The Issue Whether or not the action taken by the Respondent, St. Johns River Water Management District, in the person of its Governing Board at a meeting held on March 15, 1978, and by an amendment to the action which took place on November 15, 1978, constituted the adoption of a rule, which is invalid for failure to meet the requirements of Section 120.54, Florida Statutes. (The motion and amendment stated the following: March 15, 1978 "That the St. Johns River Water Management District close District-owned fee simple land in the St. Johns Marsh to half-track or full-track vehicles which have as an integral part tires and/or rubber tracks for propulsion hut excluding four-wheel and conventional to-wheel-drive vehicles, and direct staff to return to the Board within 90 days with an Impact of vehicu- lar use on Marsh ecosystems and the management policy with regard to these track vehicles, and that emergency vehicles be excluded from the prohibition proposed." November 15, 1978 "1. A motion to ban all vehicles excepting boats from the District marsh held in fee simple."
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petition for Administrative Determination filed by the Petitioner, Lacy Everett, and received by the State of Florida, Department of Administration, Division of Administrative Hearings, on November 9, 1978. This Petition was filed pursuant to provisions of Section 120.54(4), Florida Statutes. Subsequent to the receipt of the Petition, the Director of the Division of Administrative Hearings reviewed the Petition and made an order of assignment of the case to Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. The date of the Order of Assignment was November 13, 1978. By that Order, the Director of the Division of Administrative Hearings required that a final hearing be held within thirty (30) days of the date of the Order. The hearing was conducted on December 4, 1978. The Petitioner, Lacy Everett, is a resident of Delray Beach, Florida. Beginning in 1957 and continuing through 1978, the Petitioner has hunted or desired to hunt in the area known as the St. Johns Marsh. This marshland Is under the ownership and control of the Respondent, St. Johns River Water Management District. During the pendency of the time that the petitioner has hunted in the subject area he has used half-track, four-wheel-drive and conventional two-wheel-drive vehicles. For the last nine years the type vehicle he has used has been a half-track vehicle. The petitioner has elected this method of transportation because in his judgment it is the only vehicle which would allow him access to the St. Johns Marsh. The Petitioner has hunted in the St. Johns Marsh area on every weekend over a two-month period in each year during the time frame which began in 1957 up to 1578, in which year he was prohibited from using the half-track vehicle. He wishes to hunt in the St. Johns Marsh area in succeeding years and to use the half-track vehicle. The Respondent, St. Johns River Water Management District, is an agency created pursuant to Chapter 373, Florida Statutes, which statute deals with the water resources of the State of Florida. Chapter 373, Florida Statutes, Part I, is entitled "State Water Resources Plan." The overall policy statement of that plan may be found in Section 373.016, Florida Statutes, which reads as follows: "373.016 Declaration of policy.-- The waters in the state are among its basic resources. Such waters have not hereto- fore been conserved or fully controlled so as to realize their full beneficial use. It is further declared to he the policy of the Legislature: To provide for the management of water and related land resources; To promote the conservation, development, and proper utilization of surface and ground water; To develop and regulate dams, impoundments, reservoirs, and other works and to provide water storage for beneficial purposes; To prevent damage from floods, soil erosion, and excessive drainage; To preserve natural resources, fish and wildlife; To promote recreational development, pro- tect public lands, and assist in maintaining the navigability of rivers and harbors; and Otherwise to promote the health, safety, and general welfare of the people of this state. The Legislature recognizes that the water resource problems of the state vary from region to region, both in magnitude and complexity. It is therefore the intent of the Legislature to vest in the Department of Environmental Regulation or its successor agency the power and responsibility to accomplish the conservation, protection, management, and control of the waters of the state and with sufficient flexibility and discretion to accomplish these ends through delegation of appropriate powers to the various water management districts. The department may exercise any power heroin authorized to be exercised by a water management district; however, to the greatest extent practicable, such power should be delegated to the governing board of a water management district." To implement those policies, certain water management districts were created pursuant to Section 373.069, Florida Statutes. Respondent, St. Johns River water Management District, was one of the agencies established to create and exercise the overall policies of the State Water Resources Plan. Chapter 373, Florida Statutes, Part I, also allowed for agencies, such as the St. Johns River Water Management District, to purchase land as a means to effectuate management policies. This authority is granted in Section 373.086, Florida Statutes. In keeping with the statutory authority granted through Chapter 373, Florida Statutes, the Respondent, St. Johns River Water Management District, purchased the property known as the St. Johns Marsh and holds fee simple title to that land. On March 15, 1978, at a meeting of the Governing Board of the St. Johns River Water Management District a motion was made and amended to the effect that: "The St. Johns River Water Management District close District-owned fee simple land in the St. Johns Marsh to half-track or full-track vehicles having as an integral part tires and/or rubber tracks for propulsion but excluding four-wheel and conventional two-wheel-drive vehicles, and direct staff to return to the Board within 90 days with an impact of vehicular use on Marsh ecosystems and a management policy with regard to these track vehicles, and that emergency vehicles be excluded from the prohibition proposed." That motion was seconded and carried unanimously by the directors present at the meeting. The terms and conditions of this motion may be found In the copy of the minutes made of the meeting held on March 15, 1978, which is Petitioner's Exhibit No. 2 admitted into evidence. At the meeting certain members of the public were allowed to speak on the issue of the motion, among these were persons who desired to use track vehicles in the St. Johns Marsh. The minutes do not indicate that the Petitioner was among those persons speaking. However, it was stipulated between the parties that the Petitioner did attend certain public hearings before the St. Johns River Water Management District Governing Board which dealt with the question of utilization of track vehicles in the St. Johns Marsh. On June 21, 1978, at a meeting of the Governing Board of the St. Johns River Water Management District, the question of the prohibition of certain vehicles in the St. Johns Marsh was raised. In the course of that discussion one of the staff members presented four possible alternatives on the question of the continuation of the prohibition against the utilization of the aforementioned classes of vehicles. Those alternatives were that "(1) no action with no ban; (2) continue ban and extend the study period; (3) discontinue the ban-extend the study period; and (4) continue the ban with no more study." The matter was further considered in the course of the meeting and, under a motion which was carried unanimously, a decision was made to extend the ban for 90 days, meaning that the prohibition against the utilization of the type vehicles mentioned in the March 15, 1978, action would be extended for 90 days. Another element of the motion was that the public be notified that the final decision on the matter would be made by the Governing Board in 90 days and that no public hearing be advertised if it was not necessary. The discussion as reported in the minutes of the Governing Board of the St. Johns River Water Management District may be found in Petitioner's Exhibit No. 3 admitted into evidence. The Governing Board of the St. Johns River Water Management District met on October 13, 1978, and discussed the matter of a ban on half-track vehicles in the 8t. Johns Marsh. At that time a motion was made to extend the ban on utilization of half-track vehicles in the St. Johns Marsh until the next Board meeting, at which time a public hearing would be held. The expressed rationalization for extending the ban was due to the fact that there was in the mind of the Respondent an immediate danger to the public welfare in the area where the ban was imposed. The motion as stated was carried unanimously. Again, this discussion may be found in the minutes of the Governing Board of the St. Johns River Water Management District for the date of October 13, 1978. These minutes are found as Petitioner's Exhibit No. 4 admitted into evidence. Before the next meeting of the Governing Board of the St. Johns River Water Management District was convened, the Petitioner requested a "draw out" hearing before the St. Johns River Water Management District. This request was made pursuant to Subsection 120.54(16), Florida Statutes. That request may be found as the Respondent's Exhibit No. 2 admitted into evidence. In his prayer for relief the Petitioner states that to proceed under Subsection 120.54(3), Florida Statutes, would not protect his interest and, therefore, it is necessary to proceed under Subsection 120.54(16), Florida Statutes. The request for hearing also alludes to the fact that the proposed rule had been published in the Florida Administrative weekly on October 20, 1978, and the rule published was the one originally adopted 00 March 15, 1978, as extended by the various meetings of the Governing Board of the St. Johns River Water Management District held in the interim period. On November 14, 1978, a public hearing was held on the question of the motion which had been passed on March 15, 1978, and is the subject of this hearing. At the November 14, 1978, meeting the existence of the request for hearing under Subsection 120.54(16), Florida Statutes, was brought to the attention of the Governing Board, as well as the Petition which is the subject of this cause filed with the Division of Administrative Hearings. It was also discussed that an injunction suit was to be instituted against the Petitioner, Lacy Everett, on the basis that Mr. Everett intended to use a half-track vehicle to hunt on Use St. Johns Marsh in spite of the prohibition which had been instituted on March 15, 1978. The attorney for Mr. Everett was allowed to speak to the Board in the course of the meeting and expressed his legal theory of the case, as well as relating certain hearsay information pertaining to experiences which had been reported in the Florida Everglades pertaining to the utilization of half-track vehicles. The minutes of the November 14, 1978, meeting may be found as Petitioner's Exhibit No. 5 admitted into evidence. On November 15, 1978, the Governing Board of the St. Johns River Water Management District again met and considered the question of the use of off-road vehicles in the St, Johns Marsh. According to the minutes of the meeting, the attorney for the Respondent characterized the request for a "draw out" hearing made by the Petitioner as being a request for a Section 120.57, Florida Statutes, hearing if the Respondent adopted the prohibition against the use of off-road vehicles as a rule. The minutes indicate that the attorney for the Respondent then instructed the Governing Board that in view of the absence of Petitioner's attorney at the November 15, 1978, hearing, the Board need not contact the Petitioner further on the question of the prohibition of off-road vehicles in the St. Johns Marsh. Subsequent to that instruction by the attorney for the Respondent, certain motions were made and passed as follows: "1. A motion to ban all vehicles excepting boats from the District marsh held in fee simple. This motion is to authorize our attorney to publish and advertise for rule adoption a rule prohibiting all vehicles excepting boats from the District marsh field in fee simple. Emergency vehicle use, District vehicle use and vehicle use necessary for ranch and farm operations of adjacent property owners shall be excepted from this rule. This motion will also authorize appropri- ate officers to arrest and prosecute all persons violating the Board's order on vehicle use in the marsh fee simple ownership. This motion is also to authorize nod ratify conjunctive suits against all persons violating the Board's order on vehicle use in the marsh fee simple ownership." In considering the facts and law involved in this dispute, the initial question to be resolved concerns the standing of the Petitioner to challenge the action prohibiting off-road vehicles which was taken on March 15, 1978, and amended on November 15, 1978. Petitioner has demonstrated his standing by establishing the long term pattern of his usage of the St. Johns Marsh for purposes of hunting and proving his reliance on the restricted classes of vehicles to transport him into the hunting area. Therefore, he is a proper party within the meaning of Subsection 120.52(10)(b), Florida Statutes, which reads: "Any other person who, as a matter of con- stitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceed- ing, or whose substantial interests will be effected by proposed agency action, and who makes an appearance as a party." (emphasis added) Moreover, under the provisions of Subsection 120.54(4)(a), Florida Statutes, the person substantially effected may seek an administrative determination of the invalidity of any proposed rule, using as a grounds the fact that the proposed rule is an invalid exercise of delegated legislative authority. See Sarasota County Anglers Club, Inc. v. Burns, 193 So.2d 691 (1 Fla.App. 1967), Sarasota County Anglers Club, Inc. v. Kirk, 200 So.2d 178 (Fla. 1967) and City of Key West v. Askew, 324 So.2d 655 (1 Fla.App. 1975) On the merits of the Petition filed with the Division of Administrative Hearings, the Petitioner is correct when he asserts that the procedural provisions of Section 120.54, Florida Statutes, have not been complied with and the Respondent has agreed with this contention by written stipulation. This noncompliance with the provisions of Section 120.54, Florida Statutes, pertains to the procedural requirements for summarization, a statement of authority, a statement of the estimate of the economic impact, notice and publication. The Petitioner is incorrect when he asserts that the Respondent has no legal authority for the promulgation of a rule pertaining to the regulation of the use of vehicles in the St. Johns Marsh which is held in fee simple by the Respondent. Respondent does have authority to regulate and that authority is found in Subsections 373.016 and 373.086, Florida Statutes. These provisions allow for the purchase of the land and for the protection of the environment and efficient use of water resources in the area of their concern. Therefore, the prohibition of vehicular traffic in the St. Johns Marsh is not per se an invalid exercise of legislative authority. Thus, the inquiry becomes one of whether or not the action taken of March 15, 1978, and the amendment to that action which occurred on November 15, 1978, is a rule and subject to the procedural requirements of Section 120.54, Florida Statutes. In Subsection 120.52(14) a rule is defined as: "(14) 'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organi- zation, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an exist- ing rule. The term also includes the amendment or repeal of a rule. The term does not include: Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum. Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action. The preparation or modification of: Agency budgets. Contractual provisions reached as a result of collective bargaining. Agricultural marketing orders under chapter 573 or chapter 601. Curricula by an educational unit." The action taken by motion on March 15, 1978, and the November 15, 1978, amendment found in Motion No. 1 on that day's agenda should be analyzed in view of the definition of a rule stated in Subsection 120.52(14), Florida Statutes. When this is done, the inescapable conclusion that must be reached is that the original action of March 15, 1978, and the amendment of November 15, 1978, in which additional categories of vehicles were banned, were agency statements of general applicability that implemented and interpreted or described law or policy of that agency. Those actions of the two dates mentioned have broad application and have present and prospective effect. They, therefore, are not properly characterized as a rule which the agency Intends to adopt. They constitute a rule which exists and the passage and implementation of this rule is an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes, because the rule was not passed in accordance with the procedures required by Section 120.54, Florida Statutes. (Although the Petitioner has not plead his case under the provisions of Section 120.56, Florida Statutes, the issues are duly joined and there is no prejudice to the parties in considering the case as a Section 120.56, Florida Statutes, dispute. The standing which the Petitioner had to assert his claim under Section 120.54, Florida Statutes, would exist in a Section 120.56, Florida Statutes, hearing because he is substantially affected by the stated rule for the same reasons as set forth in the discussion of his Petition under Section 120.54, Florida Statutes.) The Respondent has tried to argue that the action it has taken on March 15, 1978, and extended up to and including the amendment of November 15, 1978, found in agenda motion No. 1 is an order of the agency not subject to attack under the provisions of Section 120.54, Florida Statutes. It urges that the actions taken under various hearings before the Governing Board of the St. Johns River Water Management District were preliminary to the passage of a proposed rule and that the authorization for the publication and advertisement of the rule did not take place until November 15, 1978, as Motion No. 2 on the agenda which has been spoken of. Had the Respondent requested studies by its staff on the feasibility of prohibiting certain classes of vehicles from being allowed to operate in the St. Johns Marsh as opposed to an absolute prohibition of certain classes of vehicles, then the Respondent's argument would be persuasive. In fact, the Respondent has implemented policy which prohibits specific members of the general public from utilizing the disputed area and has done so without affording an opportunity to those individual citizens to be heard on the question of the passage of such a rule and without following the mandated requirements found in Section 120.54, Florida Statutes. Respondent also argues that a "draw out" hearing was given in accordance with the requirements of Subsection 120.54(16), Florida Statutes, arid Section 120.57, Florida Statutes. Therefore, any challenge to the action taken in that proceeding before the Respondent may not be made by a collateral attack under the provisions of Section 120.54, Florida Statutes, that alleges that the action is a rule. This Order does not undertake to consider the propriety of the action taken in the Section 120.57, Florida Statutes, hearing held before the Governing Board of the St. Johns River Water Management District. That action is viewed as an effort on the part of the Petitioner to protect himself against the short- term implications of the prohibition against the utilization of his half-track vehicle in the St. Johns Marsh, That in no way prohibits the Petitioner from filing an Independent attack against the rule itself under the provisions of either Section 120.54, Florida Statutes, or Section 120.56, Florida Statutes. Once the Respondent has entered its order in the Section 120.57, Florida Statutes, hearing, which was the "draw out" hearing requested under Section 120.54(16), Florida Statutes, the Petitioner may appeal or not at his discretion. The underlying rule of March 15, 1978, as amended November 15, 1978, because of its prospective application is a proper subject of a rule challenge on the ground that its passage did not comply with the procedural requirements of Section 120.54, Florida Statutes. The Division of Administrative Hearings has exclusive jurisdiction over rule challenges filed pursuant to Section 120.54, Florida Statutes, and/or Section 120.56, Florida Statutes, and this remedy does not constitute a collateral scrutiny of agency action by a Hearing Officer within the meaning of the case of State Dept. of Health, Etc. v. Barr, 359 So.2d 503 (1 Fla.App. 1978). In the Barr case the Court indicated that the Respondents in the appeal could not on the one hand request a declaratory statement from an agency which was subject to appeal, and then make a collateral attack on that declaratory statement on the basis that the declaratory statement was an improperly promulgated rule. The Barr case facts may be distinguished from the facts sub judice, in that this Petitioner sought to protect himself via the Section 120.57, Florida Statutes, hearing, against the short-term acts of the Respondent which were prohibiting the utilization of the vehicles at the moment, and concurrently challenged the underlying basis of the actions which the agency was taking by filing his rules case under the provisions of Section 120.54, Florida Statutes. By pursuing these remedies, the Petitioner is not subjecting the Respondent to harassment through duplicitous litigation.
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue The issue is whether the plan amendment adopted by Ordinance No. 2004-026 on August 24, 2004, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan was adopted on August 31, 1989, and became effective on September 11, 1989. In 2000, the County amended its Plan by establishing a Managed Growth Tier System, which includes five classifications of land (Urban/ Suburban, Exurban, Rural, Agricultural Reserve, and Glades), along with three classes of service areas within the County to guide delivery of public services: Urban Area, Limited Urban Service Area, and Rural Service Area (RSA). It also assigned different levels of service for potable water and wastewater for each service area. At the same time, the County amended its FLUE to add a new Policy 3.4-c, which provides as follows: The County shall neither provide nor subsidize the provision of centralized potable water or sanitary sewer in the Rural Service Area, unless urban levels of service are required to correct an existing problem, prevent a projected public health hazard or prevent significant environmental degradation, or the areas meet the criteria described in Future Land Use Policy 3.4.b. The County intended Policy 3.4-c to implement the Managed Growth Tier System by limiting the provision of centralized utility service in the Rural Tier. The effect of this new policy was to prohibit the County from providing urban levels of utility services outside its existing service area boundaries in the RSA unless necessary to correct or prevent a public health hazard, existing problem related to urban levels of service, or environmental degradation. In February or March 2003, the County Planning Department began assessing ways to address the problem of overlapping utility service in the RSA. Shortly thereafter, the Florida Legislature passed the Scripps Law (Chapter 2003- 420, Laws of Florida), which took effect on November 3, 2003. Both of these factors led to the development of the Amendments in issue here. In late 2003, the County staff began the actual development of new amendments to its Plan (also known as Round 04-1 Plan Amendments) that would allow the County to provide services into the RSA. More specifically, the staff proposed to add a new FLUE Policy 3.1, which (as finally drafted) read as follows: The Palm Beach County Water Utilities Department shall provide potable water, reclaimed water and wastewater service to all unincorporated areas of the County except those unincorporated areas where the Palm Beach County Board of County Commissioners has entered or enters into a written agreement that provides utility service area rights to a public or privately owned potable water, reclaimed water, and/or wastewater utility, or in areas where the Palm Beach County Water Utilities Department is specifically excluded from providing utility service by Florida law. Palm Beach County Water Utilities Department shall continue to provide utility services to incorporated areas where service is already being provided by the County, or as provided for under utility service area agreements or as allowed for by law. In general terms, the new policy designated the County as a service provider of water and wastewater services for unincorporated areas of the County where the County has, or will enter into, interlocal agreements except where excluded by interlocal agreement or by law. The effect of the amendment is to allow the County to extend potable water and wastewater services to unincorporated areas of the County, particularly "the western communities," where it currently does not do so. The County staff also proposed to delete FLUE Policy 3.4-c, described in Finding of Fact 1, which was previously adopted in 2000. Finally, the County staff proposed to delete another policy adopted in 2000, CAI Policy 1.5-c, which read as follows: Urban levels of service shall not be provided by any governmental entity (outside of its existing service area boundary) within the Rural Service Area of the unincorporated area, except where: The Rural Service Area receives urban services pursuant to Objective 1.1 in the Element, or An urban level of service is required to correct a demonstrated public health, or Development on a parcel in the Rural Tier that is adjacent to water and/or sewer lines which existed prior to the adoption of the Comprehensive Plan in 1989 shall be allowed to connect to those existing lines and shall be allowed to connect to public sewer and/or water when required by the Public Health Department. This policy shall not allow the extension of new water and/or sewer lines into the Rural Tier to serve development without first amending the Service Area Map and the Future Land Use Atlas to reflect a change in the service area boundary. By deleting these two provisions, the County would no longer be prevented from providing utility services in the RSA unless certain conditions were met. (The staff also proposed to delete FLUE Policy 1.4-k, but that deletion is not in issue in these proceedings.) On January 14, 2004, the County initiated the adoption process by transmitting Notice of the Amendments to the Intergovernmental Plan and Amendment Review Committee (IPARC), which is made up of all the local governments and special districts in the County, including the City, Wellington, SID, and ITID. IPARC acts as a clearinghouse for all comprehensive plan amendments prepared by the IPARC members. IPARC in turn distributed the notice to its members, including the City, Wellington, SID, and ITID. After a public hearing on March 12, 2004, before the County's Local Planning Agency (known as the Land Use Advisory Board), by an 11-0 vote it recommended denial of Round 04-1 Plan Amendments and recommended that the County meet with the affected parties to resolve problems voiced by various attendees, including the City, SID, and ITID. On April 2, 2004, the County held a meeting with interested persons in an attempt to resolve objections to the Amendments before they were presented to the Board of County Commissioners. The objections were not resolved. On April 5, 2004, by a 5-0 vote, the Board of County Commissioners approved transmittal of the Amendments to the Department, other commenting agencies, and each unit of local government or governmental agency that had filed a written request for copies of the Amendments. The Amendments were transmitted to the Department on April 15, 2004. Between January 2004 and August 2004, the County held at least 37 meetings with utilities and other interested persons to discuss the Amendments, including three meetings with the City, at least five meetings with SID, at least ten meetings with ITID, and at least two meetings with Wellington. In addition, the County invited all utilities to attend meetings on April 28, 2004, at three locations to discuss utility service area boundaries. These meetings were attended by approximately 25 different utilities, including the City, SID, ITID, and Wellington. As a result of these meetings, the County prepared and distributed utility service area maps in an attempt to demonstrate the necessity for better coordination between utilities. On May 21, 2004, the Treasure Coast Regional Planning Council notified the County of no objection or comments regarding the Amendments. On June 19, 2004, the Department issued its Objections, Recommendations, and Comments Report, which did not identify any objections, recommendations, or comments with respect to the Amendments. On June 22, 2004, the South Florida Water Management District (District) notified the Department of no objections or comments regarding the Amendments. After a public meeting on August 24, 2004, by a 5-1 vote, the Board of County Commissioners adopted Ordinance No. 2004-26 enacting the Amendments, and they were transmitted to the Department on September 14, 2004. On October 29, 2004, the Department issued its Notice determining the Amendments were in compliance. On November 19, 2004, Petitioners (except Wellington) filed Petitions challenging the Amendments. Wellington filed its Amended Petition on December 16, 2004. The Parties and Their Standing The City is a municipality and adjoining local government of the County, operating its own water and wastewater utility system. The City owns the largest water treatment plant in the County and has an extensive wastewater treatment system, including partial ownership in the East Central Regional Water Reclamation Facilty, the largest wastewater plant in the County. It owns property and currently provides bulk service to entities located within the unincorporated area of the County, including ITID. It submitted written objections to the County during the adoption process and has standing to bring this action. SID is an independent special district created by special act of the legislature in 1970. It lies within the unincorporated area of the County and has the authority to provide water and wastewater service within and without its boundaries. At present, SID provides potable water service within and without its boundaries, but only provides wastewater service within its boundaries. SID owns property in the unincorporated area and submitted objections to the County during the adoption process. These facts establish that SID has standing as an affected person to challenge the Amendments. Callery-Judge is a limited partnership, which owns and operates citrus groves on property located within the unincorporated area. It also submitted objections to the County during the adoption process. Callery-Judge is an affected person and has standing to participate in this matter. Mr. Roberts owns property in the unincorporated area, including Callery-Judge, of which he is the General Manager. He submitted objections to the Amendments during the adoption process and is an affected person. ITID is an independent special district created by special act of the legislature in 1957. (In 2002, the Legislature amended and reenacted ITID's enabling legislation.) In 1998, ITID began operating a water and wastewater system within the unincorporated area. ITID does not generate its own potable water or treat its wastewater. It obtains bulk water from the City and SID and bulk wastewater service from the City. ITID owns property within the unincorporated area and submitted objections to the amendment during the adoption process. As such, it is an affected person within the meaning of the law. Wellington is a municipality and adjoining local government of the County and operates a utility providing water and wastewater service within its boundaries and outside to several developments. It also submitted objections to the County during the adoption of the Amendments. Because Wellington does not own property or operate a business within the unincorporated area of the County, in order to demonstrate standing, it must show that the Amendments will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within its jurisdiction. See § 163.3184(1)(a), Fla. Stat. Wellington bases its standing on alleged increases in traffic and the use of parks within its boundaries, which purportedly will occur as a result of the Amendments. While Wellington could not give a precise amount (in terms of dollars) of those impacts, the testimony of its Director of Community Services established that the availability of centralized water and sewer services in the areas adjoining Wellington will arguably lead to higher density development patterns, which in turn will lead to an increased need for publicly funded infrastructure. As such, Wellington is an affected person and has standing to challenge the Amendments. The Department is the state planning agency charged with responsibility for reviewing and approving comprehensive plans and amendments. The County is a political subdivision of the State of Florida and is responsible for adopting a comprehensive plan and amendments thereto, including the Amendments. The County Water Utilities Department currently serves approximately 425,000 people, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. The Current Plan As noted above, the County initially adopted its current Plan on August 31, 1989, by Ordinance No. 89-17. The Plan has been amended numerous times since its initial adoption. The original 1989 Plan and all subsequent amendments up to the ones at issue in this proceeding have been found in compliance by the Department. The current Plan is made up of sixteen elements, nine of which are mandatory, and seven of which are optional. The parties have indicated that the Utilities Element, CIE, Intergovernmental Coordination Element, and FLUE are relevant to this controversy; therefore, a brief description of their content and purpose is necessary. The purpose of a Utilities Element is to provide necessary public facilities and services correlated to future land uses. See § 163.3177(6)(c), Fla. Stat., and Fla. Admin. Code R. 9J-5.011. The existing Utilities Element contains potable water, wastewater, drainage, and solid waste sub- elements. The aquifer recharge sub-element is found in the Coastal Management Element. The Utilities Element and the aquifer recharge sub-element of the Coastal Management Element constitute the "general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element" referenced in Section 163.3177(6)(c), Florida Statutes, and Florida Administrative Code Rule 9J-5.011. The existing Utilities Element has been found in compliance with applicable provisions of statute and rule. Section 163.3177(3)(c), Florida Statutes, and Florida Administrative Code Rule 9J-5.016 contain requirements for the capital improvements element of a comprehensive plan. The existing CIE complies with these requirements. Objective 1.7 and Policy 1.7-a describe how the County implements the CIE. Pursuant to these requirements, the CIE is updated annually at the same time as the County budget. Table 10 of the CIE reflects the water utilities revenue and expenditures for the then current budget year and five years into the future. Table 10 was not updated when the Amendments were adopted because any future changes to the County's capital expenditures resulting from the Amendments would be made through the annual budget update process. The Intergovernmental Coordination Element contains provisions encouraging coordination between the County and adjoining municipalities and special districts in order to more efficiently meet the needs of the County residents. (There are more than 25 municipalities and special districts within the County.) This Element has previously been found in compliance with Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015. One of the coordination tools identified in the Intergovernmental Coordination Element is the IPARC, described in Finding of Fact 5, which acts as a clearinghouse for all comprehensive plan amendments prepared by the IPARC members. IPARC distributes notice of plan amendments to all members, who then have the opportunity to provide comments regarding the proposed action. Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.006 contain requirements for the future land use element of a comprehensive plan, including the future land use map (FLUM). According to the Plan, the FLUE "is the nucleus of the . . . Plan" and "defines the components of the community and the interrelationship among them, integrating the complex relationships between land use and all of the other elements of the Plan that address the physical, social, and economic needs of the people who live, work, and visit Palm Beach County." Both the existing FLUE and the current FLUM have been found in compliance. The Amendments do not alter the FLUM, but they do change FLUE Policy 3.1-c and delete FLUE Policy 3.4-c. As noted above, in 2000 the County adopted a Managed Growth Tier System, which is a planning tool intended to manage growth and protect varying lifestyles in the County. The Managed Growth Tier System consists of five categories or tiers, which are described in Objective 1.1 of the Plan. Objectives 1.2 through 1.6 govern development within the five tiers. FLUE Table 2.1-1 establishes permitted densities for each of the tiers. The Amendments do not modify any Goals, Objectives, or Policies governing the five tiers, with the exception of FLUE Policy 1.4-k. However, Petitioners have not challenged the proposed deletion of FLUE Policy 1.4-k and it is not one of the Amendments at issue in this proceeding. Additionally, the Amendments will not alter the permitted densities for any of the tiers. Concurrency Management refers to the system adopted in the CIE to ensure that infrastructure, which meets or exceeds the established minimum level of service standards, is in place concurrent with development approval. According to FLUE Policy 3.5-a, development orders and permits shall not be approved unless services and facilities meet or exceed the minimum levels of service. FLUE Objective 3.1 establishes three graduated service areas in Palm Beach County -- the Urban, Limited Urban Service, and Rural Service Areas. Each service area corresponds to one or more of the five tiers. The minimum levels of service required for each area are listed in FLUE Table 3.1-1. According to FLUE Table 3.1-1, FLUE Policy 3.5-a, and Utilities Element Policies 1.2-g and 1.3-e, the minimum levels of service in the RSA for potable water and sewage are on-site wells and septic tanks, respectively. With the exception of water and sewer, the other minimum levels of service are the same for all three service areas. The Amendments do not alter the minimum levels of service for any service area. Through its planning expert, Wellington contended that the Amendments will cause a de facto change to the minimum levels of service. However, the extension of centralized water and sewer service into the RSA does not change the established minimum levels of service. Petitioners also argue that the Amendments will increase minimum levels of service in the RSA for traffic and parks. However, the minimum levels established in FLUE Table 3.1-1 for all services and facilities, other than potable water and sanitary service, are County-wide standards. Reasons for Adopting the Plan Amendments Policy 3.4-c did not have its intended effect because it prevented the County from providing service to the Rural Tier. After 2000, repeated efforts by the County to negotiate the service areas of the numerous entities operating utility services in the unincorporated area were unsuccessful. Indeed, "there was not a willingness of many utility providers to agree on anything." This created a lack of coordination and planning as to the provision of services in the Rural Tier. The City, SID, and ITID each have utility service areas which overlap the service area of other utility providers. In particular, portions of the Acreage, a community located in the central-western unincorporated area of the County, fall under the claimed utility jurisdiction of SID, ITID, Cypress Grove Community Development District, and the Village of Royal Palm Beach (Royal Palm Beach). The City is also rapidly expanding service in the unincorporated area by entering into bulk water service agreements with a number of utilities located in the Rural Tier, including Royal Palm Beach, Seacoast Utilities Authority, and ITID. The City intends further expansion of bulk service in the Rural Tier, so as to increase utility revenues. It views the Amendments as affecting its substantial interests by potentially limiting these revenues. Royal Palm Beach claims an exclusive utility service area which overlaps the utility service areas claimed by SID and ITID. Royal Palm Beach is located entirely within the legislative boundaries of ITID and claims all of ITID as its service area. The Amendments support the authority granted to the County by the Scripps Law. That law gives the County the exclusive right to provide water and wastewater service to the Scripps Biomedical Research Facility and to construct utility facilities within and without the boundaries of the Scripps project. The enactment of the Scripps Law reinforced the need for the Amendments, as the Scripps Biomedical Research Facility will be located in the unincorporated area. Existing FLUE Policy 3.4-c is arguably inconsistent with the Scripps Law because it prevents the County from providing utility service in the RSA. Since the Scripps Law supersedes all other contrary provisions of Florida Law, it logically follows that FLUE Policy 3.4-c should be repealed. The Amendments are also supported by the provisions of the County Code of Ordinances Sections 27-16 through 27-22, which codify County ordinances that were adopted in the 1970s and deal with utility service. These ordinances authorize the County to designate a Control Area in the unincorporated area and to require County approval of any water and wastewater facilities constructed in these areas. In summary, the County adopted the Amendments to avoid service area disputes between utility providers such as those described above, to prevent wasteful and duplicative utility services, to implement the Legislature’s mandate regarding the Scripps Biotechnology Park, to ensure a sufficient water supply to meet the reasonable development needs of the unincorporated area, and to enforce the provisions of the County Code of Ordinances. Petitioners' Objections Data and analysis Petitioners contend that the only data and analyses submitted by the County to support the Amendments are contained in a rather brief County Staff Report (Petitioners' Exhibit 5), and that no other documentation was actually forwarded to the Department. They further contend that the Amendments must be based on demographic, economic, and fiscal studies, and that none were utilized by the County. Because of these omissions, they argue that the Amendments violate relevant statute and rule provisions and are not in compliance. Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2) require that plan amendments be based on relevant and appropriate data and analyses applicable to each element. In determining whether a plan amendment complies with this requirement, the Department reviews each amendment on a case-by-case basis. In doing so, it does not require the same amount or type of data for all plan amendments. See, e.g., Zemel et al. v. Lee County et al., DOAH Case No. 90-7793 (DOAH Dec. 16, 1992, DCA June 22, 1993)(projections of aquifer thickness and transmissivity do not require the same precision as calculating volume-to- capacity ratios for levels of service on road segments); 1000 Friends of Florida et al. v. Department of Community Affairs et al., DOAH Case No. 04-4492GM, 2005 WL 995004 at *15 (DOAH April 28, 2005, DCA May 9, 2005)("a numeric analysis is not necessary to justify industrial uses since they may be goal- based and aspirational"). For example, if amendments merely represent a policy or directional change and depend on future activities and assessments (i.e., further analyses and decision-making by the local government), the Department does not require the degree of data and analyses that other amendments require. (These amendments have sometimes been referred to as aspirational amendments. See Collier County v. City of Naples et al., DOAH Case No. 04-1048GM, 2004 WL 1909265 at *5 and *6 (DOAH Aug. 24, 2004, DCA Dec. 28, 2004)). Conversely, amendments which are mandatory in nature, that is, amendments which are required to be implemented by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5, require more data and analyses. Thus, under Department interpretations of the relevant statutory and rule provisions, if an amendment does not have an immediate impact on the provision of services in the unincorporated area, is policy- based, does not require any capital improvement expenditures at the time the amendment is adopted, and simply represents a directional change in the County's long-term water utility planning, it is similar to an aspirational amendment and can be based on less data and analyses than might otherwise be required. Here, the County’s actual policy regarding utility service areas will depend on future activities and assessments. The Amendments do not require the County to take any immediate action. The Amendments do not mandate that existing utility customers in the RSA switch to the County. The Amendments do not authorize any new development in the Rural Tier, and any future development would have to be approved by the Board of County Commissioners through the normal development approval process. Therefore, the Amendments are akin to an aspirational amendment and do not require the degree of data and analyses that are required for other amendments. The County Staff Report identifies, albeit in brief fashion, data and analyses in support of the Amendments. It provides, among other things, that the Amendments are necessary because "[t]he lack of County participation as a service provider has created a void in effective long-term utility planning, resulting in duplicative service lines, inefficient services in the RSA, overlapping utility jurisdictions and, absence of some written agreements defining service areas." The Staff Report further identifies the County’s authority to provide service and the necessity for the Amendments to allow the County to provide service to the Biotechnology Research Park in northwest Palm Beach County. In addition, a number of documents presented at hearing provide data and analyses in support of the Amendments. In considering these documents, the undersigned notes that all data or analysis available and existing at the time of the adoption of the plan amendment may be relied upon to support an amendment in a de novo proceeding and may be raised or discussed for the first time at the administrative hearing. Zemel, supra; McSherry et al. v. Alachua County et al., DOAH Case No. 02-2676GM, 2004 WL 2368828 at *54 (DOAH Oct. 18, 2004, DCA May 2, 2005); Melzer et al. v. Martin County et al., DOAH Case Nos. 02-1014GM and 02-1015GM, 2003 WL 2150756 at *33 (DOAH July 1, 2003, DCA Sept. 26, 2003 and Oct. 24, 2003). The District's Districtwide Water Supply Assessment identifies future potable water demands for various utilities in the County. The District's Lower East Coast Regional Water Supply Plan describes the available raw water supply to meet future demands in the County. The District's CUP-CERP (Consumptive Use Permit-Comprehensive Everglades Restoration Plan) Guiding Principles lists interim water use permitting guidelines, which indicate utilities may experience problems obtaining permitted allocations beyond what is needed to meet their 2005 demands. District Water Use Permit 50- 00135-W is the County's 20-year water use permit, which confirms that the County is the only utility in the unincorporated area with a guaranteed, long-term potable water allocation. The information contained in these documents confirms the County's ability to act as the default water utility provider in the unincorporated area. The County Linking Land Use and Water Supply Plan, Water and Wastewater Master Plan, Reclaimed Water Master Plan, Raw Water Master Plan, 20-Year Wastewater Collection System Master Plan, and Projected Yearly Capital Expenditures each provide data and analysis, which support the County's ability to serve as the default utility provider in the unincorporated area. As a water management district study, the District's documents are professionally accepted sources, which constitute appropriate data and analyses under Florida Administrative Code Rule 9J-5.005(2)(c). Similarly, the County's reports constitute existing technical studies, which are also appropriate data and analysis. Petitioners contend that the County was required to collect new data and prepare a comparative analysis of the County Water Utilities Department and other utility providers in the unincorporated area. However, according to Florida Administrative Code Rule 9J-5.005(2)(b), local governments are not required to collect new data in support of a plan amendment. Further, neither Florida Administrative Code Rule 9J-5.005(2) nor Section 163.3177, Florida Statutes, requires a comparative analysis. It is at least fairly debatable that the Amendments are supported by relevant and adequate data and analyses. Intergovernmental Coordination Petitioners also contend that in order to comply with the Intergovernmental Coordination Element of the Plan, the County must inventory and analyze the facilities and services provided by other utility providers in the areas affected by the Amendments. In other words, they contend that without data and analysis relative to other providers, the coordination function is incapable of being done and is meaningless and renders the Amendments inconsistent with Florida Administrative Code Rule 9J-5.015. (That rule sets forth in detail the data requirements upon which the element in a local government's comprehensive plan must be based, and the goal statements, specific objectives, and policies which must be found in the element.) Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015 set forth requirements for the intergovernmental coordination element of a comprehensive plan. The existing Intergovernmental Coordination Element has been found to be in compliance. The Amendments do not modify this element. Although not required for purposes of compliance, the County followed intergovernmental coordination procedures in the comprehensive plan when adopting the Amendments. The Amendments were submitted to IPARC for review by member governments prior to their consideration by the Board of County Commissioners. The County met with other utility providers and interested persons no less than 37 times to discuss the Amendments. Further, Petitioners' own witnesses concede that their representatives attended multiple meetings with the County regarding the Amendments. Such efforts demonstrate that the County substantively complied with the Intergovernmental Coordination Element. Petitioners' contention that these meetings were not conducted in good faith has been rejected. Petitioners implicitly suggest that intergovernmental coordination means acquiescing to the position of an objector. If this were true, adjacent local governments would have veto power over the County's ability to enact plan amendments, a result not contemplated by the statute. The intergovernmental coordination requirements of Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015 do not require that local governments resolve all disputes regarding a comprehensive plan and its amendments to the satisfaction of all interested persons, but only that the local government take into consideration input from interested persons. See, e.g., Department of Community Affairs et al. v. Lee County et al., DOAH Case Nos. 89-1843GM and 90-7792GM, 1990 WL 749359 (DOAH Jan. 7, 1993, Admin. Comm. Feb. 10, 1994). The numerous meetings held by the County demonstrate adequate consideration of opposing views. It is at least fairly debatable that the County satisfied the intergovernmental coordination requirements of Section 163.3177(6)(h), Florida Statutes. Economic Feasibility/Comparative Analysis Petitioners argue that the Amendments fail to comply with Section 163.3177(2), Florida Statutes, which requires that "the comprehensive plan shall be economically feasible." Petitioners claim that in order to establish economic feasibility, the County first should have conducted a comparative economic analysis of the cost of utility service in the unincorporated area by various existing and hypothetical service providers. However, this construction of the statute is at odds with the Department's interpretation. The Department does not interpret the economic feasibility requirement of Section 163.3177(2), Florida Statutes, as requiring such a comparison. Instead, it construes the statute as only requiring that a plan amendment be realizable in financial terms, that is, that the local government has the financial ability to achieve what is specified in the amendment. See Resolution Trust Corp. v. Department of Community Affairs et al., DOAH Case No. 94- 5182GM, 1995 WL 1052797 *6 (DOAH April 19, 1995, Admin. Comm. Sept. 4, 1998)("Economic feasibility means plans should be realizable in financial terms."). Compare Southwest Fla. Water Mgmt. District et al. v. Charlotte County et al., 774 So. 2d 903, 916 (Fla. 2d DCA 2001), where the Court interpreted the use of the term "economically feasible" in a proposed Basis of Review provision as meaning "financially feasible or financially 'doable' . . . [and the] financial ability of a WUP applicant to institute reuse." The Department's interpretation of the statute was not shown to be unreasonable or clearly erroneous. The evidence shows that the Amendments are financially realizable. The County Water Utilities Department is one of the financially strongest utilities in the nation. It has the highest municipal bond rating (AAA) granted by the three major rating agencies. As of August 24, 2004, no other utility in the State of Florida had achieved an AAA rating from the three bond rating agencies, and the County Water Utilities Department is among only a handful of utilities nationwide to have achieved that status. Petitioners have acknowledged that the County is a very strong utility from a financial perspective. Given the County's strong financial state, it is qualified and able to serve as the default provider in the unincorporated area. In summary, it is fairly debatable that the Amendments are economically feasible as the term is used in Section 163.3177(2), Florida Statutes, because the County has the financial ability to extend utility service to the unincorporated area. Urban sprawl Wellington (but not the other Petitioners) essentially contends that the Amendments will promote urban sprawl because the County will now allow new urban services (water and wastewater) into undeveloped areas thereby resulting in urban development. Florida Administrative Code Rule 9J-5.006(5) contains standards discouraging the proliferation of urban sprawl. Existing provisions in the Plan, including the Managed Growth Tier System, prevent urban sprawl within the County. Florida Administrative Code Rule 9J-5.006(5)(k) provides in part that "if a local government has in place a comprehensive plan found in compliance, the Department shall not find that plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction." The Amendments do not affect existing growth management provisions in the Plan and thus will not exacerbate urban sprawl. Although not required, the amendment of FLUE Policy 1.4-k, which Petitioners did not challenge, will also have the effect of maintaining the status quo with respect to urban sprawl. At the same time, the Amendments do not directly or indirectly authorize new development and are only aspirational in nature. Any extension of water and sewer lines into the unincorporated area does not necessarily create urban sprawl because development is not automatically authorized by these activities. Even Wellington's planning expert concurred that urban sprawl is not caused by the provision of utility services, but by the Board of County Commissioners' approval of development orders. It is at least fairly debatable that the Amendments will not encourage urban sprawl in contravention of the Plan.2 Internal consistency Petitioners next contend that the Amendments fail to comply with Sections 163.3177(2), 163.3177(10)(a), and 163.3187(2), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(5), which require that all elements of a comprehensive plan be consistent with each other. In addressing this objection, only those inconsistencies expressly alleged in their Petitions and Amended Petition will be considered. See, e.g., Heartland Environmental Council v. Department of Community Affairs et al., DOAH Case No. 94- 2095GM, 1996 WL 1059751 at *19 (DOAH Oct. 15, 1996; DCA Nov. 25, 1996). Future Land Use Element Petitioners first contend that the Amendments are inconsistent with Goal 3, Objective 3.1, and Policies 3.1-a and 3.1-b of the FLUE. These provisions require that the County "define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner"; that the County establish graduated service areas "to distinguish the levels and types of services needed within a Tier, consistent with the characteristics of the Tier," which include "the need to provide cost effective services"; that the County establish Urban, Limited Urban Service, and Rural Service Areas based on several factors in Table 3.1.1, including "[t]he cost and feasibility of extending services"; and that the County review minimum levels of service "during preparation of the Evaluation and Appraisal Report [EAR] and the Comprehensive Plan as amended." The latter provision also requires that each service provider determine the maximum and available capacity of their facilities and services for this review. The first broad goal is implemented through the County's existing Managed Growth Tier System and is not affected by the identity of the utility provider. Also, the Amendments do not alter the Managed Growth Tier System, nor do they alter the existing minimum levels of service required for the RSA. Similarly, FLUE Objective 3.1 is not affected, as the Amendments only have the potential to change the utility provider in certain areas, and not the level of service provided within the RSA. Further, the Amendments do not change the existing service area boundaries and established service area definitions. As to Policy 3.1-a, the service areas have been established and found in compliance and the Amendments do not alter the service area designations or Table 3.1-1. Therefore, they are not inconsistent with Policy 3.1-a. Finally, Policy 3.1-b is not affected by the Amendments because the minimum levels of service are not altered and the Amendments are not the product of an EAR. Capital Improvements Element – Table 10 Table 10 of the CIE describes water and sewer revenues, operating revenues, federal/state grants, other revenues, bond/ loan proceeds, fund balances, total water and sewer revenues, water and sewer operating expenditures, water and sewer capital projects, annual surplus/deficit, and cumulative surplus/deficit for fiscal years 2004-2009. Petitioners contend that the Amendments are inconsistent with this provision because the Table has not been amended to reflect the expenditures that will be made by the County as a result of the Amendments. This Table is not affected because the Amendments do not require any changes to the County's capital expenditures. If changes do occur as a result of the County's planned extension of utility service into the unincorporated area, the capital improvements associated with extension of service will be addressed in subsequent annual updates of Table 10. Intergovernmental Coordination Element Petitioners contend that the Amendments are inconsistent with Goal 1 and Objective 1.1 of the Intergovernmental Coordination Element, which require the County to "provide a continuous coordination effort with all affected governmental entities" and to "utilize existing mechanisms to coordinate planning efforts with the plans of school boards, other units of local government providing services, adjacent municipalities, adjacent counties, the region, the State, and residents of Palm Beach County." Petitioners essentially claim that the Amendments were adopted and transmitted without coordination with other local governments, as required by the goal and policy. As explained above, the evidence shows that the Amendments were submitted to IPARC for review by each of the local governments and special districts located in the County, these entities were given ample opportunity to comment or object to the Amendments, and the County utilized existing mechanisms to coordinate planning efforts. Therefore, the Amendments are consistent with these portions of the Intergovernmental Coordination Element. Petitioners also contend that the Amendments conflict with Goal 4, Policy 4.1-a, and Policy 4.1-b of the Intergovernmental Coordination Element. The broad goal relates to coordination of "service provision to assure the most effective and efficient service delivery for the residents of Palm Beach County and its municipalities," while the two policies require that the County coordinate with special taxing districts and each municipality within the County during "the concurrency management and development review processes" and in defining the "ultimate boundaries of that entity's sewer and water service areas." The Amendments are consistent with the goal because their purpose is to create more effective and efficient service delivery by encouraging utility providers to enter into agreements which establish exclusive service areas and eliminate overlapping service areas. For similar reasons, the Amendments are consistent with Policy 4.1-a because the County coordinated with each of the special taxing districts through IPARC and numerous subsequent meetings relating to the Amendments. Finally, the main purpose of the Amendments is to prevent overlapping utility service areas and to encourage utility providers to enter into agreements defining service areas. Therefore, they are not inconsistent with Policy 4.1- b. Treasure Coast Regional Planning Council Plan Petitioners next allege that the Amendments are inconsistent with Goal 8.1, Regional Strategy 8.1.1, and Regional Policies 8.1.1.3 and 8.1.1.4 of the Treasure Coast Regional Planning Council's Regional Policy Plan (Regional Policy Plan). In order for a plan amendment to be consistent with a regional policy plan, Section 163.3177(10)(a), Florida Statutes, requires that plan amendments be consistent with the regional plan "as a whole," and that no specific goal or policy be "applied in isolation from the other goals and policies in the plans." Because the Petitions and Amended Petition do not allege that the Amendments are inconsistent with the Regional Policy Plan as a whole, their challenge must necessarily fail. See, e.g., 1000 Friends of Florida, Inc., supra at *38. Even if a provision in the Regional Policy Plan could be viewed in isolation, the Amendments are consistent with Regional Goal Regional Goal 8.1, which requires "public facilities which provide a high quality of life." Nothing in the Amendments would impair the provision of a high quality of life. One of the purposes of the Amendment is to more efficiently provide utility service by defining service areas and improving the provision of services. Regional Strategy 8.1.1 relates to the provision of "levels of public service necessary to achieve a high quality of life cost-effectively." The Amendments are not inconsistent with this strategy, as they are designed to help the County implement the existing objectives and policies relating to this strategy. The purpose of Regional Policy 8.1.1.3 is to "encourage patterns of development which minimize the public cost of providing service, maximize use of existing service systems and facilities and take into full consideration environmental/ physical limitations." As stated above, one purpose of the Amendments is to provide more efficient and cost-effective utility service by encouraging providers to enter into agreements that prevent overlapping service areas and avoid duplication of services. Finally, the purpose of Regional Policy 8.1.1.4 is to "develop local Capital Improvement Programs which maximize development of existing systems before allocating funds to support new public facilities in undeveloped areas." Because the Amendments do not alter the County's Capital Improvement Programs, they do not implicate this policy. State Comprehensive Plan Petitioners further allege that the Amendments are inconsistent with two goals in the state comprehensive plan, which are codified in Section 187.201, Florida Statutes. Like regional policy plans, Section 163.3177(10)(a), Florida Statutes, provides that for purposes of determining consistency, the state plan is to be construed as a whole, with no specific goal or policy applied in isolation from the other goals and policies. If a plan appears to violate a provision of the state plan, a balanced consideration must be given to all other provisions of both the state and local plan to determine whether a local comprehensive plan is consistent with the state plan. Petitioners have not alleged that the Amendments are inconsistent with the state comprehensive plan as a whole. Therefore, their challenge to the Amendments must necessarily fail. See 1000 Friends of Florida, Inc., supra; Heartland Environmental Council, supra. Assuming that a provision within the state comprehensive plan can be viewed alone, Section 187.201(17)(a), Florida Statutes, provides that "Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner." Petitioners contend that because the Amendments fail to protect the public facilities that already exist in the unincorporated area of the County, the Amendments conflict with this goal. The Amendments are not inconsistent with this goal because their purpose is to implement the Plan provisions in a timely, orderly, and efficient manner. Further, the Amendments are consistent with the specific provisions of Section 187.201(17)(b), Florida Statutes. Petitioners also allege that the Amendments contradict the requirements of Section 187.201(20)(a), Florida Statutes, which deals with cooperation between levels of government, elimination of needless duplication, and promotion of cooperation. Again, the purpose of the Amendments is to eliminate duplication and promote cooperation between entities by encouraging utility providers to enter into interlocal agreements with the County that define exclusive service areas and prevent duplication of services. Further, the Amendments are consistent with the specific provisions of Section 187.201(20)(b), Florida Statutes. Other Objections Finally, any other contentions raised in the Petitions and Amended Petition not specifically addressed herein have been considered and found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Amendments adopted by Ordinance No. 2004-026 on August 24, 2004, are in compliance. DONE AND ENTERED this 18th day of July, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2005.
Findings Of Fact Jerry Carlton purchased Lots 10, 11 and 12 in Block 174, Hollywood Central Beach, in 1976. This property is located between State Road A1A and the Intercoastal Waterway (ICW) The total property is 120 feet along State Road A1A and the ICW and is 80 feet deep with only 30 feet of this dimension on an upland area. A concrete bulkhead runs parallel to State Road A1A and the ICW and is some 30 feet west of the right-of-way of State Road A1A. Accordingly, the property purchased by Petitioner extends some 50 feet into the ICW west of this bulkhead. Petitioner proposes to construct a building 42 feet by 40 feet with the 40-foot side parallel to the ICW and the 42-foot side extending westward from the existing concrete bulkhead. The proposed structure will be erected on pilings extending eight feet above mean high water and will contain three floors approximately ten feet apart, with the ground floor used as a store and the upper two floors as residence by Petitioner. Petitioner proposes to moor boats under this structure. When completed the structure would be near the edge of the ICW channel in water ten feet deep. Property to the south of Petitioner has been bulkheaded and filled to the lot line, which extends 80 feet west of State Road A1A as does Petitioner's property. This bulkheading and filling was done several years ago, long before DER was established and given powers to regulate dredging and filling. Petitioner's upland property comprises 3600 square feet (120 feet by 30 feet) on which he proposes to retain the water run-off from the roof of the proposed building and the impervious areas created in the upland area by parking spaces. His plan presently provides for only two parking spaces, although it was acknowledged that city ordinances prescribe additional off-street parking for commercial establishments. No evidence was submitted on climatological data from which the conclusion can be drawn that all rainfall will be retained on the property and none discharged into the adjacent state waters. Petitioner proposes to retain waste products in a 1500- to 2000-gallon holding tank which will be serviced on a contract basis by a septic tank company. The holding tank will be equipped with adequate alarms to keep the occupants apprised of the need to have the tank emptied. No overflow valves will be provided, and any excess waste would back up into toilets on the premises. A five-foot dock exists alongside the concrete bulkhead, and four houseboats have been moored at this dock for several years. As a result of the shading caused by these houseboats the submerged bottom at this site is devoid of plant life and is covered with a silty material. Areas north and south of Petitioner's property, not subject to similar shading, are generally covered with grasses and support a productive macrophyte community. Petitioner applied to the US Army, Corps of Engineers (CofE), for the permit he will also need to construct the proposed structure. By letter dated January 18, 1980, (Exhibit 1) the CofE advised Petitioner that the policy of the CofE was that "stilt houses" in the navigable waters of the United States are undesirable for many reasons and are generally considered contrary to the public interest. Accordingly, such applications are usually not approved. By letter of April 10, 1980 (Exhibit 9), Petitioner requested the CofE to keep the file open. In the letter of July 3, 1980 (Exhibit 17), the CofE advised Petitioner that the site had been inspected; that adverse comments had been received from South Florida Regional Planning Council and Environmental Protection Agency; and that they (CofE) agreed that the proposed structure, if permitted, would set a precedent for permitting other structures (not water-dependent) in the area resulting in proliferation of over-the-water structures with a definite potential for posing a hazard to navigation, polluting public waters, and degrading fish and wildlife values in the area. The CofE did not specifically deny the permit but advised Petitioner if he wished to pursue the project to so advise and they would initiate final action. By letter of July 28, 1980, (Exhibit 18), Petitioner argued to the CofE that he had given reasonable assurances in previous correspondence that the proposed project would result in no hazard to navigation, no pollution of public waters and no degradation of fish and wildlife values in the area. No credible evidence was presented by Petitioner at this hearing that the proposed project would not present a potential hazard to navigation or a potential source of pollution of the waters of the state. With respect to the degradation of fish and wildlife values in the area, so long as the houseboats remain, the site will be unproductive. However, these houseboats are floating and not fixed. If removed from the site the area would become productive. On the other hand if the proposed structure is erected the shadow cast upon the water bottom at this site will be permanent, as will be the non-productivity of this site. Petitioner was advised by Respondent on January 10, 1980 (Exhibit 7) that the application was incomplete in not having received the approval of the Department of Natural Resources for the use of the state's interest in the sovereignty lands involved. Petitioner did not heed this advice until March 27, 1981, when Petitioner submitted a letter (Exhibit 20) to the Department of Natural Resources. This was subsequent to Respondent's notice of intent to deny the application dated March 13, 1981 (Exhibit 19).
The Issue The issue for determination in this case is whether proposed rules 62-40.410(3) and 62-40.474, in whole or in part, are invalid exercises of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes (2005).1
Findings Of Fact The Parties AFCD is a non-profit association representing 52 companies, including land developers, property owners, and other professionals involved in the planning, design, licensing, construction, and marketing of master-planned communities with multiple land uses, including residential uses, throughout the State of Florida. AFCD was established for the purpose of advancing the commercial and residential land development projects of its members, including informing state government policy makers and regulators about current issues affecting the community development industry. FHBA is a trade association working to promote and protect Florida’s residential construction industry. FHBA’s activities on behalf of its members include monitoring public policy and working with state agencies on environmental and land use regulations affecting the residential construction industry. The Environmental Groups are not-for-profit corporations whose principle activities include advocacy for the protection of Florida's fish and wildlife. They have thousands of members who live near and use Florida waters for recreational, educational and other purposes. SFWMD and SJRWMD are regional agencies that are authorized by statute to make water reservations within their respective jurisdictions. Any rule they adopt to create a water reservation will be subject to review by DEP to determine whether it is consistent with the proposed rule. The Proposed Rules On December 20, 2002, DEP published a Notice of Proposed Rulemaking in the F.A.W. for various provisions of the WRIR. Notices of changes were also published in the F.A.W. on February 21, 2003, August 15, 2003, and February 27, 2004. The version of the rules at issue in this case was published in the August 15, 2003, issue of the F.A.W. DEP held nine rule development workshops around the State and one public rule adoption hearing for the proposed rules. DEP solicited comments from the public and stakeholders, including local governments, regional water supply authorities, water utility organizations and water management districts throughout the rulemaking process. Proposed rule 62-40.474 provides as follows: The governing board or the department, by rule, may reserve water from use by permit applicants, pursuant to section 373.223(4), F.S., in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety. Such reservations shall be subject to periodic review at least every five years, and revised if necessary in light of changed conditions. However, all presently existing legal uses of water shall be protected so long as such use is not contrary to the public interest. Reservations may be used for the protection of fish and wildlife to: Aid in a recovery or prevention strategy for a water resource with an established minimum flow or level; Aid in the restoration of natural systems which provide fish and wildlife habitat; Protect flows or levels that support fish and wildlife before harm occurs; Protect fish and wildlife within an Outstanding Florida Water, an Aquatic Preserve, a state park, or other publicly owned conservation land with significant ecological value; or Prevent withdrawals in any other circumstance required to protect fish and wildlife. Reservations may be used for the protection of public health and safety to: Prevent sinkhole formation; Prevent or decrease saltwater intrusion; Prevent the movement or withdrawal of groundwater pollutants; or Prevent withdrawals in any other circumstance required to protect public health and safety. Reservations shall, to the extent practical, clearly describe the location, quantity, timing, and distribution of the water reserved. Reservations can be adopted prospectively for water quantities anticipated to be made available. When water is reserved prospectively, the reservation rule shall state when the quantities are anticipated to become available and how the reserved quantities will be adjusted if the actual water made available is different than the quantity anticipated. The District shall conduct an independent scientific peer review of all scientific or technical data, methodologies, and models, including all scientific and technical assumptions employed in each model, used to establish a reservation if the District determines such a review is needed. As part of its determination of the necessity of conducting a peer review, the District shall consider whether a substantially affected person has requested such a review. Specific Authority 373.026(7), 373.043, 403.036(1)(d), 373.171, FS. Law Implemented 373.023, 373.026, 373.036(1)(d), 373.042, 373.046, 373.103, 373.106, 373.171, 373.175, 373.1961, 373.223, 373.246, 373.418, 373.451, 373.453, 403.0891, FS. History - New The proposed change to rule 62-40.410(3), indicated by underscoring, provides: Water may be reserved from permit use in such locations and quantities, and for such seasons of the year, as is required for the protection of fish and wildlife or the public health or safety. Such reservations shall be subject to periodic review and revision in light of changed conditions. However, all presently existing legal users of water shall be protected so long as such use is not contrary to the public interest. Reservations shall be established in accordance with section 62-40.474, F.A.C. Specific Authority 373.026(7), 373.043, 373.036(1)(d), 373.171, FS. Law Implemented 373.023, 373.026, 373.036(1)(d), 373.042, 373.0421, 373.103, 373.171, 373.175, 373.1961, 373.223, 373.233, 373.246, 373.250, 403.064, 403.0891, FS. History -- New 7-20-95, Amended. The validity of the proposed change to rule 62-40.410(3) is derivative of, and dependent on, the validity of proposed rule 62-40.474. Therefore, the discussion that follows will focus on proposed rule 62-40.474, and references to "the proposed rule" will mean rule 62-40.474. Water Reservations Section 373.223(4), Florida Statutes, provides: The governing board or the department, by regulation, may reserve from use by permit applicants, water in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety. Such reservations shall be subject to periodic review and revision in the light of changed conditions. However, all presently existing legal uses of water shall be protected so long as such use is not contrary to the public interest. Water reservations are important for what they enable--the protection of fish and wildlife or the public health and safety, but they are also important for what they preclude-- use of the reserved water by any water use permit applicant. DEP does not believe the challenged rule is necessary to enable the water management districts to make reservations of water. DEP's purpose in enacting the rule is to provide goals, objectives, and guidance to the water management districts regarding water reservations. The proposed rule is intended to provide examples of "the types of situations that may be appropriate for the use of reservations." The proposed rule does not establish a water reservation. Each reservation of water must be accomplished through the adoption of a rule by a water management district or by DEP. There has been only one water reservation ever made pursuant to Section 373.223(4), Florida Statutes. It was made by SJRWMD in 1994 and is codified in Florida Administrative Code Rule 40C-2.302: The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida, is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. This reservation is for an average flow of 35 cubic feet per second (23 million gallons per day) representing approximately forty-five percent (45%) of the calculated historic flow of surface water through Paynes Creek and Camps Canal. Section 373.223(4), Florida Statutes, was part of the original Florida Water Resources Act of 1972 ("the 1972 Act"). Ch. 72-299, § 3, Laws of Fla. The wording of the subsection is unchanged since its enactment in 1972. Much of the 1972 Act was derived, verbatim, from A Model Water Code, drafted at the University of Florida College of Law between 1967 and 1971 by Dean Frank Maloney, Professor Richard Ausness, and Professor J. Scott Morris. Maloney, et al., A Model Water Code, Univ. of Fla. Press (1971). However, the Legislature did not adopt the exact wording of the water reservation provision that was offered in A Model Water Code. In A Model Water Code, water was to be reserved when "required to implement a provision of the State Water Plan." Id. at 21, 181. The State Water Plan was composed of a State Water Use Plan and a State Water Quality Plan. Id. at 9. The following commentary accompanied the water reservation provision in A Model Water Code: This provision is designed to integrate the operation of the permit system with the State Water Use Plan and State Water Quality Plan. Under this subsection, the governing board by regulation may set aside a fixed quantity of water; no future permit application can be made for water reserved in this fashion. [This provision] would be of particular value in connection with the maintenance of water quality standards, as it would provide a margin of safety during periods of low flow. Id. at 181. The State Water Plan was to address many subjects, including minimum flows and levels, water supply development, water quality improvement, environmental protection, conservation and recreation. By providing that water could be reserved when "required to implement a provision of the State Water Plan," A Model Water Code contemplated that water could be reserved to address any of these subjects. Although the 1972 Legislature provided for a comprehensive plan similar to the State Water Plan, it did not make reference to the plan in Section 373.223(4), Florida Statutes (1972). The reason the Legislature chose not to use the wording "when required to implement a provision of the State Water Plan" in A Model Water Code but, instead chose to use "when required to protect fish and wildlife or the public health and safety" in Section 373.223(4), Florida Statutes, is not explained in any exhibit in the record or in any primary or secondary source cited in the briefs of the parties. It remains a matter of speculation. Petitioners believe that it is clear from the Legislature's choice of words that it intended to strictly limit the circumstances in which a reservation would be used. Petitioners believe that other, more specific findings about what the 1972 Legislature would have considered an inappropriate use of a water reservation can be inferred from the Legislature's decision not to use the wording proposed in A Model Water Code. After considerable thought and review of the commentary in A Model Water Code and the provisions of the 1972 Act, it is concluded that there is an insufficient basis to make findings of fact regarding the 1972 Legislature's intent in not using the exact wording from A Model Water Code in Section 373.223(4), Florida Statutes. Petitioners' theory of the Legislature's intent is plausible, but is not the only plausible theory. The only certainty is that, from the alternatives considered by the 1972 Legislature, it chose to express the purposes for which water can be reserved as "protection of fish and wildlife or the public health and safety." There are three other references in Chapter 373, Florida Statutes, to water reservations. None were a part of the 1972 Act. Section 373.0361(2)(a)2., Florida Statutes, directs that water reservations be taken into account in proposals for alternative water supply projects. Section 373.0361(2)(h), Florida Statutes, requires regional water supply plans of the water management districts to include a listing of "Reservations adopted by rule pursuant to s. 373.223(4) within each planning region." Section 373.470(3)(c), Florida Statutes, refers to the use of water reservations in conjunction with restoration of the Everglades. Much of the argument and testimony in this case addressed Petitioners' contention that the proposed rule's provision for the use of water reservations "to aid in the restoration of natural systems" went far beyond "protection of fish and wildlife," the purpose stated in Section 373.223(4), Florida Statutes. References were made to the dictionary definitions of "protection" and "restoration" and all the expert witnesses offered opinions about their meanings. The term "protection" is not defined in Chapter 373, Florida Statutes, or in any DEP rule. The dictionary meaning of "protect" is to shield or defend against danger or injury; to cover or shield something from exposure, injury or destruction; to maintain the status or integrity of something; to guard. "Protection" is the act of protecting or the state of being protected. See, e.g., The New Lexicon Webster’s Dictionary of the English Language, 803 (1988); Merriam Webster’s Collegiate Dictionary, 938 10th Ed. (1996). DEP does not interpret the phrase "protection of fish and wildlife" in Section 373.223(4), Florida Statutes, as limited to keeping alive only those specific fish and wildlife organisms existing at the time a water reservation is established. DEP witness Janet Llewellyn testified that DEP has consistently interpreted this phrase to mean ensuring a healthy and sustainable, native fish and wildlife community; one that can remain healthy and viable through natural cycles of drought, flood, and population variation. Petitioners' experts did not dispute DEP's interpretation of "protection of fish and wildlife" to include the concepts of "native" species and species "communities." Petitioners contend, however, that the statute should be interpreted to apply only to existing, native fish and wildlife communities. The term "restore" is not defined in Chapter 373, Florida Statutes, or in any DEP rule. The dictionary meaning of "restore" is to put back or bring back into an original or former state or condition. "Restoration" is the act of restoring or the condition of being restored. See, e.g., The New Lexicon Webster’s Dictionary of the English Language, 834 (1988); Merriam Webster’s Collegiate Dictionary, 998 10th Ed. (1996). DEP intends the word "restoration," as used in the proposed rule, to have its common meaning. All the experts who testified in this case acknowledged that "protection" and "restoration" are different concepts and they each articulated an understanding of the meaning of these terms that was consistent with the dictionary meanings of the terms. The experts differed, however, in how they applied the terms "protection" and "restoration" to examples of environmental improvement activities. In general, Petitioners' experts thought a relatively clear line could be drawn between protection and restoration activities. The experts presented by DEP and Audubon, on the other hand, stated that the concepts are often overlapping and are not mutually exclusive. Petitioners' experts believe that when a project will have results that include more than maintenance of the current state, such as increasing numbers of organisms, increasing diversity, increasing habitat, or improving water quality, then the activity is no longer "protection," and becomes "restoration." In contrast, the DEP and Audubon experts believe that environmental conditions must sometimes be restored in order to protect existing fish and wildlife. DEP agrees that protection is not the same thing as restoration. It is DEP's position that the proposed rule cannot authorize, for example, the reservation of water for restoration of habitat or ground or surface water levels, except to the "extent needed for the protection of fish and wildlife or public health and safety." DEP agrees that a water reservation cannot be used "merely because restoration is desired." Ms. Llewellyn explained further: When a water management district initiates rulemaking to adopt a reservation, if the reservation is in aid of any restoration, the district will have to show that the aid to such restoration is no more than necessary to protect fish and wildlife or public health and safety. Ms. Llewellyn gave examples of how a reservation could be properly used as part of a restoration project to protect fish and wildlife. She stated that an estuary that previously supported a healthy population of oysters could be adversely affected by reduced inflows of fresh water due to diversions of water from the drainage basin which have increased the salinity of the water in the estuary. The water management district might construct a reservoir to store water in the rainy season for release in the dry season to keep salinities in the estuary at the proper level to protect the health of oysters. In this example, it is inferred that Ms. Llewellyn intended to convey that the release of reservoir water in the dry season would constitute restoration of a previously existing volume of freshwater inflow to the estuary, or restoration of the salinity level that would exist if the diversions had not occurred. The more persuasive evidence in the record supports a finding that, in the context of the comprehensive water resources program established in Chapter 373, Florida Statutes, protection and restoration are not mutually exclusive terms and it is possible to take action that meets the dictionary definition of restoration, but which does no more than protect (ensure the health and sustainability of) existing fish and wildlife communities. A restoration project could go beyond "protection" of fish and wildlife if, rather than merely restoring an environmental condition required for the health and sustainability of existing fish and wildlife communities, the project resulted in significantly larger fish and wildlife communities. Whether water reserved to restore an environmental condition is required for the protection of fish and wildlife depends on the particular circumstances involved.
Findings Of Fact Occidental owns land or mineral rights to land over a broad area adjacent to the Suwannee River near Lake City and White Springs in Hamilton County, Florida. Occidental has invested approximately $350 million in the area, and presently has two phosphate mines and two chemical plants in operation. Occidental intends to expand its mining operations into an area known as the "Roaring Creek Basin." Occidental has estimated that two and one- half million tons of phosphate are available to be mined in the area with a market value of $25.00 per ton. The company's present timetable would be to commence mining operations in the Roaring Creek Basin by midsummer, 1980. The mining operations would require dredging and filling activities. 1/ The Roaring Creek Basin is a small portion of the Suwannee River Basin. The area of Occidental's mining operation is fairly unique within the Suwannee River Basin. It has been characterized as a relatively high, flat plateau region. The Suwannee River flows in this area through a limestone channel, which is a cut in an older, broader riverbed or flood plane. Roaring Creek and other tributaries of the Suwannee River in the area flow through incisions which have been cut into the plateau area. The incisions become fairly steep in lower areas of the tributaries in close proximity to the Suwannee River. In the upper areas, the incisions are not particularly steep. Limestone beds underlie the area. Sandy clay beds which interbed with the limestone formations lie on top of the limestone beds and are covered by surficial sand beds. The surficial sands are relatively permeable, while the sandy clay beds are relatively less permeable. Rainfall in the area, therefore, typically permeates through the surficial sands and forms an aquifer above the sandy clay layers. This aquifer provides additional water to streams flowing through incisions which have cut into the sandy clay layers. Sources of water for such tributaries are rainfall and the aquifer above the sandy clay layers. There are lower aquifers which could serve as potential sources of water in the tributaries but do not because geologic conditions are not sufficient to force these waters to the surface. 2/ Viewed as a single stream, Roaring Creek has its initial source at a "bayhead" or "cypress swamp" which is located approximately four and one-half to five miles upgradient from the Suwannee River. Prior to the excavation of a channel which occurred sometime during the early 1960's, water flowed from the bayhead through a small incision which does not cut through the surficial sand layers until it reaches a point approximately 2.5 miles upgradient from the Suwannee River. An excavation has been cut through the original meandering streambed from the bayhead to approximately the point where the creekbed cuts into the lower strata. In various places, water from the natural bed flows into the excavation, while in other places, water in the original streambed has been cut off from the excavation by debris. During periods of heavy rainfall, waters in the bayhead rise and flow through the original streambed and the excavated channel to the lower areas of Roaring Creek. The bayhead collects rainwater from surrounding areas and drains fairly slowly in response to rainfall. During dry periods, water does not flow from the bayhead to the lower areas of the creek; however, normally there will be standing water in portions of the original streambed and in portions of the excavation even during drier times. The evidence offered in this proceeding would not support a finding as to the portion of time that water flows all of the way from the bayhead to the lower regions of Roaring Creek. Rainfall is the only source of water for the bayhead and the upper area of Roaring Creek, and the upper area contains water flows throughout its length solely in response to the rainfall. 3/ At a point approximately 2.5 miles upgradient from the Suwannee River, the incision or channel cut by Roaring Creek extends down into the sandy clay layers below the surficial sands. At that point, ground water, which is easily transmitted through the surficial clays, forms an aquifer above the sandy clay layers and seeps rather constantly into Roaring Creek. The point is a short distance upgradient from a road known as "Burned Bridge Road". Roaring Creek flows during all but the very driest periods from that point until its waters reach the Suwannee River. This point, which has been called the "point of intermittency", was placed at slightly different locations by various witnesses, depending upon the sort of analysis that was used. The conclusion that has been found most credible is that presented by Phillip E. LaMoreaux. Dr. LaMoreaux found the point of intermittency to be a short distance upgradient from Burned Bridge Road, approximately 2.46 miles from the mouth of Roaring Creek at the Suwannee River. The point is depicted with precision on Occidental Exhibit 19A. The UTM coordinants of the point are 3367025N336650E. 4/ Downstream from the point of intermittency, Roaring Creek cuts deeper and deeper into the sandy clay strata. It receives waters from several tributaries and form seepage of ground water which occurs throughout this lower portion of Roaring Creek, ultimately cuts into the limestone beds and earns its name as it forms two waterfalls near its mouth at the Suwannee River. 5/ Within and immediately adjacent to the streambed upgradient from the point of intermittency, the dominant vegetation is vegetation which is included in DER's list of freshwater submerged land indicator species. Rules of the Department of Environmental Regulation, Section 17-4.02(17), Florida Administrative Code. The predominant vegetational species are pond cypress (Taxodium Ascendens) and black gum trees (Nyssa Biflora). Within the streambed itself, there are no upland indicator species. Within the excavated channel that has been cut through the natural streambed above the point of intermittency, the predominant vegetation is Maiden Cane (Panicum Hemitomon). Within the bayhead or cypress swamp which is circled on DER Exhibit 8, and is designated with the initials "JK", the dominant vegetation is pond cypress and black gum. The dominance of wetland indicator species which occurs within and directly adjacent to the streambed and the excavated channel does not extend laterally to any great extent. While wetland indicator species will occur sporadically outward from the channels, upland indicator species begin to predominate in all but the areas immediately adjacent to the channels. This reflects the fact that the upper portions of Roaring Creek are in a high upland plateau region. Any effort to determine dominant vegetation outward from the confines of the stream channels would result in a bias in favor of upland species. Within the streambed, there are no small cypress seedlings. This reflects that the streambed has not been dry for any prolonged period of time so as to permit the germination of cypress trees. There are also no hardwood or upland indicator species within the streambed, which reinforces the conclusion that the streambed even above the point of intermittency does not remain dry for long periods of time. 6/ There are several Roaring Creek tributaries where the extent of DER's jurisdiction is at issue. One tributary flows not Roaring Creek from the south and meets the creek at a point upgradient from the point designated "RO-1" on DER Exhibit 8 and on Occidental Exhibit 8. This tributary is outlined with black lines on DER Exhibit 8 and with red lines on Occidental Exhibit 8. The parties agree that DER has jurisdiction over it. A tributary of this tributary is bordered in red on DER Exhibit 8 and in yellow in Occidental Exhibit 8. Very little testimony was elicited with respect to this tributary of the Roaring Creek tributary. It appears that it flows only in response to rainfall events, but the evidence is insufficient to establish whether it normally contains contiguous areas of standing water. Another tributary over which there is a dispute flows into Roaring Creek from the northwest and meets the creek at a point almost halfway between the points "RO-1" and "RO-2", as depicted on DER Exhibit 8 and Occidental Exhibit 8. A portion of this tributary is outlined in black and a portion in green on DER Exhibit 8. Only a portion of it is outlined on Occidental Exhibit The portion of it outlined on Occidental Exhibit 8, and in black on DER Exhibit 8, is below the point of intermittency. The portion outlined in green on DER Exhibit 8 is above the point of intermittency. There is an identifiable streambed above the point of intermittency which connects several cypress swamps. Wetland indicator species (pond cypress and black gum) constitute the dominant vegetation within the cypress swamps and within and directly adjacent to the identifiable streambed. The portion above the point of intermittency flows only in response to rainfall. The evidence would not support any finding with respect to whether it normally contains contiguous areas of standing water. The final testimony over which jurisdiction is disputed enters Roaring Creek from the south, just upgradient from the point designated "RO-4" on DER Exhibit 8 and Occidental Exhibit 8. This tributary is outlined in red on DER Exhibit 8 and in yellow in Occidental Exhibit 8. An identifiable streambed connects the cypress swamp at the head of this tributary with the upper portion of the Roaring Creek channel. Wetland indicator species (pond cypress and black gum) predominate within and directly adjacent to the channel, and within the cypress swamp. It appears that water flows from the cypress swamp to the upper channel of Roaring Creek only in response to rainfall. The evidence would not support any finding as to whether the cypress swamp and streambed of this tributary normally contain contiguous areas of standing water. 7/
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Department of Environmental Regulation finding that the Department has jurisdiction over those portions of Roaring Creek described in Paragraph 5 of the Conclusions of Law set out herein. DONE and ENTERED this 23rd day of May, 1980, at Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1980.
Findings Of Fact The canal that Riverview dredged is paralleled on either side by canals of like length, man-made at an earlier time, which also connect with Little Battle Creek in Citrus County. Little Battle Creek (which was itself deepened by dredging in 1960) flows into the Homosassa River. Riverview dredged the canal and filled surrounding marshland without first securing a permit from any governmental agency. At the time Riverview undertook these dredge and fill operations, respondent Department of Environmental Regulation was not in existence. The Department of Pollution Control and the Board of Trustees of the Internal Improvement Fund, state governmental agencies which were in existence at that time, took no formal action of any kind on account of Riverview's activities. Garcia Road, originally a causeway through a marsh, runs perpendicular to the canals. Before Riverview filled, water from marshland lying east of Garcia Road drained through culverts under Garcia Road into the canals and the creek. Since Riverview filled, however, rain storms result in standing water on Garcia Road, which may persist for as long as a week. The day before the final hearing water on Garcia Road was a foot deep. Such drainage as now occurs involves water moving across a stretch of Garcia Road north of the obstructed culverts, and through homeowners' yards, which has precipitated dramatic erosion of the property affected. The topsoil covering the fingers of land on either side of the canal that Riverview dredged is sand fill, which is not very stable. A man is able to penetrate ten feet with a reinforcing rod, without hammering. On both of these fingers, roads running their respective lengths constitute the highest elevation. There are lift stations on either peninsula, the tops of which are flush with the ground. The to of the septic tank system installed across Garcia Road from the canal is two or three feet above ground. The vegetation in the canal indicates nocturnal deficiencies of dissolved oxygen. By studying water amples, an employee of respondent Department of Environmental Regulation determined that microscopic life exists in some diversity where Battle Creek joins the Homosassa River, in less variety upstream from the canal that Riverview dredged, and in still less diversity in the mouth of the canal that Riverview dredged. At the end of the canal opposite the creek, there was at most a single species of microscopic organism. Coliform bacilli are not present in the canal in significant numbers. Respondent Charles A. Lenz owns 70 percent of the stock issued by respondent Riverview Estates, Inc., and respondent Billy G. Black owns 20 percent. Messrs. Lenz and Black or one of them negotiated with Mickey Bryant, an environmental specialist employed by respondent Department of Environmental Regulation, to reach the proposed consent agreement received in evidence as the Department's exhibit No. 1. Essentially, the agreement contemplates that Riverview will shorten both fingers of land by removing fill dirt from the ends of the peninsulas in a specified manner; dispose of the fill dirt in a manner specified by the agreement; take specified steps to prevent erosion of the truncated fingers of land; plug the canal so as to convert the end opposite the creek into a holding or treatment pond separate from the canal; and convey to the State of Florida a tract of land in excess of 58 acres, which borders the creek along the bank opposite the canal. During a recess at the final hearing, negotiations began which have since eventuated in an addendum to the proposed consent agreement, providing that Riverview shall (within 90 days restore drainage conditions from the lands lying East of Garcia Road opposite the project identified in this agreement to those which existed prior to the dredging and filling activities conducted by Riverview as aforesaid. It is understood that this undertaking may require the opening or replacement of a culvert under Garcia Road and the extension of a drainage system from its Western end to a canal spilling into Battle Creek. It is also understood that completion of this undertaking shall be subject to permission and direction of the proper authorities of Citrus County.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner's objections to the proposed consent agreement be deemed no impediment to respondents' entry into the agreement. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23 day of September, 1977. COPIES FURNISHED: Mr. Ben Daniel, Jr., Esquire 101 Northwest Third Street Ocala, Florida 32670 Mr. Alfred Clark, Esquire 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. John Montgomery Greene, Esquire 19 North Pine Street Ocala, Florida 32670 CONSENT AGREEMENT This Consent Agreement made and entered into this 29th day of July, 1976, by and between the State of Florida Department of Environmental Regulation (hereafter the Department), and Mr. Billy G. Black, Mr. Charles A. Lenz and Riverview Estates, Incorporated, Citrus County, Florida (hereafter Riverview). WHEREAS, on or before a period of time from July to September, 1972, Riverview or its predecessors has dredged and connected a canal to Battle Creek, Citrus County; Florida, and filled marsh lands adjacent to said Battle Creek without an appropriate and valid permit from the Department. WHEREAS, the Department maintains that Riverview or its predecessors by engaging in the above described dredging and filling activities did violate Chapter 403.087 Laws of Florida which states that: "No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule." NOW, THEREFORE, for the purpose of compromise and settlement of the claims set forth above and in consideration of the Department's forebearance from civil litigation of any kind and forebearance of Riverview from civil litigation of any kind, the parties hereto, hereby stipulate, consent and agree to the following items and conditions: I For the purpose of this Agreement, all references to specific items and geological locations in or adjacent to Battle Creek, Citrus County, Florida, shall be directed to the drawing labeled Riverview Estates, J. Frederic Blitstein, Inc., Environmental Planners and Arden-Green Architects, Inc., attached hereto as Attachment "A", aerial photograph attached hereto as Attachment "B", and DER survey attached hereto as Attachment "C". II Riverview hereby consents and agrees to: Within 90 days, remove all fill materials from Areas I & II, as shown on Attachment "C", and restore said areas to preexisting marsh grade and elevation. The ground level elevation of the adjacent undisturbed marsh lying across Battle Creek shall be used as a guide if necessary. Fill materials removed may be placed in the canal to raise the depth of the canal to -5' MLW and/or upon uplands as defined by Chapter 17-4.02, Florida Administrative Code. No fill shall be placed upon any other location otherwise requiring a permit from the department. A natural sawgrass fringe and dirt berm shall be left at the westernmost (waterward) extreme of Areas I & II while fill is being removed. This berm will serve as a temporary siltation barrier and reduce siltation of Battle Creek during fill removal operations. Upon removal of all fill, the temporary berm shall be removed, leaving the undisturbed perimeter fringe of sawgrass. If natural marsh grasses do not sufficiently revegetate the area of fill removal so as to provide a marsh cover within one year, the department will require Riverview to re-establish the marsh cover by replanting with sawgrass and cattail clumps. Within 90 days install a plug in the canal at the location shown on Attachment "C". Construction of the plug shall be in accordance with the drawing shown on Attachment "A". Within 90 days, install a riprap bulkhead at the eastern edge of Areas I and II. Utilize the upland portion of the plugged canal as a catch basin for water runoff from the adjacent filled areas. Leave existing perimeter vegetation in along the canal between the plug and Battle Creek. Perform no further dredging, filling, or other works in or on the undisturbed transitional or submerged zones, as defined by Chapter 17-4.28, Florida Administrative Code, of Battle Creek, prior to receiving written authorization from the Department or receiving notice from the Department that the proposed activities are exempt from permitting requirements. Allow duly authorized representatives of the Department access to the property at reasonable times for the purpose of inspecting progress of the aforementioned work. Donate to the Florida Board of Trustees of the Internal Improvement Trust Fund approximately 58.4 acres of land shown on Attachment "B" and further described as follows: The north 58.4 acres of the west 1/2 of SW 1/4 of 531, Tl9S, R17E, lying northerly of the westerly prolongation of the north line of that certain parcel described in Official Records Book 3, Page 103, Public Records of Citrus County, Florida, as follows: Beginning at a point in the SW corner of Lot 59 of the Homosassa Company Subdivision of the SW 1/4 of Section 31, Township 19 South, Range 17 East, and thence running North 233 feet coincidental with the west line of said Lot 59 to a point in the said west line, as the Point of Beginning; thence westerly 453 feet to a point; thence northerly 480 feet to a point; thence easterly 453 feet to a point, which is the NW corner of said Lot 59; thence continuing southerly along the west line of said Lot 59, 480 feet to the Point of Beginning Less and except any westerly portion of the filled lands of Riverview Estates which may lie within the west 1/2 of the SW 1/4 of 531, Tl9S, Rl7E. III The Florida Department of Enviromental Regulation for and in consideration of the foregoing hereby consents and agrees to: Not require additional removal of fill materials or restoration of sawgrass marsh under lots number 1-40. Not require backfilling of the artificial canal east or west of the plug. Not require removal of any electrical or sewer improvements westerly of the end of the road pavement and within the restoration areas. Not hold Riverview liable for civil damages or penalties described in Chapter 403.141, Florida Statutes. DONE AND EXECUTED this 29th day of July, 1976, in the Office of the State of Florida, Department of Environmental Regulation, Tallahassee, Leon County, Florida. RIVERVIEW ESTATES, INC. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION Charles A. Lenz, as a Joseph W. Landers, Jr. principal stockholder Secretary P.O. Box 980 2562 Executive Center Cir., E. Homasassa Springs, FL Montgomery Building 32647 Tallahassee, FL 32304 Billy G. Black, as a principal stock holder P.O. Box 886 Homasassa Springs, FL 32646 ADDENDUM TO CONSENT AGREEMENT The Consent Agreement dated July 29, 1976, which Billy G. Black, Charles A. Lenz and Riverview Estates, Inc. (referred to therein and herein as Riverview) have offered to enter into with the State of Florida Department of Environmental Regulation (the Department) is hereby amended and Riverview' s offer extended and enlarged by adding to Article II an additional paragraph designated "(j)" which shall provide as follows: Within 90 days restore drainage conditions from the lands lying East of Garcia Road opposite the project identified in this agreement to those which existed prior to the dredging and filling activities conducted by Riverview as aforesaid. It is understood that this undertaking may require the opening or replacement of a culvert under Garcia Road and the extension of a drainage system from the culvert into the basin described in II (e). If the drainage into this basin is not feasible, Riverview may propose other alternatives which shall be subject to the approval of the Department. It is also understood that completion of this undertaking shall be subject to permission and direction of the proper authorities of Citrus County. When executed by the Department, this shall become a part of the Consent Agreement aforesaid. EXECUTED by Riverview this day of November, 1977. RIVERVIEW ESTATES, INC. by: Billy G. Black Charles A. Lenz STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION JOSEPH W. LANDERS, JR. Secretary 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301
The Issue The issue is whether an Environmental Resource Permit (ERP) and a Letter of Consent to Use Sovereignty Submerged Lands (Letter of Consent) should be issued to Respondent, Palm Beach County (County), authorizing it to fill 7.97 acres of submerged lands for a restoration project in Lake Worth Lagoon.
Findings Of Fact Based upon all of the evidence, the following findings are determined: The Parties Trump is the owner association for a two-towered residential and commercial condominium building located at 525 South Flagler Drive in downtown West Palm Beach, upland and west of the project site in the Lagoon. Each tower rises thirty floors and together they have of two hundred twenty units. The first five floors are common areas including a lobby on the first floor, while a pool and patio are located on the fifth floor of the north tower. The property is separated from the Lagoon by Flagler Drive, a four-lane divided road with landscaping and sidewalks which runs adjacent to, and on the western side of, the Lagoon. There is no dispute that Trump has standing to initiate this action. Flagler owns, manages, and leases two multi-story office buildings located at 501 Flagler Drive on the upland real property directly west of the project location. Like the Trump property, the Flagler property is separated from the Lagoon by Flagler Drive. There is no dispute that Flagler has standing to participate in this matter. The County is a political subdivision of the State and is the applicant in this proceeding. The Department is the state agency with the authority under Part IV, Chapter 373, Florida Statutes,2 to issue to the County an ERP for the project, as well as authority as staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to authorize activities on sovereign submerged lands pursuant to Chapter 253, Florida Statutes, and Chapter 18-21. Background On October 29, 2007, the County submitted to the Department its Joint Application for an ERP and Letter of Consent to use sovereignty submerged lands in the Lagoon owned by the Board of Trustees. The application was assigned File No. 50- 0283929-00. After an extensive review process, including three requests for additional information, on August 12, 2008, the Department issued its Notice of Intent authorizing the County to fill 7.97 acres of submerged lands in the Lagoon with approximately 172,931 cubic yards of sand and rock material to create the following: (a) approximately 1.75 acres of red mangrove habitat including 1.52 acres of mangrove islands and 0.23 acres of red mangrove planters; (b) approximately 0.22 acres of cordgrass habitat; (c) approximately 0.90 acres of oyster habitat; (d) approximately 3.44 acres of submerged aquatic vegetation habitat; and (e) a 10-foot by 556-foot (5,560 square feet) public boardwalk with two 3-foot by 16-foot (48 square feet) educational kiosk areas and a 16-foot by 16-foot (256 square feet) observation deck for a total square footage of approximately 5,912 square feet. The Notice of Intent also included a number of general and specific conditions particular to this project. Trump (by timely Petition) and Flagler (by intervention) then challenged the Notice of Intent. They contend generally that the project unreasonably infringes upon or restricts their riparian rights and fails to meet the permitting and consent to use criteria set forth in Chapters 18-21 and 40E-4, as well as Chapter 373, Florida Statutes, and Section 253.141, Florida Statutes. Conflicting evidence on these issues was presented at the hearing. The conflicts have been resolved in favor of the County and the Department, who presented the more persuasive evidence. The Project The project area is a cove in the Lagoon, a Class III water body which extends within the County from North Palm Beach to Manalapan. The western side of the water body in the project area is lined with a vertical concrete seawall approximately 6.64 feet above the mean low water line. The waters immediately adjacent to the Trump and Flagler upland property are generally two to five feet deep along the seawall. To the east lies the island of Palm Beach, to the south is the Royal Park Bridge, which connects West Palm Beach and the Town of Palm Beach, while to the north is the Flagler Memorial drawbridge. The Lagoon is approximately 2,000 feet from shore to shore. The Intracoastal Waterway (ICW) runs roughly through the middle of the Lagoon in a north-south direction. Currently, there is an artificial dredge hole in the project area around four hundred feet from the western seawall. The dredge hole, which descends to approximately twenty feet at its deepest location, is filled with muck, which can be re- suspended by wave energy into the water, blocking the sunlight necessary for the support of biotic life. The muck covers the natural hard bottom, consumes oxygen, and presents an unsuitable environment for benthic organisms. The dredge hole is too deep to support seagrasses. The project calls for filling the dredge hole to intertidal elevations, i.e., between the high and low tide elevations, for mangroves and elevations suitable for seagrass. In all, approximately 173,000 cubic yards of fill will be placed in and around the hole to build up three separate islands within the project footprint, on which the County will plant 10,000 red mangroves, which naturally grow between fifteen and twenty-five feet in height. (The County estimates that eighty to ninety percent of the mangroves will survive and grow to a height of at least fifteen feet.) The top of the islands, not including mangroves, will be just below the mean high water mark. The County also proposes locating planters along the seawall and oyster reefs along the southern end of the project. The planters are designed to extend out approximately twenty feet from the seawall and will be placed on sovereign submerged lands. The last five feet will consist of limestone rock. Mangrove, spartina, and seagrass habitats will provide a biodiverse source of food and habitat for other species, and occurs naturally within the Lagoon but has been lost over time. Oyster habitat is proposed for additional bio-diversity and to provide a natural water filtration function. From the County's perspective, the restoration project would be incomplete without all the habitats proposed. The planters will be at an intertidal elevation, planted with red mangroves and spartina, and faced with rock to reduce wave energy in the area. The oyster reefs are rock structures designed to rise one foot above mean high water line for visibility to boaters. The project also includes a boardwalk and attached educational kiosks on the south side of the project to bring the public in contact with the habitats. The County will maintain the boardwalk, empty the trash daily, and open/close the gates at sunrise/sunset. The County proposes a minimum ten-foot buffer between seagrass beds and the fill area. The project is part of the County's Lagoon Management Plan, which outlines the County's restoration goals within the Lagoon. The County has performed numerous other restoration projects within the Lagoon to re-introduce mangrove and seagrass habitat, such as Snook Island, which consisted of filling a 100- acre dredge hole, installing mangrove islands, seagrass flats, and oyster reefs. The Snook Island project restored mangrove habitat and recruited fish and bird species, including endangered and threatened species. Snook Island has remained stable, with no sediment deposition or erosion. The County intends to fill the dredge hole with native lagoon bottom sediment. A clam-shell machine will deposit the sediment below the water line to reduce turbidity. Sediment will be placed around the edges of the dredge hole, reducing the velocity of the fill as it settles to the bottom and encapsulates the muck, as required by Draft Permit Special Condition No. 19. The County will use turbidity curtains, monitor conditions hourly, and stop work if turbidity levels rise beyond acceptable standards. These precautions are included in Draft Permit Conditions 12, 13, and 14. The County will use construction barges with a four- foot draft to avoid propeller dredge or rutting and will place buoys along the project boundary to guide the construction barges, precautions integrated into the Draft Permit conditions. The County's vendor contracts require maintenance of construction equipment to prevent leakage. A similar condition is found in the Draft Permit. Both the intertidal and seagrass flats elevations at the top of the islands will be built at a 4:1 slope; elevations subject to wind and wave energy will be reinforced with a rock revetment constructed of filter cloth and rock boulders. Seagrass elevations will have no reinforcing rock because they are deep enough to avoid significant currents. Proposed drawings were signed and sealed by a professional engineer. The ERP Criteria To secure regulatory approval for an ERP, an applicant must satisfy the conditions in current Rules 40E-4.301 and 40E- 4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality. The latter rule requires that a public interest balancing test be made, and that cumulative impacts, if any, be considered. Also, the BOR, which implements the rule criteria, must be taken into account. a. Rule 40E-4.301 21. Paragraphs (1)(a), (1)(b), (1)(c), (1)(g), (1)(h), and (1)(k) and subsections (2) and (3) of the rule do not apply. Although Trump and Flagler have focused primarily on paragraphs (1)(d), (f), and (i) in their joint Proposed Recommended Order, all remaining criteria will be addressed. Paragraph (1)(d) requires that an applicant give reasonable assurance that the proposed activity "will not adversely affect the value of the functions provided to fish and wildlife and listed species by wetlands and other surface waters." Based on the project design, the filling of the dredge hole and capping of muck, the restoration of seagrass habitat, and the creation of mangrove habitat, the project will have no adverse impacts but rather will be beneficial to the value of functions for fish and wildlife. Paragraph (1)(e) requires that an applicant give reasonable assurance that the proposed activity will not adversely affect the quality of receiving waters. The County will be required to manage turbidity that may be generated from the project. In part, the turbidity will be contained by the proposed construction method for filling the dredge hole. As noted earlier, the native sand will be deposited using a clamshell-type arm to dump the sand under the water around the periphery of the edge of the downward slope of the dredge hole. This will continue around the periphery of the hole, building up a lip and letting it slide down towards the bottom of the hole, squeezing the muck into the center of the hole and beginning to encapsulate it. Once there are several feet of native sand over the muck to encapsulate it, the County will resume the filling at the target rate. Subsection 4.2.4.1 of the BOR requires that the County address stabilizing newly created slopes of surfaces. To satisfy this requirement, the County will place the fill at a 4:1 slope. The outer edge of the mangrove islands slope back to a 4:1 slope and use rock rip-rap to stabilize that slope. Also, filter cloth, bedding stones, and boulders will be used. Because water currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de-stabilize. There will be turbidity curtains around the project area. Those are floating tops and weighted bottoms that reach to the bottom and are intended to contain any turbidity that may be generated by the project. Specific Conditions 12, 13, and 14 require extensive monitoring of turbidity. The County proposes to use a barge with a draft no greater than four feet. This aspect of the project will require a pre-construction meeting and extensive monitoring throughout the project. As a part of the application review, the County performed a hydrographic analysis which was coordinated with and reviewed by the Department staff. There are no expected debris or siltation concerns as a result of the project. The more persuasive evidence supports a finding that over the long term, the project is expected to have a beneficial effect on water quality. By filling the dredge hole and providing habitat for seagrass, mangroves, and oysters, the project will provide net improvement to water quality. The requirements of the rule have been met. Paragraph (1)(f) requires that the applicant provide reasonable assurance that the activities will not "cause secondary impacts to the water resources." More detailed criteria for consideration are found in BOR Subsection 4.2.7. The County has provided reasonable assurance that through best management practices, it will control turbidity. Also, Specific Conditions in the proposed permit require that water quality monitoring be conducted throughout the process. There will be no impacts to upland habitat for aquatic or wetland dependent species. This is because a vertical seawall is located upland of the project site, and no surrounding uplands are available for nesting or denning by aquatic or wetland dependent listed species. A secondary impact evaluation also includes an evaluation of any related activities that might impact historical and archaeological resources. There are, however, no historical or archaeological resources in the area. If resources are uncovered during the project, Draft Permit conditions require notification to the Department of State. Finally, there are no anticipated future activities or future phases on the project to be considered. Rule 40E-4.301(1)(i) requires that the applicant provide reasonable assurance that the project "will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Trump and Flagler contend that the project cannot be constructed and successfully operated as proposed. Trump's expert witness, Joseph Pike, testified that there were ambiguities and conflicts within the plan drawings that would require changes upon build-out; either fill will be placed outside of the fill area, or the mangrove islands will be smaller than depicted. Mr. Pike also voiced concerns that a 4:1 slope would not be stable and might cause fill to migrate to existing seagrass beds. He further stated that the Snook Island project included 18:1 slopes, and he thought providing rock revetment only at the intertidal zone was insufficient. Mr. Pike acknowledged that he had used 4:1 slopes in lake projects; however, in a tidal project involving fill placement, he opined that a 4:1 slope was likely to "relax." He did not do calculations about what slope might hold and admitted that prior experience using similar slopes with the same type of fill might change his opinion. Finally, Mr. Pike noted that a portion of the dredge hole would not be filled and concluded that the project would not fully cap the muck. Trump's biologist, James Goldasitch, speculated that the water flow changes would cause sediment deposition on existing seagrass beds, possibly causing the seagrasses to die. He admitted, however, that the County's plans called for the creation of 3.44 acres of seagrass and did not know the amount of habitat created compared to the amount of habitat he anticipated being affected. The Department's engineer, Jack Wu, approved the hydrologic aspects of the County's plan, but Mr. Goldasitch speculated that Mr. Wu was more focused on shoreline stability than on depositional forces. Mr. Goldasitch never actually spoke to Mr. Wu regarding his analysis, and Mr. Wu's memorandum refers not only to engineering and construction aspects of the proposal but also to the criteria in Rules 40E-4.301 and 40E-4.302. Mr. Goldasitch believed the County's boardwalk will impact the seagrass beds by blocking sunlight, but acknowledged that the Draft Permit required the boardwalk to be elevated and portions to be grated. Both the Florida Fish and Wildlife Conservation Commission and the Department's expert witness concluded that the permit conditions for constructing the boardwalk, which are common, eliminated impacts to seagrass. Mr. Goldasitch further opined that the 4:1 slope might slump, but then deferred to the opinion of a registered engineer on this type of engineering matter. The County presented its professional engineer, Clint Thomas, who worked on the project design. Mr. Thomas explained that permit drawings are not intended to be construction-level in detail, but are merely intended to provide sufficient detail for the regulator to understand the project within the 8 and 1/2 by 11-inch paper format required by the Department. The County will ultimately prepare permit-level, construction-level, and as-built drawings. Permit conditions also require a pre-construction meeting. No fill will be placed outside the area designated for fill, and the 4:1 slope will start at the outer boundary of the designated fill area until it reaches the specified elevation. Mr. Thomas acknowledged that the plan view drawings depict a mangrove island too close to the western project boundary, but stated that the mangrove island would simply be placed farther to the east during the construction-level plan process. Islands will become smaller islands, but will not be relocated, and in no event will the fill area expand; the fill boundary is a very strict limit. There is no evidence that the County has ever violated a fill boundary established in a permit. The 4:1 slope was based on the type of fill proposed for the project and to maximize project features. Mr. Thomas has successfully used 4:1 slopes with non-compacted fill in the Lagoon, both at Snook Island in its as-built state and at other projects. The islands at Snook Island are similar to those proposed. Other areas in the Lagoon have held slopes steeper than 4:1 with the same type of fill. Therefore, Mr. Thomas opined the 4:1 slope would hold. In rendering this opinion, he explained that the currents in the project vicinity are only around 1.2 knots. Because currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de- stabilize. Mr. Thomas addressed the contention that a change in water flow velocity would cause sediment to deposit on existing seagrass. The oyster reefs are rubble structures that allow the water to flow through. If any sediment flows through, it will deposit on the north side of the oyster bar, rather than on the seagrass beds. Given these considerations, the evidence supports a finding that the project will function as proposed. Finally, paragraph (1)(j) requires that the County provide reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit. The evidence supports a finding that the County has complied with this requirement. In summary, the evidence supports a finding that the County has given reasonable assurance that the project satisfies the criteria in Rule 40E-4.301. b. Rule 40E-4.302 In addition to the conditions of Rule 40E-4.301, the County must provide reasonable assurance that the construction of the proposed project will not be contrary to the public interest. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7. Rule 40E-4.302(1)(a)1. requires that the Department consider whether the activity will adversely affect the public health, safety, or welfare or the property of others. Trump first contends that the project will increase the mosquito population. The evidence shows, however, that the mangroves will be placed below the mean high water mark and therefore no increase in mosquitoes should occur. Also, the design of the project, coupled with the local mosquito control program, should ensure that there will be no increase in mosquito population or a risk to the public health. Trump also raised the issue of an increase in trash along the boardwalk area or in the newly-created mangrove islands. The County presented evidence that there will be appropriate trash receptacles in the area as well as regular garbage collection. In terms of safety, navigation markers are included as a part of the project for safe boating by the public. The County consulted with the United States Coast Guard regarding navigation issues. Further, the project will not cause flooding on the property of others or cause an environmental impact on other property. Although a number of Trump residents expressed sincere and well-intended concerns about the project impacting the value of their condominiums (mainly due to a loss of view), BOR Subsection 4.2.3.1(d) provides that the "[Department] will not consider impacts to property values or taxes." Rule 40E-4.302(1)(a)2. requires that the Department consider whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Subparagraph 4. of the same rule requires that the Department consider whether the activity will adversely affect the fishing or recreational value or marine productivity in the vicinity of the activity. The proposed activity is a restoration project for the creation of seagrass and mangrove habitats. As such, it is beneficial to the conservation of fish and wildlife and is expected to increase the biotic life in the project area. Besides providing additional habitat for fish and wildlife, the project will add to the marine productivity in the area. In terms of recreational opportunities, the project is expected to be a destination for boating, kayaking, fishing, and birdwatching. The Florida Fish and Wildlife Conservation Commission has also recommended issuance of the permit with the standard manatee condition for in-water work. This recommendation has been incorporated as Specific Conditions 23 through 25 Rule 40E-4.301(1)(a)3. requires that the Department consider whether the activity will adversely affect navigation and the flow of water, or cause harmful erosion or shoaling. The nearest navigation channel is the ICW. The project is located outside of that area. Subsection 4.2.3.3 of the BOR provides additional guidance on the evaluation of impacts of this nature. Paragraph (a) of that subsection provides that, in evaluating a proposed activity, the Department "will consider the current navigational uses of the surface waters and will not speculate on uses which may occur in the future." Trump residents indicated that in the project area persons are now picked up off the seawall and then travel to the ICW. Access to the seawall is possible from the east and south, although existing shoals currently limit the approach from the south. Large boats do not use the area because of shoals. In general, "[t]here's not a whole lot of boating activity in the project area." The parties agree that if the project is constructed as designed, boats will not be able to travel directly out from the seawall in front on Trump or Flagler to the ICW, as they now do. However, navigation in the area will still be available, although not as convenient as before. As to water flow, shoaling, and erosion, the more persuasive evidence supports a finding that the 4:1 slope will be stable and will not cause fill to migrate outside of the boundaries of the project into existing seagrass beds. The tidal flow will continue through the area after construction without sediment deposition into existing seagrass beds or destabilizing the 4:1 slope. There will be no shoaling or erosion. Finally, the project will be permanent and there are no significant historical and archaeological resources in the area. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6. In summary, the evidence supports a finding that the County's proposal is neutral as to whether the activity will adversely affect the public health, safety, welfare, or the property of others; that the County's proposal is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the County's proposal is positive with respect to the conservation of fish and wildlife, recreational values and marine productivity, permanency, and current values and functions. When these factors are weighed and balanced, the project is not contrary to the public interest and qualifies for an ERP. D. Proprietary Authorization Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. In making its review, the Department reviews the rule in its entirety; it also looks at the forms of authorization (e.g., letters of consent, leases, deeds, or easement) to determine the most appropriate form of authorization for an activity. Trump and Flagler have raised contentions regarding the proprietary authorization, including whether the application should have been treated as one of heightened public concern, whether the proper form of authorization has been used, and whether their riparian rights are unreasonably infringed upon by the project. Heightened Public Concern Rule 18-21.0051 provides for the delegation of review and decision-making authority to the Department for the use of sovereign submerged lands, with the following exception found in subsection (4) of the rule: (4) The delegations set forth in subsection (2) are not applicable to a specific application for a request to use sovereign submerged lands under Chapter 253 or 258, F.S., where one or more members of the Board, the Department, or the appropriate water management district determines that such application is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location. On March 13, 2008, the Department's West Palm Beach District Office sent a "heightened public concern [HPC]) memo" to the Department's review panel in Tallahassee,3 seeking guidance as to whether the project required review by the Board of Trustees under the above-cited rule. The Department emailed the County on March 14, 2008, stating that the project would be elevated to the Board of Trustees for review to approve the entire Lagoon Management Plan. The County asked for reconsideration, concerned over timing restraints on grant opportunities. This concern is based on the fact that the County will receive grant monies to assist in the construction of the project and must have regulatory approval by a date certain in order to secure those funds. A second HPC memorandum was sent to the review panel on April 22, 2008. Part of the interim decision to elevate the application to the Board of Trustees concerned the boardwalk connection to the City of West Palm Beach's existing seawall. The City of West Palm Beach is the upland owner of the seawall, sidewalk, and Flagler Drive. On June 9, 2008, the Mayor of West Palm Beach sent a letter to the Department stating that the City "fully supports" the proposed activity, and that the County and the City collaborated on the design of the project, held joint public meetings, and produced a project video. See Department Exhibit Trump and Flagler argue that under the City Charter, the Mayor cannot unilaterally bind the local government to allow structures to be built on City property. Assuming this is true, one of the remaining conditions for the County to initiate the project is to obtain a "letter of concurrence" from the City of West Palm Beach authorizing the County to connect the boardwalk to the seawall. Therefore, the review panel ultimately concluded that the application could be reviewed at the staff level and did not require Board of Trustees review. The evidence at hearing did not establish that the application was one of heightened public concern, given the limited size of the project, its location, and the net benefit to both environmental and natural resources. Compare Brown, et al. v. South Fla. Water Mgmt. Dist., et al., DOAH Case No. 04-0476, 2004 Fla. ENV LEXIS 112 (DOAH Aug. 2, 2004, SFWMD Sept. 8, 2004). Therefore, review by the Board of Trustees was not required. Form of Authorization Trump and Flagler contend that an easement is required by the County, rather than a consent of use. The standard for obtaining an easement is more stringent than a consent of use, and an easement offers a greater interest in sovereign lands. Rule 18-21.005(1) provides the general policy direction for determining the appropriate form of authorization and reads in relevant part as follows: It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged lands necessary for the activity. For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate. This rule requires that the Department should apply the lowest and least restrictive form of authorization. Trump and Flagler argue that the County's project constitutes a spoil disposal site under Rule 18-21.005(1)(f)8., a public water management project other than public channels under Rule 18-21.005(1)(f)10., or a management activity which includes "permanent preemption by structures or exclusion of the general public," as described in Rule 18-21.005(1)(f)11. Each of these activities requires an easement rather than a letter of consent in order to use sovereign submerged lands. The evidence shows that the County's project is not a spoil disposal site. Also, it is not primarily a public water management project as there is no evidence that the project relates in any way to flood control, water storage or supply, or conservation of water. Likewise, there is no evidence indicating that the activities will prevent access by the public by exclusion. Even though many of the features (structures) of the project will be permanent, the project is intended to generally increase public access to water resources, as well as the islands, boardwalk, and kiosks. Besides raising the issue of heightened public concern, the second HPC Memorandum dated April 22, 2008, sought guidance as to whether the project required a consent of use or an easement. The review panel concluded that the project qualified for a consent of use, rather than an easement under Rule 18- 21.005(1)(f), because the County's project most closely fits the definition in Rule 18-21.005(1)(c)15. That rule provides that if the proposed activity involves "[h]abitat restoration, enhancement, or permitted mitigation activities without permanent preemption by structures or exclusion of the general public," an applicant may use sovereign submerged lands with a consent of use. Because the County's project increases public access not only to water resources in the Lagoon but also to the permanent structures being built, it more closely falls within the type of activity described in Rule 18-21.005(1)(c)15. Notably, all of the County's restoration projects in the Lagoon have been previously authorized through a consent of use. Finally, the review panel concluded that the project did not fall under Rule 18-21.005(1)(f)16., which requires an easement for environmental management activities that include "permanent preemption by structures or exclusion of the general public" because of the rule's focus on the exclusion of the general public. Riparian Rights The parties have stipulated, for the purpose of this proceeding, that Trump and Flagler have riparian rights, including view, ingress/egress, fishing, boating, swimming, and the qualified right to apply for a dock, that should be considered. Trump and Flagler contend that their right to wharf out (build a dock) from the seawall, ingress/egress from navigable water, and view will be unreasonably infringed upon if the application is approved. See Fla. Admin. Code R. 18- 21.004(3)(a)("[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands"). For the reasons given below, the greater weight of evidence establishes that none of these riparian rights will be unreasonably infringed upon. Currently, while access is possible from the east and the southern approaches, existing shoals limit the southern approach. The boardwalk will further limit boat traffic on the south end, and boats would not be able to cross over the islands. Boat traffic will still be able to access the cove from the north end, and the restoration project will create a boating destination. Trump witness Pike opined that the County's project would negatively affect navigation between the upland parcels and the ICW because the project would eliminate the eastern and southern approaches and leave only the northern approach, which could not be used by both parcels fully. The County's expert, Dr. Nicholas De Gennarro, testified that, during his site visits, he observed boat traffic waiting for the drawbridges using the east side of the ICW away from the project site. Dr. De Gennarro noted that several existing structures are closer to the ICW than the proposed County project, which lies 220 feet away from the ICW. Thus, Dr. De Gennarro concluded that the project would not impact navigation in the ICW. With respect to ingress/egress, Dr. De Gennarro acknowledged that access to the Trump and Flagler properties would not be available from the southern and eastern approaches, but concluded that the restriction represented nothing more than an inconvenience. He noted that the southern approach was already a less preferable approach due to existing shoals. At present, there is very little boating in the area outside of special events. While the project would limit the use of boats directly over the one and one-half acres of mangrove islands, the project will provide a boating destination. Further, both the City docks to the north of the site and the temporary docks in front of Flagler's property –- both used for special events –- will still be available under the County's proposal. There is no swimming and very little fishing in the area because of the degraded conditions caused by the dredge hole. Accordingly, while the project will fill a small portion of water currently available, but not used, for swimming, it will greatly enhance swimming by providing a destination for swimmers. The mangroves planned for the intertidal islands are likely to reach a height of fifteen feet and will be interspersed with spartina. The seawall is located six feet above the water line, making a person's view at eye level already several feet above the water. Trump and Flagler's buildings are built at even higher elevations. Therefore, the mangroves will not substantially obscure the view from either property, even at street level where the view is already partially obscured by existing landscaping. The Lagoon is approximately 2,000 feet across. From north to south around one hundred acres of water can now be viewed from the vicinity. Since the intertidal islands only comprise one and one-half acres, the overall impact to the view of the water body is very small. The mangroves in the planters extending out from the seawall will be trimmed to one foot above the seawall; the County requested the condition and committed at hearing to trimming the mangroves if the City of West Palm Beach does not. County photographs show Trump and Flagler's present view of the water body and demonstrate the comparatively small percentage of the view affected by the one and one-half acres of mangrove islands. See County Exhibits 133a-e and 134a-d. The photographs also demonstrated that sizeable palm trees are already part of the existing view. Additionally, the County photographs depicted the small impact that trimmed mangrove planters would have on the view. The area obstructed by the mangrove islands and seagrass is negligible compared to the expanse of the existing view. Trump and Flagler offered no evidence to contradict the County's analysis regarding the scope of the impact on the view. Trump residents Dale McNulty, Dean Goodman, and Charles Lemoine testified that they personally would not want to view mangrove islands regardless of tree size or the size of the islands. Understandably, after years of unfettered view and an open expanse of water, they are opposed to any type of project in this area of the Lagoon. However, Mr. Goodman acknowledged that he would still be able to see the Town of Palm Beach from his unit. The evidence supports a finding that while the project will undoubtedly alter the view of the water from both Trump and Flagler's property, the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights. Mr. Lemoine stated that he had a forty-foot trawler that he would like to dock in front of his property. He currently docks the boat at a marina twenty miles north of the Trump property. He prefers to bring his boat in stern first and enter slips oriented north to south. He indicated that he can drive his boat in five feet of water, but prefers six feet; however, he also testified that he has brought his boat directly up to the bulkhead in front of Trump, which is approximately a two- or three-foot depth. The witness has seen sailboats and other boats moored near the bulkhead over extended timeframes. Mr. Lemoine speculated that Trump might seek a dock, either alone or in conjunction with Flagler, but admitted that Trump has never applied for a dock permit. He stated that Trump has had discussions about the possibility of a dock over the last fifteen years and speculated that a dock plan might include anything from the purchase/lease of the City docks to a lease of Trump's riparian interests to a third party. By contrast, Trump resident and former Board member Dean Goodman indicated "the idea was to provide an amenity [for] a number of people that are in the building that are boaters." Mr. Goodman stated that he hoped to be able to have a boat in front of the building someday, but did not own a boat in Florida. Association president Dale McNulty explained that, while informal discussions have occurred regarding the possibility of a dock, no official action had been taken. Mr. McNulty characterized the dock plans as being "sort of in the land of wishful thinking." Mr. Pike, while acknowledging that both parcels would still be able to design a dock for their property, opined that the County's project unreasonably limited the size and configuration of the docks possible. Mr. Pike initially admitted that a safe navigation depth for a forty-foot boat, or even a sailboat, was four feet below mean low water (MLW), but stated that he would prefer to design a dock with an additional two-to- three feet of water below the four-foot draft to avoid propeller damage. However, Mr. Pike conceded that he has designed docks for boats in four feet below MLW and ultimately based his own calculations on an assumption of a four-foot draft and one-foot cushion, or five feet below MLW. Mr. Pike also opined that a north-south alignment for boat slips was a preferred slip orientation. Given the bathymetry in the area and the documented seagrasses, Mr. Pike estimated that twenty slips could be designed for the Flagler property, rather than the thirty-four slips provided for by the County Manatee Protection Plan. He thought that a design might accommodate thirty to thirty-two slips for Trump, rather than the forty-slips provided for by the County Manatee Protection Plan. Based on the limitation on number of slips and configurations, the witness opined that the County's project would unreasonably interfere with Trump and Flagler's ability to design a dock. He admitted, though, that the numbers derived from the County Manatee Protection Plan represent a maximum number, rather than a specified or guaranteed number. He further admitted that other agency limitations may further restrict Trump and Flagler's right to dockage. Without a permit application or plan from Trump or Flagler, County witness Robbins concluded that the most reasonable assumption was an owner-oriented facility designed for the building owners/tenants. The County introduced a graphic illustrating areas available for dock construction, with sufficient depth for 35- to 40-foot boats (-6 feet NGVD) and with no seagrasses present. Rule 18-21.004(4)(b)2. limits ownership-oriented facilities generally to forty square feet for each foot of riparian shoreline, giving Trump the ability to apply for a dock that preempted a maximum of 16,000 square feet, and Flagler a maximum of 14,000 square feet. Under the County Manatee Protection Plan, Trump would be limited to forty slips; Flagler would have the potential for thirty-four slips. Mr. Robbins testified that, in his experience, a minus five MLW is a common depth for docks, but that elevations as shallow as a minus four MLW could be used depending on the type of boats and the dock configuration. Mr. Robbins explained that, even with the County's project in place and factoring in the other limitations, Trump would still have 61,842 square feet of potential space within which to design a dock. Flagler would still have 41,481 square feet of potential space, even considering the need to retain a path for ingress and egress from the Trump parcel. A more detailed analysis of the seagrasses might make more square footage available for dock construction. Dr. De Gennarro also evaluated whether a dock could be designed to serve Trump and Flagler's parcels. The vessel owner statistics for the County indicate that at least ninety-five percent of the boats registered in the County are thirty-nine feet or less; consequently, Dr. De Gennarro focused on boats forty feet or less. Dr. De Gennarro considered the water depths and the existence of subaquatic vegetations and concluded that the graphic presented by Mr. Robbins was conservative, but still provided adequate space for both Trump and Flagler to construct appropriate dockage, allowing thirty-eight boats for Trump and thirty-two for Flagler of varying size. However, Dr. De Gennarro concluded that a dock design of forty slips for each would also be possible, depending on the size of the boats. Dr. De Gennarro proposed that a single, double-loaded parallel dock design would be a good layout for a potential docking facility in front of both Trump and Flagler's property that would be protected by the County's proposed islands, provide sufficient water depths, and provide an attractive facility. He specified, however, that the single, double-loaded parallel dock design was simply one of "many" that might work in the given space. Dr. De Gennarro explained that the existing dredge hole would not be a preferable location for either a mooring field or a dock because the deep muck-bottom would drive up the costs for either type of facility. Accordingly, Dr. De Gennarro concluded that the County's project would not foreclose or even substantially restrict the ability to locate a dock in front of Trump and Flagler’s property. The more persuasive evidence supports a finding that neither the right of ingress/egress nor the right to boat in the vicinity is unreasonably infringed upon by the County's project. Trump and Flagler will continue to have reasonable access to navigation. The northerly approach preserved by the County's project will allow for boat traffic to safely navigate in the area. While the southerly and easterly approaches are eliminated by the County's plan, the evidence indicates that the two approaches were less preferable than the northerly approach because of the presence of shoals. Based on the above considerations, the County's project will not unreasonably infringe upon Trump or Flagler's qualified right to a dock. The fact that the project might preclude the design and permitting of a dock that would host very large vessels does not mean that Trump and Flagler's rights regarding docking have been unreasonably infringed. The evidence shows that substantial docking facilities of multiple configurations are still possible even if the County's project is approved. In summary, the County's application for proprietary authorization should be approved. Other Contentions All other contentions raised by Trump and Flagler have been considered and are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the County's application for a consolidated ERP and consent to use sovereignty submerged lands. DONE AND ENTERED this 24th day of September, 2009, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2009.
