The Issue The issue is whether Respondent South Florida Water Management District is entitled to an environmental resource permit from Respondent Department of Environmental Protection to construct a weir in Collier County on the Merritt Canal about 3600 feet south of Interstate 75 for the purpose of extending the hydroperiod on the Florida Panther Federal Wildlife Refuge.
Findings Of Fact Proposed Permit On April 17, 1996, Respondent South Florida Water Management District (District) filed with Respondent Department of Environmental Protection (DEP) an application for the construction of a water-control structure in the Merritt Canal. The stated purpose of the structure, which is a weir, is to extend the hydroperiod of the Lucky Lake Strand. The application states that the District is the owner of a drainage easement covering the land proposed as the site of the weir. According to the application, Collier County, in which the Merritt Canal lies, originally held the drainage easement. The District later adopted the Merritt Canal as a "Works of the District," which transferred operational responsibility for the canal from the County to the District. (A sub-unit of the District, the Big Cypress Basin Board has jurisdiction for District projects of the type involved in this case. References to the District shall include the Big Cypress Basin Board.) The application requests a permit to construct an adjustable sheet-pile weir within the 80-foot Merritt Canal right-of-way. The application accurately describes the Merritt Canal as a Class III waterbody that is not an Outstanding Florida Water. By Notice of Intent to Issue Environmental Resource Permit dated January 29, 1997 (NOI), DEP proposed to issue an environmental resource permit (ERP) to the District for the construction of the Lucky Lake Strand Water Control Structure. The structure would be an adjustable weir with operating levels of 7.0 feet National Geodetic Vertical Datum (NGVD) in the wet season and 9.5 feet NGVD in the dry season. As stated in the NOI, the Merritt Canal is 12 miles long and one of four main north-south canals within a larger system of 183 miles of canals--all Class III waters-- constructed in the 1960s by Gulf American Land Corporation to drain wetlands for development of the Southern Golden Gate Estates area. These four north-south canals drain water south through the Faka Union Canal and into Faka Union Bay, which is part of the 10,000 Islands/Cape Romano Aquatic Preserve. The preserve contains Class II Outstanding Florida Waters. The NOI notes that the U.S. Fish and Wildlife Service (FWS) and District entered into an agreement in September 1994 to construct two weirs in the Merritt Canal "to partially restore historic hydroperiods into two major wetland features within the federally owned lands of the USFWS Florida Panther National Wildlife Refuge, Lucky Lake Strand and Stumpy Strand (Class III Outstanding Florida Waters)." As stated in the NOI, these federally owned wetlands constitute over 3000 acres of cypress and mixed swamps, wet prairies, marshes, and ponds. The NOI relates that FWS staff proposed the project to counteract "subtle vegetational changes and accelerated pond draw-downs [that] were taking place in the strands as a result of shortened hydroperiods caused by a three-year drought, I-75 widening activities, and subsequent canal modifications." The NOI correctly states that water in the wet season historically flowed southerly through Stumpy Strand, Lucky Lake Strand, and Picayune Strand, before entering the larger Fakahatchee Strand. Lucky Lake Strand narrows to 1000 feet at its south end, which is at Interstate 75 (I-75). The NOI accurately asserts that the construction of the Merritt Canal and the I-75 borrow canals combined to draw down the upstream wetlands, thus reducing their hydroperiods. The effect of the Merritt Canal is reportedly significant because of its confluence with the southern tip of Lucky Lake Strand. The NOI discloses that the original agreement between the District and FWS called for the construction of two weirs south of I-75, one at the headwaters of the Merritt Canal and another about 1800 feet downstream in the Merritt Canal. However, the proposed permit eliminates one weir, whose function was performed by plugs in the north I-75 borrow canal, and relocates the remaining proposed weir about 3600 feet south of I-75, rather than immediately south of I-75, reportedly because of difficulties in accessing the proposed weir at I-75. The NOI states that the Merritt Canal is within the 80-foot drainage easement originally acquired by Collier County. The uplands adjacent to the weir are reportedly owned by DEP. The NOI describes the proposed weir as a sheet pile weir with adjustable partitions. As proposed, during the wet season, the District would start to open the gates at 7 feet NGVD and start to close them at 6.5 feet NGVD. During the dry season, the District would start to open the gates at 9.8 feet NGVD and start to close them at 9.3 feet NGVD. Also, the proposed permit would anticipate that the District would dredge the canal to a trapezoidal cross-section having a bottom elevation of -1.5 feet NGVD and a width of about 49 feet at the weir and transitioning to 20-foot bottom widths upstream and downstream of the weir. According to the NOI, the purpose of the proposed weir is to reduce over-drainage of the upstream wetlands in Lucky Lake and Stumpy Strands by extending the hydroperiod further into the dry season. No increase in water levels during the wet season is expected. Although the historic extended hydroperiod is not expected to be achieved, the weir structure is expected to improve current conditions to the upstream wetlands. Holding back water in these wetlands [is] also expected to improve water quality downstream by removal of excess nutrient, sediments, and chemicals. Wildlife values are expected to be enhanced in preferred waterfowl and wading bird habitat, including areas for the endangered wood stork and threatened bald eagle. Forage areas are also expected to be improved for white-tailed deer and other wildlife species which are essential prey for the endangered Florida panther. Aquifer recharge is also expected as the ground water reserves will be raised by raising the canal water levels, while maintaining the existing level of flood protection for adjacent private landowners. The NOI states that FWS will monitor post- construction environmental conditions and will recommend to the District adjustments to the weir elevations. The NOI reports that the District will be the "main operator" of the weir to adjust elevations to maintain flood control for adjacent lands. The NOI adds: The project was designed so as not to decrease the peak discharge capacity in the canal or increase flood stages in the Upper Merritt Canal watershed. Hydraulic modeling by the District indicates that there will be no additional surface water flooding to private property as a result of the project, and the current level of service will be maintained. Based on this analysis, the NOI concludes that the District has provided reasonable assurance that the proposed activity will comply with Part IV, Chapter 373, Florida Statutes, and the underlying rules, including Chapter 62-330 and Rules 40E-4.301 and 40E-4.302, Florida Administrative Code. The NOI states that the District has demonstrated that the activity is clearly in the public interest, pursuant to Section 373.414(1)(a), Florida Statutes. The proposed permit conforms to the NOI's description. Specific Condition 13 sets the fixed crest of the proposed weir at 4.5 feet NGVD and the width of the weir at 48 feet. Although the proposed permit is nowhere explicitly conditioned on a successful wetland enhancement project, Specific Condition 12 states that "the" wetland enhancement project shall be considered successful if, after five years, Lucky Lake Strand and Stumpy Strand display wetland- appropriate vegetation and the "viability of adjacent upland sites [is] not negatively impacted by increased ground water or surface water levels resulting from the authorized project." Specific Condition 17 requires the District to document the operation of the gates and notify DEP, within three days, whenever any of the permitted elevations are exceeded. Annually, the District must supply DEP detailed data and analysis of the operational history of the weir, including "reasons for going to nonstandard operation and a narrative description of the effectiveness of initiating the nonstandard operation to include areas not flooded (or flooded, if applicable) and other associated impacts." During the final hearing, the District proposed, and DEP approved, a modification of Specific Condition 18. As modified, Specific Condition 18 requires the District to "monitor the effects of the operation" of the weir, pursuant to the revised monitoring plan incorporated by reference into this condition. The revised monitoring plan, which is dated November 12, 1997, alters the original monitoring plan by adding two sites for the installation of water-table wells. One of the new sites (Site A) is 1200 feet north of the weir, and the other new site (Site B) is 1200 feet north and 2000 feet west of the weir. These are the only water-table monitoring devices. Five other sites are surface-water monitoring sites. Three of the these sites are in the Merritt Canal: one immediately upstream of the weir, one immediately downstream of the weir, and one farther upstream at I-75. The other two surface-water monitoring sites are farther upstream. One is in Lucky Lake about 1.75 miles north of the weir, and the other is about three miles northeast of Lucky Lake. Three other sites are rainfall-monitoring sites. Two rainfall-monitoring sites are north of the weir. The site just north of I-75 is at the Ford Motor Company test track, which is immediately west of Lucky Lake and Stumpy Strands, and the site more directly north of the Merritt Canal is about ten miles north of I-75. Specific Condition 18 states the frequency with which someone (presumably a District employee or contractor) is to collect the data from these 10 monitoring sites, but contains no performance criteria. The monitoring plan thus commits the District to collecting data, but not to analyzing the data, nor, more importantly, taking specified actions when certain performance parameters are exceeded. Neither the revised monitoring plan nor the application in any way commits the District to using the data collected from the revised monitoring plan to develop a set of criteria, based on rainfall amounts, groundwater levels, and surface water levels, to fine-tune the operation of the gates so as not to exacerbate present flooding. Nothing in the revised monitoring plan or the application suggests that the District will use the data collected from the revised monitoring plan to identify more clearly the relationships between storm events and water levels to understand better the relationship between flooding, on the one hand, and the existence of the proposed weir and the operation of its gates. Faka Union Canal Watershed and Southern Golden Gate Estates What is now known as the Faka Union Canal Watershed historically covered about 234 square miles. It ran from an area about four miles north of what is now known as Immokalee Road south in a widening expanse that approached 12 miles at what is now U.S. Route 41. It then ran south until it emptied into the Gulf of Mexico at Faka Union Bay in what is now the Cape Romano Ten Thousand Islands State Aquatic Preserve east of Marco Island. Land alterations due to road and canal construction and urban and agricultural development eventually reduced the Faka Union Canal Watershed to about 189 square miles. Most noticeably, these changes narrowed the drainage area at U. S. Route 41 from almost 12 miles to little more than the width of the Faka Union Canal. The Faka Union Canal Watershed is characterized by low relief and poorly defined drainage patterns. At the north boundary of the watershed, which now ends at Immokalee Road, the elevation reaches 24 feet NGVD. Twenty-eight miles to the south, at the outlet of the basin, the elevation is two feet NGVD. The water flows generally in a southwest direction. Historically, water ran slowly through the watershed in sheetflow several miles wide and a few inches to a few feet deep. Drainage concentrated in slightly lower sloughs and strands, which generally dried out in the dry season. Historically, the watershed featured flat, swampy lands containing cypress trees, islands of pine forests, and wet and dry prairies. Prior to development, much of the watershed remained inundated by several feet of water during the five- month wet season (roughly from mid-May through mid-October). In this undisturbed state, the prominent features of the watershed were the storage of runoff in depressional areas, attenuated peak flows, and a longer hydroperiod into the dry season. In the early 1960s, Gulf American Land Corporation subdivided a 173 square-mile area in Collier County into many thousands of lots as small as 1.25 acres. The development was Golden Gate Estates. The portion of Golden Gate Estates south of I-75 is known as Southern Golden Gate Estates. Golden Gate Estates is west of the Merritt Canal. Gulf American's purpose in dredging the 183-mile canal system was to allow it to market as land, available for continuous occupation, subdivided lots superimposed over an area that was land during the dry months and water during the wet months. To achieve this objective, Gulf American Land Corporation constructed one group of canals that drains to the west and another group of canals drains to the south into the Faka Union Canal. Gulf American dredged the canals draining to the south, which form the Faka Union Canal System, from 1968 through 1971. Four north-south canals spaced two miles apart drain Southern Golden Gate Estates and the portion of the Faka Union Canal Watershed north of I-75. From west to east, the canals are the Miller Canal, Faka Union Canal, Merritt Canal, and Prairie Canal. Only the two westerly canals run north of I-75. The Miller Canal extends almost seven miles north of I-75, and the Faka Union Canal extends about 14 miles north of I-75. The Merritt Canal starts in the immediate vicinity of I-75, and the Prairie Canal starts about two miles south of I-75. The average excavated depth of the four canals is about ten feet from the top of the bank to the bottom of the channel. Given the relatively close proximity of the water table to the surface in this area, excavation to these depths thus established a direct hydraulic connection with the surficial aquifer. The canals are large, ranging from 45 to over 200 feet wide. Although unable to convey without flooding the water from even a ten-year storm event, which is the level of service standard set by Collier County for Southern Golden Gate Estates, the Faka Union Canal system has nonetheless severely impacted the water resources of Collier County. According to the Hydrologic Restoration of Southern Golden Gate Estates, prepared in February 1996 by the Big Cypress Basin Board (Southern Golden Gate Estates Restoration Plan): . . . Construction of the canals has led to both increased volumes and rates of runoff from the watershed which has had lasting effects on the area's water supply, vegetation, wildlife, and coastal estuaries. The canals intercept large volumes of surface and subsurface flow and quickly divert them to the Faka Union Bay and the Ten Thousand Island Estuary of the Gulf of Mexico resulting in less surface water available for storage. Since groundwater recharge is achieved primarily through infiltration from surface detention storage, reduced groundwater recharge threatens both groundwater supply for the region and the natural barrier to salt water intrusion. Continued overdrainage has caused an eventual lowering of the groundwater table. This has caused vegetation to change from wetland dominant to transitional and upland systems with invasive exotic species. The extreme dry conditions caused by overdrainage have resulted in more frequent and more intense wildfires with a greater destructive impact on vegetation. The increased runoff rate has had severe effects on the receiving estuaries. Historically, the estuaries would receive broad, slow moving sheets of water that were capable of carrying essential nutrients but not high sediment loads. This has been replaced with point loads of freshwater at the Faka Union Canal outlet that push salinity levels down and result in freshwater discharge shocks throughout the Ten Thousand Island Estuary. The increased runoff rate drains the area quickly and does not allow the hydroperiods necessary to sustain wetland vegetation. . . . Southern Golden Gate Estates Restoration Plan, pages 8-9. The major roadway affecting the Faka Union Canal Watershed is State Road 84, which was a two-lane road constructed in 1966. In 1990, construction was completed transforming State Road 84 into four-lane I-75. These road projects have hastened drainage of the lands to the north of I-75 and east of the Faka Union Canal. The land north of the Merritt Canal is largely undeveloped. If one were to extend the Merritt Canal due north of I-75, it would run through the middle of Lucky Lake Strand and much of Stumpy Strand, which is immediately to the north of Lucky Lake Strand. Agricultural land owned by Collier Enterprises is just north of the Ford Motor Company test track and immediately west of Lucky Lake Strand. Agricultural land owned by Baron Collier Company is immediately north of Stumpy Strand. This imaginary extension of Merritt Canal would mark the west boundary of the Florida Panther National Wildlife Refuge, which was established in June 1989. The Florida Panther National Wildlife Refuge constitutes 26,000 relatively undisturbed acres immediately north of I-75. Intervenor Clifford Fort owns property south of the refuge on the south side of I-75. The Florida Panther National Wildlife Refuge features mostly wetlands, oak hammocks, pine flatwoods, and prairies. The refuge receives runoff from stormwater and possibly agricultural pumping of the water table from the adjacent farmland. In addition to draining into the headwaters of the Merritt Canal near the southwest corner of the refuge, the refuge also drains into the northerly borrow canal running along the north side of I-75. In the vicinity of the Merritt Canal, the four borrow canals running along the north and south sides of I-75, on both sides of the Merritt Canal, drain in the direction of the Merritt Canal. Listed species using the Florida Panther National Wildlife Refuge include the Florida panther, Florida black bear, wood stork, roseate spoonbill, limpkin, and Eastern Indigo snake. In October 1995, an inordinate amount of rain fell in the area. Attracted by the increased water depths, which more closely approximated historic conditions, 75 wood storks nested in the Lucky Lake Strand; in drier years, wood storks do not nest in the strand. Lucky Lake Strand occupies the southwest corner of the Florida Panther National Wildlife Refuge. Lucky Lake and two other ponds are present in this area. When full, Lucky Lake and one of the ponds are about 50 meters wide, and the third pond is about half of this width. During the dry season, a person can throw a stone across any of the ponds. Historically, Lucky Lake and Stumpy strands passed surface water into the Picayune Strand, which is west of the Merritt Canal and south of I-75, from which the water ran into the Fakahatchee Strand. Lucky Lake Strand presently narrows to about 1000 feet at I-75. The hydrologic connection between the outlet of Lucky Lake Strand and the headwaters of the Merritt Canal has contributed significantly to the overdrainage of these two strands, which occupy a significant area within the federal refuge. The FWS wildlife biologist stationed at the Florida Panther National Wildlife Refuge reported in a habitat assessment report prepared in August 1996 that four ponds in the strand dried out by December so that they could not sustain fish or provide feeding habitat for birds. Permitting Criteria Public Health, Safety, or Welfare or Others' Property One of the main disputes between the parties is the affect of the proposed weir on flooding. This case is largely about flooding or, more generally, the amount of water to be stored for a specified period of time. Petitioners and Intervenors fear that the District's effort will cause flooding to areas south of I-75 and east and west of the Merritt Canal. Occupying property within a vast area whose natural drainage patterns have been greatly disrupted, Petitioners and Intervenors justifiably fear the ravages of flood and fire. Although this area was undoubtedly subject to these hazards prior to man's alteration of the natural landscape, large- scale alterations to natural drainage in Southwest Florida have artificially heightened the risk presented by these natural hazards. Destructive flooding follows the inhabitation of areas historically devoted to the storage of considerable volumes of water; the flooding is exacerbated where, as here, natural drainage features have been replaced by artificial facilities that are inadequate for both the natural flows and the new, artificial flows generated by development. Although inadequate for the natural and artificial flows generated by even design storm events, the artificial drainage facilities nevertheless change historic drainage rates, accelerating the rate and volume of natural drainage and shortening the hydroperiod. In this manner, the artificial drainage facilities contribute to the desiccation of previously saturated soils and foster conditions suitable for dangerous fires. Initially, Petitioners and Intervenors contend that the District seeks approval of the proposed weir as an indirect means of implementing the Southern Golden Gate Estates Rehydration Plan. Little evidence supports this concern. The Southern Golden Gate Estates Rehydration Plan outlines several alternatives for the proposed rehydration of Southern Golden Gate Estates. The preferred alternative does not call for a weir at the proposed location. The purpose of the proposed weir is to rehydrate an area north of the Southern Golden Gate Estates. As discussed below, the role of the proposed weir in rehydrating Southern Golden Gate Estates appears insubstantial to the point of nonexistent. Focusing on the location of the proposed weir over half of a mile downstream from the southernmost part of the area intended to be rehydrated, Petitioners and Intervenors dispute the stated purpose of the project, focusing on the District's earlier relocation of the proposed weir from positions just north and then just south of I-75 to its present position a half-mile farther to the south. The District did nothing to allay this concern of Petitioners and Intervenors when its employees could not provide a reasonably detailed explanation of the process by which someone moved the proposed site to the south. From the District's evidence, one would infer that the decision to relocate the proposed weir to the south spontaneously emerged, without human sponsor, in the course of bureaucratic decisionmaking. The District asserted that the northerly sites were impractical due to access problems. However, the District made little, if any, real effort to see if the Department of Transportation would allow access to these more northerly sites--one of which the District might be able to access without the consent of the Department of Transportation. The record does not reveal why the District relocated the proposed weir to its present location, considerably south of its initial two locations at I-75. Again, though, the evidence does not support the contention of Petitioners and Intervenors that the relocation decision was part of a private plan among District employees to incorporate the proposed weir as part of a more ambitious project to rehydrate Southern Golden Gate Estates. Nor does the evidence establish, as Petitioners and Intervenors contend, that the relocation decision was driven by the concerns of three influential landholders to the north of I-75--Collier Enterprises, Barron Collier Company, and Ford Motor Company. These three landholders approved the proposed weir in its present location over a half-mile to the south of its original locations and may have expressed concern that the original locations at I-75 would unreasonably raise the risk of flooding their land and business and agricultural activities to the north of I-75. If the District's real reason for relocating the proposed weir was due to objections from these landowners to the north of I-75, this reason would not itself help Petitioners and Intervenors. If the District acceded to the demands of these landowners to the north, it does not necessarily follow that the District lacked confidence in its flood calculations. A relocation decision under these circumstances would have as likely reflected political, as scientific, concerns. Additionally, if the District moved the proposed weir at the insistence or suggestion of the landowners to the north, any flooding concerns voiced by these landowners raise different issues from the flooding concerns raised by Petitioners and Intervenors. Owners of land immediately to the north and west of the federal refuge are more directly within the area of the intended effects than are Petitioners and Intervenors. More substantially, Petitioners and Intervenors claim that the proposed activity is so negligently designed or will be so negligently operated as to result in heightened and more frequent flooding of areas to the west and east of the proposed weir. The District's record in operating weirs in Collier County is not flawless. In recent years, the District constructed and maintained a weir with unlawfully high gates and did not correct the noncompliant water-control structure for several months after first learning of the violation. However, this appears to have been an isolated violation. The division of responsibility between the District and Collier County for the maintenance of drainage canals is based on whether the canal is a primary or secondary drainage facility. The District has assumed responsibility for all of the primary drainage facilities in Collier County. Surprisingly, though, the record reveals no master map or index of the primary drainage facilities and at least the larger nonprimary drainage facilities. However, Petitioners and Intervenors failed to show that any confusion concerning maintenance responsibilities that may exist between the District and Collier County would appreciably raise the probabilities that the District would operate the proposed weir in such a way as to exacerbate present flooding concerns. The District and Collier County agree that the District has jurisdiction over the Merritt Canal. Petitioners and Intervenors have also failed to show that any confusion concerning secondary-drainage contributions that may exist between the District and Collier County would have a substantial impact on the successful operation of the proposed weir. The most significant claim raised by Petitioners and Intervenors asserts that the District failed to provide reasonable assurance that the proposed weir would not exacerbate flooding. Although the weir gates would be closed only during the dry season, the proposed activity requires analysis of the risk of heightened water elevations upstream of the proposed weir. In theory, flooding could result from the effects of the weir even when the gates are open, as well as the possibility of an extreme storm event during the dry season. Expert witnesses on both sides clashed over whether the design of the proposed weir was sufficient not to exacerbate existing levels, rates, and frequencies of flooding of adjacent uplands. The crucial feature over which the experts disagreed was the spoil banks running along the canal. When the Merritt Canal was constructed, the spoil was dumped along the banks. In the ensuing years, vegetation colonized and stabilized the spoil banks, which now function as levees. The expert witness called by Petitioners and Intervenors disregarded the spoil banks in his calculations. His lack of confidence in the opposing expert witness's use of top-of-bank elevations was partly justified for the reasons stated below. Although a minor point, part of the argument of Petitioners and Intervenors' expert witness proved too much by asserting that levees cannot maintain water levels higher inside the levee than the existing ground elevation outside the levee. On the other hand, in showing that the proposed weir would not exacerbate flooding, the District's expert witness relied, not entirely justifiably, on the top-of-bank elevations. The District took only spot elevations of the spoil bank and then assumed that these elevations prevailed along the entire 3600 feet of canal upstream of the weir. The District did not inspect the upstream banks for unpermitted culverts, of which at least one was discovered during the lengthy hearing in this case. There is a possibility of material differences in elevations along the spoil banks. These spoil banks were not constructed to a specified elevation; they were an excavation byproduct that was haphazardly deposited beside the excavated canal. Additionally, the record suggests that this general area has been the site of unpermitted works, such as the installation of a culvert and creation of unpermitted canal plugs. In the months over which the hearing took place, Petitioners and Intervenors alertly found a culvert breaching the spoil bank upstream of the proposed weir. At least one of their representatives demonstrated superior familiarity with the spoil bank over the familiarity demonstrated by the District's representatives. It is a fair inference that, if the spoil bank was substantially missing at any point upstream of the proposed weir, Petitioners and Intervenors would have brought such evidence to the hearing. The absence of such evidence, coupled with the reasonable inferences that may be drawn from the concededly more cursory investigation of the site by the District, precludes a finding that the spoil bank is substantially missing at any material point so as to warrant the use of ground elevations, as used by the expert witness called by Petitioners and Intervenors. At best, from the perspective of Petitioners and Intervenors, the record supports the finding that the spoil banks may not be as continuously as high as the District posits, but they are not nearly as low (i.e., nonexistent) at any point as Petitioners and Intervenors contend. The two experts also disagreed over two subordinate inputs used in running the flood calculations. The expert called by Petitioners and Intervenors claimed that initial tailwaters (i.e., water elevations downstream of the weir) in excess of 8.53 feet were appropriate. Although the canal has experienced historically higher tailwaters than 8.53 feet, the expert did not explain adequately why such higher tailwaters should be used in running the model, especially since flood calculations are not used to predict flooding conditions in all storms, such as a 1000-year storm. Absent a showing that tailwater in excess of 8.53 feet would be present at the relevant time preceding or during the design storm event, the expert called by Petitioners and Intervenors failed to show why the District's tailwater input was unreasonable. On the other hand, the District's expert claimed that the model required an adjustment to the friction factor or Manning's N coefficient. This adjustment, which decreased the friction factor by an order of magnitude, approximated a bottom that was many times smoother than the actual bottom of the Merritt Canal. The District's expert did not explain adequately why the lower friction factor should be used in running the model, and he frankly did not demonstrate the same familiarity with this friction factor as did the expert called by Petitioners and Intervenors. The most likely inference is that the District's expert erred in making this adjustment. There was another controversy between the parties regarding a subordinate input for the flooding calculations. Petitioners and Intervenors raised the possibility that agricultural discharges from the Collier properties adjacent to the federal refuge, which the District ignored in its calculations, might further undermine any assurances as to flooding. This could have been useful information if developed in the record, but the record permits no basis to quantify the value of this additional discharge or ascertain its timing relative to wet and dry seasons and storm events, if in fact this agricultural discharge takes place at all. Also, offsetting any such discharge would be two factors: the District ran its calculations assuming a runoff rate 25 percent greater than that appropriately used by the Florida Department of Transportation for modeling the design storm event, and the District ignored the plugs in the I-75 borrow canals, which attenuate the runoff into the Merritt Canal. Although Petitioners and Intervenors incorrectly inputted ground elevation in place of the top-of-bank elevation--when the best elevation is somewhere in between these two values--their expert's calculations are useful for illustrating a scenario that, for this reason, exceeds the worst-case scenario. Again, this is an illustration of a scenario that predicts greater flooding than reasonably should be predicted because, in actuality, the restraining elevation is higher than ground elevation. Using the 8.53-feet initial value for tailwater, Petitioners' Exhibit 27 illustrates the different water elevations resulting from running the model with and without the excessive reduction of the friction factor. Petitioners Exhibit 27 illustrates the effect of the design storm on upstream water elevations with the gates open. Petitioners Exhibit 27 ignores the spoil banks and instead uses prevailing ground elevations. At the site of the proposed weir, the canal bottom is at about -1.5 feet NGVD. The proposed weir would add fixed barriers up to an elevation of 5.0 feet NGVD; the adjustable gates would, when closed, extend the barrier from 5.0 feet NGVD to 9.5 feet NGVD. Approximate existing ground elevation averages about 10 feet NGVD downstream of I-75, with one dip to below 9 feet NGVD about 600 feet downstream of I-75. For about 6000 feet upstream of I-75, where there is no spoil bank whatsoever, the average ground elevation, outside of the slough, is about 13 feet. The slough bottom in this area gently slopes from about 9 feet NGVD to 10 feet NGVD. Ignoring the spoil bank, Petitioners Exhibit 27 predicts flooding in two major areas in the design storm event, even with the gates open. One of these is about 300 feet long, starting about 400 feet downstream of I-75. The other is at least 300 feet long, starting near the northern extreme of the modeled area and running off the modeled area. The District did not survey in detail the spoil bank along the 300 feet downstream of I-75. There is no spoil bank upstream of I-75 because there is no dredged canal. The water elevation about 400 feet downstream of I-75 would be almost one foot greater than the ground elevation. The water elevation about 6000 feet upstream of I-75 will be as much as half of a foot greater than the ground elevation. At the more downstream point, the actual water elevation would exceed the District's projection by nearly three-quarter of one foot. At the more upstream point, the actual water elevation would exceed the District's projection by over 1.5 feet. Although the record could have been better developed on this important point, there is reasonable assurance that the existing spoil-bank elevations are sufficient to contain these flood elevations predicted by the expert called by Petitioners and Intervenors. Petitioners and Intervenors claimed that the District could achieve its stated purpose of extending the hydroperiod in the Florida Panther National Wildlife Refuge without increasing the risk or extent of flooding of adjacent uplands. Petitioners and Intervenors suggested that the District repair an existing plug in the Merritt Canal just south of I-75. (This "plug" is actually the original ground surface, which evidently was undisturbed during the construction of I-75. Given the excavation of canals on both sides of what is now a narrow strip of earth, the land resembles a plug, and this recommended order refers to it as a plug, although this term is descriptive only of the feature's present appearance, not its method of creation.) There are actually six plugs--again, in the broad sense of the word--in the vicinity of the junction of the Merritt Canal and I-75. Two plugs interrupt the flow into the Merritt Canal of the borrow canals to the north of I-75. Two plugs likewise interrupt the flow into the Merritt Canal of the borrow canals to the south of I-75. The last two plugs are in the Merritt Canal, a few feet north and south of I-75. Repairing the plug immediately south of I-75 would raise the water elevation by about 1.3 feet under the I-75 bridge. By about 2000 feet upstream of I-75, there is no significant difference between the water elevation using the model of Petitioners and Intervenors' expert for the proposed weir 3600 feet downstream of I-75 and the water elevation for the proposed plug repair just south of I-75. Repairing the plugs would have reduced the water elevation downstream of I- 75 by less than one half of a foot. Petitioners, Intervenors, and their expert have proposed a promising alternative to the proposed weir. The alternative appears to serve the stated purpose of the proposed activity at least as well as the proposed weir would, if not somewhat better due to its closer proximity to the targeted federal refuge, and the alternative project would cost much less to construct, maintain, and operate. The restorative nature of the work would probably relieve the District of the necessity of obtaining a permit. Perhaps the prospect of such work might motivate other state and federal agencies to grant the District access to the area at I-75 to build the weir at one of its first two locations. However, the issue is whether the District has provided reasonable assurance for the activity that it has proposed. As to flooding, the District has provided reasonable assurance that the proposed activity will not exacerbate flooding during the design storm events or even more severe storm events. Even assuming an absence of reasonable assurance as to flooding, the first criterion requires consideration of whether the proposed activity would adversely affect the public health, safety, and welfare or the property of others. Extending the hydroperiod of the federal refuge protects the property of others by reducing the period of time that the turf is dried out. This provides a wide range of environmental protection, including protection against the risk of fire caused by excessive drainage, for the federal refuge and other property in the area. Retarding the artificially high rate of drainage will improve water quality in at least two respects. The proposed weir will retard and reduce the nutrients conveyed down the canal and into the estuary into which it eventually empties. The proposed weir will also tend to restore somewhat the rate and timing of historic freshwater inputs on which the viability of the estuary and its inhabitants depends. Concerns about public health, safety, and welfare, as well as the property of others, cannot be severed from these broadscale environmental benefits to be derived from the proposed activity. Public health concerns are tied to these considerations. Thus, even if the District had failed to provide reasonable assurance as to flooding alone, the District has provided reasonable assurance that, on balance, the proposed weir will not adversely affect the matters set forth in the first criterion. Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitats The proposed weir will serve the conservation of a wide range of flora and fauna, as well as their wetlands habitat, within the targeted federal refuge. These species include listed species. The evidence does not support a finding that extending the hydroperiod of the federal refuge would in any way disturb the Florida panther. Navigation, Flow of Water, or Harmful Erosion or Shoaling The proposed weir will have not adversely affect navigation or the flow of water within the canal, and it will not cause erosion or shoaling. Fishing or Recreational Values or Marine Productivity in the Vicinity of the Activity The proposed weir will not adversely affect fishing or recreational values or marine productivity in the vicinity of the proposed weir. To the contrary, the proposed weir will enhance these values in the immediate vicinity of the proposed weir and downstream at the estuary at the mouth of the Merritt Canal. Temporary or Permanent Nature The proposed weir will be of a permanent nature. Significant Historic and Archaeological Resources The record provides no basis for a finding that the proposed weir jeopardizes significant historic and archaeological resources. Current Condition and Relative Value of Functions of Areas Affected by the Proposed Activity The federal refuge is functioning well environmentally, despite the adverse impact of dramatic disruptions of the natural drainage regime. The value of these functions is high. Likewise, the receiving estuarine waters are functioning well, despite the adverse impact of dramatic disruptions of the natural drainage regime. Extending the hydroperiod of the federal refuge will partially offset these historic disruptions. Thus, the proposed weir will assist in the functioning of natural systems that are now functioning well, but could use some help. Public Interest The proposed weir is not in an Outstanding Florida Water. Thus, the question is whether the proposed activity is not contrary to the public interest. The District has provided reasonable assurances as to the preceding seven criteria sufficient to demonstrate that, on balance, the proposed activity is not contrary to the public interest. Cumulative Impacts There is no evidence that the proposed weir will cause any adverse cumulative impacts upon wetlands or surface waters. Other Criteria The District has proved that the proposed weir would not violate any water quality standards. To the contrary, any effect from the proposed activity would be to improve water quality, especially downstream at the estuary. The restoration of conditions more typical of historic drainage would allow more nutrients to be captured upstream and would tend to restore the historic timing and volume of freshwater inputs into the estuary. For the reasons set forth above, the District has also provided reasonable assurance that the proposed activity meets the 11 criteria contained in Rule 40E-4.301, which largely duplicate the seven criteria discussed above, and the relevant provisions of the Basis of Review. It is true that the monitoring provisions are largely illusory because they provide no quantifiable parameter beyond which the District must take specified action. In other words, at best, the monitoring provisions assure that the District will collect post-operational flooding data, but they do not promise that the District will take any action if certain levels of flooding take place. However, the monitoring provisions are of little importance given the factual findings concerning flooding, as discussed above, and the legal requirements of the Basis of Review, as discussed below.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the permit for the construction of the proposed weir about 3600 feet south of I-75 in the Merritt Canal. DONE AND ENTERED this 25th day of June, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1998. COPIES FURNISHED: James W. McDonald, Jr., Esquire McDonald & Associates Community Plaza, Suite 306 15600 Southwest 288th Street Homestead, Florida 33030 A. Glenn Simpson Qualified Representative 5961 22nd Avenue Southwest Naples, Florida 34116 Marcy I. LaHart Associate Attorney South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33416-4680 Francine M. Ffolkes Assistant General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Walter R. Shaw, Sr., pro se 1400 Northwest 62nd Avenue Sunrise, Florida 33313-6138 Cliffort L. Fort 8410 Northwest 16th Street Pembroke Pines, Florida 33024 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the applicants own the property in question? Whether the project would comply with the criteria of the South Florida Water Management District contained in Basis of Review for Surface Water Management Systems, specifically Sections 3.1.3 and 3.2? Whether flood protection would be inadequate or septic tanks unsuitable or whether the public health and safety would be compromised or the ultimate purchasers be deprived of usage of the property due to inundation in violation of Chapter 373, Florida Statutes (1981), or Rule 40E-4.301(1), Florida Administrative Code?
Findings Of Fact Ms. Williamson and Messrs. Leggett and Collins hold in fee simple a triangular 117.24-acre parcel in Okeechobee County as tenants in common under a warranty deed executed in their favor by one W. C. Sherman. They propose to develop the property as a trailer park (complete with airstrip) large enough to accommodate 109 trailers. To this end, soil would be dug up from the center of the property and used to raise the elevation of the surrounding land above the 100-year floodplain. (T. 47) The applicants have a dredging permit from the Department of Environmental Regulation authorizing them to excavate 629,889 cubic yards. They are proposing to dig to a depth of 76 feet below ground. This would create an 18-acre body of water ("Poe's Lake") which would overflow a V-notched weir into a county canal. The county canal would take the water to C- 38, one of the large canals to which the Kissimmee River has been relegated, at a point about 18 miles upstream from Lake Okeechobee. Runoff would wash over residential lots and roadways; the site would be graded to assure drainage into Poe's Lake. The minimum road crest elevation would be 30 feet NGVD ("[a]round twenty-nine feet" T.52), as compared to the control elevation for surface waters of 28.5 feet NGVD. WATER QUALITY The developers plan septic tanks for wastewater treatment. At the close of all the evidence, counsel for the applicants stated that sanitary sewers could be installed instead. Respondents' Proposed Recommended Order, p. With all the housing units in use, at least 10,900 gallons of effluent would seep into the ground from the tanks daily. There would be some evapotranspiration, but all the chemicals dissolved in the effluent would eventually end up in the groundwater. During the dry season, septic tank effluent would cause mounding of the groundwater and some groundwater movement toward, and eventual seepage into, Poe's Lake. The eventual result would be eutrophication and the growth of algae or macrophytes on the surface of Poe's Lake. This would cause dissolved oxygen violations in Poe's Lake. Discharges from the lake would inevitably occur, aggravating the situation in C-38, which already experiences dissolved oxygen levels below 5.0 milligrams per liter in the rainy summer months. Some fraction of the nutrients in the effluent from the septic tanks would ultimately reach Lake Okeechobee itself. The sheer depth of the excavation would create another water quality problem. Under the anaerobic conditions that would obtain at the bottom of Poe's Lake, bacteria acting on naturally occurring sulfates would produce hydrogen sulfide, ammonia and various other reduced organic nitrogen compounds. These substances are toxic to human beings and would, in some indeterminate quantity, enter the groundwater from Poe's Lake. This would affect the taste and perhaps the potability of water from any well nearby. It would be "possible to design a better system where there would be nutrient removal and a greatly reduced probability of violation of the dissolved oxygen criterion and obviation of the potential for ground water contamination." (T. 200) Installation of a baffle on the weir would serve to prevent buoyant debris from entering surface waters of the state. BASIS OF REVIEW Official recognition was taken of the "Basis of Review for Surface Water Management Permit Applications Within the South Florid Water Management District," parts of which all parties agree pertain in the present proceedings. Among the criteria stated in this document are: 3.1.3 Waste and Wastewater Service - Potable water and wastewater facilities must be identified. The Applicant for a Surface Water Management Permit must provide information on how these services are to be provided. If wastewater disposal is accomplished on-site, additional information will normally be requested regarding separation of waste and storm systems. 3.2.1.4 Flood protection - Building floors shall be above the 100 year flood elevations, as determined from the most appropriate information, including Federal Flood Insurance Rate Maps. Both tidal flooding and the 100 year, 3 day storm event shall be considered in determining elevations. b. Commercial and industrial projects to be subdivided for sale are required to have installed by the permittee, as a minimum, the required water quality system for one inch of runoff detention or one half inch of runoff retention from the total developed site. State standards - Projects shall be designed so that discharges will meet State water quality standards, as set forth in Chapter 17-3, Retention/detention criteria - Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof . . . Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff from a 3-year, 1-hour rainfall event, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. 3.2.4.1 Discharge structures should include gratings for safety and maintenance purposes. The use of trash collection screens is desirable. Discharge structures shall include a "baffle" system to encourage discharge from the center of the water column rather than the top or bottom. 3.2.4.4.2 b. Control elevations should be no higher than 2 feet below the minimum road centerline elevation in the area served by the control device in order to protect the road subgrade. Simply detaining runoff before discharging it offsite will not insure that the water quality standards set forth in Chapter 17-3 will be met. Whether the standards are met depends on, among other things, the composition of the runoff. FWF'S INTEREST Among the purposes of the FWF, as stated in its charter, Shall be to further advance the cause of conservation in environmental protection, to perpetuate and conserve fish and wildlife, oil, water, clean air, other resources of the State and so manage the use of all natural resources, that this generation and posterity will receive the maximum benefit from the same. (T. 248-9) Four or five thousand Floridians belong to FWF. FWF members "make use" (T. 250) of the waters of Lake Okeechobee, the Kissimmee River and specifically of the waters in C-38. PROPOSED FINDINGS CONSIDERED The applicants and FWF filed post hearing memoranda and proposed recommended orders including proposed findings of fact which have been considered in preparation of the foregoing findings of fact. They have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny the pending application for surface water management permit. DONE and ENTERED this 29th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1983. COPIES FURNISHED: Dennis J. Powers, Esquire Gunster, Yoakley, Criser & Stewart 400 South County Road Palm Beach 33480 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, Florida 33401 Irene Kennedy Quincey, Esquire 3301 Gun Club Road West Palm Beach, Florida 33406 Charles P. Houston, Esquire 324 Datura Street, Suite 106 West Palm Beach, Florida 33401
The Issue The issue to be determined in these consolidated cases is whether proposed Florida Administrative Code Rule 62-42.300 is an invalid exercise of delegated legislative authority.
Findings Of Fact The parties agree and the Administrative Law Judge has determined that there exists no genuine issue as to any material fact. In the December 4, 2014 SERC addendum, the Department described the changes to the proposed rule as follows: The Notice of Change filed on November 7, 2014 does not change the proposed minimum flows or the recovery strategy included in the proposed rules. The Notice of Change merely adds the existing technical information that the Administrative Law Judge found missing in the original rule text, which results in the proposed rule being found by the Judge to be vague. Specifically, these changes include: Adding the period of record used to establish the baseline flows in the Lower Santa Fe and Ichetucknee Rivers and subsequently used to develop the proposed minimum flows, and, Adding the method used for filling the data gaps in the baseline flow record for the Ichetucknee River. The Final Order in Still-I determined that the proposed minimum flows were vague because they did not include a period of record (of water flow data) to be used with the flow duration frequencies. Flow duration frequencies are percentages of time that a particular amount of flow (in cubic feet per second) is equaled or exceeded, which can vary depending on the period of record that is used. The proposed rule now describes the period of record that was used to derive the minimum flows. Petitioners contend that the rule is still vague because the rule does not identify the period of record that will be used in the future to determine whether the minimum flows are being achieved. Petitioners expressed concern that Suwannee River Water Management District might use a scientifically unsound period of record to determine that the MFL waterbodies are no longer “in recovery.” Neither the Department nor Suwannee River Water Management District identified in Still-I or in this proceeding the period of record that will be used to determine whether the minimum flows have been achieved. However, the Recovery Strategy for the MFL waterbodies is in its first phase. The rule contemplates that the MFL waterbodies will remain in recovery at least until completion of the North Florida Southeast Georgia Regional Groundwater Flow Model in 2019 and the MFLs and the Recovery Plan are re-evaluated with the model as part of phase See proposed Fla. Admin. Code R. 62-42.300(1)(d). This interpretation was confirmed by the Department and the District at the hearing on the motions for summary final order. The Supplemental Regulatory Measures (which are unchanged) do not require applicants for consumptive use permits to determine or show how a proposed withdrawal of water will affect the flow duration frequencies set forth in the rule. The period of record to be used in determining whether the minimum flows are achieved is not used in the permitting process.
Findings Of Fact By application filed on September 9, 1980, Respondent/Applicant, John H. Land Builders, Inc., sought a permit from Respondent, Department of Environmental Regulation (DER), to conduct dredge and fill activities in an approximate one acre area located in the southeast corner of a proposed housing development in Section 10, Township 29 South, Range 19 East, in Hillsborough County, Florida. A copy of this permit application may be found as DER Composite Exhibit B. Specifically, Land sought to excavate 4,100 cubic yards of material (muck) and to backfill the area with 14,400 cubic yards of granular material from adjacent uplands to allow for development of a street and building lots in an unnamed wetland. A permit from DER is required because the project involves a wetland that is contiguous with a ditch that connects to the Palm River, all of which constitute waters of the State that are subject to dredge and fill permitting requirements. The plans have been reviewed by other state and local authorities in the Hillsborough County area, and no adverse comments have been received. After the installation is completed, the elevation of the land will be raised, and will permit five homesites to be built on the land as well as the construction of an access road to the property from an adjacent street. The installation in question is but a small part of a larger proposed housing development known as Timberlake Subdivision that will ultimately involve more than 300 homesites. However, no further dredge and fill activities under DER jurisdiction will be undertaken. The proposal of Respondent/Applicant was received by the Department and certain timely additional requests were made from the Department to the Applicant to provide information necessary to evaluate the request for permit. Applicant subsequently furnished the required information, and it may be found in DER Exhibit C. The Department performed a field inspection and review of the dredge and fill site, including the surrounding areas, to assess the impact of water quality caused by proposed dredging and filling activities in wetlands areas. It concluded that the Applicant had affirmatively provided reasonable assurance to the Department that the short-term and long-term effects of the activity would not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. A copy of the permit application appraisal may be found in DER Exhibit A. On January 21, 1981, DER issued its Intent to Issue a dredge and fill/water quality certification with certain conditions therein, including the requirement that future development be dependent upon separate stormwater review by the Department (DER Exhibit D). On October 20, 1980, Applicant filed a Notice of Stormwater Discharge with the Department's Southwest District Office in Tampa (DER Composite Exhibits B & F). Thereafter, the Department conducted a field inspection and review of the proposed housing development and surrounding areas to determine whether the proposed stormwater discharge would have a significant impact on water quality. Based upon the results of that inspection, which concluded that the proposed discharge would not have a significant impact on the waters of this State, the Department issued Applicant a stormwater exemption on November 7, 1980. The project site is located in an unnamed wetlands area. It is weedy and has a dense cover of primrose willow (Ludwigia peruviana), willow (Salix caroliniana), cattail (Typha sp.), red maple (Ace rubrum) and is overgrown with grapes vines (Vitus rotendifolia). It lies just to the north of a series of fish farms owned by Petitioner, Penisular Fisheries, Inc. Other commercial industries and single family dwellings are found south of the proposed activities. To the west and northwest lie marshlands, two old borrow pits, and Interstate Highway 4. Water runoff from the dredge and fill area will flow to the storm drainage system in the proposed street, and from there to a designated retention pond. Because there will be minor contaminants in the runoff, the water will be retained for treatment for a period of five days, which exceeds the 100 hour retention period required by DER. After treatment, the runoff will flow into a well-defined county drainage ditch west of 58th Street, travel down the ditch which lies adjacent to the fish ponds, and then meander into the existing marshland. Water runoff from the remainder of the project (excluding the dredge and fill area) will drain into the two existing borrow pit lakes which lie close to Interstate Highway 4. The designated retention pond will be located west of the project and has a controlled spill-off elevation. It will provide sufficient treatment to and cleaning of the water to insure that no violation of water quality standards will occur. A stormwater system to be constructed by Applicant will actually reduce the volume of water runoff now occurring. Reasonable assurances have been given that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code. Based upon Use location of the point of discharge of Land's proposed stormwater discharge, the volume and frequency of discharge for which the proposed facilities are designed, and the anticipated constituents of discharge, the proposal will not have a significant impact on the water quality of the waters of this State. Accordingly, the exemption from stormwater licensing requirements was properly issued by the Department. Water quality violations which were alleged to have existed in a ditch on property adjoining the properties of Land and Petitioners were the subject of a notice of violation issued to the owners of that property. However, no notice of violation was ever issued to Land. Further, the ditch is not a part of the installation proposed by Applicant for issuance of the dredge and fill permit. Petitioners' concern is that Applicant has not given reasonable assurance that water quality standards would not be violated by the stormwater discharge and that downstream waters might be contaminated by urban runoff from the project. In reaching that conclusion, Petitioners' expert relied on a review of certain materials submitted to him by Petitioner's counsel. He did not visit the project site, nor had he reviewed drainage plans or construction drawings for drainage improvements contemplated by the notice of stormwater discharge filed by Land.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Department of Environmental Regulation grant the requested dredge and fill permit/water quality certification to Respondent/Applicant John H. Land Builders, Inc. It is further RECOMMENDED that the Respondent Department of Environmental Regulation enter a final order confirming the stormwater exemption issued by the Department to Respondent/Applicant on November 7, 1980. DONE and ENTERED this 27th day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1981.
The Issue The issues to be determined in this case are whether proposed Florida Administrative Code Rules 62-42.100, 62-42.200, 62-42.300, and a document incorporated by reference (“the Proposed Rules”) are invalid exercises of delegated legislative authority; whether the Department of Environmental Protection (“DEP”) complied with statutory requirements regarding preparation of a statement of estimated regulatory costs (“SERC”) for the Proposed Rules; and whether the approval by the Governing Board of the Suwannee River Water Management District (“SRWMD”) of a document entitled “Recovery Strategy: Lower Santa Fe River Basin” (“Recovery Strategy”) is invalid because it required rulemaking.
Findings Of Fact The Parties The Alliance is a Florida not-for-profit corporation with its principal place of business at 203 Northeast First Street, Gainesville, Florida. Its mission is to ensure the restoration, preservation, and protection for future generations of the ecosystems along the Ichetucknee River, including its associated springs. The Alliance has approximately 40 members. Seventeen members appeared at the final hearing and testified that they regularly use the Ichetucknee River and its associated priority springs for recreation, wildlife observation, and other purposes. Seventeen members is a substantial number of the total membership of the Alliance. Petitioner Still is a natural person who owns 117 acres of land in Bradford County. He uses the land primarily for timber production. He does not have a consumptive (water) use permit. He has used the Lower Santa Fe River and associated springs for recreation since 1979 and continues to visit the river and springs for this purpose. Petitioner FWF is a Florida not-for-profit corporation with its principal place of business at 2545 Blairstone Drive, Tallahassee, Florida. The mission of FWF includes the preservation, management, and improvement of Florida’s water resources and wildlife habitat. In the parties’ Pre-Hearing Stipulation, FWF identified Manley Fuller, its President, as its witness for organizational standing. It also listed “standing witnesses as needed,” but did not name them. At his deposition, Mr. Fuller stated that he did not know how many FWF members use the MFL water bodies. At the beginning of the final hearing, FWF made an oral proffer that it was prepared to call “10 members who are using the water bodies.” Later, FWF stated that some members were unwilling or unable to come to Tallahassee, but suggested that 10 or 15 might (now) be talked into coming to the final hearing or testifying by video. FWF also proffered a membership list, showing the number of members by county. It shows that FWF has a total of 11,788 members. In the six counties in the vicinity of the MFL water bodies (Alachua, Bradford, Columbia, Gilchrist, Suwannee, and Union) there are 457 FWF members. Ten, 15, or 20 members is not a substantial number of FWF’s 11,788 total members, nor is it a substantial number of its 457 members who live in the vicinity of the MFL waterbodies. Respondent DEP is a state agency with powers and duties under chapter 373, Florida Statutes, including the power and duty under section 373.042(1), which it shares with the water management districts, to establish minimum flows for surface watercourses and minimum levels for groundwater (“MFLs”) and recovery strategies when MFLs will not be achieved. Respondent/Intervenor SRWMD is a regional water management district with powers and duties under chapter 373, including powers and duties related to MFLs. The MFL waterbodies are located within SRWMD. Intervenor SJRWMD is the water management district adjacent to SRWMD. A portion of SJRWMD is included within the planning area created for the MFL waterbodies. Intervenor NFUCG is a regional trade organization representing interests of public water supply utilities in North Florida that hold consumptive use permits and are subject to the Proposed Rules. Intervenors CCUA and JEA are two members of NFUCG. Intervenors Alachua County, Gilchrist County, Suwannee County, Bradford County, and Columbia County are political subdivisions of the State in geographic proximity to the MFL water bodies. These Counties have the duty to plan for and protect the MFL water bodies as part of their local government comprehensive planning responsibilities under chapter 163, Florida Statutes. Minimum Flows and Recovery Strategies The water management districts and the DEP are required to establish minimum flows for surface water courses. § 373.042(1), Fla. Stat. Minimum flows are “the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.” § 373.042(1)(a), Fla. Stat. If the existing flow in a water body is below its established minimum flow, DEP or the district is required to develop a “recovery strategy” designed to “[a]chieve recovery to the established minimum flow or level as soon as practicable.” § 373.0421(2), Fla. Stat. MFLs and recovery strategies are required to be included in a water management district’s regional water supply plan. § 373.709(2)(c) and (g), Fla. Stat. Water management districts must develop regional water supply plans in regions where they determine existing sources of water are not adequate to supply water for all existing and future users and to sustain water resources and related natural systems. § 373.709(1), Fla. Stat. SRWMD does not have a regional water supply plan. It is working on a draft plan that is expected to be completed in late 2015. The MFL Water Bodies The Lower Santa Fe River runs for approximately 30 miles from Santa Fe River Rise Spring to its confluence with the Suwannee River. The Lower Santa Fe is fed primarily by groundwater discharge from the Upper Floridan aquifer including the baseflow provided by several major springs. The Lower Santa Fe River system, including its tributary, the Ichetucknee River (below State Road 27), is classified as an Outstanding Florida Water, a designation conferred on waters “with exceptional recreational or ecological significance.” See Fla. Admin. Code R. 62-302.700(3). The Ichetucknee River runs for six miles from the Head Spring to its confluence with the Lower Santa Fe. Its flow is derived almost entirely from springflow. The ecological, recreational, and economic values of the Santa Fe and Ichetucknee Rivers are widely recognized. Both rivers flow through lands preserved for public use as part of the State Park System. SRWMD published a Water Supply Assessment in 2010 to determine whether water demands could be met for the 2010-2030 planning period without adversely affecting natural resources. The North Florida Groundwater Flow Model was used to evaluate groundwater withdrawals and their effect on aquifer levels and the flows in springs and rivers. The 2010 assessment concluded that groundwater levels of the Upper Floridan Aquifer in the eastern and northeastern portions of the District were in decline. The District’s analysis of river and streamflows also found declining trends. It was concluded that existing water sources would not be able to meet projected water demands over the planning period. As a result, the Lower Santa Fe River Basin (including the Ichetucknee River) was designated as a water supply planning region and SRWMD began to develop minimum flows for these water bodies. Because groundwater withdrawals within the adjacent SJRWMD were also affecting the MFL waterbodies1/, DEP, SRWMD, and SJRWMD entered into an interagency agreement in 2011 to work together on water supply issues and the development of a joint regional groundwater model. Development of the Minimum Flows The procedural difficulties faced in establishing minimum flows affected by water uses in two water management districts eventually lead to the Legislature’s creation of section 373.042(4) in 2013, which authorizes DEP to adopt relevant rules which can be applied by the water management districts without the need for their own rulemaking. In June 2013, SRWMD requested that DEP adopt minimum flows for the MFL waterbodies pursuant to the new law. A gage2/ for the Lower Santa Fe River near Fort White, and a gage for the Ichetucknee River on US 27 were selected for establishment of the respective minimum flows. The minimum flows were determined by first establishing a hydrologic baseline condition at the two gages. Then, SRWMD determined a departure from the baseline that would cause significant harm to the water resources and ecology of the area. The minimum flows are expressed as stage duration curves rather than a single number, in order to account for the changes in flow that occur naturally due to seasonal, climatic, and other factors affecting rainfall. Once the minimum flows were determined, SRWMD evaluated whether they are being met. It concluded that the minimum flows are not being met. Therefore, in accordance with section 373.0421(2), a recovery strategy had to be prepared and implemented. The Recovery Strategy A recovery strategy is a plan for achieving a return to adopted MFLs and will generally include plans for developing new water supplies and implementing conservation and efficiency measures. See § 373.0421(2), Fla. Stat. The practice of the water management districts has been to also adopt regulatory measures that are used in the review of consumptive use permits as part of a recovery strategy. See, e.g., Fla. Admin. Code R. 40D-80.074. That practice was followed for the MFL water bodies. The Recovery Strategy includes planning, water conservation, water supply development, and water resource development components. These components comprise the non-regulatory portion of the Recovery Strategy. Section 6.0 of the Recovery Strategy, entitled “Supplemental Regulatory Measures,” is the regulatory portion and is incorporated by reference in proposed rule 62-42.300(1)(d). The Recovery Strategy is to be implemented in two phases and the objectives of each phase are described in Table 4-1 of the Recovery Strategy. Phase I includes adoption of supplemental regulatory measures, work with user groups to implement water conservation measures, completion of an improved regional groundwater model, and identification and investigation of water supply projects. In Phase II of the Recovery Strategy, DEP plans to use the new regional model to develop long-term regulatory measures to address regional impacts to the MFLs water bodies. In addition, SRWMD and SJRWMD would develop and implement additional water resource and supply projects. The Proposed Rules The Proposed Rules would create three sections in a new chapter 62-42 of the Florida Administrative Code. Rules 62- and 62-42.200 set forth the scope and definitions: 62-42.100 Scope The purpose of this chapter is to set forth Department-adopted minimum flows and levels (MFLS) and the regulatory provisions of any required recovery or prevention strategy as provided in Section 373.042(4), F.S. The Department recognizes that recovery and prevention strategies may contain both regulatory and non-regulatory provisions. The non-regulatory provisions are not included in this rule, and will be included in the applicable regional water supply plans approved by the appropriate districts pursuant to Section 373.0421(2) and Section 373.709, F.S. [Rulemaking authority and law implemented omitted.] 62-42.200 Definitions When used in this chapter, the following words shall have the indicated meanings unless the rule indicates otherwise: Flow Duration Curve means a plot of magnitude of flow versus percent of time the magnitude of flow is equaled or exceeded. Flow Duration Frequency means the percentage of time that a given flow is equaled or exceeded. [Rulemaking authority and law implemented omitted.] Rule 62-42.300 is where the proposed minimum flows are set forth. The minimum flows for the Lower Santa Fe River are established in rule 62-42.300(1)(a); the minimum flows for the Ichetucknee River are established in rule 62-42.300(1)(b); and the minimum flows for 16 priority springs are established in rule 62-42.300(1)(c). The minimum flows for the Santa Fe and Ichetucknee Rivers are expressed as water flow in cubic feet per second (“cfs”) at various points on a flow duration curve. The minimum flows for ten named springs associated with the Santa Fe River and six named springs associated with the Ichetucknee River are set forth as a “percent reduction from the median baseline flow contribution of the spring to the flow” at a particular river gage. This approach, which ties spring flow to river flow, was used by DEP because there is minimal flow data for the springs. Rule 62-42.300(1)(d) adopts by reference “Supplemental Regulatory Measures,” which is Section 6.0 of the Recovery Strategy. Rule 62-42.300(1)(e) states that DEP, in coordination with SRWMD and SJRWMD, shall reevaluate these minimum flows after completion of the North Florida Southeast Georgia Regional Groundwater Flow Model, which is currently under development. The rule also states that DEP will “strike” rules 62-42.300(1)(a) through (d) and adopt new rules no later than three years after completion of the final peer review report regarding the new groundwater model, or by December 31, 2019, whichever date is earlier. The Supplemental Regulatory Measures adopted by reference in rule 62-42.300(1)(d) are intended to provide additional criteria for review of consumptive use permit applications during Phase I. These measures would be applied to water uses within the North Florida Regional Water Supply Planning Area. For the purposes of the issues raised in these consolidated cases, it is necessary to discuss three categories of permit applications and how they would be treated under the Supplemental Regulatory Measures in Phase I: (1) A new permit application that shows a “potential impact” to the MFL water bodies must eliminate or offset the potential impact; (2) An application to renew a permit, which does not seek to increase the amount of water used, would be renewed for five years no matter what impact it is having on the MFL water bodies; however, if the impact is eliminated or offset, the renewal would not be limited to five years; and (3) An application to renew a permit which seeks an increased quantity of water would have to eliminate or offset the potential impact to the MFL water bodies associated only with the increase. This category of permits is limited to a five-year renewal unless the existing impacts are also eliminated or offset. See § 6.5(a)-(d) of the Recovery Strategy. Section 6.5(e) states that existing permits that do not expire during Phase I are considered consistent with the Recovery Strategy and are not subject to modification during the term of their permits. Many permits are issued for a 20-year period, so Phase I would not capture all existing permits because they would not all expire during Phase I.3/ DEP stated that existing permits may be affected by the regulatory measures DEP plans to adopt for Phase II. Section 6.5(f) of the Supplemental Regulatory Measures states that permittees are not responsible for impacts to the MFL water bodies caused by water users in Georgia, or for more than the permittee’s “proportionate share of impacts.” The record evidence established that the effect of Georgia water users on the MFL water bodies is small. Section 6.6(b) requires permits for agricultural use in the counties surrounding the MFL water bodies to include a condition requiring participation in the Mobile Irrigation Lab (MIL) program. The purpose of SRWMD’s MIL program is to improve the efficiency of irrigation systems. SRWMD provides cost- sharing in this program. Whether DEP Must Adopt the Entire Recovery Strategy by Rule Petitioners contend that proposed rules 62-42.100(1) and (2) enlarge, modify, or contravene sections 373.042(4) and 373.0421(2) because these statutes require DEP to adopt all of a recovery strategy by rule, not just the regulatory portion of a recovery strategy. Respondents contend that it was consistent with the law for DEP to adopt only the regulatory portion of the Recovery Strategy by rule and have SRWMD approve the non- regulatory portion and implement it through a regional water supply plan. It has been the practice of the water management districts to adopt by rule only the regulatory portion of a recovery strategy and to implement the non-regulatory portion as a component of their regional water supply plans. This is primarily a legal issue and is addressed in the Conclusions of Law where it is concluded that DEP is not required to adopt the entire Recovery Strategy by rule. Whether SRWMD Must Adopt the Recovery Strategy By Rule Petitioner Still challenged SRWMD’s approval of the Recovery Strategy as violating the rulemaking requirements of section 120.54. However, Petitioner Still presented no evidence in support of his claim that the Recovery Strategy contains statements that meet the definition of a rule, but were not adopted as rules. Whether the Non-Regulatory Portion of the Recovery Strategy Will Prevent Recovery The Alliance claims that there are flaws in the non- regulatory portion of the Recovery Strategy that was approved by SRWMD, primarily related to the estimate of flow deficits in the MFL water bodies and the corresponding amount of water that must be returned to the system to achieve the minimum flows. There is unrefuted record evidence indicating that SRWMD did not account for consumptive use permits issued in the last three or four years. Therefore, the Recovery Strategy probably underestimates the flow deficits in the Lower Santa Fe and Ichetucknee Rivers and the amount of water needed to achieve the minimum flows.4/ However, as explained in the Conclusions of Law, the Alliance cannot challenge the non-regulatory portion of the Recovery Strategy in this proceeding. The Recovery Strategy, including the non-regulatory portion approved by SRWMD, is in Phase I. SRWMD can revise the Recovery Strategy at any time, and in Phase II can do so with the improved analysis made possible with the new regional model. As explained in the Conclusions of Law, the non-regulatory portion does not have to achieve recovery in Phase I. Whether the Minimum Flows are Based on the Best Information Available Petitioner Still contends that the minimum flows are not based on the best information available as required by section 373.042(1)(b). He claims that the wrong method was used to estimate streamflow, the modeling was based on a false assumption about the relationship between groundwater levels and river flows, the relationship between withdrawals and flows was not properly accounted for, withdrawals and other anthropogenic impacts were not properly distinguished, tailwater effects were not properly accounted for, and the wrong period of record was used. Petitioner Still’s arguments in this respect are based largely on his own opinions about the quality and significance of the technical data that was used and how it affects the modeling results used in establishing the minimum flows. Petitioner Still does not have the requisite expertise to express these opinions and he did not get expert witnesses at the final hearing to agree with his claims. Petitioner Still does not have an expertise in modeling to express an opinion about the ability of the model to use particular data or how the model accounts for various surface and groundwater phenomena. Petitioner Still failed to prove that the minimum flows are not based on the best available information. Whether the Proposed Rules Are Vague Petitioner Still contends the Proposed Rules are invalid because they use terms that are vague. Some of the terms which Petitioner Still objects to are the same or similar to terms commonly used in other environmental regulations, such as “best available information,” “impact,” “offset,” and “eliminate.” The term “potential impact” is not materially different than the term “impact.” The term “best available modeling tools” is not vague. It reflects the recognition that, like best available information, hydrologic models and technical information are continually being created and updated. Petitioner Still contends that the definitions of “Flow Duration Curve” and “Flow Duration Frequency” in proposed rules 62-42.200(1) and (2), respectively, are vague because they do not state whether “synthetic” data may be used in the production of the flow duration curve, or that they are based on a specific period of record. Synthetic data are numeric inputs used to account for missing data and are created by extrapolating from existing data. As an example, they can be used to satisfy a model’s need to have a water flow entry for every month in a multi-year period being analyzed when there is no actual data available for some of the months. The use of synthetic data is a regular and accepted practice in modeling and does not have to be mentioned in the rule. Flow duration curves and flow duration frequencies are calculated from data covering specific periods of record. Although the definitions of these two terms in proposed rule 62-42.200 could contain more information than is provided, the proposed definitions are not inaccurate. They are not vague. Petitioner Still contends that proposed rule 62-42.300(1)(a) is vague because it establishes the minimum flows for the Santa Fe River at a location without precisely identifying the location. The record shows that the reference in proposed rule 62-42.300(1)(a) to “the Santa Fe River near Ft. White, FL” is the actual name of the United States Geological Survey flow gage that has been in use for many years. Furthermore, proposed rule 62-42.300(1)(c), which establishes the minimum flows for the priority springs, refers to “the respective river gages listed in paragraphs 62-42.300(1)(a) and (b).” Therefore, it is made clear that the reference to “the Santa Fe River near Ft. White, FL” in proposed rule 62-42.300(1)(a) is a reference to a river gage. The rule is not vague. Petitioner Still asserts that the minimum flows in proposed 62-42.300(1) are vague because they do not identify the period of record that was used in deriving the flow duration curves which are used in the rule. He compared the wording in the proposed rule to SRWMD’s existing rule 40B-8.061(1), which identifies the technical report from which the flow duration curve in that rule was derived. A general description of flow duration curves is found in “Minimum Flows and Levels for the Lower Santa Fe and Ichetucknee River and Priority Springs” dated November 22, 2013 (“MFL Technical Document”), at page 3-6: They show the percent of time specified discharges were equaled or exceeded for a continuous record in a given period. For example, during the period 1932 to 2010, the daily mean flow of the Santa Fe River near Fort White (Figure 3-2) was at least 767 cfs, 90 percent of the time. The curves are influenced by the period of record used in their creation, but for comparison purposes between different scenarios over a fixed time period they are extremely useful. [Emphasis added.] However, proposed rule 62-42.300(1) does not give the period of record for the flow duration curves that will be used to determine compliance with the minimum flows for the Lower Santa Fe and Ichetucknee Rivers. Respondents argued that identifying the period of record is unnecessary because anyone interested in knowing the period of record or anything else pertaining to how the flow duration curves were produced could refer to the MFL Technical Document. This is not a situation where a specific number and unit, such as 100 cfs, has been established as a criterion based on technical analyses that can be found in documents. In such a case, the technical documents are not needed to determine compliance with the criterion; they simply explain why the criterion was selected. In the case of a flow duration curve, however, the period of record for the data to be used must be known to determine compliance. For example, proposed rule 62-42.300(1)(a)1. would establish the following criterion: “3,101 cubic feet per second (cfs) for a flow duration frequency of five percent.” Five percent of what? Five percent of what data set? Data from what time period? Must the same synthetic data be used? The rule does not inform persons subject to the rule what data SRWMD will use to determine compliance. They would not know how to calculate flow duration frequencies without reviewing the MFL Technical Document. Because the minimum flows are not completely identified in the rule, they are vague. Whether a Minimum Flow Should be Established for Each Priority Spring Petitioner Still contends that the Proposed Rules are invalid because minimum flows are not established for each priority spring, which causes them to be unprotected. He claims that each spring needs its own minimum flow “that takes into account the surface and ground water inputs to its flow.” DEP and SRWMD presented evidence that establishing minimum flows for each spring was impracticable because there were insufficient data for the springs. Petitioner Still did not refute this evidence. Whether the Proposed Rules Allow Further Degradation of the MFL Water Bodies The Alliance contends that the Proposed Rules must reduce permitted withdrawals in Phase I and must require monitoring of water use by agricultural water users, but it did not present evidence that these alternative regulatory measures are practicable in SRWMD in Phase I. The Alliance did not show there are permitting mechanisms that have been used by other water management districts as part of the first phase of a recovery strategy that are practicable for use in SRWMD and would be more effective. The only evidence presented on the subject of what regulatory measures other water management districts have adopted as part of a recovery strategy pertained to the Southwest Florida Water Management District (“SWFWMD”). That evidence showed that SWFWMD took a similar approach of allowing existing permitted uses to continue their water withdrawals while new water supplies and conservation mechanisms were developed. The Alliance contends that the Supplemental Regulatory Measures do not prevent further degradation because there are projected to be numerous, new agricultural water uses in Phase I. However, under section 6.5(b), new water uses will not be allowed to adversely impact the MFL water bodies. The Alliance makes a similar argument regarding existing agricultural water users who will request an increase in water. Under section 6.5(c), increases in water use will not be allowed to adversely impact the MFL water bodies. Whether the SERC and Revised SERC are Good Faith Estimates and Whether the Proposed Rules Impose the Lowest Cost Regulatory Alternatives Petitioner Still failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that DEP’s original SERC or the revised SERC were not good faith estimates of regulatory costs associated with the Proposed Rules. The record evidence shows they are good faith estimates. He also failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that the objectives of the law being implemented could be substantially accomplished by a less costly regulatory alternative.
The Issue Whether Petitioner, Palafox, LLC (“Palafox”), is entitled to its reasonable attorney’s fees and costs incurred in its defense of the challenge to its Environmental Resource Permit (“Permit”) as raised in the Amended Petition in the underlying administrative matter, filed by Respondent, Carmen Diaz or her attorney, Jefferson M. Braswell, or both, pursuant to section 120.569(2)(e), Florida Statutes.
Findings Of Fact Palafox is a Florida limited liability company and was the applicant for the Permit in Case No. 19-5831. Palafox owns Lot 1, Block B, of the Palafox Preserve Subdivision, the six-acre property on which the Project will be developed. Ms. Diaz is the owner of Lot 18, Block A, of the Palafox Preserve Subdivision. Petitioner is a member of the Palafox Preserve Homeowners Association, Inc. (the “HOA”). The HOA is not a party to this litigation. The HOA has previously agreed not to challenge any permits sought by Palafox for the development of the project. Mr. Braswell is not a party to this matter. He represented Ms. Diaz through the Final Order issued by the District in Case No. 19-5831. Palafox’s Renewed Motion for Fees sought attorney’s fees and/or sanctions against Mr. Braswell for his role in that case, as allowed under section 120.569(2)(e). Ms. Diaz’s Challenge to the Project The Project consists of a 36-unit multi-family residential development proposed to be built on Lot 1, Block B, of the Palafox Preserve Subdivision. The Project encompasses approximately 2.68 acres of Lot 1, Block B. The Project lies adjacent to, and immediately west of, Martin Hurst Road and adjacent to, and immediately south of, Palafox Lane. The remainder of 2 Mr. Braswell also filed a Proposed Final Order and Amended Proposed Final Order, which were not authorized and have not been considered by the undersigned in preparing this Final Order. Mr. Braswell is not a party to this proceeding and did not become a party thereto by merely appearing at the final hearing to make some argument on his own behalf. He did not move to intervene in this proceeding, or otherwise obtain party status, not even by ore tenus motion at the Final Hearing. Mr. Braswell did not file a notice of appearance and did not attend the Final Hearing as counsel for Ms. Diaz. Furthermore, Mr. Braswell did not request permission to submit a Proposed Final Order. Palafox’s property runs to the west of the Project and south of Palafox Lane, and is located within a perpetual conservation easement. Ms. Diaz’s property is a residential lot located west of, and not adjacent to, Palafox’s property. An approximate nine-acre conservation easement owned by the HOA lies between Ms. Diaz’s property and Palafox’s property. A portion of Petitioner’s back yard is located within the conservation easement. Approximately seven acres within the conservation easement are wetlands. The conservation easement, including the wetlands, straddles the boundary between Block A and Block B, with about two-thirds in Block A, for the most part owned by the HOA, and one-third in Block B, wholly owned by Palafox. Palafox sought an environmental resource permit from the District to construct storm water management facilities (SWMFs) to serve the Project. The SWMFs to be authorized by that Permit are on Palafox’s property. Palafox’s property, the conservation easement and wetlands, and Ms. Diaz’s property, are all located within the same closed basin. This means that storm water within the basin will generally not flow out of the basin in all storm events up to, and including, a 100-year, 24-hour storm. On October 30, 2019, following the District’s notice of intent to issue the Permit, Ms. Diaz filed an Amended Petition for Formal Proceedings Before a Hearing Officer (“Amended Petition”). In the Amended Petition, Ms. Diaz challenged the District’s issuance of the Permit alleging that the Project will (1) have adverse water quantity impacts to adjacent lands; (2) cause adverse flooding to on-site or off-site properties; (3) cause adverse impacts to existing surface water storage and conveyance capabilities; and (4) adversely impact the value and function of wetlands and other surface waters. She also alleged that the wetland had not been properly delineated previously, and that an older delineation was no longer valid. Specifically, Ms. Diaz alleged that the “proposed [storm water] system results in a massive change in the amount of storm water being discharged from the applicant’s site directly onto Petitioner’s property which leads to adverse impacts on her property.” On November 19, 2019, the Final Hearing was scheduled for February 19 and 20, 2020. Ms. Diaz was deposed on January 17, 2020, almost three months after filing her Petition, and two months after the Final Hearing date was set. The deposition revealed that Ms. Diaz was not the least bit informed of the Project. Ms. Diaz had not reviewed the Permit, and believed that the Permit authorized Palafox to build the Project, rather than the storm water treatment system. Ms. Diaz had not seen the site plans, had no understanding of what the Project would look like, and admitted she had done nothing to learn about the Project. In fact, Ms. Diaz testified repeatedly at her deposition that she simply does not want the Project built, regardless of whether it would actually impact her property or the wetlands, and regardless of what kind of development it is. She does not want Palafox’s property developed, in any capacity, and wants it to stay “the way it is now.” Ms. Diaz conducted no written discovery nor any depositions, and did not hire an expert until approximately one month before the final hearing. That expert, Mr. Carswell, had never visited the site. Although Mr. Carswell conducted a storm water analysis, Mr. Carswell conceded that Mr. Braswell prepared and sent him a ten-page report and asked him to consider it as Mr. Carswell’s opinion report. In reviewing and adopting that report, Mr. Carswell admitted that he did not do the type of analysis that he would have if he wanted to determine the incremental addition of storm water to a closed basin. Instead, he did a simple water balance equation. Mr. Carswell testified that he had never before used this type of analysis to support permitting for a storm water pond and that if he was going to try to predict the incremental contribution of storm water discharge from a project into a closed basin, he would utilize a model similar to the one submitted by Palafox in support of this Project. The undersigned found Mr. Carswell’s analysis was not a professionally-acceptable method for determining whether the Project met the standards for the Permit. In addition to Mr. Carswell, Petitioner offered the testimony of four other witnesses at the final hearing. None were able to offer any evidence that Palafox failed to provide reasonable assurance that the project: Will not cause adverse water quantity impacts to receiving waters and adjacent lands; Will not cause adverse flooding to on-site or off- site property; Will not cause adverse impacts to existing surface water storage and conveyance capabilities; and Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. The testimony of two of those witnesses, Mr. Songer and Mr. Stinson, was in transcript form and was actually given in DOAH case No. 18-2734. In that case, neither witness’ testimony was accepted to defeat Palafox’s site plan approved under the more stringent permitting requirements of Leon County. See Braswell v. Palafox, LLC, Case No. 18-2734 (Fla. DOAH Aug. 31, 2018; Leon Cty. Bd. of Cty. Comm’s (Sept. 24, 2018)). The remainder of Ms. Diaz’s witnesses’ testimony was equally ineffective. Mark Cooper, the Project engineer, testified that the Project would raise the water level in the wetland by .04 feet in a 100 year, 24-hour storm event, which he classified as a negligible impact. Mr. Cooper’s testimony confirmed that of Palafox’s expert engineer, Mark Thomasson, who classified that increase as “de minimus.” Cheryl Poole, Ms. Diaz’s other witness and an engineer who worked on a prior project on the property, merely testified to conditions that existed a decade prior that are not relevant to the Project. In short, Ms. Diaz presented no credible evidence at all that the Project would negatively impact either the wetlands or her property. After the final hearing, the undersigned administrative law judge issued a Recommended Order, adopted in toto by the District, concluding that Ms. Diaz did not carry her burden to prove that Palafox failed to provide reasonable assurances that the Project will not (a) cause adverse water quantity impacts to receiving waters and adjacent lands; (b) cause adverse flooding to on-site or off-site property; (c) cause adverse impacts to existing surface water storage and conveyance capabilities; and (d) adversely impact the value and functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Braswell’s Prior Challenges to the Project Mr. Braswell has been involved in challenges to the Project for over five years. In those challenges, he has represented his parents, the HOA, Ms. Diaz, or some combination of those parties. In 2015, Mr. Braswell filed an administrative challenge on behalf of his parents—Wynona and Robert Braswell (the “Braswells”), who live in the Palafox subdivision and are members of the HOA. See Braswell v. Palafox, LLC (Fla. DOAH Case No. 15-1190). In that administrative challenge, the Braswells challenged Leon County’s approval of the Project site plan.3 The Braswells raised many of the same factual issues regarding the wetlands and storm water impacts that Mr. Braswell later raised again in Ms. Diaz’s challenge to the Permit. The Braswells also raised the issues that 3 Mr. Braswell admitted that when he filed that case, he “didn't know very much about the [P]roject,” “didn't know the rules” for Leon County’s site plan approval, and that he and his parents “didn't realize kind of what [they] were getting [them]selves into.” the Project violated a private covenant in the subdivision’s governing documents, which was beyond the Division’s jurisdiction. Accordingly, Palafox filed a civil suit for declaratory judgement to resolve that claim. In the interim, jurisdiction of Case No. 15-1190 was relinquished to the County without prejudice to refer it again to the Division should the civil suit not dispose of the issues raised in the administrative case. See Braswell v. Palafox, LLC, Case No. 15-1190 (Ord. Rel. Jsd. May 14, 2015). After an initial grant of summary judgment for the Braswells and a reversal by the First District Court of Appeal, the trial court entered a final judgment for Palafox. (Final Judgment, Evergreen Communities, Inc. v. Braswell, No. 2015-CA-000765 (Fla. 2d Cir. Ct. 2017)). After the civil suit was resolved, Mr. Braswell renewed his parents’ challenge to the site plan. See Braswell v. Palafox, LLC, Case No. 18-2734 (Fla. DOAH Aug. 31, 2018; Leon Cty. Bd. of Cty. Comm’s Sept. 25, 2018). As in the underlying Permit challenge, Mr. Braswell argued that the wetlands were not correctly delineated, and that the project would cause the wetland area to overflow and burden the “downstream” storm water facilities owned by the residential homeowners. While the County did not issue a storm water permit for the Project, approval of the site plan required a determination that the Project meets the County’s environmental code requirements. The County’s standard for volume control requires the runoff volume in excess of the pre-development runoff volume to be retained for all storm events up to a 100-year, 24-hour duration storm. That standard is more stringent than the District’s requirement to provide “reasonable assurances” that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; and will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. In the site plan challenge, the administrative law judge found that the Project was consistent with the Code requirements and specifically found as follows: the Project’s proposed storm water system will not significantly impact the conservation easement wetlands and will not cause flooding or other adverse impacts to downstream areas. no statute, ordinance, rule or regulation requires a wetland to be re-delineated after it has been identified and placed in perpetual preservation under a conservation easement and that the argument to the contrary “would lead to the absurd result of re-surveying and re- recording allegedly ‘perpetual’ conservation easements every time a lot was developed” within a plat. Id. at R.O. ¶¶ 37 & 51. In yet another case arising from this dispute, in 2016, Mr. Braswell’s father filed a formal complaint against the Project engineer with the Florida Board of Professional Engineers. Mr. Braswell submitted additional information in support of that proceeding. See In re Mark Cooper, P.E., Case No. 2016052464 (Fla. Bd. of Prof’l. Eng’rs Mar. 14, 2017). The Closing Order in that case found no probable cause of a violation by Palafox’s professional engineer related to the storm water system after the independent reviewer concluded that, based on the materials submitted by Petitioner’s counsel, “there should be no adverse surface water impacts to adjacent property” from the Project. Id. at ¶ 1. After the resolution of the civil suit and prior administrative challenges, Palafox, the HOA, and the Braswells entered into a settlement agreement. Under that agreement, the HOA and the Braswells agreed they would not challenge the Project any further, as long as it complied with the site plan that the County had approved. Mr. Braswell signed that agreement on behalf of his parents as attorney in fact. Palafox, believing that Ms. Diaz was bound by that settlement agreement as a member of the HOA, and that she had breached the agreement by filing the Amended Petition in the Permit challenge, filed a civil suit in Leon County Circuit Court. See Palafox, LLC v. Diaz, Case No. 2019-CA-002758 (Fla. 2d Cir. Ct.). Mr. Braswell, representing Ms. Diaz in that suit as well, filed a counterclaim, subsequently voluntarily dismissed, in which he again raised the issues of the wetlands delineation and downstream flooding. (Def’s Ans. and Aff. Def. and Countersuit for Dec. Jdmt. at pp. 6-9). At no point between the resolution of the prior litigation regarding this Project and filing the Permit challenge did Mr. Braswell obtain new evidence or expert opinion to suggest that the Project would not meet the District’s more lenient standards for granting an environmental resource permit. Nor did he adduce evidence at hearing that would lead an administrative law judge to reach a different conclusion from Judge Ffolkes—that the project would not cause adverse impacts to downstream owners, that the Project would not adversely impact the wetlands, and that no new wetland delineation was required.
