlands and other surface waters, and is being undertaken in phases. Phase I of the EMB consists of 4,212 acres of the overall project. FPL’s EMB has been permitted under Section 373.4136, Florida Statutes, with a mitigation service area for non- linear projects covering Miami-Dade, Broward, and the southern portion of Palm Beach County south of Southern Boulevard. The Florida Department of Environmental Protection (DEP) issued permits numbered 132622449 and 132637449 in 1996 authorizing the establishment, construction, and operation of the EMB. The U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, and U.S. Fish and Wildlife Service issued a mitigation banking instrument authorizing the establishment, construction, and operation of the EMB in 1998. The U.S. Army Corps of Engineers also issued Permit No. 199500155(IP-GS) authorizing the EMB. The EMB is in full compliance with these state and federal permits and the federal mitigation banking instrument. The EMB has 50.25 mitigation credits available on its mitigation bank ledger to be used to offset wetland impacts on the Weiss property. The 50.25 credits equate to approximately 500 acres of EMB sawgrass, marsh, and tree islands. The EMB Phase 1 is part of the marl prairie of the Southeastern Saline Everglades. The characteristics of Phase 1 of the EMB have not changed substantially from its historic condition. (The EMB's original hydroperiod would have been somewhat longer, but efforts are being made to lengthen the hydroperiod as part of the EMB mitigation project.) The EMB Phase 1 is characterized by sawgrass- dominated marl soils, interspersed with depressional areas where peat soils typically occur. Plants in the marl areas are dominated primarily by sawgrass that is relatively short and sparse compared to a "ridge and slough" area, with other emergent and occasional floating plants in low ponded areas, and thicker sawgrass and tree islands in the areas of peat soils in low areas. The predominance of marl in the EMB results from a historical hydroperiod (generally between one and a half and five months) that is shorter than in a "ridge and slough." The shorter hydroperiod prevents the formation of peat soils through exposure to the air, allowing bacteria to break down the organic matter that is typical of peat soils. Marl forms on the soil when photosynthesis of algae during daylight hours pulls carbon dioxide out of the water and raises the water's pH to the point where calcium carbonate starts to come out of solution. Compared to the structurally more complex peat-based wetland community of the "ridge and slough," the marl prairie of the EMB Phase 1 is a relatively simple community. The ridge and slough community's areas of deep water, marshes, and uplands supported a variety of aquatic organisms and wildlife in a manner that is distinct from that provided in the marl prairie of the EMB Phase 1. Marl prairie is not as conducive to rookeries as ridge and slough communities because the tree islands in marl prairies afford less protection from predation than is characteristic of the ridge and slough communities. Despite these differences, the wetlands in the EMB are similar in many ways to the historic wetlands on the Weiss property. In addition, due to its size and location in relation to other undeveloped land, the EMB retains characteristics that appear to have been lost to the Weiss property, which is relatively isolated by surrounding development and urbanization. The EMB is surrounded by public lands acquired for conservation and preservation including the Biscayne National Park, Everglades National Park, and the District's Southern Glades property. The EMB provides valuable habitat for a number of threatened or endangered species. The EMB also provides foraging, resting, and roosting opportunities for numerous wading birds including little blue herons, snowy egrets, white ibis, great blue herons, and great egrets. Because of the way it provides base flow and detrital export to Biscayne Bay, its connection and relationship to surrounding publicly-owned lands, and its integration into the Everglades Restoration Project, the EMB significantly contributes to a regional integrated ecological network. For example, the EMB can assist other key resources such as the Everglades National Park and provide habitat to some larger top-order consumers that historically also would have used the Weiss property--such as deer, bobcats, panthers, and even bear--something onsite mitigation cannot do. Application of SFWMD Policies and Interpretations Wetland protection is one of three major components of the ERP Program. The intent of the wetlands protection criteria in the ERP Program is to ensure no net loss of wetland function. In other words, SFWMD determines what functions are provided by the wetlands to be developed, which wetland-dependent wildlife benefits from those functions; then taking any proposed mitigation into consideration, SFWMD attempts to ensure that those functions are not diminished. Reduction and Elimination of Wetlands Impacts SFWMD's BOR 4.2.1. provides that design modifications to reduce or eliminate adverse impacts must be explored. After implementation of practicable design modifications, any adverse impacts must be offset by mitigation. In this case, Weiss ultimately proposed to preserve and enhance 24.4 acres of onsite wetlands. This was a modification of earlier proposals for 11 acres of onsite mitigation and then for all offsite mitigation. The evidence did not prove that there were no other practicable design modifications to reduce impacts to wetland functions. However, SFWMD does not necessarily require that all wetland impacts be reduced or eliminated when wetlands are of low quality and the proposed mitigation will provide greater long-term ecological value than the area of wetland to be adversely affected. See BOR 4.2.1.2(a). BOR 4.2.2.3 balances five factors to determine the functional value of wetlands: condition; hydrologic connection; uniqueness; location; and fish and wildlife utilization. The condition of the Weiss site's wetlands is low because past alterations in hydrology have been deleterious. Due to the ditches and canals, not much water quality treatment of the site's runoff occurs onsite. In addition, the Weiss site contains exotic vegetation, which would overrun the wetlands without regular mowing. Even the County's experts agree that the condition is at the high end of low. In evaluating hydrologic connection, SFWMD considers the following parameters: (1) benefits to offsite water resources through detrital export; (2) base flow maintenance; (3) water quality enhancement; and (4) nursery habitat. The Weiss property does not have much opportunity for detrital export, as it is not a saltwater system. The site does not maintain base flow, which is controlled by SBDD's pump station. Since little onsite water quality treatment occurs, neither onsite nor offsite water quality is enhanced; to the contrary, use of the wetlands as cow pasture would tend to reduce water quality both onsite and offsite. (Much greater reductions would be expected if the property were being used as a feed lot instead of for pasture.) There is not much opportunity for nursery habitat. In consideration of these parameters, the hydrologic connection is at least low; and some of the parameters are negative. The County contends that the ditches and canals on the Weiss site provide nursery habitat and serve as refugia for aquatic species in times of drought. However, the ditches and canals themselves are not jurisdictional wetlands. There are some depressions in the wetlands that might stay wet during some drought conditions, but the evidence did not suggest that these areas would serve as significant nursery habitat or refugia. SFWMD measures the uniqueness of wetlands by determining whether the wetland type is underrepresented in the basin or watershed--in other words, the relative rarity of the wetlands. The Weiss wetlands are not unique because drained wetlands converted to a cow pasture are not underrepresented in Broward County. While noting that cow pasture is decreasing in Broward County, even the County's expert agreed that the Weiss wetlands are not unique. As the County points out, the Weiss wetlands have some opportunity to interact with the other water resources in this basin, particularly the other mitigation sites. The County owns conservation easements on mitigation sites in the vicinity and has attempted to work with SFWMD and developers to group mitigation projects near each other to achieve greater benefits. Nonetheless, the opportunity for interaction is limited due to the surrounding development, which includes Interstate Highway 75 and other barriers to land animals. As a result, the parties agree that the location is in the low-to-moderate range. Fish and wildlife utilization of the Weiss wetlands is low. A wetland typically provides the following functions or benefits to wildlife: resting; feeding; breeding; and nesting or denning, particularly by listed species. Due to reduced hydrology and the presence of exotic species, the Weiss wetlands cannot provide this entire suite of functions; instead, it only provides resting and limited foraging for wading birds. SFWMD's determination as to fish and wildlife utilization of the site was based on personal site visits by SFWMD staff and in-house knowledge of the Western C-9 Basin. During the site visits, wading birds were not seen foraging onsite, and there was little evidence of successful foraging or actual use of the Weiss site by wading birds. Even if wading birds attempted to use the site for foraging and were successful to an extent, no witnesses testified to abundant food sources. Most saw no crayfish, a good food source, or any signs of crayfish, such as "chimneys" of tunnels leading into the water table. Several witnesses questioned whether there was enough relatively soft soil over many portions of the site to allow for tunnels into the water table. One Broward County witness testified to seeing limited evidence of crayfish at the site. But overall the evidence was persuasive that the site probably does not have enough food to make it worthwhile foraging for large numbers of birds. Ironically, most foraging on the site would be expected to occur in ditches not actually part of the jurisdictional wetlands. The evidence suggested that relatively little foraging would be expected to occur in the wetlands themselves. In addition, the wetlands would be less suitable for foraging if the cattle pastures were not grazed and mowed on a regular basis. Broward County criticizes SFWMD for not conducting lengthy wildlife surveys and for not visiting the site during the dry season when wading birds might be more likely to use the site for foraging. But SFWMD's review for fish and wildlife utilization on the Weiss site was consistent with the customary review conducted in nearly all ERP applications. A wildlife survey was not necessary to analyze the fish and wildlife utilization of the Weiss wetlands. It should be noted that SFWMD does not use the Wetland Rapid Assessment Procedure (WRAP), the Wetland Benefit Index (WBI), or the Wetland Quality Index (WQI) indices to determine the functional value of wetlands. There was some evidence that the overall quality of the Weiss wetlands could have been rated as high as moderate using some of these methods. But these methods do not necessarily attempt to make the same determination required under BOR 4.2.2.3. In addition, while these methods purport to objectively quantify wetlands evaluations, the evidence was that they are not easily understood or uniformly applied; as a result, they do not eliminate subjectivity and possible manipulation. Giving deference to SFWMD's interpretation of the parameters of BOR 4.2.2.3, it is found that SFWMD correctly assessed the function of the Weiss wetlands as being low. The proposed onsite mitigation clearly would improve the ecological value of the currently low-functioning wetlands on those 24.4 acres. In particular, better foraging opportunities for wading birds as well as other wetland- dependent species will be made available there for a greater portion of the year. However, the evidence also was clear that preservation and enhancement of the 24.4 acres would not replace the wetland function of the entire 149 acres of impacted wetlands. The proposed offsite mitigation through purchase of 50.25 credits at the EMB will be an additional improvement in ecological value over the existing wetlands on the Weiss site. The EMB is managed for exotic species control, has a greater opportunity for wildlife utilization, and has offsite hydrologic connections, both in receiving waters and downstream. Taken together, the proposed onsite and offsite mitigation would be an improvement in ecological value from the current, low-functioning wetlands on the Weiss site. Offsite Mitigation Provides Greater Improvement In Long-Term Ecological Value Than Onsite Mitigation (BOR 4.3.1.2) Due to its location, size, and prospects of effective long-term management, mitigation at the EMB probably has higher likelihood of success than mitigation on the Weiss site. But the evidence was clear that onsite mitigation also has good likelihood of success, comparable to mitigation at the EMB. Onsite mitigation will provide better forage habitat for some of the wading birds than the Weiss wetlands do today, but it is limited by size and location and will never be able to provide all of the functions that the Weiss wetland provided historically. It will provide some forage habitat for wading birds, but not for some of the larger consumers that historically used the site, such as deer, bobcats, panther and bear. No matter how perfect onsite mitigation is, its function still is limited. By comparison, mitigation at the EMB has greater opportunity for improvement and ecological value than mitigation at the Weiss site. The EMB is connected to other water resources, and it is not limited by lack of size or location. For this reason, the purchase of 50.25 credits at EMB has an opportunity to result in greater improvement in ecological value than just onsite mitigation. Unacceptable Cumulative Impacts (BOR 4.2.8) In this case, Robert Robbins conducted SFWMD's cumulative impacts analysis; Weiss and FPL relied on Robbins's analysis. In conducting his analysis, Robbins relied on his knowledge of the Western C-9 Basin, his staff's knowledge of the Basin, aerial pictures of the Western C-9 Basin, and County Exhibits 97 and 98. Robbins also interpreted and applied SFWMD's statutes, rules, and BOR 4.2.8. His interpretations were guided by the "Cumulative Impacts White Paper" ("White Paper"), a memorandum authored by representatives of Florida’s Water Management Districts, including Robbins. Since other rules and regulations require that all wetland impacts be fully mitigated, the cumulative impact analysis only applies when an applicant proposes mitigation outside of a drainage basin. In the context of impacts to wetland functions, SFWMD's cumulative impacts analysis presumes that a particular basin (in this case the Western C-9 Basin) can only tolerate so much loss of wetland function before there is a significant adverse impact on the basin overall; if cumulative impacts reach that point, they are considered unacceptable. The "White Paper" analogizes such a cumulative impact to "the straw that breaks the camel's back." If cumulative impacts of a proposed project would be unacceptable, they would have to be reduced so that impacts would be equitably distributed among the applicant and prospective developers, and there would not be a significant adverse or unacceptable cumulative impact when the basin is fully developed. The cumulative impact analysis presumes that development will continue to the extent that land use and planning and zoning allow such development to continue. It also presumes that how SFWMD permits a development today will set the precedent for like applicants in the future. SFWMD's cumulative impacts analysis does not focus on how much wetland acreage is leaving the basin; rather, it is concerned with the wetland functions that are being lost. In this case, the only functions being lost at the Weiss site are opportunities for resting and limited foraging for wading birds. Neither the statutes, rules, BOR 4.2.8., nor the White Paper further defines unacceptable or significant adverse cumulative impact on wetland functions. Robbins interpreted the terms in the context of this case as being a cumulative impact that would place the wading bird population in a basin in jeopardy of collapse. Collapse would occur when the population no longer is sustainable. Collapse could lead to extirpation of the population from the Basin. In this case, 124.9 acres of low-functioning wetlands will be impacted, and 24.4 acres of higher- functioning mitigation will remain in the basin. The evidence was that the 24.4 of higher-functioning mitigation onsite would not offset all of the feeding and resting functions lost to the Western C-9 Basin by 124.9 acres of impacts. But Robbins expressed the opinion that there would not be a significant adverse impact to the wading bird population which relies on the feeding and resting functions within the Western C-9 Basin if the relatively few remaining wetlands in the Western C-9 Basin are developed in a fashion similar to the Weiss proposal because the wading bird population that utilizes the basin would not be placed in jeopardy. However, the evidence was clear that Robbins viewed 25% in-basin mitigation as the minimum required to avoid unacceptable cumulative impacts and that Robbins based his opinion on an assumption that, under Weiss's mitigation proposal, 25% of the total wetland mitigation required to offset impacts to wetland functions would remain within the Western C-9 Basin. But the evidence also is clear that Robbins's assumption was incorrect. Robbins began to explain his assumption by referencing an earlier proposal by Weiss to mitigate entirely offsite through purchase of 67 credits at the EMB. Robbins testified that he accepted 67 EMB credits as enough to offset wetland impacts. However, in applying his cumulative impacts analysis, Robbins rejected the proposal for all mitigation to be offsite at the EMB; instead, Robbins and SFWMD decided to let Weiss use 75% of the 67 EMB credits but required the balance of the "credit-equivalents" of mitigation to occur onsite. Eventually, Weiss made the proposal eventually accepted by Robbins and SFWMD: 149 acres of impact; 24.4 acres of mitigation onsite; and 50.25 credits of mitigation at the EMB. In further explanation, Robbins later responded to the following questions: THE COURT: So the 24 acres of on-site you said that is equivalent of about 48 credits? THE WITNESS: No, 12. The on-site is the ecological value of about half a credit, so it takes twice as much on-site mitigation to offset one acre of impact as it would take in the bank. THE COURT: So 12 of the 67 leaving 55? THE WITNESS: No, that mixes up apples and oranges. If I can back up, from the starting point of 67 credits that were being proposed, and I said 75 percent of that they could do, 75 percent of 67 is 50.25 credits and that's where the 50.25 comes from and that offsets about 100 acres of impact and that leaves about 24 and half acres of impact to be mitigated and that is the 24.4 acres on-site. (TR454, L25 – TR455, L21 [Robbins]). As the County states in its PRO, Robbins himself "was mixing apples and oranges, by switching between credits and acres, and by subtracting the product of one denominator (75 percent of 67 credits) from a smaller denominator (62.45 credits), he apparently assumed that the resulting product (24.4 acres [or 12.2 credits]) was 25 percent of the denominator (124.9 acres), when it was only 19.5 percent." (County's PRO, p. 8) While the County's math terminology may not be correct, it does appear that Robbins indeed "mixed apples and oranges" by confusing two earlier Weiss mitigation proposals. An earlier SFWMD RAI, dated June 16, 1999, referenced an "overall requirement for 67 credits of wetland mitigation for the 135 acres of proposed wetland impact." Weiss's subsequent application amendment dated March 2, 2001, stated that the wetlands impact would be 124.9 acres, and that the total mitigation credits for the project would be 62.45 mitigation credits. (Exh. 2G, p. 2; Exh. 3L, p. 2). In his analysis, Robbins appear to have taken the number of mitigation credits from the first proposal and the acreage of wetland impacts from second. Under both the proposal referenced in the SFWMD RAI, dated June 16, 1999, and Weiss's subsequent application amendment dated March 2, 2001, EMB mitigation credits were assigned to the wetland impacts of the project on a 0.5:1 ratio; in other words, one EMB credit (which represented ten acres of the EMB Phase 1) offsets the impacts of two acres of wetlands lost through impact. As a result, 50.25 EMB credits offset 100.5 acres of wetlands lost through impact. In addition, each acre of onsite mitigation counted as half an EMB credit and would offset one acre of wetlands lost through impact. As a result, the 24.4 acres of onsite mitigation was the equivalent of 12.2 EMB credits of mitigation and offset 24.4 acres of wetlands lost through impact. As the County asserts, using these numbers, whether credits of impact and offset or acres of impact and offset are compared, only 19.5% of the proposed mitigation appears to be occurring onsite and in-basin. Expressed another way, 62.45 EMB credit equivalents was found by Robbins to be necessary to offset impacts to wetland functions from the Weiss project. To achieve the 25% in-basin mitigation found by Robbins to be the minimum, 15.61 EMB credit equivalents would have to remain in-basin, according to Robbins. Yet under the Weiss's current proposal, only 12.2 EMB credit equivalents remain in-basin (in this case, onsite). To meet the minimum requirement testified to by Robbins, Weiss would have to increase onsite mitigation by approximately 6.8 acres or otherwise increase in-basin mitigation. It should be noted in this regard that the "White Paper" would count as in-basin mitigation "outside the impact basin, but close enough to the impact basin that certain functions 'spill over' and offset impacts in the impact basin to an acceptable level." The County also disputed Robbins's opinion that 25% in-basin mitigation was the minimum required to avoid unacceptable cumulative impacts. The County contended that the percentage of in-basin mitigation would have to be much higher to avoid unacceptable cumulative impacts, at least 50%. In part, the County based its position on the regulatory history in the Western C-9 Basin. The evidence was that approximately 33% of project wetlands remained after development in the County's portion of the Western C-9 Basin and that approximately 85% of the wetland functions remained onsite after mitigation. Robbins explained adequately why 25% in-basin mitigation is enough under current circumstances. The Western C-9 Basin is now largely urbanized and developed with limited potential for new development. The Basin has approximately 4,500-5,000 acres of already preserved, relatively highly functioning wetlands. There remains approximately 250 to 450 (worst case scenario) acres of somewhat degraded wetlands that are yet to be developed. Robbins testimony is accepted that, if at least 25% of mitigation for wetland impacts from future development remains in the Western C-9, adverse cumulative impacts can be avoided. The County also questions the assumption that all 4,500-5,000 acres of relatively highly functioning wetlands in the Western C-9 Basin will be preserved to provide for resting and foraging for wading birds. In support of its position, the County presented evidence that consideration is being given to using the Buffer Strip to the east of U.S. Highway 27 for conveyance and using the Water Preserve Area (WPA) to the west of U.S. Highway 27 for impounding and stacking water up to four feet high for water management purposes, without regard for wildlife or wetland functions. However, Robbins believes, logically, that even if the decision-making authorities (SFWMD, DEP, and the United States Army Corps of Engineers) were inclined to use wetlands to impound water for storage purposes, they would try not to sacrifice highly- functioning wetlands for this purpose, if at all possible. He pointed out that, also militating against use of highly- functioning wetlands in such a way, the relatively high east- to-west transmissivity of groundwater in western Broward County would limit the amount of water that could be "stacked" in the area for any significant length of time. He pointed out that some wetlands in western Broward County have been rejected for use to impound and store water for these reasons. Robbins thinks it is more likely that the Buffer Strip and a good part of the WPA will be restored to marsh-type wetlands and that highly-functioning wetlands will be preserved. Robbins also assumed that, even if highly- functioning wetlands in the WPA were used to impound water, the decision-making authorities would have to obtain a permit from SFWMD, which would require mitigation for impacts to wetlands and require at least 25% of the mitigation to remain in the Western C-9 Basin. As a practical matter, Robbins questioned the feasibility of meeting such a requirement. Finally, the County questions Robbins's definition of unacceptable cumulative impacts. Based on the testimony of several of its witnesses, the County took the position that it is imprudent and risky to set the threshold of unacceptable cumulative impacts at the point where the wading bird population that utilizes the Western C-9 Basin would be placed in jeopardy of collapse. Indeed, such a high threshold is not without risk. The County urges a lower threshold--namely, the point where the ability of the local wildlife population to maintain its current population would be negatively impacted. But such a low threshold would have the effect of allowing practically no cumulative impacts. It is found that, under these circumstances, deference should be given to Robbins's interpretation. His interpretation was reasonable, and none of the County's witnesses had anywhere near Robbins's experience and expertise in interpreting SFWMD's rules and BOR provisions. Secondary Impacts (BOR 4.2.7) Almost the entire Weiss site (except for the proposed onsite mitigation area) will be directly impacted. There is little opportunity for secondary impacts. Construction methodologies for the proposed project do not have an opportunity to cause any secondary impacts to wetland functions. In any event, Weiss will construct a minimum 15-foot, average 25-foot, wide buffer around the proposed onsite wetlands mitigation area to protect wetland functions there. To ensure no adverse impacts to wetland functions after construction, the buffer will be planted with tree species to provide a buffer between the onsite mitigation and the future proposed development. The Weiss project site has only 19 acres that are "nonwetlands." Those are mainly deepwater canals, not uplands. None of the 19 acres are used by wetland-dependant species for nesting or denning. The only archeological site on the Weiss project site is a small one along I-75, and it is being preserved. SFWMD's Staff Report is for a conceptual ERP which covers the entire project site. There will not be additional phases of development. In addition, a conservation easement will ensure against the expansion or phases encroaching into the preserved wetland areas. The evidence was that there will be no adverse secondary impacts from the Weiss project. There was no evidence to the contrary. Public Interest Test (BOR 4.2.3) Prongs (a), (c), and (d) of the "public interest test" (dealing with adverse effects on the public health, safety or welfare or the property of others, navigation, and fishing, recreational values or marine activities) do not apply in this case. Prong (b) of the public interest test deals with the wetland functions relative to fish and wildlife. Due to the mitigation proposed in this case, there will not be a net adverse impact to fish and wildlife or listed species. As found as part of the cumulative impacts analysis, the relatively low functions of the Weiss wetlands are being improved and offset with a combination of onsite and offsite mitigation. Except as to cumulative impact to the basin, the Weiss project will not result in a net adverse impact to fish and wildlife or listed species. Prong (e) considers whether the regulated activity will be of a temporary or permanent nature. The permit at issue in this case is a conceptual approval only and does not authorize any construction. However, it is anticipated that any future construction would be of a permanent nature. Prong (f) considers adverse effects on historical or archeological resources. As indicated under secondary impacts, the only archeological site on the Weiss project site is a small one along I-75, and it is being preserved. Prong (g) considers the current condition and relative value of functions being performed by the areas affected by impacts. As found as part of the cumulative impacts analysis, the relatively low functions of the Weiss wetlands are being improved and offset with a combination of onsite and offsite mitigation. Except as to cumulative impact to the basin, the Weiss project will not result in a net adverse affect in those functions. Standing of Broward County and FPL The evidence was that, in part as a result of the County's work with SFWMD and developers over the years, mitigation projects in Broward County have been grouped so as to coordinate and achieve greater benefits. Collocation and proximity of mitigation areas makes the whole of them function better than the sum of their parts through coordination and interactive effect. Collocation and proximity of mitigation areas helps the mitigation areas to be more easily recognized and utilized by wading birds. Weiss's use of EMB credits for over 75% of the total required mitigation affects the County's substantial interest in the effectiveness of mitigation areas in the County. There also was evidence that mitigation areas within Broward County provide benefits to the citizens of Broward County in terms of improved environmental quality, water quality, wildlife, and quality of life. But as explained in the Conclusions of Law, the County's standing cannot be based on that evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order denying Application No. 970509-10 for modification of Permit No. 06-00095-S, as amended to date. DONE AND ENTERED this 27th day of August, 2002, in Tallahassee, Leon County, Florida. ________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2002. COPIES FURNISHED: Paul Sexton, Esquire Williams, Wilson & Sexton 215 South Monroe Street Suite 600-A Tallahassee, Florida 32301-1804 Melvin Wilson, Esquire Williams, Wilson & Sexton 110 East Broward Boulevard Suite 1700 Fort Lauderdale, Florida 33301-3503 William L. Hyde, Esquire Ausley & McMullen 227 South Calhoun Street Tallahassee, Florida 32301-1805 William S. Spencer, Esquire Gunster, Yoakley & Stewart, P.A. 500 East Broward Boulevard Suite 1400 Fort Lauderdale, Florida 33394-3076 Frank E. Matthews, Esquire Eric Olsen, Esquire Hopping, Green & Sams 123 South Calhoun Street Tallahassee, Florida 32301-1517 Luna Ergas Phillips, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue Whether Petitioner has provided reasonable assurance that the proposed project is not contrary to the public interest as set forth in Section 403.918(2)(a), Florida Statutes and Rule 17-312.300 et. seq., Florida Administrative Code. Whether Petitioner has reduced the environmental impacts of the project in conformance with Section 403.918, Florida Statutes and Chapter 17-312.200, Florida Administrative Code. Whether the Respondent considered the cumulative impacts of the project pursuant to Section 403.919, Florida Statutes.
Findings Of Fact The Department of Environmental Regulation is the administrative agency of the State of Florida with the authority to administer the provisions of Chapter 403, Florida Statutes and the rules pertaining thereto with regard to matters involving water quality and the dredging and filling of wetlands, as defined therein. The Intervenor, Manasota-88, is a public interest environmental protection and conservation organization incorporated under the laws of the State of Florida as a not-for-profit corporation. Manasota-88 is a citizen of the State of Florida for purposes of Section 403.412(5), Florida Statutes and thereby has standing as a party in these proceedings. Petitioner, VQH, is the permit applicant and is a wholly owned subsidiary of Republic Bank of Clearwater, Florida who acquired the tract in foreclosure proceedings. Respondent, DER, is the affected state permitting agency. On November 18, 1989, VQH applied for a permit to dredge and fill wetlands on a site in southern Pasco County for purposes of commercial development. The site is comprised of both uplands and wetlands and is located on the east side of U.S. Highway 19 in Holiday, approximately one mile north of the Pasco County border with Pinellas County. After the Department denied the initial application VQH modified the application to reduce the to be destroyed wetlands from 14 acres to 11 acres and on November 17, 1992 the Department executed an Intent to Issue the subject permit to VQH. On December 4, 1992 Manasota-88 timely filed its petition to intervene in opposition to the grant of the permit and these proceedings followed. In addition to the above the parties stipulated the following are not issues in these proceedings. Water quality standards; Outstanding Florida Waters; Threatened or endangered species; Navigation, flow of water, erosion or shoaling, and Significant historical and archaeological resources. As stated in the notice of Intent to Issue (Exhibit 12) The project site consists of 94 ac. of forested uplands and wetlands. The wetlands on site are located along a drainage divide; they drain to both the Anclote River on the east and the Gulf of Mexico on the west through a series of ditches, roadway culverts, canals, and natural wetlands. The 52.52 ac. of wetlands on site are mature, red maple dominated swamps typical of the Anclote River flood plain. This site previously included cypress as one of the dominant canopy species, as noted by the number of remaining stumps, but appears to have been logged within the last 40 years. The canopy is currently dominated by red maple; also present are sweetbay, water oak, swamp laurel oak, water tupelo and cabbage palms. Due to the substantial conflict in the evidence in this regard the evidence was insufficient to establish the erstwhile dominance of cypress in this area. The development proposed is in the southwest corner of the 94-acre tract just east of U.S. 19. Near the center of the proposed development a bell- shaped upland area extends north from the southern boundary of the property. Petitioner proposed to fill to the east and west of the bell-shaped uplands some 8.9 acres. The other 2.1 acres included in this requested permit are for a road along the southern edge of the property which will be an extension of Society Drive and provide a needed east-west corridor in this part of Pasco County. The principal concern of those opposed to the granting of this permit is the filling of the wetlands between the bell-shaped area westward to U.S. 19. This area consists of hummocks originating from fallen trees or logs on which the hardwood trees are located. Between these hummocks are deep pockets which contain water for extended periods. As stated by one witness whose testimony was generally corroborated by other witnesses. The VQH wetland represents a complex ecosystem. Due to the relief, complex flow patterns, muck depths and overall age of the system there is a high diversity of habitat for aquatic fauna and wetland dependent animals. The deepest and most complex section of the system on the site is the area proposed for permanent destruction. The diversity of aquatic fauna of the area to be filled is a function of the permanency of the pools dotting the landscape. The longer the site is wet through an annual cycle the more likely aquatic fauna with long life cycles will flourish. As an example, a number of aquatic insects require 5 or more months to hatch out, mature and emerge as adults to complete the life cycle. The longer water remains on the site the greater the number of species adaptable to the conditions will flourish. The importance of this is to develop high diversity and a well balanced population of not only the invertebrates but also the fishes and other animals dependent on these invertebrate life forms for food. (Exhibit 17, p.6) The project application is one of the most controversial ever received by the DER Southwest District Office, not only because of the proposed destruction of a valuable wetland area but also because of the high visibility of this project as one of the few undeveloped areas along the U.S. 19 corridor. A genuine concern expressed by several opponents of this application is that if this permit is granted, numerous other property owners of wetland properties along other major highways will also be requesting permits to fill and develop their properties. This is a valid concern; however, if the proposed mitigation is found to be adequate and replaces three acres of wetlands to every one destroyed, the state will gain wetlands and not suffer a permanent loss of wetlands. Other applicants could also be required to provide adequate mitigation to compensate for the proposed loss of their wetlands. Proposed findings submitted by DER and Manasota-88 extoll the virtues and benefits accruing to the state from the wetland area proposed for filling. It is accepted as fact that the proposed destruction is of a high quality hardwood wetlands and, absent adequate mitigation, is contrary to the public interest. Although there is testimony from Petitioner's witness that the standing water and long hydroperiods in this hardwood wetlands decreased the undergrowth that would otherwise be expected, this evidence does not materially detract from the ecological value of these wetlands. The testimony of Petitioner's witnesses that reducing the foot print of the proposed development from 13+ acres to 8.9 acres constitutes the minimum area for the proposed shopping center to be economically viable was not rebutted, although several DER employees opined that the project had not been adequately minimized. This leaves the principal issue to be decided is whether the proposed mitigation, if carried out as required by the draft permit approval, has a substantial probability of success. Intervenor's witnesses, except for Ann Redmond, DER's mitigation coordinator, are all employed in the DER Southwest District Office and all oppose granting the permit here involved primarily because of the historical lack of success of projects to develop fresh water hardwood wetlands. The proposed permit to be granted also involves the removal of an abandoned waste water treatment plant owned by Pasco County which is a potential source of pollution, modification of existing ditches which serve to channel water coming onto the property, placing culverts under the FPC road and right- of-way berm, and placing some 95 acres in a conservation easement. As provided in the notice of Intent to Issue (Exhibit 12), the mitigation for the loss of 11 acres of mature forested wetland shall include the following implementation plan: create and restore 18.6 ac. forested wetland from existing uplands; remove an abandoned wastewater treatment plant and create 8.8 ac. of forested wetlands; convert an existing 2 ac. ditch contiguous to the wastewater treatment plant to a forested wetland system; convert 2.95 ac. of existing ditch within a Florida Power Corp. (FPC) easement to an herbacious wetland system; restore 0.75 ac. of disturbed herbacious wetlands within the FPC easement by regrading and planting with shrubby species; create 1.49 ac. shrubby wetlands from uplands within the FPC easement. install two culverts within the FPC easement roadway; restore 1.55 ac. of upland by planting with mesic and traditional hardwood species; and place all created, restored and converted wetlands (34.60 ac.) and the remaining existing wetlands and uplands on site, 60.78 ac. including 15.42 ac. within the FPC easement, in a perpetual conservation easement. The impact area has a tree density of approximately 1000 trees per acre. Red maple was found at a density of approximately 157 per acre and black haw was found at approximately 230 shrubs per acre. To recreate this density Petitioner proposes planting one gallon size trees on 6 foot centers over 50 percent of the site. However, it is proposed to create a more natural effect by clumping some trees together in some areas and space them further apart in other areas. These one gallon trees will be 30 percent pond cypress, 30 percent pop ash, 30 percent black gum and a 10 percent a mix of swamp bay, red maple and laurel oak. More of the mature trees will be removed from the impact site by spading (remove tree and root system with a machine designed to do this) and transplanting to the mitigation areas. The conditions included in the DRAFT permit with the notice of Intent to Issue contain detailed clearing and planting requirements which, in some respects, differ from the Petitioner's testimony presented at this hearing. As an example, under paragraph 7 the following is required: The wetland creation restoration, conversion, upland restoration, and upland and wetland preservation, shall be conducted prior to or concurrent with the wetland impacts, and shall be completed to the point of planting of tree species no later than one year after the commencement of the wetland impacts. Under paragraph 9 the following requirement appears: A minimum of one foot of fresh organic soils or muck, stock piled for not longer than 7 days, obtained from the wetland impact site, shall be uniformly spread over the entirety of the wetland creation and conversion areas prior to the final grading. Within thirty days of the completion of grading, the wetland creation and conversion areas shall be surveyed. A topographical map, showing a minimum of one foot contour intervals based on a 50 foot grid, certified by a registered land surveyor or professional engineer, shall be submitted to the Bureau of Wetland Resource Management in Tallahassee and to the Southwest District Office in Tampa within 60 days of the completion of the final grading. In this connection it is essential that the tree spading be accomplished during the trees' dormant period from November to March. Petitioner was anxious to have an expedited hearing so the tree spading could be completed by early march. It is presumed that all of the transplanting and spading is intended to be done between November 1993 and March 1994 if this permit is granted. Petitioner's witnesses indicated that if the transplanting (by spading) is not done in the plant's dormant period their survival rate will be low and nursery grown plants would be used in lieu of spading. The draft period requires 7 gallon trees to be used to substitute for trees not spaded. Petitioner proposes, and the DRAFT permit requires, the Petitioner to grade the existing uplands intended for conversion to wetlands to provide gradients low enough to qualify as wetlands and be inundated at various times of the year. Petitioner proposes to establish a wetland area where the water will move across the property in a sheet flow eastward towards the Anclote River basin. The spread of organic material over the planting sites will improve the probability of success of the mitigation project by reason of the seeds in the soil plus the benefit of the muck to the propagation and growth of the planted trees and scrubs. The water level in the newly created wetlands will be monitored by gauges established at the easterly part of the property and the hydroperiod for the area established and maintained. Further, in the first two years of the planting, Petitioner will provide for temporary irrigation of the newly planted area if necessary. Also Petitioner will maintain 85% survival for the trees planted in the first two years by planting additional trees as needed. Petitioner also proposed and the DRAFT permit requires the removal of some of the hummocks from the impact area to the newly created wetlands.. In 1990 the Florida Legislature instructed DER to assess the use and effectiveness of mitigation in Wetland Resource Regulation permitting. The study was intended to evaluate wetland mitigation projects required by DER permits in terms of compliance with both: 1) the permit conditions, and 2) whether the created wetlands were biologically functional, i.e., animal species diversity and density, plant reproduction, water quality, hydroperiod, etc. That study resulted in a Report on the Effectiveness of Permitted Mitigation dated March 5, 1991. (Attachment B to Exhibit 16) This study found a high rate of noncompliance with mitigation requirements in permits issued. The ecological success rate of mitigation design for freshwater permits was only 12 percent. However, it was predicated that with remedial action this rate could rise to 41%. The study made recommendations for improvements in DER policy and rules involving mitigation projects which included the consideration of mitigation options in the following sequence: enhancement of degraded wetlands, or restoration of historic wetlands; preservation of other wetlands in conjunction with other forms of mitigation; and wetland creation. This committee further recommended that Creation should only be accepted if review of the creation proposals indicates that it includes features to ensure that it will be successful. In all cases, if the proposed mitigation does not provide reasonable assurance that the wetland losses can be offset, the project should be denied. (Exhibit B of Exhibit 16) Without changing rule provisions DER began to orient its view of the minimization process that is required by Rule 17-312.060(10) by stressing that step in the process. They also re-assessed the use of wetland creation from uplands as a common mitigation option, describing it as the least preferable mitigation option, especially for freshwater wetlands. Additional studies conducted on behalf of the South Florida Water Management District and the St. Johns River Water Management District found lack of compliance with mitigation requirements, and lower success rates for fresh water mitigation than salt water mitigation. The March 5, 1991 Report found the following four factors to be critical in assuring a high likelihood of success: Constructing the wetland floor at the proper elevation relative to the groundwater table. There must be a hydrologic connection between the mitigation wetland and other waters of the State to ensure the wetland is within Department wetland resource regulation jurisdiction and functions as a water of the state. The topography and configuration of the wetland should coincide with the permit requirements to yield the required wetland acreage. Regular maintenance of the wetland to reduce exotic and nuisance plants during its establishment. The mitigation proposal submitted by Petitioner addresses each of the above four factors. Additionally, Petitioner is required to post a bond before commencing the project of $440,000 (110% of the estimated cost of the mitigation) to ensure sufficient funds are available to complete the mitigation project. Generally speaking a mature wetland is developed only over an extended period of many years. On the other hand the attempt to develop wetlands from uplands to provide mitigation for the destruction of other wetlands is quite new, leading opponents to conclude this to be more art than science. Serious studies and experiments with developing wetlands have occurred only in the past 10-15 years. These studies have not only indicated that wetlands can be created, but also have shown that developing freshwater wetlands is a very difficult task requiring dedication and close attention to the project. During the past decade a lot of misconceptions have been corrected but the process has not as yet reached the stage for the success of a project to generate freshwater hardwood wetlands can be guaranteed. A similar lack of progress has been made in creating freshwater undergrowth (shrubs). While the intent to deny this application in 1989 was signed by Carol Browner, DER Director, and the intent to grant was signed by Janet Llewellen, Bureau Chief for the Bureau of Wetland Resource Management, the ultimate decision in both instances was made by Browner, who, in deciding to grant the instant application, overruled the recommendation of a majority of the DER staff involved with this project. This accounts for the conditional "if successful" acceptance of the mitigation plan by those DER staff members who testified in support of the application.
Recommendation It is RECOMMENDED that permit (File No. 511731859) be issued to VQH Development, Inc. in accordance with and subject to the conditions contained in the DRAFT permit attached to the notice of Intent to Issue Permit. DONE and ORDERED this 26th day of March, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 26th day of March, 1993. APPENDIX Proposed findings submitted by Petitioner are accepted except: 18. Second sentence. Accepted as uncontradicted testimony of Petitioner's witness. 30. Rejected that there is a diminished overall value of these wetlands because of reduced or no understory. 36. First sentence rejected. No credible evidence was submitted that any historic wetlands on this property were filed by man. 38. First sentence rejected as confusing. 40. Third sentence rejected as fact; accepted as the testimony of VQH contractor. 61. Sentence 5(2) rejected as fact; accepted as a hoped for condition. Proposed findings submitted by Respondent are accepted, except: 7. Whether red maple or laurel oak is the dominant species was disputed. However, both tree species are present in significant numbers and naming one dominant is irrelevant. 19. Whether red maple or laurel oak is the dominant species was disputed. However, both tree species are present in such significant numbers that naming one dominant is irrelevant. Proposed findings submitted by Intervenor are accepted, except: 12. Property is rectangular in shape. 18. Last sentence rejected as contrary to witness' testimony. 20. Rejected as irrelevant. VQH project has been approved in principle by Pasco County. 22. Rejected as irrelevant. VQH project has been approved in principle by Pasco County. 28. I would characterize the mitigation proposals as neo-typical. 34. Second sentence rejected. Red maple and laurel oak dominate site. 38. Second and third sentences irrelevant as to cause of thin understory. 60. Rejected as fact. This is a conclusion of law. 62.-66. Rejected as fact. These are conclusions of law. Accepted as unwritten rule. Unwritten rule not proved valid in these proceedings. 68d. Last sentence. See HO #14. Rejected as f act. This is a legal conclusion. Rejected. This opinion of one witness is in conflict with the actions of DER in this instance. 83. Absent a definition of success the opinion here conflicts with the testimony of BRA's expert. 96.-99. These are legal conclusions. 101.-102. Rejected. VQH submitted numerous plans showing the reduction of the footprint on wetlands. 103. Rejected. Mudano also testified that the property on which all such stand alone stores are owned by the store. 105. Word practical rejected. 107. Rejected. Notice of Intent to Issue carries with it the conclusion that the project had been minimized as required by statutes. This is a conclusion of law. Rejected. 115. The date of February 1, 1993 a time to start on this project was not mentioned in this hearing. See HO #23. 117. While this mitigation plan may be consistent with present day requirements it is much more complex and detailed than were former mitigation plans which did not meet expectations. 118.-119. Rejected. 120. Conclusion of Law. 122. Conclusion of Law. 122. (Second) Last sentence rejected. 124. Rejected. 126.-128. Conclusions of Law. 130. Rejected. 132.(first)-134. Conclusions of Law. 133.-134. Conclusions of Law. COPIES FURNISHED: John W. Wilcox, Esquire Post Office Box 3273 Tampa, Florida 33601 3273 E. Gary Early, Esquire Post Office Box 10555 Tallahassee, Florida 32302 2555 Buddy Blair, Esquire 202 Madison Street Tampa, Florida 33602 W. Douglas Beason, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399 2400 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Daniel H. Thompson, Esquire Acting General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399 2400 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399 2400
The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
The Issue The issues in this case are whether Petitioner has standing to initiate this proceeding and whether Respondents Osceola County and Habitat Restoration, Inc., demonstrated their entitlement to the permit modification they are requesting.
Findings Of Fact Background Petitioner resides in Orlando and is a recreational hunter. The District is a multi-purpose water management district, operating pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40E. Its principal office is in West Palm Beach, Florida. The County has been an applicant/permittee at all times material to this proceeding. HRI is co-permittee and operates a regional mitigation area near the town of Holopaw. On October 13, 2004, the District issued Environmental Resource Permit No. 49-00121-S-02 ("the Original ERP") to the County, authorizing construction and operation of a surface water management system in conjunction with the widening of Poinciana Boulevard ("the Road Project"). The Road Project is expected to adversely impact 6.61 acres of wetlands. In the Original ERP, mitigation for the wetland impacts was to be provided through the purchase of mitigation credits in the 1600-acre Florida Mitigation Bank (FMB). The Road Project and the wetlands that it would impact are located within the Shingle Creek Drainage Basin. As shown in Petitioner's Exhibit P-6, only a very small portion of the FMB is located within the Shingle Creek Drainage Basin. Almost all of the FMB is within the Reedy Creek Drainage Basin, which is west of the Shingle Creek Drainage Basin. The County applied for a modification of the original permit, and the District issued the ERP Modification to the County and HRI. The ERP Modification changes only the mitigation plan for offsetting the wetland impacts of the Road Project. The ERP Modification calls for mitigation of the wetland impacts of the Road Project through the restoration of wetlands within the regional mitigation area operated by HRI. The proposed HRI mitigation site is within Osceola County, but outside the Shingle Creek Drainage Basin. Standing For the past six or seven years, Petitioner has been hunting within a small area of the FMB, along its eastern boundary, as shown on Petitioner's Exhibit 15. Petitioner hunts there approximately 20 times each year. He hunts for deer, turkey, and hogs. He also enjoys observing nature while he is hunting. The FMB is not open to the general public for hunting. Petitioner hunts in the FMB with the verbal permission of the owner. Petitioner expects the permission he has been given to hunt in the FMB will continue into the future. A fence surrounds the FMB, but deer and turkey can get over a fence and hogs can get under a fence. At the hearing, there was some dispute about the exact location of the boundary that divides the Shingle Creek Drainage Basin from the Reedy Creek Drainage Basin, and in which of the two basins Petitioner hunts. The dispute was caused by the fact that the area where Petitioner hunts is close to the boundary and the official maps of the basins are at such a small scale that the line which depicts the boundary covers a large area. No evidence was presented about the precise location of the topography that divides the basins. The more persuasive evidence in the record is that a small area of the FMB (the acreage was never established) is within the Shingle Creek Drainage Basin and includes the area where Petitioner hunts. Petitioner's primary objection to the ERP Modification is the proposal to mitigate for the loss of 6.61 acres of wetlands by restoring wetlands that are outside the Shingle Creek Drainage Basin. He contends that the ERP Modification will serve as a precedent for future mitigation outside the Shingle Creek Drainage Basin.3 Petitioner's standing argument is that the future mitigation outside the Basin will reduce populations of the wildlife within the FMB where he hunts. Undermining this premise for Petitioner's standing is the fact that drainage basin boundaries are hydrologic boundaries based on patterns of water movement; they are not boundaries associated with wildlife movement. The animals that Petitioner hunts move freely across drainage basin boundaries. Therefore, drainage basin boundaries are not the proper focus for determining whether Petitioner is substantially affected by the proposed ERP Modification. Whether Petitioner is substantially affected depends on the effect the ERP Modification would have on environmental factors (including the quality and extent of wetlands) that determine the populations of wildlife Petitioner enjoys hunting and observing, no matter where those environmental factors are located. Petitioner assumes that all future mitigation outside the Shingle Creek Drainage Basin will be detrimental to his interests. However, Stuart Bradow explained that whether future wetlands impacts and future mitigation would affect Petitioner's interests depends on the proximity of the future impacted wetlands and associated mitigation to the area where Petitioner hunts, without regard to which drainage basin the wetlands and mitigation are located within. Some wetland impacts in the Shingle Creek Drainage Basin would be too distant to adversely affect Petitioner's interests. Some out-of-basin mitigation could be close enough to positively affect Petitioner's interests. Because much of the Shingle Creek Drainage Basin is more distant from Petitioner's hunting area than areas of the Reedy Creek Drainage Basin, it can be reasonably inferred that there could be future mitigation in the Reedy Creek Drainage Basin to offset wetland impacts in the Shingle Creek Drainage Basin that would benefit Petitioner's interests. Petitioner's precedent argument, that all future out- of-basin mitigation will per se be adverse to his interests, is contradicted by the more credible and persuasive evidence in the record. The ERP Modification does not call for any construction or other activities within the area where Petitioner hunts or in any other part of the FMB. The ERP Modification will not physically impact the area within the FMB where Petitioner hunts. The ERP Modification does not reduce the number of acres within the FMB. The ERP Modification will not affect Petitioner's access to the FMB for hunting. The direct and indirect impacts associated with the loss off 6.61 acres of wetlands caused by the Road Project would not adversely affect Petitioner's hunting or nature observation within the FMB. Petitioner's evidence regarding the biological processes that link the alleged future wetland losses within the Shingle Creek Drainage Basin to populations of deer, turkey, and hogs in the FMB was inadequate. There was no evidence presented, for example, about the variability in such game populations, the causes of the variability, and how wetland acreage affects population variability. Petitioner's expert, Tom Odom, acknowledged that drainage basin boundaries do not limit wildlife movement, yet offered an opinion that seemed to assume the opposite. For example, his opinion that Petitioner's enjoyment of deer hunting in the FMB might diminish as a result of the ERP Modification was based on his belief that deer populations would be restricted to "a certain area" and prevented from intermixing. Mr. Odom's opinion was also based on the assumption that HRI's mitigation proposal at its site near Holopaw would not be successful. That opinion contradicts Petitioner's basic contention that the HRI mitigation site is too far away to offset the wetland impacts caused by the Road Project. According to Petitioner, the HRI site is too far away to offset those wetland impacts but close enough to adversely affect Petitioner's hunting in the FMB if the mitigation site fails to function as proposed. Mr. Odom also opined that the elimination of small wetland areas can be detrimental to wildlife and are not mitigated by increasing the size of a large wetland area. However, in this regard there is no difference between the Original ERP and the ERP Modification. Both permits would allow the loss of the small wetlands caused by the Road Project and would mitigate the losses by adding to or enhancing larger, regionally significant wetland areas. Petitioner did not challenge the Original ERP. He cannot collaterally attack in this proceeding the District's previous determination to allow the loss of the small wetlands caused by the Road Project. Petitioner failed to demonstrate that the ERP Modification would reduce populations of deer, turkey, and hogs in the FMB to the extent that Petitioner's enjoyment of hunting would be diminished. Petitioner failed to demonstrate that he will be substantially affected by the District's approval of the ERP Modification. At the hearing, the parties presented evidence on all factual disputes related to the ERP Modification. Therefore, despite the foregoing finding that Petitioner did not demonstrate his standing, findings related to the other factual disputes are set forth below. Cumulative Impact Analysis Pursuant to Subsection 373.414(8)(a), Florida Statutes (2005), the District is required to consider the cumulative impacts upon wetlands and other surface waters within the same drainage basin as the proposed activity. The cumulative impact analysis is supposed to consider existing projects, projects under construction, projects for which permits have been sought, developments of regional impact, and other activities regulated under Chapter 373, Florida Statutes, or which may reasonably be expected based upon local government comprehensive plans. Although Petitioner claimed otherwise, the record shows the District considered these projects and activities in the cumulative impact analysis it conducted for the ERP Modification. Section 4.2.8 of the Basis of Review provides that, when adverse impacts to wetlands are not fully offset within the same drainage basin as the impacts, the applicant must provide reasonable assurance that the proposed activity will not result in unacceptable cumulative impacts to the functions of wetlands within the drainage basin where the impacts would occur. In conducting its cumulative impacts analysis, the District considered future projects within the Shingle Creek Drainage Basin which the District determined would likely have similar impacts. It determined that similar impacts would be caused by future road-widening projects. Petitioner complained that the County did not perform a cumulative impact assessment of the Orange County portion of the Shingle Creek Drainage Basin, but the testimony revealed that was because the District already had this data. The District reviewer who conducted the cumulative impact analysis, Susan Elfers, is also the reviewer for all road projects in the Orlando area. The Florida Department of Transportation routinely provides the District projections of future road projects. Because Ms. Elfers had considerable information regarding Orange County transportation projects, the District did not require the County to provide that information. In performing the cumulative impact analysis, the District is directed by Section 4.2.8 of the Basis of Review to consider the functions of wetlands and other surface waters in the basin "as a whole." Approximately 20,000 acres of the Shingle Creek Drainage Basin lies within Osceola County. Of this total, 4,631 acres are wetlands. More than a quarter of the wetlands are in some form of conservation status. According to the County, there are 3,113 more acres of wetlands proposed for conservation in the Shingle Creek Drainage Basin. Altogether, 94 percent of the wetlands in the Shingle Creek Drainage Basin in Osceola County are either in conservation or proposed for conservation. More than half of the Shingle Creek Drainage Basin lies in Orange County, north of Osceola County. Tom Odom determined that the entire Shingle Creek Drainage Basin was comprised of over 22,000 acres of wetlands, of which 88 percent are protected. Considering the wetland functions of the Shingle Creek Drainage Basin "as a whole," the projected cumulative loss of wetlands associated with road projects represents a very minor impact on the total wetland functions in the Shingle Creek Drainage Basin and a very small fraction of the wetland functions already under protection. As discussed in detail below, the proposed HRI mitigation site will provide substantial environmental benefits to the region. The County and HRI proved by a preponderance of the evidence that the ERP Modification will not result in unacceptable cumulative impacts within the Shingle Creek Drainage Basin. Secondary Impacts In addition to addressing the direct impacts of a project, the District’s Basis of Review requires that a project’s secondary impacts be offset. Petitioner contends that the secondary impacts associated with the ERP Modification were not addressed. However, the record evidence indicates a qualitative analysis of secondary impacts was made by the District to determine whether the HRI mitigation site would offset the secondary impacts of the Road Project. The District determined that the excess value of the proposed HRI mitigation over the lost value of the impacted wetlands was sufficient to offset the relatively minor secondary impacts expected from the Road Project. That determination was reasonable. The Proposed Mitigation Site HRI owns a regional mitigation area of over 2,000 acres. This area includes extensive wetland areas that were significantly degraded by the cattle and agricultural operations of previous owners. Portions of the 2,000-acre tract continue to suffer from over-drainage and widespread exotic nuisance species, including the area which HRI proposes to restore as mitigation for the wetland impacts of the Road Project. The 2,000-acre mitigation area already contains 23 previously approved wetland mitigation projects. Wildlife use of the area has been steadily increasing as each mitigation project has been implemented. The area now supports a high diversity of wildlife, including an impressive array of endangered and threatened animal species. The HRI mitigation site for the ERP Modification consists of 26.1 acres in four separate areas with separate mitigation activities proposed for each area. There would be high level enhancement of 6.8 acres of a forested wetland area, moderate level enhancement of 13.9 acres of mixed forested wetland, four acres of upland buffer enhancement and preservation, and 1.4 acres of herbaceous wetland enhancement. The proposed mitigation will include filling in part of a drainage canal, removing exotic plant species, and planting cypress trees. The mitigation site will be managed for wildlife and protected by a conservation easement. The mitigation proposal for the ERP Modification involves activities that are similar to those that HRI has successfully completed as part of several other mitigation projects in HRI's regional mitigation area. HRI's success with similar mitigation projects provides part of the reasonable assurances that the mitigation authorized by the ERP Modification will also succeed in creating wetlands of high functional value. The proposed offsite mitigation area represents substantially greater wildlife habitat benefits than were provided by the 6.61 acres of wetlands impacted by the Road Project. Petitioner claims that the County and HRI failed to demonstrate that the proposed mitigation site was engineered to allow water movement as needed to create and maintain appropriate hydrologic conditions for the restored wetlands. Petitioner did not claim that the proposed mitigation project was not properly engineered, but only that the District was not provided the kind of engineering analysis usually required for such projects. At the hearing, the District witness, Ms. Elfers, explained that the District's determination that the proposed mitigation project was properly engineered was based in part on information exchanged during meetings with the applicant. Moreover, the County presented an expert engineering witness, John Atkins, who testified about the engineering aspects of the project site related to hydrology and offered his opinion that the project is properly engineered.4 The more persuasive evidence in the record is that the proposed mitigation project is engineered so that the hydrologic aspects of the project will allow for the successful restoration and maintenance of the wetlands involved. Uniform Mitigation Assessment Method The Uniform Mitigation Assessment Method (UMAM), codified in Florida Administrative Code Chapter 62-345, is used to determine the amount of wetland mitigation required. The UMAM methodology provides a standardized procedure for assessing the function provided by wetlands. By examining a number of environmental factors, such as its community structure and its water environment, the UMAM can assess the value of the function being provided by a wetland. UMAM allows for the functional value of a wetland to be quantified and compared to the functional value of other wetlands. A UMAM analysis was performed on both the wetlands that would be impacted by the Road Project and the wetlands that HRI proposes to restore. Under UMAM, the functional gain score for the restored wetlands must at least equal to the functional loss score for the impacted wetlands. The UMAM score determined for the wetlands impacted by the Road Project was 4.47 functional units. The UMAM score determined for the HRI mitigation site was 5.47 functional units. These scores mean that the wetland functional value gain for the proposed HRI mitigation site was determined to more than offset the functional loss that would be caused by the wetland impacts of the Road Project. The four restoration areas within the HRI mitigation site were separately scored using the UMAM methodology. Among the factors considered were time lag and risk. Time lag means “the period of time between when the functions are lost at an impact site and when those functions are replaced by the mitigation.” Fla. Admin. Code R. 62-345.600(1)(a). Mitigation risk refers to the degree of uncertainty in achieving the mitigation objectives. Fla. Admin. Cod R. 62-345.600(2). Petitioner disagreed with the risk factor used to score the HRI mitigation site because, according to Petitioner, no engineering modeling or information was provided for the hydrologic changes that would be required to achieve success. The adequacy of the engineering analysis for the HRI mitigation site was addressed above. The risk factor used in scoring this particular area was reasonable. Petitioner also objected to the time lag values used to obtain the score for the HRI mitigation site areas designated Eastern Forested WL Enhancement (High Level) and the Western Forested WL Enhancement (Moderate). The time values used for these areas equate to an expectation that the functions lost because of the wetland impacts of the Road Project will be replaced within five years. Petitioner contends that expectation is unreasonable because the impacted wetlands contain mature wetland trees which cannot be replaced in five years. The time lag value used, however, does not reflect an assumption that in five years all the trees planted in the mitigation site will be as mature as a particular tree or trees found in the impacted wetlands. The time lag value reflects the time needed for the mitigation site to gain functional values equivalent to the functional values lost. Furthermore, there are already trees in the mitigation site. The more persuasive evidence of record indicates that the time lag value used was reasonable. Petitioner argues that the use of the same time lag factor for the different types of wetland systems in the HRI mitigation site contradicts the "express direction" of Florida Administrative Code Rule 62-345.600(1)(a). That rule, however, merely contains a qualitative statement of the general comparison of time lags for different wetland systems. It does not require that time lags used for different systems must be different. Wetlands are classified into different community types by the Florida Land Use Cover and Classification System (FLUCCS). Petitioner complains that none of the FLUCCS codes for the ecological communities at the HRI mitigation site match the FLUCCS codes of the wetlands proposed to be impacted by Road Project. Petitioner admits, however, that two of the HRI mitigation areas have similar FLUCCS codes. The two areas with dissimilar wetland types are the upland buffer and existing canal that will be restored to a deep water marsh. However, it was never suggested that these two areas were similar to the impacted wetlands. They are simply areas within the HRI mitigation site that are being restored in conjunction with adjacent forested wetlands to enhance the overall diversity and quality of the resulting ecosystem. The more persuasive and competent evidence in the record indicates that the UMAM scores for the impacted wetlands and the mitigation site were reasonable and that they fairly characterized the proposed HRI mitigation as exceeding in functional value what would be lost as a result of the wetland impacts caused by the Road Project.
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 issuing Modification to Environmental Resource Permit No. 49-00121-S-02 to Osceola County and Habitat Restoration, Inc., subject to the general and special conditions set forth in the District's Staff Review Summary. DONE AND ENTERED this 9th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2006.
The Issue The issue is whether the District should approve Environmental Resource Permit No. 43024788.002 for the construction of a surface water management system to serve the proposed residential subdivision on Westfield’s property in southern Pasco County, and based upon the prior litigation between the parties in DOAH Case No. 04-0003 and the pre-hearing rulings in this case, the issue turns on whether Westfield has provided “reasonable assurances” in relation to the proposed development's potential impacts on Wetland A3 and fish and wildlife.
Findings Of Fact Parties Dr. Blanco is a veterinarian. He grew up on, and has some sort of ownership interest in the property (hereafter “the Blanco property”) immediately to the west of the property on which the proposed development at issue in this case will occur. Dr. Blanco is particularly concerned about the impacts of the proposed development on the ecological health of Wetland A3, a significant portion of which is on the Blanco property. He has spent considerable time over the years observing and enjoying that wetland. Westfield is the applicant for the ERP at issue in this case, and it owns the property (hereafter “the Westfield property”) on which the development authorized by the ERP will occur. The District is the administrative agency responsible for the conservation, protection, management, and control of the water resources within its geographic boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40D. Among other things, the District is responsible for reviewing and taking final agency action on ERP applications for projects within its boundaries. The District includes all or part of 16 counties in southwest Florida, including Pasco County. The Proposed Development (1) Generally The Westfield property consists of 266.36 acres.3 It is located in southern Pasco County on the north side of State Road 54, approximately three miles west of U.S. Highway 41 and less than one-half mile east of the intersection of State Road 54 and the Suncoast Parkway. The Westfield property is bordered on the south by State Road 54,4 on the north by an abandoned railroad right-of- way and undeveloped woodland property, on the east by pastureland and property that has been cleared for development, and on the west by the Blanco property. The development proposed for the Westfield property is a residential subdivision with 437 single-family lots and related infrastructure (hereafter “the Project” or “the proposed development”). The ERP at issue in this proceeding is for the surface water management system necessary to serve the Project. There are 19 isolated and contiguous wetlands on the Westfield property, including Wetland A3, which is partially on the Westfield property and partially on the Blanco property. Wetlands cover 72.69 acres (or 27.3 percent) of the Westfield property. The proposed development will result in 1.61 acres of the existing wetlands -- Wetlands B4 and C4, and a portion of Wetland B12 -- being permanently destroyed. The remaining 71.08 acres of existing wetlands will be preserved. Wetlands B4 and C4 are small (each less than 0.75 acres), shallow, wet depressions in a pasture that have been significantly impacted by livestock grazing and periodic mowing. Wetland B12 is a low-quality, small (0.58 acres), isolated, forested wetland that has been impacted by livestock grazing and the intrusion of exotic species. The proposed development will create 2.89 acres of new wetlands, which means that the Project will result in a net gain of 1.28 acres of wetlands. The created wetlands, referred to as Wetland B2 or the “mitigation area,” are in the northern portion of the property along the abandoned railroad right-of-way and to the east of Wetland A3. The proposed ERP includes a number of special conditions, Nos. 6 through 11, related to the mitigation area. Among other things, the conditions require monitoring of the mitigation area to ensure that it develops into the type of forested wetland proposed in the ERP application. (2) Prior ERP Application The ERP at issue in this case is the second ERP sought by Westfield for the Project. The first ERP, No. 43024788.000, was ultimately denied by the District through the Final Order in Blanco-I. Blanco-I, like this case, was initiated by Dr. Blanco in response to the District’s preliminary approval of Westfield’s ERP application. Administrative Law Judge David Maloney held a three- day final hearing in Blanco-I at which the parties, through counsel, fully litigated the issue of whether Westfield satisfied the regulatory criteria for the issuance of an ERP for the proposed development. On December 17, 2004, Judge Maloney issued a comprehensive, 64-page Recommended Order in which he recommended that Westfield’s ERP application be denied. Judge Maloney determined in his Recommended Order that Westfield failed to provide reasonable assurances as required by the applicable statutes and rules because “[1] it omitted an adequate wildlife survey from the submission of information to the District and [2] it failed to account for seepage from Pond P11 and its effect on Wetland A3 and the Cypress-forested Wetland.”5 In all other respects, Judge Maloney determined that the applicable permit requirements had been satisfied. Dr. Blanco did not file any exceptions to the Recommended Order in Blanco-I. Westfield’s exceptions to the Recommended Order in Blanco-I were rejected by the District, and the Recommended Order was adopted “in its entirety” in the District’s Final Order. The Final Order in Blanco-I was rendered on January 27, 2005, and was not appealed. (3) Current ERP Application On April 29, 2005, approximately three months after the Final Order in Blanco-I, Westfield submitted a new ERP application for the Project. The current ERP application, No. 43024788.002, is identical to the application at issue in Blanco-I, except that the depth of Pond P11 was reduced in certain areas from a maximum of approximately 25 feet to a maximum of approximately 12 feet, an analysis of the potential impact of Pond P11 on Wetland A3 resulting from “seepage” was included with the application, and additional wildlife surveys were included with the application. On July 29, 2005, the District gave notice of its preliminarily approval of the current ERP application. The notice was accompanied by a proposed ERP, which contained a description of the Project as well as the general and special conditions imposed by the District. On August 24, 2005, Dr. Blanco timely challenged the District’s preliminary approval of the current ERP application. The Request for Administrative Hearing filed by Dr. Blanco in this case is identical to the request that he filed in Blanco-I. Disputed Issues Related to the Current ERP Application Impact of Pond P11 on Wetland A3 Dr. Blanco’s primary objection to the Project is the excavation of Pond P11 adjacent to Wetland A3. Wetland A3 is on the western border of the Westfield property and, as noted above, the wetland extends onto the Blanco property. The portion of Wetland A3 that is on the Westfield property is approximately 30 acres, and the portion of the wetland on the Blanco property appears to be slightly larger. Wetland A3 is a large, mature, Cypress-forested wetland. It has been impacted by nearby development and is not a pristine wetland, but it is still a mid to high quality wetland for the area.6 Wetland A3 is part of a larger wetland system that extends northward and westward beyond the abandoned railroad right-of-way that serves as the northern boundary of the Westfield and Blanco properties. Cypress-forested wetlands, such as Wetland A3, are very tolerant of prolonged periods of drought and inundation. The seasonal high groundwater level in Wetland A3 is approximately one foot below the surface in most areas of the wetland. There are, however, areas in Wetland A3 in which water is frequently a foot or two above the surface. The groundwater levels in Wetland A3 have, in the past, been significantly impacted by drawdowns in the aquifer caused by pumping in nearby wellfields. The impact has been less significant in recent years as a result of the reductions in pumping mandated by the Tampa Bay Consolidated Water Use Permit. The planned interconnection of several nearby wellfields is also expected to minimize the drawdowns in the aquifer and should further stabilize the groundwater levels in Wetland A3. Pond P11 will be located adjacent to Wetland A3. There will be a 25-foot buffer between the pond and the wetland. The location of Pond P11 is unchanged from the first ERP application. Pond P11 will have a surface area of approximately 37 acres. The surface area of Pond P11 is unchanged from the first ERP application. Pond P11 is a necessary component of the surface water management system for the Project. It also serves as a “borrow pit” because the soil excavated from the pond will be used on- site as fill for the proposed development. The excavation of Pond P11 to the depth proposed in the current ERP application is not necessary for water storage. The pond could be excavated to the seasonal high water level -- approximately 2.5 feet deep -- and still function as intended as part of the proposed surface water management system. Pond P11 will be used for attenuation, but the pond is also expected to provide at least some amount of water quality treatment, which is an added benefit to Wetland A3 into which the proposed surface water management system will ultimately discharge through Pond P11. The only change made to Pond P11 between the first and current ERP applications was a reduction in the pond’s maximum depth. The pond, which had a maximum depth of approximately 25 feet in the first ERP application, was “shallowed up” in the current ERP application. Pond P11 will now be approximately 12-feet deep at its deepest point, unless the District authorizes excavation to a greater depth in accordance with special condition No. 28. The shallowest area of Pond P11 will be along the western edge of the pond adjacent to Wetland A3 where there will be an expansive “littoral shelf” that will have almost no slope and that will be excavated only to the seasonal high water level.7 There was no change in the design of the surface water management system between the first ERP application and the current ERP application. The reduction in the depth of Pond P11 will have no impact on the operation of the system, which was described in detail in Blanco-I.8 Pond P11 will have a control structure to allow water to be discharged into Wetland A3 near its southern end, which is a more upstream location than water is currently discharged as a result of the ditches that intercept surface water flowing across the Westfield property. This design feature of the surface water management system is intended to mimic historic hydrologic conditions and is expected to increase the hydration of Wetland A3. The ERP includes a special condition, No. 28, relating to the excavation of Pond P11. The condition provides: Maximum depth of excavation will be +38 feet NGVD[9] unless additional field observations and data are provided that support excavation to greater depth, subject to review and approval by District staff. Proposed maximum depths of excavation . . . may be exceeded based upon field observations and approval as specified. Due to the potentially irregular depths to limestone, excavation will be stopped at a shallower depth if confining soils are encountered before reaching the maximum depth specified in Subcondition A, above. A geotechnical field technician will be present on site during the entire excavation process in order to monitor excavated soils. The field technician will be under the supervision of a Professional Geologist or Professional Engineer. For the purposes of the specific project, confining soils are defined as soils with more then 20 percent fines passing a No. 200 sieve. The field technician will be authorized to halt depth of excavation when confining soils are encountered. Excavation may proceed deeper than soils containing 20 percent or more fines if the soils are shown to be an isolated lens of material significantly above underlying confining soils or limestone, as determined by field observations and data subject to approval by District staff. Confining soils do not uniformly overlie the limestone; therefore it is possible that the underlying limestone could be encountered in spite of precautions in Subconditions A and B above. If the underlying limestone is encountered, excavation will be halted in the area of exposed underlying limestone. The area of exposed limestone will be backfilled to a minimum depth of two feet with compacted material meeting the specification of confining soils, having more than 20 percent fines passing a No. 200 sieve. The geotechnical field technician must certify that the backfill material meets this specification. One of the reasons that the ERP application was denied in Blanco-I was that Westfield failed to take into account the potential hydrologic impacts on Wetland A3 caused by “seepage” of water from Pond P11 due to the depth to which the pond was to be excavated and the corresponding removal of the confining layer of soils between the bottom of the pond and the aquifer. After Blanco-I, Westfield retained Marty Sullivan, a professional engineer and an expert in geotechnical engineering and groundwater and surface water modeling, to evaluate the seepage issue and the potential hydrologic impacts of Pond P11 on Wetland A3. Mr. Sullivan developed an integrated or “coupled” groundwater/surface water model to assess these issues. The model was designed to project the change in groundwater levels caused by the proposed development more so than absolute groundwater levels. The model utilized a widely-accepted computer program and incorporated data from topographic and soil survey information maintained by the U.S. Geologic Service; data from soil borings performed on the Westfield property in the vicinity of Wetland A3 in the area where Pond P11 will be located; data from groundwater monitoring wells and piezometers installed around the Westfield property; data from soil permeability tests performed on-site and in the laboratory; data from a rain gauge installed on the Westfield property; and data from the District’s groundwater monitoring wells in the vicinity of the Westfield property. Mr. Sullivan “calibrated” the model based upon known pre-development conditions. He then “ran” the model with the data from the Interconnected Pond Routing (ICPR) model10 used to design of the surface water management system in order to project the post-development groundwater conditions over a simulated ten-year period. Mr. Sullivan’s coupled groundwater/surface water model addresses the shortcoming of the ICPR model set forth in Blanco- I.11 The model projects that the post-development groundwater levels at the western boundary of the Westfield property in Wetland A3 adjacent to Pond P11 will be the same as the pre-development levels during the “wet season” of June to September, and that, on average and during the “dry season” of October to May, the post-development groundwater levels will be 0.3 feet higher than the pre-development levels. Mr. Sullivan summarized his conclusions based upon these projections in a report provided to the District with the current ERP application. The report states that: no adverse hydrologic effects will result from the excavation of Pond P11 and the development of the surrounding area. Particularly, Wetland A3 will be essentially unaffected and will be slightly enhanced by this development. Some additional hydration of wetland A3 will occur due to eliminating the north-south drainage ditch and instead routing runoff to Pond P11, which is adjacent to Wetland A3. The relative differences in the pre- and post- development levels are more important than the absolute levels projected by the model and, in this case, there is almost no difference in the levels. The minimal change in the water levels expected in Wetland A3 will not affect the wetland’s ecological functioning or its viability. A 0.3-foot change in the water level is well within the normal range of hydroperiod fluctuation for Wetland A3. The rate at which water increases and decreases in a wetland can impact wetland ecology and wetland-dependent species. The proposed surface water management system will not increase the surface water discharges from the Westfield property, and in compliance with Section 4.2 of the Basis of Review (BOR),12 the post-development discharge rates will not exceed the pre-development peak discharge rates. There is no credible evidence that there will be an adverse impact on Wetland A3 caused by changes in the discharge rate from the Westfield property through Pond P11 into Wetland A3. The range of error, if any, in Mr. Sullivan’s model is unknown. He has never performed a post-development review to determine how accurately the model predicts the post-development conditions that are actually observed. Nevertheless, the more persuasive evidence establishes that Mr. Sullivan’s model is reasonable, as are his ultimate conclusions based upon the model’s projections. Mr. Sullivan recommended in his report that Pond P11 be excavated no deeper than two feet above the limestone to avoid potential breaches of the confining soils above the aquifer. That recommendation led to the pond being “shallowed up,” and it was incorporated by the District into special condition No. 28. The provisions of special condition No. 28 are reasonable to ensure that excavation of Pond P11 will not breach the confining layer. The standards in special condition No. 28 pursuant to which a geotechnical field technician will monitor the excavation of Pond P11, and pursuant to which the District will determine whether to authorize deeper excavation of the pond, are generally accepted and can be adequately monitored by professionals in the field and the District. There is a potential for the loss of “significant volumes of water” from Pond P11 through evaporation “[d]ue to the sheer size of P11’s open surface area.”13 It is not entirely clear how the evaporation of water from Pond P11 was taken into account in Mr. Sullivan’s model, but it appears to have been considered.14 Dr. Mark Rains, Petitioner’s expert in hydrogeology, ecohydrology, and geomorphology, testified that evaporation from open water is generally about 12 inches more per year than evaporation from a wet meadow or Cypress forest, but he did not offer any specific criticism of the projections in Mr. Sullivan’s model related to the issue of evaporation. In sum, the more persuasive evidence establishes that Wetland A3 is not likely to suffer any adverse ecological or hydrological impacts from the proposed surface water management system and, more particularly, from Pond P11. Westfield has provided reasonable assurances in that regard. (2) Adequacy of the Wildlife Surveys The other reason why the first ERP application for the Project was denied in Blanco-I was that the wildlife surveys submitted with that application were found to be inadequate. Wildlife surveys are not required with every ERP application and, in that regard, Section 3.2.2 of the BOR provides that: [t]he need for a wildlife survey will depend on the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species, and whether the proposed system will impact that use such that the criteria in subsection 3.2.2 through 3.2.2.3 and subsection 3.2.7 will not be met. Westfield conducted a “preliminary” wildlife assessment in 2001. No listed species were observed, nor was any evidence of their presence on the Westfield property. Nevertheless, as detailed in Blanco-I,15 the District requested that Westfield perform a wildlife survey of Wetlands B4, C4, and B12, because all or part of those wetlands will be permanently destroyed by the proposed development. In an effort to comply with the District’s requests, Westfield conducted additional field visits in 2003 and also performed specific surveys for Southeastern Kestrels and Gopher Tortoises. The field visits “confirmed” the findings from the preliminary wildlife assessment, and no evidence of Southeastern Kestrels and Gopher Tortoises was observed during the surveys for those species. Judge Maloney found in Blanco-I that the wildlife surveys conducted by Westfield were inadequate because they “did not employ the methodology recommended by the District: the FWCC methodology.”16 However, the wildlife surveys were not found to be inadequate in Blanco-I because they focused on Wetlands B4, C4, and B12, instead of evaluating the entire Westfield property and/or all of the potentially impacted wetlands, including Wetland A3. After Blanco-I, a team of qualified professionals led by Brian Skidmore, an expert in wetlands, Florida wetlands ecology, and listed species assessment, conducted additional wildlife surveys of the Westfield property. Mr. Skidmore and his team had performed the preliminary wildlife assessment and the supplemental surveys submitted with Westfield’s first ERP application. The “FWCC methodology” referenced in Blanco-I is a methodology developed by the Fish and Wildlife Conservation Commission (FWCC) to evaluate potential impacts to listed species from large-scale projects, such as developments-of- regional impact and new highways. It is not specifically designed for use in the ERP process, which focuses only on wetland-dependent species. Mr. Skidmore adapted the FWCC methodology for use in the ERP process. The methodology used by Mr. Skidmore was reviewed and accepted by the District’s environmental regulation manager, Leonard Bartos, who is an expert in wetland ecology and ERP rules. The surveys performed by Mr. Skidmore and his team of professionals occurred over a five-day period in February 2005. The surveys focused on Wetlands B4, C4, and B12, and were performed at dawn and dusk when wildlife is typically most active. Additional wildlife surveys of the entire site were performed on five separate days between October 2005 and January 2006. Those surveys were also performed at dawn and dusk, and they included observations along the perimeter of Wetland A3 and into portions of the interior of that wetland on the Westfield property. Mr. Skidmore reviewed databases maintained by FWCC to determine whether there are any documented waterbird colonies or Bald Eagle nests in the vicinity of the Project. There are none. Mr. Skidmore contacted the Florida Natural Area Inventory to determine whether there are any documented rare plant or animal species on the Westfield property or in the vicinity of the Project. There are none. The post-Blanco-I wildlife surveys did not evaluate the usage of the Westfield property by listed species during the wetter spring and summer months of March through October even though, as Mr. Skidmore acknowledged in his testimony, it is possible that different species may use the property during the wet season. The post-Blanco-I wildlife surveys, like the original wildlife surveys, focused primarily on the species contained in Appendix 5 to the BOR -- i.e., wetland-dependent species that use uplands for nesting, foraging, or denning -- but Mr. Skidmore testified that he and his surveyors “were observant for any species,” including wetland-dependent species that do not utilize uplands. No listed wetland-dependent species were observed nesting or denning on the Westfield property. Several listed wetland-dependent birds -- i.e., snowy egret, sandhill crane, wood stork, and white ibis -- were observed foraging and/or resting on the property. Those birds were not observed in Wetlands B4, C4, or B12. The parties stipulated at the final hearing that the determination as to whether Westfield provided reasonable assurances with respect to the statutory and rule criteria related to fish and wildlife turns on whether the wildlife surveys submitted by Westfield are adequate.17 BOR Section 3.2.2 provides that “[s]urvey methodologies employed to inventory the site must provide reasonable assurance regarding the presence or absence of the subject listed species.” The wildlife surveys conducted by Westfield subsequent to Blanco-I in accordance with the FWCC methodology meet this standard. Although the surveys could have been more extensive in terms of the species assessed and the period of time over which they were conducted, the more persuasive evidence establishes that the wildlife surveys are adequate to document the presence or, more accurately the absence of listed wetland- dependent species on the Westfield property. The wetlands that will be directly impacted by the proposed development -- Wetlands B4, C4, and B12 -- do not provide suitable habitat for listed species. Those wetlands are small, low-quality wetlands, and Wetland B12 is technically exempt from the District’s fish and wildlife review because it is a small isolated wetland. There is no credible evidence that there will be any other adverse impacts to fish and wildlife from the proposed surface water management system. For example, even if there are undocumented listed species -- e.g., frogs, snakes, snails, etc. -- in Wetland A3, Mr. Skidmore credibly testified that the expected 0.3-foot increase in groundwater levels in that wetland during the dry season is not likely to adversely affect those species or their habitat because the water will still be below the surface. In sum, Westfield has provided reasonable assurance that the proposed development will not adversely affect fish and wildlife.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the District issue a final order approving Environmental Resource Permit No. 43024788.002, subject to the general and special conditions set forth in the proposed ERP dated July 29, 2005. DONE AND ENTERED this 10th day of April, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2006.
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 This is a challenge to certain administrative rules adopted by the St. Johns River Water Management District relating to permitting criteria for isolated wetlands. Section 373.414, F.S. mandates that permitting criteria for isolated wetlands be adopted by water management districts, by rule, by March 31, 1987. The statute also includes four more specific requirements for those rules. Petitioners contend that St. Johns River Water Management District Rule Chapter 40C-4, F.A.C. and the Applicant's Handbook, Management and Storage of Surface Waters, adopted as a rule by reference, fail to comply with the statutory mandate and are an invalid exercise of delegated legislative authority by the District. Respondent, St. Johns River Water Management District, contends that its rules comply with Section 373.414, F.S.. St. Johns River Water Management District contests the standing of Petitioner, the Florida Wildlife Federation, Inc. Intervenors, E.I. Du Pont De Nemours and Company, Inc. and Associated Minerals (USA), Inc., support the District's position and contest the standing of both Petitioners.
Findings Of Fact Petitioner, Sierra Club, Inc., (Sierra) is a non-profit corporation registered to do business within the state of Florida. It is an international organization, with regional committees, state chapters, and local regional groups. The Florida chapter has 15 regional groups, several of which are located within the jurisdictional boundaries of the St. Johns River Water Management District (SJRWMD). About 6,000 members live within the boundaries of the SJRWMD. The overall purpose of Sierra is to explore, enjoy and protect the natural resources of the earth. Sierra commonly offers outings for the enjoyment and education of its members and the general public. These involve traveling, hiking, birdwatching and other wildlife observation. Part of the outings program includes hiking and viewing of isolated wetlands and wildlife dependent on those wetlands. These outings take place within the SJRWMD. Some Sierra members are actively involved in work related to isolated wetlands, including studies, consulting, and managing of wetlands, some of which are located within the SJRWMD. The Florida Wildlife Federation, Inc. (FWF) is a non-profit corporation registered to do business in the state of Florida. It is comprised of organizations and individual members who support the wise use and management of Florida's natural resources. Sportsmen and naturalists who belong to the club are involved in hunting, fishing, hiking, birdwatching, nature photography and other activities loosely called "naturalizing". These activities take place within SJRWMD boundaries and rely on wildlife species which live in, or are dependent upon, isolated wetlands. FWF attracts membership by publicity of its existence and purpose directed to sportsmen and naturalists. Respondent, SJRWMD, is a political subdivision of the state of Florida, with the authority to regulate, through its permitting process, the management and storage of surface waters (MSSW) within its designated geographical boundaries, pursuant to Part IV of Chapter 373, F.S. Prior to adoption of the administrative rules in issue in this proceeding, the Florida Department of Environmental Regulation (DER) delegated to Respondent the responsibility for administration of its stormwater rule. Intervenors conduct heavy metal mining operations within the District. These mining operations are regulated pursuant to Chapter 40C-4, F.A.C. and the Applicant's Handbook. Virtually all mining activities exceed existing permitting thresholds and all District wetland criteria apply to the activities. Since 1983, SJRWMD has been regulating wetlands and wetland MSSW impacts, including isolated wetlands, throughout its 19-county area. The rules adopted in 1983 included all wetlands, both isolated and non-isolated. In 1986, the legislature created Section 373.414, F.S., which provided as follows: 373.414 Wetlands.-- By March 31, 1987, for those water management districts to which the department has delegated the responsibility for administration of its stormwater rule, each district shall adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department for purposes of regulation of dredging and filling. The rule shall include: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. This section does not affect the authority of the water management districts to regulate impacts on water quality and water quantity. Until a water management district has adopted a rule to implement the provisions of subsection (1), review of fish and wildlife impacts in small isolated wetlands shall be limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. Section 373.414(3), F.S. (1986) was repealed effective March 31, 1987, the deadline by which the districts were to have their own isolated wetlands rules in place. Sections 373.414(1) and (2), F.S. remain in effect. "Wetlands" is defined in SJRWMD's MSSW rule as: ...hydrologically sensitive areas which are identified by being inundated or saturated by surface or groundwater with a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Rule 40C-4.021(11), F.A.C. This definition is repeated in Section 10.7.3 of the Applicant's Handbook. Section 10.7.3 also provides: Wetlands are important components of the water resource because they serve as spawning, nursery and feeding habitats for many species of fish and wildlife, and because they provide important flood storage and water quality benefits. Not all wetlands provide these benefits, nor do they provide them to the same extent. A wide array of physical and chemical factors affect the functioning of any wetland community. * * * Small isolated wetlands are totally unique biological systems. They are not small versions of large wetlands. They play two major roles in animal ecology: to harbor diverse species that use the habitat for their entire life cycle, and to provide a productive resource for transient species. If a wetland is truly isolated, its fish population is generally limited to the smaller-bodied, smaller-mouthed varieties which are limited in their predatory abilities. This permits the abundance of amphibians and invertebrates not found in larger, more permanent wetlands where the fish would rapidly decimate the population. Amphibians are a cornerstone of the vertebrate food chain. They are food for a variety of snakes, which in turn, are food for hawks. Wading birds find easy prey as the isolated wetlands begin drying up and contracting. The entire cycle of the pond, from fully wet to dry, is significant. Ambystoma tigrinum (tiger salamanders) are hatched and raised in isolated wetlands; they leave, and must return to breed in the same pond. They have a strong homing instinct. Ignorant of intervening events, they are often found spending their honeymoon dodging cars on an apartment complex pavement, seeking in vain the pond of their birth. The SJRWMD adopted Chapter 40C-4, F.A.C. and its Applicant's Handbook to regulate the construction, operation, alteration, removal or abandonment of surface water management systems, to insure that those activities will not harm the water resources of the District and insure that they are consistent with the objectives of the District. Activities which do not meet certain thresholds established in Rule 40C-4.041, F.A.C. do not require a District MSSW permit, including those activities impacting an isolated wetland. The threshold provisions pre-date Section 373.414, F.S. and still apply. The threshold provisions of Rule 40C-4.041(2)(b), F.A.C., challenged by Petitioners, state as follows: 40C-4.041 Permit Required. * * * (b) An individual or general permit is required prior to the construction, alteration, operation, maintenance, abandonment or removal of a surface water management system which: Is capable of impounding a volume of water of forty or more acre feet; or Serves a project with a total land area equal to or exceeding forty acres; or Serves a project with a total land area equal to or exceeding ten acres, when any part of the project is located within the Wekiva River Hydrologic Basin north of State Road 436; or Provides for the placement of twelve or more acres of impervious surface which constitutes 40 or more percent of the total land area; or Provides for the placement of one half acre or more of impervious surface, when any of the impervious surface is located within the Wekiva river Hydrologic Basin north of State Road 436; or Contains a traversing work which traverses: A stream or other watercourse with a drainage area of five or more square miles upstream from the traversing work; or An impoundment with more than ten acres of surface area; or Contains a surface water management system which serves an area of five or more contiguous acres of a hydrologically sensitive area with a direct hydrologic connection to: A stream or other watercourse with a drainage area of five or more square miles; or An impoundment with no outfall, which is not wholly owned by the applicant and which is ten acres or greater in size; or A hydrologically sensitive area not wholly owned by the applicant. Is wholly or partially located within the Wekiva River Hydrologic Basin's Riparian Habitat Protection Zone as described in paragraph 40C-41.063(3)(e). The same threshold provisions are contained in Section 3.3.1, Applicant's Handbook, also challenged by Petitioners. In 1987, after passage of Section 373.414, F.S. the District amended its wetland regulations to provide that all wetlands would be evaluated, regardless of size, within the already-established permit thresholds: A wide variety of wetland habitats exist within the St. Johns River Water Management District. The functions which these habitats serve are dependent on many factors. Biological and hydrological evidence demonstrate that size is not the single determinant of wetland value. Since the District bases its evaluation on wetland functions, the District will review impacts to all wetlands (a zero acre threshold will be employed) in reviewing impacts to fish and wildlife and their habitats for systems requiring a permit from the District. * * * 10.7.5 Wetland Evaluation Applicant's Handbook As the result of an objection by the Joint Administrative Procedures Committee (JAPC) stating that the District had failed to comply with Section 373.414(1)(a), F.S., the District amended the zero acre review threshold for isolated wetlands and adopted a 0.5 acre review threshold, based upon biological investigations indicating that wetlands below this size have minimal fish and wildlife value. In all applications for MSSW permits under Chapter 40C-4, the District reviews impacts to isolated wetlands unless those wetlands are less than 0.5 acre in size and are not used by threatened or endangered species. No permit application, however, is required for projects under the thresholds described in paragraph 13, above, even though those projects might include wetlands larger than 0.5 acres. Staff of the SJRWMD concedes that the non-regulated isolated wetlands might have significant value and agrees with Petitioner's experts that isolated wetlands found in projects below the Rule 40C-4.041(2)(b), F.A.C. thresholds (called "get-in-the-door" thresholds) could have more than minimal fish and wildlife value. Petitioners challenge the entire Chapter 40C-4, F.A.C. and Applicant's Handbook for non-compliance with Section 373.414(1)(d), F.S. The SJRWMD does not consider, and nothing in its rules require consideration of, cumulative impacts of a series of isolated wetlands included in below-threshold projects even though there could be a negative cumulative impact from the loss of those wetlands. Petitioners challenge section 10.7.4 Wetland Review Criteria, Applicants Handbook, to the extent that it may limit consideration of impacts to isolated wetlands to off-site aquatic and wetland dependent species, unless threatened or endangered species are involved. This section provides in pertinent part: 10.7.4 Wetland Review Criteria In determining whether a system will meet the objective contained in Paragraph 9.1.1(j) and that part of the criterion contained in Paragraph 10.2.1(e) regarding hydrologically related environmental functions, the District will, except when threatened or endangered species are involved, consider only the impacts to off-site aquatic and wetland dependent species relative to the functions currently being provided by the wetland to these types of fish and wildlife. This assessment of off-site impacts is based upon a review of pertinent scientific literature, soils and hydrologic information, and a general understanding of the ecological resources of the site. Generally, site specific biological data collection is not required. An applicant must provide reasonable assurance that a proposed system will not cause adverse off-site changes in: the habitat of an aquatic and wetland dependent species, the abundance and diversity of aquatic and wetland dependent species, and the food sources of aquatic and wetland dependent species. The only exception to limiting review of a system under this Subsection to off-site impacts is where wetlands are used or reasonable scientific judgement would indicate use by threatened or endangered species listed in Sections 39-27.003 and 39-27.004, F.A.C., which are aquatic or wetland dependent. In this instance, both off-site and on-site impacts will be assessed. Petitioners also challenge section 16.1.3(a), Applicant's Handbook, to the extent that it may limit mitigation requirements to off-site impacts. If a project as initially proposed is subject to Respondent's surface water permitting requirements, and as initially proposed fails to meet wetland review criteria, mitigation may be considered as a means of bringing the proposed project within permitting requirements. The challenged portion provides: 16.1.3 Mitigation (a) Mitigation is defined here as action or actions taken to offset the adverse effects of a system on off-site functions and in the care of threatened or endangered species, to offset the adverse effects of a system on on-site and off-site functions. Although there may be a difference in degree of functions performed by isolated wetlands on site, as compared to the degree of functions performed by isolated wetlands off-site, the difference in negligible. Adverse ecological effects on-site will also be felt off-site. In developing its criteria SJRWMD staff could not conceive of a situation where a functioning wetland or isolated wetland would be eliminated and not have an off-site impact. Finally, Petitioners challenge the last paragraph of Section 16.1.4, Applicant's Handbook, related to mitigation for mining projects that fall under the jurisdiction of the Department of Natural Resources (DNR) pursuant to section 378.601, F.S. (heavy mineral extraction). Section 16.1.4, Wetland Creation, Applicant's Handbook, provides guidelines to be used to estimate the extent of wetland creation which may mitigate for the destruction of a unit of wetland. The challenged portion of the section provides: For lands and mining activities that fall under the jurisdiction of the Florida Department of Natural Resources pursuant to section 378.601, F.S. mitigation or compensation plans that are consistent with the land reclamation policies and criteria approved by that agency will be considered by the District as satisfactory mitigation. (emphasis added). The District is not required to allow mitigation if impacts are so substantial that they cannot be offset. If the District does not consider a DNR reclamation plan as sufficient, the District applies its wetland review criteria in section 10.7.4, Applicant's Handbook. For heavy mineral mining, DNR requires one-to-one mitigation for every wetland, regardless of type, that is disturbed by the zoning activity, and the restoration of wildlife habitat, including threatened or endangered species. Heavy mineral mining, in contrast to other mining such as phosphate, has far less impact on the environment. This is reflected in the success which has been experienced in restoring wetlands disturbed by heavy mineral mining.
The Issue The issues to be resolved in this proceeding concern whether an environmental resource permit (number 4-109-0216-ERP) (the ERP) should be modified to allow construction and operation of a surface water management system (the project) for a residential development known as EV-1, in a manner consistent with the standards for issuance of ERPs in accordance with Florida Administrative Code Rules 40C-4.301 and 40C-4.302.
Findings Of Fact The applicant MCCDD is a unit of special purpose government established in accordance with the provisions of Chapter 190, Florida Statutes for purposes enunciated by that statute. MCCDD has applied for the permit modification at issue in this proceeding. The District is a special taxing district created by Chapter 373, Florida Statutes. It is charged with preventing harm to the water resources of the district and to administer and enforce Chapter 373, Florida Statutes, and related rules promulgated thereunder. Petitioner Larsen was born in Daytona Beach, Florida. Sometime early in 2002 she apparently moved to the Crescent Beach area and lived for 5-6 months. Crescent Beach is approximately 30 minutes from the EV-1 site. Since October 2002, Petitioner Larsen has been a resident of Live Oak, Florida. She resided for most of her life in Daytona Beach, approximately one hour and 20 minutes from the site. She has been involved with the approval process of the entire Palencia Development (DRI) since 1998, of which the subject parcel and project is a part. The Petitioner likes to observe wildlife in natural areas and to fish, swim, and camp. Ms. Larsen has visited the Guana River State Park (Park) which borders the Tolomato River. Her first visit to the Park was approximately one to two years before the DRI approval of the Palencia project. Ms. Larsen has used the Park to observe birds and other wildlife and to fish. She has fished the Tolomato River shoreline in the Park, and also at the Park dam located across the river and south about two and one-half miles from the EV-1 site. Ms. Larsen has seen the Tolomato River some 30 to 40 times and intends to continue using the Tolomato River and the Guana River State Park in the future. On several occasions she and Petitioner Billie have visited "out-parcel" residents of the Palencia development and viewed wildlife and birds and walked the Marshall Creek area and the marsh edge viewing various bird species. In June 2003, after this litigation ensued, she, her niece and out-parcel resident Glenda Thomas walked a great deal of the subject site taking photographs of wildlife. In July 2003, Larsen and Billie participated in a fishing boat trip in the Marshall Creek area. In September 2003, she and Petitioner Billie kayaked on two consecutive days in the Tolomato River and in Marshall Creek, observing various wildlife such as endangered Wood Storks. Petitioner Larsen has been actively involved for the past 12 years as an advocate for the protection of indigenous or native American burial, village and midden sites on private and government property. Petitioner Billie is a spiritual leader or elder of the Independent Seminole Nation of Florida. In that capacity he sees it as his responsibility to protect animals, rivers, trees, water, air, rains, fish, and "all those things." The Independent Traditional Seminole Nation consists of approximately 200 persons, most of whom reside in Southern Florida. Mr. Billie lives in Okeechobee, Florida, several hours distant by automobile from the project site. About 10 to 30 years ago Billie visited the Eastside of Tolomato River, to visit the beach, the river and other areas in what is now Guana State Park. He visited the dike or dam area and walked along the river front in what is now the Park. He checked on burial sites along the Tolomato River in what is now Guana State Park. Billie first visited the Palencia property about five years ago and has been back a number of times. He has observed various forms of wildlife there and has visited out-parcel owners in the development area to ensure that they do not destroy any burial sites. Billie considers himself an environmental and indigenous rights advocate charged with maintaining the earth and resources for the next generation and preserving sacred and burial sites of indigenous people. He has in the past assisted governmental entities in preserving sacred indigenous sites and burial sites and has participated in the reburials of human remains and their belongings. Sometime ago Billie went on a boat ride on the Tolomato River. Since the filing of the Petition in this proceeding he has been in a kayak on the Tolomato River twice and once in a boat in the vicinity of Marshall Creek. He has also observed Marshall Creek from Shannon Road. He has been on the EV-1 site three times, all in conjunction with this litigation. His concerns with the EV-1 project in part stem from alleged impacts to an indigenous burial ground which he feels he identified, due to the presence of "a lot of shell." However, all of the shell was located in a previously constructed road bed off of the EV-1 project site. He testified that he has had no training with regard to identification of archeological sites, but that he can "feel" if a burial site is present. He believes that the EV-1 project will adversely affect everyone just like it adversely affects him. The Project The project is a 23.83-acre, single-family residential development and an associated stormwater system known as EV-1. It lies within the much larger Marshall Creek DRI in St. Johns County, Florida. The project is in and along wetlands associated with the Tolomato River to the east and wetlands associated with Marshall Creek, a tributary of the Tolomato River, to the north. The project consists of thirteen residential lots, two curb and gutter roadway segments with cul- de-sacs (Hickory Hill Court and North River Drive), paved driveways to individual lots, concrete and pvc stormwater pipes, two stormwater lift stations, perimeter berms, four stormwater run-off storage ponds, and an existing wet detention stormwater pond, which was previously permitted and located south and west of the EV-1 site. The project will also have on-site and off- site wetland mitigation areas. All portions of the EV-1 site are landward of the mean high waterline of the adjacent water bodies. The project plan calls for permanent impacts to 0.82 acres of wetlands. A total of 0.75 acres of that 0.82 acre wetlands is comprised of fill for four access crossings for roads and driveways and a total of 0.07 acres is for clearing in three areas for boardwalk construction. MCCDD proposes to preserve 6.47 acres of forested wetlands and 5.6 acres of saltmarsh wetlands, as well as to preserve 10.49 acres of upland buffers; to restore 0.05 acres of salt marsh and to create 0.09 acres of salt marsh wetlands as mitigation for any wetland impacts. The EV-1 mitigation plan is contiguous to and part of the overall Marshall Creek DRI mitigation plan. The Marshall Creek DRI is also known as "Palencia." The upland buffers are included to prevent human disturbance of the habitat value of off-site wetlands. The upland buffers on the EV-1 site range from 25 feet in areas that do not adjoin tidal marshes to 50 feet in areas which front the Tolomato River or Marshall Creek. Within the 25-foot buffers restrictions include (1) no trimming of vegetation and (2) no structures may be constructed. Within the 50-foot buffers the same restrictions apply, except that for 50 percent of the width of each lot, selected hand trimming may be done on branches 3 inches or less in diameter between 3 and 25 feet above the ground surface. The buffers and other preserved areas will be placed in conservation easements, ensuring that they will remain undisturbed. The Stormwater Management System The 23.83 acre drainage area of the EV-1 project is divided into two types: (1) "Developed Treated Area" consisting of the houses, a portion of each residential lot, all driveways, sidewalks and both cul-de-sac roadway sections, comprising 11.27 acres and (2) "Undeveloped Buffer Area" consisting of the undeveloped portion of the residential lots or 12.56 acres. The buffer areas are located between the developed treated area and the surrounding receiving water. The developed and undeveloped areas of each lot will be separated by earthen berms. The berms will be constructed within each lot and will be a minimum of one foot high above existing ground level at the landward ledge of the natural buffer area. When water falls on the house and the surrounding yard it will be directed through grading to the berm of the lot. Once it reaches the berm it will be collected in a series of inlets and pipes; and once collected within the pipe system it will be stored within the collection system and in several storage ponds. The developed areas storage systems consisting of the inlets, pipes and storage ponds are then connected to two stormwater lift stations that transfer the stored runoff to an existing wet detention pond, known as the EV-2 pond, which is located immediately adjacent to the EV-1 project area. There are two pumps and a wet well in each pump station. The combination of storage ponds, piping systems, the wet wells and the pump stations provide storage of the entire required treatment volume which is 61,000 cubic feet. Actually, the system has been designed to treat 65,000 cubic feet, somewhat in excess of the required treatment volume. Even when the pumps are not running these components of the system are able to completely contain the required treatment volume. The system has been designed to capture and treat in excess of 1.5 inches of runoff. This is the runoff that would be generated from a 5.3 inch rainfall event which is expected to occur less than once per year. This l.5 inches of runoff would generate the required 61,000 cubic feet of treatment volume. In order to ensure that the design volume is not exceeded, the applicant has limited the amount of impervious service on each lot to a maximum of 10,000 square feet. In order to ensure that the on-lot ponds in the collection system are hydrologically isolated, they have been designed to be either completely lined or constructed with "cut- off walls" placed in soils with either a hard pan layer or a layer of low permeability. This would prevent the ponds from de-watering nearby wetlands by removing any hydrologic communication between those wetlands and the ponds. Further, the liners and cut-off walls will isolate the pond from the effects of groundwater. This will ensure that the ponds can be maintained at the designed water level and that, therefore, the collection system will have the required storage volume. The EV-2 pond provides for wet detention treatment and was previously permitted and constructed as part of the EV-2 project. In order to accommodate the additional flow from the EV-1 site, the existing orifice will be plugged and an additional orifice will be installed. No changes will be made to the shape, depth, width, or normal water elevation of the EV- 2 pond. The EV-2 pond discharges into wetland systems that are directly connected to the intracoastal waterway. The EV-2 pond discharges into a wetland system and has a direct hydrologic connection to the intracoastal waterway north of the Matanzas inlet. The District rules do not contain a legal definition of the intracoastal waterway; however, for the purpose of determining whether a project discharge constitutes a direct discharge to the intracoastal waterway, the waterway includes more than the navigable channel of the intracoastal waterway. (Projects that have a direct discharge to the intracoastal waterway north of the Matanzas inlet are not required to demonstrate that the post-development peak rate of discharge does not exceed the pre-development peak rate of discharge, because this criterion was designed to evaluate the flooding impacts from rainfall events.) Flooding in water- bodies such as the intracoastal waterway is not governed by rainfall, but rather by tides and storm surges. The system design includes a clearing and erosion control plan and specific requirements to control erosion and sediment. The system design incorporates best management practices and other design features to prevent erosion and sedimentation, including (1) capturing turbidity; (2) sodding and grassing side slopes; (3) filtering water; (4) use of siltation fences during construction; (5) removing sediment; (6) early establishment of vegetative cover; and (7) keeping water velocities low, at less than 2 feet per second. The EV-2 pond is hydrologically isolated from groundwater influence because it was constructed with cut-off walls placed into a hard pan, impermeable layer. The EV-2 pond appears to be working properly, with no indication of adverse groundwater influence. The system has been designed to prevent adverse impacts to the hydro-period of remaining wetlands. The wetlands are hydrated through groundwater flow. The groundwater will still migrate to the wetlands as it did in the pre-development condition. The cut-off walls and liners in the ponds will prevent draw-down of groundwater from the wetlands. No septic tanks are planned for the project. The system is designed based on generally accepted engineering practices and should be able to function as designed. The pumps are three inch pumps that can handle solids up to two and one-half inches in diameter. Yard grates have one-inch slots that will prevent anything larger than one inch diameter from entering the system. Additionally, solids would accumulate in the sump areas. Finally, even if there were a power outage, the system can store the full treatment volume, without discharging, until power is restored. Flood Plain Consideration The 100-year flood elevation for the EV-1 site is 7.0 feet NGVD. The finish flood elevation of the houses will be 8.0 feet. The streets and roadways have been designed to be flood free in accordance with the St. Johns County criteria relating to flooding. The 10-year flood elevation for the EV-1 site is 4.1 feet NGVD. The project will result in filling 2,691 cubic feet of fill in areas below the 4.1-foot NGVD elevation which will include 2,456 cubic feet for "Hickory Hill" and 235 cubic feet for "North River." Thus, 2,691 feet of water will displaced in the 10-year floodplain of the Tolomato River as a result of the EV-1 project. This fill will result in a rise in water elevation in the Tolomato River of 0.0002 feet, which is less than the thickness of the single sheet of paper and is statistically insignificant. If other applicants were to impact the 10-year floodplain to the same extent, there would be no adverse cumulative impact in the flood storage capability of the floodplain. The Tolomato River/intracoastal waterway does not function as a floodway because it is more influenced by wind and tide than by stormwater runoff. Therefore, the project will not cause a net reduction in the flood conveyance capabilities of a floodway. Surface Water Each roadway and master driveway is provided with culverts to ensure redundant, multiple paths for water flow. For this reason, the wetland fill will not significantly impact the flow of water. These redundant connections also ensure that the water velocities are low, reducing the likelihood of erosion. In order to ensure that erosion will not occur, surface water velocities will be less than two feet per second and steep slopes (greater than two percent) will be sodded. The project does not impound water other than for temporary detention purposes. The project does not divert water to another hydrologic water basin or water course. Water Quality The Tolomato River and Marshall Creek, its tributary, are classified as Class II water bodies pursuant to Florida Administrative Code Rule 62-302.400. The designated use for Class II water is for shellfish harvesting. The Tolomato River is the receiving water for the EV-1 project. The Marshall Creek and Tolomato River Class II waters do not meet the applicable Class II water quality standards for total fecal coliform bacteria and for dissolved oxygen (DO). Water sampling indicates that sometimes the regulatory parameters for fecal coliform and for DO are exceeded in the natural occurring waters of Marshall Creek and the Tolomato River. The EV-2 pond has a large surface area and the top of the water column will be the most well-oxygenated due to contact with the atmosphere. Any water discharging from the pond will come from the surface of the pond which is the water containing the highest oxygen content in the entire water column of the pond. Thus, discharges from the EV-2 pond will not violate water quality standards for DO and the construction and operation of the project will actually improve the water quality in the receiving waters with respect to the dissolved oxygen parameter. Bacteria such as fecal coliform, generally have a life span of a few hours to a few days. The EV-2 pond will have a detention time, for water deposited therein, of approximately 190 days. This lengthy residence time will provide an ample opportunity for die-off of any coliform bacteria in the water column before the water is discharged from the pond. Additionally, there will be substantial dilution in the pond caused by the large volume of the pond. No new sources of coliform bacteria such as septic tanks are proposed as part of the EV-1 project. The fecal coliform discharge from the pond will thus be very low in value and will lead to a net improvement in the water quality of the receiving water-body. In fact, since the commencement of construction on the Marshall Creek DRI phases, a substantial and statistically significant decrease in fecal coliform levels has been observed in the main channel of Marshall Creek. The applicant has provided a detailed erosion control plan for the construction phase of the EV-1 project. The plan requires the use of best erosion and sediment control practices. In any location that will have slopes exceeding a two percent gradient, sodding will be provided adjacent to roadways or embankments, thereby preventing erosion. The EV-1 project design is based on generally accepted engineering practices and it will be able to function and operate as designed. The liner and cut-off wall components of the pond portions of the project are proven technology and are typical on such project sites which are characterized by high groundwater table and proximity to wetlands. The pump stations component of the project design is proven technology and is not unusual in such a design situation. The pump stations have been designed according to the stringent specifications provided for wastewater lift station pumps in sewer systems which operate with more frequency and duration of running times and therefore, more stressful service, than will be required for this system. Once constructed, the surface water management system will be operated and maintained by the applicant, which is a community development district. An easement for access in, on, over and upon the property, necessary for the purpose of access and maintenance of the EV-1 surface water management system, has been reserved to the community development district and will be a permanent covenant running with the title to the lots in the project area. The portions of the river and Marshall Creek adjacent to the project have been classified by the Department of Environmental Protection as conditionally restrictive for shellfish harvesting because of fecal coliform bacterial levels, which often exceed state water quality standards for that parameter. The boundary of the conditional shellfish harvesting area is the mean high water elevation. The EV-1 project site is located above the mean high water elevation. None of the wetland areas within the project site are able to support shellfish due to the characteristics of the wetlands and the lack of daily inundation of the high marsh portion of the wetlands. No shellfish have been observed on the EV-1 site. The EV-1 project will not result in a change in the classification of the conditionally restricted shellfish harvesting area. The project will not negatively affect Class II waters and the design of the system and the proposed erosion controls will prevent significant water quality harm to the immediate project area and adjacent areas. The discharge from the project will not change the salinity regime or temperatures prevailing in the project area and adjacent areas. Wetland Impact The 23.83-acre site contains five vegetative communities that include pine, flatwood, uplands, temperate hardwood uplands, wetland coniferous forest, wetland mixed forest and salt marsh. Several trail roads that were used for site access and forestry activities traverse the site. The project contains 0.82 acres of wetlands. The wetland communities are typical and are not considered unique. Most of the uplands on the main portion of the site exhibit the typical characteristics of a pine flatwood community. Some of the road-crossing areas within the EV-1 boundary are wetland pine flatwoods; these areas are dominated by pines and a canopy, but are still considered wetlands. There is also a very small area of high marsh vegetative community within the EV-1 boundary. Most of the site, both wetlands and uplands, has been logged in the past. The wetlands are functional; however, the prior logging operations have reduced the overall wildlife value of the site, including that of the wetlands, due to the absence of mature trees. All of the wetlands on the EV-1 site are hydrologically connected to and drain to the Marshall Creek and Tolomato River systems. The wetlands on the site are adjacent to an ecologically, important watershed. To the east of the EV-1 site, the Tolomato River and Marshall Creek are part of the Guana Marsh Aquatic Preserve. The Guana River State Park and Wildlife Management Area is also to the east of the EV-1 site. All the wetlands and uplands on the EV-1 site are located above the elevation of the mean high water line and therefore are outside the limit of the referenced Aquatic Preserve and Outstanding Florida Water (OFW). Direct Wetland Impact Within the site boundary there will be a total of 0.82 acres of wetland impacts in seven areas. MCCDD proposes to fill 0.75 acres of the wetlands to construct roads to provide access to the developed uplands and selectively clear 0.07 acres of the mixed forested wetlands to construct three pile-supported pedestrian boardwalks. The fill impacts include 0.29 acres within the mixed forested wetlands, 0.32 acres within the coniferous wetlands, and 0.14 acres within the high salt marsh area. The direct impacts to wetlands and other surface waters from the proposed project are located above the mean high water line of Marshall Creek and the Tolomato River. The first impact area is a 0.25-acre impact for a road crossing from the EV-2 parcel on to the EV-1 site. 0.14 acres of the 0.25 acres of impact will be to an upper salt marsh community and 0.11 acres of impact is to a mixed forested wetland. This impact is positioned to the south of an existing trail road. The trail road has culverts beneath it so there has been no alteration to the hydrology of the wetland as a result of the trail road. This area contains black needle rush and spartina (smooth cord grass). The black needle rush portion of this area may provide some foraging for Marsh Wrens, Clapper Rails and mammals such as raccoons and marsh rabbits. The fresh-water forested portion of this area, which contains red maple and sweet gum, may provide foraging and roosting and may also be used by amphibians and song birds. Wading birds would not likely use this area because the needle rush is very sharp- pointed and high and will not provide an opportunity for these types of birds to forge and move down into the substrate to feed. The wading birds also would be able to flush very quickly in this area and their predators would likely hide in this area. The second impact area is a 0.25-acre impact to a pine flatwoods wetland community and will be used for a road crossing. It is in a saturated condition most of the time. The species that utilize this area are typically marsh rabbits, possums, and raccoons. The third impact area is a 0.18-acre impact to a mixed forested wetlands for a roadway crossing on the south end of the project. The impact is positioned within the area of an existing trail road. The trail road has culverts beneath it, so there will be no alteration to the hydrology of the wetland as a result of the road. This area is characterized by red maple, sweet gum and some cabbage palm. There will be marsh rabbits, raccoons, possums, some frogs, probably southern leopard frogs and green frogs in this area. Wading birds would not likely use this area due to the same reasons mentioned above. The fourth impact area is a 0.07-acre impact for a driveway for access to Lot two. This area is a mixed forested wetland area, having similar wildlife species as impact areas three and seven. The fifth impact area is a 0.02-acre clearing impact for a small residential boardwalk for the owner of Lot six to access the uplands in the back of the lot. The proposed boardwalk will be completely pile-supported and will be constructed five feet above the existing grade. This area is a mixed forested wetland area, having similar species as impact areas three and seven. Wading birds would also not likely use this area for the same reasons delineated above as to the other areas. The sixth impact area is also a 0.02-acre clearing impact similar to impact area five. The proposed board walk would be located on Lot five and be completely pile-supported five feet above the existing grade. This area is a mixed forested wetland area similar to impact area five. Deer will also use this area as well as the rest of the EV-1 site. Wading birds will probably not use this area due to the same reasons mentioned above. The seventh impact area is a 0.03-acre impact for two sections of a public boardwalk (previously permitted) for the Palencia Development. The proposed boardwalk will be completely pile-supported, five feet above the existing grade. This is a pine-dominated area with similar wildlife species to impact area two. All these wetlands are moderate quality wetlands. The peripheral edges of the wetlands will be saturated during most of the year. Some of the interior areas that extend outside the EV-1 site will be seasonally inundated. Secondary Impacts The applicant is addressing secondary impacts by proposing 8.13 acres of 25-foot wide (or greater) upland buffers and by replacing culverts at the roadway crossings to allow for wildlife crossing and to maintain a hydrologic connection. Mitigation by wetland preservation is proposed for those areas that cannot accommodate upland buffers (i.e., the proposed impact areas). Under the first part of the secondary impact test MCCDD must provide reasonably assurance that the secondary impact from construction, alteration and intended or reasonably expected uses of the project will not adversely affect the functions of adjacent wetlands or other surface waters. With the exception of wetland areas adjacent to the road crossings, MCCDD proposes to place upland buffers around the wetlands where those potential secondary impacts could occur. The buffers are primarily pine flatwoods (pine dominated with some hardwood). These buffers encompass more area than the lots on the EV-1 site. The upland buffers would extend around the perimeter of the project and would be a minimum of 25 feet and a maximum of 50 feet wide, with some areas actually exceeding 50 feet in width. The buffers along the Marshall Creek interface and the Tolomato River interface will be 50 feet and the buffers that do not front the tidal marshes (in effect along the interior) will be 25 feet. These upland buffers will be protected with a conservation easement. No activities, including trimming or placement of structures are allowed to occur within the 25-foot upland buffers. These restrictions ensure that an adequate buffer will remain between the wetlands and the developed portion of the property to address secondary impacts. The restriction placed on the 25-foot buffers is adequate to prevent adverse secondary impacts to the habitat value of the off-site wetlands. No types of structures are permitted within the 50- foot buffers. However, hand-trimming will be allowed within half of that length along the lot interface of the wetland. Within that 50 percent area, trimming below three-feet or above 25-feet is prohibited. Trimming of branches that are three inches or less in diameter is also prohibited. Lot owners will be permitted to remove dead material from the trimming area. The 50-foot buffers will prevent secondary impacts because there will still be a three-foot high scrub area and the 50 foot distance provides a good separation between the marsh which will prevent the wading birds, the species of primary concern here, from flushing (being frightened away). None of the wetland area adjacent to uplands are used by listed species for nesting, denning, or critically important feeding habitat. Species observed in the vicinity of Marshall Creek or the adjacent Tolomato River wetland aquatic system include eagle, least tern, brown pelican, and wading birds such as the woodstork, tri-color blue heron, and snowy egrets. Wading Birds will typically nest over open water or on a island surrounded by water. Given the buffers proposed by MCCDD, the ability of listed species to forage in the adjacent wetlands will not be affected by upland activities on the EV-1 site. The adjacent wetlands are not used for denning by listed species. Under the second part of the secondary impact test, MCCDD must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling nesting or denning by these species. There are no areas on the EV-1 site that are suitable for nesting or denning by threatened or endangered species and no areas on the EV-1 site that are suitable for nesting or denning by aquatic and wetland dependent species. After conducting on-site reviews of the area, contacting the U.S. Fish and Wildlife Service and the Florida Wildlife Commission and reviewing literature and maps, Mr. Esser established that the aquatic and wetland listed species are not nesting or denning in the project area. There is a nest located on uplands on the first island east of the project site, which was observed on October 29, 2002. The nest has been monitored informally some ten times by the applicants, consultants and several times by personnel of the District. The nest was last inspected on October 14, 2003. No feathers were observed in the nest at that time. It is not currently being used and no activity in it has been observed. Based on the absence of fish bones and based upon the size of the sticks used in the nest (one-half inch) and the configuration of the tree (crotch of the tree steeply angled) it is very unlikely that the nest is that of an American Bald Eagle. It is more likely the nest of a red-tailed hawk. Historical and Archeological Resources Under the third part of the secondary impact test and as part of the public interest test, any other relevant activities that are very closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical or archeological resources must be considered. When making a determination with regard to this part of the secondary impact test the District is required by rule to consult the Division of Historical and Archeological Resources (the Division) within the Department of State. The District received information from the Division and from the applicant regarding the classification of significant historical and archeological resources. In response to the District's consultation with the Division, the Division indicated that there would be no adverse impacts from this project to significant historical or archeological resources. As part of the Marshall Creek DRI application, a Phase I archeological survey was conducted for the entire area of the DRI, including the EV-1 project area. The Phase I survey of the Marshall Creek DRI area revealed nine archeological sites. At the end of the Phase I survey, five of the nine sites were recommended to be potentially eligible for the National Register of Historical places and additional work was recommended to be done on those five sites, according to Dr. Ann Stokes, the archeologist who performed the Phase I survey and other archeological investigation relevant to this proceeding. One of the sites considered eligible for listing on the National Register of Historic Places was site 8SJ3146. Site 8SJ3146 was the only site found in the area near the EV-1 project site. The majority of the EV-1 project site lies to the east of this archeological site. The entry road leading into EV-1 crosses the very southeastern edge or corner of the 8SJ3146 archeological site. Shovel tests for archeological remains or artifacts were conducted across the remainder of the EV-1 property and were negative. Ceramic shards were found in one of the shovel tests (shovel test number 380), but it was determined by Dr. Stokes that that ceramic material (pottery) had been within some type of fill that was brought into the site and the ceramics were not artifacts native to that site. Therefore, it was not considered a site or an occurrence. There was no evidence of any human remains in any of the shovel test units and there was nothing to lead Dr. Stokes to believe that there were any individuals buried in that area. (EV-1) Because a determination was made that 8SJ3146 was a potentially significant site, a "Phase II assessment" was conducted for the site. During the Phase II assessment five tests units were established on the site to recover additional information about the site and assess its significance. The test unit locations (excavations) were chosen either to be next to an area where there were a lot of artifacts recovered or where an interesting type of artifact had been recovered. Test units one through four contained very few or no artifacts. Test unit five however, yielded faunal bones (animal remains), pottery and a post mold (post molds are evidence of support posts for ancient structures). After the Phase II assessment was conducted, site 8SJ3146 was considered to be significant, but the only part of the site that had any of the data classes (artifact related) that made it a significant site was in the area of the very southwest portion of 8SJ3146, surrounding test unit five. Dr. Stokes recommended that the area surrounding test unit five in the very southwestern portion of 8SJ3146 be preserved and that the remainder of the site would not require any preservation because the preservation of the southwestern portion of the site was the only preservation area which would be significant archeologically and its preservation would be adequate mitigation. That southwestern portion of the site, surrounding unit five, is not on the EV-1 site. Dr. Stokes recommended to the applicant and to the Division that a cultural resource management plan be adopted for the site and such a plan was implemented. A Phase I cultural resource survey was also conducted on the reminder of the EV-1 site, not lying within the boundaries of 8SJ3146. That survey involved shovel tests across the area of the EV-1 project area and in the course of which no evidence of archeological sites was found. Those investigations were also reported to the Division in accordance with law. The preservation plan for site 8SJ3146, as to preservation of the southwest corner, is now called an archeological park. That designation was shown to be adequate mitigation for this site. The preservation area is twice as large as the area originally recommended by Dr. Stokes to be preserved; test unit five is within that preservation area. Dr. Stokes's testimony and evidence are not refuted by any persuasive countervailing evidence and are accepted. They demonstrate that the construction and operation of the EV-1 project will not adversely affect any significant archeological or historical resources. This is because any effects to site 8SJ3146 are mitigated by the adoption of the preservation plan preserving the southwest portion of that archeological site. Under the fourth part of the secondary impact test, the applicant must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or result in water quality violations. MCCDD has demonstrated that any future phase or expansion of the project can be designed in accordance with the District's rule criteria. Mitigation of Adverse Impacts The permit applicant has proposed mitigation to offset adverse impacts to wetland functions as part of its ERP application. The proposed mitigation consists of 0.05 acres of wetlands restoration, 12.07 acres of wetland preservation (including 6.47 acres of mixed forested wetlands and 5.60 acres of salt marsh), 10.49 acres of upland preservation (which includes buffers and additional upland areas) and 0.09 acres of salt marsh creation. The mitigation for the EV-1 project will occur on-site and off-site; 10.49 acres of upland buffer are being committed to the project. The upland buffers are on-site; the rest of the mitigation is off-site and is adjacent to EV-1. There will be 5.6 acres of salt marsh preservation and 6.47 acres of forested wetland preservation. All of the mitigation is on land lying above the mean high water elevation and is outside the aquatic preserve and the OFW. The salt marsh restoration will occur by taking out an existing trail road that is in the northeast section of the site and the salt marsh creation site is proposed at the tip of lot number one. The preservation of wetlands provides mitigation value because it provides perpetual protection, ensuring that development will not occur in those areas, as well as preventing agricultural activities, logging and other relatively unregulated activities from occurring there. This will allow the conserved lands to mature and to provide more forage and habitat for wildlife that would use those areas. The functions that are currently being provided by the wetlands to be impacted will be replaced and exceeded in function by the proposed mitigation. Additionally, MCCDD did not propose any impacts on site that could not be offset by mitigation. The EV-1 project will not adversely affect the abundance and diversity and habitat of fish and wildlife. The mitigation for the proposed project is also located within the same drainage basin as the area of wetlands to be adversely impacted. MCCDD has proposed mitigation that implements all or part of a plan of regional ecological value and the proposed mitigation will provide greater long-term ecological value than the wetlands to be impacted. The plan of regional ecological value consists of the land identified in the DRI as well as the lands that have been permitted as mitigation up to date and the proposed EV-1 mitigation lands. The plan includes lands that have been added to the plan since the approval of the Marshall Creek DRI. The mitigation proposed for the impact to wetlands and other surface waters associated with the project is contiguous with the Guana River Marsh Aquatic Preserve, with previously preserved wetlands and upland islands and with Marshall Creek. When implemented the mitigation plan will create wetlands and preserve wetlands and uplands with functions similar to the impacted wetlands and those wetlands will be connected through wetland and upland preservation to the Guana River Marsh Aquatic Preserve. Corridors and preservation areas important for wildlife movement throughout the whole Palencia site have been set aside. As development progresses towards the eastern portion of the Marshall Creek site, it is important to add preservation areas to the whole larger plan. The lands proposed to be added as mitigation for the EV-1 project will add to the value of the previously preserved lands from other phases of the DRI and development by helping to maintain travel corridors and forage areas for wildlife, to maintain water quality in the adjacent marsh and to maintain fish and wildlife benefits of the aquatic preserve. MCCDD has provided more mitigation than is typically required by the District for such types of impact. The upland preservation ratios for example range from about three-to-one to twenty-to-one. MCCDD is providing upland preservation at a near twenty-to-one ratio. Salt marsh preservation ratios are typically required to be sixty to one and MCCDD is providing mitigation at twice that ratio. Concerning fresh-water forested preservation, the District usually requires mitigation at a twenty to twenty-five-to-one ratio and the applicant is proposing a thirty to one preservation ratio. Additional mitigation will be provided beyond what is required to mitigate the adverse impacts for each type of impact anticipated. Although proposing more mitigation may in some instances not provide greater long-term ecological value than the wetlands to be adversely affected, the mitigation proposed by MCCDD will provide greater long-term ecological value. The Petitioners contend that a chance in circumstances has occurred which would adversely affect the mitigation plan as a plan of regional ecological value. They claim its efficacy will be reduced because of a proposed development to a tract of land known as the Ball Tract which would, in the Petitioners' view, sever connection between the Marshall Creek site and the 22,000-acre Cummer Trust Tract also known as "Twelve mile swamp." Although a permit application has been submitted to the Florida Wildlife Commission for the Ball Tract property, located northwest of Marshall Creek and across U.S. Highway 1 from Marshall Creek and the EV-1 site, no permit has been issued by the District for that project. Even if there were impacts proposed to wetlands and other surface waters as part of any development on the Ball Tract, mitigation would still be required for those impacts, so any opinion about whether the connection would be severed between the project site, the Marshall Creek site and the Cummer Trust Tract is speculative. The Petitioners also sought to establish changed circumstances in terms of reduced effectiveness of the plan as a plan of regional ecological value because, in their opinion, Map H, the master plan, in the Marshall Creek development order plan, shows the EV-1 project area as being located in a preservation area. However, Map H of the Marshall Creek DRI actually shows the designation VP for "Village Parcel" on the EV-1 site and shows adjacent wetland preservation areas. Although Map H shows a preservation area adjacent to the EV-1 parcel, the Petitioners infer that EV-1 was not proposed for development. That is not the case. Map H contains a note that the preservation areas (as opposed to acreages) are shown as generalized areas and are subject to final design, road crossings and final wetland surveys before they were exactly delineated. Therefore, in the DRI plan, the EV-1 area was not actually designated a preservation area. Surface Water Diversion and Wetland Draw-Down Water will not be diverted to another basin or water course as a result of the EV-1 project. Water captured by the treatment system and discharged from the EV-2 pond, will flow back through wetlands that meander through the project site. The EV-1 project will not result in significant diversion of surface waters. The project will also not result in a draw-down of groundwater that will extend into adjacent wetlands. Each of the storage ponds on lots 1, 3, and 7 and between lots 9 and 10 has been designed to include cut-off walls around the perimeter of the ponds and the storage pond on lot 7 will be completely lined. The cut-off walls will be installed in a soil strata that has very low permeability. The cut-off walls and liner will restrict the movement of groundwater from the wetlands into the storage ponds. As a result, the zone of influence of each storage pond will not extend far enough to intercept with the adjacent wetlands. The Public Interest Test The public interest test has seven criteria, with each criteria having equal weight. The public interest test applies to the parts of the project that are in, on or over wetlands, and those parts must not be contrary to the public interest unless they are located in, on or over an OFW or may significantly degrade an OFW; then the project must be clearly in the public interest. It is a balancing test. The EV-1 project, however, is not located in an OFW. The Public Health Safety and Welfare Criteria The parts of the project located in, on and over wetlands will not adversely affect the public health, safety or welfare. These parts of the project will not cause any adverse impact on flood stages or flood plains and discharges from the system will not harm shell fishing waters. This factor is thus considered neutral. Conservation of Fish, Wildlife or Their Habitat The mitigation from this project will offset any adverse impacts to fish wildlife or their habitat. Therefore this factor is considered neutral as well. Fishing, Recreational Value and Marine Productivity There is no recreational activity or fish nursery areas within the project limits and the project will not change the temperature of the aquatic regime. None of the impacts associated with the EV-1 site are within the mean high water line of the marine aquatic regime. The activities are not going to interact with the tidal regime and they cause negligible impacts. Concerning marine productivity, the wetland impacts are landward of the marine system; therefore, impact on marine productivity is not applicable. Thus this factor is considered neutral. Temporary or Permanent Nature The project will be of a permanent nature. Even though the project is permanent, this factor is considered neutral because the mitigation proposed will offset any permanent adverse impact. Navigation and the Flow of Water The parts of the project located in, on and over wetlands will not adversely affect navigation. These parts will also not impound or divert water and therefore will not adversely affect the flow of water. The project has been designed to minimize and reduce erosion. Best management practices will be implemented, and therefore, the project will not cause harmful erosion. Thus this factor is also considered neutral. Current Condition and Relative Value of Functions Being Performed The current condition and relative value of the functions being performed by the areas affected by the proposed activity, wetlands areas, will not be harmed. This is because any adverse impacts to the wetlands involved will be more than offset by the mitigation proposed to be effected. Therefore, there may well be a net gain in the relative value and functions being performed by the natural areas and the mitigation areas combined. Thus this factor is neutral. Works of the District The proposed project will not cause any adverse impact to a work of the District established in accordance with Section 373.086, Florida Statutes. Shoaling The construction and operation of the proposed project to the extent it is located in, on or over wetlands or other surface waters will not cause any harmful shoaling.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the St. Johns River Water Management District granting MCCDD's application for an individual environmental resource permit with the conditions set forth in the technical staff report dated September 24, 2003, in evidence as St. John's River Water Management District's Exhibit 3. DONE AND ENTERED this 9th day of February, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 9th day of February, 2004. COPIES FURNISHED: Deborah J. Andrews, Esquire 11 North Roscoe Boulevard Ponte Vedra Beach, Florida 32082 Veronika Thiebach, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Marcia Parker Tjoflat, Esquire Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202-4327 Stephen D. Busey, Esquire Allan E. Wulbern, Esquire Smith, Hulsey & Busey 225 Water Street, Suite 1800 Jacksonville, Florida 32202 Kirby Green, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
Conclusions On May 11, 2007, the Division of Administrative Hearings (‘DOAH’) submitted a _ Recommended Order (“RO”) to the Department of Environmental Protection (‘DEP’) i in . these consolidated proceedings. Copies of the RO were served upon the Petitioners, Mellita A. Lane, Jacqueline M. Lane, Peter A. Lane, (“Lane Petitioners”); Friends of Perdido Bay,.Inc., and James A. Lane (“FOPB”); and the Co-Respondent, International Paper Company (“IP” ). On May 29, 2007, all Petitioners and Respondent IP filed Exceptions to the RO. Respondent DEP filed Exceptions to the RO and Motion for Remand. ; On June 8, 2007, the FOPB filed a Reply to IP’s Exceptions and a Response to DEP’s Motion for Remand and Exceptions. The Lane Petitioners filed their Response to iP’s and DEP’s Exceptions. Respondent DEP filed Responses to the Exceptions filed . by the FOPB, the Lane Petitioners and IP. Respondent IP filed Responses to the Exceptions of FOPB, the Lane Petitioners and DEP. This matter is now before me for. final agency action. . _ BACKGROUND » Florida Pulp and Paper Company first began operating the Cantonment paper mill in. 1941. St. Regis Paper Company (St. Regis” ) acquired the mill in 1946. In 4984, Champion International Corporation (“Champion”) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such a as printing and writing grades c of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to | be printing and writing paper. ' The mill s wastewater effluent i is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is . sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class I water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama, on the west. The dividing line between ‘the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 98 crosses the Bay, going east and west, and forms the boundary between what is-often referred to as the “Upper Bay” and “Lower Bay.” The Bay is relatively shallow, especially | in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay i is designated asa Class ill water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. Itis primarily a freshwater river but itis sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (“OFW’) in 11979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, isa large tract of land owned by IP called the Rainwater Tract, The northern part of the tract is primarily freshwater wetlands. The southern partis a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. | ' Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (‘DER’) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The United States Environmental Protection Agency ("EPA") issued St. Regis a National Pollutant Discharge Elimination System (“ NPDES") permit i in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its wastewater treatment plant (‘WWTP’) in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production - process. In 1987, Champion applied to DER for an operating permit-for its modified WWITP and also petitioned for a variance from the Class iI water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's . subsequent proposal to issue the operating permit and variance was formally challenged. In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for the operating permit and requested a . temporary operating permit ("TOP"), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 (‘the 1989 Consent Order’). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violations of state water quality standards in Elevenmile Creek for dissolved oxygen (“DO”), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommend measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed bya series of related scientific studies, which are referred to collectively in the RO as “the Livingston studies.” The 1989 Consent Order had no expiration date, but it was tied to the TOP, , which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The mill was not in compliance with all water quality standards in December 1 994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. instead, the Department agreed through correspondence with . Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. - In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1 995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal ‘operating permits into a single permit identified as Wastewater Permit Number FLO002526-002-IWF/MT. During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmiie Creek or the Escambia River. . In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WwTP upgrades consist of converting toa. modified activated sludge treatment process, incteasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (‘MGD’). IP proposes to convey the treated effluent by-pipeline 10.7 miles to the 1,464-acre wetland tract owned by IP (contained within-the larger Rainwater Tract), where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and Upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to: reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department published notice of its intent fo issue a proposed permit, consent order, experimental wetland exemption, and waiver. The — Department authorizations would allow IP to change its industrial wastewater treatment system at the mill, construct an effluent distribution system within the wetland tract, construct the 10.7-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands. In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane (“Lane Petitioners”) filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge (“ALJ”) and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions. In May 2005, Friends of Perdido Bay, Inc., and James Lane filed a petition for | hearing to challenge the Department authorizations. The FOPB petition was forwarded to DOAH and the pending cases were consolidated for the fi nal hearing. The FOPB petition was subsequently amended. In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the DEP could review and act on the permit revision. In January 2006, DEP issued a proposed revised | NPDES permit and a corresponding First Amendment to Consent Order. On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision {o Consent Order filed on July 26, 2006. The DOAH Administrative Law Judge CALL") held a lengthy final hearing in these consolidated cases on May 31, June 1, 2, and.26 through 30, and July 17, 27, and 28, 2006. Prior to the hearing, the parties filed their Joint Pre-Hearing sit on May 24, 2006. The ALJ subsequenty submitted his RO on May 11, 2007. -
