The Issue The issues to be determined in this proceeding are whether Fury Management, Inc., is entitled to an environmental resource permit under chapter 373, Florida Statutes (2012),1/ and a sovereignty submerged land lease under chapter 253, Florida Statutes, for a proposed project in the waters off the coast of Key West, Florida.
Findings Of Fact The Parties Petitioner Last Stand is a corporation formed in 1987 to protect, promote, and preserve the quality of life in Key West and Monroe County "with an emphasis on the environment." Last Stand has 235 members. The president of Last Stand, Mark Songer, said that members use the "back country" area off Key West, which includes the proposed lease area, for boating, fishing, swimming, and bird watching. He was not specific about the number of members that do so. Petitioner George Hallorhan, a member of Last Stand, named nine members of Last Stand that use the back country area for recreational activities. Hallorhan is a natural person residing at 16B Hilton Haven Drive in Key West. Hallorhan has used the waters that include the proposed project site for sailing, fishing, boating, snorkeling, and nature observation. The Department is the state agency charged by statute with the responsibility to regulate construction activities in waters of the state. The Department has also been delegated authority from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") to review applications for submerged land leases for structures and activities that will preempt the use of sovereignty submerged lands. Fury is a Florida corporation that is in the "water attraction" business and has been operating in Key West for 17 years. It currently operates a recreational site similar to the proposed project nearby.2/ Fury owns no riparian uplands. The Affected Waters and Water Bottom The proposed lease area is approximately .6 miles offshore of Key West and is 17,206 square feet in size (0.39 acres).3/ The site is within the Florida Keys National Marine Sanctuary, which is designated an Outstanding Florida Water. Outstanding Florida Waters are waters designated by the Environmental Regulation Commission as worthy of special protection because of their natural attributes. See § 403.061(27), Fla. Stat. The proposed lease area is close to the Key West National Wildlife Refuge. It lies between two shallow landforms known as Pearl Bank and Frankfurt Bank. The closest upland is Wisteria Island, which is undeveloped. The water depth at the site is about ten feet. The Department and Fury contend the bottom beneath the proposed floating structures is rocky and mostly denuded, with no seagrasses and only scattered sponges and octocorals (soft corals) that do not constitute a "benthic community." They found turtle grass growing between the denuded areas and beyond the project site. "Benthic communities" are defined in Florida Administrative Code Rule 18-21.003(12) as areas where "associations of indigenous interdependent plants and animals occur," such as grass beds, algal beds, sponge beds, and octocoral patches. Petitioners' experts said there are seagrasses, octocorals, sponges, and algal species beneath the proposed structures that compose a benthic community. The marine biologists employed by the Department and Fury spent more time investigating the resources at the site than did Petitioners' biologists. In addition, Fury's consultants determined with greater precision the location of the benthic resources in relationship to the proposed floating structures than did Petitioners' consultants. The more persuasive evidence regarding the benthic resources and their locations was the evidence presented by the Department and Fury. The Proposed Activities Fury proposes to permanently moor a registered vessel consisting of two connected, floating platforms. It was sometimes referred to as a "barge." One floating platform would support up to ten jet skis, and the other would support up to ten kayaks. The structure would be used to moor the catamaran that brings customers to and from the site. There would also be three floating, inflatable water toys moored at the site: a trampoline, a climbing wall, and a slide. The area between the floating platforms and water toys would be roped-off to create a central swimming area. The platforms and the water toys would be secured to the water bottom with permanent anchors. The floating platforms would remain moored at the site (except when a hurricane is approaching), but the water toys, jet skis, and kayaks would be brought back to an upland location each night. The proposed project would be part of the "Fury Ultimate Adventure," a six-hour tour in which customers are taken to a reef for three hours in the morning to snorkel and, then, to the floating platforms for three hours in the afternoon to swim, ride jet skis and kayaks, and play on the water toys. Fury would provide an educational program for its customers to inform them about the importance of the marine environment, including seagrasses, mangroves, marine turtles, manatees, corals, whales, and fishes. Educational documents would also be made available to Fury's customers. Impact Assessment in General In assessing the potential impacts of the proposed project, consideration must be given to the fact that Fury currently operates the same activities only 500 feet away. The proposal is to move the activities to the new site where they will be subject to regulation for the first time. Fury's existing operations do not require an environment resource permit from the Department because Fury uses a structure that has been registered as a vessel and uses conventional anchors. Generally, vessel operation and mooring are not subject to Department regulation because they do not involve construction in waters of the state. Fury's existing operations do not require a lease from the Board of Trustees because the activities are being conducted over private water bottom, not sovereignty submerged land. There are two similar, competing operators near Wisteria Island. The competing operators do not have leases from the Board of Trustees or permits from the Department because they are operating as vessels, using conventional anchors, and moving every day. Fury's existing operations and the operations of its competitors are not subject to the conditions that can be imposed in a sovereignty submerged lands lease and environmental resource permit to protect the environment. Environmental Impacts The floating platforms and water toys would be secured to helical screw anchors installed into the bottom at locations where there are no seagrasses, sponges, or octocorals. The proposed anchors and anchor lines are designed to avoid the damage to seagrasses and other benthic resources often caused by conventional vessel anchors and chains that can drag across the bottom. The ten-foot water depth at the project site ensures that activities on the surface, such as boating and swimming, will not impact the bottom. The proposed project would cause some shading to submerged resources, but the shading would be minimal and would not cause the loss of seagrasses or other benthic resources. There would be no pollutant discharges associated with the proposed project. The catamaran that transports customers to the site has two Coast Guard-approved restrooms. The jet skis would not be fueled at the site. Fury is required to monitor water quality at two sampling sites, one within the lease area and a second 300 feet away to represent background conditions. Fury's operations would be subject to a sewage handling plan, a waste management plan, a fueling plan, and an emergency spill response plan that address these potential sources of environmental pollution. The Florida Fish and Wildlife Conservation Commission was informed of the proposed project, but made no objection to the Department. Navigational Impacts The proposed site lies between Pearl Bank and Frankfurt Bank, which are about 1,500 feet apart. The proposed project is 107 feet wide at its widest point, leaving adequate space for navigation around the anchored platforms and water toys. The water depth in the remaining space between the banks varies from six to 12 feet, which is sufficient water depth for the vessels that use the area. There are no marked channels in the area. Arnaud Girard, a salvage boat operator, said there is an unmarked "nine- foot" channel between the banks that is used by commercial and recreational boaters. Girard's testimony about boats using the nine-foot channel and why he opposes Fury's proposed project was confusing. Girard seemed to indicate, for example, that Fury's existing operation is a greater impediment to the use of the nine-foot channel than Fury's proposed project. Fury's customers would be using watercraft around the project site for only three hours each day. Only seven jet skis would be out at any one time, six ridden by customers and one ridden by a Fury safety guide. Fury would not be adding more jet skis into the area because jet skis are already using the area as part of Fury's existing operations. The jet ski-riding area would be marked off with four red buoys permanently anchored to the bottom. The guide would accompany the customers to the ride area to monitor the jet ski use and keep the customers inside the riding area. The riding area (about 19 acres) is not a part of the area to be leased. Other vessels are not excluded from the riding area. The floating platforms and water toys will have Coast Guard-approved lighting. The Coast Guard does not believe the structures would cause hazards to public safety or navigation if they are adequately lighted. It is in Fury's financial interest to provide safe navigation for its customers. Numerous live-aboard vessels anchor in these waters. Navigation in this area already requires a careful lookout for anchored obstacles. The preponderance of the evidence shows that the proposed activities would not create greater challenges for vessels attempting to navigate through the area or greater potential for collisions than exist currently. The proposed activities do not create a navigational hazard. Impacts to Public Use The proposed project would exclude the public from 17,206 square feet of sovereignty land, which takes into account the overlying floating platforms, moored catamaran, and floating water toys as well as the central swimming area. This exclusion would be offset in part by the public's access to the waters where Fury currently anchors its vessel and water toys. The United States Fish and Wildlife Service reviewed the application and is satisfied that Fury's use of buoys to mark the jet ski-riding area will prevent jet skis from entering the wildlife refuge, where jet skis are prohibited. Aesthetic Impacts Petitioners contend that the aesthetic values of the proposed lease area would be significantly diminished. The assessment of aesthetic values is often subjective and, to avoid subjectivity, requires consideration of all vistas, human activities, and structures that make up the current aesthetics of the area. It is noted, for example, that Hallorhan testified that he does not visit the area anymore because of existing "jet skis and noise." See also Fury Exhibit 1. On this record, the evidence is insufficient to show that the existing aesthetic values in the area would be diminished by the proposed project. Secondary Impacts The proposed project would have minimal impact. There are few places in the general area with a hard bottom and no seagrasses or benthic communities that would be adversely affected, making it difficult for any future applicant to demonstrate minimal impact. Petitioners failed to prove that there would be significant secondary impacts associated with the proposed project that require denial of the environmental resource permit. Public Interest/Environmental Resource Permit To obtain a permit for construction activities in an Outstanding Florida Water, it is necessary to show that a proposed project would be "clearly in the public interest." Section 373.414(1)(a) directs the Department to consider and balance the following criteria as part of this determination: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Fury's proposed activities would not adversely affect the public health, safety, or welfare or the property of others. The proposed activities would not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed activities would not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed activities would not adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The proposed activities would be of a permanent nature. The proposed activities would not adversely affect significant historical and archaeological resources. The current condition and relative value of functions being performed by areas affected by the proposed activities would not be diminished. It is in the public interest to regulate Fury's activities, which are now unregulated. Fury's proposed project is clearly in the public interest. Mitigation Under section 373.414(1)(b), if an applicant cannot eliminate potential adverse impacts, the Department must consider measures proposed by or acceptable to the applicant to mitigate the adverse effects. Initially, the Department determined that all of the potential adverse impacts of Fury's proposed project would be remedied through avoidance and minimization, and, therefore, mitigation was not required. Later, "in an abundance of caution," the Department decided to require mitigation "to offset the minimal adverse impacts" which were identified as being associated with the screw anchors installed in the substrate and the permanent nature of the project. However, at the final hearing, Tim Rach, chief of the Bureau of Submerged Lands and Environmental Resources, said he did not think mitigation was needed. Fury proposes to pay $4,000 to the Florida Keys National Marine Sanctuary Foundation ("Foundation"), a 501(c)(3) corporation, for the Foundation's Key West mooring buoy program. Similar donations to benefit the buoy program have been accepted in the past by the Department as mitigation. The purpose of the mooring buoy program is to provide a place to moor vessels so that conventional vessel anchors do not have to be used. The buoys are permanently located near or above areas of coral reef or other sensitive benthic communities within the Florida Keys National Marine Sanctuary to prevent damage by vessel anchors. Petitioners contend that Fury's proposed donation to the Foundation is unacceptable because it was not made for an "environmental creation, preservation, enhancement or restoration project" as required by section 373.414(1)(b)1. The Department considers the buoy program to be a preservation project because it preserves environmentally-sensitive benthic communities. Petitioners contend that the monetary donation is also improper because the buoy program is not an environmental project formally "endorsed" by the Department. The Department has accepted donations to the mooring buoy program several times in the past and states that it endorses the program as a preservation project. Public Interest/Sovereignty Submerged Lands Lease Rule 18-21.004(1)(a) requires that activities on sovereignty submerged lands not be contrary to the public interest. Rule 18-21.003(51) defines public interest in this context as: demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. Therefore, to obtain authorization to use sovereignty submerged lands lease, an applicant must create a net public benefit. Regulating Fury's proposed activities by issuing the permit and lease creates a net public benefit because such regulation allows the Department to ensure that the currently- unregulated activities do not adversely affect environmental resources. Fury's proposed project would not affect any riparian rights. Traditional Recreational Uses Petitioners contend that the proposed project would conflict with rule 18-21.004(2)(a), which requires that all sovereignty lands "shall be managed in essentially their natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming." Petitioners assert that the proposed water toys are not traditional recreational uses that are allowed under this rule. Swimming is a traditional recreational use, as is the use of personal watercraft. Floating "waterparks" and inflatable water toys are recent and uncommon uses. Such uses, far from shore, are not traditional uses.4/ However, the rule also allows "[c]ompatible secondary purposes and uses which do not detract from or interfere with the primary purpose." The Department views Fury's primary uses as swimming and boating and the other uses as compatible secondary uses. Water-Dependent Activities Rule 18-21.004(1)(g) limits activities on sovereignty lands to "water dependent activities" unless the Board of Trustees determines that it is in the public interest to allow an exception as determined by a case-by-case evaluation. A water-dependent activity is defined in rule 18-21.003(71) to mean an activity that can only be conducted on, in or over water because it requires direct access to the water body. Inflatable water toys like the ones proposed by Fury are relatively new products, and the question whether they are water dependent has only recently been considered by the Department. The Department determined they are water dependent and has authorized two similar operations in other parts of the state. Petitioners claim that rock climbing, jumping on a trampoline, and sliding are not activities that require direct access to the water, and, therefore, the water toys are not water-dependant activities. It is an erroneous analysis to consider whether jumping, climbing, and sliding can also be done on land. These activities are transformed when the medium into which a person jumps, slides, or falls is water. Many people enjoy jumping, sliding, and falling into water. To experience this kind of recreation, one needs water. Past Violations Under Florida Administrative Code Rule 40E-4.302(2), the Department must consider a permit applicant's past violation of any Department rules adopted pursuant to sections 403.91 through 403.929 or any District rules adopted pursuant to part IV, chapter 373. Petitioners contend that a 2009 Department enforcement case against Fury shows Fury is incapable of providing reasonable assurance that it will comply with all applicable permit requirements. The Department issued a Notice of Violation ("NOV") to Fury on July 14, 2009, for "Unauthorized structures and activities on or over Sovereignty Lands," which was identified as a violation of section 253.77 and rule 18-21.004(1)(g). The NOV did not involve a violation of a rule adopted pursuant to chapters 403 or 373. Therefore, rule 40E-4.302(2) is inapplicable. There is no similar rule of the Board of Trustees that requires it to consider past violations of rules adopted pursuant to chapter 253 when reviewing an application to use sovereignty submerged lands. The enforcement case against Fury was satisfactorily resolved. The violation does not indicate that Fury should be refused a sovereignty submerged lands lease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Consolidated Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands be issued by the Department; The permit should direct that Fury's monetary donation for mitigation shall be paid to the Florida Keys National Marine Sanctuary Foundation for use in the Florida Keys Mooring Buoy Account 30.4.4.6.; and The lease should be modified to show the area to be leased is 17,206 square feet. DONE AND ENTERED this 31st day of December, 2012, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2012.
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue a Wetland Resource Permit (WRP), number 37-0281978-002-DF, to Blueprint 2000 for a project to widen Capital Circle (SR 263) in Tallahassee from just south of Orange Avenue to just south of Tennessee Street (US 90).
Findings Of Fact Blueprint 2000 is an intergovernmental agency created by Leon County and the City of Tallahassee under chapter 163, Part 1, Florida Statutes. Blueprint has undertaken a project to widen a segment of Capital Circle in Tallahassee between Interstate 10 and the Tallahassee Regional Airport, specifically from just south of Orange Avenue to just south of Tennessee Street (US 90), from two to six travel lanes. Gum Swamp is near the north end of Blueprint’s proposed project. It is divided by Capital Circle, with most of the swamp located east of the road. Petitioner, the Gibby Family Trust, owns property in the smaller part of Gum Swamp west of Capital Circle, specifically in the southwest corner of the intersection of Capital Circle and Gum Road. Petitioner also owns a larger parcel of property a little farther west and north of Gum Swamp, north of Gum Road, that has frontage on the south side of Tennessee Street. Petitioner’s primary concern about the project is that it will cause flooding and worsen water quality in the part of Gum Swamp where Petitioner owns property. On August 28, 2007, Blueprint 2000 applied to DEP for a WRP for the proposed project. On September 18, 2007, Blueprint applied to DEP to be approved to use General Permit for New Stormwater Discharge Facilities (the SWGP) for the treatment of stormwater runoff from the proposed project. On October 18, 2007, DEP approved Blueprint’s use of the SWGP for the project. The SWGP approved the water quality treatment of stormwater from the project area at the existing Martha Wellman Pond, which was constructed as part of the previous improvements to Capital Circle from Interstate 10 south to U.S. 90, and at the following stormwater treatment ponds to be constructed: Broadmoor pond; the four Delta ponds; Nina pond; and Orange pond. During the process of DEP’s requests for additional information on Blueprint’s WRP application and Blueprint’s responses, Leon County asked Blueprint to add two stormwater ponds to the project--the Gum Road pond, which is just north of Gum Road near the Gum Road floodplain compensation area, and the Swamp Fox pond at the intersection of Capital Circle and Swamp Fox Road, which is south of Gum Swamp--to meet Leon County’s stormwater permitting requirements. Blueprint asked DEP whether these additions would require a modification of the stormwater permit. DEP staff determined that no modification to Blueprint’s SWGP was possible (since it was a general permit) or necessary (since the two ponds would not increase stormwater runoff and added to the water quality treatment already determined to be sufficient for the project). Blueprint’s WRP application was modified to add the Gum Road and Swamp Fox ponds. On April 29, 2010, DEP issued its notice of intent to approve Blueprint’s WRP application. Petitioner requested a hearing, to include consideration of Petitioner’s opposition to proposed wetland impact mitigation at a site just north of Gum Road, near Petitioner’s larger parcel of property north of Gum Road and south of Tennessee Street, because the proposed mitigation would require the imposition of a conservation easement, which would not allow the use of the area for floodplain compensation for development on Petitioner’s larger parcel. In response to Petitioner’s opposition to the Gum Road mitigation site, Blueprint informed DEP on September 15, 2010, that Blueprint would provide wetland impact mitigation at the Broadmoor mitigation area in lieu of the Gum Road mitigation area. Blueprint’s WRP application, as amended, indicated that the project would directly impact 6.22 acres of jurisdictional wetlands in six different locations--0.58 from dredging, 0.02 acres from shading, and 5.62 acres from filling. These impacts were to be offset by mitigation in the same drainage basin--the Lake Munson basin. The mitigation proposed by Blueprint would include the creation of approximately 25.42 acres of forested and transitional wetland habitat at the Broadmoor and Delta mitigation areas. Further, to compensate for impacts to a 1.1-acre conservation area adjacent to the roadway in the western Gum Swamp (the Zenz mitigation area), Blueprint will record a conservation easement over an 8.6-acre tract of forested wetlands adjacent to the roadway. In all, the mitigation plan will provide 6.79 functional units of gain within the Lake Munson drainage basin and would more than offset the 4.53 units of functional loss in the same drainage basin, as calculated using the Uniform Mitigation Assessment Methodology (UMAM). Blueprint provided reasonable assurances that its proposed project will not result in water quality violations but, rather, will improve water quality. As indicated, the Gum Road and Swamp Fox stormwater treatment ponds add to the water quality treatment provided and already approved in the SWGP. In addition, the WRP provides for four “stormceptors” in the segment of the project in Gum Swamp. A stormceptor collects runoff from the road way and filters it by use of a chamber system that removes pollutants by allowing metals and sediments to settle to the bottom and oils to float to the top of the system and discharges the filtered water through the middle of the chamber, free of most light oils, heavy metals, and sediment. The existing roadway does not have stormceptors, and they were not included in Blueprint’s SWGP application, which was approved without them. Blueprint proved that the proposed project will not adversely affect the public health, safety, or welfare or the property of others--specifically, with respect to water quantity, flooding, and transportation. Blueprint proved that the quantity of water discharging from the project will not increase and that the project will not cause flooding. Detailed analysis in accordance with Florida Department of Transportation regulations demonstrate that post-development discharges of stormwater during design storm events will not exceed pre-development discharges. As for flooding, Blueprint proposes to compensate for all fill required for the project by removing an equal amount of soil from the Gum Road floodplain compensation area. In addition, detailed modeling using regional and site-specific data showed that there will be no change in flood elevations as a result of the project. Adding travel lanes to Capital Circle, as proposed, will improve traffic flow and make driving in the project area safer. It also will improve an intermodal link between Interstate 10 and the Tallahassee Regional Airport. Blueprint proved that the proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Loss of existing opportunities for wading birds, including wood storks, to forage in roadside ditches will be replaced by new, comparable foraging opportunities. Loss of existing habitat will be mitigated by creation of four times as much habitat. Appropriate measures will be taken to protect and conserve the eastern indigo snake. In addition, a single large box culvert under Capital Circle in Gum Swamp near Petitioner’s smaller parcel will be replaced by three culvert/wildlife crossings, one in the location of the existing box culvert, and the other two spaced out along the road to the south. The new culverts/wildlife crossings will help conserve wildlife utilizing habitat in the vicinity of Gum Swamp. Blueprint proved that the proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. Post-development discharge rates will not exceed pre-development discharge rates. Appropriate measures will be taken to prevent erosion during construction. Bridging Gum Creek in lieu of the existing culverts will improve the creek’s flow. The new culverts/wildlife crossings in Gum Swamp will maintain or improve flow between the eastern and western parts of the swamp. In general, the flow of water in the project area will be maintained. The proposed project is permanent in nature. Some impacts due to construction would be temporary, and these would be minimized by use of best management practices. The proposed project will not adversely affect significant historical or archaeological resources under the provisions of section 267.061. Blueprint’s UMAM analysis demonstrated that the current condition and relative value of the functions being performed by areas affected by the proposed project will be maintained or improved. Blueprint provided reasonable assurances that its proposed project will not be contrary to the public interest. Because Blueprint proposes to mitigate for wetland impacts in the same drainage basin as the impacts, and the proposed mitigation offsets the impacts, there will be no cumulative impacts to wetlands. Petitioner contends that the project will flood and adversely affect water quality on its property because runoff from Capital Circle will be directed to the west of the roadway into Gum Swamp. Actually, runoff from the northernmost stormceptor will be directed to the east of Capital Circle. Runoff from the other three stormceptors will discharge to the west of Capital Circle but will enter Gum Swamp to the south and down-gradient of Petitioner’s property and will flow away from Petitioner’s property. In addition, the proposed culverts/wildlife crossings will allow the water from both sides of the road to mix and equalize. Blueprint proved that water quality in the vicinity of Petitioner’s property will not worsen but, rather, will improve. Petitioner presented the testimony of a stormwater engineer who questioned whether flooding of Petitioner’s property will occur notwithstanding Blueprint’s floodplain compensation. During the review process, Petitioner’s engineer took the position that detailed modeling would be needed to answer the question. He was told that modeling was being undertaken and that the results would be presented to him after review by Blueprint’s engineers. Until shortly before the final hearing, Petitioner’s engineer was not aware that the necessary modeling had been done and that showed no flooding would occur. Periodic flooding occurs on Petitioner’s smaller parcel in the Gum Swamp in its current and pre-existing condition because it is in the 100-year floodplain. In addition, a “backwater” condition has been created in the past by improper maintenance of a Leon County control structure that is supposed to allow excess water to flow out of Gum Swamp into flow-ways leading south, eventually to Lake Munson. Proper maintenance of the control structure will help alleviate flooding. In addition, the project would alleviate flooding by bridging Gum Creek, which flows around the southern edge of Gum Swamp and into a canal system leading to Lake Munson. More water would be able to flow through the bridge openings than can flow through the existing culverts under Capital Circle at Gum Creek. Petitioner contends that the WRP cannot be issued as proposed because it conflicts with engineering drawings submitted by Blueprint in support of its use of the SWGP, which indicate that (untreated) stormwater from Capital Circle in the Gum Swamp will run off to the east. The SWGP is a separate permit that addresses water quality, not water quantity. Regardless of the conflicts in the engineering drawings, the SWGP provides some of the water quality assurances for the WRP. The SWGP does not require the WRP to provide that all runoff from Capital Circle in the vicinity of Gum Swamp be discharged to the east (into the larger part of Gum Swamp to the east of the road), as indicated in the SWGP engineering drawings. Issues as to whether construction in accordance with Blueprint’s WRP will result in compliance with the SWGP are not part of this WRP proceeding. Petitioner contends that Blueprint’s WRP application is void because it revises a void original application. Actually, DEP stamped Blueprint’s original application “void” to avoid confusion when it was replaced by an amended application that updated wetland impact acreages and changed the name of the applicant’s agent. The original application was not void. Petitioner contends that the SWGP and WRP had to be considered together as an application for an ERP. However, Blueprint’s WRP application was deemed complete on July 18, 2008, before ERPs became mandatory. Blueprint did not request that its applications be reviewed together, either as an application for an ERP or, under rule 62-25.060(1), as an application for the “construction of a new stormwater discharge facility [that] requires . . . a dredge or fill permit ” DEP staff “consolidated” (or “merged”) the SWGP and WRP application files for purposes of review of the WRP application as to water quality issues. In its proposed recommended order, Petitioner requested the addition of a condition to Blueprint’s WRP providing essentially that all construction approved by both the SWGP and the WRP must be performed “simultaneously, concurrently and not in phases or segments.” Petitioner also requests strict compliance with the added condition and no future modification. It is clear that Blueprint’s WRP does not approve a phased or segmented project and that Blueprint must comply with its WRP. There is no need for an additional condition as to those matters. However, it is appropriate to add a condition to the WRP to make it clear that all new stormwater facilities approved by Blueprint’s SWGP, together with the additional Gum Road and Swamp Fox stormwater ponds, and the stormceptors in the Gum Swamp segment directing runoff away from Petitioner’s property, must be constructed simultaneously with the rest of the project. DEP’s engineer testified that there should be a condition that “would not allow any other changes to occur.” But the evidence does not support the need for a condition that would prohibit any future modification of the WRP, however minor. Any major modification would give Petitioner a point of entry to initiate a separate proceeding to challenge the modification. Blueprint contends that Petitioner did not prove ownership of the property alleged to be affected by Blueprint’s WRP and did not prove an injury-in-fact. Although ownership deeds were not introduced in evidence, witnesses for Blueprint and DEP conceded Petitioner’s ownership interests. There also was ample evidence that Blueprint’s WRP reasonably could be expected to affect Petitioner’s substantial interests even if an adverse effect on them was not proven.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Blueprint’s WRP application, number 37- 0281978-002-DF, be granted and the WRP issued with the additional condition that all new stormwater facilities approved by Blueprint’s SWGP, together with the additional Gum Road and Swamp Fox stormwater ponds and the stormceptors in the Gum Swamp segment directing runoff away from Petitioner’s property, be constructed simultaneously with the rest of the project. DONE AND ENTERED this 11th day of April, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2011. COPIES FURNISHED: Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Sidney L. Matthew, Esquire Post Office Box 1754 Tallahassee, Florida 32302 Debra Schiro Blue Print 2000 1311 Executive Center Drive Tallahassee, Florida 32301 F. Joseph Ullo, Esquire Lewis, Longman & Walker, P.A. 245 Riverside Avenue, Suite 150 Jacksonville, Florida 32202 Edwin A. Steinmeyer, Esquire Lewis, Longman & Walker, P.A. 2600 Centennial Place, Suite 100 Tallahassee, Florida 32301 Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue to be determined is whether Petitioner Cargor Partners VIII – Long Bar Pointe, LLLP (“Cargor”) is entitled to an award of attorney’s fees pursuant to section 57.105, Florida Statutes (2017).
Findings Of Fact Notice On February 17, 2017, the attorney for Cargor sent Joseph McClash a letter on law firm stationary. In the first paragraph of the letter it states, “Please allow this letter to serve as notice of Cargor’s intent to seek relief pursuant to Section 57.105, Florida Statutes (the “Statute”) against you, individually as qualified representative, and the named Petitioner.” Cargor sent an email to McClash on February 28, 2017, reminding McClash that “the 57.105 deadline is March 10, 2017.” McClash referred to a motion for attorney’s fees that he received on or about March 13, 2017, but the motion was not shown to the Administrative Law Judge nor introduced into evidence. On April 5, 2017, the same day that McClash voluntarily dismissed the petition for hearing in DOAH Case No. 17-0655, Cargor filed with DOAH its motion for attorney’s fees under section 57.105. Contested Claims The renewal of a FDOW is governed by section 373.421(2), Florida Statutes, which states in relevant part that the FDOW shall be renewed “as long as physical conditions on the property have not changed, other than changes which have been authorized by a permit pursuant to this part, so as to alter the boundaries of surface waters or wetlands.” If the boundaries of wetlands or other surface waters have been altered without a permit, the FDOW cannot be renewed and an application for a new FDOW is required. The SWFWMD reviewer explained in a letter requesting additional information from Cargor: Please be advised that letters of exemption do not qualify as permits issued under Part IV of chapter 373, F.S. and therefore if work has been done on the site that has altered the wetlands or other surface water boundaries in association with a letter of exemption, a new formal determination application will be required. McClash claims Cargor did not qualify for the renewal of its FDOW because Cargor altered the boundaries of surface waters or wetlands on its property after the 2011 FDOW was issued and the some of the alterations were made pursuant to letter of exemption. In its February 17, 2017, letter to McClash, Cargor set forth six grounds for Cargor’s contention that McClash’s petition for hearing should be withdrawn. The first three grounds were described in Cargor’s letter as follows: The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, which is the subject of this Proceeding, does not authorize any construction activity. Consequently, no standing to challenge is or could be properly presented. There is no injury in fact and no one is in immediate danger of a direct injury from the issuance of the Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, as of the date and time of filing the Petition in this Proceeding. Consequently, no standing to challenge is or could be properly presented. The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, is not a permit, license, or authorization. Consequently, no standing to challenge is or could be properly presented by an association. These were issues of law and they were decided against Cargor in an Order dated February 28, 2017. The fourth and fifth grounds described in Cargor’s letter involve the central issue in the case: Changes in the land have been previously authorized by the Southwest Florida Water Management District (“SWFWMD”) pursuant to existing and final permits including (i) SWFWMD ERP No. 43040157.001, dated August 6, 2014, (ii) SWFWMD CONCEPTUAL ERP No. 49040157.002, dated September 4, 2015, (iii) SWFWMD ERP No. 4304157.003, dated March 31, 2016, and (iv) SWFWMD Notice of Qualification for Permanent Farming Exemption, dated August 30, 2016. Changes in the land are authorized by the identified permits and authorizations. All changes in the land have occurred pursuant to the identified permits and authorizations. Allegations to the contrary are simply false and are not supported by material facts. In 2015, Cargor was issued a “Conceptual ERP” permit, which describes, among other things, planned modifications to some agricultural ditches. However, the conceptual permit does not allow the commencement of construction activities. On August 30, 2016, SWFWMD issued to Cargo a Permanent Farming Exemption, pursuant to section 373.406(13), which authorized Cargor to excavate three agricultural ponds in uplands. In its application for the exemption, Cargor also proposed to modify some agricultural ditches. On March 31, 2017, SWFWMD issued Cargor an ERP Individual Construction Major Modification, which, among other things, authorized work in ditches. This permit was issued just before McClash’s voluntary dismissal and, therefore, could not have authorized the changes on Cargor’s property that McClash described in the petition for hearing. Before filing his petition, McClash consulted with a wetland scientist, Clark Hull, about the merits of McClash’s proposed challenge to the FDOW renewal. Hull gave McClash an affirmative response, but his input was speculative because it was based on assumptions and representations that Hull had not investigated. McClash consulted with another wetland scientist, Pamela Fetterman, who conducted an “aerial, desktop review of publically available Geographic Information Systems (GIS) data.” Fetterman described her initial review as an evaluation of potential undelineated wetlands and other surface waters. The Administrative Law Judge ruled that the delineation approved by the 2011 FDOW became final and could not be challenged by McClash. McClash then asked Fetterman to review changes in physical conditions on the property that occurred after the FDOW was issued. Fetterman produced a report (McClash Exhibit R-6), in which she opined that the changes to physical conditions on Cargor’s property “have a high likelihood of affecting the previously delineated landward extent of wetlands and other surface waters.” She stated further: [C]hanges in physical conditions of the property took place prior to issuance of the [FDOW renewal] as purported “exempt agricultural activities”, and include ditch dredging alterations to delineated other surface waters. . . . A Permanent Farming Request for Exemption Confirmation letter was applied for on August 23, 2016 for construction of these ponds and modification of existing ditches, some of which were determined to be jurisdictional other surface waters by the subsequently re-issued [FDOW]. At the final hearing on fees, neither McClash nor Cargor made clear to the Administrative Law Judge: (1) the physical changes to the property that were alleged to be authorized by permit, (2) the physical changes that were alleged to be authorized by exemption, or (3) any physical changes that were alleged to be unauthorized. The sixth ground described in Cargor’s letter is as follows: The picture attached to the Petition as set forth in Paragraph 9, and the stop work allegation set forth in Paragraph 10 are irrelevant and have no factual relationship to any issue in the proceeding. Since any changes in the land have occurred pursuant to identified permits and authorizations, the allegations are simply false and/or intentionally misleading. It is not a basis for an award of attorney’s fees under section 57.105 that an irrelevant photograph was included in a petition for hearing. Moreover, the aerial photograph in McClash’s petition was relevant in this case because it showed the physical conditions of Cargor’s property. In the petition, McClash states that Manatee County issued a stop work order on November 16, 2016, for construction activities commenced on Cargor’s property without a County- approved erosion control plan. This allegation also pertained to physical changes to the property. All evidence about physical changes was relevant in determining whether Cargor was entitled to renewal of the FDOW. Fees Cargor claims fees based on 48.4 hours of attorney time (Edward Vogler) at an hourly rate of $410, and 3.6 hours of attorney time (Kimberly Ashton) at an hourly rate of $385, for a total of $21,230.00. The fees Cargor is seeking include the hours spent on legal issues raised by Cargor that were rejected by the Administrative Law Judge. These fees amount to at least $1,025. See Cargor Exhibit 1, Invoice entries for February 20, 2017. Cargor’s attorney testified that the fees are reasonable. Cargor did not call an expert witness to corroborate the reasonableness of the hourly rate and the reasonableness of the hours expended.
The Issue The issue in this case is whether the Respondents, Kelly Endres and Ifrain Lima (Endres/Lima), are entitled to an Environmental Resource Permit (ERP) that would allow use of 0.535 acres of previously impacted wetlands for the construction of a single-family residence and associated structures, a 30' x 30' private dock with a 4' access walkway, and a 12' wide boat ramp (Project) at 160 Long Acres Lane, Oviedo, Florida (Property).
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated, thereunder, in the Florida Administrative Code. Under that authority, the Department determines whether to issue or deny applications for ERPs. Respondents Endres/Lima own the Property and are the applicants for the ERP at issue in this consolidated proceeding. Petitioner Meier is a neighboring property owner to the south of the Property. Petitioner Meier's property includes a single-family residence with accessory structures and is located on Long Lake. Petitioner Meier is concerned that the NOI provides inadequate environmental protections and that there will be flooding on adjacent properties from the Project. Petitioner Hacker is the neighboring property owner adjacent to the south of the Property. Petitioner Hacker's property includes a single-family residence with accessory structures and is located on Long Lake. He is concerned with the completeness of the application for the Project, the calculation of wetland impacts, that reasonable assurances were provided, and that the Department's NOI ignores willful negligence and allows disparate treatment of Respondents Endres/Lima. Petitioner Kochmann is a property owner with a single-family residence and accessory structures located on Long Lake. She is concerned that the NOI is based on a misleading application and provides no evidence that the Respondents Endres/Lima made reasonable efforts to eliminate and reduce impacts detrimental to the environment. History of the Project and Application On April 12, 2018, Respondents Endres/Lima applied for an ERP for proposed wetland impacts associated with a planned single-family home on the Property. This was the first ERP application for the Property. The Department sent a Request for Additional Information (RAI) on April 24, 2018, and a second RAI on November 2, 2018. Respondents Endres/Lima provided a Mitigation Service Area Rule Analysis for "As If In-Basin" for the Lake X Mitigation Bank for the St. Johns River Water Management District Basins to the Department via email on May 10, 2018. Respondents Endres/Lima submitted revised plans to the Department on September 19, and October 30, 2018. On January 7, 2019, the Department denied the ERP application. The Department and Respondents Endres/Lima, on July 18, 2019, entered into a Consent Order (CO). The Department found, and Respondents Endres/Lima admitted, that approximately 0.80 acres of jurisdictional wetlands were dredged and filled without a valid ERP from the Department; and was done with improperly installed erosion and sedimentation controls. On August 22, 2019, Respondents Endres/Lima submitted a second ERP application. The Department sent an RAI on September 20, 2019, to which Respondents Endres/Lima responded on December 19, 2019. In addition, Respondents Endres/Lima reserved 0.60 of forested Uniform Mitigation Assessment Method (UMAM) wetland credits from the Lake X Mitigation Bank and provided the Department with an updated site plan and Lake X Mitigation Bank credit reservation letter. The Department issued an NOI on February 7, 2020, which was timely published in the Sanford Herald on February 9, 2020. Respondents Endres/Lima provided timely proof of publication to the Department on February 13, 2020. Consent Order and Compliance A warning letter was issued to Respondents Endres/Lima on January 30, 2019, for the dredging and filling of approximately 0.80 acres of forested wetlands and improper installation of erosion and sedimentation control. The CO, executed on July 18, 2019, required Respondents Endres/Lima to cease any dredging, filling, or construction activities on the Property, submit an application for an Individual ERP within 30 days, and pay $5,599.00 in penalties and the Department's costs and expenses. After the issuance of an ERP, Respondents Endres/Lima were also required to implement the restoration actions outlined in the CO. Respondents’ Endres/Lima’s application, dated August 19, 2020, was submitted to the Department on August 22, 2020. Respondents Endres/Lima paid the CO's penalties and costs, and had multiple meetings with the Department to complete the requirements of the CO. Respondents Endres/Lima’s expert, Mr. Exner, testified that he began working on a restoration plan for the Property, which will be provided to the Department once an ERP is issued. Permitting Criteria The Department reviewed the complete application and determined that it satisfied the conditions for issuance under Florida Administrative Code Rule 62-330.301, and the applicable sections of the ERP Applicant's Handbook Volume I (AH Vol. I). The Department also considered the seven criteria in rule 62-330.302 and section 373.414(1)(a), and determined that implementing the Project would not be contrary to the public interest. Water Quantity, Flooding, Surface Water Storage and Conveyance Respondents’ Endres/Lima's civil engineering expert, Mr. Herbert, testified that according to the drainage design, the Property would have swales on either side of the proposed residence to slope water away from the residence. There would also be a conveyance swale on the north property boundary to convey water from the street area and front yard toward the restoration and wetland areas with ultimate discharge to Long Lake. He stated that the elevation of the road at the front of the Property would be at 47.4 feet, and the elevation at the terminus of the swale would be at 45 feet. This would allow a 2.4-foot vertical fall for the swales to convey water to the lake. The design would preserve pre-development surface water flow over the Property to Long Lake, which is the lowest elevation in the area, and will ensure that storm water does not flood adjacent properties. Mr. Herbert also testified that the Project design would maintain pre-development water storage capacity. The imported fill that is currently on the Property in the flood plain would be removed and reshaped so that the lake elevation would be maintained and water can flow correctly. Elimination or Reduction of Impacts and Mitigation Respondents Endres/Lima provided the Department with design modifications to reduce impacts associated with the Project. These included a 15-foot restoration buffer along the lake front's northern shoreline, an elevated access walkway five feet above the wetland restoration area to the proposed dock, limiting the width of the access walk to four feet, and limiting the boat ramp width to a single-lane. In June 2015, an informal wetlands determination was conducted for the Property. The informal determination concluded that the entirety of the Property were wetlands. However, this was an informal determination and was not binding. In October 2016, before the first permit application was submitted, Mr. Exner did a wetlands delineation flagging prior to the Property being cleared or disturbed. Mr. Exner testified that, in his opinion, the Property was not all wetlands because large pines near the road had no high water marks, adventitious growth around the bases, or evidence of pine borer beetles along with other indicators of upland habitat. This wetland delineation was part of the permit submittal, was shown on the plans, was accepted by the Department, and was used for the preparation of the UMAM scoring. Mr. Exner's wetland delineation line was used by the Department to help determine and map the wetland impacts identified in the CO. The direct impact area was assessed at 0.54 acres with a secondary impact area of 0.02 acres for a total impact of 0.56 acres, and a functional loss score of 0.364. Respondents Endres/Lima reserved 0.6 forested UMAM mitigation credits, almost double the amount of functional loss under the UMAM assessment, agreed to purchase 0.46 credits. The excess mitigation bank credits implement part of a plan that provides regional ecological value and greater long-term ecological value than the area of wetland adversely affected. Secondary and Cumulative Impacts The Project's UMAM analysis assessed 0.02 acres, or 870 square feet, of secondary impacts. These impacts would be fully offset by the mitigation proposed for the Project. Petitioners' expert, Mr. Mahnken, noted three areas where he thought the application was incomplete. The first was that the site plan did not call out the location of the secondary impacts. However, Part III: Plans of Section B of the application, does not require that the site plan show the location of the secondary impacts. The application requirements for "plans" requires only the boundaries and size of the wetlands on the Property and provide the acreages of the upland areas, wetland impact areas, and the remaining untouched area. Second, Mr. Mahnken questioned the calculation performed to determine the secondary impact acreage. However, Mr. Mahnken read the information incorrectly and stated that the secondary impact area was 0.002 acres, or 87 square feet, when the UMAM score sheet clearly showed that the secondary impact area is 0.02 acres, or 870 square feet. In addition, the Department's witness, Ms. Warr, testified that even if the Department were to use Mr. Mahnken's analysis, the result would have been the same, i.e., the requirement to purchase 0.46 mitigation credits. Thus, Petitioners failed to support their claim that the Project would have adverse secondary impacts. Third, Mr. Mahnken asserted that cumulative impacts were not adequately addressed. He testified that the assessment for the Property using spill over benefits, in his opinion, was not enough to fully offset the impacts of the Project. Mr. Mahnken acknowledged, however, that his opinion was open to debate, and that he had not conducted any rigorous hydrologic evaluation in reaching his opinion. Respondents Endres/Lima had submitted a report prepared by Breedlove, Dennis & Associates (BDA Report) with their application in order to demonstrate compliance with section 10.2.8, ERP AH Vol. I, regarding cumulative impacts. The BDA Report utilized peer-reviewed hydrologic data that was reviewed and approved by the South Florida Water Management District, and was accepted by the Department pursuant to section 373.4136(6)(c). This was consistent with the Property's location within the mitigation service area for the Lake X Mitigation Bank. The Project is located within the Econlockhatchee River drainage basin, which is a nested basin within the larger St. Johns River [Canaveral Marshes to Wekiva] drainage basin. The Lake X Mitigation Bank is located outside of the Econlockhatchee River drainage basin, but the Project is located within the Lake X Mitigation Bank service area. The BDA report determined that: In summary, the Lake X Mitigation Bank is a regionally significant mitigation bank site that has direct hydrological and ecological connections to the SJRWMD basins, to include the cumulative impacts basin in which the subject property is located (i.e., SJRWMD Basin 19). The size, biodiversity, and proximity of the mitigation bank site to the SJRWMD basins, and the regionally significant hydrological connection between the mitigation bank site and the contiguous SJRWMD mitigation basins, supports the use of this mitigation bank site “as if in basin” mitigation for the Lima/Endres Wetland Fill Project. Additionally, the evaluation of factors, to include connectivity of waters, hydrology, habitat range of affected species, and water quality, demonstrates the spillover benefits that the Lake X Mitigation Bank has on the St. Johns River (Canaveral Marshes to Wekiva) mitigation basin, which includes the Econlockhatchee River Nested basin, and demonstrated that the proposed mitigation will fully offset the impacts proposed as part of the Lima/Endres Wetland Fill Project “as if in-basin” mitigation. The Lake X Mitigation Bank will protect and maintain the headwaters of two regionally significant drainage basins [i.e., the Northern Everglades Kissimmee River Watershed and the Upper St. Johns River Watershed (to include the nested Econlockhatchee River basin)], and will provide resource protection to both river systems (SFWMD Technical Staff Report, November 29, 2016). Furthermore, the permanent protection and management of the Lake X Mitigation Bank will provide spillover benefits to the SJRWMD basins located within the permitted MSA. Mr. Mahnken stated that his review of the Project did not include a hydrologic study and only looked at basic flow patterns for Long Lake. By contrast, the BDA Report included an extensive hydrologic study, looked at all required factors in section 10.2.8(b), ERP AH, Vol. I, and determined that the Project would be fully offset with the proposed mitigation. Thus, Respondents Endres/Lima provided reasonable assurance that the Project will not cause unacceptable cumulative impacts. Water Quality Rule 62-330.302(1)(e) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely affect the quality of receiving waters such that the state water quality standards will be violated. The conditions of the ERP would require the use of best management practices including a floating turbidity curtain/barrier, soil stabilization with grass seed or sod, and a silt fence. Respondent Endres/Lima's experts, Mr. Herbert and Mr. Exner, testified that there is an existing turbidity barrier in the lake around the property and a silt fence around the east half of the Property. While these items are not required by the Department until construction of the Project, part of the silt fence and the turbidity barrier are already installed on the Property and will be required to be repaired and properly maintained in accordance with the conditions of the ERP and Site Plan SP-2. Mr. Herbert testified that the Property will be graded in a manner that will result in a gentle sloping of the lake bank in the littoral zone, which would allow revegetation of the lake bank. Outside of the restoration area and the undisturbed wetlands, the backyard would be covered with grass to prevent migration of sand and soil discharging into the lake. Mr. Exner testified that the grass swales proposed for the Project would provide a considerable amount of nutrient uptake and filtration of surface water on the Property. Also, in the restoration area next to the lake, the restoration plan includes a dense planting plan with native species that have good nutrient uptake capability. Impacts to Fish and Wildlife Rule 62-330.301(1)(d) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Exner testified that, in his review of the Property, he did not identify any critical wildlife habitat. He visited the Property multiple times and he did not see any osprey nests, deer tracks, animal scat, gopher tortoises, or sand hill cranes. The Department's Ms. Warr testified that the Florida Fish and Wildlife Conservation Commission database was reviewed, and did not show any listed species in the area. Publication of Notice Petitioners argued that the notice published in the Sanford Herald on February 9, 2020, did not meet the requirements of section 373.413(4). Despite the notice having no effect on their ability to timely challenge the proposed ERP, Petitioners argued that the published notice was insufficient because the notice itself did not provide the name of the applicants or the address of the Project, only a link to the Department's permit file. Unlike the notice required in section 373.413(3), where a person has filed a written request for notification of any pending application affecting a particular designated area, section 373.413(4) does not specify the contents of the published notice. Section 373.413(4) does not require the published notice to include the name and address of the applicant; a brief description of the proposed activity, including any mitigation; the location of the proposed activity, including whether it is located within an Outstanding Florida Water or aquatic preserve; a map identifying the location of the proposed activity subject to the application; a depiction of the proposed activity subject to the application; or a name or number identifying the application and the office where the application can be inspected. In response to the published notice, the Department received approximately ten petitions challenging the NOI, including the petitions timely filed by Petitioners. Therefore, Petitioners were not harmed by any information alleged to have been left out of the published notice. Ultimate Findings Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Respondents Endres/Lima provided reasonable assurance that the Project complied with elimination and reduction of impacts, and proposed more than adequate mitigation. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse secondary impacts to water resources; and unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quality impacts to receiving water bodies. Respondents Endres/Lima provided reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife, and listed species by wetlands, or other surface waters. Petitioners failed to prove lack of reasonable assurance by a preponderance of the competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Respondents’ Endres/Lima's ERP application. DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. Jay Patrick Reynolds, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 (eServed) Neysa Borkert, Esquire Garganese, Weiss, D'Agresta and Salzman 111 North Orange Avenue Post Office Box 398 Orlando, Florida 32802 (eServed) Tracy L. Kochmann 249 Carolyn Drive Oviedo, Florida 32765 (eServed) Shelley M. Meier 208 Long Acres Lane Oviedo, Florida 32765 (eServed) Brian Hacker 170 Long Acres Lane Oviedo, Florida 32765 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue The issue is whether Respondent Crestwood Lakes Associates provided reasonable assurance that a modification to a conceptual surface water management permit complies with the permit criteria contained in statutes and rules.
Findings Of Fact Background This case involves a 900-acre parcel in the Loxahatchee Slough, west of the Florida Turnpike in Palm Beach County (County). Although the property occupies part of a slough, all of the wetlands in this case are isolated wetlands. Respondent Crestwood Lakes Associates (Applicant) owns the south 503 acres, Petitioner owns the north 287 acres, and the Village of Royal Palm Beach (Village) owns the remaining 115 acres, which abut the southwest boundary of the north parcel. The acreages do not total 900 acres because the numbers are approximate. The 900-acre parcel is generally bounded on the south by Okeechobee Boulevard and the north and east by the M-1 canal. The west boundary of the south part of the parcel adjoins a residential development known as Loxahatchee Groves, and the 115-acre parcel adjoins a County-owned preserve of at least 600 acres. Applicant’s land is undeveloped except for some landclearing. Petitioner’s land is partly developed, mostly in the south next to the boundary with Applicant’s land. The Village's 115 acres are a preserve, divided equally between wetlands and uplands. On February 11, 1988, Respondent South Florida Water Management District (District) issued surface water management (SWM) permit No. 50-00618-S-02 to Royal Palm Homes, Inc. for conceptual approval of a SWM system serving a residential development on the 900-acre parcel (1988 Permit). References to the Original Developer shall include Royal Palm Homes, Inc., its agents, lenders, and assigns, except for Petitioner and Applicant. The permitted development, which was known as the Royal Palm Homes PUD, comprises single-family and multifamily residences, wetland preserve areas, two 18-hole golf courses, and a park area. On August 3, 1994, Applicant filed SWM application number 940803-6 to modify the 1988 Permit to show the change in ownership and obtain conceptual approval of a modification to the permitted SWM system. The application was not complete when the new Environmental Resource Permit (ERP) rules replaced the old Management and Storage of Surface Water (MSSW) permit rules. On May 24, 1996, the District transmitted the staff report, which proposed the issuance of a permit modification. On June 13, 1996, the District approved the issuance of the proposed permit modification. On the same date, Petitioner filed its petition challenging the proposed agency action. Permits The first relevant SWM permit for the 900-acre parcel involved a larger parcel that includes the 900-acre parcel. On September 14, 1978, the District issued a two-page permit authorizing the “construction of a water management system serving 2073 acres of residential lands by waterways discharging into canal C-51.” This 1978 permit, which is identified as number 50-00618-S, contains a special condition calling for a minimum finished floor elevation of 18.0 feet National Geodetic Vertical Datum (NGVD). The next permit is the 1988 Permit, which is a substantial modification to the 1978 permit. The 1988 Permit covers only the previously described 900 acres and, as modified, currently remains in effect. The 1988 Permit requires the preservation of two large wetlands in the north parcel, just north of the 115-acre preserve; one wetland is about 30 acres and the other is about ten acres. The 1988 Permit requires the preservation of no other wetlands in the north parcel, but, in addition to the wetlands in the 115-acre preserve, the 1988 Permit requires the preservation of several much smaller wetlands in the south parcel. The staff report for the 1988 Permit divides into three basins the drainage area for the 900-acre parcel: a north basin of 98.9 acres, a central basin of 525.7 acres, and a south basin of 270.8 acres. The staff report states that basin runoff will pass through a system of inlets and culverts into a series of interconnected lakes, from which, through control structures, the runoff will pass into the M-1 canal and eventually into the C-51 canal. The staff report notes that the control elevations will be 17.25 feet NGVD for the north basin, 17.55 feet NGVD for the central basin, and 17.75 feet NGVD for the south basin. Under the discussion of environmental impacts, the staff report observes that the 1978 permit proposed for protection only 30 acres of wetlands among the 281 acres of isolated wetlands on the site. The staff report notes that “extensive” melaleuca invasion has taken place since the 1978 permit and only 160 acres of wetlands remain in “relatively good” condition, with much of this subject to melaleuca encroachment. Due to the “extensive seed source” and “seasonal drying of the wetlands,” the staff report predicts eventual melaleuca dominance of the “entire site.” The staff report asserts that the proposed development plan includes the protection of about 100 acres of the “best quality wetlands,” plus eight acres of wetlands created in conjunction with the golf courses and 15 acres of wetlands created as littoral zones in conjunction with the lakes to be constructed. The staff report calls a program “to eradicate all melaleuca from the site” “[t]he major environmental feature” of the proposed development plan. But this major environmental feature of the 1988 Permit is presently in jeopardy. One major component of the present case is that, following the conveyances of the three parcels by the Original Developer, the District has evidently concluded that no one is responsible to perform certain obligations under the 1988 Permit and no remedies are available for the nonperformance of these obligations. It appears that these conclusions are largely driven by the vagueness of the plan to eradicate the melaleuca. This plan is called the "Melaleuca Eradication Plan." The Melaleuca Eradication Plan is incorporated into the 1988 Permit. The Melaleuca Eradication Plan, which is dated December 11, 1987, recounts that the Original Developer and regulatory bodies agreed that the melaleuca should be “eradicated and a program for this should be developed and included as a part of the permit application.” The plan states that the eradication plan will cover the entire 900- acre site with the Original Developer performing the “initial . . . program” on the entire site, including the 115-acre preserve to be deeded to the Village. The Melaleuca Eradication Plan calls for the Original Developer to create a bonded authority to conduct the “ten-year melaleuca eradication program.” The program is phased to coincide with the projected 10-year buildout of the 3000-unit parcel. The Melaleuca Eradication Plan describes in detail the three phases of the program and exactly how the Original Developer will proceed to remove the melaleuca and restore wetlands by planting native wetland species in disturbed areas. The plan promises a yearly inspection followed by hand-removal of any seedlings discovered on the site. This last phase will terminate ten years after commencement of the first phase. A “Wetlands Monitoring/Maintenance Program” is also incorporated into the 1988 Permit. The Wetlands Monitoring/Maintenance Program, which is dated December 8, 1987, states that Dr. Dwight Goforth performed a wetlands survey of the 900-acre site in 1985 and divided wetlands into three categories based on their quality. The Wetlands Monitoring/Maintenance promises the preservation of 112.71 acres of wetlands comprising 98.81 acres of “large wetlands totally preserved” and nine wetlands totaling 13.9 acres that will be “partially preserved.” Also, the program will create golf course wetlands of 6.93 acres and littoral-zone wetlands around the lakes of 15 acres. Thus, the program summarizes, the “total wetland acreage preserved, enhanced and created will [be] 134.64 acres.” The Wetlands Monitoring/Maintenance Program describes a three-year monitoring program using transects to assist in the vegetative mapping of the site. The program also promises semiannual observations of birds, small rodents, and larger mammals using the wetlands and adjacent preserved uplands, as well as semiannual sampling for fish, macroinvertebrates, and amphibians. The Wetlands Monitoring/Maintenance Program outlines a plan to remove melaleuca and control algae buildup in the lakes. The program promises to contain algae through the use of “biological controls” and, when needed, hand-raking. The program also assures that the Original Developer will use a “conservative fertilization program” for the golf course and landscaped areas to reduce eutrophication in the created lakes. On February 18, 1988, the District issued its conceptual approval of the 1988 Permit. Among the special conditions of the 1988 Permit are Special Condition 15, which requires wetland monitoring and maintenance in accordance with the Wetlands Monitoring/Maintenance Program, and Special Condition 16, which requires melaleuca removal in accordance with the Melaleuca Eradication Plan. Also, Special Condition 17 requires low berms around protected or created wetlands, including littoral zones, to protect against sheetflow runoff from the golf course or other areas of intense development. The references in the preceding paragraphs to the responsibilities of the "Original Developer" imply greater clarity than is present in the Melaleuca Eradication Plan or Wetlands Monitoring/Maintenance Program. The passive voice predominates in both these documents, so it is sometimes difficult to determine on whom a particular responsibility falls. The Melaleuca Eradication Plan states clearly that "[the Original Developer] will conduct the initial melaleuca eradication on the entire site including the dedicated park area [i.e., the 115 acres]." The next sentence of the plan contemplates the conveyance of the 115 acres to the County. But, after these clear provisions, the Melaleuca Eradication Plan lapses into the passive voice almost invariably. The next two sentences read, "A bonded authority will be created to conduct the ten-year melaleuca eradication program" and "The eradication program will be carried out through a bonded agreement with the [Original] Developer to remove the melaleuca . . .." Alluding to the several phases of melaleuca eradication, the plan states only "[t]he eradication program will be completed in stages " Only two other sentences establishing responsibility for melaleuca eradication identify the responsible party. The end of the plan states that the "bonded authority responsible for initial eradication clearance will likewise provide a yearly inspection." One of the final sentences of the plan adds: "the bonding authority's crew will hand remove entire seedlings found on site." The Wetlands Monitoring/Maintenance Program is similar except that it does not once name the entity responsible for the monitoring and maintenance duties or hiring the firm or individual to conduct the actual work. The two special conditions incorporating these two documents likewise are in the passive voice, implying only that the responsibility belongs to the Original Developer. Given the vagueness of the melaleuca-eradication and wetlands-maintenance documents, it is not surprising that they fail entirely to address the issue whether these responsibilities run with the land, remain the responsibility of the Original Developer, or, for the eradication of melaleuca, remain the duty of the "bonded authority," if the Original Developer ever created such an entity, which appears highly doubtful. The documents likewise do not disclose the penalties for noncompliance. On June 16, 1988, the District issued a modification to the 1988 Permit for the construction and operation of a 110.9-acre residential development in Phase I, which occupies the central basin. On October 1, 1988, the United States Army Corps of Engineers (Army Corps) issued the Original Developer a permit to destroy 164 acres of wetlands on the 900-acre parcel. Special conditions of the 1988 Army Corps permit require the preservation of "115 acres of high quality wetlands," the creation of 18 acres of wetlands and 15 acres of littoral shelf, and the implementation of a "Melaleuca Eradication Program," which is the same program as is incorporated in the 1988 Permit. The 1988 Army Corps permit contains an attachment dated October 24, 1987. This attachment identifies the protected wetlands as the two large wetlands in the north parcel totaling about 40 acres, 58 acres in the 115-acre preserve, and 53.5 acres in the south parcel. The 1988 Army Corps permit protects several wetlands in the south parcel, including wetland numbers 14 (3.04 acres), 16 (1.6 acres), 23 (0.53 acres), 30 (2.6 acres), 44 (0.8 acres), 29 (1.08 acres), and 46 (3.0 acres). These wetlands, which total 12.65 acres, are seven of the nine wetlands partially preserved in the 1988 Permit, although some of the acreages vary from those preserved in the 1988 Permit. Unlike the District's permits (except for the subject proposed permit modification), the 1988 Army Corps permit addresses conveyances by the developer. The 1988 Army Corps permit states: "If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization." Below the signature line of the 1988 Army Corps permit is language stating: When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. On March 1, 1989, the Original Developer conveyed the 115-acre preserve to the Village, which later leased the preserve to the County. The Original Developer had not eradicated the melaleuca at the time of the conveyance, nor has anyone since done so. On August 17, 1990, water elevations in the wetlands in Phase I reached 19.4 feet NGVD, washing out construction pads, roads, and in-ground utilities. On September 7, 1990, the District issued a stop-work request because the SWM system was not working as required. On September 28, 1990, the District approved interim measures to preserve the wetland hydroperiod and allow for wetland overflow. These measures include berming the residential areas in Phase I/Plat I adjacent to wetlands. On June 13, 1991, the District approved additional modifications to the 1988 Permit and the construction and operations permit for Phase I and issued a conceptual approval for works in the north and central basins. The revisions to the conceptual approval include adding two control structures to the north wetland that connect to the water management system in the north basin and adding a berm around the smaller of the two preserved wetlands in the north parcel. The construction approval was for a perimeter berm along the south wetland and park areas. On June 24, 1992, the District issued a staff report recommending issuance of another modification of the 1988 Permit for the conceptual approval of a SWM system to serve the 900-acre parcel and approval of construction and operation of a SWM system to isolate and control the existing onsite wetlands and revise the control structure for the central basin. The staff report explains that this modification proposes berming the wetlands to the 100-year, three-day peak elevation. The staff report notes that the wetlands basin consists of 295.18 acres of wetlands, including 155.85 acres of “wetlands/uplands.” The staff report notes that the north basin contains 107.41 acres of “good quality wet prairie wetlands” with “minimal” melaleuca encroachment. The staff report restates that the purpose of the modification is to berm all of the wetlands and uplands not planned for development. Special Condition 19 requires the Original Developer to dedicate as conservation and common areas in deed restrictions the “wetland preservation/mitigation areas, upland buffer zones, and/or upland preservation areas," so that these areas are the “perpetual responsibility” of a named property owners’ association. Special Condition 22 states that “a wetland monitoring and maintenance program” and “a melaleuca eradication program” “shall be implemented,” but the condition does not expressly state by whom. Special Condition 22 requires that the work implementing these programs conform to these “approved environmental programs as outlined in the [1988 Permit].” Special Condition 25 provides that, on submittal of an application for construction approval in the south basin (Phase II), the "permittee shall submit a detailed wetland construction mitigation, monitoring and maintenance plan.” In evaluating the plan for approval, the District shall apply the “environmental criteria in effect at the time of construction permit application.” Although the approval of the District is not attached to the staff report, the District approved the June 24, 1992, staff report and proposed permit. The 1992 permit modification did not address the issue of who was responsible for melaleuca eradication after the sale of the property. On November 10, 1993, the staff report accompanying another request for a permit modification restates the special conditions of earlier permit modifications. Special Condition 23 restates the requirement that a melaleuca eradication program “shall be implemented,” again not stating by whom. Special Condition 23 now requires the completion of the melaleuca eradication program by February 25, 1994. The omission of a referenced exhibit to the permit from the exhibit filed in this case prevents a determination that this is the same as the Melaleuca Eradication Plan incorporated in the 1988 Permit and restated in the 1992 modification, although it probably is. In any event, Special Condition 23 concludes in another sentence lacking a stated or implied subject: “Maintenance of the preserved wetlands and berm planting areas shall be conducted in perpetuity to ensure that the conservation areas are maintained free from exotic vegetation (Brazilian pepper, Australian pine and melaleuca) . . ..” Although the record does not contain the written approval of the District to the staff report, the District approved the staff report dated November 10, 1993. On November 12, 1993, the Original Developer conveyed by special warranty deed the north to Petitioner. The deed is subject only to "easements, declarations, restrictions and reservations of record . . .." The record does not provide recording information for the deed. The Original Developer probably conveyed the south parcel to Applicant in the same fashion and at the same approximate time. Almost five months later, on March 29, 1994, the Army Corps issued another permit for the 900-acre parcel. Although the Original Developer had conveyed at least the north parcel, the Army Corps issued the 1994 permit to the Original Developer. The 1994 Army Corps permit authorizes the destruction of 158 acres. The general conditions governing transfers are the same as those in the 1988 Army Corps permit. The special conditions of the 1994 Army Corps permit require the permittee to preserve and enhance only 110 acres of high quality wetlands, instead of preserving 115 acres of such wetlands, as was required in the 1988 Army Corps permit. The 1994 Army Corps permit drops the requirement of creating eight acres of wetlands and 15 acres of littoral zone, as was required in the 1988 Army Corps permit, but requires the preservation of what appears to be the 39.5-acre preserve that is proposed by Applicant in the subject permit modification, as described below. Special Condition 3 of the 1994 Army Corps permit adds that all preserved areas "will be maintained in perpetuity free of Melaleuca. The permittee agrees to develop a bonded Melaleuca eradication program for the entire 906 acres. Copies of the bonded agreement will be provided to this office for approval before development can commence." The next permit activity affecting the 900-acre parcel is the subject application filed by Applicant on August 3, 1994, for its 503-acre parcel. On May 24, 1996, the District issued a staff report for conceptual approval of a SWM system proposed by Applicant for its 503-acre parcel. On June 13, 1996, the District issued an addendum to the staff report that contains another special condition that is not especially relevant to this case. In the background section, the staff report mentions the flooding of Phase I of the north parcel and states that the District had “assumed the adjacent wetlands would flow away from the development.” The staff report outlines the modifications implemented to eliminate the flooding; these modifications include connecting the M-1 canal, through inlets, with several wetlands located in the north and central basins. According to the staff report, Petitioner’s north parcel, which totals 287.34 acres, includes the Phase I/Plat 1 area, north basin, and part of central basin south of Phase I. Describing Applicant’s proposal, the staff report states that a preserve of 39.5 acres will be located in the northwest corner of the south parcel, adjoining the east boundary of the 115-acre parcel. The staff report states that the 39.5-acre preserve will sheetflow through cuts in the berm to wetlands in the 115-acre preserve. The 115-acre preserve is connected to the SWM system permitted on November 10, 1993, to eliminate flooding from these wetlands, whose control elevation is 19 feet NGVD. The staff report describes the south parcel as “dominated by flatwood habitat,” within which are stands of Australian pine and other exotic plant species that have recently been spreading across the site. The onsite wetlands are 4.93 acres of wet prairies, 18.4 acres of pond cypress strands, 1.56 acres of isolated marsh, 3.5 acres of cypress mixed with pine flatwood, and 163.91 acres of melaleuca. The staff report finds that only the 4.93 acres of wet prairies and 18.4 acres of cypress are in good condition, but melaleuca has become established in many of the wet prairies. The 1.56 acres of freshwater marshes and 163.91 acres of melaleuca are in poor condition. The 3.5 acres of cypress mixed with pine flatwoods are in fair condition. As for listed species, the staff report mentions only the possibility that herons might forage onsite during periods of standing water. Summarizing the impact of the proposed project on wetlands preservation, the staff report endorses the hydrologic reconnection of the 39.5-acre wetland/upland site with the 115-acre wetland. The staff report notes that water levels in the 115-acre preserve, which has been bermed to 21 feet NGVD, have stabilized at 19 feet NGVD. The staff report asserts that the “proposed wetland impacts (183.54 acres) were previously permitted under the conceptual permit application” for the original 1988 Permit. The staff report adds that this modification is to “change a portion of the original mitigation requirements . . . and includes impacts to a 6.78 acre wetland area that was previously permitted to be preserved.” But the staff report does not recommend the preservation of this wetland “[d]ue to the reduced hydrology and proximity to the proposed upland development” and the mitigation and compensation provided by the 39.5-acre preservation area. The staff report states that 8.76 acres of the 39.5- acre preserve are wetlands, and the remainder are uplands. As for the 8.76 acres of wetlands, the staff report lists 0.67 acres of mixed cypress and pine flatwoods, 4.93 acres of wet prairies, and 3.16 acres of cypress. Applicant would also restore 4.95 acres of pine flatwoods. As for the 183.54 acres of wetlands to be destroyed, the staff report lists 2.83 acres of mixed cypress and pine flatwoods in fair condition, 15.24 acres of cypress in fair condition, 1.56 acres of freshwater marshes in poor condition, and 163.91 acres of melaleuca in poor condition. Addressing the mitigation and monitoring elements of the current proposal, the staff report states that the modification would eliminate the creation of 15 acres of littoral wetlands around SWM lakes and 7.99 acres of marshes in golf courses in return for the creation of the 39.5-acre preservation area. The staff report assures that Applicant will perpetually manage and maintain the 115-acre preserve. Conceding that the 1988 Permit also required long-term maintenance of the 115-acre parcel, the staff report notes that the initial eradication effort was never completed. The staff report mentions an “access agreement” giving Applicant the authority to enter the 115-acre preserve for mitigation and monitoring, but “anticipat[es]” that Applicant will submit an application for another permit modification, on behalf of the two governmental entities, so that Applicant can “assume future maintenance responsibilities for this area.” As is clarified by the maintenance and monitoring plan, which is part of the proposed permit, Applicant's expectation is that the County and Village, not Applicant, will assume future maintenance responsibilities for the 115-acre preserve. The staff report concludes that the District should issue the permit subject to various conditions. Special Condition 1 is that the minimum building floor elevation is 20 feet NGVD. Special Condition 16 requires the implementation of a wetland mitigation program and requires Applicant to create 4.95 acres of marsh; restore 3.16 acres of cypress, 4.93 acres of marsh, and 0.67 acres of mixed forest; and protect 25.79 acres of uplands. Special Condition 17 sets performance criteria for the mitigation areas in terms of percentage and length of survival of vegetation. Special Condition 17 supplies completion dates for monitoring reports. Special Condition 21 addresses listed species. Noting that listed species have been seen onsite or the site contains suitable habitat for such species, Special Condition 21 requires Applicant to coordinate with the Florida Game and Fresh Water Fish Commission or the U. S. Fish and Wildlife Service for guidance, recommendations, or permits to avoid impacts to such species. The monitoring and maintenance plan does not address direct and contingent liabilities for maintenance and generally is a poor candidate for enforcement. In addition to the vagueness of the passive voice, the plan is, at times, simply unreadable, as, for example, when it concludes boldly, but enigmatically: The site as a whole is evolving hydrologic trends which permits successional seres development toward communities with shorter hydroperiods and ultimately, toward more upland transitional and/or exotic species dominance of historically wetland habitats. Long-term prospectives infer that successional deflection has become a severe detriment for natural environmental control to alter the present scenario. Active management coupled with graduated balanced in hydrologic restoration and created habitat elements will become the processes engineered to obtain an infusion of probabilities fashioned to inscribe a regenerative adaptation to the present site condition while fostering in situ processes, to optimize derived functions, for the maintenance of both habitat and wildlife over the long-term existence of the Preserve. (Sic.) Water Quality Impacts Petitioner does not contend in its proposed recommended order that the proposed project fails to meet applicable requirements regarding water quality. Applicant has provided reasonable assurance that the proposed permit modification would not violate State water quality standards. Flooding Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding water quantity and flooding. However, Applicant has provided reasonable assurance that the project would not violate these requirements. There are several aspects to a SWM system. Undeveloped land stores and conveys rainfall through soil and surface storage. An artificial SWM system alters the undeveloped land’s storage capacity by the addition of a storage and drainage system, such as, in this case, conveying water through the soil into storm drains and then to lakes to store surface runoff prior to release, through an outfall structure, into a receiving body of water--in this case, the M-1 canal. The SWM system hastens the conveyance of stormwater runoff offsite. The control elevation of a SWM system is the height at which water in the lakes will flow through the outfall structure into the receiving body of water. Except during the dry season, the control elevation tends to establish not only the water level of the SWM lakes, but also of the nearby water table. The hastening of drainage offsite with the establishment of control elevations produce the drawdown effect of SWM systems. As to flooding, the basic underlying dispute between Petitioner and Respondents is whether to use the pre- or post- development depth to water table. In determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on wetlands, one would project the effect of any post-development drawdown on the wetlands themselves and their functions and inhabitants. It would be illogical not to do the same in determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on flooding. Pre-development, the average depth to water table on Applicant’s property is as little as two feet. Post- development, the average depth to water table on Applicant’s property will be five feet, which is the difference between the control elevation of 14 feet NGVD and ground elevation of 19 feet NGVD. Petitioner’s evidence concerning flooding is flawed because its expert witness based his calculations on an average depth to water table of two feet on Applicant’s property. He did not adjust for the considerable drawdown effect of the SWM system. The District table allows for no more than four feet between the water table and ground, so there is an added margin of safety in the ensuing flooding calculations. Another important factor in the flooding calculations is the soil type in terms of permeability. The District properly characterized the prevailing soils as flatwoods, and the soils onsite are in the category of “good drainage.” Applicant’s suggestion that flooding calculations use the post-development soils is rejected. Post-development depths to water table are used because they can be calculated to predict post-development conditions accurately. Applicant produced no proof that it would replace such massive amounts of soil from the site with more permeable soils so as to justify reclassifying the soil type. The District's flooding calculations probably overstate the risk of flooding in the three-day, 100-year design storm because they ignore lake bank storage, which is the additional amount of water that a lake can store in its sloped banks above the typical water elevation. The District could have relied on the effect of lake bank storage for additional assurance that the proposed project will not result in flooding. The proposed project contains a large number of long, narrow lakes, which will thus have a relatively high percentage of lake banks to lake area. Additionally, the District has raised the minimum floor elevation at this site by two feet over 18 years. Whatever other effects may follow from this trend, the higher floor elevation offers additional protection to onsite improvements. The flooding of Petitioner’s property seven years ago understandably is a matter of concern to Petitioner. Applicant proposes to change the configuration of drainage basins, but the District has adequately addressed the drainage issue, and this is not the first time in the 20-year permitting history of this property that the District has approved a reconfiguration of basins. Also, in the 1988 Permit, the District incorrectly projected the direction of runoff under certain conditions. However, the flooding was partly due to inadequate road- drainage facilities. Following the flooding, the Original Developer enlarged these features and bermed the flooding wetlands, so as to eliminate the flooding of developed areas due to design storm events. On balance, Applicant has proved that the proposed permit modification would not adversely affect flooding or water quantity. Environmental Impacts A. Wetlands Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding environmental impacts to wetlands. Applicant has failed to provide reasonable assurance that the proposed work would not violate these requirements. There are two major deficiencies in the District's analysis of wetland impacts and mitigation or compensation. First, the proposed permit modification includes mitigation or compensation in the form of melaleuca removal. But prior permits have already required the same work, no one has ever done the work, and the District does not know if these permit requirements are still enforceable. Second, the proposed permit modification ignores 13.9 acres of preserved wetlands in the 1988 Permit, allowing their destruction without mitigation or compensation. The permitting process requires the District to balance the impacts of development and mitigation or compensation on the natural resources under the District's jurisdiction. Balancing these impacts in issuing the 1988 Permit, the District required the complete eradication of melaleuca in return for permitting the residential, institutional, and recreational development proposed by the Original Developer. District staff, not the Original Developer or Petitioner, called the Melaleuca Eradication Plan “the major environmental feature” of the development plan approved by the 1988 Permit. The major environmental feature of the 1988 Permit clearly justified significant development impacts on natural resources. To justify additional development impacts on natural resources, the District now proposes to count again another developer’s promise to eradicate the melaleuca. The District claims that the term of the original melaleuca protection plan was only ten years, not perpetual as is presently proposed. However, the District's claim ignores Special Condition 23 in the 1993 permit modification. This condition set a deadline of February 25, 1994, for the eradication of melaleuca and made perpetual the requirement that one or more of the potentially responsible parties--the Original Developer, Petitioner, Applicant, the bonded authority, the property owners' association, or transferees-- maintain the wetlands free of melaleuca and other exotics. Unfortunately, this “major environmental feature” of the 1988 Permit, as well as subsequent permit modifications, was so poorly drafted as to leave potentially responsible parties unsure of their legal obligations. The District tacitly suggests that it cannot enforce the obligations imposed by the 1988 Permits and later modifications for the eradication of melaleuca. But there is presently no reason for the District to resort again to permitting without first reviewing carefully its enforcement options. The District should first determine whether anyone will voluntarily assume these obligations. As a business consideration, Petitioner may choose to eradicate the melaleuca from the north parcel and 115-acre preserve to prevent Applicant from providing this service and claiming that it should receive compensation credit against additional environmental impacts permitted by a modification of the 1988 Permit. Maybe the County or Village has already budgeted funds for this work. If no party offers to perform the necessary work, the District must next determine its legal rights and the legal obligations of these parties. Depending on the results of this research, the District may need to consider litigation and the cessation of the issuance of construction and operation permits on the 900-acre parcel or either the north or south parcel. At this point, the District should discuss joint litigation or permit revocation with the Army Corps, whose 1994 permit requires the permittee to develop a bonded melaleuca-eradication program and apparently imposes on the permittee the responsibility to maintain all preserved areas free of melaleuca. Only after having exhausted these options may the District legitimately conclude that melaleuca eradication on any part of the 900 acres represents fair compensation for the development impacts on jurisdictional natural resources. The second major problem as to wetlands impacts concerns the calculation of wetlands acreages to be destroyed by the proposed permit. The 1988 Permit expressly incorporates the Wetlands Monitoring/Maintenance Program. This program, as an operative part of the 1988 Permit, represents that the developer will “partially preserve. . .” nine wetlands totaling 13.9 acres. The partial preservation of wetlands does not mean that a five-acre wetland will remain a five-acre wetland, except that its function will be impaired. Partial preservation means that, for instance, two acres of a five- acre wetland will be preserved. It is impossible for the District to have required mitigation to offset the destruction of these 13.9 acres of wetlands because the District denies that the 1988 Permit required the partial preservation of these nine wetlands. As noted below, neither the District nor Applicant can identify all of the wetlands that make up the 13.9 acres. Rather than account for these wetlands that were to have been partially preserved, the District instead contends that this undertaking by the Original Developer was ineffective or nonbinding because it was overriden by contrary statements in the staff report. Not so. The specific provisions delineating the preserved wetlands area in the Wetlands Monitoring/Maintenance Program, which was prepared by the Original Developer, override more general statements contained in the staff report accompanying the permit. There is not necessarily a conflict between the staff report and the Wetlands Monitoring/Maintenance Program. The staff report states that the plan “includes the protection of approximately 100 acres of the best quality wetlands,” together with the creation of eight acres of golf course wetlands and 15 acres of lake littoral zones. The plan “includes” these wetlands among those preserved or created; the word suggests that the list is not exhaustive, but only illustrative. Alternatively, if the list were exhaustive, the preservation of “approximately” 100 acres reasonably encompasses the 112.71 acres of partially or totally preserved wetlands cited in the Wetlands Monitoring/Maintenance Program. More to the point, on October 26, 1987, Donald Wisdom, the engineer handling the 1988 Permit, prepared a memorandum for the file stating that the total acreage of wetlands to be preserved or created was 134.45. This figure represents an insignificant deviation of 0.19 acres from the total listed in the Wetlands Monitoring/Maintenance Program, which was dated six weeks later, on December 8, 1987. In the October 26 memorandum, Mr. Wisdom describes the preserved wetlands as 111.46 acres of A- and B-quality wetlands. This is 1.25 acres less than the acreage in the Wetlands Monitoring/Maintenance Program. These small discrepancies were eliminated by November 18, 1987, when Mr. Wisdom wrote a memorandum noting that the program called for the total preservation of 98.81 acres and partial preservation of 13.9 acres. Adding the created wetlands, the new total for preserved or created wetlands was 134.64 acres. A month later, a District employee wrote a memorandum to the file, expressing his “main concern” that the proposed development would protect only 99 acres of wetlands. It is unclear why the employee mentioned only the 98.81 acres slated for preservation. Perhaps he was confused or mistaken. But the misgivings of a single employee do not constitute the rejection by the District of a developer's proposal to preserve nearly 14 acres of high-quality wetlands. The staff report for the 1988 Permit notes that the 900-acre site contained about 281 acres of wetlands. If the 1988 Permit required the preservation, as an entire wetland or part of a larger wetland, of 112 acres of wetlands, then the 1988 Permit allowed the destruction of 169 acres, which is consistent with the 164 and 158 acres allowed to be destroyed by the 1988 and 1994 Army Corps permits. However, by the 1996 permit modification, the staff report refers, without explanation or justification, to the permitted destruction of 183.54 acres of wetlands--evidently adding the 13.9 acres to the 169 acres previously permitted to be destroyed. Tab 13 of the Wisdom bluebook identifies the nine wetlands constituting the 13.9 acres, which are entirely in Applicant's south parcel. Except for three, all of these wetlands were characterized as A-quality, meaning that they are in good to excellent condition and “have not been stressed significantly from the biological viewpoint.” B-quality wetlands are in disturbed condition and “are in various stages of biological stress caused primarily by a lowered water table and/or melaleuca invasion.” C-quality wetlands are highly disturbed and “are substantially degraded biologically.” The 13.9 acres of wetlands comprise wetland numbers 23 (0.5 acres), 46 (0.4 acres), 44 (0.6 acres), 37 (0.4 acres), 29 (1.1 acres), 20 [sometimes misreported as 21] (3.9 acres), 30 (2.6 acres), 16 (1.5 acres), and 14 (2.9 acres). Wetland numbers 46 and 29 are B-quality, and wetland number 20 is C-quality. The wetlands shown in District Exhibit 4 and Applicant Exhibit 3 inaccurately portray the wetlands constituting the missing 13.9 acres. A internal memorandum to the file notwithstanding, the District predicated the 1988 Permit in part on the preservation of 112.71 acres of functioning wetlands, including the 13.9 acres that the District now disclaims. The mitigation and compensation required of Applicant in the present case ignored the destruction of these wetlands. The District's analysis of mitigation and compensation in this case was fatally flawed by these two deficiencies. But more deficiencies exist in the District's analysis of wetland impacts. The District relied on faulty data in reviewing Applicant's request for a permit modification. Undercounting the extent of wetlands by at least 21 acres and their condition by an indeterminable amount, Applicant presented to the District a materially inaccurate picture of the wetland resources on the south parcel. Despite disclaimers to the contrary, the District relied on this inaccurate data in reviewing Applicant's request for a permit modification. There are possible problems with 39.5-acre preserve offered by Applicant. This parcel contains less than nine acres of wetlands, including two wetlands that Applicant may already be required to preserve under the 1994 Army Corps permit. At the same time, Applicant's proposal may include the destruction of a third wetland that is to be preserved under the 1994 Army Corps permit. The best rendering in the record of the 1994 Army Corps permit may be Applicant Exhibit 4, which shows eight large wetland areas to be “preserved/enhanced/created.” Two of these are the 10- and 30-acre wetlands on Petitioner’s property, which were preserved in the 1988 Permit. Three of the eight wetlands are in the 115-acre preserve; these were also preserved in the 1988 Permit. The remaining three wetlands to be preserved, enhanced, or created under the 1994 Army Corps permit are in the north end of Applicant’s property. It is difficult to estimate acreage given the scale of the drawing, but the two westerly wetlands are about 4-5 acres each and the easterly wetland is 3-3.5 acres. Subtracting the total preserved acreage of 110 from the acreage identified in the preceding paragraph, the total acreage of these remaining three wetlands is about 12. The two westerly wetlands are in the 39.5-acre preserve that Applicant offers as mitigation in the present case. According to Applicant Exhibit 6, the easterly wetland, or at least the most valuable part of it--the center--is slated for destruction if the District grants the subject permit modification. The proposed destruction of the third wetland is a matter of greater interest to the Army Corps than to the District, but the offer to preserve the other two wetlands really does not provide anything in return for the permitted development impacts because these two wetlands are already preserved under the 1994 Army Corps permit. As the District and Applicant contend, golf course marshes and littoral zones are typically of little environmental importance. Although the 1988 Permit addresses some of these problems, although without supplying any performance standards, golf courses themselves are often conduits of fertilizers and pesticides into the groundwater and nearby surface water. The District and Applicant justifiably question the value of the golf courses approved in the 1988 Permit as wildlife corridors. It is unclear what wildlife would use the corridor, which is surrounded by residential development and bounded by Okeechobee Boulevard. Other factors also militate in favor of Applicant's proposal. But, as the record presently stands, there is no way to find that Applicant has provided reasonable assurance that the proposed development and related mitigation and compensation, as described in the subject permit modification, meet the applicable criteria. The District substantially undervalued the environmental impacts of the proposed modification while substantially overvaluing the environmental impacts of Applicant's proposed contributions in the form of mitigation and compensation. To find adequate assurance as to wetland impacts in these circumstances, where the District did not perform an informed balancing of various impacts in a large-scale development, would permit the District to transform the unavoidably imprecise task of balancing wetland impacts into an act of pure, unreviewable discretion. Listed Species The only relevant listed species onsite is the gopher tortoise, which is a species of special concern. Gopher tortoises use the site to an undetermined extent. Applicant's suggestion that someone brought the tortoises to the site is rejected as improbable. However, due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant provided reasonable assurance as to the value of functions provided to wildlife and listed species by wetlands. Procedural Issues A. Standing Petitioner has standing due most obviously to flooding considerations. Additionally, the SWM system permitted in 1988 is for the entire 900-acre parcel, of which Petitioner’s parcel is a part. Applicability of ERP Rules The proposed permit modification would substantially affect water resources. The proposed permit modification would substantially increase the adverse effect on water resources. Requirement to Delineate Wetlands Due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant met applicable requirements concerning the delineation of wetlands. Improper Purpose Petitioner did not challenge the proposed permit modification for an improper purpose. Relevant Provisions of Basis of Review The District revised its Basis of Review after the adoption of ERP rules. Although the order concludes that the District should have applied the ERP rules, and thus the ERP Basis of Review, the order shall discuss both versions of the Basis of Review because the District ignored numerous provisions of both documents in approving Applicant's request for a permit modification. Section 4.6 MSSW Basis of Review requires the District to consider "actual impact" to the site by "considering the existing natural system as altered by the proposed project[,]" including "positive and negative environmental impacts." Section 4.6 requires the District to "balance" these impacts "to achieve a reasonable degree of protection for significant environmental features consistent with the overall protection of the water resources of the District." The proposed permit modification fails to comply with several provisions of Appendix 7 of the MSSW Basis of Review, such as Sections 4.2 requiring a detailed description of the isolated wetlands to be destroyed; 5.1.1(d) favoring the protection of isolated wetlands over their destruction, mitigation, and compensation, which are considered "only when there are no feasible project design alternatives"; and 5.1.6 prohibiting the alteration of water tables so as to affect adversely isolated wetlands. The proposed permit modification also violates various provisions of the ERP Basis of Review. Section 4.0 of the ERP Basis of Review sets the goal of permitting to be "no net loss in wetland . . . functions." Sections 4.2 and following generally require balancing. Section 4.2.1 predicates District approval on a showing that the SWM system does not cause a "net adverse impact on wetland functions . . . which is not offset by mitigation." The ERP provisions first require that the District "explore" with an applicant the minimization of impacts prior to considering mitigation. Section 4.2.2.4(c) specifically imposes monitoring requirements for SWM systems that "could have the effect of altering water levels in wetlands." Sections 4.3.2.2 and following discuss mitigation ratios under the ERP Basis of Review. If the District can explicate a policy to count as mitigation wetlands acreage already preserved under Army Corps permits, the ratios in this case might warrant further consideration, assuming Applicant resubmits an application for permit modification. But it would be premature to consider the ratios on the present record for several reasons. The District has not proved such a policy. If such a policy counts such wetland acreage, on the theory that the District protects function and the Army Corps protects merely the wetland, the record is insufficiently developed as to the functions of the wetlands proposed for protection, as well as the functions of the 13.9 acres of wetlands proposed for destruction. Also, the District has not sufficiently explored project minimization, as is now required under the ERP Basis of Review.
Recommendation It is RECOMMENDED that the District enter a final order denying Applicant's request for a permit modification. ENTERED in Tallahassee, Florida, on June 13, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 13, 1997. COPIES FURNISHED: Jeffrey D. Kneen John F. Mariani J. Barry Curtain Levy Kneen 1400 Centrepark Boulevard, Suite 1000 West Palm Beach, Florida 33401 Ronald K. Kolins Thomas A. Sheehan, III Moyle Flanigan Post Office Box 3888 West Palm Beach, Florida 33402 John J. Fumero Marcy I. LaHart Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Samuel E. Poole, III Executive Director Post Office Box 24680 West Palm Beach, Florida 33416
The Issue Whether Respondent Richardson’s application for a wetlands resource permit to construct a private road and bridge through wetlands should be denied for failing to provide mitigation to offset the impacts to existing wetlands. Whether Respondent Richardson had provided the Department with reasonable assurance that he or she owns or has sufficient authorization to use certain land in mitigation to offset the wetland impacts.
Findings Of Fact In January of 1990, John Richardson applied to the Department for a wetland resource (dredge and fill) permit under Section 403.918, Florida Statutes to construct a private road and bridge through wetlands. The proposed project would impact 0.032 acres of wetland. The proposed project is not located in an Outstanding Florida Water (OFW). The proposed project would adversely affect the following: the conservation of fish and wildlife; the fishing, recreational values, and marine productivity in the vicinity of the proposed project; and the current condition and relative value of functions being performed by the wetlands impacted by the project. The proposed project would be permanent in nature. The proposed project would not meet the criteria of Section 403.918(2)(a) Florida Statutes, without mitigation adequate to offset the impacts to wetlands. To provide adequate mitigation for the proposed project, Respondent John Richardson proposed to create and preserve 0.029 acres of new wetlands and preserve 4.35 acres of existing wetlands. The preservation would consist of granting to the Department a perpetual conservation easement over the mitigation wetlands. Respondent John Richardson represented to the Department that he was the record owner or had permission to use the land that he offered for mitigation. The Department reasonably relied on that representation. The mitigation proposed by Respondent John Richardson would be adequate to offset the impacts to wetlands resulting from the proposed project. On March 4, 1992, the Department issued to John Richardson a wetlands resource permit for the proposed project. The Department was not aware, before it issued this permit, that John Richardson might not own or have permission to use the mitigation land. The Department was substantially justified in issuing the permit to John Richardson on March 4, 1992. Specific conditions 28-31 of that permit required Respondent John Richardson to grant the Department a conservation easement over the mitigation land within thirty days after issuance of the permit. Respondent John Richardson failed to grant the Department the required conservation easement, and failed to publish notice of the Department’s action. On July 22, 1996, Petitioners filed a timely petition with the Department challenging the Department’s issuance of the March 4, 1992, permit to Respondent John Richardson. On September 11, 1996, Janet Richardson filed an application with the Department for transfer of the March 4, 1992, permit to her following the dissolution of marriage with John Richardson. By letter dated October 11, 1996, the Department requested Janet Richardson to provide additional documentation to show that she either owns the mitigation land or has permission to use that land. Janet Richardson was required to provide a legal survey drawing depicting the mitigation land, property records showing ownership of that land, and a notarized statement from the land owner authorizing her to use that land. The Department specifically advised Janet Richardson that it could not approve the proposed project if she failed to submit this requested documentation to the Department prior to the final hearing. Janet Richardson failed to provide the requested documentation by the date of the final hearing in this matter, or subsequently. As of November 6, 1996, no work had begun on the proposed project. At the hearing, the Department adequately explained its change in position from deciding to issue the permit (on March 4, 1992) and proposing denial of the permit (on November 6, 1996). The Department relies on an applicant’s representations regarding ownership of or right to use land unless a problem is brought to the Department’s attention. In this case, the Department was not aware that there was a problem with the applicant’s right to use the mitigation land until the petition was filed with the Department on July 22, 1996. Janet Richardson failed to provide proof that she either owns or is authorized to use the land to mitigate the impacts to wetlands from the proposed project. Without such proof, Janet Richardson failed to prove that she could mitigate those same impacts from the proposed project.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Respondent Richardson’s request for a wetlands resource permit for the proposed project.ONE AND ORDERED this 17th day of December, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Richard Stauffer Post Office Box 97 Aripeka, Florida 34679-097 Cy Plata Post Office Box 64 Aripeka, Florida 34679 Steven McCallum Post Office Box 484 Aripeka, Florida 34679 Leslie Neumann Post Office Box 738 Aripeka, Florida 34679 John Richardson 700 West Broad Street Brooksville, Florida 34607 Janet Richardson 1603 Osowaw Boulevard Springhill, Florida 34607 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part: Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules. Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit. DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida. DIANE CLEAVINGER 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 4th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Stephen C. Bullock P. O. Box 447 Jacksonville, FL 32201 Thomas I. Mayton, Jr. Assistant General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Frederick L. Koberlein P. O. Drawer 2349 Lake City, FL 32056-2349 Virginia B. Wetherell, Secretary D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Kenneth Plante General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
