The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
Findings Of Fact Based upon the above testimony and the exhibits received into evidence in this cause, the undersigned Hearing Officer makes the following findings of fact with regard to the issue in dispute: The applicants, as owners and lessees of 3,300 acres of land to be used for sugar cane production, propose to install a surface water management system consisting of levees, ditches, culverts, and pumps for drainage and irrigation purposes. Irrigation will be drawn from and drainage water will be discharged into Canal 51, a project works of the FCD. There is no dispute between the applicant and the FCD staff concerning the permit for water use and connection to C-51. The applicant proposes to discharge, via two 30,000 gallon per minute pumps, one inch per acre per day or 62,239 gallons per minute into C-51. The soils on the applicants' land are primarily muck types which are high in organic nitrogen. A water level of three feet below ground level, as proposed, will probably cause such nitrogen in the muck soil to decompose, resulting in soil subsidence and production of inorganic nitrogen. Nutrients (primarily nitrogen and phosphorus) resulting from muck decomposition and crop fertilization may enter the water in the interior canals and cause such water to have a higher nutrient content. The water in Canal 51 now has low concentrations of nutrients, as compared with the waters in canals appurtenant to other sugar cane producing areas. There appear to be unique hydrological conditions on the land in question which may keep the drainage system flushed and nitrate-free and there is evidence that sawgrass areas act as an effective nutrient filter. There was no evidence that additional nutrients entering C-51 would be environmentally harmful or degrading to the waters in C-51, both parties admitting that further research and scientific data is needed to determine the safe level of nutrients in this area. The applicants and other interested groups have shown that the construction. and operation of a retention or impoundment area would cause an adverse economic impact upon landowners and would have an adverse economic effect upon consumers, the general labor force and the community. The FCD has not adequately demonstrated that the waters of C-51 would be degraded by the applicants' proposed project or that a 140 acre impoundment area would be a reasonable condition to impose upon the issuance of the permits in question. A water quality monitoring system, such as proposed in the original and revised staff reports, will permit the parties to determine whether the water in C-51 is being degraded by the addition of nutrients.
Recommendation Based upon the above cited testimony, evidence, findings of fact and conclusions off law, the following recommendations are made: It is recommended that a water use permit, a Surface water management permit and a right-of-way occupancy permit be issued, all in accordance with the recommendations and conditions set forth in the original Staff Report dated August 5, 1975, attached hereto as Exhibit A. It is recommended that the additional requirement of a 140-acre retention area set forth in the Revised Staff Report be rejected. It is further recommended that an additional condition be attached to the surface water management permit. That condition would be to have such permit expire at the same time as the water use permit; to wit: July 15, 1977, so as to allow the FCD and the applicants sufficient time to collect further data on the effect of nutrients on the waters of C-51 and compare said data with the information derived from the monitoring program required under the permits. If such data and comparisons sufficiently demonstrate that the waters of C-51 will be degraded by the applicants' project, a retention area requirement would then be a reasonable condition to the reissuance of a permit. Respectfully submitted and entered this 20th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George H. Bailey, Esquire JONES, PAINE & FOSTER, P.A. 601 Flagler Drive Court Post Office Drawer E West Palm Beach, Florida 33402 John Wheeler, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida =================================================================
The Issue The issue to be decided in these cases is whether Petitioner, A. Wayne Lujan (Petitioner), was entitled to issuance of five environmental resource permits (ERPs) that Respondent, Department of Environmental Protection (DEP), intended to deny as stated in notices of denial dated October 25, 2019.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. Parties and Background Petitioner Lujan is the president and a director of Kay Haven Associated Enterprises, Inc. (Key Haven), that owns the five parcels, which are the subject matter of this hearing. Although Key Haven owns numerous lots, it chose to submit ERP applications for the Subject Lots within the Key Haven Tenth Addition plat dated September 1966 (Plat). See Joint Exhibit 84. Joint Exhibit 84 The Subject Lots are located in an unincorporated part of the County on the northwestern edge of a body of land lying north of State Road A1A, identified on the Plat as Raccoon Key. The Subject Lots are approximately half a mile east of the city limits of Key West, Florida. The Subject Lots are all characterized by a small upland portion adjacent to Floral Avenue. The majority of the Subject Lots transition into a mangrove fringe of varying depth and submerged lands containing marine seagrasses and sponges. See Joint Exhibits 81 and 82. Joint Exhibit 81 Joint Exhibit 82 DEP is the administrative agency of the state having the power and duty to protect Florida's air and water resources, and to administer and enforce the provisions of part II of chapter 380, part IV of chapter 373, and chapter 403, Florida Statutes. DEP also administers the provisions of Florida Administrative Code chapters 62-312 and 62-330 regarding activities in wetlands and other surface waters of the state. DEO is the state land planning agency and reviews certain permit applications for consistency with its statutory responsibilities under the Florida Coastal Management Program (FCMP), which includes part II of chapter 163, and part I of chapter 380, Florida Statutes. Relevant to this proceeding, DEO exercises authority over the ACSC program. See § 380.05, Fla. Stat. On July 26, 2018, Petitioner filed five applications for ERPs with DEP. Although certain details within each application differed, the applications all sought to authorize construction of a seawall in the waters of the Gulf of Mexico and in unnamed wetlands within the landward extent of the Gulf of Mexico, a Class III OFW, to remove the entirety of the existing mangrove fringe, and to place fill within wetlands and other surface waters for the construction of single-family residences (Project). The minor differences in each application relate to the length of the seawall and the amount of fill necessary for each lot. Although some testimony was provided concerning the differences, no party argued that the differences were material to the determinations necessary in this proceeding. Accordingly, the factual and legal analysis for the Subject Lots and ERP applications were addressed without distinction herein. DEP forwarded a copy of the applications to DEO for its recommendation. On August 24, 2018, DEO issued objections to approval of the permits citing inconsistency with the Florida Keys ACSC Principles for Guiding Development (PGDs) in section 380.0552(7). DEO also objected based on inconsistencies between the Project and the Monroe County Comprehensive Plan (Comp Plan) and Land Development Code (LDC), which implement the PGDs. DEP's first RAI dated August 24, 2018, included DEO's objections. The first RAI notified Petitioner that DEP had concerns with the Project that included: (1) installation of the vertical seawall; (2) placement of fill within an OFW; (3) direct impacts to marine seagrass bed community without adequate mitigation; and (4) failure to provide stormwater management plans since the Project was a common plan of development. The first RAI contained 19 specific requests for additional information. On October 23, 2018, Petitioner responded to DEP's first RAI by submitting slightly revised plans. The revised Project proposed less of a vertical seawall footprint by adding rip-rap to the side seawalls as a means of containing fill. Petitioner's responses to the 19 specific requests for information can generally be categorized as follows: (1) elimination of some vertical seawalls, but not the ones on the waterward edge of the Subject Lots; (2) no change in the placement of fill; (3) Petitioner would attempt to find appropriate compensatory mitigation for the seagrass impacts; and (4) Petitioner did not consider the Project to be a common plan of development. Regarding DEO's objections, Petitioner stated that "[w]e acknowledge that the project has been forwarded to FWC [Florida Fish and Wildlife Conservation Commission] and DEO and that additional comments and information may be requested by those agencies in order to fully evaluate the application." Petitioner did not substantively address DEO's objections. DEP issued a second RAI on November 21, 2018. DEO again objected in a letter dated November 26, 2018. DEP's second RAI raised the same concerns as the first RAI and acknowledged that four of the 19 specific items were adequately addressed. On January 11, 2019, Petitioner responded to DEP's second RAI by again submitting slightly revised site plans. However, the Project remained generally unchanged, with a proposed vertical seawall on the waterward edge of the lots, rip-rap along the sides, removal of the entire mangrove fringe, and fill of the entire lots eliminating the existing marine seagrasses. DEP issued a third RAI to Petitioner on February 8, 2019. DEO reiterated its objections by letter dated February 8, 2019. The third RAI raised the same concerns as the first and second RAIs, although DEP acknowledged that six of the 19 specific items were adequately addressed. By letter dated April 8, 2019, Petitioner responded to DEP's third RAI. The response again proposed slightly altered site plans from the January 2019 submissions. Petitioner essentially stated that mitigation opportunities were scarce, but had contacted the County and was looking into derelict vessel removal. However, the proposed Project remained generally unchanged, with a proposed vertical seawall on the waterward edge of the lots, rip-rap along the sides, removal of the entire mangrove fringe, and fill of the entire lots eliminating the existing marine seagrasses. As it relates to DEO's objections, Petitioner responded that "[a]fter review of the comments outlined in the [DEO] revised letter, it seems that the DEO objections are related to compliance with the provision[s] of the [Monroe] County [Comp Plan]. We will deal with those issues at the time of local permitting." Petitioner again failed to substantively address DEO's objections. DEP issued its final RAI on May 8, 2019. DEO again objected by letter dated May 6, 2019. This final RAI raised the same concerns as the first, second, and third RAIs. DEP stated that seven of the 19 specific items were not addressed by Petitioner, and that failure to provide a complete response to the prior RAI may result in denial of the ERP applications. On August 29, 2019, Petitioner responded to DEP's final RAI by once again submitting slightly revised plans, and additional information concerning mitigation proposals. However, the Project did not change and Petitioner again failed to substantively address DEO's objections. DEO’s objection letter identified that the ERP applications were inconsistent with the Florida Keys ACSC PGDs, seven Comp Plan policies, and six regulatory provisions of the County's LDC. DEP denied the ERP applications on October 25, 2019. The grounds for denial reiterated the issues not addressed by Petitioner's RAI responses. Specifically: (1) the failure of the Project to provide reasonable assurances concerning direct, secondary, and cumulative impacts to the marine seagrass bed community; (2) continued reliance upon construction of a vertical seawall; (3) failure to provide stormwater management information necessary given the determination that the Project constituted a common plan of development; (4) inconsistency with the FCMP as identified by DEO in its objection letters; and (5) failure to provide reasonable assurances that the Project was clearly in the public interest. Direct Impacts The Project proposed to entirely fill the Subject Lots, contain the fill with vertical seawalls and rip-rap, and construct pile-supported single-family residences. The Project would remove the entire mangrove fringe that aerials and site inspections show is a healthy mix of red, black, and white mangroves along with some green buttonwood. The shallow, open surface waters are dominated by marine seagrasses that vary in density. Petitioner did not make any design modifications to the Project that sought to reduce or eliminate direct impacts to the mangrove fringe and marine seagrasses. Petitioner's resource inventory was done using GIS aerial photography so that the aerial benthic resource surveys submitted to DEP were not ground- truthed. DEP staff conducted physical site inspections and ground-truthing inspections that included swimming in the open surface waters. DEP staff found significant marine seagrasses and sponges that were not mentioned in Petitioner's resource surveys. Depending on the lot, the Project would fill approximately 6,000 square feet of wetlands and other surface waters, i.e., 900 to 2,500 square feet of mangrove habitat and 4,000 to 4,800 square feet of marine seagrass bed habitat. The seawalls depicted in the final version of Petitioner's site plans were "vertical seawalls" because the rip-rap would not face the seawalls to the mean high water line (MHWL). The rip-rap would be placed on submerged resources inside the property lines of the Subject Lots. Also, Petitioner's final plans did not include the mooring of vessels. Vertical seawalls are prohibited in the OFW of the County. Petitioner did not affirmatively demonstrate that fill or shoreline stabilization could be accomplished by using native vegetation instead of vertical seawalls. Secondary Impacts DEP's expert witness, Ms. Mills, testified that Petitioner's ERP applications did not identify any potential secondary impacts. Ms. Mills testified that the expected secondary impacts from the Project included stormwater runoff, shading, and erosion or shoaling. Although the Project plans showed that stormwater would be collected and directed to Floral Avenue, DEP's investigation established that there is no stormwater management system on the side of Floral Avenue abutting the Subject Lots. Thus, the collected and directed stormwater would end up flowing back into the mangrove fringe and surface waters at the lot locations that were not proposed for development, e.g., Lots 36 and 38. The proposed single-family homes are piling-supported structures. Ms. Mills testified that the piling-supported structure would cause shading of the immediate adjacent resources on either side. She identified potential shading impacts to the resources of the undeveloped Lots 36 and 38. In addition, Ms. Mills identified potential erosion or shoaling impacts to the undeveloped Lots 36, 38, and unnamed lots to the left of Lot 40 since they would be surrounded by developed fill on either side. Although Mr. Swakon testified that tidal velocity is low in this area, other aspects, such as effects from wind-driven circulation, were not adequately addressed. Mitigation Petitioner was required to propose mitigation to offset remaining direct and secondary impacts after going through a reduction and elimination exercise. However, Petitioner did not propose any revisions to the Project to reduce or eliminate the direct and secondary impacts identified above. Ms. Mills explained that appropriate mitigation usually provides benefits to the same type of ecological community as the one being impacted. Petitioner's ultimate mitigation proposal was to purchase saltwater credit at a mitigation bank, the Florida Power and Light Everglades Mitigation Bank (FPL EMB). The FPL EMB is located on the mainland of Florida approximately a hundred miles away from the Subject Lots. Ms. Mills testified that saltwater credit would be appropriate to offset and replace the same ecological function of mangroves, but not to offset the submerged benthic communities that would be impacted by the Project. Mr. Swakon testified that calculation of the amount of mitigation credits included a multiplier to address secondary and cumulative impacts, the out-of-kind mitigation, and the dissimilarities in the communities. However, Ms. Mills persuasively testified that the proposed multiplier was not sufficient to justify the three aspects of impact that needed to be offset. Whether to justify dissimilarities between the ecological communities, secondary and cumulative impacts, or the distance of the mitigation site from the Project, the multiplier was not sufficient. Cumulative Impacts The Project is not within a recognized cumulative impact basin of the South Florida Water Management District (SFWMD) for mitigation of impacts purposes. Accordingly, Ms. Mills testified that the plain language of a cumulative impacts analysis is considered. Contiguous lots to the Subject Lots owned by Petitioner could be developed through similar requests in the future. Also, each ERP application's cumulative impact analysis would consider the other four ERP applications as in-house examples of potential future projects. Common Plan of Development Petitioner contested DEP's conclusion that the Project was a common plan of development subject to section 2.0 of the Applicant's Handbook Volume 1 and associated stormwater management requirements. The Project would facilitate the advancement of land uses such as multiple residences, a residential subdivision, or phased site development. The Project comprised a total land area divided into multiple lots or parcels that are under common ownership or control. In total, Petitioner owns 648 lots under common ownership within the Key Haven Tenth and Eleventh Addition. The Subject Lots are all part of a residential subdivision. Thus, the preponderance of the evidence demonstrated that the Project was a common plan of development. For this common plan of development, Petitioner's proposed stormwater management consisted of a cap on the proposed seawalls directing stormwater to swales on each lot. The swales would then direct stormwater to Floral Avenue with no additional treatment or management. During site inspections, DEP staff did not find any evidence of stormwater management along Floral Avenue. Seawalls and Rip-rap The seawalls depicted in the final version of Petitioner's ERP applications would be vertical seawalls because the rip-rap facing the seawall did not come above the MHWL. In addition, the final plans did not include the mooring of vessels. As found above, the Project would place fill, seawalls, and rip-rap on marine seagrasses and sponges. Petitioner failed to affirmatively demonstrate that native vegetation was not sufficient to prevent erosion. The evidence established that Petitioner did not apply for any waiver or variance of applicable ERP rule criteria. FCMP Consistency The evidence demonstrated that Petitioner refused to address DEO's objections based on a mistaken view of the criteria governing ERP applications in the County and the Florida Keys ACSC. Relevant to this proceeding, DEO exercises authority over the ACSC program. See § 380.05, Fla. Stat.; see also § 380.23(6), Fla. Stat. (Each agency charged with implementing statutes and rules that are part of the FCMP, shall be afforded an opportunity to provide DEP with its comments and determination regarding consistency of the activity with those statutes and rules.). Section 380.05(16) prohibits persons from undertaking any development within the Florida Keys ACSC, except in accordance with the PGDs. Thus DEO, as the administrator of the ACSC program, reviewed the ERP applications for consistency with applicable regulatory requirements. DEO issued objections to approval of the permits citing inconsistency with the Florida Keys ACSC PGDs; and inconsistencies between the Project and the County's Comp Plan and LDC which implement the PGDs. DEO identified that the Project would be inconsistent with four PGDs. DEO's expert witness, Ms. Powell, testified that the Project was inconsistent with the PGD, which provides for strengthening local government capabilities for managing land use and development so that the local government is able to achieve these objectives without continuing the ACSC designation. See § 380.0552(7)(a), Fla. Stat. Ms. Powell persuasively testified that the ERP applications were inconsistent with this PGD because the Project would impair the local government's ability to have the ACSC designation removed. Allowing development inconsistent with its regulations would hurt the local government's ability to pursue de-designation. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The second PGD cited by DEO provides for protecting shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. See § 380.0552(7)(b), Fla. Stat. It was undisputed that the Project would result in total removal of the mangrove and buttonwood fringe on each lot and 100% destruction of existing submerged marine resources. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The third PGD cited by DEO provides for limiting the adverse impacts of development on the quality of water throughout the Florida Keys. See § 380.0552(7)(e), Fla. Stat. Ms. Powell testified that degradation to nearshore water quality from prior dredge and fill activity was one of the reasons for the designation of the Florida Keys as an ACSC. Additionally, as further discussed below, the Project would be inconsistent with the County's Comp Plan policies and LDC regulations that further the goal of protecting the quality of water throughout the Florida Keys ACSC. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The fourth PGD cited by DEO provides for protecting the public health, safety, and welfare of the citizens of the Florida Keys, and maintaining the Florida Keys as a unique Florida resource. See § 380.0552(7)(n), Fla. Stat. As further discussed below, the Project would be inconsistent with the County's Comp Plan and LDC regulations that prohibit the use of structural fill within velocity zones. No evidence was presented by Petitioner that the Project would be consistent with this PGD. Ms. Powell testified that DEO considered the remaining statutory PGDs, and determined they were not particularly applicable to these ERP applications. In accordance with its duties, DEO had also reviewed and approved the County's Comp Plan and LDC as consistent with the statutory PGDs. DEO identified that the Project would be inconsistent with seven Comp Plan policies. They are Policies 102.1.1, 101.5.25, 203.1.1, 204.2.2, 204.2.3, 204.2.4, and 212.5.3. Policy 102.1.1 provides: The County shall protect submerged lands and wetlands. The open space requirement shall be one hundred (100) percent of the following types of wetlands: submerged lands mangroves salt ponds fresh water wetlands fresh water ponds undisturbed salt marsh and buttonwood wetlands Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetlands only for use as transferable development rights (TDRs) away from these habitats. Submerged lands, salt ponds, freshwater ponds, and mangroves shall not be assigned any density or intensity. Policy 101.5.25 provides that "[t]he allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available." Policy 203.1.1 provides that "[t]he open space requirement for mangrove wetlands shall be one hundred (100) percent. No fill or structures shall be permitted in mangrove wetlands except for elevated, pile-supported walkways, docks, piers and utility pilings." Policy 204.2.2 provides: To protect submerged lands and wetlands, the open space requirement shall be 100 percent of the following types of wetlands: submerged lands; mangroves; salt ponds; freshwater wetlands; freshwater ponds; and undisturbed salt marsh and buttonwood wetlands. Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetland only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds and mangroves shall not be assigned any density or intensity. Within one (1) year after the adoption of the 2030 Comprehensive Plan, the County shall revise the LDC to include a prohibition of development in salt ponds. Policy 204.2.3 provides: No structures shall be permitted in submerged lands, mangroves, salt ponds, or wetlands, except for elevated, pile-supported walkways, docks, piers, and utility pilings. No fill shall be permitted in submerged lands, mangroves, salt ponds, or wetlands except: as specifically allowed by Objective 212.5 and subsequent Policies; to fill a manmade excavated water body, such as a canal, boat ramp, or swimming pool if the Director of Environmental Resources determines that such filling will not have a significant adverse impact on marine or wetland communities; or as needed for shoreline stabilization or beach renourishment projects with a valid public purpose that furthers the goals of the Monroe County Comprehensive Plan, as determined by the County. Policy 204.2.4 provides: No fill or structures shall be permitted in mangroves or wetlands except as allowed by Policy 204.2.3 (as amended) and for bridges extending over mangroves or wetlands that are required to provide automobile or pedestrian access to dwelling units located on upland areas within the same property for which there is no alternative means of access. Such bridges shall be elevated on pilings such that the natural movement of water, including volume, rate, and direction of flow shall not be disrupted or altered. Upland areas shall include disturbed wetlands that have been lawfully converted into uplands through filling. Policy 212.5.3 provides: Bulkheads, seawalls or other hardened vertical shoreline structures shall be permitted on residential canals and altered shorelines only in the following situations: to replace an existing deteriorated bulkhead or seawall; or to stabilize a severely eroding shoreline area. DEO's expert witness, Ms. Powell, persuasively testified that the Project was inconsistent with all seven policies, because it did not protect the submerged lands and wetlands, did not provide for 100% open space within the submerged lands and wetlands, and provided for the construction of a seawall not excepted from the general prohibition. Petitioner did not present any evidence that the Project was consistent with the cited policies. Instead, Petitioner's witness, Mr. Nelson, testified that he felt certain County regulations would militate in favor of allowing the development. The main factor cited by Mr. Nelson was that the Subject Lots were designated as Tier III parcels under the County's LDC. However, designation of a parcel as Tier III did not conflict with the policies cited by DEO. The more credible and persuasive evidence concerning the Project's compliance with the Comp Plan policies was provided by Ms. Powell, who concluded that the Project was not consistent with those policies. DEO identified that the Project would be inconsistent with six sections of the County's LDC regulations. Those are sections 118-4, 118-10(e), 118-12(k)(2), 122-4(b)(5), 130-157, and 130-162. The LDC regulations are more specific methods for implementing the Comp Plan policies outlined above. Section 118-4 provides: No development activities, except as provided for in this chapter, are permitted in submerged lands, mangroves, salt ponds, freshwater wetlands, freshwater ponds, or in undisturbed salt marsh and buttonwood wetlands; the open space requirement is 100 percent. Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetlands only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds and mangroves shall not be assigned any density or intensity. Section 118-10(e), in relevant part, provides: Mangroves, wetlands, and submerged lands. All structures developed, used or occupied on land classified as mangroves, wetlands or submerged lands (all types and all levels of quality) shall be designed, located and constructed such that: Generally. Only docks and docking facilities, boat ramps, walkways, water access walkways, water observation platforms, boat shelters, nonenclosed gazebos, riprap, seawalls, bulkheads, and utility pilings shall be permitted on or over mangroves, wetlands, and submerged lands, subject to the specific restrictions of this subsection. Trimming and/or removal of mangroves shall meet Florida Department of Environmental Protection requirements. * * * (4) Placement of fill. No fill shall be permitted in any mangroves, wetlands, or submerged lands except: As specifically allowed by this Section or by Section 118- 12(k) (Bulkheads, Seawalls, Riprap) and 118-12(l) (Boat Ramps); To fill a manmade, excavated water body such as a canal, boat ramp, boat slip, boat basin or swimming pool if the County Biologist determines that such filling will not have a significant adverse impact on marine or wetland communities; As needed for shoreline stabilization or beach renourishment projects with a valid public purpose that furthers the goals of the Monroe County Comprehensive Plan, as determined by the County Biologist; For bridges extending over salt marsh and/or buttonwood association wetlands that are required to provide automobile or pedestrian access to lawfully established dwelling units located on upland areas within the same property for which there is no alternate means of access. Such bridges shall be elevated on pilings so that the natural movement of water, including volume, rate and direction of flow shall not be disrupted or altered; or As approved for Disturbed Salt Marsh and Buttonwood Association Wetlands with appropriate mitigation as defined by the wetland regulations of subsection (e)(6) of this Section. Section 118-12(k)(2) provides: (2) Vertical type seawalls or bulkheads shall be permitted only to stabilize severely eroding shorelines and only on manmade canals, channels, or basins. Such seawalls or bulkheads shall be permitted only if native vegetation and/or riprap and filter cloth is not a feasible means to control erosion. No new seawalls, bulkheads, or other hardened vertical structures shall be permitted on open water. Section 122-4(b)(5), in relevant part, provides: Coastal high-hazard areas (V zones). Within the areas of special flood hazard are areas designated as coastal high- hazard areas, which have special flood hazards associated with wave wash. The following provisions shall apply in these areas: * * * e. There shall be no fill used as structural support. Section 130-157, Maximum Permanent Residential Density and Minimum Required Open Space, provides at note (a): (a) The allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available. Section 130-162, Maximum Densities for Hotel/Motel, Campground, Recreational Vehicle, Seasonal and Institutional Residential Uses, and Minimum Open Space, proves at note (a): (a) The allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available. Ms. Powell persuasively testified that the Project was not consistent with the County's LDC regulations in sections 118-4, 118-10(e), 118-12(k)(2), 122- 4(b)(5), 130-157, and 130-162. The Project was inconsistent with the cited LDC regulations because it sought to construct seawall in submerged land, fill portions of the lots subject to a 100% open space requirement, remove the entirety of the existing mangrove fringe, impair 100% of the marine seagrass resources within the Subject Lots, and utilize structural fill within a Federal Emergency Management Agency (FEMA) designated Velocity Zone. The preponderance of the evidence demonstrated that the Project did not meet the criteria of part IV of chapter 62-312 and section 380.0552. The testimony also demonstrated that Petitioner did not apply for a variance or waiver of the County's LDC regulations. Conditions for Issuance Petitioner generally argued that the five applications provided reasonable assurance for issuance of individual ERPs. However, the persuasive and credible evidence established that the Project did not satisfy a majority of the conditions for issuance under rule 62-330.301. Petitioner failed to provide adequate information regarding stormwater management, the impacts of runoff to Floral Avenue, and runoff flowing back into the Gulf of Mexico OFW. This failure resulted in a lack of reasonable assurance that the Project would not cause adverse flooding to on-site or off-site property; would not cause adverse water quantity impacts to receiving waters and adjacent lands; and would not adversely affect the quality of receiving waters. The preponderance of the evidence demonstrated that the Project would adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Those functions would be 100% impacted and the impacts would not be adequately offset by appropriate mitigation. As found above, the Project would cause adverse secondary impacts to the water resources, adverse impacts to surface water conveyance, and the adverse impacts would not be adequately offset by appropriate mitigation. Additional Conditions for Issuance Petitioner generally contended that the five applications provided reasonable assurance that the Project was clearly in the public interest under rule 62-330.302. However, the persuasive and credible evidence established that the Project did not satisfy a majority of the applicable additional conditions for issuance. The Project would adversely affect the public health, safety, or welfare or the property of others because Petitioner failed to provide adequate information regarding stormwater management. DEP's site inspection found no stormwater management or treatment system on the side of Floral Avenue adjacent to the Subject Lots. Thus, the collected and directed stormwater would end up flowing back into the mangrove fringe and the OFW. The preponderance of the evidence demonstrated that the Project would adversely affect the conservation of fish and wildlife, or their habitat, as a result of the 100% impact to benthic communities, which would not be adequately offset by appropriate mitigation. The preponderance of the evidence demonstrated that the Project would adversely affect marine productivity, the current condition, and the relative value of functions being performed by the impacted areas. Also, the Project would be permanent in nature. The preponderance of the evidence demonstrated that Petitioner failed to provide reasonable assurance that there would not be harmful erosion or shoaling. The Project would not adversely affect or enhance any significant historical and archaeological resources. The Project would not be within a recognized cumulative impact basin of the SFWMD for mitigation of impacts purposes. Contiguous lots to the Subject Lots owned by Petitioner could be developed through similar requests in the future. Each ERP application's cumulative impact analysis would consider the other four ERP applications as in-house examples of potential future projects. Thus, Petitioner did not provide reasonable assurance that each ERP application would not cause unacceptable cumulative impacts upon wetlands and other surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that DEP enter a final order denying Petitioner's five ERP applications. DONE AND ENTERED this 14th day of April, 2021, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2021. COPIES FURNISHED: Kathryn E.D. Lewis, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Jay Patrick Reynolds, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 William Moore, Esquire Moore Bowman & Reese, P.A. Suite 100 551 North Cattlemen Road Sarasota, Florida 34232 Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Mail Station 35 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Jon F. Morris, Esquire Brandon W. White, Esquire Department of Economic Opportunity 107 East Madison Street, Mail Station 110 Tallahassee, Florida 32399 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Valerie A. Wright, Esquire Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399
The Issue The issue is whether to approve an application by Respondents, Palm Beach County (County) and The David Minkin Florida Realty Trust, Richard Thall, Robert Thall, Peter L. Briger, Paul H. Briger, and The Lester Family Investments, LP (The Briger Group), for a conceptual Environmental Resource Permit (ERP) authorizing a surface water management system to serve a mixed-use development in the City of Palm Beach Gardens known as Scripps Florida Phase II/Briger (Scripps project).
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Tsolkas resides at 822 North C Street, Lake Worth, Florida, which is approximately 16.8 miles (in a straight line) south-southeast of the project site and approximately one mile west of the Intracoastal Waterway (ICW). Among others, he expressed concerns in this case about the potential extinction of species and the impact of the proposed site on the ICW. However, other than a general interest in environmental issues, he presented no evidence to demonstrate how he is affected by the issuance of the permit. Petitioner Minaya resides at 901 North Federal Highway, Apartment A, Lake Worth, Florida, and approximately the same distance from the project site and ICW. He has the same concerns as Petitioner Tsolkas but presented no evidence to demonstrate how the project will affect his substantial interests. The County is a chartered county and a political subdivision of the state. It owns approximately 70.0 acres of the site on which the Scripps project will be located and the 193.92-acre off-site mitigation area for the project at the Pine Glades Natural Area (Pine Glades). It is a co-applicant for an ERP. The Briger Group is a co-applicant for the modified ERP and owns 611.69 acres of the project site. The original permit that is being modified was issued as conceptual approval on January 19, 1978. The District is a public corporation in the State, having been created by special act in 1949 and operating pursuant to Chapter 373, Florida Statutes. The Application On April 27, 2009, the applicants submitted an application to modify a conceptual ERP, Application No. 090427- 7, for a surface water management system to serve 681.89 acres of mixed-use development in the City of Palm Beach Gardens (City). The original permit was also issued as a conceptual approval in 1978 and has been modified conceptually on a number of occasions, most recently in 2001. The application includes 193.92 acres of off-site mitigation at Pine Glades in the northern part of the County and additional off-site mitigation through the purchase of mitigation credits at the Loxahatchee Mitigation Bank in the southern part of the County. "Conceptual approval" means "an [ERP], issued by the District Governing Board, which approves a conceptual master plan for a surface water management system or a mitigation bank." Fla. Admin. Code R. 40E-4.021(5). It constitutes final agency action and is "binding to the extent that adequate data has been made available for review by the applicant during the review process." Id. After conceptual approval is obtained, the applicants must then file an application for an ERP to construct and operate the surface water management system. Therefore, no construction will be authorized by this permit. On April 16, 2010, the District issued a Staff Report recommending approval of the requested ERP. A Revised Staff Report making minor changes and clarifications to the original proposed agency action was issued on May 4, 2010. The Project and the Site The proposed project that will be served by the surface water management system is a multi-use development on a 681-acre tract located south of Donald Ross Road and north of Hood Road in the City. The site is divided by Interstate 95 (I-95) into two wedge-shaped parcels known as the western and eastern parcels. The Florida Turnpike adjoins the western side of the western parcel. With the exception of the highways, the site is surrounded by residential development including two projects located just east of the site: Legends at the Gardens (on the northern side) and San Michele (on the southern side). A portion of the site located east of I-95 is mostly undeveloped and vegetated. However, approximately 60 acres located at the southeast corner of the site include an existing horse farm with improved and unimproved pastures. The central and southern portions of this parcel contain a number of ditches that were created prior to the 1950s. The portion of the site west of I-95 is undeveloped and vegetated, but it also includes a few mobile homes on approximately 2 acres at the southern end of the site. The upland habitats are disturbed and degraded and primarily include pine flatwoods, mixed hardwood-pine forest, hardwood hammock, and dry prairie, some of which are infested with Brazilian pepper, Australian pine, and Japanese climbing fern. There are also around 86 acres of state jurisdictional wetlands and other surface waters. Finally, the southwestern portion of the parcel located west of I-95 contains a prehistoric/archaeological site which is proposed for preservation. The County owns 70 acres of the property on the eastern parcel, while The Briger Group owns the remaining acreage. The project is anticipated to house the Scripps Research Institute, as well as ancillary institutional, commercial, and residential uses. The project received development of regional impact approval from the City on April 1, 2010, and is subject to a master plan that identifies land use districts, such as a biotech district, a town center district, residential districts, and a neighborhood-serving commercial district. The 70 acres owned by the County will be used to house the second phase of the Scripps Research Institute. It is unknown at this time whether the Scripps facility will house administrative offices, laboratory space, or some other use. The build-out schedule for the project is twenty years. Before construction can commence, the applicants will be required to obtain zoning and site plan approval from the City, authorization from both the Northern Palm Beach County Improvement District (Improvement District) and the Seacoast Utility Authority, and a permit from the County Health Department. Also, the applicants will be required to receive a construction-related modification to the ERP from the District. The Surface Water Management System In 2001, the District issued a permit to the Improvement District for conceptual approval of a surface water management system for flood protection within a 4,059.9-acre area known as Unit 2, which includes the area of the proposed project. See Respondents' Exhibit 57. Drainage from the project site is presently covered by this permit. The Improvement District's system was designed, constructed, and is being operated and maintained for stormwater treatment. The waters in that system are not considered waters of the State. The proposed project will discharge into the Improvement District's system, which is upstream of a permitted man-made control structure on the property designed to retain or detain stormwater runoff in order to provide treatment and attenuation of the stormwater. The proposed system is primarily a wet detention system consisting of three large basins: A1, B1E(East), and B1W(West). The system has been designed to provide water quality and storm water attenuation prior to overflowing to the Improvement District's Unit 2 master system. As shown in the conceptual plans, Basin B1W is located on the west side of I-95 and has a control elevation of 13.5 feet National Geodetic Vertical Datum (NGVD). Mostly residential development is anticipated in this basin with a small supporting commercial development. An existing 60-inch culvert located under I-95 will continue to connect the two wetland areas, identified as W1 and W2, that are located on both the west and east sides of I- 95, respectively. Basin B1E is located in the southeastern portion of the site and will be controlled at 13.0 feet NGVD. Anticipated development in this area will be mostly residential neighborhoods as well. Exhibit 2 of the Staff Report reflects that runoff from the out-parcels and the northern half of Hood Road will be directed into the proposed project area. Pervious and impervious assumptions were made for future Hood Road improvements and are listed in the land use table. See Respondents' Exhibit 43 at p. 3 of 26. Basin B1E will overflow into the Unit 2 master system via a control structure and outfall pipe which discharges to a wet pond located within the adjacent San Michele development to the east. Industrial and commercial development is planned in Basin A1, which is the northeastern basin. The lakes will be controlled at elevation 13.0 feet NGVD. Runoff from this basin will be directed eastward into the Improvement District's Unit 2 master system via a control structure and pipe connection into the lake within the Legends of the Gardens development to the east. The applicants submitted site grading assumptions and pervious/impervious percentages as well as stormwater modeling to demonstrate compliance with the existing master system for the overall Improvement District's Unit 2 master system. In addition, the system for this basin has been designed to accommodate inflows from approximately 50 acres of I-95 right- of-way through an existing control structure which was permitted as part of the I-95 widening project. The proposed project includes direct impacts to a total of 78.47 acres of on-site wetlands. Wetland mitigation to offset the adverse impacts includes enhancement of 7.50 acres of on-site wetlands; the purchase of 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank; off-site wetland and upland restoration and enhancement of 163.41 acres of wetlands; and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. Additionally, the District has adopted BOR provisions that implement the relevant portions of the rules. The conditions for issuance primarily focus on water quantity, water quality, and environmental criteria and form the basis of the District's ERP permitting program. The first step in the District's environmental review is to identify wetlands and other surface waters. On March 5, 2009, the District issued a formal determination of wetlands delineating 34 wetland areas and 4 jurisdictional surface water ditches. This determination was not timely challenged and therefore represents final agency action. That determination was used in this permit application. Water Quantity Criteria Rule 40E-4.301(1)(a) requires an applicant to provide reasonable assurances that the propose activity will not cause adverse affects to water quantity, while Rule 40E-4.301(1)(b) requires reasonable assurances that the proposed activity will not cause adverse flooding to on-site or off-site property. The BOR provides a method to calculate allowable discharge rates. The evidence is that the proposed discharge is well within the standards imposed by the rules governing water quantity impacts. There will be no on-site or off-site flooding as a consequence of the proposed project. Rule 40E-4.301(1)(c) requires reasonable assurance that there will be no adverse impacts to existing surface water storage and conveyance capabilities. The evidence supports a finding that the proposed discharge will not cause any adverse impacts. Also, the system is capable of being developed and of functioning as proposed, as required by Rule 40E-4.301(1)(i). Petitioners contended that the project poses a threat of over-draining, which will significantly affect the region directly and cumulatively. However, the project does not pose a risk of over-draining because the control elevation of the project will be maintained at a level consistent with surrounding properties and the proposed drainage rate is less than the allowable rate under the rules. Water Quality Rule 40E-4.301(1)(e) sets forth the requirements relating to water quality. Also, BOR Section 5 contains the design criteria that a project must follow regarding off-site discharges to provide reasonable assurances to satisfy the above rule. Water quality treatment will be provided in a proposed wet detention system which utilizes stormwater ponds. The evidence shows that the ponds are larger than required, thereby providing water quality treatment in excess of what is required by the BOR. All water quality standards will be met. Hazardous Waste Management Plan Petitioners contend that no hazardous waste management plan was submitted to the District. However, a plan is not required now because it would need to address the specific uses for the property, which have not yet been designated. Special Condition 31 of the permit requires that such a plan be submitted at the time an application for construction approval is filed with the District. When this is submitted, it will be reviewed to determine if there are reasonable assurances that hazardous materials, if any, will not enter the proposed project's surface water management system. Elimination and Reduction Under BOR Section 4.2.1, after the District identifies the wetlands and other surface waters, the next step is to consider elimination and reduction of impacts. However, BOR Section 4.2.1.2(b) provides that an applicant is not required to demonstrate elimination and reduction impacts when: the applicant proposes mitigation that implements all or part of a plan that provides greater ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. In considering this provision, the District concluded, consistent with the evidence, that the quality of the wetlands which will be adversely affected by this application is low, and the mitigation proposed will provide greater long-term ecological value than the wetlands impacted. This is because the mitigation at both Pine Glades and the Loxahatchee Mitigation Bank have regional ecological value, and these sites will provide greater long-term ecological value than the impacted wetlands. Secondary Impacts Rule 40E-4.301(1)(f) requires reasonable assurance that the project will not cause adverse secondary impacts to water resources. BOR Section 4.2.7 sets forth the requirements for on-site wetlands that will be preserved and enhanced. Under that section, secondary impacts to the habitat of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15 feet and an average width of 25 feet, are provided abutting the wetlands. In this case, the single wetland area being preserved is buffered in accordance with those requirements. Applicants have satisfied the requirements of the rule. Mitigation If impacts to wetlands and other surface waters will occur, then mitigation may be offered to offset the impacts to functions identified in BOR Sections 4.2 through 4.2.9. To assess the impacts and the value of mitigation, the applicants used the statewide Uniform Mitigation Assessment Method and the Wetland Rapid Assessment Procedure. Those results are found in Appendix 1 of the application and in Responses to Requests for Additional Information submitted in August 2009 and January 2010. Page 13 of the Staff Report describes the mitigation. The District also performed its own independent analysis of both the impact and mitigation. That analysis demonstrated that sufficient mitigation is available in the options identified to offset the impacts. In fact, there was a net functional gain to the environment. In order to offset 50.76 acres of wetland impacts, the applicants will provide restoration and enhancement of 139.6 acres of wetlands and 23.81 acres of uplands, and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. Mitigation at this location offsets those impacts and is appropriate because it will provide more functional gain than the amount of functional loss for the same habitat types that are being impacted. Because Pine Glades is within the same drainage basin as the impacts, and the mitigation offsets the impacts, the District is not required to consider cumulative impacts. See § 373.414(8), Fla. Stat.; Fla. Admin. Code R. 40E-4.302(1)(b). Petitioners suggested that because Pine Glades is already owned by the County and intended to be restored, by allowing the applicants to receive mitigation credit for the restoration amounts to "double dipping." However, the evidence shows that the 193 acres proposed as mitigation in the permit is site-specific; no one has ever received mitigation credit for it in the past and no one will be able to receive mitigation credit for it in the future; and The Briger Group paid $86,250.00 per functional unit to reimburse the County for the cost of the land. Mitigation credit for restoration at Pine Glades is appropriate. As compensation for impacts to a total of 26.14 acres of freshwater marsh wetlands, the applicants will mitigate off- site by purchasing 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank. This bank is of regional ecological significance. Mitigation at this bank offsets the impacts and is appropriate because it will offset the impacts to freshwater marsh wetlands. Drainage basins are established by District rule in BOR Figure 4.4-1. While Petitioners contended that BOR Figure 4.4-1 does not accurately identify the geographic boundaries of the South Indian River Basin, which is being used here, the District is required to follow its own rules when reviewing an ERP application. Therefore, the use of Figure 4.4-1 was appropriate to determine whether the project is located within or outside of that drainage basin. Because the Loxahatchee Mitigation Bank is not located within the same basin as the proposed impacts, it was necessary for the District to consider cumulative impacts which will be mitigated at that bank. See § 373.414(8), Fla. Stat. This means that the applicants are required to give reasonable assurances that the impacts proposed for mitigation at Loxahatchee Mitigation Bank would not result in unacceptable cumulative impacts if the regulatory precedent set by the permit were applied to all properties within the basin that have the same type of habitat as that being impacted by the project and that have potential for development. The project will be located in the South Indian River Basin. The District's cumulative impact analysis for that basin supports a finding that there is very limited potential for future wetland loss in the basin and reasonable assurances have been given that there will be no adverse cumulative impacts. See Respondents' Exhibit 60. Species Rule 40E-4.301(1)(d) requires an applicant to demonstrate that the activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. This evaluation is limited to wetland-dependent species. Upland species fall outside of the District's jurisdiction. Contrary to Petitioners' assertion, the hand fern is not a wetland-dependent species. Also, the District must rely on State-listed species, and not lists prepared by federal agencies. The evidence shows that the potential for utilization of this site by wetland-dependent species is minimal, and this site does not contain preferred habitat for nesting or denning of wetland dependent listed species. Although the site does not contain preferred habitat, the habitat value currently existing on this site will be replaced with mitigation at Pine Glades and the Loxahatchee Mitigation Bank. Public Interest Test In order to obtain a conceptual approval ERP, an applicant must provide reasonable assurances that the system located in, on, or over wetlands or other surface waters will not be contrary to the public interest and will not be inconsistent with the objectives of the District. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7.; § 373.414(1), Fla. Stat. The evidence establishes that reasonable assurances were provided to demonstrate that the proposed activities will not adversely affect the public health, safety, or the welfare or property of others; that they will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; that there are no issues related to navigability or the flow of water, erosion or shoaling; that the property does not currently provide fishing, recreational values, or marine productivity and is not open to the public; that the activity will be permanent; that there is an archeological site on the property which the applicants will preserve; that the mitigation will more than fully offset the impacts; and that the value of the functions currently being performed will not be adversely affected. Petitioners offered no evidence or analysis to rebut the expert testimony offered by Respondents. After balancing all seven factors, the evidence supports a finding that the activities will not be contrary to the public interest. Florida Coastal Management Program Petitioners contend that the project is inconsistent with the Florida Coastal Management Program (FCMA), which is administered by the Department of Environmental Protection (DEP). They also assert that the District is required to coordinate its review of the application with that agency and that it failed to do so. However, the issuance of the ERP (after a demonstration that all permitting criteria have been satisfied) constitutes certification that the project is consistent with the FCMA and no coordination with DEP is necessary. Other Criteria Any other criteria not discussed herein were either satisfied by the applicants or are not relevant to the project. Petitioners' Evidence Other than very limited cross-examination of some of Respondents' witnesses, Petitioner Minaya did not present any evidence to support his allegations. Other than cross-examination of Respondents' witnesses, Petitioner Tsolkas, a lay person, testified that his standing was based on general concerns that the project would drive species (such as the hand fern) into extinction, that it would pollute waters, including the ICW, and that it would destroy habitat for other species. No competent or persuasive evidence to support these contentions was presented. Other issues raised by Mr. Tsolkas were matters beyond the District's jurisdiction and are not considered in the permitting process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application No. 090427-7 with the conditions contained in the Amended Staff Report. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2010.
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection (DEP), should grant the application of Respondent, Leland Egland, for an Environmental Resource Permit (ERP), Number 44-01700257-001-ES, to fill an illegally-dredged trench or channel in mangrove wetlands between Florida Bay and what was a land-locked lake, to restore preexisting conditions.
Findings Of Fact Since 1988, Applicant, Leland Egland, has resided in a home built on property he purchased in Buccaneer Point Estates in Key Largo, Florida, in 1986--namely, Lots 14 and 15, Block 2, plus the "southerly contiguous 50 feet." A 1975 plat of Buccaneer Point shows this "southerly contiguous 50 feet" as a channel between Florida Bay to the west and a lake or pond to the east; it also shows a 800-foot linear canal extending from the lake or pond to the north. Egland's Lot 14 borders Florida Bay to the west; his lot 15 borders the lake or pond to the east; the "southerly contiguous 50 feet" is between Egland's lots 14 and 15 and property farther south owned by another developer. See Finding 10, infra. Buccaneer Point lots in Blocks 1 (to the east) and 2 (to the west) surround the lake or pond and canal. The developer of Buccaneer Point applied to the Florida Department of Environmental Regulation (DER) in 1977 for a permit to dredge a channel, characterized as a flushing channel for the lake or pond, which was characterized as a tidal pond with replanted red mangroves. (There was no evidence as to the character of this pond before the 1977 permit application or if it even existed.) DER denied the permit application because the: proposal . . . to open a pond to Florida Bay . . . will connect an 800 linear foot dead-end canal. The pond and canal will act as a sink for marl and organic debris which will increase Biological Oxygen Demand and lower Dissolved Oxygen. The project is expected to result in substances which settle to form putrescent or otherwise objectionable sludge deposits and floating debris, oil scum, and other materials, in amounts sufficient to be deleterious. Based on the above, degradation of local water quality is expected. * * * Furthermore, your project will result in the following effects to such an extent as to be contrary to the public interest and the provisions of Chapter 253, Florida Statutes: Interference with the conservation of fish, marine life and wildlife, and other natural resources. Destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. Reduction in the capability of habitat to support a well-balanced fish and wildlife population. Impairment of the management or feasibility of management of fish and wildlife resources. As a result, the proposed channel to Florida Bay was not dredged (although some of the lake side of the proposed channel apparently was dredged before the project was abandoned); the building lots surrounding the lake or pond (now known as South Lake) and canal were sold as waterfront lots on a land-locked lake without access to Florida Bay; and the "southerly contiguous 50 feet" was included with the conveyance to Egland, along with the Lots 14 and 15 of Block 2. The evidence was not clear as to the characteristics of the "southerly contiguous 50 feet" in 1977, or earlier. When Egland purchased his property in 1986, it was a mature mangrove slough with some tidal exchange between the lake and Florida Bay, especially during high tides and stormy weather. Some witnesses characterized the area of mangroves as a shallow creek in that general time frame (from about 1984 through 1988). According to Vince Easevoli, at least under certain conditions, a rowboat could be maneuvered between the lake and Florida Bay using a pole "like a gondola effect." But Egland testified to seeing Easevoli drag a shallow-draft boat through this area in this general time frame, and the greater weight of the evidence was that the mangrove slough was not regularly navigable channel at the time. During this general time frame (the mid-to-late 1980's) several Petitioners (namely, Stanley Dominick, John and Katherine Easevoli, and their son, Vince Easevoli) purchased property on South Lake. All but Vince built homes and resided there; Vince did not reside there until after Hurricane Andrew in 1992, but he sometimes stayed at the residence on his parents' property during this general time frame. In the early 1990's, the slough or creek became somewhat deeper, making it increasingly more easily passable by boat. Large storms such as Hurricane Andrew in 1992 and the "storm of the century" in 1993 may have contributed to these changes, but human intervention seems to have been primarily responsible. In 1994, Egland added a swimming pool south of the residence on his lots. During construction, some illegal filling took place. Several witnesses testified that the illegal fill occurred to the north of the creek, which was not affected. Vince Easevoli's lay interpretation of several surveys in evidence led him to maintain that illegal fill was placed in the mangrove slough and that the creek became narrower by approximately four feet and, eventually, deeper. But no surveyor testified to explain the surveys in evidence, which do not seem to clearly support Easevoli's position, and the greater weight of the evidence was that illegal fill was not added to the creek in Egland's "southerly contiguous 50 feet." At some point in time, hand tools were used to deepen the slough or creek and trim mangroves without a permit to enable a small boat to get through more easily. As boats were maneuvered through, the creek got deeper. Eventually, propeller-driven boats of increasing size were used to "prop- dredge" the creek even deeper. According to Petitioner, Tom Hodges, when he and his wife purchased their lot on the lake in 1994, it was possible to navigate the creek in a 22-foot Mako boat (at least under certain conditions), and their lot was sold to them as having limited access to Florida Bay. (There was evidence that access to Florida Bay could increase the price of these lots by a factor of three.) Petitioners Martha Scott and Marianne Delfino also purchased their property on the lake in 1994. Tom Hodges claimed to have seen manatees in the lake as early as 1994, but no other witnesses claimed sightings earlier than 1997, and the accuracy of this estimate is questionable. Even if manatees were in the lake during this time frame or earlier, it is possible that they used an access point other than the creek. At the southeast corner of South Lake in Buccaneer Point, there is a possible connection to a body of water farther south, which is part of a condominium development called Landings of Largo and leads still farther south to access to Florida Bay near a dock owned by Landings of Largo. While this connection is shallow, it may have been deep enough under certain conditions to allow manatees to pass through. Apparently not with manatees but rather with boaters from the lake in Buccaneer Point in mind, Landings of Largo has attempted to close this access point by placement of rebar; Landings of Largo also has placed rip-rap under its dock farther south to prevent boats from passing under the dock. However, there are gaps in the rip-rap, some possibly large enough for manatees to pass. In approximately 1995 or 1996, Egland observed Vince Easevoli and his father, John Easevoli, digging a trench through the mangrove slough with a shovel and cutting mangrove trees with a saw in Egland's "southerly contiguous 50 feet." Others were standing by, watching. Egland told them to stop and leave.6 These actions made the creek even deeper and more easily navigable by boat, which continued to further excavate the trench by such methods as "prop dredging." In 1997 Hany Haroun purchased property adjacent to South Lake where he lives with his wife, Christine. By this time, Florida Bay was easily accessible by boat from the lake, and Haroun paid $260,000 for the property. He estimated that his property would be worth about $150,000 less without boat access to Florida Bay. In approximately 1997, manatees began to appear in South Lake year round from time to time, especially in the winter months. In 1997, the Hodgeses saw one they thought may have been in distress and telephoned the Save Our Manatee Club and Dolphin Research for advice. Following the advice given, they used lettuce to coax the manatee over to their dock to check its condition and videotape the event. The manatee appeared healthy and eventually departed the lake. On subsequent visits, manatees have been seen and videotaped resting and cavorting with and without calves and possibly mating in the lake. Groups of as many as seven to eight manatees have been seen at one time in the lake. Tom Hodges, Vince Easevoli, and Hany Haroun testified that they have enjoyed watching manatees in the lake since 1997. It can be inferred from the evidence that Elaine Hodges also has enjoyed watching manatees in the lake. There was no evidence as to the extent to which other Petitioners enjoy watching manatees in the lake. In 1997, the ACOE began an investigation of the illegal dredging of Egland's "southerly contiguous 50 feet." According to Egland, he was in communication with ACOE; presumably, he told ACOE what he knew about the illegal dredging on his property. According to Egland, ACOE advised him to place posts in the dredged channel to keep boats out. When he did so, Tom Hodges removed the posts. Egland replaced the posts, and Hodges removed them again. When Egland told ACOE what was happening, ACOE asked him to try reinstalling the posts and screwing plywood to the posts to achieve a stronger, fence-like barrier. Hodges also removed these barriers, and Egland did not replace the posts or plywood barrier again. In 1998, ACOE mailed Egland a Cease and Desist Order accusing him of illegal dredging in his "southerly contiguous 50 feet" and demanding that he restore the mangrove slough to its previous conditions. Egland was angry at being blamed for the dredging and initially disputed ACOE's charges and demands. But ACOE and the United States Environmental Protection Agency (EPA), which accepted the role of lead federal enforcement agency on December 18, 1998, was seeking monetary civil penalties. In addition, Egland received legal advice that, if restoration were delayed, he could be sued for damages by someone purchasing property on the lake or canal in the meantime upon the mistaken belief that there was boat access to Florida Bay. For these reasons, Egland agreed to comply with the Cease and Desist Order. However, ACOE and EPA informed Egland that he might have to obtain a permit from DEP to fill the dredged channel in compliance with the Cease and Desist Order. On May 22, 2000, Egland applied to DEP for an ERP to restore a trench about 100 feet long varying from seven to ten feet in width that was illegally dredged on his property. He estimated that a total of 160 cubic yards of fill would be required, to be spread over approximately 900 square feet. He assured DEP that rip-rap would be used to contain the fill and that turbidity screens would be used during construction. During processing of Egland's application, DEP requested additional information, which Egland provided, and DEP's Environmental Manager, Edward Barham, visited the project site in October 2000. Based on all the evidence available to him at that point in time, Barham viewed Egland's proposed fill project as a simple restoration project to correct illegal dredging and return the mangrove slough to its preexisting condition. For that reason, Barham recommended that DEP process the application as a de minimis exemption and not charge a permit application fee. Subsequently, some Petitioners brought it to DEP's attention that manatees were accessing South Lake through the channel Egland wanted to fill. DEP saw no need to verify the accuracy of Petitioners' information or obtain additional information about the manatees use of the lake because DEP still viewed it as a restoration project. However, DEP decided that it would be necessary to include specific conditions in any ERP issued to Egland to ensure that no manatees would be trapped in the lake or otherwise injured as a result of filling the channel. Primarily due to the need for these conditions, and also because of anticipated opposition from Petitioners, DEP decided to charge Egland a permit application fee and not process the application as a de minimis exemption. DEP staff visited the mangrove slough on numerous occasions between October 2000, and final hearing and observed that the trench continued to get deeper over time as a result of continued prop-dredging and digging. In early August 2001, Tom Hodges observed a man walking back and forth with a wheel barrow between a storage shed on Egland's property and the channel. (Hodges was on his property across South Lake but use of binoculars enabled him to see this.) The next day, Hany Haroun discovered a poured- concrete slab forming a plug or dam in the channel on the lake side. Haroun reported his discovery to Tom Hodges, who investigated with his wife, who took photographs of the structure. At some point, the Hodgeses realized that a manatee was trapped in the lake. The manatee did not, and appeared unable to, use the other possible access point towards Landings of Largo to escape. See Finding 10, supra. The Hodgeses telephoned Barham at DEP to report the situation and complain. Tom Hodges then proceeded to break up the concrete, remove the resulting rubble, and place it on the path to the storage shed, freeing the manatee. The incident was reported in the newspaper the next day and prompted Petitioners to file their Motion to Dismiss and for Other Relief on August 9, 2001. See Preliminary Statement. The evidence was inconclusive as to who poured the concrete, or had it poured, and why. Egland testified that he was in Egypt on an extended trip at the time and denied any knowledge of the concrete plug until he saw the rubble on his property upon his return from Egypt. Egland testified that he saw no "aggregate" in the concrete, which would make it relatively easy to break up, and he suspected that Petitioners were responsible for pouring the concrete in order to publicly make false accusations against Egland. Petitioners denied Egland's accusation. Vince testified that the concrete contained rebar for strength. The evidence was inconclusive as to who was responsible for this incident. As pointed out by Petitioners, DEP did not investigate and does not know whether there is any freshwater upwelling in the lake, whether manatees have mated in the lake, or whether calves have been birthed in the lake. DEP also did not investigate and does not know whether South Lake is unlike other manatee habitat in the area. DEP did not investigate or obtain any information as to how many manatees use the lake, or what manatees use the lake for, in addition to the information provided by Petitioners. Carol Knox, an Environmental Specialist III with the Florida Fish and Wildlife Commission, testified as a manatee expert based on her knowledge of manatees and manatee habitat in the area, as well as the information known to DEP. It was her opinion that, regardless what South Lake might offer manatees in the way of habitat, closing the channel (with the specific conditions required by DEP to protect manatees during the filling itself) would have no adverse impact on manatees because it did not appear that manatees made use of the lake before the channel was dug in 1996 or 1997, and ample other manatee habitat of various kinds continued to be available in the area.7 Based on the testimony of Knox and Barham, and the totality of the evidence in this case, it is found that Egland provided reasonable assurance that his proposed restoration project will not harm or adversely affect manatees or their habitats. Petitioners also questioned Egland's assurances as to water quality. Vince Easevoli, Stanley Dominick, and Hany Haroun testified to their concerns that water quality in the lake will decline if the channel is closed. As Petitioners point out, DEP did not require Egland to provide any water quality measurements. This was because the proposal is reasonably expected to reverse the effects of the illegal dredging on water quality and to return both the water in the lake and canal and the water in Florida Bay to the quality that existed prior to the illegal dredging. Without requiring any water quality measurements, it is reasonably expected that the water quality in Florida Bay would not decline in any respect; to the contrary, if anything, Florida Bay's water quality would be expected to improve by reduction of contributions from the lake and canal. Conversely, water quality in the lake and canal would be expected to decline but not below what it was before the illegal dredging. Petitioners also question DEP's failure to require Egland to provide a survey or stake the area to be filled, so as to ensure against filling too much of the mangrove slough. But the proposed ERP contains a specific condition: "The final fill elevation of the fill shall be at the elevation of the substrate within the adjacent mangrove wetlands." Barham testified persuasively that this specific condition is adequate to provide reasonable assurance. Compliance can be ascertained by simply viewing the site after completion of the restoration project, and compliance can be enforced by requiring removal of excess fill as necessary. The proposed ERP also contains a general condition that the permit does not convey or create any property right, or any interest in real property, or authorize any entrances upon or activities on property which is not owned or controlled by Egland.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, the Department of Environmental Protection, enter a final order granting the application of Leland Egland and issuing ERP Number 44- 01700257-001-ES. DONE AND ENTERED this 25th day of November, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2002.
The Issue The issue in this case is whether the Southwest Florida Water Management District (SWFWMD) should grant Individual Environmental Resource Permit (ERP) Application No. 4316067.00 for approval of a proposed surface water management system (SWMS) for a planned road improvement project.
Findings Of Fact County Line Road extends a short distance east from its intersection with U.S. 41, approximately along the boundary between Pasco County and Hillsborough County. It currently serves as access to residential and rural areas in its vicinity but does not connect with any major road east-west roadway at its eastern end. Since at least 1995, Pasco County's Metropolitan Planning Organization (MPO) has considered it necessary by 2020 to connect County Line Road to Collier Parkway (which runs north and south to the east and north of County Line Road but connects at its southern end to Hillsborough County Road, which extends from there to the east) to create and serve as another major east-west roadway to alleviate traffic congestion on State Road 54 to the north. The MPO's plans are updated continually, most recently in 1998. The MPO's current plans call for building a half-mile segment of two-lane roadway by 2000 to connect County Line Road to Collier Parkway and widening it to a four-lane road by 2010. Once these plans were made, and the general corridor for the new roadway chosen by the MPO, Pasco County conducted a route study and decided to utilize and improve the existing County Line Road to the extent possible consistent with traffic safety considerations before routing the new roadway to the northeast towards a connection with existing roadway (known as Willow Bend Road), which in turn connects with Collier Parkway. In so doing, Pasco County would improve County Line Road where it now crosses 13-Mile Run Creek. 13-Mile Run Creek is the name for the water body and wetland area crossed by County Line Road. It is part of a system of connected lakes, wetland areas, and various natural and man- made water conveyances known as the 13-Mile Run that begins to the north of County Line Road in Pasco County and flows south into Cypress Creek and the Hillsborough River in Hillsborough County. After completing the route study, Pasco County surveyed the project area and identified wetlands in the project area. Then, the road improvements and new roadway, including the surface water management system, were designed. Pasco County designed its road project to accommodate widening to four lanes in 2010 without further direct impact to wetlands. This will allow traffic to flow much more safely on the two lanes built in 2000 while the additional two lanes are built in 2010. As part of this design, the culverts that will provide for north-to-south flow of 13-Mile Run under the roadway, as well as the animal-crossing tunnels under the roadway, will be oversized to accommodate the four-lane roadway in 2010. As a result, all direct impacts to wetlands from the ultimate four- lane road construction (approximately 1.5 acres of direct impact) will occur during the initial construction of two lanes in 2000; there will not have to be any additional wetland impacts in 2010. The Petitioner and Intervenors contend that Pasco County did not prove a need for the four-lane road Pasco County proposes for 2010. They point to evidence that Florida Department of Transportation (DOT) 1995 maps did not "code" the proposed road segment as a four-lane road in 2010, as well as evidence that in 1995 Hillsborough County objected (based on the DOT coding) to Pasco's plans for a four-lane road in 2010. But Pasco County proved that DOT's failure to code the proposed road segment as a four-lane road in 2010 was a mistake. Since 1995, DOT has corrected the error. When Pasco County's MPO updated its transportation plan in 1998, neither Hillsborough County nor anyone else objected to the plans for a four-lane road in 2010, despite Pasco County's solicitation of comments and advertised public workshops and hearings. The Intervenors in particular also point to evidence that the DOT has published "Standards for Low and High Volume Highways in Annual Average Daily Volumes" in a Manual of Uniform Minimum Standards for Design, Construction and Maintenance for streets and Highways (1994)(also known as the "Green Book"). These standards characterize a two-lane urban collector highway with less than 11,000 AADT and a four-lane urban collector highway with less than 37,000 AADT as low-volume facilities and characterize a two-lane urban collector highway with more than 16,000 AADT and a four-lane urban collector highway with more than 45,000 AADT as high-volume facilities. Meanwhile, there was evidence was that, using a regional traffic demand forecasting model developed by DOT to determine future transportation needs for planning purposes: (1) Pasco County's MPO forecasts approximately 12,500 to 13,000 vehicles per day on the road in 2010 and 16,000 vehicles per day on the road in 2020; and (2) in 1997, the MPO forecasts 12,000 vehicles per day (1078 peak hour) on the road by 2015. But the only explanation of this evidence was the testimony of the MPO's transportation planner that the "Green Book" is not used for purposes of planning to meet future transportation needs. There was no other evidence as to the significance or proper use of the "Green Book." Assuming that AADT means "annual average daily trips" (there was no evidence as to what it stands for), there was no evidence that the Pasco County MPO's plan to four-lane County Line Road in 2010 is inconsistent with the "Green Book." The Intervenors also contend that the planned widening of State Road 54 will eliminate the need to four-lane the proposed road improvements at County Line Road. But the MPO's transportation planner testified that the MPO's forecast of the need to do so took into account the planned State Road 54 improvements. The Intervenors also contend that the proposed road improvements at County Line Road will not serve as an alternative to State Road 54 because Collier Parkway is a north-south highway, not an east-west highway. But, as indicated in Finding 1, supra, utilizing Collier Parkway for a short, north-south jog will connect the east-west roadways on either side of Collier Parkway. The Petitioner and Intervenors contend that Pasco County's design does not minimize direct impacts to wetlands precisely because it is designed to accommodate the four-lane widening project in 2010. Clearly, the direct impact to wetlands in 2000 could be reduced if Pasco County's design only accommodated a two-lane road. But it is not clear that the cumulative impact to the wetlands through the year 2010 will be less if the wetlands have to be impacted twice, once in 2000 for two lanes of roadway and again in 2010 for the other two lanes. A Department of Environmental Protection (DEP) witness for the Intervenors believed that it was preferable not to accommodate two additional lanes during the initial construction. But his familiarity with Pasco County's application was limited (in part because DEP has no regulatory jurisdiction), and several other experts testified persuasively that Pasco County's design would be better in terms of minimizing total, cumulative direct and secondary impacts to the wetlands. It also would cost significantly less to build the four-lane road in two stages if the first stage of construction of two lanes accommodates the subsequent stage of construction of the two additional lanes. In addition, traffic flow would be safer during construction of the two additional lanes if the first stage of construction accommodates the subsequent stage. Given the plan to accommodate a four-lane road in 2010, Pasco County designed its road project to minimize direct impacts on wetlands. First, the design uses the existing road in the wetland area. Second, the design uses concrete retaining walls instead of earthen berms in the wetland areas, which reduces the direct impact to the wetland areas by 30 percent. Third, the design was modified to further reduce the direct impact to wetlands by reducing the width of the median and eliminating one of two sidewalks at the creek crossing. The only way to further reduce the direct impacts to wetlands would have been to design and construct a bridge to cross the wetlands. The Intervenors called their DEP witness to testify in support of their contention that Pasco County should be required to bridge the wetlands. But again, the DEP witness's knowledge of Pasco County's application was limited, and several other witnesses testified persuasively that such a requirement for this road improvement project would be unreasonable in light of the existing County Line Road (which is a fill road.) In addition, bridging 13-Mile Run would create water flow and quantity problems that would have to be addressed, since it would remove the existing roadbed that serves to stop flow in times of high water. See Finding 19, infra. Pasco County's design provides for two wet detention ponds, one at either end of the project area, that will treat one-inch of runoff from the project area and will retain all of the runoff from a 25-year, 24-hour storm (nine inches of runoff.) As a result, there are reasonable assurances that there will be no adverse impact on water quality from the project; to the contrary, water quality probably will improve since the existing County Line Road does not provide any water treatment. Likewise, Pasco County has provided reasonable assurances that water discharges from the project area will not increase. As a result of the project, approximately 3.5 acre-feet of flood plain storage will be eliminated. To more-than- compensate for this loss of flood plain water storage area, Pasco County's design includes a flood plain mitigation area of approximately 4.5 acre-feet with a connection to 13-Mile Run Creek. The flood plain mitigation area also will serve as the project's wetland mitigation area at a ratio of approximately 4- to-1, i.e., four acres of created wetland for each acre of direct wetland impact. (Wetlands disturbed by the illegal installation of a Florida Gas Transmission pipeline just north of County Line Road and now under court-ordered restoration are considered pristine wetlands for purposes of the wetland mitigation ratio.) While wetland restoration has a mixed record of success, and it may be difficult to restore all of the values of the original wetland, the prospects for success of Pasco County's proposed wetland mitigation area are reasonably good. The mitigation plan calls for planting 780 emergent woody species per acre. To the extent that the mitigation plan for this project will replace disturbed wetlands and wetlands not successfully restored by the restoration of the area impacted by the Florida Gas Transmission pipeline (which appears to have been either inadequately planned or poorly implemented), the project may well result in a net improvement of the wetlands in the 13-Mile Run Creek area. Impacts from the roadway immediately to the west of the project area have been addressed in the SWMS permit for construction at the intersection of U.S. 41 and County Line Road. Impacts from Hillsborough County's planned widening of the roadway immediately to the west of the project area will be addressed in the SWMS for that widening project. The Petitioner in particular raised the question of flooding in the vicinity--at the U.S. 41/County Line Road intersection and along the shores of Hog Island Lake to the southeast of the creek crossing. The Intervenors initially also raised those questions but have been satisfied by the assurances given by Pasco County that the proposed project will not increase flooding in those areas. The SWMS associated with construction of the U.S. 41/County Line Road intersection appears to have been successful in alleviating flooding there, and Pasco County has given reasonable assurances that the proposed road project in this case will not increase flooding in the Hog Island Lake area. The generous flood retention compensation proposed by Pasco County may alleviate flooding in the Hog Island Lake area to some extent. It also is noted that, if the project were modified to bridge the creek crossing (without any other modifications), flooding in the Hog Island Lake area could increase. See Finding 13, supra. The Petitioner also opposed Pasco County's SWMS application on the ground that no minimum surface or ground water levels or minimum surface water flows have been established in the area under Section 373.042, Florida Statutes (1997). But Pasco County provided reasonable assurances that, regardless where the minimum levels ultimately are set, the proposed project will have no appreciable effect. Pasco County has designed the project to maintain water current flows and quantities. It is found that Pasco County has implemented practicable design modifications to reduce or eliminate adverse impacts of the proposed project. (As used here, the term "modification" does not include the alternative of not implementing the SWMS in some form, nor the alternative of a project that is significantly different in type or function from that proposed.) As used in the preceding finding, the term "practicable" would eliminate modifications which would adversely affect public safety through the endangerment of lives or property. For example, one modification suggested by the Petitioner and Intervenors would have been to have the new road follow existing County Line Road further to the east. However, that would have made the connection between the new road and what would remain of County Line Road hazardous at the design speed of the new road and, depending on how much further east the new road follow existing County Line Road, there would be the hazard of residential driveways connecting to the new road. As used in Finding 21, the term "practicable" also would eliminate modifications which are not technically capable of being done or not economically viable. While there was no evidence that alternatives considered in this case were either not technically capable of being done or not economically viable, general consideration was given to the higher total project costs of not accommodating the planned addition of two lanes in 2010 (with no appreciable environmental benefit). Likewise, general consideration was given to the significantly higher cost (approximately two to three times as much, depending on whether the construction of the first two lanes accommodates the subsequent construction of the two additional lanes) to bridge the wetlands in an attempt to reverse direct wetland impacts from the existing fill road and somewhat decrease additional direct wetland impacts, as well as the dubious benefits of increasing the flow of 13-Mile Run, which certainly would not reduce (and might well increase) flooding in the Hog Island Lake area. In addition, bridging the creek crossing would create traffic engineering problems in providing access to residential areas in the vicinity, especially the Foxwood subdivision. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not violate state water quality standards applicable to waters as defined in Section 403.031(13), Florida Statutes (1997). Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not be contrary to the public interest, considering and balancing the following factors: Whether the proposed project 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 Section 267.061, Florida Statutes (1997); and The current condition and relative value of functions being performed by areas affected by the proposed activity. To the extent that the proposed project may not meet one or more of the public interest test criteria, Pasco County proposes mitigation measures that will offset any adverse effects. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions: 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; will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, Florida Administrative Code, including any antidegradation provisions of sections 62- 4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, Florida Administrative Code, will be violated; will not cause adverse secondary impacts to the water resources; will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes (1997); will not cause adverse impacts to a work of the District established pursuant to Section 373.086; is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed; and will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. Pasco County provided reasonable assurances that that its proposed SWMS, with SWFWMD's general and specific conditions, will not cause unacceptable cumulative impacts upon wetlands and other surface waters, as delineated pursuant to the methodology authorized by subsection 373.421(1), Florida Statutes (Supp. 1998).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order granting ERP Application No. 4316067.00. DONE AND ENTERED this 18th day of March, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1999. COPIES FURNISHED: Charles J. Traina, Esquire Post Office Box 625 Brandon, Florida 33509-0625 Margaret Lytle, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Mark F. Lapp, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara Wilhite, Esquire Pasco County West Pasco Government Center 7530 Little Road, Suite 340 New Port Richey, Florida 34654 David and Sheryl Bowman, pro se Post Office Box 1515 Lutz, Florida 33548-1515 E. D. Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Applicant applied for a permit for a public supply of water from two (2) wells to accommodate 3,100 family units in Hillsborough County, Florida. Each well to be 500 feet deep and designated as "new use", i.e., a use not existing prior to January 1, 1975. Well "No. 1" would draw 72,000 gallons per day and well "No. 2", 682,000 gallons per day. The center of withdrawal is located at latitude 28 degrees 6' 18" North, longitude 82 degrees 29' 48" West in Hillsborough County, Florida. The applicant lists 802.2 acres as being owned, leased or otherwise controlled by it. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on April 28 and May 5, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were sent by certified mail to Lorenzo Lakes, A Joint Venture, Route 2, Box 737A, Lutz, Florida, and Hillsborough Dairy, Route 1, Box 115, Tampa, Florida A letter was received although it was not designated a letter of objection. The author of said letter is present at this hearing. His name is Mr. John Logan, Water Resources Director, Hillsborough County, Florida. The letter suggests that action on the subject application would be inappropriate at this time inasmuch as a part of the development is to be deeded to Hillsborough County for public roadways. A specific area does not appear to be established but it may exceed 50 acres. Additional acreage may be needed for flood easements for the extension of channel "F", a proposed part of the upper Tampa Bay Watershed Project. No formal letters of objection were received. The following exhibits were introduced without objection: Application for permit Proof of publication Letter from Mr. John Logan The witnesses were duly sworn and agreement by the parties reached on each point to be considered under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated pursuant thereto, particularly Rule 16J-2.11, with the exception that certain conditions were recommended by Mr. George Szell, Hydrologist for the Permittee, and said conditions were agreed to by the Permittee. Mrs. Sally Casper appeared as a member of the public questioning the need for new housing and objecting in essence to Rule 16J-2.11(2)(e) which restricts consideration of lake stages or vegetation to those not controlled by the applicant. Upon the request of the Hearing Officer the parties agreed to enter into a joint order of stipulation and submit said order to the Hearing Officer. Said stipulation was received by the Hearing Officer on July 7, 1975, and is attached hereto and made a part hereof and marked "Supplement to Record".
The Issue The issues are whether to (a) issue an Environmental Resource Permit (ERP) to the Department of Transportation (DOT) and Martin County (County) authorizing construction and operation of a surface water management system to serve a project known as the Indian Street Bridge; (b) issue DOT a letter of modification of ERP No. 43-00785-S authorizing roadway and drainage modifications to the Kanner Highway/Indian Street intersection; and (c) issue DOT a letter of modification of ERP No. 43-01229-P authorizing roadway and drainage modifications to Indian Street between the intersections of Kanner Highway and Willoughby Boulevard.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Citizens for Smart Growth, Inc., is a Florida 501(c)(3) corporation with its principal place of business in Palm City, Florida. It was formed by Odias Smith in August 2001, who serves as its president. The original directors were Kathie Smith, Odias Smith, and Craig Smith, who is the Smiths' son. The composition of the Board has never changed. According to the original Articles of Incorporation, its objectives are "preserving and enhancing the present advantages of living in Martin County (Quality of Life) for the common good, through public education, and the encouragement of reasonable and considered decision making by full disclosure of impacts and alternatives for the most appropriate use of land, water and resources." The exact number of members fluctuates from time to time. There are no dues paid by any member. At his deposition, Mr. Smith stated that no membership list exists; however, Kathie Smith stated that she currently has a list of 125 names, consisting of persons who at one time or another have made a contribution, have attended a meeting, or asked to be "kept informed of what's going on or asked to be on a mailing list or a telephone list, so they could be advised when we have meetings." No meetings have been held since 2006. Therefore, the Petitions filed in these cases have never been discussed at any meetings of the members, although Ms. Smith indicated that telephone discussions periodically occur with various individuals. Kathie Smith believes that roughly 25 percent of the members reside in a mobile home park north of the project site on Kanner Highway on the eastern side of the St. Lucie River, she does not know how many members reside on the western side of the St. Lucie River, and she is unaware of any member who resides on the South Fork of the St. Lucie River immediately adjacent to the project. Although the three Petitions allege that "seventy percent of the members . . . reside and/or recreate on the St. Lucie River," and in greater detail they allege how those members use that water body or depend on it for their livelihood, no evidence was submitted to support these allegations that 70 percent (or any other percentage of members) use or depend on the South Fork of the St. Lucie River for recreational or other activities. Petitioners Odias Smith and Cathie Smith reside in Palm City, an unincorporated community just south of Stuart in Martin County. They have opposed the construction of the new bridge since they moved to Palm City in 2001. It is fair to infer that Mr. Smith formed the corporation primarily for the purpose of opposing the bridge. Their home faces north, overlooking the South Fork of the St. Lucie River, from which it is separated by Saint Lucie Shores Drive and a narrow strip of common-ownership property. A boat dock extends from the common-ownership property into the St. Lucie River, providing 5 slips for use by the Smiths and other co-owners. The home is located three blocks or approximately 1,000 feet from the proposed western landfall of the new bridge. Due to the direction that the house faces (north) and the site of the new bridge, the surface water management system elements associated with the bridge will not be visible from their property. Mr. Smith believes, however, that when looking south through a veranda window on the second floor of his home, he will be able to see at least a part of the new bridge. From the front of their house, they now have an unobstructed view of the existing Palm City Bridge, a large structure that crosses the St. Lucie River approximately six- tenths of a mile north of their home, and which is similar in size to the new bridge now being proposed by the Applicants. The Smiths' home is more than 500 feet from the Project's right- of-way, and they do not know of any impact on its value caused by the Project. While the Smiths currently engage in walking, boating, running, fishing, and watching wildlife in the neighborhood or the South Fork of the St. Lucie River, there was no credible evidence that the Project would prevent them from doing so after the bridge and other improvements are constructed. Also, there was no evidence showing that the ERP Letter Modifications will cause them to suffer any adverse impacts. In fact, as noted below, by DOT undertaking the Project, the neighborhood will be improved through reduced flooding, improved water quality, and new swales and ponds. The County is a political subdivision of the State. It filed one of the applications at issue in this proceeding. DOT is an agency of the State and filed the three applications being contested. The District has the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Part IV, Chapter 373, Florida Statutes, and Title 40E of the Florida Administrative Code. The Department of Environment Protection (DEP) has delegated certain authority to the District, including the authority to authorize an applicant to use sovereign submerged lands via a public easement within the District's geographic jurisdiction. The Project Construction of a new bridge over the St. Lucie River has been studied extensively by the Applicants for over twenty years. DOT has awarded the contract and nearly all of the right-of-way has been purchased. The Project will begin as soon as the remaining permits are acquired. The Project is fully funded through the American Recovery and Reinvestment Act of 2009 and County funding. The Project is located in the County and includes 62.06 acres of roadway bridge development and 12.45 acres of sovereign submerged lands. The Project begins on the west side of the St. Lucie River on County Road 714, approximately 1,300 feet west of Mapp Road in Palm City and ends on the east side of the St. Lucie River approximately 1,400 feet east of Kanner Highway (State Road 76) on Indian Street. It includes construction and operation of a surface water management system to serve the road and bridge project. The total length of the Project is approximately 1.96 miles (1.38 miles of roadway and 0.58 miles of bridge) while the total area is approximately 74.51 acres. After treatment, surface water runoff will discharge to the tidal South Fork of the St. Lucie River. The Project encompasses a bridge crossing the South Fork of the St. Lucie River and the Okeechobee Waterway. Both are classified as Class III waters. The bridge transitions from 4 to 6 lanes east of the Okeechobee Waterway and will require a 55-foot vertical clearance and a 200-foot horizontal clearance between the fender systems at the Okeechobee Waterway. The bridge will cross over a portion of Kiplinger Island owned and preserved by the County. A part of the island was donated to the County in 1993-1994 by The Kiplinger Washington Editors, Inc., and the Kiplinger Foundation, Inc. Audubon of Martin County owns another part of the island. The transfer of title to the County does not include any restriction on the use of the island for conservation purposes only. Documentation submitted at hearing refers to a "two hundred foot wide road right-of-way" easement that the bridge will cross and allows the County to designate where on the island parcel such an easement would be. Therefore, spanning the bridge over a portion of the island owned by the County is clearly permissible. The Project also includes the roadway transition and widening/reconstruction of (a) County Road 714 from the beginning of the Project to Mapp Road from 2-lane to a 4-lane divided roadway; (b) Southwest 36th Street from Mapp Road to the beginning of the bridge from a 2-lane rural roadway to a 4-lane divided roadway with wide roadway swales; and (c) Kanner Highway (along Indian Street) from a 4-lane to a 6-lane divided urban roadway. Drainage improvements on both sides of the St. Lucie River are associated with the roadway construction. DOT proposes to provide both on-site and off-site mitigation for wetland and surface waters impacts pursuant to a mitigation plan approved by the District. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. Besides these rules, certain related BOR provisions which implement the rules must also be considered. The conditions for issuance primarily focus on water quality, water quantity, and environmental criteria and form the basis of the District's ERP permitting program. The parties have stipulated that the Project either complies with the following rule provisions or they are not applicable: Rules 40E-4.301(1)(a), (b), (g), (g), (h), and (k), and 40E- 4.302(1)(a)3. and 6. All other provisions remain at issue. Where conflicting evidence on these issues was submitted, the undersigned has resolved all evidentiary conflicts in favor of the Applicants and District. Based on the parties' Stipulation, the following provisions in Rule 40E-4.301(1) are in dispute and require an applicant to provide reasonable assurances that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any anti-degradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated; will not cause adverse secondary impacts to the water resources; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; These disputed criteria are discussed separately below. Surface Water Storage and Conveyance Rule 40E-4.301(1)(c) requires that an applicant provide reasonable assurances that a proposed activity will not cause adverse impacts to existing surface water storage and conveyance capabilities. Through unrefuted evidence, this requirement was shown to be satisfied. The evidence also establishes that the surface water in and around the Project will actually improve if the Project is constructed as permitted. Further, it will create improved and upgraded surface water management and treatment in areas that now lack features such as swales, retention/detention ponds, curbs and gutters, and improve the overall surface water storage and conveyance capabilities of the Project and surrounding areas. In its current pre-development condition, flooding has occurred in certain areas adjacent to and within the Project area due to poor conveyance, low storage volume, and high tailwater conditions that result from high tides. The Project will remedy historic flooding issues in the Old Palm City area which lies adjacent to a portion of the Project alignment. Surface water runoff will be captured, controlled, and treated by a system of swales, weirs, and retention/detention facilities for pretreatment prior to discharging into the South Fork of the St. Lucie River. Reasonable assurances have been given that existing surface water storage and conveyance capabilities will not be adversely affected. Value of Functions to Fish, Wildlife, and Species Rule 40E-4.301(1)(d) requires that an applicant provide reasonable assurances that a proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. BOR Section 4.2.2 further implements this provision. For the following reasons, the rule and BOR have been satisfied. The evidence shows that the existing functions to fish and wildlife were assessed and analyzed by a number of federal and state fish and wildlife agencies. There were extensive review and site inspections by the District, DOT, United States Fish and Wildlife Service, United States Army Corps of Engineers, and National Marine Fisheries Commission to assess the existence of, and potential impact on, fish and wildlife that may result from the Project. These studies revealed that while portions of the South Fork of the St. Lucie River provide potential habitat for aquatic or wetland-dependent or threatened species of special concern, no nesting or roosting areas within the vicinity of the Project were observed. The evidence further supports a finding that "other surface waters" over and under the Project will not receive unacceptable impacts due to their current condition, the detrimental influences of Lake Okeechobee discharges, and tidal impacts. Many of the wetlands to be impacted by the Project were shown to have been impacted by historic activities, and they provide diminished functions to fish and wildlife. The wetland functions were assessed through the Uniform Mitigation Assessment Methodology (UMAM). The UMAM is a standardized procedure for assessing the functions provided by wetlands and other surface waters, the amount that those functions would be reduced by a proposed project, and the amount of mitigation necessary to offset that loss. Detailed UMAM assessments were prepared by the Applicants and the District. They demonstrate that while certain functional units will be lost, they will be fully offset by the proposed mitigation. No credible evidence to the contrary was presented. Water Quality of Receiving Waters Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that a project will not adversely affect the quality of receiving waters such that State water quality standards will be violated. BOR Section 4.2.4 implements this rule and requires that "reasonable assurances regarding water quality must be provided for both the short term and long term, addressing the proposed construction, . . . [and] operation of the system." The receiving water body is the South Fork of the St. Lucie River, which is designated as an impaired water body. The evidence establishes that the Applicants will avoid and minimize potential short-term impacts to water quality by using silt screens and turbidity barriers, and implementing other best management practices to contain turbidity during construction of the Project. They will also use a temporary trestle rather than barges in the shallow portions of the South Fork to avoid stirring up bottom sediments. Finally, a turbidity monitoring plan will be implemented during construction and dewatering activities for all in-water work. All of these construction techniques will minimize potential impacts during construction. The evidence further establishes that water quality standards will not be violated as a result of the Project. In fact, in some cases water quality will be enhanced due to the installation and maintenance of new or upgraded surface water management features in areas where they do not exist or have fallen into disrepair. Over the long term, the Project is expected to have a beneficial effect on water quality. By improving existing surface water management and adding new surface water treatment features, the Project will provide net improvement to water quality. Wetland Delineation and Impacts The Project includes unavoidable impacts to wetlands and other surface waters. A total of 18.53 acres of wetlands and other surface waters within the Project site will be impacted by the Project, including 3.83 acres of wetlands that will be directly impacted and 14.7 acres of wetlands and other surface waters that will be secondarily impacted. The delineated wetlands are depicted in the Staff Report as wetlands 2a, 19a, 19b, 22, 25-29, 30a, 30b, and 30c, with each having a detailed UMAM assessment of its values and condition. (Impacts to wetland 25 are not included in this Project because they were accounted for in a separate permit proceeding.) Using a conservative assessment and set of assumptions, the District determined that, with the exception of wetlands 19a, 19b, 22, and 27, all wetlands would be impacted by the Project. However, the wetlands that would be impacted suffer from varying historical adverse impacts that have compromised the functions and values they provide to fish, wildlife, and species. This is due to their proximity to urban development, vegetative connectivity, size, historic impacts, altered hydroperiod, and invasive plant species. Likewise, even though the wetlands to be impacted on Kiplinger Island provide certain resting and feeding functions for birds, the value of these functions is comparatively lower than other wetlands due to the presence of invasive species and lack of management. The preponderance of the evidence supports a finding that the Applicants provided reasonable assurances that the Project will not cause adverse impacts to fish, wildlife, or listed species. See Fla. Admin. Code R. 40E-4.301(1)(d). Secondary Impacts Rule 40E-4.301(1)(f) and BOR Sections 4.1.1(f) and 4.2.7. require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources, both from a wetlands and water quality standpoint. Secondary impacts are those that occur outside the footprint of the project, but which are very closely linked and causally related to the activity to be permitted. De minimis or remotely-related secondary impacts, however, are not considered unacceptable. See § 4.2.7.(a). There will be secondary impacts to 6.83 acres of freshwater wetlands and 7.87 acres of mangroves, or a total of 14.7 acres. To address these secondary impacts, the Applicants have established extensive secondary impact zones and buffers along the Project alignment, which were based in part on District experience with other road projects and another nearby proposed bridge project in an area where a State Preserve is located. While Petitioners' expert contended that a 250-foot buffer on both sides of the roadway's 200-foot right-of-way was insufficient to address secondary impacts to birds (who the expert opines may fly into the bridge or moving vehicles), the greater weight of evidence shows that bird mortality can be avoided and mitigated through various measures incorporated into the Project. Further, the bird mortality studies used by the expert involved significantly different projects and designs, and in some cases involved projects outside the United States with different species concerned. Engineering and Scientific Principles Rule 40E-301(1)(i) requires that an applicant give reasonable assurance that a project "be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Unrefuted evidence establishes that the proposed system will function and be maintained as proposed. Financial, Legal and Administrative Capability Rule 40E-4.301(1)(j) requires that an applicant give reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms of the permit. The evidence supports a finding that Applicants have complied with this requirement. Elimination and Reduction of Impacts Before establishing a mitigation plan, Rule 40E- 4.301(3) requires that an applicant implement practicable design modifications to eliminate and reduce wetland and other surface water impacts. In this case, there are unavoidable, temporary wetland impacts associated with the construction of the Project, as well as unavoidable wetland impacts for direct (project footprint), secondary, and cumulative impacts of the Project. The record shows that the Applicants have undertaken extensive efforts to eliminate and reduce wetland and other surface water impacts of the Project. For example, DOT examined and assessed several innovative construction techniques and bridge designs to eliminate and avoid wetland impacts. To eliminate and reduce temporary impacts occurring during construction, DOT has reduced the effect of scour on the pier foundation and reduced the depth of the footing to minimize the amount of excavation on the mangrove island. Also, during construction, the contractor is prohibited from using the 200- foot right-of-way on the mangrove island for staging or stockpiling of construction materials or equipment. The majority of the bridge width has been reduced to eliminate and avoid impacts. Also, the Project's alignment was adjusted to the north to avoid impacts to a tidal creek. Reasonable assurances have been given that all practicable design and project alternatives to the construction and placement of the Project were assessed with no practicable alternatives. Public Interest Test Besides complying with the requirements of Rule 40E- 4.301, an applicant must also address the seven factors in Rule 40E-4.302(1)(a)1.-7., which comprise the so-called "public interest" test. See also § 373.414(1)(a), Fla. Stat. In interpreting the seven factors, the District balances the potential positive and negative effects of a project to determine if it meets the public interest criteria. Because Petitioners agree that factors 3 and 6 of the rule are not at issue, only the remaining five factors will be considered. For the following reasons, the Project is positive when the criteria are weighed and balanced, and therefore the Project is not contrary to the public interest. Public Health, Safety, and Welfare The Applicants have provided reasonable assurance that the Project will not affect public health, safety, and welfare. Specifically, it will benefit the health, safety, and welfare of the citizens by improving traffic conditions and congestion, emergency and hurricane evacuation, and access to medical facilities. In terms of safety, navigation markers are included as part of the Project for safe boating by the public. See Fla. Admin. Code R. 40E-4.302(1)(a)1. Conservation of Fish and Wildlife The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The mitigation projects will offset any impacts to fish and wildlife, improve the abundance and diversity of fish and wildlife on Kiplinger Island, create mangrove habitat, and add to the marine productivity in the area by enhancing water quality. See Fla. Admin. Code R. 40E-302(1)(a)2. Fishing or Recreational Values The Project has features that allow for pedestrian and bicycle utilization and observation areas which should enhance recreational values. The Old Palm Bridge, approximately one mile north of the Project, has had no adverse impact on the fishing recreation along the South Fork of the St. Lucie River. Navigation will not be affected due to the height and design of the new bridge. Finally, the bridge is expected to be a destination for boating, kayaking, fishing, and bird watching. See Fla. Admin. Code R. 40E-4.302(1)(a)4. Whether the Activity is of a Permanent Nature The parties have stipulated that the Project is permanent in nature. No future activities or future phases of the project are contemplated. Temporary and permanent impacts are all being fully mitigated. See Fla. Admin. Code R. 40E- 4.302(1)(a)5. Values of Functions Being Performed in Affected Areas Due to historic impacts to the areas affected by the Project, the current condition is degraded and the relative value of functions is minimal. Although Kiplinger Island will have temporary impacts, that island is subject to exotic species and has no recreational use or access by boaters or members of the public. The Applicants propose mitigation which will improve and enhance these wetland functions and values in the areas. See Fla. Admin. Code R. 40E-4.302(1)(a)7. Summary The evidence supports a finding that the Project is positive as to whether it will affect the public health, safety, welfare, or property of others; that the Project is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the Project is positive as to conservation of fish, wildlife, recreational values, marine productivity, permanency, and current values and functions. When weighed and balanced, the Project is not contrary to the public interest. Cumulative Impacts Rule 40E-4.302(1)(b) requires that an applicant give reasonable assurance that a project will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in BOR Sections 4.28 through 4.2.8.2. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. An analysis is geographically based upon the drainage basins described in BOR Figure 4.4.1. Petitioners' contention that Figure 4.4.1 is inaccurate or not representative of the basin in which the Project is located has been rejected. In this case, the North St. Lucie Basin was used. To assess and quantify any potential unacceptable cumulative impacts in the basin, and supplement the analyses performed by the Applicants, the District prepared a Basin Map that depicted all the existing and permitted wetland impacts as well as those wetlands under some form of public ownership and/or subject to conservation restrictions or easements. The District's analysis found that the wetlands to be mitigated were of poor quality and provided minimal wildlife and water quality functions. Cumulative impacts from the Project to wetlands within the basin resulted in approximately a four percent loss basin-wide. This is an acceptable adverse cumulative impact. Therefore, the Project will not result in unacceptable cumulative impacts. Mitigation Adverse impacts to wetlands caused by a proposed activity must be offset by mitigation measures. See § 4.3. These may include on-site mitigation, off-site mitigation, off- site regional mitigation, or the purchase of mitigation credits from mitigation banks. The proposed mitigation must offset direct, secondary, and cumulative impacts to the values and functions of the wetlands impacted by the proposed activity. The ability to provide on-site mitigation for a DOT linear transportation project such as a bridge is limited and in this case consists of the creation of mangrove and other wetlands between the realigned St. Lucie Shores Boulevard and the west shore of the St. Lucie River, north and south of the proposed bridge crossing. BOR Section 4.3.1.2 specifically recognizes this limitation and allows off-site mitigation for linear projects that cannot effectively implement on-site mitigation requirements due to right-of-way constraints. Off-site mitigation will offset the majority of the wetland impacts. Because no single on-site or off-site location within the basin was available to provide mitigation necessary to offset all of the Project's impacts, DOT proposed off-site mitigation at two established and functioning mitigation areas known as Dupuis State Reserve (Dupuis), which is managed by the County and for which DOT has available mitigation credits, and the County's Estuarine Mitigation Site, a/k/a Florida Oceanographic Society (FOS) located on Hutchinson Island. Dupuis is outside the North St. Lucie Basin and was selected to offset direct and secondary impacts to freshwater wetlands. That site meets the ERP criteria in using it for this project. The FOS is within the North St. Lucie Basin and was selected to offset direct and secondary impacts to estuarine wetlands. Like Dupuis, this site also meets the ERP criteria for the project. The preponderance of the evidence establishes that the on-site and off-site mitigation projects fully offset any and all project impacts, and in most instances before the impacts will actually occur. Sovereign Submerged Lands and Heightened Public Concern Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. For purposes of granting a public easement to the Applicants, the District determined that the Project is not contrary to the public interest and that all requirements of the rule were satisfied. This determination was not disputed. The only issue raised by Petitioners concerning the use of submerged lands is whether the application should have been treated as one of "heightened public concern." See Fla. Admin. Code R. 18-21.0051(5). If a project falls within the purview of that rule, the Board of Trustees of the Internal Improvement Trust Fund (Board), rather than the District, must review and approve the application to use submerged lands. Review by the Board is appropriate whenever a proposed activity is reasonably expected to result in a heightened public concern because of its potential effect on the environment, natural resources, or controversial nature or location. Id. In accordance with established protocol, the ERP application was sent by the District to DEP's review panel in Tallahassee (acting as the Board's staff) to determine whether the Project required review by the Board. The panel concluded that the Project did not rise to the level of heightened public concern. Evidence by Petitioners that "many people" attended meetings and workshops concerning the Project over the last 20 years or so is insufficient to trigger the rule. Significantly, except for general project objections lodged by Petitioners and Audubon of Martin County, which did not include an objection to an easement, no adjacent property owner or other member of the public voiced objections to the construction of a new bridge. Revised Staff Report On October 20, 2010, the District issued a Revised Staff Report that merely corrected administrative errors or information that had been previously submitted to the District. Contrary to Petitioners' assertion, it did not constitute a material change to the earlier agency action either individually or cumulatively. Therefore, it was properly considered in this proceeding. Letter Modifications The Letter Modifications were used as a mechanism to capture minor alterations made to previously issued permits for Kanner Highway and Indian Street. Neither Letter Modification is significant in terms of water quality, water quantity, or environmental impacts. Both were issued in accordance with District rules and should be approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application Nos. 091021-8, 100316-7, and 100316-6. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2010. COPIES FURNISHED: Carol Ann Wehle, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 Jeffrey W. Appel, Esquire Ray Quinney and Nebeker, P.C. 36 South State Street, Suite 1400 Salt Lake City, Florida 84111-1401 Bruce R. Conroy, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 John J. Fumero, Esquire Rose, Sundstrom & Bentley, P.A. 950 Peninsula Corporate Circle Suite 2020 Boca Raton, Florida 33487-1389 Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road Mail Stop 1410 West Palm Beach, Florida 33406-3007
