Findings Of Fact Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.
Findings Of Fact By application number 21312, the applicant seeks a ten year water use permit for a total annual diversion of 3,831 million gallons to provide water and sewer services to an area containing approximately 7,300 acres. In September of 1969, the Florida Public Service Commission granted the applicant certificates of convenience and necessity. The existing facilities of the applicant include nine wells and an average capacity of 700 gallons per minute each. Based upon historical data and taking into accourt the reduction of construction in the service area, the projected 1984 water demand is 375 gallons per day per unit. This is equivalent to an average of 150 gallons per day per person, using a figure of 2.5 persons per living unit. The ultimate estimated population is to be 70,000 to 80,000 people with 28,000 to 32,000 living units. Based upon the average capacities of the wells, in order to meet the projected demand a total number of 22 or 23 wells will be required. This includes the nine existing wells, eleven proposed wells with the same 700 gallon per minute average and a fifteen percent standby capability of two or three additional wells. Rather than the total number of wells utilized -- 22 or 23, -- what is important is the total gallon per minute capacity of 15,400. An allocation based on this data would be equal to the applicant's requested annual maximum diversion of 3,831 million gallons and a daily maximum diversion of 18.37 million gallons. The requested diversion presents no threat of salt water intrusion. The proposed well sites will create no adverse impact upon the Fort Lauderdale well fields. While there is evidence of recharge to the aquifer from runoff waters, there is insufficient data to determine the exact amount which will be returned. For this reason, the staff report's water budget calculations are conservative.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that a ten year permit be issued to the applicant for a maximum annual diversion of 3,831 million gallons; a maximum daily diversion of 18.37 million gallons and a maximum installed field capacity of 15,400 gallons per minute, utilizing 22 or 23 wells with a capacity of 700 gallons per minute each. It is further recommended that the applicant be subject to the conditions set forth on page 5 of the staff report (Exhibit 8) concerning the submission of monthly reports of daily pumpage and actual connections or population served, conformance with health department standards of the water quality of all wells, and the installation and maintenance of an observation well and monthly reports of the data obtained therefrom. Respectively submitted and entered this 10th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. John R. Maloy Executive Director Central and Southern Florida Flood Control District P.O. Box V West Palm Beach, Florida 33402 Mr. Edward B. Deutsch 350 Southern Federal Building 400 North State Road 7 Margate, Florida 33063 Mr. John Wheeler P.O. Box V West Palm Beach, Florida 33402 Attorney for the Central and Southern Florida Flood Control District
The Issue The issue is whether Respondent's certification as a minority business enterprise should be revoked, as proposed by Petitioner in its letter dated December 20, 2001.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Civil Construction Technologies, Inc. (CCT), is a corporation engaged in the business of providing earthwork, clearing, canal excavation, and erosion control services for prime contractors. The firm was incorporated on April 6, 2000, and until November 2001, it was located at 1132 Northeast 48th Street, Pompano Beach, Florida. The business was then relocated to 3100 Northwest Boca Raton Boulevard, Boca Raton, Florida. The sole owner and shareholder is Bonnie S. Cramer, a female who qualifies as a minority under the Supplier Diversity & Outreach Program (Program) codified in Part VI, Chapter 40E-7, Florida Administrative Code. That Program is administered by Petitioner, South Florida Water Management District (District). CCT's application for certification as a minority business enterprise (MBE) was filed with the District on December 12, 2000, and was approved on December 15, 2000, in the areas of earthwork, clearing, canal excavation, and erosion control. The certification expires on December 15, 2003. Although the District had "some concerns" regarding Ms. Cramer's knowledge of the business during its review of the application, it gave her "the benefit of the doubt on the application because she had worked in the industry." On August 22, 2001, the District held a "partnering" meeting for all contractors, including CCT, on a pump station project awarded to Beers Stanska, Inc. (the Beers project). CCT was represented at the meeting by Ronald J. Coddington (Ron Coddington), a non-minority professional engineer who had worked on other District projects in the past and owns an earthwork company. Coddington's attendance on behalf of a minority contractor raised suspicions on the part of a District contract administrator, Jessica Flathmann, who also attended the meeting. Ms. Flathmann, who is now on active duty with the military, prepared a short note the same date requesting that the District's compliance section "[p]lease check out [CCT's] information (minority status) with state on-line info." The "state on-line info" refers to the Department of State's web site for Florida corporations. A subsequent name search under the Department of State's corporation records revealed that since at least 1987 Ms. Cramer had been an officer and/or director in a number of other corporations, including Team Land Holdings, Inc. (vice- president, secretary, treasurer, and 50 percent owner), Team Environmental Resources, Inc. (owner, president, vice- president, and secretary-treasurer), Team Land Development, Inc. (treasurer), Team Offshore Services, Inc. (secretary- treasurer), Team Marine Services, Inc. (director and secretary-treasurer), and R.J. Coddington and Associates, P.A. (vice-president). Except for Team Environmental Resources, Inc., Ron Coddington was a principal in, and owner of, all of the other corporations. Because Ms. Cramer had failed to acknowledge a relationship with any other firms on her application, the District decided to conduct an investigation concerning CCT's eligibility for MBE status. Based on a site visit to Ms. Cramer's office, and an interview with her, the District determined that decertification proceedings were appropriate. By letter dated December 20, 2001, as later clarified during discovery, the District alleged that CCT made a material misrepresentation on its original application for certification in violation of Rule 40E-7.653(2), Florida Administrative Code; that CCT "shared resources with a non-minority person or business in the same or an associated field" in violation of Rule 40E- 7.653(6)(a) and (b), Florida Administrative Code; and that CCT's owner, Ms. Cramer, "does not possess the knowledge and technical expertise to manage the day-to-day activities of her firm." Respondent denies all allegations. It also suggests that the District's real purpose in revoking the certification is because of animosity between certain District personnel and Ron Coddington, with whom Ms. Cramer has had a personal relationship and is now engaged to marry. Material Mispresentation The District first alleges that Petitioner made a material mispresentation on its application for certification by answering Question 20 in the negative. That question reads as follows: ARE ANY OWNERS, PARTNERS OR PRINCIPALS OF YOUR COMPANY AFFILIATED WITH ANY OTHER FIRM(S) AS EMPLOYEES, SHAREHOLDERS, OR DIRECTORS? If Yes, please list below, attach a written explanation of the business relationship and provide a financial statement for the affiliate firm(s). Ms. Cramer answered Question 20 "No." At the end of the application, she executed a lengthy affidavit acknowledging that all of the statements contained in the application were "true, accurate and complete." When the question was answered, Ms. Cramer was a vice-president, secretary, treasurer, and part-owner of Team Land Holdings, Inc., a corporation which owned the building listed as the business address for CCT and two corporations in which Ron Coddington was a principal. As to Team Environmental Services, Inc. and Team Land Development, Inc., however, the parties disagree on Ms. Cramer's status in those corporations at the time the application was filed. The other corporations are not in issue since they are no longer active or Ms. Cramer has resigned as an officer, director, or employee. Ms. Cramer was president, vice-president, secretary, and treasurer of Team Environmental Services, Inc. and filed the paperwork to incorporate the business. She indicated that the corporation "never did any business," had no income, closed its books in either April or August 2000, and filed its final tax return for calendar year 2000. Even so, Ms. Cramer continued to file annual reports with the Secretary of State for two more years after the corporation allegedly closed its books, and she did not file Articles of Dissolution for the corporation until April 2002, or just before her deposition in this case was taken. Given these circumstances, it is found that Ms. Cramer was still affiliated with an active corporation at the time she filed her application, and this information should have been disclosed. Beginning in 1987 and continuing until May 2000, Ms. Cramer was a director, officer, and employee of Team Land Development, Inc., a firm engaged in the earthwork business and owned by Ron Coddington. However, Ms. Cramer submitted into evidence a letter to Ron Coddington dated May 10, 2000, tendering her resignation as an officer and director. The authenticity of that letter was not challenged. She also testified that she resigned as an employee around March 2000. While the record shows that Ms. Cramer prepared and filed the annual report for the company in 2001, or after she had resigned as an employee, she explained that she was simply helping out by doing some "extra accounting" for the firm even though she was no longer on the payroll. In light of these circumstances, there is less than clear and convincing evidence that Ms. Cramer was affiliated with Team Land Development, Inc. at the time she submitted her application for certification, and thus she was not required to disclose her relationship with that entity. One of the purposes of Question 20 is to determine if an applicant has a parent company, affiliates, or subsidiaries. This information is then used by the District to determine whether the applicant has true management and control over the business or whether another entity has actual control over the applicant. The information is also used to determine whether the applicant meets the size standards for MBEs when combined with the affiliates. This is important because District regulations establish certain size thresholds (in terms of net assets and number of employees) which an applicant cannot exceed. It can be inferred from the evidence that for these reasons, the District considers the information in Question 20 to be material since the information is essential in order to properly review a MBE application. Ms. Cramer, who signed the application, suggested that Question 20 was ambiguous and unclear. However, Ms. Cramer never sought guidance from District personnel to clear up any confusion she might have, nor did she read the MBE rule itself. Rather, she interpreted the question as requiring an affirmative response only if she was affiliated with another firm involved "in [a] similar or same field" as CCT. Because the two corporations in which she was then affiliated did not provide the same or similar services as CCT, she responded in the negative. Question 20 is clear and unambiguous. It simply requires an applicant to identify any other corporation or entity in which the applicant is affiliated. The question does not mention, or even suggest, that an affirmative answer is required only if the other entity is in the same or similar field as the applicant's business. Respondent's contention that the question was ambiguous and susceptible to more than one interpretation has been rejected. The only remaining issue is whether the omitted information was "material" so as to constitute a ground for revocation of the certification. As noted above, the District considers the information derived from Question 20 to be material since that information is necessary to carry out its responsibility of determining an applicant's eligibility. Therefore, the failure by Ms. Cramer to disclose her relationship with two corporations was a material omission, as alleged in the letter of December 20, 2001. Did CCT share resources with a non-MBE? Petitioner next alleges that CCT shared resources with a non-minority person or business which is in the same field of operations in violation of Rule 40E-7.653(6)(a) and (b), Florida Administrative Code. Those provisions require that the minority owner demonstrate its independence and that the business does not share common ownership, directors, or facilities with a non-minority person or business in the same or related field of operations. Ron Coddington is the owner of Team Land Development, Inc. (TDI), an earthmoving company which performed contract work for the District until January 2002, and for whom CCT was a subcontractor on two District projects. TDI's business address was 1132 Northeast 48th Street, Pompano Beach, which is the same address used by CCT until November 2001. In addition, R.J. Coddington & Associates, Inc., an engineering firm owned by Ron Coddington, also listed that street address as its business address for the years 2000 and 2001. That firm provides engineering services through Mr. Coddington's professional engineering license. Thus, the three corporations shared the same address from April 2000 (when CCT was incorporated) until November 2001. A small office building is located at 1132 Northeast 48th Street and is owned by Team Land Holdings, Inc., a company in which Ron Coddington and Ms. Cramer each owns 50 percent of the stock. The exact configuration of the offices within the building is not clear although Ms. Cramer testified that the building once had three separate "suites," each with a separate entrance, and that CCT occupied an office in the back of the building with a conference table that was used for all CCT meetings. However, when District investigators visited the building for an interview with Ms. Cramer in October 2001, they entered a common entrance, met her in a "front" office area, and were not invited into a separate office in the back of the building. Likewise, when they interviewed Ron Coddington during the course of this proceeding, he also met them in the same front area and did not invite them into a separate office. Respondent contended that the three firms only shared a fax machine and a kitchen area used primarily for storage purposes. Even so, the more clear and convincing evidence supports a finding that three corporations, including at least one engaged in the same business as CCT, were sharing facilities, as prohibited by the rule. Therefore, it is found that from December 2000 when it was first certified, and until November 2001, CCT shared facilities (offices) with a non-MBE business (Team Land Development, Inc.) which was engaged in the same business (earthmoving) as CCT. Did Ms. Cramer possess the knowledge and experience to operate her business? Finally, the District alleges that Ms. Cramer "does not possess the knowledge and technical expertise to manage the day-to-day activities of her firm," as required by Rule 40E-7.653(5)(c)4., Florida Administrative Code. That rule requires that Ms. Cramer have "managerial and technical capability, knowledge, training, education and experience required to make decisions regarding that particular type of work." To support this allegation, the District relies upon a report prepared by the District's Inspector-General on December 6, 2001; the results of an interview with Ms. Cramer conducted in January 2002 by a professional engineer; and the deposition of Ms. Cramer taken during the spring of 2002 in preparation for the final hearing. Ms. Cramer's background is in accounting and bookkeeping. She is not an engineer. Indeed, on her personal income tax return for the year 2000, she listed her occupation as an accountant. She also admits that she is not an expert in earthmoving, nor does she have experience working at job sites overseeing that type of work. According to the resume attached to her application, and before CCT was incorporated, Ms. Cramer was employed in the following positions, some of which were apparently part- time: (1) bank teller and branch manager of a bank (1972- 1981); (2) bookkeeper for an upholstery firm (1981-1998); owner of a music store (1982-1985); accounting assistant for a general contractor (1985-1987); accounting assistant to a certified public accountant (1987-1998); and treasurer of Team Land Development, Inc. (1987-1999). The same resume represents that CCT's "typical work" includes canal excavation, erosion control and dewatering, and wetland construction. It also indicates that the firm provides "earthwork and construction solutions for prime contractors," as well as "skilled, knowledgeable personnel providing a variety of earthwork, erosion control and site environmental mitigation services." In issuing its proposed agency action, the District relied in part upon an investigation conducted by Mr. Sooker, a certified public accountant in its Inspector-General's Office. Mr. Sooker performed an on-site "audit" of CCT on October 30 and 31, 2001. The audit included an interview with Ms. Cramer and the examination of various documentation related to the business. In his report, Mr. Sooker concluded that CCT did not meet eligibility standards for a MBE for several reasons, including an opinion that Ms. Cramer "d[id] not possess the background, experience, and technical expertise to manage and control job site work activities." After the letter of December 20, 2001, was issued, Ms. Cramer requested a meeting with the District to demonstrate that she had the necessary experience to manage the day-to-day operations of an earthmoving company. The meeting was held in January 2002. At that time, a District professional engineer, Mr. Weldon, who has extensive experience in earthmoving, posed a series of questions to Ms. Cramer regarding her knowledge of that business. While Respondent contends that Mr. Weldon's interview was flawed in many respects, it is found that the interview was a reasonable and appropriate way in which to test Ms. Cramer's qualifications to operate an earthmoving business. In response to many of the questions, Ms. Cramer simply stated that she would rely on her foreman and project manager to resolve the issues raised by the engineer. As to the remaining inquiries, she failed to demonstrate any technical expertise in the area. Thus, the meeting reconfirmed the District's preliminary conclusion (found in Mr. Sooker's report) regarding Ms. Cramer's lack of technical expertise in the area for which CCT was certified. During a deposition taken prior to hearing, Ms. Cramer was also asked a series of questions pertaining to earthmoving to ascertain the degree of experience and competence that she possessed. Again, Ms. Cramer failed to demonstrate that she had the requisite experience necessary to manage her business. For example, Ms. Cramer was unfamiliar with the term "shrinkage," a term commonly used in the business; she could not describe a method for estimating canal excavation or factors necessary to make that estimate; she could not state what type of equipment would be used if the material being excavated had dense sand, weak limestone, or cemented shells; she was unaware that soil borings would indicate the presence of rock in the material being excavated; and she could not describe the process for excavating and constructing a berm "with haul that would affect equipment collection." An experienced person in the field of earthmoving would be expected to correctly answer most, if not all, of these inquiries. Thus, Ms. Cramer did not demonstrate any level of experience or firsthand knowledge in operating an earthwork company. While she was able to respond more accurately to some of these same questions at the final hearing, the undersigned assumed that she could do so only because the intervening time between the deposition and final hearing allowed her to consult with experts and prepare her answers. In addition, Ms. Cramer acknowledged that she has never been a project manager for any construction job, including those that CCT has contracted to perform; she has never operated any heavy equipment; she has never personally prepared job estimates involving plans and specifications by herself; she cannot read construction plans and specifications; she has not negotiated any contracts for CCT; and she has never attended any meetings that the District has held for the Beers project. On the Beers project, in which CCT is a subcontractor for the prime contractor, notices of safety violations by CCT employees are sent to Ron Coddington's attention, and the first subcontract agreement between Beers and CCT was also sent to his attention. In fact, in correspondence to CCT, the Beers office manager for the project assumed that Ron Coddington was president of the firm. At the same time, Ms. Cramer relies heavily on her foremen and Ron Coddington (who serves as a $1,600.00 per week consultant) to deal with all technical aspects of her business and to answer questions regarding the Beers project. She further acknowledged that she has delegated a number of tasks on the Beers project to Ron Coddington, such as providing estimates and bid takeoffs; providing on-site project management; preparing project schedules and monthly estimates; making on-site inspections; coordinating on-site surveys and quality control with CCT employees; assuming responsibility for owner and prime contractor conduct on the District pump station projects; and representing CCT at all job coordination meetings. Notwithstanding the above, Respondent contends that the Inspector-General's report dated December 6, 2001, is the primary underpinning for the District's case and that the report is flawed in numerous respects. For example, the Inspector-General's Office has an operations manual which spells out the manner in which investigations shall be conducted. Contrary to specific requirements in the operations manual, Mr. Sooker did not prepare, sign, and file a statement of independence, and he did not maintain and preserve working papers, outlines of questions, and interview notes in the investigative file. These deficiencies were confirmed through the testimony of Respondent's expert, Mr. Kirchenbaum, a certified public accountant, as well as the Inspector-General himself. While Mr. Sooker's investigation admittedly did not fully conform with the operations manual, his conclusions regarding Ms. Cramer's experience were independently verified and reconfirmed through the interview with Ms. Cramer in January 2002 and the answers given by her in the deposition taken in April 2002. Therefore, even if Mr. Sooker's report is ignored, there is other clear and convincing evidence to support the allegations in the letter of December 20, 2001. For the foregoing reasons, it is found that Ms. Cramer does not have managerial and technical capability, knowledge, training, education, and experience required to make decisions regarding the type of business in which she is certified, as alleged in the letter of December 20, 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order revoking the MBE certification of Civil Construction Technologies, Inc. DONE AND ENTERED this 25th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2002. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Catherine A. Linton, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Bradford J. Beilly, Esquire Bradford J. Beilly, P.A. 400 Southeast 18th Street Fort Lauderdale, Florida 33316-2820
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
Findings Of Fact Petitioner River Trails is the developer of a condominium community in Palm Beach County known as River Walk. River Walk is contiguous to and immediately adjacent to 2600 feet of South Florida Water Management District (hereinafter "SFWMD") property bordering Canal C-18 in Palm Beach County. The right- of-way adjacent to C-18 as well as the bottom of C-18 is owned by SFWMD. C-18 is not in an area designated as Outstanding Florida Waters. As required by Section 403.813(2), Florida Statutes, River Trails sought and obtained on January 12, 1984, a permit from the SFWMD to construct a dock and boat ramp in Canal C-18. The permit conveyed no property rights to River Trails. On October 12, 1984, River Trails asked DER to confirm that River Trails' proposed boat ramp qualified for an exemption pursuant to Section 403.813(2)(c), Florida Statutes. By letter dated December 20, 1984, DER informed River Trails that the proposed boat ramp did qualify for the exemption and, therefore did not require any permit from DER. On October 18, 1984, River Trails asked DER to confirm that River Trails' proposed dock of 1,000 square feet or less qualified for an exemption from DER's permitting authority pursuant to Section 403.813(2)(b), Florida Statutes. However, on November 30, 1984, DER informed River Trails that its proposed dock did not qualify for the exemption because there was already an existing dock on SFWMD property on Canal C-18. As authority for its position, DER cited the following sentence in DER Rule 17-4.04(9)(c), Florida Administrative Code: "A private dock is a single pier at a parcel of property." On the 2600 feet of SFWMD-owned right-of-way contiguous to River Trails, there are presently no docks. On SFWMD-owned right-of-way east of River Trails, between River Trails and the southwest fork of the Loxahatchee River, there are two docks approximately 300 feet apart located in front of single-family residences. DER contends all contiguous property owned by an individual, group or entity, including a water management district, constitutes a "parcel of property" and accordingly does not recognize River Trails' claim to an exemption because of the existence of these docks. Prior to River Trails' request that DER confirm River Trails' right to an exemption, DER had not interpreted water management district-owned right-of-ways to be a "parcel of property" within the meaning of Rule 17- 4.04(9)(c). In the past, the SFWMD has permitted numerous docks of less than 1,000 square feet on SFWMD-owned right- of-ways. Copies of these permits were routinely forwarded to DER. While these docks were and are on right-of-ways which DER now defines as a "parcel" within the meaning of Rule 17-4.04(9)(c), DER has not required permits for these docks. The DER employees who interpret the rule in question as part of their duties and whose depositions were introduced at hearing do not agree on the configuration which constitutes a single pier, on the degree of ownership or control required over a parcel of property by an applicant for an exemption, or on the definition of a parcel of property. DER has failed to adequately explain its deviation from past agency practice in interpreting SFWMD right-of- way as a parcel of property. But for DER's new interpretation of the term "parcel of property" found in Rule 17-4.04(9)(c), Florida Administrative Code, River Trails' proposed dock meets the statutory and rule requirements for an exemption from obtaining a permit from DER.
The Issue The issues in this case include: whether the Respondents constructed berms and ponds and dug ditches and filled wetlands on their Property in Highlands County without required permits, as alleged by the Southwest Florida Water Management District (SWFWMD) in its Administrative Complaint; and, if so, whether the Respondents are entitled to an agricultural exemption or an agricultural closed system exemption under Section 373.406(2)- (3), Florida Statutes.
Findings Of Fact Respondents' Activities on the Property In August 2003, the Respondents, José Fernando and Liliana Urrea Aristizabal, bought approximately 30 acres of land in Highlands County, near Lake Placid, south of Miller Road, to use for a palm tree nursery. This land (the Property) is in Section 30, Township 36 South, Range 29 East. There was a large marsh approximately in the center of the Property with additional wetlands surrounding the large marsh. On December 31, 2003, and again in February 2004, representatives of SWFWMD informed Mr. Aristizabal that, due to the presence of relatively high-quality wetlands on the Property, the plant nursery he intended to establish there would require an application for an environmental resource permit (ERP). After receiving this information from SWFWMD, Mr. Aristizabal retained a consultant to advise him. The consultant advised Mr. Aristizabal on how to construct an irrigation system that would be effective and permittable; however, the consultant cautioned him that construction would have to avoid impacting the wetlands on the Property. The consultant also advised Mr. Aristizabal as to the location of the wetlands on the Property, as well as the location of "potential wetlands." In response to the consultant's advice, Mr. Aristizabal dug a circular ditch around the large marsh in the center of the Property, with additional linear ditches radiating from the central, circular ditch and intersecting with a second, larger ditch around most of the perimeter of the irrigation system, extending along the east, north, and west sides of the Property. The ditches are approximately 5-7 feet wide and 5-7 feet deep. The soil from the ditches was spread between the linear ditches to raise the ground level and create planting beds. Mr. Aristizabal also deposited fill to the north and east of the perimeter ditch to create a berm approximately 4-6 feet wide and 2-4 feet high. Effects on Surface Waters of the State The evidence proved that there were approximately 11.64 acres of wetlands on the Property, including the large central marsh. Most of the ditches dug by Mr. Aristizabal and most of the fill deposited by him between the ditches were in wetlands. In all, approximately 0.86 acres of the wetlands on the Property were dredged, and approximately 4.97 acres of the wetlands on the Property were filled. The ditches intercept, divert, and impound surface water. The berms--particularly, the berm on the north side of the Property--also obstruct the flow of surface water. Agricultural Exemption Defense The Respondents did not apply for an agricultural exemption under Section 373.406(2), Florida Statutes, from the requirement to obtain an ERP. Instead, they raised the exemption as a defense to SWFWMD's enforcement action. Regarding the agricultural exemption defense, Mr. Aristizabal's berms and his ditching and filling of wetlands impounded, impeded, and diverted the flow of surface waters. These effects more than incidentally trapped or diverted some surface waters, e.g., as occurs when a pasture is plowed. For that reason, the activities were not consistent with the practice of agriculture. Even if those activities might be considered to be consistent with the practice of agriculture, they had the predominant purpose of impounding or obstructing surface waters. The berms and the ditching and filling of wetlands obstructed surface waters in that they had the effect of more-than- incidentally diverting surface water from its natural flow patterns. The ditches also impounded surface waters. SWFWMD reasonably determined that the predominant purpose of the berms and the ditching and filling of wetlands was to impound, impede, divert, and obstruct the flow of surface waters. Agricultural Closed System Exemption Defense The Respondents did not apply for an agricultural closed system exemption under Section 373.406(3), Florida Statutes. Instead, they raised the exemption as a defense to SWFWMD's enforcement action. The Respondents did not prove that their construction resulted in an "agricultural closed system." Rather, the evidence was that surface waters of the state are discharged from, and onto, the Property during most years. Requested Corrective Action SWFWMD seeks alternative corrective action by the Respondents: expeditiously apply for and obtain an after-the- fact permit; or expeditiously submit and perform an acceptable plan to restore the land to its natural grade and to remediate as necessary to restore any loss of wetland functions. The specifics of the requested alternative corrective action are set out in paragraphs 19 and 20 of the Administrative Complaint. The requested alternative corrective actions are reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Governing Board enter a Final Order requiring the Respondents to apply for the necessary after- the-fact permit and/or restore wetland impacts, as described in Finding 12, supra. DONE AND ENTERED this 21st day of August, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2008. COPIES FURNISHED: David L. Moore, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 José Fernando Aristizabal Liliana Urrea Aristizabal 6650 Southwest 189th Way Southwest Ranches, Florida 33332 Joseph J. Ward, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604
The Issue The issue to be determined in this case is whether Respondent Oculina Bank is entitled to a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization to construct three single-family homes, an access drive, surface water management system, and three single-family docks in Indian River County.
Findings Of Fact Parties Petitioner Pelican Island Audubon Society has more than 25 members residing in Indian River County, was in existence for more than a year before Oculina Bank filed its application for the Permit, and was formed for the purpose of protecting the environment, fish, and wildlife resources. Petitioners Carolyn Stutt and Garrett Bewkes live approximately one mile north of the proposed project site, on John's Island, which is on the opposite side of the Indian River Lagoon from the proposed project site. Petitioner Carolyn Stutt uses the Lagoon for boating, nature observation, nature photography, and sketching. Petitioner Garrett Bewkes uses the Lagoon for boating and fishing. Petitioners Orin Smith and Stephanie Smith did not testify at the final hearing nor present other evidence to show they have substantial interests that could be affected by the proposed project. Respondents did not stipulate to any facts that would establish the Smiths’ substantial interests. Respondent Oculina Bank has an undivided ownership interest in the project site and is the applicant for the Permit that is the subject of this proceeding. DEP is the state agency responsible for regulating construction activities in waters of the State. DEP also has authority to process applications for authorization from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") to use sovereignty submerged lands for structures and activities that will preempt their use by the general public. The Project Site The project site is 15.47 acres and located along 45th Street/Gifford Dock Road in Vero Beach. It is on the western shoreline of the Indian River Lagoon. The Lagoon in this area is part of the Indian River- Malabar to Vero Beach Aquatic Preserve. It is an Outstanding Florida Water. The Lagoon is an estuary, but it is almost non-tidal in this area. There is a seasonal rise in sea level that occurs from August to November and it is during this season that waters of the Lagoon flood into adjacent wetlands. The wetlands may be inundated at other times as a result of large storms. The wetlands along the western shore of the Lagoon play a role in regional tarpon and snook fisheries. Wetlands provide essential refuges for early-stage tarpon and snook. When the wetlands are inundated, larval tarpon and snook can move into the wetlands and seek out shallow areas to avoid predation by larger fish. The project site is dominated by salt marsh wetlands. In order to control salt marsh mosquitoes, the site was impounded by the Indian River Mosquito Control District sometime in the 1950s by excavating ditches and building earthen berms or dikes along the boundaries of the site. The mean high water line of the Lagoon in this area is 0.78 feet. The berms were constructed to an elevation of about five feet, but there are now lower elevations in some places. The wetlands on the site are isolated for much of the year because the waters of the Lagoon cannot enter the wetlands unless the waters rise above the lowest berm elevations. This connection only occurs in unusually high water conditions. The impoundment berms have decreased the frequency and duration of the project site’s inundation by waters from the Lagoon. There are almost 14 acres of wetlands impounded by the berms. The impounded wetlands are dominated by salt grass. There are also mangroves, mostly white mangroves, along the side slopes of the berms. Most of the upland areas are dominated by Brazilian pepper trees and Australian pine trees, which are non- native, invasive vegetation. Within the wetlands are three ponds. Before the project site was impounded for mosquito control, it had "high marsh" vegetation such as saltwort and glasswort, as well as black and red mangroves. The impoundment resulted in the reduction of these species. There is now reduced nutrient export from the impounded wetlands to the Lagoon. The project site still provides nesting, denning, and foraging habitat for birds and other wildlife. However, the environmental health and productivity of the wetlands on the site have been reduced by the impoundment berms. The adverse effects of impounding wetlands for mosquito control are widely understood by environmental scientists. Therefore, reconnecting impounded wetlands along the Indian River Lagoon has been a local and state governmental objective. North and south of the project site are salt marsh wetlands that have been restored. To the north is a portion of the mitigation area for a development called Grand Harbor. To the south is the CGW Mitigation Bank. Both adjacent wetland areas were restored by reconnecting them to the Lagoon and removing exotic vegetation. The restored wetlands to the north and south now contain a dominance of saltwort and glasswort. They also have more black and red mangroves. These environmental improvements, as well as an increase in species diversity, are typical for former mosquito control impoundments that have been restored. In the offshore area where the three proposed docks would be constructed, there are scattered seagrasses which are found as close as 25 feet offshore and far as 100 feet offshore. They include Manatee grass, Cuban shoal grass, and Johnson’s seagrass. The Proposed Project The proposed home sites are on separate, recorded lots ranging in size from 4.5 acres to 6.5 acres. The home sites would have 6,000 square feet of "footprint." The houses would be constructed on stilts. There would be a single access driveway to the home sites, ending in a cul-de-sac. The displacement of wetlands that would have been required for the side slopes of the access drive and cul-de-sac was reduced by proposing a vertical retaining wall on the western or interior side of the drive. Each home site has a dry retention pond to store and treat stormwater runoff. The ability of these retention ponds to protect water quality is not disputed by Petitioners. The home sites and access drive would be constructed on the frontal berm that runs parallel to the shoreline. However, these project elements would require a broader and higher base than the existing berm. The total developed area would be about three acres, 1.85 acres of which is now mangrove swamp and salt marsh and 0.87 acres is ditches. One of the onsite ponds would be eliminated by the construction. The houses would be connected to public water and sewer lines. Oculina Bank would grant a perpetual conservation easement over 11.69 acres of onsite salt marsh wetlands. It would remove Brazilian Pepper trees, a non-native plant, from the site. Petitioners' original objection to the proposed project and their decision to file a petition for hearing appears to have been caused by Oculina Bank's proposal to build docks over 500 feet in length. The dock lengths in the final revision to the project vary in length from 212 to 286 feet. The docks do not extend out more than 20 percent of the width of the waterbody. The docks do not extend into the publicly maintained navigation channel of the Lagoon. Because the docks meet the length limit specified in Florida Administrative Code Chapter 18-21, they are presumed not to create a navigation hazard. To reduce shading of sea grasses, the decking material for the docks would be grated to allow sunlight to pass through the decking. There are no seagrasses at the waterward end of the docks where the terminal platforms would be located and where boats would usually be moored. The dock pilings will be wrapped with an impervious membrane to prevent the treatment chemicals from leaching into the water. In Oculina I, the Administrative Law Judge determined that the condition for vessels moored at the proposed docks should be stated as a maximum permissible draft. The Permit imposes a maximum draft for boats using the docks. Fish Survey Oculina Bank conducted a fish sampling survey in 2014 to obtain additional information about the presence of tarpon, snook, rivulus, and other fish on the project site. Twenty-three sampling stations were established and sampled from January 16, 2014 to February 16, 2014. The survey was conducted during a period of seasonal high water in order to catalog the highest number of fish that might migrate in and out of the site during high water. Oculina Bank collected five species of fish that are typically found in impounded areas. No tarpon or snook were found. Oculina Bank did not find Florida Gar or Least Killifish during the fish survey, but Dr. Taylor observed these two species on his site inspection in 2015. He also saw three to five juvenile tarpon. No testimony about snook was presented at the final hearing nor was this fish mentioned in Petitioners’ Proposed Recommended Order. Mangrove Rivulus Rivulus marmoratus, or mangrove rivulus, is designated a species of special concern by the FWC. See Fla. Admin. Code R. 68A-27.005(2)(b). Species of special concern are those species for which there are concerns regarding status and threats, but for which insufficient information is available to list the species as endangered or threatened. Some research indicates rivulus are more common than originally believed. Certain populations of rivulus in Florida are healthy and thriving. A team of scientists who participated in a biological status review of the rivulus for the FWC recommended that the rivulus be delisted. The team included Dr. Taylor and Dr. Wilcox. In Oculina I, Dr. Gilmore did not find any rivulus on the project site, but he expressed the opinion that the site had rivulus habitat and they were probably on the site. In his more recent visits to the project site in conjunction with the current proceeding, Dr. Gilmore did not observe any rivulus. Oculina Bank did not find any rivulus during its fish survey. Dr. Taylor sampled for rivulus on the site on five different days in 2015 and found five rivulus in a ditch outside (waterward) of the impoundment berm. Dr. Taylor sampled “extensively” for rivulus in the interior of the project site, but found none there. Still, he believes there are probably some in the interior. The area where the rivulus were found outside the impoundment berm would not be changed by the proposed project. However, Oculina Bank’s proposal to scrape down the impoundment berm would eliminate many crab burrows, which are habitat for the rivulus. Dr. Taylor and Dr. Wilcox agreed that rivulus are more likely to be found in areas that are tidally connected. The preponderance of the evidence does not support Petitioners’ claim that the proposed project would, on balance, adversely affect the mangrove rivulus. However, the recommended permit modifications should benefit the species. Tarpon In Oculina I, Dr. Gilmore testified that the project site was “one of the critical habitats maintaining regional tarpon fisheries.” However, he only observed one “post larval” tarpon in 2012 and none in 2014. Dr. Gilmore stated that a small mesh seine is the best method to sample for these nursery phase tarpon, but he never used such a seine to sample for them on the project site, nor did anyone else. Extensive evidence regarding on-site investigations and literature related to tarpon was presented at the final hearing. Sometimes the testimony failed to distinguish between early stage (larval) tarpon and later stage (juvenile) tarpon, whose habitat needs are not the same. The nursery and refuge functions of the wetlands on the project site relate primarily to larval tarpon, not juvenile tarpon. The shallow ponds on the project site are an important habitat type that can be used by larval tarpon when related hydrologic conditions are compatible. The preponderance of the evidence does not support the characterization of the wetlands on the project site as “critical habitat” for tarpon in the region. The current hydrologic conditions diminish the value of the nursery and refuge functions provided by the wetlands. Improving the connection between the wetlands and the Lagoon can enhance the tarpon nursery function if the improved connection is made without giving predators of larval tarpon access to the interior ponds. Dr. Gilmore stated, “you don’t have to take down the entire dike, you can create low spots.” By low spots, he means areas like the one that currently exists in the southern impoundment berm that is at about elevation 2.0 feet. The preponderance of the evidence shows the proposed project would not adversely affect the nursery function of the wetlands for tarpon if the recommended modifications are made to the Permit to improve the connection to the Lagoon while keeping the interior ponds isolated from the Lagoon for most of the year. Mitigation DEP conducted a Uniform Mitigation Assessment Methodology (“UMAM”) analysis for the proposed project that assumed direct impacts to 2.72 acres of mangrove swamp. It did not account for secondary impacts that could be caused by the proposed project. DEP’s UMAM analysis determined there would be a functional loss of 1.269 units. It further determined that these losses would be offset by the creation of 0.88 acres of salt marsh and the enhancement of 10.81 acres of mangrove swamp, resulting in a net functional gain of 2.342 units. DEP concluded that, if functional losses caused by secondary impacts were included, there would be a functional loss of 2.350 units, which still results in a net gain of 3.056 units. Because DEP determined there would be a net gain in functional value, it did not require Oculina Bank to provide additional on-site mitigation or to purchase mitigation credits from an off-site mitigation bank. The UMAM analysis performed by DEP did not adequately account for the lost tarpon nursery function and the proposed mitigation could further diminish the nursery function. The purchase of mitigation bank credits would not offset the lost nursery function because the mitigation bank was not shown to provide a nursery function.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Department of Environmental Protection issue Permit No. 31-0294393-003-EI, with the following modifications: The impoundment berm will not be scraped down to mean sea level, but, instead, two new low spots will be created in the impoundment berm at an elevation of approximately 2.0 feet. A new isolated pond will be created to replace the one that will be eliminated by the construction, similar in size to the one that will be eliminated. Internal ditches and other channels will be filled as needed to eliminate predator access to the ponds. If these modifications are not made, it is recommended that the Permit be denied. DONE AND ENTERED this 1st day of June, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2016. COPIES FURNISHED: Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608-4922 (eServed) Glenn Wallace Rininger, Esquire Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Nicholas M. Gieseler, Esquire Steven Gieseler, Esquire Gieseler and Gieseler, P.A. 789 South Federal Highway, Suite 301 Stuart, Florida 34994 (eServed) Jonathan P. Steverson, Secretary Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Craig Varn, General Counsel Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
