Findings Of Fact Respondent William O. Reynolds filed with Respondent Department of Environmental Regulation an application to construct a weedgate and fence at the mouth of a dead-end canal in Atlantis Estates Subdivision located on Big Pine Key in Monroe County, Florida. When the Department noticed its intent to issue a dredge and fill permit to Reynolds, Petitioner James A. Abbanat filed his objection. That cause was referred to the Division of Administrative Hearings for conduct of a formal hearing and was assigned DOAH Case No. 84-1508. On March 8, 1985, a Recommended Order was entered in that cause find in, inter alia, that the proposed project would be constructed in Class III waters of the State (Outstanding Florida Waters), that the weedgate and fence should cause no state water quality violations and should not unreasonably interfere with navigation, that they should actually improve water quality and navigation within the canal and should not significantly decrease water quality outside of the canal, that the project would not be contrary to the public interest, and that the applicant had provided reasonable assurances that the project would not violate Department standards, rules, or applicable statutes. Although the permit application was not certified by a professional engineer registered in the state of Florida, the Recommended Order concluded that that technical deficiency should not form the basis for denying the permit but rather that the permit should be granted with conditions. On April 22, 1985, a Final Order was issued adopting the Recommended Order but denying the permit application solely due to the lack of certification of the permit application by a professional engineer registered in the state of Florida. Despite the denial of his application for a permit, Respondent William O. Reynolds caused to be constructed a weedgate and fence. At some undisclosed time Reynolds did, however, submit to the Department of Environmental Regulation a set of drawings for the fence and weedgate. Although the drawing for the weedgate as built was certified by a professional engineer registered in the State of Florida, no fence drawing was so certified and the fence as built was located differently than the fence as shown in the drawings. The drawings showed a fence extending from the weedgate through the cove at the entrance to the canal for a distance of 200 feet, while the fence as installed is 100 feet in length and is located within the canal itself. On August 19, 1986, Respondents entered into a consent order acknowledging the prior denial of Reynolds" application due to lack of certification of the permit application, reciting that certification had been obtained, and authorizing the project. Interested persons were not notified of the entry of the consent order. Accordingly, when Petitioner Abbanat learned of its existence and filed his objection to the entry of that consent order, the Department of Environmental Regulation afforded the required point of entry into administrative proceedings and referred the matter to the Division of Administrative Hearings for the conduct of a formal hearing. That objection initiated this cause. The weedgate as built is in substantial accord with the plans submitted to the Department by Reynolds and certified by Joel Rosenblatt, a professional engineer registered in the state of Florida. The design, location, and size of the weedgate as built is substantially similar to that proposed in DOAH Case No. 84-1508. The weedgate as built has the same system of cables and weights and is supported by support posts on each side. As built, the weedgate opens in the middle to permit unimpeded ingress and egress of boats. The weedgate causes neither interruption of water flow nor erosion. The effect of the weedgate as built on state water quality standards is the same as the effect determined in DOAH Case No. 84-1508, i.e., the presence of the weedgate causes no water quality violation either in the canal or in the water just outside the gate and fence. The presence of windblown wrack in the canal was the major cause of state water quality violations. The sole purpose of the gate and fence is to prevent wrack from entering the canal and decaying there causing lowered dissolved oxygen levels and anoxic and/or anaerobic conditions. There has been little or no wrack in the canal since the weedgate and fence were installed, and the weedgate and fence are beneficial to and appear to have improved the water quality in the canal. The 200-foot fence across the cove at the mouth at the canal shown in the drawings submitted to the Department of Environmental Regulation does not exist since it has been prohibited by the Department of Natural Resources. Instead, Reynolds constructed a 100-foot fence perpendicular to the north side of the weedgate and joined to the rip-rap on the north side of the canal which forms the south edge of the cove. The fence as built prevents wrack from being blown around the gate into the canal, does not affect the water quality in the canal or in the cove, and does not interfere with navigation. The cove itself collects wrack to some degree under natural conditions and without the fence to the south of it because all discontinuities on the Florida Keys eastern coastline tend to trap windblown wrack until it is moved elsewhere by wind or current. The cove does collect more wrack since the fence was installed than it did before the fence was installed; however, estimating the amount would be speculative. Although Petitioner's lot adjoins the canal, it does not adjoin the cove. The owner of the property which does adjoin the cove favors the existing weedgate and fence. The placement of the weedgate and fence does not interfere with navigation in or out of the canal. It is a policy of the Department of Environmental Regulation to issue a consent order for a project if the project has already been built and is of such design and quality that the Department would be able to issue a permit for it had a proper permit application been filed. The weedgate and the fence are of such design and quality that the Department would be able to issue a permit had Reynolds resubmitted his application showing the revised location of the fence and if the drawings were certified by a professional engineer. It was determined in DOAH Case No. 84-1508 that the project was not contrary to the public interest. Since that time the standard has changed from "not contrary to the public interest" to "in the public interest." Although the Department presented only conclusory evidence that it had received reasonable assurances that the public interest standard is met by the project as built, Petitioner allowed that evidence to stand uncontroverted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving the consent order signed by the Department of Environmental Regulation and William O. Reynolds on August 19, 1985, and ratifying the conditions contained therein. DONE and RECOMMENDED this 21st day of January 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January 1987. APPENDIX DOAH CASE NO. 86-1091 The Department of Environmental Regulation's proposed findings of fact numbered 1, the first two sentences of 2, 3-5, 10-12, 14-17, 19, and 20 have been adopted either verbatim or in substance in this Recommended Order. The remainder of the Department of Environmental Regulation's proposed findings of fact have been rejected as follows: the third sentence of 2 as not being a finding of fact; the first two sentences of 9 as being unnecessary; the last two sentences of 9 as not being supported by the record; and 13 and 15 as being irrelevant to the issues herein. Respondent Reynolds' proposed findings of fact numbered 1, 5, and 6 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Reynolds' proposed findings of fact have been rejected as follows: 2-4 and 5 as being unnecessary for determination herein, and 7 as being not supported by the record in this cause. Petitioner's proposed finding of fact numbered 5 and the first sentence of number 4 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Petitioner's proposed findings of fact have been rejected as follows: 1 and 2 as being unnecessary; 3 and 6 as not being supported by the record in this cause; 5 and 10 as being contrary to the weight of the credible evidence; and 7 and the second and third sentences of 4 as not constituting findings of fact. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James A. Abbanat 5561 S.W. 3rd Court Plantation, Florida 33317 William O. Reynolds Route 1, Box 661-E Big Pine Key, Florida 33043 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue The ultimate issue for determination is whether the Petitioner has met the requirements of Sections 403.918 and 403.919, Florida Statutes, for the issuance of a dredge and fill permit within the waters of the State of Florida.
Findings Of Fact The Department takes exception to the Hearing Officer's statement in Finding of Fact No. 5 that the fill "over time will become inhabited by the types of life which live at the edge of the water and land." The Department argues that the record contains no competent, substantial evidence to support such a finding of fact. The law prohibits me, as agency head, from rejecting any finding of fact in a recommended order that is supported in the record by competent, substantial evidence, but I can and should reject findings of fact which are not supported in the record by competent, substantial evidence. Section 120.57(1)(b)10., Florida Statutes. In this case I must agree with the exception. A review of the entire record reveals no competent, substantial evidence to support the finding of fact. The only record evidence remotely bearing on the matter is that portion of the testimony of Dr. Peebles where he stated that "there probably are some small animals and little salamanders and whatever that live in that area, but I don't believe that they would all die. I think they migrate out into the other natural area that I'm leaving." (Tr. at 21) 2/ This testimony does not support the finding of fact, and the record contains no other evidence even remotely bearing on the matter. Therefore, I reject this finding of fact and accept the exception of the Department. The Department next takes exception to Finding of Fact No. 11 in which the Hearing Officer states that "However, this effect [on the life cycle of fish] will be minimal and would not itself cause significant damage to fishing or the lake." Once again, the Department contends that there is no competent, substantial evidence in the record to support the finding. Dr. Peebles testified: I can't honestly believe that me filling 14.3 percent, of my frontage is going to effect the health, safety, welfare and property of other people. The same goes for . . . whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Now, this is a case where to argue that on a factual basis would require expert witnesses that would say yes and others that would say no. I think we would find conflicts on all of these subjects. (Tr. at 19) Dr. Peebles also testified that "14.3 percent of the shoreline for the use of the owner is not a serious thing. So I don't think any far reaching serious impacts will occur by granting [the permit]." (Tr. at 75) The only other statement in the record which arguably supports the finding of fact is a statement made by Dr. Peebles while questioning the Department's witness. There Dr. Peebles stated that "I know for a fact -- I'm a fisherman. I fish in the lake. It's a good fishing lake, and with all the construction that's already taken place you've still got good water quality." (Tr. at 70-71) Whether the proposed project and the cumulative impact of reasonably expected future similar projects will have a minimal or significant impact on fishing and the lake is an area requiring specialized knowledge, skill, experience or training. Although the lay opinion of Dr. Peebles may be helpful in supporting expert testimony, lay opinion standing alone may not under law establish what the impacts would be. Dr. Peebles acknowledges that he is not an expert in ecology or the environment, and admits that expert testimony is needed to determine whether granting the permit will adversely affect the conservation of fish and wildlife. (Tr. at 19) Therefore, Dr. Peebles' opinion that there will be no adverse effect on conservation of fish and wildlife (Tr. at 19) and that the filling of "14.3 percent" of the shoreline for the use of the owners will not have "any far reaching serious impacts" (Tr. at 75) is not supported by expert testimony and is not sufficient evidence to support the finding of fact. Section 90.701(2), Florida Statutes; Ehrhardt, Florida Evidence 387 (2d ed. 1984); Husky Industries v. Black, 434 So. 2d 988, 992 (Fla. 4th DCA 1983) ("Expert testimony is not admissible at all unless the witness has expertise in the area in which his opinion is sought.") Furthermore, the statement that Dr. Peebles made while questioning the Department's witness is not evidence. To the extent that it might be liberally construed as evidence in view of the fact that he was not represented by counsel, the existing fishing quality of the lake is not relevant to the impact of future filling of wetlands around the lake. On the other hand, Mr. Jeremy Tyler, accepted as an expert in the areas of the environment and water quality, (Tr. at 52) testified that the cumulative impact of granting Dr. Peebles' permit and similar permits reasonably expected would result in an adverse impact on conservation of fish and wildlife, (Tr. 35-41, 49-51, 54-55) and ultimately would result in a violation of water quality standards. (Tr. at 60, 64 and 69) Therefore, not only is there no competent, substantial evidence in the record to support the finding of fact, but there is uncontroverted expert testimony to the contrary Therefore, I accept this exception. The Department also takes exception to any implication in Finding of Fact No. 11 that the Department's only concern is with cumulative impacts. I do not read the Recommended Order as making any such implied finding. The record shows that the Department concluded that reasonable assurance had been provided that the instant project, standing alone, would not result in water quality violations, (Tyler, Tr. at 51, 60, 64) but that water quality violations will occur and the project is contrary to the public interest when the cumulative impact of reasonably expected future permit applications are taken into consideration. (Tyler, Tr. at 35-41, 49-51, 54-55, 60, 64 and 69) This does not suggest that the Department's only concern in such permitting decisions is cumulative impacts. It only means that under the facts of this application, the only remaining concern is the cumulative impact of reasonably expected future permit applications. The exception is rejected. The Department takes exception to Finding of Fact No. 12 to the extent that the statement "Mitigation of the impacts to fishing is not practical" implies that the only negative impact of the proposed project is to fishing. As noted in my discussion of Point 3 above, the record contains competent, substantial evidence that when the cumulative impacts of reasonably expected future projects are considered, water quality violations will result and the proposed project will be contrary to the public interest. I have reviewed the entire record and find no competent, substantial evidence to support a finding that the impact of the proposed project and cumulative impact of reasonably expected future projects would be limited to fishing quality. To the extent that the Recommended Order implies such a limited impact I reject the implication and accept the exception. The Department's final exception to findings of fact argues that Finding of Fact No. 14 improperly implies that the proposed project would not impair water quality. Finding of Fact No. 14 states, "The amount of fill proposed in this application would not place the lake at risk or impair fishing; however, if additional such permits are approved it may at some point impair the waters and fishing." Although some semantic difficulties arise out of the Hearing Officer's use of the terms "place the waters at risk" and "impair the waters," the finding of fact is consistent with - testimony of Mr. Tyler that reasonable assurance had been provided that this proposed project, standing alone, would not violate water quality standards. (Tr. at 51) The finding is also consistent with the testimony that when the cumulative impact of this project and similar reasonably expected projects are considered, reasonable assurance had not been provided that water quality standards will not be violated and that the project is not contrary to the public interest. (Tr. at 60, 64 and 69) However, the impact of the project on the water quality of the lake is a matter that requires expert testimony. As in the case with the impact on conservation of fish and wildlife discussed above, Dr. Peebles introduced no expert testimony regarding the impact of the project on water quality. On the other hand, the Department's expert witness testified that although reasonable assurance had been provided that the project, standing alone, would not violate water quality standards, (Tyler, Tr. at 51) he also testified that the project by itself would have some adverse impact on water quality. (Tyler, Tr. at 51) Therefore, any implication that the project by itself would not impair the water quality of the lake lacks support in competent, substantial evidence and is contrary to unrebuted expert testimony. To the extent the Hearing Officer's finding implies that the project will not impair water quality, such a finding can not affect the outcome of this case because impairment of water quality is not a proper legal criterion for deciding whether to grant or deny the permit. The proper criterion is whether reasonable assurance has been provided that the project will not violate water quality standards. Cf. Houle v. Department of Environmental Regulation, 10 FALR 3671 (DER Final Order, June 13, 1988), per curiam aff'd, 538 So.2d 1257 (Fla. 1st DCA 1989); Brown v. Dept. of Environmental Regulation, 9 FALR 1871, 1875 (DER Final Order, March 27, 1987), per curiam aff'd, 531 So.2d 173 (Fla. 4th DCA 1988). Since the implied statement of the Hearing Officer does not affect the outcome of this case, any error is harmless and I reject the exception. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Burden of Proof The Department contends that the Hearing Officer erred in not placing the burden of proof on Mr. Peebles to show that the project is not contrary to the public interest when the cumulative impact of reasonably expected similar future projects are taken into consideration. An applicant for a permit has the burden of proof or persuasion to show entitlement to the permit. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). In order to show entitlement to a dredge and fill permit, an applicant must show that he has provided reasonable assurance that water quality standards will not be violated and that the project is not contrary to the public interest, and both of those tests must take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Sections 403.918(1), (2) and 403.919, Florida Statutes; Caloosa Property Owners' Ass'n v. Dept. of Environmental Regulation, 462 So.2d 523 - (Fla. 1st DCA 1985). 3/ The applicant's burden of proof includes the burden of giving reasonable assurance that cumulative impacts do not cause a project to be contrary to the public interest or to violate water quality standards. Concerned Citizens League of America, Inc., v. IMC Fertilizer, Inc., et al., 11 FALR 4237, 4244 (DER Final Order, March 29, 1989); Brown v. Dept. of Environmental Regulation, 9 FALR at 1877. At the hearing, the Department introduced expert testimony that reasonable assurance had not been provided that the project would not cause violations of water quality standards and was not contrary to the public interest when the cumulative impact of reasonably expected future projects were considered. (Tyler, Tr. at 35-41, 49-51, 54-58, 60, 64 and 69) Dr. Peebles, who bore the burden of persuasion, introduced no competent, substantial evidence to show that when cumulative impacts had been considered the necessary reasonable assurances had been provided. 4/ Dr. Peebles argues that his project will only fill in 14.3 percent of his shoreline, and only increase the percentage of the lake's wetlands that have been filled to 31.6 percent from the already existing 30 percent. However, it is not the incremental increase that causes the project to be not permittable, it is the cumulative impact of reasonably expected future projects, and Dr. Peebles failed to carry his burden of persuasion as to the cumulative impacts. Since Dr. Peebles did not carry his burden of persuasion he was not entitled to the permit as a matter of law, and the Hearing Officer erred in concluding that the permit should issue. Therefore, the Department's exception is accepted. Cumulative Impacts The Department takes exception to the Hearing Officer's conclusion of law that: Application of the cumulative effect principle denies the applicant a permit because of the destruction of wetlands by other landowners. The lack of emphasis on enforcement creates a disincentive to comply with the state's regulation of the waters. If those landowners who illegally filled the waters of the state were required to restore the wetlands they destroyed, then new applicants also could fill small portions of wetlands to enhance their use of their property without worrying about cumulative effects. (Recommended Order at 6) At this point it may be helpful to explain the role of cumulative impact analysis. The Department is required to take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Section 403.919, Florida Statutes; Brown v. Department of Environmental Regulation, 9 FALR 1871, 1876 (DER Final Order, March 27, 1987) (cumulative impact analysis is mandatory). Cumulative impact is not a third test, but rather a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards and will not be contrary to the public interest. Concerned Citizens League of America, Inc. v. IMC Fertilizer Inc., 11 FALR 4237 (DER Final Order, March 29, 1989). As my predecessor Secretary Tschinkel observed: Without the ability to consider long-term impacts of a project (in combination with similar projects in the area considered "reasonably likely"), DER would be helpless to prevent gradual worsening of water quality and piece-meal elimination of biological resources inflicted by a proliferation of small projects. Morales v. Department of Environmental Regulation, 7 FALR 4786 (DER Final Order, September 18, 1985). The cumulative impact doctrine was originally developed as policy by the Department. It was subsequently codified by the Legislature in 1984 as Section 403.919, Florida Statutes. Chipola Basin Protective Group, Inc. v. Dept. of Environmental Regulation, 11 FALR 467, 476 (DER Final Order, December 29, 1988). - The doctrine was approved by the courts in Caloosa Property Owners Association v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). The cumulative impact statute, Section 403.919, is entitled "Equitable distribution." As the title suggests, the purpose of cumulative impact analysis is to distribute equitably that amount of dredging and filling activity which may be done without resulting in violations of water quality standards and without being contrary to the public interest. In order to determine whether the allocation to a particular applicant is equitable, the determination of the cumulative impacts is based in part on the assumption that reasonably expected similar future applications will also be granted. It does not necessarily follow, however, that all similar future applications must be granted if the current application is granted. Although the Department must be consistent in its permitting decisions to the extent possible and consistent with the public interest, (Rule 17-103.160, Fla. Admin. Code) each future application must stand on its own merit and must provide anew the necessary reasonable assurances subject to cumulative impact analysis. Manasota- 88, Inc, v. Agrico Chemical Co., et al., 90 ER FALR 043 (DER Final Order 1 February 19, 1990). In this case Dr. Peebles argued and the Hearing Officer concluded that the application of cumulative impact analysis is inequitable because previous unpermitted and allegedly illegal filling of wetlands around the lake now results in permits being denied which would have been granted but for the previous filling. There was testimony that about 30 percent of the original wetlands around the lake had been filled in the past, (Tyler, Tr. at 67) that all of the past filling was unpermitted, and that some of it may have been illegal. (Tyler, Tr. at 46, 61-62, 66-67, 72) However, the record contains no competent, substantial evidence showing how much, if any, previous filling was illegal. Furthermore, Section 403.919(2) requires the Department to consider the impacts of "projects which are existing", and does not draw a distinction between legal or illegal projects. As to the Hearing Officer's recommendation that cumulative impacts not be considered in this application, I note that Section 403.919, Florida Statutes mandates that such an analysis be conducted for every dredge and fill permit. Section 403.919 states that "The department in deciding whether to grant or deny a [dredge and fill] permit for an activity which will affect waters, shall consider [cumulative impacts]." See also Brown, supra, 9 FALR at 1876 (cumulative impact analysis is mandatory). Therefore, to the extent that the Hearing Officer is recommending cumulative impact analysis not be applied to Dr. Peebles' application, the recommendation is contrary to the law and must be rejected. The issue then remains of how past fill, whether legal or illegal, should be considered in the cumulative impact analysis. The Hearing Officer's recommendation in effect would require the Department to conduct a cumulative impact analysis under the assumption that previously filled wetlands should be treated as functioning wetlands. If I were to accept this view it would require the Department to take enforcement action in every case or abandon the protection of water quality of certain waters of the state. Such an interpretation would strip from the Department's hands the ability to exercise its discretion in allocating its limited enforcement resources, and result in the Department's enforcement priorities being set by permit applicants rather than by the Department. I note that the record contains competent, substantial evidence that the Department lacks sufficient resources to enforce every violation, (Tyler, Tr. at 45) although such a fact scarcely needs proof. Acceptance of the Hearing Qfficer's recommendation would place the Department in the dilemma of having to choose to withdraw enforcement resources from more environmentally significant projects or to abandon altogether the protection of less significant projects. Acceptance of the Hearing Officer's conclusion of law would also result in requiring the Department in all cases to determine whether violations had occurred and to take enforcement action for prior violations before it could consider cumulative impacts. Aside from the lack of sufficient enforcement resources, such enforcement' proceedings seldom, if ever, could be commenced and completed within the 90 days within which the Department must act on an application. Section 403.0876, Florida Statutes. The result would in effect limit the scope of Section 403.919 to pristine water bodies, and render the statute largely meaningless. I cannot accept that the Legislature intended such interpretations of Section 403.919, Florida Statutes. Although the result of the application of cumulative impact analysis to the facts of this case may seem harsh, the record indicates that Dr. Peebles may still obtain access the waters of the lake by means of a private dock that would not even require a permit if it had 1000 square feet or less of surface area and met the other provisions of Rule 17-312.050(1)(d), Fla. Admin. Code. Dr. Peebles' existing planned dock is 452 square feet. Therefore, Dr. Peebles could extend that portion of the dock that bridges the wetlands to the uplands by an additional 548 square feet of surface area. For example, the four foot wide bridge to the dock could be extended an additional 137 feet, which is more than enough to reach the upland portion of the lot. (Joint Exhibit No. 1) For the reasons state above, I reject the Hearing Officer's conclusion of law and accept the exception. Public Interest Test The Department also takes exception to the Hearing Officer's conclusion that the project is not contrary to the public interest. In conducting the public interest test the Department must balance the criteria as specified by the Legislature. Section 403.918(2)(a) states: In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The Department introduced evidence that criteria 1, 3 and 6 were neutral, (Tyler, Tr. at 54-56) that criteria 2, 4, 5 and 7 were negative, (Tyler, Tr. at 35-36, 54, 56, 57) and that when all the criteria were balanced there was a negative value to the project. (Tyler, Tr. at 57-58) Dr. Peebles argued at the hearing and in his response to exceptions that the Department's methodology in weighing each criteria in the public interest balancing test is incorrect. I disagree, and note that Dr. Peebles bore the burden of proof on the public interest test, and was free to introduce competent, substantial evidence on each criteria. As discussed in Part II above, Dr. Peebles did not introduce any competent, substantial evidence as to any of the above. The Hearing Officer's conclusion of law lacks competent, substantial evidence to support it, and is contrary to unrebuted competent, substantial evidence. Therefore, I reject this conclusion of law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application of Petitioner to place fill in the waters of the state be approved in accordance with the drawings submitted with the application. DONE and ENTERED this 28th day of February, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida1 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3725 The Agency filed proposed findings of fact which were read and considered. The Agency's findings were adopted or rejected for the reasons indicated as follows: Paragraphs 1-10 Adopted Paragraph 11 Adopted that it will damage fishing; however, this damage will be insignificant and will not truly affect tee fishing on the lake. Paragraph 12 Adopted The Applicant's letter was read and considered as oral argument on the issues presented at hearings. COPIES FURNISHED: Mr. Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dr. Peyton Z. Pebbles, Jr. 6527 Northwest 42nd Place Gainesville, FL 32606 William H. Congdon, Esq. Office of General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
Findings Of Fact On June 27, 1979, Petitioner applied to the St. Johns River District Office of Respondent for a permit to conduct dredge and fill activities on his property on Johnson Lake near DeLeon Springs, Volusia County, Florida. On July 10, 1979, within thirty days of the filing of the permit application, Respondent requested additional information to complete the permit application, which information was received by Respondent on July 20, 1979. In his permit application, Petitioner seeks to dredge approximately 833 cubic yards of fill material from the bottom of Johnson Lake and deposit that material landward on his property in order to provide waterfront access. Johnson Lake is a small sinkhole lake, with a surface area of approximately 17 acres. The lake consists of two lobes connected by a marshy area traversable by boat. The north lobe of the lake, on which Petitioner's property is located, has a surface area of approximately 7 acres and an average depth of more than two feet throughout the year. The maximum depth of the north lobe of Johnson Lake exceeds thirty feet. Property abutting the shoreline of the north lobe is owned by more than one person. The area which Petitioner proposes to dredge is a heavily vegetated submerged point of land extending from Petitioner's uplands into the waters of the lake. Petitioner proposes to increase the slope of his lake front by relocating materials from the lake bottom landward toward his property, thereby increasing water depth in the lake adjacent to his property by approximately one foot. Petitioner's permit application contains no engineering or other detail demonstrating the manner by which turbidity associated with the project will be controlled either during or after the proposed dredge and fill activities are conducted. In addition, the application contains no data concerning the potential impact of the project on existing water quality in Johnson Lake. However, after receipt of the permit application, Respondent caused a field assessment of the project to be con- ducted. This field assessment revealed that the project site is dominated by a plant community consisting primarily of maidencane, bullrushes and rushes. Each of these species are found in the "submerged lands" vegetative index for fresh waters contained in Rule 17- 4.02(17), Florida Administrative Code. Aquatic vegetation such as that found on Petitioner's property and in the adjoining waters of Johnson Lake aids in both the assimilation of nutrients and filtering of deleterious substances from the waters of the lake and from upland runoff. These types of vegetation in Johnson Lake also provide a habitat for wildlife. Among the fish species present in Johnson Lake are darters, whose presence is indicative of good water quality. Because darters are very oxygen sensitive, it is likely that dissolved oxygen levels in Johnson Lake are in excess of five milligrams per liter. These darters were collected only in marsh areas of the lake, and not in front of areas where the shoreline of Johnson Lake has been previously disturbed by dredging. The existence of good water quality in the lake is due at least in part to the cleansing function of this marsh vegetation which would he removed if the subject permit were granted. Respondent has previously issued permits for dredge and fill activities to other property owners on the north lobe of Johnson Lake. In addition, several other instances of dredging by property owners have occurred on Johnson Lake, at least one of which resulted in Respondent's instituting an enforcement action to cause the affected area to be restored. Approximately 30 percent of the shoreline of the north lobe of Johnson Lake had been disturbed in some fashion at the time of final hearing in this cause. If Petitioner's application is granted, the percentage of shoreline disturbed would increase to approximately 50 percent. Destruction of as much as 20 percent of the littoral zone of a water body may be expected to result in measurable adverse effects on water quality. This adverse effect has been linked to destruction of the nutrient removal capacity of aquatic vegetation. Removal of aquatic vegetation can also result in setting off an algal bloom cycle in the affected water body because of increased nutrient loadings. This algal bloom cycle could, in turn, result in lowering the dissolved oxygen content of the lake, thereby adversely affecting both plant and animal communities. Petitioner has pointed out to the Hearing Officer the earlier case of McPhail v. State of Florida, Department of Environmental Regulation, DOAH Case No. 79-2174, in which a Hearing Officer from the Division of Administrative Hearings recommended the issuance of a dredge and fill permit to a neighbor of Petitioner on the north lobe of Johnson Lake. That recommendation was later adopted by Respondent by issuance of a final order. Petitioner suggests that his application is essentially similar to that of the Petitioner in McPhail, and should, therefore, be granted. However, there is no evidence of record in this proceeding, as there apparently was in McPhaiI, that establishes that no permanent adverse effects will result from the conduct of dredge and fill activities as presently proposed in Petitioner's permit application. In fact, evidence of record in this proceeding clearly establishes that removal of the quantity of aquatic vegetation in the manner proposed by Petitioner could reasonably be expected to have a measurable adverse impact on water quality in Johnson Lake. Further, it is clear that the proposed dredging activity could reasonably be expected to result in short-term turbidity of the water in Johnson Lake, and petitioner in his application has neither attempted to assess the potential impact of turbidity, nor has he proposed any safeguards to limit the effect of that turbidity. The evidence of record in this proceeding clearly establishes that the dredge and fill activity, if conducted as presently proposed, could reasonably be expected to result in lowering the dissolved oxygen content of the water in Johnson Lake, a potential overloading of nutrients in that water body, and short-term and long-term increases in turbidity. It is difficult to address the question of the extent of the potential impact of the proposed activity because nothing submitted by Petitioner either in his permit application or at final hearing in this cause directly addresses this issue in a competent fashion. It should be noted here that the record herein indicates that Petitioner might obtain the desired waterfront access which he seeks by redesigning his project to reduce its size, or, alternatively, by incorporating in his proposal a dock-type structure which would not require such extensive alterations in the littoral zone of Johnson Take. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer in this proceeding. To the extent that those proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as either not having been supported by the evidence, or as being irrelevant to the issues in this proceeding.
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy began on July 9, 1990, when petitioners, David and Victoria Page, filed an application with the district office of respondent, Department of Environmental Regulation (DER), seeking the issuance of a permit authorizing certain construction activities (including the erection of a seawall) on their residential lot located at 3108 Gulfwinds Circle, Hernando Beach, Florida. The property faces west on the Gulf of Mexico, a water body designated as a Class III water in the State. The application was eventually deemed to be complete on October 24, 1990. After conducting a review of the application and an on-site inspection of the property, on January 18, 1991, DER issued its notice of permit denial. The notice identified the reasons for the denial as being petitioners' failure to give reasonable assurances that water quality standards would not be violated and that the project would be in the public interest. Also, DER cited expected adverse cumulative impacts if the application was granted. The notice provided further that if petitioners agreed to locate their seawall landward of the jurisdictional line, the project would be approved. In July 1991, petitioners amended their application to propose that the seawall be constructed even further seaward of the jurisdictional line. When efforts to resolve the case were unsuccessful, petitioners requested a formal hearing on January 17, 1992, to contest the agency's decision. Petitioners purchased their property in 1989. It lies within Unit 2 of Gulf Coast Retreats, a residential subdivision in Hernando Beach, Florida. The property is identified as lot 20 on Gulfwinds Circle and fronts the Little Pine Island Bay (Bay), which is a part of the Gulf of Mexico. Access to the Gulf is provided by a channel (six feet in depth) in the Bay in front of lot 20 and which eventually runs into the Gulf several miles south of petitioners' lot. It is undisputed that in 1985 Hurricane Elena passed offshore causing erosion to lot 20 and other adjacent lots. Consequently, the upland portion of the lot is now smaller than before the hurricane. However, petitioners purchased their property in that state of condition. Lots 19 and 21 are on the south and north sides of petitioners' property and are owned by the Steins and Budricks, respectively. Both neighbors have constructed vertical concrete seawalls in front of their homes. Budrick was issued a permit to construct a seawall on December 28, 1989, while Stein constructed his without a permit. However, Stein has subsequently filed an after-the-fact permit application and was recently advised by DER that the application was complete. At hearing, a DER representative expressed the view that the Stein application will probably be approved since his wall is landward of the DER jurisdictional line. It is noted that the Stein and Budrick seawalls sit back from the original property lines because of the erosion suffered during the 1985 hurricane and correspond to the jurisdictional line established by DER on their property. Another application for a permit to construct a seawall was filed by the owner of lot 18 in March 1992. Like Stein and Budrick, that owner proposed to construct his wall on the landward side of the jurisdictional line. Petitioners, who live in Kansas, desire to construct a home on their lot. They have proposed to place one hundred cubic yards of fill (limerock) on 1,065 square feet of intertidal wetlands on the western end of their lot and construct a 110-foot vertical seawall up to thirty feet seaward of the jurisdictional line. Thus, there will be dredge and filling activities in the Gulf of Mexico, a class III water of the state, thereby invoking the jurisdiction of DER. By law, DER is required to establish a jurisdictional line to show the landward extent of waters of this state, including the Gulf of Mexico. Such extent is normally defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. As a general practice, using a prescribed plant or species indicator list, DER makes an on-site inspection of the property to determine what vegetation, if any, is found on the property and is subject to regular and periodic inundation by the waters. In this case, the dominant vegetation found on lot 20 was paspalum distichum, a plant on the species list subject to regular and periodic inundation by the Gulf waters. Accordingly, DER observed where the vegetation ended and used that point for the placement of the jurisdictional line. As a cross check, DER also noted the rack line, which is indicative of the landward extent to which the high tides rise, and found it to correspond to the vegetation line. It should be noted that the jurisdictional line established on petitioners' property corresponds with the line drawn on lots 18, 19 and 21, and if that line is used to construct the seawall on lot 20, the seawalls on all four lots would run in a straight line. Although petitioners objected to the jurisdictional line as established by DER, they offered no credible evidence to show that it was improper or should have been placed at a different location. On January 9 and 15, 1991, Richard W. Pugh, a DER field environmental specialist, conducted an on-site inspection of the property and adjacent waters. He also was responsible for establishing the jurisdictional line. Finding numerous adverse environmental effects that would occur if the permit was granted as proposed, Pugh recommended that the application be denied. This recommendation was accepted by the deputy assistant secretary for DER's Southwest District Office and a notice of permit denial was accordingly issued. The bases for the denial were that (a) reasonable assurances had not been given by petitioners that water quality standards would be satisfied; (b) a cumulative adverse impact on the area would occur if the permit was approved, and (c) petitioners had failed to give reasonable assurances that the project was in the public interest. In order to prove entitlement to a permit, petitioners must give reasonable assurance that water quality standards will not be violated and that the project is in the public interest. In this respect, they offered no evidence to provide these assurances. This in itself supports a finding that no entitlement to a permit has been shown. Even so, the agency elected to present evidence on these issues after petitioners' case-in-chief was concluded. Findings of fact drawn from that evidence are set forth below. On April 6, 1992, a DER marine biologist, Dr. George H. Farrell, visited the site and conducted a biological evaluation of the composition of the benthic community in the intertidal and subtidal wetlands which would be impacted by the project. Based on his tests and observations, Dr. Farrell concluded that the project as proposed would have an adverse impact on marine and wildlife resources in the area. This is because the area has very good water quality, contains a high species diversity, performs an integral part in the food web, and serves a valuable nursery function for estuarine dependent juvenile fish species and a corridor function for migrating estuarine dependent fish species. This testimony was not challenged by petitioners and is hereby accepted. 1/ In granting or denying a water resource permit, DER is also required to consider certain statutory criteria found in Subsection 403.918(2), Florida Statutes, to determine whether a project is in the public interest. Although petitioners did not address these criteria, and thus failed to give any assurances that the project is in the public interest as required by law, testimony adduced by DER established that under petitioners' proposal, there will be a permanent loss of 1,065 square feet of intertidal wetlands due to filling activities. These wetlands are now used by fish and wildlife habitat and will no longer be available for use. In addition, the same area is used as a nursery area by a variety of fish species. As such, the project will adversely affect the conservation of fish and wildlife and their habitats and will adversely affect the fishing values and marine productivity in the vicinity. Second, because petitioners' proposed seawall will jut out from their neighbors' walls by as much as thirty feet, and the corners of the seawall in that configuration will result in erosion or shoaling depending on whether the waters are moving north or south, the project will cause harmful erosion or shoaling. Third, because the wall is being constructed of concrete and steel and is not temporary, the project will be of a permanent nature and thus have a permanent adverse impact. Finally, the ecological functions being performed in the immediate vicinity of the project are extremely important and the elimination of this zone will significantly impair those functions. Collectively, these considerations support a finding that the project is not in the public interest. DER has a policy of not granting a permit if adverse cumulative impacts may be expected as a result of granting that permit. This policy is derived from a statute (s. 403.919, F.S.) requiring such impacts to be considered in the permitting process. In the case at bar, DER reasonably predicts that if it granted petitioners' application and authorized them to construct a seawall which jutted out up to thirty feet beyond their neighbors' walls, it would be obligated to grant similar permits to property owners on adjacent lots. Because petitioners' application will have an adverse impact on the water quality and is contrary to the public interest, the granting of additional permits would exacerbate those impacts. When an applicant proposes to fill (destroy) wetlands, and the applicant is unable to meet the public interest criteria set forth in subsection 403.918(2), DER shall consider measures proposed by or acceptable to the applicant to mitigate the adverse effects caused by the project. In this case, no mitigative measures were proposed by petitioners. At hearing, petitioners' representative asserted that in June 1991, the Cabinet (presumably sitting as the Board of Trustees of the Internal Improvement Trust Fund) implemented a new "policy" which allows property owners to "recover and bulkhead" land previously lost due to avulsion and erosion. He further represented that such requests were to be filed within five years after the event (hurricane). Although petitioners were not the property owners when the event occurred, and more than five years has elapsed, in July 1991 petitioners filed a request with the Department of Natural Resources (DNR) to reclaim and bulkhead their property and that request remained pending as of the date of hearing. A copy of the policy itself (or rule, if any, implementing the policy) was not made a part of this record. Even so, there was no evidence to establish that the granting of that application would require DER to grant a water resource permit, and DER takes the position that the request has no bearing on the issue of whether a water resource permit should be issued to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioners' application for a water resource permit. DONE and ENTERED this 27th day of April, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1992.
Findings Of Fact Lake Powell Improvement Corporation is a consortium of interested owners of land comprising the majority of the Lake Powell shoreline. Camp Helen Company, one of its members, owns lake property which was formerly operated as a recreational facility for associates of Avondale Mills. Camp Helen Company now holds the property for the possibility of future development. George Jeter is one of approximately 76 persons who sent a form letter to the Department of Environmental Regulation (DER) in opposition to the designation of Lake Powell/Phillips Inlet as an Outstanding Florida Water (OFW). The rule-making proceeding to designate Lake Powell/Phillips Inlet an OFW was initiated with a petition filed on June 11, 1987, by the St. Andrews Bay Resource Management Association, a private citizens' organization formed in 1986 to help protect wildlife and resources in the St. Andrews Bay area. A public workshop was conducted by DER on September 6, 1990, in Panama City, Florida. Approximately 70 persons attended the workshop, including Bay County residents, Walton County residents, Lake Powell area property owners and representatives from various organizations. Craig Crockard, Vice President of Lake Powell Improvement Corporation, opposed the designation based on alleged degradation of property values and tax base, negative impact on growth and increase in road maintenance costs. Agency staff encouraged workshop participants and members of the public to submit information, including economic information, that would aid in the decision-making process. Only general and speculative information was received, with the exception of a response from the Department of Transportation that costs of future construction and expansion of the Phillips Inlet bridge, part of four-laning Highway 98, would be increased by $1.5 million as a result of the OFW regulations. DER sent a letter to Craig Crockard, received on April 2, 1991, requesting specifics as to the property owners' development plans and estimated economic impacts by April 5th. Crockard responded that the deadline was too short and that it was obvious that the decision had already been made. At no time, up to and including the hearing before the Environmental Regulation Commission (ERC), did Petitioners or other opponents provide information as to specific economic impacts of the proposed designation. The proposed rule would add the following area to rule 17- 302.700(9)(i), F.A.C. specifying special waters under the OFW designation: Special Waters * * * Lake Powell, Phillips Inlet, and all tributaries to Lake Powell as bounded by the following described line: Begin at the Northwest corner of Section 26, Township 2 South, Range 18 West; thence East to the Northwest corner of Section 29, Township 2 South, Range 17 West; thence South to the Northwest corner of the SW 1/4 of Section 29, Township 2 South, Range 17 West; thence East to the West line of Section 27, Township 2 South, Range 17 West, thence South to the mean high water line of the Gulf of Mexico; thence meander Northwest along the mean high water line to the West line of Section 35, Township 2 South, Range 18 West; thence North to the point of beginning ( - - 91). * * * In making its determination to recommend OFW designation for Lake Powell to the ERC, the Department compared Lake Powell to other water bodies. Lake Powell was found to be exceptionally ecologically and recreationally significant in terms of size, water quality and recreational usage. The Department makes its determination as to whether the proposed water body is exceptional by making direct comparisons to features of other water bodies, and by relying on the professional judgements of others familiar with the particular class of water bodies. Lake Powell has been compared by professionals familiar with other water bodies in the area and in their opinion it has exceptional value as an ecosystem. The Department relied on professional judgement of this type as well as its own findings when making the determination that Lake Powell was exceptional. Lake Powell is located in Bay and Walton Counties in Northwest Florida adjacent to the Gulf of Mexico. Its total surface area of 737 acres makes it the largest by far of any of a series of similar lakes in the area. Seven small streams provide fresh water to the lake; periodically Phillips Inlet, connecting the lake to the Gulf of Mexico, opens or closes. When the inlet is open, the lake becomes estuarine in nature. Most of the shoreline of Lake Powell is still undeveloped and the lake is significant in that it has experienced only minimal adverse impact from human activity. There are no permitted point source discharges to Lake Powell. It is basin-shaped, with a shallow shell, steep sandy slopes, and a flat bottom ranging from approximately 10 to 20 feet deep. Silty, high organic sediments in the water are amenable to degradation and are uniquely sensitive to pollution. Restricted flushing and the opportunity for development growth in the area add to that sensitivity. Lake Powell is a Class III waterbody. Water quality in the lake is good, and meets Class III standards; some parameters are as good as Class II standards. The low dissolved oxygen level in the lake is a result of natural conditions, is not a result of pollution, and is therefore not a violation of the Class III standard for dissolved oxygen. Lake Powell is one of the lakes in the state that is part of the water quality sampling effort known as Lake Watch. A benefit of OFW designation to this effort will be that Lake Powell, absent degradation, can serve as a control lake to compare other Lake Watch lakes throughout the State. At least 170 species of birds, (trust resources of the US Fish and Wildlife Service), have been observed and are dependent on Lake Powell. Unusual species include the piping plover (federally and state designated threatened), snowy plover (state designated threatened), least tern (state designated threatened), and bald eagle (federally designated endangered and state designated threatened). These species have a direct dependence on Lake Powell for habitat, feeding, or nesting areas. They are dependent on non-trust species such as small fishes which could be impacted by chemicals introduced to the lake. Edwin James Kepner, a biologist for the National Marine Fisheries Service, has identified three new species of nematodes which so far have been uniquely found in Lake Powell. Although nematode species are among the most abundant on earth (97,000 individuals may be found in a single rotting apple), they are a highly significant part of an ecological system and must be understood and studied for any understanding of marine communities. The lake supports a diversity of animals. At least 87 species of macrobenthic invertebrates and 67 species of fin fish inhabit the lake, a diversity based on the system's intermittent connection to the Gulf and the lake's relatively pristine condition compared to other lakes. One would expect to find even more diversity, 3 to 4 times more species, if better and more accurate sampling methods were employed. Lake Powell presents a unique nursery area, since most large predator fishes do not have access to it. The lake presently supports a variety of recreational activities, including canoeing, sailing, windsurfing, water-skiing, fishing, crabbing and picnicking. This recreational use has increased during the last five years. Lake Powell is ranked 36th out of 361 lakes statewide in a 1982 study of recreational usage. In terms of potential to the public for recreational usage, Lake Powell has three public access points to the lake, and a possible fourth. Public access is gained by a Bay County public park and by way of Gulf View Drive, which is owned by Bay County and used to launch boats. There is a public dock in Walton County which is also used extensively. The fourth access is currently the subject of an inquiry by the Bay County Audubon Society. The unusual quality of recreational experience lies in the pristine nature of the lake and the fact that it is located not far from the Miracle Strip in Panama City Beach. The ERC Commissioners, who were taken on a tour of the lake, were able to contrast the two areas and found that Lake Powell had unusual recreational value. Lake Powell provides an exceptional educational opportunity, and with its many different types of habitat it is a compact, manageable educational laboratory. As compared to the St. Andrews Bay System it would be much easier to collect samples, obtain information on biotic communities and generally conduct research on the effectiveness of regulatory programs, due to the manageable size of the lake. The proposed amendment to Rule 17-302.700(9)(i), F.A.C., to designate Lake Powell as an OFW would potentially affect future Department permit applicants by requiring they provide the Department with reasonable assurances that the proposed project is clearly in the public interest and that the proposed project would not lower existing ambient water quality standards (Rule 17-4.242, F.A.C.); by requiring that direct stormwater discharges into the lake include an additional 50% treatment level (Rule 17-25.025(9), F.A.C.); and by reducing the exemption for private residential docks from 1000 square feet to 500 square feet (Rule 17-4.04(9)(c), F.A.C.). These requirements will result in increased costs to permit applicants, although the costs cannot be calculated at this time since there are no such projects firmly proposed to the Department. The primary beneficial effect of the proposed rule would be the protection of future water quality based on existing ambient water quality standards at time of OFW designation. Pursuant to Section 120.54(2), F.S., an Economic Impact Statement (EIS) was prepared by the Department. Section 120.54(2)(b), F.S., requires the statement to include: * * * An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; An estimate of the cost or the economic benefit to all persons directly affected by the proposed action; An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; A detailed statement of the data and method used in making each of the above estimates; and An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. Additionally, Rule 17-302.700(4)(e) provides: An economic impact analysis consistent with Chapter 120, shall be prepared which provides a general analysis of the impact on growth and development including such factors as impacts on planned or potential industrial, agricultural, or other development or expansion. It is undisputed that the EIS properly addressed the costs of implementation to the Department. The EIS identified the kind of Department permit applicant that would potentially be affected by the rule amendment, and what kinds of developmental impacts could be expected by operation of other Department rules. The EIS did not identify any specific costs that would be attributable to the rule, as the Department was unaware of any specific development plans for the lake that would be subject to the Department rules. Existing development activities are grandfathered and would not be affected by the more stringent requirements. The Department stated in its EIS that the overall costs imposed on future development due to the proposed OFW designation would depend on both the nature of the development and its impact on the ambient water quality of the lake. Since the type and nature of future development in the area is uncertain, an estimate of the potential aggregate costs associated with the proposed OFW designation could not be made at the time the EIS was prepared. The EIS properly addressed the costs of the proposed rule to the parties, based upon the facts as known to the Department. The benefits to the public of the rule were stated to be largely environmental, as a result of protection of future ambient water quality standards in the lake. The EIS cited an economic benefit to land owners around the lake in the form of enhanced property values due to water quality protections of the OFW designation, water quality being an important variable in determining property values of waterfront property. That property values would be enhanced is based on the DER economist's study of another state's experience and experience with OFW designation in other Florida counties. The EIS properly addresses the benefits of the rule. The EIS states that there will be no significant effect on competition as a result of the proposed OFW designation; Petitioners have not presented any evidence to the contrary. The EIS adequately addresses the rule's effect on competition. The EIS states that the proposed OFW designation is not expected to create any significant adverse disproportionate impacts on small businesses, as required by Section 120.54(2)(b)5., F.S. As Petitioners have not introduced any evidence to the contrary, the EIS adequately addresses this issue. The EIS states that appropriate economic analysis techniques were employed preparing the EIS. Petitioners participated in the rulemaking process; they attended the Panama City workshop when economic information was solicited; they submitted written comments, none of which provided specific economic information; and they participated in the ERC hearing but offered no evidence to the Commission regarding economic impacts of the rule. The type of information they suggest that the Department should consider was not submitted by them, or anyone else, during the rulemaking process or this hearing. The evidence shows that the Department considered all comments submitted throughout the rulemaking process in making the recommendation of OFW designation to the ERC. The EIS properly explains the data and methodology used in its preparation, and this data and methodology was adequate to estimate the economic impacts of the rule. In January 1991, the Bay County Board of County Commissioners amended the County's comprehensive plan to provide special protection for Lake Powell. These provisions include more stringent requirements for stormwater retention and detention, an objective to maintain Lake Powell's water quality at its present level, restriction on use of household septic tanks, designation of a low-density residential zone, and prohibition of point source discharges which would lower existing water quality. (Joint Exhibit #1, Appendix D) Both parties have invoked the plan amendments for their own purpose. Petitioners argue that the plan amendments provide the same or greater protection than the proposed OFW designation and that the designation is not needed. This argument ignores the fact that at least 10% of the lake lies within Walton County, outside Bay County's jurisdiction. DER did not require Bay County to amend its plan and could not require it to maintain the new Lake Powell protections indefinitely. The OFW designation does not detract from or conflict with the local government's commendable initiative, but rather augments it. Respondent, DER, addresses the plan in its modified EIS where it discusses the contention by the Department of Transportation (DOT) that OFW designation will add $1.5 million in costs to widen a road at the Phillips Inlet bridge. DER's economist concedes that designation will result in additional costs and has discussed that in the EIS. Because he has not received back-up data from DOT he is unable to confirm that the cost will be as much as DOT asserts. He also attributes the increase to the new stormwater requirements of the Bay County comprehensive plan, and concludes the additional costs due to OFW designation might be zero. (Joint Exhibit #2, p. 7) Even if misplaced, the attribution of costs does not invalidate the EIS or the proposed designation. The EIS generally describes potential costs and provides a basis to weigh the environmental, social and economic costs against the environmental, social and economic benefits. In summary, the facts above support the ERC's finding that the waters selected for designation are of exceptional recreational or ecological significance and the benefits of designation outweigh its costs.
The Issue The St. Johns River Water Management District (the "District") alleges in Case Number 97-4389 that Respondent, Modern, Inc. ("Modern"), excavated two ditches in wetlands without a permit, that the excavation was not exempt from a permit, and that Modern committed related acts alleged in the Administrative Complaint. The District proposes alternative plans for corrective action. Modern and its co-respondents ("Respondents") contend that the excavation was not required to have a permit because either it was not an activity covered by the permitting statutes or it was exempt. In addition, Respondents charge that the proposed agency action is based on an unadopted rule that does not satisfy the requirements of Section 120.57(1)(e), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.) In Case Numbers 97-4390, 97-4391, 97-4392, and 97-4393, Respondents challenge an Emergency Order issued by the District to stop the drainage of wetlands. Respondents contend that the Emergency Order is facially insufficient, that there was no emergency, and that the corrective action has worsened conditions. The issue in each of the rule challenge cases is whether an existing rule or an agency statement is an invalid exercise of delegated legislative authority within the meaning of Sections 120.52(8) and 120.56(1). Case Numbers 98-0426RX and 98-1180RX challenge Rule 40C-4.041 pursuant to Section 120.56(3). Case Number 98-1182RX challenges Rule 40C-4.051 pursuant to Section 120.56(3). Case Numbers 98-0427RU and 98-1181RU challenge an agency statement pursuant to Section 120.56(1) and (4). (Unless otherwise stated, all references to rules are to rules published in the Florida Administrative Code as of the date of this Recommended Order.) The parties identify approximately 57 issues in their respective Proposed Recommended Orders and Proposed Final Orders ("PROs" and "PFOs", respectively). Those issues relevant to the proceeding conducted pursuant to Section 120.57(1), including Section 120.57(1)(e), are addressed in this Recommended Order. The remaining issues are addressed in the Final Order issued on the same date as the date of this Recommended Order.
Findings Of Fact This proceeding arises from the excavation of two intersecting canals, or ditches, in January 1997 in Brevard County, Florida. One conveyance runs north and south and is identified by the parties as "NS1." The other conveyance runs east and west and is identified by the parties as "EW1." Part of the excavation occurred inside the St. Johns National Wildlife Refuge (the "Refuge"). The Refuge is owned and managed by the United States Fish and Wildlife Service (the "Wildlife Service"). All of the excavation occurred on property within the jurisdiction of the District and contiguous to property owned by Modern. On May 14, 1997, the District issued an Emergency Order authorizing the Wildlife Service to construct temporary weirs in NS1 and in EW1. The District intended the weirs to restore the bottoms of NS1 and EW1 to elevations which the District claims to have existed in NS1 and EW1 prior to the excavation. The Wildlife Service completed construction of the weirs on May 27, 1997. Excavation Site NS1 runs parallel to Interstate 95 ("I-95"). EW1 runs parallel to SR 50 and lies approximately 25 feet inside the southern boundary of the Refuge. The point where NS1 and EW1 intersect is west of I-95 by approximately .25 miles, or about 1100 feet, and north of SR 50 by approximately one-half mile plus 25 feet, or 2,665 feet. NS1 and EW1 intersect at a point that is approximately 2,903 feet northwest of the intersection of I-95 and SR 50. NS1 bisects a marsh ("Marsh-1") approximately 800 feet south of EW1. EW1 bisects a pond ("Pond-1") approximately 300 feet east of NS1. Pond-1 spans north and south of both EW1 and the southern boundary of the Refuge. Marsh-1 is south of the Refuge boundary and spans east and west of NS1. NS1 continues south of Marsh-1 and intersects SR 50 and an adjacent east-west canal immediately north of and parallel to SR 50 known as the Indian River City Canal ("IRCC"). NS1 proceeds south of the IRCC approximately 1.5 miles to a larger east-west canal, identified as both the Addison Canal and the Ellis Canal (the "Addison Canal"). The Addison Canal flows west from that point approximately four miles into the St. Johns River. NS1 runs north across EW1 approximately 1.5 miles from SR 50 to an east-west road known as Satterfield Road. An adjacent, parallel canal immediately south of Satterfield Road is identified as the Satterfield Road Canal. EW1 continues west from I-95 approximately 2.75 miles until it intersects Hacienda Road. EW1 runs east of I-95 for some distance. The excavation in January 1997 included both NS1 and EW1. NS1 was excavated from its intersection with SR 50 north approximately 2,687 feet to a point approximately 22 feet north of EW1. EW1 was excavated approximately 30 feet east of NS1. Contested Area The excavation site is in the southeast corner of a "rectangular tract" of land west of I-95 and north of SR 50 which comprises approximately 4.13 square miles. The rectangular tract and a "smaller parcel" east of I-95 make up the "contested area" in this proceeding. Rectangular Tract The rectangular tract measures approximately 2.75 miles from I-95 west to Hacienda Road and approximately 1.5 miles, from SR 50 north to Satterfield Road. The intersection of I-95 and SR 50 forms the southeast corner of the rectangular tract. The rectangular tract is bounded on the east by I-95; on the south by SR 50; on the west by Hacienda Road, which is about a mile or so east of the St. Johns River; and on the north by Satterfield Road. Satterfield Road is approximately three miles south of the boundary between Brevard and Volusia counties (the "county line"). Smaller Parcel A substantially smaller parcel abuts the east side of I-95. The smaller parcel is bounded on the west by I-95; on the south by SR 50; on the east by State Road 405 ("SR 405"); and on the north by the Satterfield Road Canal and what would be Satterfield Road if Satterfield Road extended east of I-95. SR 405 runs north and south parallel to and approximately .25 miles east of I-95 and approximately 2.7 miles west of the Indian River. Tribulation Harbor In this proceeding, legal interests from five separate sources flow into the contested area like separate rivers flowing into an inland harbor. The confluence of divergent legal interests results in a turbulent mix of the statutory responsibilities of state and federal agencies and the constitutional rights and business interests of private property owners. Respondents own over 4,500 acres of land in and around the contested area and have legitimate business or personal interests in the development or other use of their property. The District is statutorily charged with responsibility for the hydrologic basin of the St. Johns River (the "River Basin"), including the contested area. The contested area is circumscribed by a five-mile by four-mile area platted in 1911 as the Titusville Fruit and Farm Subdivision ("Titusville Farm"). The recorded plat of Titusville Farm established a drainage system of intersecting east-west and north-south canals. Some of the conveyances, including NS1 and EW1, run through the contested area. Federal law charges the Wildlife Service with responsibility for managing the Refuge. A substantial portion of the Refuge lies in that part of the contested area west of I-95. The contested area also includes portions of the Hacienda Road project. Private Property Modern is a Florida corporation owned principally by Mr. Charles Moehle who is also the president of the company and the father of Mr. Michael Moehle. Omni is a Florida corporation wholly owned by the younger Moehle. Modern owns two parcels of land in the contested area ("Modern-1" and "Modern-2"). The northern boundary of Modern-1 is just south of EW1 and the Refuge boundary. Modern-1 is bounded on the west by NS1, on the south by SR 50, and on the east by I-95. Modern-2 is inside the contested area in the smaller parcel east of I-95. Modern-2 comprises a substantial portion of the smaller parcel. Modern owns a third tract of land comprising approximately 4,500 acres west and south of Fox Lake ("Modern-3"). Modern-3 is within the District's jurisdiction and includes approximately three miles of land from Satterfield Road north to the county line, including one mile in Titusville Farm immediately north of Satterfield Road. 22. Modern-3 is bounded on the south by Satterfield Road; on the north by the county line; on the east by a north-south section line parallel to and approximately .75 miles west of I-95; and on the west by a section line that is approximately one mile west of what would be Hacienda Road if Hacienda Road extended north of Satterfield Road. A square mile section is carved out of the western half of Modern 3 in Section 10, Township 22 South, Range 34 East. Omni, Mr. Hart, and Mr. Nelson own separate parcels of land outside the contested area but proximate to the contested area. They claim that their property is directly impacted by the action taken in the Emergency Order and by the action proposed in the Administrative Complaint. Omni owns property on the east side of SR 405. Although the Omni parcel is outside of the contested area, it is adjacent to the smaller parcel and within both the River Basin and Titusville Farm. Mr. Hart owns property which is south of SR 50 approximately one mile west of the intersection of SR 50 and I-95. Although the Hart property is outside of the contested area, it abuts the southern boundary of the rectangular tract and is within the River Basin and Titusville Farm. Mr. Nelson owns property located a little more than a half-mile southeast of the intersection of SR 405 and SR 50. Although the Nelson property is outside of and not adjacent to the contested area, the property is within the River Basin and Titusville Farm. The District The District was created in 1972 as the state agency responsible for carrying out the provisions of Chapter 373 and for implementing the programs delegated in Chapter 403. Section 373.069(1)(c) describes the geographical jurisdiction of the District. The jurisdiction of the District includes all of the contested area. The River Basin includes all or part of 19 counties from south of Vero Beach to the border between Florida and Georgia. The counties entirely within the River Basin include Brevard, Clay, Duval, Flagler, Indian River, Nassau, Seminole, St. Johns, and Volusia counties. The counties partially within the River Basin are Alachua, Baker, Bradford, Lake, Marion, Okeechobee, Orange, Osceola, Polk, and Putnam. Titusville Farm Titusville Farm contains approximately 20 sections of land, plus an out-parcel to the southeast which has relatively little materiality to the issues in this proceeding (the "out- parcel"). Each of the 20 sections of land contains approximately 640 acres and, together, total approximately 12,800 acres. The exact dimensions of Titusville Farm are recorded in Plat Book 2, page 29 of the Public Records of Brevard County, Florida. With the exception of the out-parcel, Titusville Farm is bounded on the east by a section line approximately 1.25 miles east of I-95 and approximately 1.7 miles west of the Indian River; on the south by a section line approximately 1.5 miles south of SR 50 at what is now the Addison Canal; on the north by a section line approximately one mile north of what are now Satterfield Road and the Satterfield Road Canal; and on the west by the St. Johns River, which flows north at a point about a mile or so west of and parallel to what is now Hacienda Road. 3.3(a) History Titusville Farm was originally designed so that each quarter section of 160 acres was surrounded by intersecting east- west and north-south drainage canals intended to drain water westerly toward the St. Johns River and southerly toward what is now the Addison Canal. The original designers intended to create a dry and fertile land for farming and fruit groves. The original design for Titusville Farm called for a series of parallel east-west canals approximately .25 miles apart on quarter section lines. The canals ran parallel to the north and south boundaries of Titusville Farm from the east boundary approximately five miles to the St. Johns River to the west. The parties use the label EW1 in this proceeding to designate the first east-west canal north of SR 50. EW1.5 refers to the second east-west canal north of SR 50. EW2 refers to the Satterfield Road Canal in some exhibits and to an intervening canal in others. The original design for Titusville Farm also called for a series of parallel north-south manifold canals, approximately .25 miles apart on quarter section lines. Each canal ran parallel with the east and west boundaries of Titusville Farm from the north boundary approximately four miles to the Addison Canal at the south boundary. The parties use NS1 in this proceeding to designate the first north-south canal approximately .25 miles west of I-95. NS2 identifies the next north-south canal west of NS1. The numbering identification continues west in this proceeding to Hacienda Road. From 1911 through 1916, the original developers of Titusville Farm constructed some of the canals and farmed the area, predominantly with fruit groves. Sometime after 1916, the developers began selling off land to third-party purchasers. Subsequent purchasers altered, expanded, or abandoned the canals in and around their property. By 1943, the canals originally constructed in Titusville Farm remained in place but only one orange grove remained in the southeast corner of Titusville Farm near what is now the excavation site. Other farming within the contested area was sparse. The canals actually constructed by the developers of Titusville Farm continue to be depicted as existing systems on several current maps. They are also evidenced in drainage easements of record. 3.3(b) Drainage Easements The chain of title from Titusville Farm shows that purchasers took title subject to existing easements for "canals and/or ditches, if any." In 1971, when the United States Government established the Refuge, it took fee simple title to approximately 4,163 acres of former Titusville Farm land subject to: . . . permanent easement granted to Florida Power and Light Company . . . and subject to other rights outstanding for existing roads, lines, pipe lines, canals, and/or ditches, if any. (emphasis supplied) OR Book 1580, page 810, Brevard County. The Refuge The Refuge is located within the River Basin and within Titusville Farm. The vast majority of the Refuge is located inside the rectangular tract in the contested area. However, the Refuge also extends west of Hacienda Road to the St. Johns River and contains a small "out-parcel" north of Hacienda Road. Except for the out-parcel, the Refuge is more or less rectangular, bounded on the east by I-95, on the south by SR 50, on the north by Satterfield Road, and on the west by the St. Johns River. The distance between the east and west boundaries of the Refuge is approximately 3.75 miles. The distance between the north and south boundaries is approximately 1.5 miles. The Refuge contains approximately 4,163 acres and includes much of the area from I-95 west to Hacienda Road and from Satterfield Road south to SR 50. The federal government established the Refuge in 1971 to protect the endangered dusky seaside sparrow. The sparrow became extinct in 1990. After 1971, the Refuge became part of a national system for the conservation, management, and restoration of lands for fish, wildlife, plants, and their habitats. The federal government manages the Refuge under the Emergency Wetlands Restoration Act of 1986, which Congress reaffirmed in 1997, as a wetland to provide habitat protection for threatened and endangered species of special concern. The authorized methods for protecting wetlands include a National Wetlands Inventory that identifies wetlands nationally. The Refuge is a particularly important wetland in the sense that it is a high floodplain. A high floodplain is a type of wetland that is diminishing, especially in Florida. The federal government manages the Refuge as an ecosystem. The government attempts to mimic what happens naturally in the area with fire and water. It attempts to restore and maintain the sheet flow of water across natural marshes and to use fire as a means of maintaining marshes in their natural state. 3.4(a) Species of Special Concern The Refuge provides a habitat for species of special concern to both state and federal governments. The Refuge is one of the most important breeding areas in the country for the black rail. The black rail is a migratory species that uses the Refuge for nesting during the summer and for a winter habitat during the fall and winter. Several species use portions of the Refuge near the excavation site. The least bittern uses the area for feeding and nesting. The northern harrier is a migratory species that uses the area for feeding during the fall, winter, and early spring. The Refuge provides habitat for bald eagles, wood storks, otters, and alligators. It also provides habitat for: long-legged wading birds, such as great blue herons and great egrets; shorter-legged wading birds, such as little blue herons, snowy egrets, and little green herons; aerial diving species, such as terns and seagulls; submergent diving species, such as pie billed grebes, mergansers, and cormorants; and red-winged blackbirds and wrens that nest in emergent vegetation. 3.4(b) Wetland Communities The majority of the contested area contains five different wetland community types. There are open-water areas, such as Pond-1; shallow marsh, such as Marsh-1; wet prairies; hydric hammocks; and transitional shrub systems. Shallow marsh contains shallow water and emergent wetland vegetation. Water levels fluctuate throughout the year. The predominant vegetation is cattail and sawgrass. Wet prairie is slightly higher in elevation and somewhat drier than shallow marsh. The primary vegetation found in wet prairie is cord grass. Transitional shrub systems are areas in transition from uplands to wetlands or from wetlands to uplands. The vegetation in these areas typically is wax myrtle. 3.4(c) Pre-Excavation Site In January 1996, Mr. Charles Moehle complained to the District that the Hacienda Road project caused flooding on his property. District staff investigated the matter and concluded that the Hacienda Road project was not the cause of the flooding. The investigation included physical inspection and elevation readings for what became the excavation site in 1997. 3.4(c)(1) Physical Inspection Before the excavation in January 1997, there was no water connection from EW1 to NS1. NS1 and EW1 had been filled-in at various junctures with sediment and wash-outs from rain. Vegetation growth and aquatic vegetation further occluded NS1 and EW1. The east and west banks of NS1 from SR 50 north to Marsh-1 were similar and appeared undisturbed. The west bank of NS1 disappeared at the point where NS1 intersected Marsh-1. Both banks of NS1 were very low through Marsh-1. Marsh-1 had standing water in it. The predominant vegetation was spartina baderi, a marsh grass found in wetland areas ("spartina"). Approximately 500 feet of NS1 between Marsh-1 and EW1 was dry and shallow. This portion of NS1 was only one-half to one-foot deep. It was more characteristic of a swale than a ditch and was heavily vegetated with spartina. The bottom elevation of a portion of NS1 between EW1 and Marsh-1 was approximately 2.5 feet higher than the remainder of NS1. This high spot functioned as an elevation control within NS1. EW1 east of NS1 appeared very similar to that portion of NS1 north of Marsh-1. It was dry and vegetated with spartina. There was no water connection between NS1 and EW1 so that Pond-1 did not routinely drain west through EW1. EW1 also contained a high spot just west of NS1. Pond-1 was a healthy open-water community surrounded by green cattails. Pond-1 was deeper than five feet in some areas. A berm on the west side of NS1 north of Marsh-1 was one to two feet high and three to five feet wide. It served as a fire-break trail and resembled a road. The berm was slightly higher south of Marsh-1 and heavily vegetated with cabbage palms and other vegetation near the intersection of NS1 and SR 50. 3.4(c)(2) Elevations On February 28, 1996, in response to complaints from Modern, District staff took spot readings of bottom elevations within NS1 from Marsh-1 north to EW1 and within EW1 east of NS1. They also took water elevation readings in Pond-1 and at the intersection of NS1 and SR 50. The elevation readings revealed respective control elevations in NS1 and EW1 of 12.9 and 12.79 feet. Other elevations in NS1 were 12.26 feet at a point just north of Marsh-1, 12.9 and 12.7 feet at two points south of EW1, and 12.9 feet at the intersection of NS1 and EW1. The bottom elevation in EW1 varied from 12.4 to 12.79 feet. District staff also reviewed bottom elevation readings in various pre-excavation surveys made between 1995 and January 1997 and referred to by the parties as the Lowe's Report, the Cracker-Barrel survey, the McCrone survey, and the Titusville survey. The McCrone survey recorded bottom elevations for NS1 which were consistent with those taken by District staff. However, elevations varied by as much as a foot for EW1. Water elevation readings varied with seasonal water conditions and other factors. The McCrone survey found respective control elevations in NS1 and EW1 of 12.7 and 11.7 feet. The bottom elevation for NS1 was 12.7 feet at a point just south of EW1. Bottom elevations for EW1 ranged from 10.5 to 11.7 feet. The investigation by the District established respective high spots in NS1 and EW1 at 12.9 and 12.79 feet. The Titusville survey recorded a water elevation of 10.54 feet in NS1 at SR 50. The water elevation in EW1 east and west of the I-95 culvert was 12.55 feet. The variation in water elevations of 12.55 feet in EW1 at I-95 and 10.54 feet in NS1 at SR 50 suggest high spots in EW1 or NS1. The high spots prevent water from flowing from the culvert at I-95 west through EW1 to NS1 and south through NS1 to SR 50. 3.4(c)(3) Topography A slight ridge exists south of EW1 and supports a more shrubby type of vegetation consistent with transitional wetlands. The topography north of EW1 is lower and characteristic of a deep marsh system. The bottom elevations in NS1 north of EW1 are lower than bottom elevations elsewhere in NS1 and are consistent with surrounding topography. The topography surrounding NS1 south of EW1 is higher and provides a greater source of sediment than does the lower topography north of EW1. More sediment erodes into NS1 south of EW1 because there is more sediment south of EW1. The portion of NS1 north of EW1 is in a marsh and under water most of the year. The submerged topography north of EW1 provides less opportunity for material to erode into NS1 north of EW1. 3.5 Hacienda Road Project The Department widened SR 50 between 1988 and 1991 by adding two east-bound lanes on the south side of SR 50. The District required the Department to obtain a permit for the widening of SR 50 and to offset the adverse impacts to wetlands through a plan of mitigation. The Wildlife Service actually performed the mitigation work for the Department and completed the mitigation plan in 1991. West of Hacienda Road, the Wildlife Service placed fill from adjacent berms in the IRCC, EW1, and EW1.5, which had pre- mitigation depths at that location ranging from 1.5 to 2.0 feet. The Wildlife Service planted spartina on the fill. The Wildlife Service also replaced six 30-inch culverts under Hacienda Road with nine 36-inch culverts. The new culverts were located at the same elevation as the elevation of the pre-mitigation culverts. The Wildlife Service placed riser boards in the new culverts under Hacienda Road. Riser boards are used to facilitate the cleaning of culverts. However, they can also raise the water level above which water must rise before it can pass through the culverts. Respondents contend that the fill west of Hacienda Road eliminated floodplain storage. They also claim the riser boards in the new culverts under Hacienda Road cause water to back-up in the contested area by preventing flow from the contested area through the new culverts into the marsh west of Hacienda Road. 3.5(a) Floodplain Storage The Hacienda Road project did not decrease floodplain storage capacity west of Hacienda Road. The project used only fill from existing berms and did not bring in additional fill from outside the marsh. The fill did not reduce floodwater capacity of the IRCC, EW1, and EW1.5. Their capacity before the mitigation had already been reduced by groundwater from the high groundwater table close to the St. Johns River. The fill displaced high groundwater in the IRCC, EW1, and EW1.5, rather than floodwater capacity. The fill taken from existing berms reduced the size of the berms that had previously displaced floodwater capacity. 3.5(b) Water-flow Neither the mitigation west of Hacienda Road, the new culverts under Hacienda Road, nor the riser boards in the new culverts caused water to back-up and flood Respondents' property. The Hacienda Road project does not prevent water-flow during either low-flow or high-flow conditions. 3.5(b)(1) Low-flow A low-flow condition occurs when water rises above the control elevation that is impeding its flow. The water stages-up in lower areas until it flows over the high spot that operates as a control elevation. During low-flow conditions, neither the mitigation west of Hacienda Road, the culverts, nor the riser boards in the culverts control the flow of water from I-95 west to Hacienda Road. Rather, bottom elevations in the canals, or ditches, east of Hacienda Road ("upstream") control the flow of water from I-95 west to Hacienda Road. Water that does not exceed the control elevations will pond in the adjacent wetlands and not reach Hacienda Road. Water that ponds behind control elevations during low- flow conditions is also influenced by two basins and a ridge in the contested area. One basin is north of SR 50 and south of EW1, and the other basin is north of EW1. Water from the former basin flows south while water from the latter basin flows toward Hacienda Road. The water elevation at Hacienda Road is approximately 11.0 feet. High spots in the canals, or ditches, upstream from Hacienda Road range from 12.1 feet to 13.3 feet. A control elevation of 12.6 feet exists in EW1 east of Hacienda Road. Water stands behind the high spot at 12.3 feet. Closer to I-95, the bottom elevation in EW1 ranges from 12.1 to 12.6 feet and effectively controls water elevation at 12.0 feet. Water in EW1 west of I-95 and east of Hacienda Road must rise to an elevation of 12.6 feet before it can flow west toward Hacienda Road. Water in EW1.5 near I-95 has an elevation of 13.3 feet. Water in EW1.5 must rise above that elevation before it can flow west toward Hacienda Road. Water in EW-2 at I-95 is above 13.0 feet. The bottom elevations and water elevations measured by District staff in the contested area between Hacienda Road and I- 95 are consistent with the I-95 construction plans and the Lowe's Drainage Report used for the construction of the Lowe's store at the intersection of SR 50 and SR 405. The I-95 plans show a design high-water elevation of 14.0 feet for the culvert where EW1 crosses I-95. The Lowe's Drainage Report shows that the 100- year, 24-hour storm event flood elevation east of I-95 is 14.0 feet. In addition, a pre-construction survey for the Lowe's store shows elevations in the wetlands north of EW1 to be approximately 13.0 feet. 3.5(b)(2) High-flow A high-flow condition occurs when there is a storm event that creates significant run-off. The run-off overwhelms the high spots that operate as control elevations during low-flow conditions. Run-off is controlled by other factors including culverts such as those at Hacienda Road. During high-flow conditions, the culverts at Hacienda Road are the controlling factors for the flow of water in the contested area from I-95 west to Hacienda Road. The high-flow conveyance capacity for the new culverts is equal to or greater than that of the old culverts. The replacement culverts do not cause water to back-up in the contested area during high-flow conditions. Riser boards in the new culverts under Hacienda Road do not raise elevation levels to a point that causes water to flood Respondents' property during high-flow conditions. 3.5(c) Collateral Improvements During either low-flow or high-flow conditions, the possibility that the Hacienda Road project could cause water to back-up in the contested area has been significantly reduced by improvements in drainage capacity to nearby canals, or ditches. The Department improved several north-south canals, or ditches. Brevard County improved the capacity of the IRCC. When the Department widened SR 50, the Department increased the capacity of NS3 and NS4, where each crosses under SR 50, by replacing old culverts with new culverts at the same invert elevation. The Department replaced one 24-inch culvert in NS3 with an elliptical pipe with the effective capacity of a 36-inch pipe. The Department replaced one 24-inch culvert in NS4 with two 18-inch culverts. The Department also replaced the box culvert in NS1 with a culvert of the same size and invert elevation. Brevard County improved the capacity of the IRCC in several ways. The county cleaned out the canal, installed a 36-inch elliptical culvert under Hacienda Road, and replaced a driveway that had previously blocked the canal with a 36-inch culvert. The Excavation Modern, through its President, Mr. Charles Moehle, caused and directed the excavation of NS1 and EW1. In December 1996, Mr. Charles Moehle contracted with Total Site Development, Inc. ("Total Site") to perform the excavation. Modern also supervised the excavation. Total Site is a Florida corporation wholly owned by Mr. Daniel McConnell and Mr. Randy McConnell, his brother. Both men, through their attorney, obtained immunity from criminal prosecution and testified at the administrative hearing. In 1996, Total Site was a subcontractor in the construction of the Cracker Barrel near the intersection of I-95 and SR 50. The superintendent for the Cracker Barrel project gave Mr. Daniel McConnell the telephone number of Mr. Charles Moehle. After several telephone conversations, Mr. McConnell met with Mr. Moehle. The two men walked the length of NS1 from SR 50 north just past EW1. Mr. Moehle directed Mr. McConnell where to excavate NS1 and EW1, how wide and deep to excavate each, and where to place the spoil material. Mr. Moehle showed Mr. McConnell a paper which Mr. Moehle represented to be a permit to perform the excavation. However, neither Mr. Moehle nor Modern ever applied for or obtained a permit to perform the excavation. The District never received an application or issued a permit for the excavation. On January 10, 1997, Mr. McConnell began excavating NS1 and EW1 and completed the excavation in 2.5 days. Mr. McConnell began work on a Friday, worked Saturday, and completed the work on Monday, January 13, 1997. Mr. McConnell excavated NS1 and EW1 in accordance with the instructions of Mr. Moehle. Mr. McConnell began the excavation at SR 50 and worked north in NS1 approximately 2,687 feet to a point about 22 feet north of EW1. Mr. McConnell also excavated EW1 approximately 30 feet east of NS1. Mr. McConnell placed the spoil material on the west bank of NS1 and did not move the spoil material thereafter. When Mr. McConnell reached the intersection of NS1 and EW1, he excavated EW1 sufficiently to complete a water connection from EW1 to NS1. He placed the spoil material on the banks surrounding the intersection of EW1 and NS1 and did not move the spoil material thereafter. During the excavation, Mr. Moehle frequently visited the excavation site, observed the work, and provided instructions to Mr. McConnell. Mr. Moehle visited the site approximately once or twice a day during the excavation to check on the progress of the work. On a few occasions, Mr. Moehle instructed Mr. McConnell to dig deeper. Mr. Moehle paid Total Site $2,500 when Mr. McConnell completed the excavation on January 13, 1997. Mr. Moehle paid in cash. Post-excavation Site After the excavation, water flowed from EW1 to NS1. NS1 was approximately 10 feet wider and approximately 3-4 feet deeper. NS1 was open with water flowing through it from EW1 south through Marsh-1 to SR 50. The bottom elevation for NS1 was 7.5 and 9.5 feet at points where District staff and the McCrone survey previously found bottom elevations of 12.7 and 12.9 feet. After the excavation, the water elevation at the intersection of NS1 and SR 50 was 12.09 feet. The pre-excavation water level had been 10.54 feet. After the excavation, a large spoil pile existed on the west bank of NS1. The spoil pile filled approximately one- half acre of wetlands. The height of the spoil pile ranged from three to eight feet, with the highest points at the intersection of NS1 and EW1. The spoil pile just north of EW1 had been flattened by the weight of equipment used for the excavation. The width of the spoil pile at its base ranged from 20 to 35 feet for the entire length of NS1. The spoil material was primarily white, sandy material without much vegetation in it. The lack of organic material in the spoil pile indicates that the excavation extended beyond the depth necessary to remove surface vegetation. Emergency The excavation of NS1 and EW1 by Modern in January 1997 created an emergency within the meaning of Section 373.119(2). The excavation created short-term effects that adversely impacted adjacent wetlands and required immediate action to protect the health of animals, fish, or aquatic life; and recreational or other reasonable uses. If left uncorrected, the excavation would have created long-term effects that would have had additional adverse impacts. Short-Term Effect The excavation created numerous short-term effects that adversely impacted wetlands. Short-term effects included a reduction in the water level of approximately 600 to 800 acres of wetlands, a vegetation and fish kill, an alteration of the existing hydroperiod for the affected area, and an increase in the water level south of the intersection of NS1 and SR 50. 6.1(a) Water Levels The excavation lowered the water level in approximately 600 to 800 acres of wetlands. The reduction in the control elevation in NS1 from 12.9 feet to 10.5 feet increased water flow capacity in NS1 and EW1 by 15 to 25 cubic feet per second. The increased water flow lowered water levels in the surrounding wetland from one to two feet. When the excavation was completed, Mr. Randy McConnell was standing on the head-wall at SR 50. He saw a three or four- foot wave flow south down NS1 toward him and hit the head-wall before passing through the culvert south to the Addison Canal. Sometime after the excavation, a substantial water flow out of NS1 caused water levels to drop in the adjacent area, including the Refuge. Pond-1 drained one to two feet. 6.1(b) Vegetation and Fish The excavation killed vegetation in the affected area. The cattail marsh adjacent to Pond-1 became stressed, turned brown, and began dying. The dying cattails consumed oxygen in the open water in Pond-1. The excavation killed fish in the affected area. In March 1997, a fish kill occurred in Pond-1. Wildlife Service personnel observed approximately 75 to 100 dead fish. Other dead fish were likely consumed by other species. The fish kill resulted from oxygen depletion caused by the drainage of Pond-1, dying vegetation, and the concentration of animal populations in the Pond-1 community. 6.1(c) Hydroperiod The excavation altered the natural hydroperiod for the affected area. The hydroperiod for a wetland is the natural fluctuation in water levels that result from dry periods followed by periods of recovery. Water levels drop and are replenished by rain. Precipitation in the Titusville area averages approximately 54 inches in a normal year. Evaporation in Florida for a wetland such as the Refuge is about 48 to 50 inches a year. In a normal year, rainfall and evapo-transpiration would be approximately equal. There are wet and dry seasons for a wetland within a normal year. Approximately 60 percent, or more, of the annual rainfall in a normal year in peninsular Florida occurs in the months of June through October. There are also wet and dry years within longer periods. In the Titusville area, annual rainfall ranges from 35 inches to 80 inches. The adverse impact of any excavation is least during wet months in a normal year and during wet years. During wet conditions, when rainfall generally exceeds evapo-transpiration, the drainage effect of excavation is overwhelmed by rainfall. The adverse impact of any excavation is greatest during dry months in a normal year and during dry years. During dry conditions, the drainage effect of excavation lowers water levels lower than they otherwise would be by lowering elevation controls. The excavation of NS1 and EW1 occurred during dry months in a normal hydroperiod in January 1997. 6.1(d) Stop-loss Ancillaries The adverse impact caused by the excavation was limited by two ancillary factors. One factor was the reduced function of the IRCC, which runs parallel to SR 50, at the time of the excavation. The other factor was the limitation placed on the drainage capacity of NS1 by two culverts through which NS1 must flow south of SR 50. At the time of the excavation, the IRCC was not functioning to full capacity. Plugs in a driveway crossing SR 50 and fill from the Hacienda Road project contributed to the dysfunction. The capacity of NS1 to drain water approximately 1.5 miles south to the Addison Canal was limited by two 18-inch culverts located approximately 2,000 feet south of SR 50. The flow rates for the two culverts are approximately 15 to 25 cubic feet per second, depending on the difference in water levels across the culverts. The dysfunction of the IRCC and the limit imposed by the two culverts combined to prevent more egregious impacts from the excavation of NS1. However, the same limitations increased water in the area south of SR 50 and north of the two culverts. After the excavation, the water level at the intersection of NS1 and SR 50 increased by approximately two feet. The increased water level exacerbated flooding problems in the retention ponds and parking lot of the Cracker Barrel. Long-Term Effect The short-term adverse impacts of the excavation, if left uncorrected, would have had a cumulative effect over several years and would have caused separate long-term adverse impacts. Drainage caused by the excavation differs from natural fluctuations in the hydroperiod. An uncorrected excavation becomes a permanent feature that continues to alter the hydroperiod by permanently lowering water levels and shortening the time that water stands on the surface and saturates the soil. Once the hydroperiod is changed, the change affects the structural integrity of the entire system. Changes to the hydroperiod result in adverse impacts to vegetation, predator- prey relationships, and the suitability of the habitat for a large number of species. Changes in the hydroperiod caused by reduced water levels can change wet prairie area to a shrubby type vegetation dominated by wax myrtle. Wax myrtle can affect the amount and rate of run-off of water and further dry-out the area over time. It can reduce emergent vegetation used as nesting sites for species like red-winged blackbirds and wrens. A reduction in open water area can reduce the habitat for fish and the type of invertebrates that provide food sources for fish. It can also reduce the suitability of the habitat for other species dependent on fish as a food source. A change in the hydroperiod caused by a draw-down of one to two feet can adversely impact various types of wading birds including little blue herons, snowy egrets, little green herons, great blue herons, and great egrets. It can adversely impact other birds such as bald eagles, wood storks, black rails, least bitterns, terns, seagulls, pie billed grebes, mergansers, cormorants, red winged blackbirds, and wrens. An altered hydroperiod can also adversely impact larger animals such as otters and alligators. It is possible to restore habitat after a draw-down. However, such a restoration does not prevent adverse impacts on the health of fish and wildlife during the hiatus that precedes the restoration. District Investigation On March 31, 1997, the District received a letter from the Wildlife Service dated March 27, 1997. The Wildlife Service expressed concern that rapid daily drainage caused by the excavation of NS1 and EW1 was creating adverse impacts on fish and wildlife in the Refuge. The District conducted a sufficient and appropriate investigation. District staff investigated the extent of the excavation and its impact on surrounding wetlands. Neither the investigation nor the Emergency Order was rendered insufficient or inappropriate by the refusal of the District: to wait until 1998 when it could more fully ascertain the effects of the excavation based on whether annual rainfall made 1997 a dry, normal, or wet year; or to re-investigate the effects of the Hacienda Road project on Respondents' properties. The excavation occurred during the dry season of the normal hydroperiod in January 1997. The District reasonably assumed that 1997 was going to be a normal year and could not delay appropriate action until 1998 to see if 1997 turned out to be a wet year. Sometime in 1998, the District determined that 1997 was an extremely wet year. However, the subsequent rainfall in 1997 could not have been reasonably anticipated by District staff and did not eviscerate a reasonable basis for either the Emergency Order on May 14, 1997, or the corrective action taken. An uncorrected excavation would have had long-term cumulative impacts on wetlands irrespective of annual rainfall in 1997. The District investigation leading up to the Emergency Order properly excluded another investigation of the effects of the Hacienda Road project. Such an investigation would have duplicated the investigation conducted in the preceding year. Even if the District had conducted another investigation, the weight of the evidence shows that the results of such an investigation would not have altered the reasonableness of the Emergency Order or the corrective action that ensued. At the time of the Emergency Order, the District reasonably concluded that the excavation caused immediate short- term effects that had significant adverse impacts on water levels in approximately 300 acres of wetlands, on fish and vegetation, and on wildlife in the refuge. Later, the District found that the excavation actually affected 600 to 800 acres of wetlands. Emergency Order Pursuant to Section 373.119(2), the District issued an Emergency Order on May 14, 1997. The Emergency Order authorized the Wildlife Service to construct earthen weirs in NS1 and EW1 to prevent further drainage in the River Basin and the Refuge. The findings and conclusions in the Emergency Order are sufficient and correct. The weirs are reasonably necessary to protect the health of fish, animals, and aquatic life in the River Basin, management objectives and reasonable uses of property in the River Basin, and other reasonable uses of property within the River Basin. Pursuant to the Emergency Order, the Wildlife Service constructed two earthen weirs in NS1 and EW1. The Wildlife Service constructed: an earthen weir in NS1 at a crest elevation of 12.7 feet; and an earthen weir in EW1 at a crest elevation of 11.7 feet. The weir in NS1 is located at the southernmost end of NS1 inside the Refuge. The weir in EW1 is inside the Refuge at the west end of EW1 just east of the eastern edge of NS1. The Wildlife Service used spoil material from NS1 and EW1 to construct the weirs. The weirs in NS1 and EW1 span the width of NS1 and EW1 and are approximately five feet from front to back at the height of each weir. The north-south sides of the weir in NS1 and the east-west sides of the weir in EW1 have a 4:1 slope. The top sides of each weir are stabilized with concrete bags. Neither of the weirs caused flooding or other adverse impacts on nearby property. Both weirs in NS1 and EW1 have the same effect on water levels, up and downstream, as the high- elevation areas had in NS1 and EW1 prior to the excavation. The weir in NS1 re-creates the two-foot head difference in NS1 that existed prior to excavation. No county rights-of-way exist in the location of NS1 and EW1. Brevard County never accepted the right-of-way adjacent to NS1 and EW1. Permitting Requirements Pursuant to Sections 373.413 and 373.416, the District requires an environmental resource permit (a "permit") to assure that activities such as construction, alteration, maintenance, or operation, will not be harmful to the water resources of the state and will be consistent with the overall objectives of the District. A permit is required for such activities unless a particular activity qualifies for an exemption authorized by applicable statutes and rules. Stormwater Management System or Works The permitting provisions in Sections 373.413 and 373.416, in relevant part, apply to the excavation of NS1, EW1, and the larger system of which each is a part (the "larger system") only if NS1, EW1, and the larger system satisfy the definitions of either a "stormwater management system," "works," or a "surface water management system." Each term is defined by statute or rule. The definitions of a "stormwater management system" in Section 373.403(10) and in Rule 40C-4.021(25) are substantially the same. NS1, EW1, and the larger system are each: . . . designed and constructed or implemented to control discharges . . . necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, [or] inhibit . . . water to prevent or reduce flooding, overdrainage, environmental degradation . . . or otherwise affect the quantity and quality of discharges from the system. Section 373.403(10). NS1, EW1, and the larger system are "works" within the meaning of Section 373.403(5) and Rule 40C-4.021(31). NS1 and EW1, and the larger system, are each: . . . artificial structures, including . . . ditches, canals, conduits, channels . . . and other construction that connects to, draws water from, drains water into . . . waters in the state. Section 373.403(5). NS1, EW1, and the larger system are each a "surface water management system" defined in Rule 40C-4.021(26). Each is a system which, in relevant part, is: . . . a stormwater management system . . . or works, or any combination thereof. . . . [and] include areas of dredging or filling . . . . Rule 40C-4.021(26). The definition of a "surface water management system" includes elements not found in the definition of either a "stormwater management system" or "works." The broader scope of a surface water management system creates the potential that the permit requirement in Rule 40C-4.041(2)(b) may require a permit for elements not subject to Sections 373.413 and 373.416. As applied to the facts in this proceeding, the permit requirement in Rule 40C-4.041(2)(b) for the construction, alteration, maintenance, or operation of a "surface water management system" or "works" does not exceed the statutory authority in Sections 373.413 and 373.416. NS1 and EW1, and the larger system fall within the definition of a stormwater management system in Section 473.403(10) and Rule 40C-4.021(25) and within the definition of "works" in Section 373.403(5) and Rule 40C-4.021(31). Thresholds The requirement for a permit in Rule 40C-4.041(2)(b) does not apply if the construction, alteration, maintenance, or operation of a surface water management system does not meet one or more threshold requirements. NS1 and EW1 meet two threshold requirements found in Rule 40C-4.041(2)(b) 2 and 8. Rule 40C-4.041(2)(b) 2 and 8 require a permit for the construction, alteration, maintenance, or operation of a "surface water management system" if the system either: 2. Serves a project with a total land area equal to or exceeding forty acres; or * * * Is wholly or partially located in, on, or over any wetland or other surface water. NS1 and EW1 each serve a project with a total land area equal to or exceeding forty acres. NS1 and EW1 each are located wholly or partially in "wetlands" or other "surface water" defined, respectively, in Rule 40C-4.021(30) and Section 373.019(16). The excavation work placed spoil material in wetlands. The larger system also exceeds each of the threshold requirements in Rule 40C-4.041(2)(b) 2 and 8. Maintenance None of the parties claim that the excavation of NS1 and EW1 in 1997 was "construction" for which a permit is required in Section 373.413. The District alleges in paragraphs 24-25 and 31-33 of the Administrative Complaint that the excavation satisfies the definitions of maintenance, alteration, or operation. The term "maintenance" is defined in Section 373.403(8) and Rule 40C-4.041(20), in relevant part, to mean: . . . remedial work of a nature as may affect the safety of any . . . works . . . but excludes routine custodial maintenance. (emphasis supplied) Section 373.403(8). In order for the excavation of NS1 and EW1 to be maintenance, it had to be, inter alia, "remedial work" that was not "routine custodial maintenance." 8.3(a) Remedial Work The term "remedial" is not defined by applicable statutes or rules. The term must be defined by its common and ordinary meaning. Work is "remedial" if it rectifies or corrects a fault or error. The excavation of NS1 and EW1 was remedial. It rectified and corrected a fault or error caused by occlusions from high spots, or elevation controls, vegetation, and other causes. The high spots, in particular, reduced flow capacity in low-flow conditions. There is no evidence that the excavation of NS1 and EW1 in January 1997 was of a nature that affected the safety of NS1 and EW1. The lack of such evidence, however, does not preclude a finding that the excavation was remedial work. Section 373.403(8) and Rule 40C-4.021(20) provide that work is remedial if it is of a nature that "may" affect the safety of works such as NS1 and EW1. The statute and rule do not define remedial work to require that work "shall" affect the safety of NS1 and EW1 in order for the work to be remedial. Thus, work is remedial if it is of a nature that affects either the function or safety of NS1 and EW1. 8.3(b) Routine Custodial Maintenance If the excavation of NS1 and EW1 was routine custodial maintenance, it was excluded from the definition of "maintenance" in Section 373.403(8) and Rule 40C-4.021(20). If the excavation was not defined as "maintenance," it was neither "maintenance" that is subject to the maintenance permitting requirements nor "maintenance" that must satisfy the requirements for a "maintenance" exemption. The terms "routine" and "custodial" are not defined by applicable statutes or rules. They must be defined by their common and ordinary meanings. 8.3(b)(1) Routine The excavation of NS1 and EW1 was not routine. The excavation was not incident to work performed on a regular basis, according to a prescribed and detailed course of action, a standard procedure, or a set of customary activities. The excavation was not part of a course of action performed on a continuous or periodic basis. Any excavation that occurred prior to 1997 occurred only sporadically or episodically and not pursuant to any discernible interval or course of action. No excavation in prior years occurred at the level or to the extent of the excavation in 1997. From 1951 through 1996, neither NS1 nor EW1 were excavated in and around the excavation site. Experts examined aerial photographs taken between 1943 and 1997 for evidence of changes in water flow, vegetation, canal definition, and new spoil material that would indicate the occurrence of maintenance in and around the excavation site. Experts examined aerial photographs taken in 1958, 1969, 1972, 1975, 1979, 1980, 1984, 1986, 1989, 1994, and 1995. In 1943, there was a small interruption of water flow in NS1. The width of NS1 ranged from 10 to 14 feet. In 1951, the width of NS1 ranged from 16 to 20 feet. In 1958, there was some water in NS1 south of EW1. However, the same area in NS1 was predominantly covered with dirt and free-floating wetland vegetation. In 1979, intermittent water appeared in NS1 south of EW1. In 1980, water flowed freely in NS1 north of EW1, but no water flowed in NS1 south of EW1. In 1983, much of the definition of NS1 was lost north of Marsh-1. Water was intermittent. In 1984, the same area was seriously occluded. About 75-80 percent of the capacity of NS1 had been lost. In 1986, NS1 south of EW1 and north of Marsh-1 was losing definition. Sometime before 1993, some of the vegetation was cleaned out of NS1 south of Marsh-1. In 1986, a ditch appears next to EW1 from NS1 east to Pond-1. The ditch is not man-made because it is irregular and does not flow in a straight line. The ditch leading out of Pond-1 next to EW1 appears in the 1986 aerial photographs because a controlled fire in 1984 burned much of the free-floating vegetation. In 1989, the ditch next to EW1 was still present but was starting to become overgrown with vegetation. The vegetation included cattails west of Pond-1. In 1994, vegetation had been cleaned out of NS1 from a point approximately 400 feet south of EW1 to SR 50, but no water was present in that part of NS1. In 1994, the ditch next to EW1 contained cattails and some shallow marsh species. 8.3(b)(2) Custodial The excavation of NS1 and EW1 in January 1997 was not custodial. The excavation exceeded the level of work that was reasonably necessary to preserve, or care for, the condition or status of NS1 and EW1 immediately before the excavation. The spoil material next to NS1 and EW1 after the excavation in January 1997 was not consistent with custodial care. The spoil material differed in quantity and content from that which would evidence custodial care. The large quantity of spoil material produced by the excavation in 1997 far exceeded any reasonable amount that would evidence custodial care. The spoil material consisted primarily of sandy soil. The spoil material from custodial care would have consisted primarily of vegetation and possibly some organic soils that would have accumulated at or just beneath the bottom of NS1 and EW1. Alteration The term "alter" is defined in Section 373.403(7) and Rule 40C-4.041(2), in relevant part, as meaning: . . . to extend . . . works beyond maintenance in its original condition, including changes which may increase . . . the flow or storage of surface water which may affect the safety of . . . such . . . works. Section 373.403(7); 40C-4.021(2). 8.4(a) Original Condition Respondents contend that the term "original condition" means the condition prescribed in the original design specifications for NS1 and EW1 before 1916. If the excavation in 1997 was not so extensive that it exceeded the original design specifications for NS1 and EW1, Respondents argue that the excavation was not an "alteration" of NS1 and EW1. Respondents are correct. The common and ordinary meaning of the term "original" means first in time. The legislature and the District consistently use the term "original design specifications" as a requirement in Section 403.813(2)(f) and (g) and Rules 40C-4.051(11)(b) and 40C-4.051(11)(c). Original design specifications offer the most reliable standard for defining the "original condition" of NS1 and EW1 and should be used for that purpose whenever the original design specifications are established by the evidence of record. If the evidence is insufficient to establish the original design specifications, however, it does not follow that Respondents are free to excavate NS1 and EW2 to any extent. An "alteration" of NS1 and EW1 occurs in the absence of original design specifications if the excavation exceeds the "original condition" of the NS1 and EW1 defined by the weight of the evidence. The literal meaning of the terms "original design specifications" and "original condition" are not coterminous. The former term conveys a relatively specific connotation. The latter term is broad enough to be defined by means other than evidence of the "original design specifications" whenever the "original design specifications" cannot be established. The District must show that the excavation in 1997 satisfied the essential requirements of an "alteration" in Section 373.403(7) and Rule 40C-4.021(2). The District must prove the "original condition" of NS1 and EW1 by evidence of the "original design specifications" or, in the absence of such evidence, by evidence of "original condition" before the excavation. 8.4(a)(1) Original Design Specifications The parties submitted considerable evidence in an attempt to show that the "original condition" of NS1 and EW1 was evidenced, alternatively, by original design specifications or by other evidence, including evidence of the condition of NS1 and EW1 immediately before the excavation in January 1997. The evidence included data and other information from: approximately 78 aerial photographs taken in 1943, 1951, 1958, 1969, 1972, 1979, 1980, 1983, 1984, 1986, 1989, 1993-1995, and 1997; construction plans for I-95, from the 1960s, and for the widening of SR 50 by the Department; various reports and surveys, including those identified in this proceeding as the Cofield, Powell, McCrone, and Titusville surveys or reports; the results of investigations or surveys conducted by the District in 1996 and 1997; official maps, including the recorded plat of Titusville Farm, the U.S. geologic survey quadrangle map, the map used by the Wildlife Service, the Department's drainage basin map, and the District's basin map; the record chain of title that includes recorded drainage easements; approximately 51 pages of local newspaper articles from the early 1900s describing the work at Titusville Farm; and expert testimony based on the examination of the evidence of record. The evidence does not establish the original design specifications for NS1 and EW1 or the larger system. The evidence does not establish invert elevation; bottom width; side slopes; top width; ditch bottom profile or slope; hydraulic capacity; or hydrologic function. From the early 1900s through the 1970s, various plans proposed the construction of ditches that would discharge water into the Indian River approximately three miles east of I-95. The lower elevation of the River presented an efficient outfall for drainage. However, neither NS1, EW1, nor the larger system contains an outfall to the Indian River. Survey information is not available for the original construction of NS1, EW1, and the larger system. Information contained in more recent surveys does not show that NS1 and EW1 were originally designed to a depth of five to seven feet as Respondents contend. Newspaper articles from the early 1900s do not provide sufficient detail to establish the original design specifications for NS1, EW1, and the larger system. Most of the articles refer to a system constructed to the southeast of what is now the intersection of I-95 and SR 50. A few references describe canals that are four to five feet deep. Old newspaper articles show photographs of dredging equipment constructing a canal from Bird Lake to the Indian River. Bird Lake is southeast of I-95 and SR 50. The only evidence of the "original condition" of NS1 and EW1 before the excavation is evidence of the condition of each on the date of a particular piece of evidence. The evidence shows that the "original condition" of NS1 and EW1 between 1951 and the date of excavation was seriously degraded from the condition to which they were restored after the excavation. 8.4(a)(2) Condition Before Alteration After 1951, the canals constructed within that portion of Titusville Farm that is in the contested area lost their original design function. Due to a lack of maintenance and to occlusions through vegetation growth, aquatic vegetation, and sediment, the canals deteriorated over time. Since 1966, the canals have exhibited only sporadic signs of maintenance. Little, if any, new spoil material has been present. Water flow has been intermittent and insignificant. The increased growth in vegetation is consistent with decreased water flow and itself further impedes water flow. Since 1951, the canals in the rectangular parcel have filled with sediment in random locations, producing irregular ditch bottom elevations. High spots in bottom depths create control elevations that impede the flow of water during low-flow conditions west toward the St. Johns River and south toward the Addison Canal. Numerous high spots in bottom elevations create control elevations that impede water flow. The construction plans for I-95 reveal bottom depths in the rectangular parcel that vary from one to two feet. The construction plans for Hacienda Road show bottom depths ranging from 1.5 to 2.0 feet. Other surveys show natural ground elevations of 11.0 to 11.1 feet and bottom elevations of 8.5 to 9.8 feet resulting in bottom depths ranging from 1.3 to 2.5 feet. A survey conducted by the District in 1997 of high spots in bottom elevations between Hacienda Road and I-95 is consistent with the findings of previous surveys. Large sections of east-west ditches are high and reduce the flow of water west to the St. Johns River. Those canals constructed in Titusville Farm which are located in the smaller parcel east of I-95 have experienced a degradation in function similar to that experienced by the canals in the rectangular parcel. In addition, many of the existing drainage ditches discharge into swamps instead of their intended drainage outlets. During periods of high water, the canals constructed in Titusville Farm and now located in the contested area overflow and flood. During such periods, the natural sheet flow of water occurs from east to west and from north to south. 8.4(b) Safety Section 373.403(7) and Rule 40C-4.021(2) provide that work is an alteration if it includes changes which "may" affect the safety of works such as NS1 and EW1. The statute and rule do not say that work "shall" affect the safety of NS1 and EW1 before the work can be considered to be an alteration. Thus, work can be an alteration if it includes changes which affect either the function or safety of NS1 and EW1. The excavation of NS1 and EW1 affected their function. Operation The term "operation" is not defined in applicable statutes or rules and must be defined by its common and ordinary meaning. The term "operation" has two meanings. One meaning for an "operation" is a process or series of acts performed to effect a certain purpose or result, such as a surgical procedure. This definition creates the potential that the excavation of NS1 and EW1 will qualify simultaneously as an operation, maintenance, and an alteration. An "operation" would be neither maintenance nor an alteration only if: the operation was a process or series of acts, other than remedial work; was performed to effect a purpose or result other than the extension of works beyond maintenance in their original condition; and was not routine custodial maintenance. The second definition of "operation" is more easily distinguished from a single event that may also qualify as "maintenance" or "alteration." Under the second definition, an "operation" means an "act," process, or "way of operating" over time. Under this definition, a person can engage in the operation of a stormwater management system, or works, after completing a single event that is defined as either "maintenance" or "alteration." NS1 and EW1 were operating at some level of function and capacity before their excavation in 1997. Section 373.416 could not reasonably be construed as requiring Modern to obtain a permit for allowing NS1 and EW1 to continue their existing operation when Modern became the owner of the property. Modern would have committed no "act" which brought about a "way of operating" NS1 and EW1 that did not already exist at the time of acquisition. The excavation of NS1 and EW1 was an "act" by Modern that brought about a new and different "way of operating" NS1 and EW1. The new "way of operating" would not have occurred but for the act of Modern. After the excavation, Modern operated NS1 and EW1, albeit passively, in a way that Modern did not operate NS1 and EW1 before the excavation. Under either definition, the excavation in January 1997 involved the operation of NS1 and EW1. Pursuant to Section 373.416, the District requires a permit for either type of operation. Integrated Transaction The excavation of NS1 and EW1 in January 1997 consisted of three separate steps integrated into a single transaction referred to by the parties as excavation. The first step was maintenance; the second step was alteration; and the third step involved a new operation. In the first step, maintenance removed vegetation and minor occlusions; restored NS1 and EW1 to their original condition immediately before the excavation; and was neither routine nor custodial. In the second step, alteration extended the excavation beyond maintenance of NS1 and EW1 in their original condition; increased the flow of water in each; increased the depth and width of each; and increased the function and capacity of each. The third step in the transaction involved a new way of operating NS1 and EW1 after the first two steps. Even if the new operation were not a step within the excavation, because it arguably did not occur until after the excavation was completed, the transaction consisted of the two steps in the excavation and a third step after the excavation. In either case, the new operation of NS1 and EW1 is a separate activity for which a permit is required pursuant to Section 373.416. The separate permitting requirements in Sections 373.413 and 373.416 apply to each separate step in the transaction. If excavation had ceased after the maintenance step, no alteration or new operation of NS1 and EW1 would have occurred. Nevertheless, permitting requirements would have required a permit for the maintenance performed in the completed step unless that step qualified for a maintenance exemption. Once the excavation progressed beyond maintenance, it involved the additional, but separate, steps of "alteration" and "operation" for which a permit is required and for which no exemption is claimed by Respondents. If each separate step were separated in time, separate permitting requirements would have applied to each step. Modern does not avoid the separate permitting requirements in Sections 373.413 and 373.416 by integrating three separate steps into a single transaction. Estoppel 204. The weight of the evidence does not show that the District is estopped from enforcing applicable permitting and exemption requirements. The evidence does not show that the District represented to Respondents that the excavation of NS1 and EW1 did not require a permit or qualified for an exemption. Factual Representations Prior to the excavation of NS1 and EW1, District staff met with Mr. Charles Moehle, Mr. Michael Moehle, Mr. Nelson, and a number of others. The meeting was held to discuss the proposed cleaning of the IRCC. A number of issues were discussed at the meeting. One issue involved a driveway that had been constructed in the IRCC without culverts. The District determined that the driveway did not create a substantial adverse impact on area property owners because the IRCC did not carry enough water. Most of the water draining south out of the contested area drained south of the IRCC to the Addison Canal. The District told attendees at the meeting that the District would clean out most of the vegetation in the IRCC. Brevard County subsequently installed culverts in the IRCC where the driveway had been constructed originally without culverts. At the southeast corner of the smaller parcel east of I-95, the IRCC turns obliquely northeast for about a half mile and then resumes its eastward direction toward Indian River City. Respondents claim the IRCC turns north at NS1, at a right angle, and then turns east at EW1, at another right angle, and resumes its eastward direction to Indian River City. The District did not represent to Respondents that the IRCC follows NS1 and EW1 and flows under I-95 to Indian River City. The District never indicated that NS1 and EW1 could be cleaned out under a maintenance exemption as part of the IRCC or otherwise. Mr. Frank Meeker, the Ombudsman for the District, met with Mr. Michael Moehle at least three times between February 14 and April 22, 1996, to discuss the problems of high water on Modern property. Mr. Meeker indicated that a culvert needed to be placed under the driveway in the IRCC, which was later done by Brevard County, and that NS1 needed to be cleaned out to eliminate the blockage south of SR 50 in the vicinity of the Titusville Waste Water Treatment Plant. NS1 was cleaned out south of SR 50. Mr. Meeker reviewed the work and indicated to Mr. Michael Moehle that the work constituted borderline maintenance. Mr. Meeker never indicated that the excavation of NS1 and EW1 north of SR 50 would be exempt from statutory permitting requirements. Mr. Meeker has neither the actual nor apparent authority to rule on permit requirements. Mr. Meeker sent a letter to Mr. Charles Moehle in April 1996. Nothing in that letter suggests that the excavation of NS1 and EW1 would be exempt from statutory permitting requirements. Disparate Treatment Respondents claim that the District treated them unfairly. The weight of the evidence shows that the action taken by the District did not result in disparate treatment. 9.2(a) Cracker Barrel-1, Cracker Barrel-2, and Lowe's Since 1996, the District has issued three permits for construction of different projects on property owned by Modern or Omni in the area of NS1 and EW1. The three projects involved significant impacts to wetlands. The three projects are referred to in this proceeding as Cracker Barrel-1, Cracker Barrel-2, and Lowe's. In determining whether a particular piece of property contains wetlands, the District relies on a statewide wetland delineation rule described in Section 373.421 and Rule 62.340. The District considers vegetation, soils, and hydrology to delineate wetlands. The District utilized this delineation rule when it issued permits for Cracker Barrel-1, Cracker Barrel-2, and Lowe's. The District determines a mitigation ratio for construction on wetlands through a balancing process. The District weighs the quality of the wetlands on a particular construction site against the quality of the mitigation plan. The District relied on this same process when it issued permits for Cracker Barrel-1, Cracker Barrel-2, and Lowe's. Cracker Barrel-1 involved approximately 4.5 acres of wetlands on a 5-acre site just south of Modern-1. The District issued a permit for the construction of Cracker Barrel-1 approximately two months after receipt of the application. Cracker Barrel-2 involved approximately 11 acres of wetlands on a 15-acre site. The District issued a permit for the construction of Cracker Barrel-2 approximately two months after receipt of the application. Lowe's is located east of I-95, north of SR 50, west of SR 405, outside the contested area, but adjacent to the contested area. Lowe's involved approximately 22 acres of wetlands on a 25-acre site. Lowe's was not an easy project to permit due to the extensive acreage and wetlands impacts. The District issued a permit for the construction of Lowe's approximately four months after receipt of the application. 9.2(b) Unnecessary Delay and Expense Respondents complain that the District unfairly increases the time and expense associated with permit applications through pre-application negotiations intended to resolve issues that typically arise when formulating a mitigation plan for construction on wetlands. Respondents contend that the delay before an application can be submitted is unreasonable. Respondents point to a delay of almost a year between the time Modern first complained in 1996 of flooding and the refusal of the District to approve any corrective action. Respondents also cite delays in pre-application negotiations for Cracker Barrel-1, Cracker Barrel-2, and Lowe's. The District did not delay its investigation of the flooding allegedly caused by the Hacienda Road project. The District conducted an appropriate investigation and reasonably determined that the flooding was not attributable to the Hacienda Road project. The delays complained of by Respondents are reasonable incidents of good faith attempts by the District to effectuate its statutory responsibilities through mutual agreement. The weight of the evidence does not show that the delays complained of by Respondents constitute disparate treatment. The delays were not de jure delays that resulted from a design or intent on the part of the District to delay Modern and Omni in their construction and development ventures. The weight of the evidence shows that the delays were reasonably necessary to formulate mitigation plans for each construction project and to carry out the statutory obligations of the District prescribed in Sections 373.413 and 373.416. 9.2(c) Selective Exemption Respondents claim that the District is unfairly applying certain maintenance exemptions to the excavation carried out by Modern. Respondents complain that the District previously granted maintenance exemptions for projects carried out by entities unrelated to Respondents but denied any maintenance exemption for the excavation of NS1 and EW1. Activities covered by applicable permitting requirements either do or do not qualify for a maintenance exemption. No separate application is required for such an exemption. A person who performs work based on the assumption that the work qualifies for an exemption assumes the risk that the work does not qualify for the exemption. If the work is performed in violation of applicable permitting requirements, it may qualify for an after-the-fact permit or corrective action may be required. The District has previously granted relevant maintenance exemptions for a number of different projects carried out by entities unrelated to Respondents and has also denied maintenance exemptions in other instances including the excavation of NS1 and EW1. The weight of the evidence shows that the District is not applying maintenance exemptions to the excavation of NS1 and EW1 in a manner that results in disparate treatment of Modern or its co-respondents. Brevard County cleaned out a portion of NS1 south of SR 50 based on the mistaken conclusion that the work qualified for a maintenance exemption. After the District began this enforcement action against Modern, the District determined that the work did not qualify for a maintenance exemption and required Brevard County to apply for a permit. Brevard County applied for a permit, albeit belatedly. The District granted the permit because the work complied with applicable criteria and did not result in adverse impacts to wetlands or the Refuge. In another instance, the District discovered some ditch plugs in ditches adjacent to property owned by a person named "Dr. Broussard." The District requested Dr. Broussard to remove the plugs, and Dr. Broussard complied. 9.2(d) Selective Enforcement Respondents allege disparate treatment from the District on the ground that the District did not file an administrative complaint in the foregoing instances but filed such an action against Modern. However, the weight of the evidence shows that enforcement action was not reasonable in other instances because the District reached mutually agreeable resolutions with the regulated parties. The evidence shows that enforcement action was reasonably necessary in this proceeding. The District first became aware of the significance of the impacts of the excavation of NS1 and EW1 when the District received a letter from the Wildlife Service in March 1997. The District brought the matter to the attention of Modern. The District informed Modern of the seriousness of the situation, notified Modern that the excavation required a permit, and made Modern aware of the need to correct the situation by restoring the wetlands to their original condition. The District and Modern discussed various options for constructing weirs without reaching any agreement. Time was of the essence. When the District concluded that the parties were not going to reach agreement, the District undertook emergency action in May 1997 and filed the Administrative Complaint later in August 1997. The action taken by the District in this proceeding is consistent with the District's historical practice. When the District becomes aware of a potential violation, the District does not immediately file an administrative complaint. The District investigates the matter to confirm the existence and extent of a violation, if any, and makes reasonable efforts to resolve the matter informally. The District has not issued an emergency order prior to the excavation of NS1 and EW1 because an emergency order was not the most appropriate solution in other cases. However, the District has sought injunctions in circuit court against persons unrelated to Respondents. In this proceeding, an emergency order better served applicable statutory mandates to the District because the Wildlife Service was willing to perform the work needed to rectify the condition that existed within the Refuge. This combination of factors made an emergency order particularly well suited and practicable for carrying out the statutory responsibilities of the District. The weight of the evidence does not show that the District threatened criminal prosecution against Modern or its individual shareholders. The District has not referred this matter for criminal prosecution. However, the issue of whether a threat of criminal sanctions occurred is fairly debatable, even if it is immaterial to estoppel, the permitting requirements, and the exemption requirements. Paragraph 27 in the Administrative Complaint does put Modern on notice that Sections 373.129(5) and 373.136 authorize the District to file a cause of action in circuit court in which the District may seek civil penalties up to $10,000. Section 373.430(3)-(5) puts Modern on notice of the potential for criminal penalties in circuit court. In any event, Modern failed to prove that the District is estopped from requiring a permit or applying applicable exemption requirements to the excavation of NS1 and EW1. Modern neither applied for nor obtained a permit for the excavation of NS1 and EW1. Unless Modern qualifies for one of the exemptions authorized by statute or rule, Modern violated Section 373.430(1)(b) and is subject to the actions and penalties authorized in Sections 373.119 and 373.129(1), (3), (6), and (7). Exemptions Modern claims it is entitled to six exemptions from the permitting requirements in Sections 373.413 and 373.416. Four of the exemptions are found in Rules 40C-4.051(2)(a)1, 40C- 4.051(2)(a)3, 40C-4.051(11)(b), and 40C-4.051(11)(c). The other two exemptions are found in Section 403.813(2)(f) and (g). Two Grandfather Exemptions Rule 40C-4.051(2)(a) 1 and 3, in relevant part, authorizes exemptions for systems such as NS1, EW1, and the larger system, if they are: located in prescribed areas; and were constructed and operating prior to December 7, 1987, and March 2, 1974, respectively. NS1, EW1, and the larger system are located in the areas described in each rule. On the requisite dates, however, they were not constructed and operating. Rule 40C-4.051(2)(c), in relevant part, provides that the exemptions in Rule 40C-4.051(2)(a) apply only to those systems set forth in plans, specifications, and performance criteria existing on or before December 7, 1983, or March 2, 1974, as the case may be, and then only to the extent: 2. Such system is maintained and operated in a manner consistent with such plans, specifications and performance criteria. Rule 40C-4.051(2)(c) 2. Rule 40C-4.051(3), in relevant part, provides that the exemptions listed in Rule 40C-4.051(2) "shall not apply" to those systems which on either December 7, 1983, or March 2, 1974, as the case may be: . . . have ceased to operate as set forth in such system's plans, specifications and performance criteria. Modern does not qualify for either of the exemptions in Rule 40C-4.051(2)(a) 2 or 3. As a threshold matter, the weight of the evidence does not establish plans, specifications, or performance criteria (the "original criteria") for NS1, EW1, or the larger system on either December 7, 1983, or March 2, 1974. Even if the evidence did establish the original criteria and if the excavation merely restored NS1 and EW1 to the original criteria, the evidence clearly shows that neither NS1, EW1, nor the larger system were constructed and operating in accordance with the original criteria on the prescribed dates. Rather, the evidence shows that NS1, EW1, and the larger system had become seriously degraded and no longer operated at their post- excavation levels. Two Maintenance Dredging Exemptions Modern claims that it qualifies for the exemption in Rule 40C-4.051(11)(b). That rule, in relevant part, exempts from the permitting requirements in Sections 373.413 and 373.416: The . . . maintenance dredging of existing manmade canals [and] channels . . . where the spoil material is . . . removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material and return water from the spoil site into wetlands or other surface waters, provided no more dredging is performed than is necessary to restore the canal [and] channels . . . to original design specifications and provided that control devices are used at the dredge site to prevent . . . deleterious substances from discharging into adjacent waters during maintenance dredging. . . . This exemption shall not apply to the removal of a natural . . . barrier separating a canal . . . or system from adjacent wetlands or other surface waters. Prior to the amendment of Section 403.813(2)(f) in October 1997, the maintenance exemption in the statute was substantially similar to that in the quoted rule. The two exemptions are first discussed together as they existed prior to the statutory amendment in 1997. The exemption requirements created by the 1997 amendments are discussed separately. 10.2(a) Requirements Before 1997 The excavation of NS1 and EW1 in January 1997 was "dredging" within the meaning of Section 373.403(13). It was excavation by any means in surface waters defined in Section 373.019(16) or wetlands delineated in Section 373.421(1). The excavation also connected Pond-1, a water body, to surface waters or wetlands. 10.2(a)(1) Canals, Channels, or Ditches The maintenance dredging exemptions authorized in Section 403.813(2)(f) and Rule 40C-4.051(11)(b) apply only to canals or channels. The exemptions do not apply to drainage ditches. Neither Section 373.403 nor Rule 40C-4.021 define the terms "canals, channels, or ditches." However, the terms are defined in Section 403.803(2),(3), and (7). The definitions in Section 403.803 may be used to define the terms of the exemptions in Rule 40C-4.051(11)(b). In October 1995, the legislature consolidated the dredge and fill permitting provisions in Chapter 403 with the permitting provisions for the management and storage of surface waters in Chapter 373, Part IV. Section 403.813(2) expressly provides that the exemptions authorized in Section 403.813(2) apply to the permit requirements in Chapter 373. Section 373.413(9) directs water management districts in the state to incorporate the provisions of Rule 62-312.050 into the rules of the districts and to rely on the existing provisions governing the dredge and fill program when implementing the rules of the districts. Neither NS1 nor EW1 is a canal within the meaning of Section 403.803(2). Although each is a manmade trench, the bottom of neither NS1 nor EW1 is normally covered by water within the meaning of Section 403.803(2). Portions of NS1 and EW1 which are upstream from high spots or elevation controls are "normally" covered by water. However, portions which are downstream of high spots are "normally" not covered by water during low-flow conditions and dry conditions in a normal or wet year, and during dry years. Neither NS1 nor EW1 is a channel as defined in Section 403.813(3). Although each is a trench, the length of NS1 and EW1 are not "normally" covered "entirely" with water during low-flow conditions and dry conditions in a normal year or wet year, and during dry years. Neither is the bed of a stream or river. NS1 and EW1 are each a drainage ditch or irrigation ditch within the meaning of Section 403.803(7). Each is a man- made trench created to drain water from the land or to transport water for use on the land, and neither is built for navigational purposes. NS1 and EW1 satisfy the definition of a drainage ditch or irrigation ditch irrespective of the degree to which the bottom of each is "normally" covered by water: upstream or downstream of high spots or control elevations; during low-flow conditions and dry conditions in normal or wet years; and during dry years. 10.2(a)(2) Additional Requirements Even if NS1 and EW1 were canals or channels, their excavation in 1997 does not qualify for the exemption in Rule 40C-4.051(11)(b). The excavation fails to satisfy several additional requirements for the exemption. The spoil material from the excavation was not placed on an upland spoil site which prevented the escape of spoil material and return water into wetlands and surface waters within the meaning of Section 373.019(16). Rather, Modern placed the spoil material in wetlands. Modern placed approximately 1.5 acres of fill in wetlands in the form of spoil material from the excavation. Modern placed approximately .75 acres of such fill in the wetlands and surface waters north of Marsh-1. 10.2(a)(3) Original Design Specifications More dredging was done than was necessary to restore NS1 and EW1 to their original design specifications. The weight of the evidence does not show the original design specifications for NS1 and EW1, including the bottom elevations, widths, slopes, and other pertinent specifications typically prescribed in original designs. However, the evidence does show the original condition of NS1 and EW1 immediately before their excavation. More dredging was done than was necessary to restore NS1 and EW1 to their original condition before the excavation. 10.2(a)(4) Natural Barrier The exemptions in Section 403.813(2)(f) and Rule 40C- 4.051(11)(b) do not apply to the removal of a natural barrier separating a canal from adjacent wetlands or other surface waters. The term "barrier" is not defined in Sections 373.403 or 403.803; or in Rule 40C-4.021. The term must be defined by its common and ordinary meaning. A barrier is something that acts to hinder or restrict. The high spots that existed in NS1 and EW1 before their excavation functioned as control elevations. The high spots were natural barriers during low-flow conditions, during dry conditions in normal and wet years, and during dry years. They acted to hinder or restrict the flow of water through EW1 and NS1 into adjacent wetlands and eventually to other surface water through the Addison Canal west toward the St. Johns River. The 3-4 foot wall of water that flowed down NS1 to SR 50 immediately after the excavation in 1997 provided vivid evidence of the effectiveness of the high spots that formed two-foot barriers before the excavation. The excavation did not use control devices which prevented deleterious substances from discharging into adjacent waters during maintenance dredging. The term "waters" is defined in Section 403.031(13) to include wetlands. The term is also defined in Section 373.016(17) and Rule 40C-4.021(29) in a manner that includes wetlands. Spoil material was placed in adjacent waters and not contained by adequate control devices. 10.2(b) Requirements After 1997 Additional provisions not found in Rule 40C- 4.051(11)(b) were added to Section 403.813(2)(f) in October 1997. In relevant part, the additional provisions extend the exemption in Section 403.813(2)(f) beyond canals and channels to include: . . . previously dredged portions of natural water bodies within drainage rights-of-way or drainage easements which have been recorded in the public records of the county . . . provided that no significant impacts occur to previously undisturbed natural areas, and provided that . . . best management practices for erosion and sediment control are utilized to prevent . . . dredged material . . . and deleterious substances from discharging into adjacent waters during maintenance dredging . . . . (emphasis supplied) 10.2(b)(1) Retroactivity As a threshold matter, the additional provisions in Section 403.813(2)(f) did not take effect until October 1997. The excavation of NS1 and EW1 occurred in January 1997. 10.2(b)(2) Drainage Easements Modern claims that it was not required to obtain a permit to excavate NS1 and EW1 because Modern possesses drainage easements for NS1 and EW1 which are recorded in the public records of Brevard County, in accordance with the requirements of Section 404.813(2)(f). Modern claims that it is entitled to maintain its drainage easements. Assuming arguendo that Respondents possess drainage easements and that the drainage easements are included in the exemption, the owner of drainage easements is no less subject to statutory permitting and exemption provisions than is the owner of the fee simple estate in land through which an easement runs. The existence of drainage easements is only one of the requirements in Section 403.813(2)(f) for an exemption from a permit. Modern must also show that it satisfies the other exemption requirements in Section 403.813(2)(f). 10.2(b)(3) Other Requirements The excavation of NS1 and EW1 resulted in significant impacts to previously undisturbed natural areas. The area subject to significant impacts was not limited to the excavation site but included 600-800 acres inside the Refuge. Modern failed to utilize best management practices to prevent dredged material and deleterious substances from discharging into adjacent waters during dredging. Dredged material and deleterious substances were deposited into adjacent wetlands. Two Maintenance Exemptions Rule 40C-4.051(11)(c), in relevant part, provides that no permit is required for the maintenance of "functioning . . . drainage ditches . . ." if: The spoil material is deposited on a self-contained upland spoil site which will prevent the escape of the spoil material and return water into wetlands or other surface waters. [and] * * * 3. . . . no more dredging is . . . performed than is necessary to restore the . . . drainage ditch to its original design specifications. The quoted requirements for the exemption in Rule 40C- 4.051(11)(c) are substantially identical to the requirements for the exemption in Section 403.813(2)(g). However, the exemption in Rule 40C-4.051(11)(c) applies to "functioning" ditches while the exemption in Section 403.813(2)(g) authorizes an exemption for "existing" ditches. 10.3(a) Functioning or Existing The terms "functioning" and "existing" are not defined in Sections 373.403, 403.803, or in Rule 40C-4.021. Each term must be defined by its common and ordinary meaning. The terms "functioning" and "existing" are not equivalent terms. The statutory provision authorizing maintenance exemptions for "existing" ditches precludes a maintenance exemption for initial "construction" of ditches. Existing ditches do not function if they are totally occluded by debris, silt, or vegetation that prevent any conveyance of water. Alternatively, a ditch that is dammed by a man-made device would not function but would exist. Before the excavation in January 1997, NS1 and EW1 each functioned to the extent that it performed the action for which it was particularly fitted or employed, albeit at a degraded capacity. Each existed irrespective of its level of function. The culverts for NS1 under SR 50 and south of SR 50 and those for EW1 under I-95 belie the District's contention that NS1 and EW1 neither functioned nor existed before the excavation. If the contention were correct, it would mean the construction of the culverts under SR 50 and south of SR 50 was a meaningless expenditure of taxpayer dollars. The District's contention suffers another internal inconsistency. If NS1, EW1, and the larger system were not functioning before the excavation, they may have failed one or more of the threshold requirements in Rule 40C-4.041(2)(b)2 because they did not "serve" 40 acres or any other area. NS1 and EW1 functioned and existed before the excavation. NS1 and EW1 each conveyed water when water exceeded high spots during dry and wet conditions in dry, normal, and wet years. EW1 conveyed water into NS1. NS1 conveyed water south through several culverts into the Addison Canal and west toward the St. Johns River. The bottom line is, the works worked. Even though NS1 and EW1 were "functioning" and "existing" before the excavation in January 1997, the excavation did not qualify for the exemptions in Section 403.813(2)(g) and Rule 40C-4.051(11)(c). The excavation failed to satisfy additional requirements in the statute and rule. 10.3(b) Additional Requirements The excavation did not deposit spoil material on a self-contained upland spoil site which prevented the spoil material and return water from escaping into wetlands and other surface waters. The dredging was more than was necessary to restore NS1 and EW1 to their original design specifications. Unadopted Rule Respondents claim that the District's proposed agency action is based on a policy which satisfies the definition of a rule in Section 120.52(15) but which has not been promulgated in accordance with the rulemaking procedures prescribed in Section 120.54 (an "unadopted rule"). Respondents claim the unadopted rule restricts "maintenance" exemptions in Section 403.813(2)(g) and Rule 40C-4.051(11)(c) to routine custodial maintenance; and to existing ditches that also function. Section 120.57(1)(e), in relevant part, provides: . . . Any agency action that determines the substantial interests of a party and that is based on an unadopted rule is subject to de novo review by an administrative law judge . . . . . . . The agency must demonstrate that the unadopted rule . . . [satisfies the requirements of Sections 120.57(1)(e)2a-g] . . . . (emphasis supplied) If Respondents show that the District's proposed agency action is based on an unadopted rule and that the District has relied on the rule to determine the substantial interests of Respondents, then the agency must prove-up its unadopted rule by demonstrating in a de novo review that the unadopted rule satisfies the requirements of Section 120.57(1)(e). 11.1 Rule Defined Section 120.52(15), in relevant part, defines a rule to mean: . . . each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and . . . 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 plan or procedure important to the public and which have no application outside the agency issuing the memorandum . . . . Section 120.52(15) establishes two conjunctive requirements as a threshold test for a rule. There must be a statement; and the statement must be one that is of general applicability. A statement of general applicability must also satisfy one or more disjunctive requirements. The statement must either implement, interpret, or prescribe law or policy; describe the practice requirements of an agency; amend or repeal a rule; or impose any requirement or solicit any information not required by statute or rule. 11.1(a) Statement The District published a working definition of routine custodial maintenance in a memorandum dated November 20, 1989 (the "Memorandum"). The Memorandum was authored by the District's Chief Engineer and approved by the Director of the Department of Resource Management (the "Director"). The Memorandum directs field office directors and compliance coordinators in regard to ditch work and routine custodial maintenance. In relevant part, the statement expressed in the Memorandum provides: This memorandum serves to clarify the District policy on: 1) the type of ditch maintenance work which qualifies for exemption from . . . permitting as specified in rule section 40C-4.051(2)(a)2.a . . . and, 2) procedures for verification that the work qualifies for this exemption. (emphasis supplied) This discussion only applies to work in ditches which trips . . . [a] permit threshold. . . . In many cases, none of these thresholds would be exceeded. Section 40C-4.051(2)(a)2.1. . . . specifically exempts the "maintenance" of "systems" in existence prior to December 7, 1983. Section 403.813(2)(f) and (g) also exempts the "maintenance dredging of canals and ditches. [sic] These exemptions, however, only apply to what is defined as "routine custodial maintenance." Work that results in the alteration of the system is not exempt and requires a permit from the District if a threshold is exceeded. Section 3.2.1 of the . . . Applicant's Handbook defines "alter" as "works beyond maintenance in its original condition." (emphasis supplied) Working Definition of "Routine Custodial Maintenance" (emphasis not supplied) Two basic criteria: The proposed maintenance work must be for the purpose of restoring the ditch system to its original design specifications. Such specifications would normally include: invert elevation, bottom width, side slopes, top width, ditch lining, ditch bottom profile (slope). In addition, such specifications may include culvert structures, including culvert type, size, invert elevation, length, slope and endwall detail. Maintenance work conducted under this exemption must not alter the hydraulic capacity or hydrologic functions of the ditch from that provided by the original design. The maintenance work must occur on a regular basis. The frequency of maintenance will be variable and dependent on site specific conditions and the level of service provided by the particular ditch system. However, for maintenance work to be exempt, the ditch should have been maintained to prevent deterioration to such a degree that it no longer functions as intended. In other words, routine custodial maintenance is limited to maintaining the ditch rather than re-building the ditch. As a rule of thumb, most ditch systems require maintenance at least once every ten to fifteen years. In some cases, more frequent maintenance is required to prevent a ditch form becoming non-functional. Examples of work which meet the test of "routine custodial maintenance" (provided that the ditch has been periodically maintained): Removal of accumulated silt and debris. Clearing of vegetation from the ditch. Clearing of culverts blocked by sediment or debris. Replacement of damaged culvert structures with same size culverts. Regarding and revegetating ditch side slopes. Examples of work which do not meet the test include: increasing the hydraulic capacity by deepening the ditch bottom and/or increasing the ditch cross section; lining an existing ditch with concrete or other material to improve hydraulic capacity; replacing existing culvert structures with different culvert sizes or placement of new culverts at different invert elevations; any maintenance dredging where spoil material is placed in wetlands; dredging or other maintenance work in natural system. Procedures for conducting maintenance work according to the . . . exemption (Section 40C-4.051(2)9a)2.a. . . . [sic] (emphasis not supplied) If the work is not routine custodial maintenance, the entity performing the work is responsible for obtaining the required permits prior to starting work. (emphasis supplied) Routine custodial maintenance may be conducted without contacting the District. However, upon request, the district will provide written verification that the work is exempt after receiving sufficient information to determine that the work is routing custodial maintenance. This information must include . . . evidence of the original design specifications as described below: * * * Case 2. No Design Specifications (Plans) Exist (emphasis not supplied) this will be the case for many ditch systems prior to . . . effective date . . . or not subject to permitting. . . . In this case, it is much more difficult to determine if the work qualifies for the exemption. The following may be used by the applicant to verify that the work qualifies for an exemption: Work will be limited to one or more of the maintenance activities listed above . . . . Other evidence as to the original specifications of the ditch system, such as: historical and current photographs and aerial photographs; contracts, bid documents, etc.; specifications for typical ditch sections; individuals attesting to the original ditch dimensions (such as contractors, former or current government employees); information on the soils and vegetation in the ditch. . . . Memorandum at unnumbered pages 1-3. The Memorandum is published evidence of the agency statement. However, the statement expressed in the Memorandum exists and is applied by the District independently of the Memorandum. The District expresses and applies the statement each time the District enforces agency action based on the statement and not just when the agency publishes a particular document that captures the statement in writing. The existence, terms, and scope of the statement are measured on a de facto basis by the effect of the statement. That effect emerges from all of the evidence of record including, but not limited to, the publication of the statement in various documents such as the Memorandum. The District illustrates in its PRO and PFO how easily an agency statement can elude the four corners of a particular document on which it is written and emerge from the evidence as an unwritten statement with broader applicability than that stated in a particular document. In relevant part, the District states: 9. The 1989 memorandum was not written to explain the maintenance exemption for . . . drainage ditches in 40C-4.051(11)(c) . . . because this rule did not exist when the memorandum was written. It was written to explain the grandfathering exemption at 40C- 4.051(2)(a) . . . which exempts the "maintenance" of "systems" in existence prior to December 7, 1983 from the permitting requirements of Chapter 40C-4. . . . (emphasis supplied) * * * Modern claims that the ditch excavation is exempt under the ditch maintenance exemption in 40C-4.051(11)(c). . . . (emphasis supplied) Not all ditch excavation is exempt under this exemption, just routine custodial maintenance . . . having a minor environmental impact. "Routine" indicates something that is done on a regular basis. (emphasis supplied) The maintenance exemption for ditches in paragraph 40C-4.051(11)(c) . . . is based on the exemption in paragraph 403.813(2)(g) . . . . 13. . . . the ditches that are subject to the grandfathering exemptions under 40C- 4.051(2) . . . are the same ditches that may also be exempt under the statute. . . . PFO at 7; PRO at 28. Although the Memorandum purports to limit the statement to the "grandfathering exemption" in Rule 4.051(2)(a), District practice relies on the statement to apply the exemptions in Section 403.813(2)(g) and Rule 40C-4.051(11)(c). The District has applied the statement consistently since at least 1984. 11.1(b) General Applicability The statement expressed in the Memorandum is a statement of general applicability within the meaning of Section 120.52(15). In effect, the statement creates rights, requires compliance, or otherwise has the direct and consistent effect of law. The District submitted evidence intended to refute the general applicability of the agency statement by showing that the District does not rely on the Memorandum. The District contends that it has never relied on the Memorandum separate and apart from the statutes and rules interpreted by the Memorandum; that it has never initiated an enforcement action that relies on the Memorandum; that the Director forgot about the Memorandum after signing it; and that District staff do not utilize the Memorandum on a regular basis. The District misses the point. The general applicability of a statement is not determined by the applicability of a particular document in which the statement is expressed. The general applicability of a statement is determined by the effect of the statement evidenced by all of its applications irrespective of the label assigned by the agency to each application. The Director may have forgotten that he signed the Memorandum, but the record shows that neither he nor his staff forgot about the statement expressed in the Memorandum that maintenance exemptions apply only to "routine custodial maintenance." The record is replete with examples of how the District applies the statement with general applicability whenever the District construes the term "maintenance" in Section 403.813(2)(f) and (g); in Rule 40C-4.051(2)(a) 2 and 3; and in Rule 40C-4.051(11)(b) and (c). The District illustrates in its PRO how the statement is applied with the direct and consistent effect of law. In relevant part, the District states: Florida Courts and agencies have consistently interpreted and applied the maintenance exemption to include the requirement that dredging must be . . . part of routine custodial maintenance (emphasis supplied) District PRO at 83. The statement expressed in the Memorandum is generally applicable within the meaning of Section 120.52(15). The statement defines the scope of the permit requirement in Section 373.416 and the scope of the exemption in Section 403.813(2)(g). The District consistently applies the statement to create rights, to require compliance, or to otherwise have the direct and consistent effect of law. 11.1(c) Law and Policy Although the statement implements, interprets, or prescribes law or policy, it does not do so by defining routine custodial maintenance as work which restores a ditch to its original design specifications. The requirement that maintenance must be no more than is necessary to restore a ditch to its original design specifications is present in each of the "maintenance" exemptions authorized in Section 403.813(2)(f) and (g) and in Rules 40C-4.051(2), 40C-4.051(11)(b), and 40C- 4.051(11)(c). The statement implements, interprets, or prescribes law or policy by applying maintenance exemptions only to routine custodial maintenance. The restricted application of maintenance exemptions effectively amends the definitions of "maintenance" in Section 373.403(8) and Rule 40C-4.021(20). The statement expressed in the Memorandum first refers to the exemptions in Section 403.813(2)(f) and (g). The statement then declares that "these exemptions . . . only apply to what is defined as 'routine custodial maintenance.'" Unlike the agency statement, Section 373.403(8) and Rule 40C-4.021(20) define "maintenance" to exclude "routine custodial maintenance." Because routine custodial maintenance is "not maintenance," routine custodial maintenance is neither subject to the maintenance permitting requirements in Section 373.416 nor required to satisfy the maintenance exemption requirements in Section 403.813(2)(f) and (g). Maintenance has only one definition. That single definition defines "maintenance" to exclude routine custodial maintenance from maintenance that is subject to the exemption requirements in Section 403.813(2)(f) and (g). There is not another definition that includes routine custodial maintenance in maintenance that must satisfy maintenance exemption requirements. Routine custodial maintenance is the definitional complement to maintenance. Remedial work that is routine custodial maintenance is "not maintenance." Remedial work that is not routine custodial maintenance is maintenance that must either obtain a maintenance permit or satisfy applicable "maintenance" exemption requirements. The terms "exclude" and "exempt" are not synonymous. Routine custodial maintenance that is excluded from the definition of maintenance is "not maintenance" and need not qualify as exempt maintenance. Maintenance that is not routine custodial maintenance is not excluded from the definition of maintenance. Included maintenance is subject to the maintenance permitting provisions but may qualify for a maintenance exemption if the maintenance satisfies the requirements prescribed for maintenance exemptions. 11.1(d) Practice and Procedure Even if the District statement did not amend existing statutes and rules, the statement describes the practice requirements for the District. It prescribes the criteria to be used in applying the ". . . working definition of 'Routine Custodial Maintenance.'" The statement prescribes information that normally should be included in original design specifications. It prescribes mandatory practice requirements including prohibitions against: any alteration of hydraulic capacity or hydrologic function beyond original design; and maintenance at less than regular intervals. The statement describes eligibility requirements used by the District. The statement provides that a permit is required, "If the work is not routine custodial maintenance . . . ." The statement describes information that must be provided in any request for verification that work is exempt. Such information must include ". . . evidence of original design specifications. . . ." Finally, the statement describes the type of evidence that will be considered by the District when original design specifications are not available. 11.1(e) Internal Management Memorandum The Memorandum is not an internal management memorandum that is excluded from the definition of a rule pursuant to Section 120.52(15)(a). The Memorandum has application outside of the agency. It affects the private interests of Respondents. It also affects a plan or procedure important to the public. Even if the Memorandum were an internal management memorandum, the agency statement exists and is applied by the agency independently of the Memorandum. 11.2 Prove-up Requirements: Section 120.57(1)(e) The statement evidenced in the Memorandum and elsewhere in the record is an unadopted rule within the meaning of Section 120.57(1)(e). The statement is defined as a rule in Section 120.52(15) but is not adopted as a rule in accordance with the rulemaking procedures prescribed in Section 120.54. The District relied on the unadopted rule to determine the substantial interests of Respondents. The District must show that the unadopted rule satisfies the requirements of Section 120.57(1)(e)2a-g. The unadopted rule satisfies the requirements of Section 120.57(1)(e)2a, part of c, and d. However, the rule does not meet the requirements of Section 120.57(1)(e)2b, the remainder of c, e, f, and g. 11.2(a) Powers, Functions, and Duties The unadopted rule is within the range of powers, functions, and duties delegated by the legislature within the meaning of Section 120.57(1)(e)2a. Section 373.416, in relevant part, delegates authority to the District to require permits and too impose conditions that are reasonably necessary to assure that the "maintenance" of any stormwater system, or works, complies with the provisions of Chapter 373, Part IV, and applicable rules promulgated pursuant to Chapter 373. Interpretation and application of the maintenance exemption authorized in Section 403.813(2)(g) and Rule 40C-4.051(11)(c) are within the range of powers delegated in Section 373.416. 11.2(b) Bridled Discretion The unadopted rule does not vest unbridled discretion in the District within the meaning of Section 120.57(1)(e)2c. The definition of routine custodial maintenance is bounded by numerous examples that do and do not qualify as routine custodial maintenance. The definition identifies the technical criteria to be used in the working definition of routine custodial maintenance. The definition prescribes reasonable procedures for conducting maintenance under an exemption, and formulates objective requirements for determining the sufficiency of original design specifications. 11.2(c) Arbitrary or Capricious The unadopted rule is not arbitrary or capricious within the meaning of Section 120.57(1)(e)2d. The rule has a rational basis and a legitimate purpose. It is based on fact and logic and seeks to prevent harm to the water resources of the District by requiring permits to review non-exempt maintenance activities which may have the potential for adverse environmental impacts. The definition of routine custodial maintenance is based on a fundamental engineering reality. If a ditch is not maintained, it will, as a general rule, fill-in and diminish in function and capacity. Ditches fill-in at different rates, depending on site- specific conditions, the level of service provided by the ditch, and the level of work performed during each maintenance interval. Ditches with high water-velocity may not require maintenance as frequently in order for the maintenance to satisfy the requirement that it be performed regularly. NS1 and EW1 must be maintained relatively frequently in order for maintenance to qualify as routine maintenance. The water velocity in these ditches is low because the surrounding area is flat and because water velocity is controlled by culverts and water levels south of SR 50. The low water velocities contribute to the filling of NS1 and EW1 with sediment. The high sediment content in the surrounding native lands also contributes to the filling of NS1 and EW1. The Crane Creek ditch in Brevard County illustrates the relativity of the frequency standard. In that case, the District determined that maintenance of the Crane Creek ditch qualified for a maintenance exemption approximately 20 years before when the ditch had last been maintained. There was considerable slope in the ditch. High water velocities in the ditch kept the ditch well scoured. In addition, the surrounding area was highly developed and covered with either pavement or lawns which provided little sediment material. It is theoretically possible for maintenance to be routine even though the interval of maintenance is 50 years. As a practical matter, however, a maintenance interval of 20 years represents the upper limit for maintenance in the general region of NS1 and EW1. Time is not the only factor in determining whether maintenance is routine. The frequency with which work must be performed to be routine depends on site-specific conditions as well as the level of service provided both by the particular ditch and by the particular work performed at each maintenance interval. The bottom line in determining if maintenance is routine custodial maintenance is whether the maintenance is regular enough to maintain continuity of function. Continuity of function is important to persons upstream and downstream of a ditch. Once a ditch has become nonfunctional, other property uses may occur upstream or downstream of the ditch in reliance upon the fact that the ditch is no longer functional. 11.2(d) Modifies or Contravenes The unadopted rule modifies or contravenes the specific law implemented in violation of Section 120.57(1)(e)2b. For reasons stated in earlier findings and incorporated here by this reference, the unadopted rule modifies and contravenes Sections 373.403(8), 373.416, and 403.813(2)(g). The unadopted rule also modifies and contravenes Rules 40C-4.021(20), 40C- 4.051(2)(a) 2 and 3, and 40C-4.051(11)(c). The term "maintenance" is defined in Section 373.403(8) to exclude routine custodial maintenance. By limiting maintenance exemptions to routine custodial maintenance, the unadopted rule transforms the statutory exclusion of routine custodial maintenance into a statutory inclusion. The unadopted rule modifies and contravenes the specific law implemented in another way. The unadopted rule exempts only the maintenance of "systems." In the statement of criteria, the Memorandum states that work must be done to restore the "ditch system." However, statutory maintenance exemptions are not limited to systems. They apply to individual canals, channels, and drainage ditches. Similarly, Sections 373.413 and 373.416 require permits for works such as individual ditches as well as systems. By limiting the maintenance exemptions to systems, the unadopted rule modifies and contravenes the specific law implemented. 11.2(e) Vague and Inadequate Standards The limits on discretion in the unadopted rule do not grant unbridled discretion to the District. However, some of the standards imposed in the rule are vague and inadequate in violation of Section 120.57(1)(e) 2c. The unadopted rule states two sets of criteria for a working definition of routine custodial maintenance. The first set of criteria address the purpose of the work performed. The second set of criteria address the interval or regularity of the work performed. The unadopted rule states that the purpose of routine custodial maintenance must be to restore the ditch to its "original design specifications." During testimony at the hearing, however, the District explained that the purpose of routine custodial maintenance could be to restore the ditch to its "existing function." A discussion in the proposed findings of the District's PRO illustrates the ambiguity: 64. If a ditch has filled in over a number of years so that it no longer retains its original function but does convey some water during high rain events, the ditch could not be cleaned out to its original design under the maintenance exemption. . . . To the extent that it still had some function that was usable for the surrounding area, it could be maintained to maintain that existing level of function. . . . (emphasis supplied) District PRO at 31. The interval at which work must be performed to satisfy the definition of routine custodial maintenance is vague and inadequate in the unadopted rule. In the Memorandum, the unadopted rule states that most ditch systems in Florida require maintenance once every 10 to 15 years. At the hearing, however, District witnesses who were asked to explain the District policy stated that ditches in Florida typically lose their function if not maintained every five to ten years. A range of 5 to 15 years is too vague to provide an adequate standard by which regulated parties are able to ascertain whether they are in compliance with the rule. The definition of routine custodial maintenance will necessarily vary with site-specific conditions of the ditch. However, it is clear from the evidence that the unadopted rule defines the purpose and interval of routine custodial maintenance by vague standards that can vary substantially with the person who is interpreting the unadopted rule. Standards prescribed in the unadopted rule are vague and inadequate in another aspect. Time is not the only factor considered in the unadopted rule to determine whether work is routine and custodial. Maintenance must be frequent enough to maintain a continuity of function for a particular ditch. Continuity of function suggests that function may be measured over a continuum of time. However, the unadopted rule does not quantify the continuum and does not identify the site- specific conditions that will be considered in assessing continuity of function during any particular continuum. The unadopted rule does not state whether the site-specific conditions will be assessed during low-flow conditions in dry years, normal years, or wet years; or whether alternating dry and wet conditions within each type of year also factor into the formula for continuity of function. The unadopted rule does not identify the relative weight, if any, assigned by the agency to these and other site specific-conditions used in the formula for determining continuity of function. 11.2(f) Due Notice The unadopted rule is being applied to Respondents without due notice in violation of Section 120.57(1)(e)2e. An agency cannot provide adequate notice of vague and inadequate standards contained in the unadopted rule; notice of vague and inadequate standards is inherently vague and inadequate. Such notice does not provide regulated parties with due notice of the standards by which they can judge their compliance with the rule. 11.2(g) Evidence of Support The unadopted rule is not supported by competent and substantial evidence within the meaning of Section 120.57(1)(f). Although the technical standards used to define routine custodial maintenance in the unadopted rule are supported by competent and substantial evidence, the basis for the application of that definition is unsupported. The technical standards used to define routine custodial maintenance in the unadopted rule are matters infused with agency expertise and should not be overturned unless clearly erroneous. The technical standards are not clearly erroneous and are supported by competent and substantial evidence. The standards used by the District to apply the definition of routine custodial maintenance are not infused with agency expertise. They are infused with the District's legal interpretation of relevant case law and, in particular, one circuit court case in 1984. Evidence submitted by the District does not support the standards used by the District to apply the unadopted rule. The District contends that the limitation of maintenance exemptions to routine custodial maintenance in the unadopted rule implements and reiterates principles developed in St. Johns River Water Management District v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 7 Fla.Supp. 2d 61 (9th Judicial Circuit of Florida, October 29, 1984), affirmed, Corporation of President of Church of Jesus Christ of Latter-Day Saints v. St. Johns River Water Management District, 489 So. 2d 59 (Fla. 5th DCA 1986), rev. denied, 496 So. 2d 142 (Fla. 1986). As the trial court did, the parties in this proceeding refer to the decision in Latter-Day Saints as the "Deseret" case ("Deseret"). The District asserts that the unadopted rule is intended to ". . . reiterate the Deseret holding regarding 'routine custodial maintenance' . . .". The District also claims that it: . . . relied on the lower court Deseret decision, as well as the common meaning of the terms and the common things that you look for in what is an original design specification. The District's policy [is] to require compliance with the Deseret holding. District PFO at paragraph 13, page 9. A determination of whether the unadopted rule is supported by competent and substantial evidence of the principles and holdings in Deseret requires a two-step factual examination. Factual findings must first identify the principles developed in Deseret and then elucidate whether the unadopted rule actually implements or reiterates those principles and holdings. In October 1982, the landowner in Deseret increased, by one foot, the height of a perimeter dike system originally constructed between 32 and 42 years earlier to prevent water from either getting into or out of the area protected by the dike. No work had been performed on the dike for approximately 25 years, and portions of the dike had failed or declined in the interim. The landowner claimed the work was exempt pursuant to the maintenance exemption authorized in Section 403.813(2)(g). The trial court entered three holdings in Deseret which are relevant to the authority relied on by the District for its unadopted rule. In relevant part, the trial court held in paragraphs 10 and 12 of its Conclusions of Law: 10. . . . The legislature excluded only routine custodial maintenance from the permitting requirements of Chapter 373. (emphasis supplied) 10. . . . the exemption applies only to routine custodial maintenance having a minimal adverse environmental effect. (emphasis supplied) 12. . . . Deseret has failed to meet the burden of proving entitlement to the maintenance exemption under Section 403.813(2)(g). . . . Deseret, 7 Fla.Supp. 2d at 66-67. The district court did not expressly rule on the trial court's holding that the maintenance "exemption" applies only to routine custodial maintenance. The district court expressly approved only the trial court holding that the legislature "excluded" routine custodial maintenance and the trial court holding that the evidence failed to show entitlement to the maintenance exemption. In relevant part, the district court said: We agree with the trial court's conclusion that the legislature intended to exclude only routine custodial maintenance . . . from permit requirements. We also agree that the Church was not entitled to a maintenance exemption because it failed to meet its burden of proving the original design specifications for the dike system. (emphasis supplied) Deseret, 489 So. 2d at 60-61. The unadopted rule imposes requirements supported by the only ruling in the circuit court decision that was not expressly approved by the district court in Deseret. The unadopted rule reiterates and implements a holding that appears only in the trial court decision. Any reasonable doubt as to the basis for the holding in Deseret was removed in 1993 by the First District Court of Appeal in SAVE the St. Johns River v. St. Johns River Water Management District, 623 So. 2d 1193 (Fla. 1st DCA 1993). In SAVE, the Sportsmen Against Violating the Environment contended, as the District does in this proceeding, that the maintenance exemption applies only to routine custodial maintenance. In rejecting that contention, the court explained the basis for the earlier decision in Deseret. The court stated: . . . the [Deseret] court held that the applicant seeking to rebuild dikes on ranch land was not entitled to a subsection 403.813(2)(g) maintenance exemption for two reasons: (1) the church had failed to carry its burden of proving the original specifications . . . , and (2) the rebuilding would require extensive work since the dikes had not been maintained for over 25 years, the dike system had subsided, and the dike failed to keep water off the ranch during that period. SAVE, 623 So. 2d at 1203. In SAVE, the court explicitly rejected the contention that the maintenance exemption applied only to routine custodial maintenance. The court entered the following ruling: This brings us to SAVE's third contention, that Smith wholly failed to qualify for an exemption under subsection 403.813(2)(g). This is a multifaceted argument that we reject in all respects. SAVE cites no . . . authority to support its contention that the exemption under this subsection is limited to "routine" or "custodial" maintenance that conceptually excludes refilling the breaks from the scope of the exemption. Subsection 403.813(2)(g) requires only that the dike be restored to "its original design specifications." (emphasis supplied) SAVE, 623 So. 2d at 1202. The District argues that the court in SAVE did not reject the contention that the exemption applies only to routine custodial maintenance but merely held that there was nothing in routine custodial maintenance that conceptually excludes the refilling of the breaks. The court goes beyond the "conceptual" realm in the next sentence when the court expressly states that Section 403.813(2)(g) requires "only" that works be restored to their original design specifications. The District cannot read the decision in SAVE in isolation from the plain language of Section 373.403(8). Section 373.403(8) provides more than a "conceptual" reason why the exemption in Section 403.813(2)(g) does not apply to routine custodial maintenance. Section 373.403(8) expressly states that maintenance "excludes routine custodial maintenance." The exemption authorized in Section 403.813(2)(g) applies only to maintenance defined in Section 373.403(8) to exclude routine custodial maintenance. Only maintenance that is not routine custodial maintenance must satisfy the requirements in Section 403.813(2)(g) for an exemption. Routine custodial maintenance is "not maintenance" and is not required to either obtain a maintenance permit or qualify for a maintenance exemption. 11.2(h) Regulatory Costs The District failed to show that the unadopted rule does not impose excessive regulatory costs on Respondents within the meaning of Section 120.57(1)(e)2g. It is true, as far as it goes, that regulatory costs incurred by a proposed activity are not excessive once a determination is made that the activity either is or is not routine custodial maintenance. As this proceeding illustrates, however, the regulatory expense that must be incurred to show that excavation is routine custodial maintenance can be substantial. Any such expense is excessive when it is incurred to satisfy a requirement that is not found in applicable statutes or rules. Effect of Unadopted Rule The District may not rely on the unadopted rule to affect the substantial interests of Respondents. The District failed to "prove-up" the requirements of Sections 120.57(1)(e)2b, c, e, f, and g. The proposed agency action is supported by the evidence-of-record in this proceeding without relying on the unadopted rule. For reasons stated in earlier findings and incorporated here by this reference, the District action taken in the Emergency Order and the action proposed in the Administrative Complaint are supported by the weight of the evidence after the unadopted rule is excluded from consideration. The excavation of NS1 and EW1 in January 1997 was not "routine custodial maintenance" based on the common and ordinary meaning of the term, rather than the unadopted rule. Part of the excavation of NS1, EW1, and the larger system was "maintenance," which must satisfy the requirements of any claimed exemptions in order to avoid applicable permitting requirements. That part of the excavation which was maintenance did not satisfy essential requirements for any of the "maintenance" exemptions in Section 403.813(2)(f) and (g) and Rules 40C- 4.051(2)(a), 40C-4.051(11)(b), and 40C-4.051(11)(c). The weight of the evidence did not show that: the "maintenance" consisted of only that "remedial work" which was necessary to return NS1 and EW1 to their original design specifications within the meaning of Section 403.813(2)(f) and (g) and Rule 40C- 4.051(11)(b) and (c) 3; spoil material was deposited on an upland soil site that prevented the escape of spoil material or return water, or both, into wetlands, other surface waters, or waters of the state within the meaning of Section 403.813(2)(f) and (g); and Rule 40C- 4.051(11)(b) and (c) 1; the excavation was performed in such a way that prevented deleterious dredged material or other deleterious substances from discharging into adjacent waters during maintenance within the meaning of Section 403.813(2)(f) and Rule 40C-4.051(11)(b); the excavation resulted in no significant impacts to previously undisturbed natural areas within the meaning of Section 403.813(2)(f); no natural barrier was removed which separated NS1 and EW1 from adjacent waters, adjacent wetlands, or other surface waters within the meaning of Section 403.813(2)(f) and Rule 40C-4.051(11)(b); and the excavation performed maintenance dredging on canals or channels within the meaning of Section 403.813(2)(f) and Rule 40C-4.051(11)(b). That part of the excavation defined as an alteration of NS1, EW1, and the larger system is not entitled to the "maintenance" exemptions claimed by Respondents. Similarly, that part of the excavation defined as an operation of the ditches is not entitled to the "maintenance" exemptions claimed by Respondents. Pursuant to Sections 373.413 and 373.416, Modern was required to obtain a permit for the excavation of NS1, EW1, and the larger system in January 1997. Modern neither applied for nor obtained a permit for the excavation. Modern violated the permitting requirements authorized in Sections 373.413 and 373.416. Modern is subject to the proposed agency action in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order upholding the Emergency Order and directing Modern to undertake and complete, in a reasonable time and manner, the corrective actions described in the Administrative Complaint. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 15th day of June, 1999. COPIES FURNISHED: Carroll Webb, Executive Director Administrative Procedures Committee 120 Holland Building Tallahassee, Florida 32399-1300 Liz Cloud, Chief Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250 Henry Dean, Executive Director St. Johns River Water Management District Highway 100, west Post Office Box 1429 Palatka, Florida 32178-1429 Marianne Trussell, Esquire Murray M. Wadsworth, Jr., Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 William H. Congdon, Esquire Mary Jane Angelo, Esquire Stanley J. Niego, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Allan P. Whitehead, Esquire Moseley, Wallis and Whitehead, P.A. 1221 East New Haven Avenue Post Office Box 1210 Melbourne, Florida 32902-1210
The Issue Whether Rules 40E-400.315(f) and 40E-4.301(f), Florida Administrative Code, and Section 4.1.1(f) and 4.2.7(a)-(d), Basis of Review Handbook for Environmental Resource Permit Application, are an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, South Florida Water Management District (SFWMD), is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district, with its principal office in West Palm Beach, Florida. Petitioner, Royal Palm Beach Colony, L.P. (Royal Palm), owns three lots in Unit 11 of the Indian Trail Improvement District, located in northwest Palm Beach County, Florida. Intervenor 1000 Friends of Florida, Inc., is a not-for- profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. By letter dated March 19, 1998, Royal Palm notified SFWMD that Royal Palm was entitled to No Notice General Permits for Activities in Uplands (NNGP) for three of the lots which it owns in Unit 11, Lots 61, 245, and 247. Royal Palm intends to build one single-family home on each of the lots. The proposed development of the lots would include individual septic tanks and stormwater retention ponds. By letter dated April 9, 1998, SFWMD informed Royal Palm that SFWMD staff had determined that the three lots do not qualify for no-notice general permits for single family home construction. As part of the basis for denial of the NNGPs, the April 9, 1998, letter stated: Reasonable assurances have not been provided to show that the proposed system or project is not part of a larger common plan of development. See Rule 40E-400.315(1)(f), Fla. Admin. Code. Royal Palm Beach Colony is the owner of approximately 170 lots within Unit 11 of the Indian Trail Improvement District, and the three proposed lots appear to be merely part of this large common plan of development. As an additional basis for denial, the April 9 letter stated: Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause adverse secondary impacts to the water resources, including, but not limited to, significant interference with the construction and operation of a regional stormwater system needed for adequate flood protection and stormwater treatment in the Unit 11 area. See Rule 40E-4.301(1)(f), Fla. Admin. Code. Royal Palm filed a Petition for Administrative Determination of the Invalidity of the above-cited rules, Rule 40E-400.315(1)(f) and Rule 40E-4.301(1)(f), Florida Administrative Code. Also being challenged are those portions of SFWMD's "Basis of Review Handbook for Environmental Resource Permit Applications" (BOR), which discuss secondary impacts, Sections 4.1.1(f) and 4.2.7(a)-(d). SFWMD's Environmental Resource Permit (ERP) program has four different types of permits: NNGPs, noticed general permits, standard general permits, and individual permits. The permits are grouped according to degree of potential impact and, correspondingly, according to degree of regulatory review. NNGPs are for very minor activities that have no potential to cause adverse impacts or harm to water resources provided that the criteria in the rule are met. A NNGP typically receives no review by SFWMD staff. An applicant reviews the criteria, and if the proposed project meets the criteria the project may be undertaken without notification to or approval by SFWMD. The degree of regulatory review for water management systems that do not qualify for NNGPs will vary. A system that qualifies for a noticed general permit pursuant to Rule 40E-400, Subpart C, Florida Administrative Code, will be reviewed within 30 days of receipt of notice, and if the criteria listed in the general permit rule are met it is presumed that the project meets all SFWMD's standards and is permittable. If the system does not fit within a noticed general permit and if the proposed system is less than 100 acres total size or has less than one acre of wetland impact, the project will be reviewed as a standard general permit pursuant to Rule 40E-40, Florida Administrative Code. Standard general permits are reviewed and issued by SFWMD staff, and unlike the noticed general permits, there are no presumptions that if certain limited criteria are met that all the SFWMD standards are met. The proposed project is reviewed to determine if reasonable assurances have been provided that all standards have been met. Finally, if a proposed water management system is greater than 100 acres or entails more than one acre of filled wetlands, an individual environmental resource permit is required. As with standard general permits, these applications are reviewed to determine if the applicant has provided reasonable assurance that all SFWMD standards are met. Individual environmental resource permits require permit authorization from SFWMD's governing board. Unlike the noticed general, the standard general, and the individual environmental resource permits, the NNGP does not require any regulatory review. An individual minor system fitting within the specific criteria for a NNGP can proceed with the activity without noticing SFWMD. Such a permit is very similar to an exemption from the permitting requirements. The use of a NNGP was not intended for approval of water management systems that contain shared or common water management facilities, such as a common drainage system for a housing development. Such systems require regulatory review to ensure that the system does not cause adverse water quality, water quantity, or environmental impacts. To allow a series of individual projects to have authorization to proceed under a NNGP, when together they are part of a larger common plan of development or sale, cumulatively would have a significant adverse impact to flood protection and environmental protection. Such master systems are to have regulatory review under one of the other three SFWMD permits. Thus, the requirement that a project permitted pursuant to a NNGP not be part of a larger common development or sale was placed in Rule 40E-400.315(1)(f), Florida Administrative Code. Without such a requirement, it would be possible to development a larger system without regulatory review by permitting individual systems within the larger system using a NNGP. The term "not part of a larger common plan of development or sale" contained in Rule 40E-400.315(1)(f), Florida Administrative Code, originated in Section 403.813(2)(q), Florida Statutes, which contains exemptions from permitting under Chapter 373, Florida Statues. In developing Rule 40E-400.315(1)(f), SFWMD did not further define the term because the plain meaning of the term was deemed adequate, as it was by the Florida Legislature when it did not define the same term in Section 403.813(2)(q). The plain meaning of the term is consistent with SFWMD's regulatory scheme for permitting water management systems. The most minimal permit authorization, the NNGP, should not authorize projects that are part of a larger common plan of development or sale because the larger projects are more likely to have larger water resource impacts. Interpretations of the term "part of a larger common plan of development" by staff from SFWMD are consistent. The interpretations indicate that the individual project and the larger master plan have shared or common water management systems. The focus is on whether common infrastructure would be needed to carry out the individual project. In its permitting program, SFWMD looks at all adverse impacts to water resources, whether direct, secondary, or cumulative. When evaluating secondary impacts, SFWMD looks for the same adverse impacts on water resources that it would for direct impacts, such as adverse impacts on the functions of wetlands or surface waters or adverse impacts on water quality. SFWMD interprets a secondary impact as some impact, other than a direct impact in the footprint of the proposed project, which is closely linked and causally tied to proposed activity to be permitted. Section 4.2.7, BOR sets guidelines for how SFWMD considers secondary impacts from water management systems. In developing Section 4.2.7, SFWMD applied existing case law concerning secondary impacts. Section 4.2.7(a), BOR, regulates construction, alteration, and reasonably expected uses of a proposed system so that the functions of wetlands to fish and wildlife and listed species are protected from adverse impacts caused by activities in adjacent uplands. Such secondary impacts may result, for example, from disturbance during adjacent upland construction or disturbance due to the close proximity of human habitation to a wetland where none previously existed. Section 4.2.7(a), BOR, gives examples of secondary impacts, and provides a mechanism in the form of a buffer that creates a presumption that provides reasonable assurance that secondary impacts to habitat functions of wetlands will not be adverse, assuming a wetland is not being used by a listed species for nesting, denning, or significant feeding habitat. Section 4.2.7(b), BOR, protects existing upland nesting or denning sites of listed aquatic or wetland dependent species and the adjacent uplands which are necessary to enable these nests or dens to be used successfully by such species. Section 4.2.7(c), BOR, looks at potential adverse secondary impacts to significant historical and archeological resources. The intent of the section is to allow consideration of secondary impacts of a project that may have a very minor impact from construction, but more serious implications once in operation. For example, a water control structure that may have a footprint of only a tenth of an acre may result in greater water velocities that would harm submerged archeological resources. Section 4.2.7(d), BOR, considers specific water resource impacts from future project phases and activities that will be very closely linked and causally related to the proposed system. This section seeks to prevent future impacts that may be necessitated by a proposed project design. As part of the analysis, SFWMD will consider the impacts of the intended or reasonably expected uses of future activities on water quality and wetland and other surface water functions.
Findings Of Fact The Department of Environmental Protection (Department) is the administrative agency of the State of Florida which has the authority to administer and enforce the provisions of Chapter 403, Florida Statutes and the rules promulgated thereunder, Title 17, Florida Administrative Code, as well as other laws and rules related to protection of the environment. The Department is the successor agency to the former Department of Environmental Regulation and Department of Natural Resources. Respondent, Bob Chipman, owns and operates Fish Haven Lodge, One Fish Haven Road, Auburndale, Polk County, Florida. This subject property is located on the west shore of Lake Juliana in the Green Swamp Basin. Fish Haven Lodge is a small mobile home park and fishing camp, with approximately fifty mobile homes and seven cottages. There is a fishing pier built in the 1960's and a boat ramp; neither structure is at issue in this action. The lodge and camp were opened in 1963, some twenty years after Mr. Chipman's grandfather bought the property. Originally, the property sloped gently down to the shore of the lake. Mr. Chipman calls the lakefront a "parking lot for boats", as his patrons and tenants pull their boats up on the shore and "park" them. In the early days, poles were installed up on the shore for securing the boats. Over the years, the lake has eroded the shoreline. As people rented the mobile home lots and were given access to the lake, they would ask permission of Mr. Chipman to build little walkways to get in and out of their boats. These proliferated, and now there are at least twelve such structures. The property began experiencing severe erosion. Whenever it stormed, ruts were washed out, cutting into the grassy areas. Attempts to fill the ruts with dirt and sod provided only a temporary solution. Eventually, instead of a gradual slope, there was an abrupt drop into the lake waters. Mr. Chipman perceived this erosion as a hazard to his remaining property and to the people who used the lakefront. He also found it difficult to mow and maintain the neat, well-kept appearance of the property. In June 1992, Mr. Chipman, without benefit of permit of any sort, commenced building small sea walls, or what he calls "retention walls" on both sides of the fishing pier and along the contour of the shore. The walls are constructed of 2 x 10 wooden boards nailed on posts. The only way to hammer the boards on the landward side of the posts was to dig, then build, then backfill the area behind the walls. The fill came from both landward and waterward of the walls. Later, more fill was placed along the walls, but this was gravel fill. As the walls were built, the existing walkways, or small "docks" were removed and were replaced in a neater, more uniform fashion. The poles were repositioned and planks were replaced. There are approximately twelve of these repositioned walkways, or docks. Photographs taken by Mr. Chipman during the construction show the lakewaters approaching the planks of the wall, and in one view (Petitioner's exhibit #4) the water is lapping up to the planks. The walkways or docks are well into the water. Mr. Chipman concedes that the water has risen up the bottom 2 x 10 board, and that the walls were installed during a period of high water. Notwithstanding this evidence, Mr. Chipman contends that he built his walls along the edge, but not within, the jurisdiction of the "waters of the state". He contends that he was not trying to recapture property he lost to erosion, but rather, he was trying to save what he had left. He admits that the walkways or docks are in the water, but he suggests that they are "grandfathered", as they existed for several years, and some as long as twenty to thirty years. A basic principle of water boundary is that it is an ambulatory line; it moves with erosion or accretion. Erosion is a natural phenomenon. The Department established its jurisdictional water boundary in this case by several means. Ted Murray, an environmental specialist with the Department who was qualified at hearing without objection as an expert in jurisdictional determination, inspected the subject property and found submerged species of vegetation along the seawalls. These species included arrowhead and wild tarrow, common names for species which require the presence of water to grow. In an area where the seawalls were not built, wild tarrow was found four or five feet behind the line where the seawalls had been built, indicating that the water fluctuated naturally where unimpeded by the walls to an area landward of the walls. Two hydrological indicators of the landward extent of waters of the state were noted by Mr. Murray. One was the debris line or "rackline" created by the deposit of debris by fluctuating waterlevels. The other hydrological indicator was the escarpment found north of the boat dock. This escarpment is a miniature cliff, or drop-off caused by the high water line. This is a common situation found at lakeshores. In this case, Department staff located a post that already existed at the escarpment. At the request of the Department, the Southwest Florida Water Management District conducted a land survey, shooting elevations at various locations on the property. The existing post was a reference point agreed by the parties the day the survey was conducted; Mr. Chapman claimed that he had constructed his seawalls landward of that post. The elevation at the post and at the base of the escarpment was measured at 132.6 feet above sea level. At a lake like Lake Juliana, the water level will tend to be the same elevation all around the lake. Any structure or fill placed above 132.6 feet elevation would be in uplands; any structure or fill placed below that elevation would be within the landward extent of Lake Juliana, and therefore within the permitting jurisdiction of the Department. Survey elevations of the seawalls, taken at several points, indicate that the seawalls and fill were placed one to two feet below the jurisdictional line. The fact that the Southwest Water Management District had previously established feet as the minimum flood level for Lake Juliana adds credence to the line established as described above. There have been several enforcement actions on Lake Juliana, including three or four recent violations involving seawalls and associated backfill in jurisdictional waters. Mr. Chipman's is not an isolated case. As he recounts, folks saw him building this wall and told him they would like the same thing. The cumulative effect of such structures on the Lake Juliana environment is substantial. Seawalls preclude vegetative shorelines that would otherwise serve as nutrient assimilation and habitat for a variety of organisms that inhabit the lake. Even though Mr. Chipman's walls are only a foot or so into the wetlands, the surface area affected by the approximate 126 feet length of the walls is close to 500 square feet, including the fill area behind the walls. Loss of vegetation will lead to loss of fishes that depend on the vegetation for feeding, hiding and nesting. Although the docks or walkways can provide nesting or hiding places, their effect is still a net loss, since, as constructed, they deprive the vegetation of needed sunlight. As constructed, the seawalls would not have been permitted by the Department because the same purpose could have been served by building the walls in the uplands just a few feet away. The Department staff have discussed alternatives with Mr. Chipman. The best natural defense against erosion is a gentle slope that is vegetated with native plant species. That solution may not be practical where there is an embankment and where there is constant usage by boats and people. The most practical solution based on evidence in this proceeding is for Mr. Chipman to move the walls back into the uplands and restore the shoreline. There is no controversy that all of the construction by Mr. Chipman was done without permits. His business has been operating since 1963, and he felt that the effort to impede erosion of his "boat parking lot" was of no concern to the state. He has been candid and cooperative with the Department staff, and there is no basis to find that his excuse for not seeking permits is in any way bad faith.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department enter its Final Order finding that Respondent, Bob Chipman, committed the violations alleged and requiring the removal and restoration described in the notice of violation and orders for corrective actions which initiated this proceeding. DONE AND RECOMMENDED this 29th day of November, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1994. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 David Thulman, Esquire Heidi E. Davis, Esquire Asst. General Counsel DEP-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bob Chipman Fish Haven Lodge One Fish Haven Road Auburndale, FL 33823
