The Issue This case involves a third-party challenge to South Florida Water Management District's (District's) proposed issuance of Amended Environmental Resource Permit number 43- 01438-P (ERP) for conceptual approval for a surface water management (SWM) system to serve 80.71 acres of residential development known as The Gables at Stuart and 1.42 acres of the entrance road easement. The issue to be decided by the ALJ is whether The Gables at Stuart (The Gables) provided reasonable assurances that the proposed development will not be harmful to the water resources of the District, and will comply with the water quantity, environmental and water quality criteria of the District's ERP regulations set forth in Part IV of Chapter 373, Florida Statutes, in Florida Administrative Code Chapter 40E-4, and in the Basis of Review for ERP Applications (BOR) (collectively referred to as the ERP criteria).1
Findings Of Fact The Parties and Proposed Project The Gables project site is located within the jurisdictional boundaries of the District in Martin County, Section 20, Township 37 South, Range 41 E, bordered to the north by Jensen Beach Boulevard and a 18.64-acre tract of commercial property that was previously included in the proposed project. To the west and partially to the south is the Pineapple Plantation residential development, and to the east is the Pinecrest Lakes residential development. The Petitioner resides in the Pineapple Plantation development which borders the Gables site. The Gables project site contains 29.54 acres of wetlands; 26.86 of these will be preserved onsite. Additionally, the project will include a conservation easement encompassing 32.7 acres which covers both wetlands and uplands. Development on the site will cover only 28.04 acres; the remaining acreage which is not under a conservation easement will nonetheless be preserved. Wetlands 1, 2, 3, and 4, which are the larger, higher quality wetlands on the site, will be entirely preserved, except for a 0.11 acre area in the southeast corner of wetland 1, where a berm will be constructed. All direct wetland impacts will result from construction of the multi-family housing and its access road on the northern portion of the site. These wetlands are in a more degraded condition than are the wetlands to the south, which are being preserved. The site includes the alignment of the proposed “Green River Parkway” for which Martin County has submitted a permit application. Although this area and the area to the east of it will be preserved by the Gables, no mitigation credit is given by the District. In fact, portions of wetlands 5 and 6 that are east of the proposed alignment have been considered by the District as secondarily impacted due to the fragmentation and size reduction expected to result from construction of the Parkway even though they are not impacted by the Gables project itself. The site is characterized by pine flatwoods and wet prairies typical of those found along the upper edges of the Savannas in Martin and St. Lucie Counties. The Gables project site is undeveloped but has been hydrologically altered in some areas by offsite conditions. In particular, a large ditch on the west side of the Pinecrest Lakes property adjacent to the eastern boundary of the subject property presently exerts adverse hydrologic affects, as does the entire Pinecrest Lakes development. There is an existing culvert outfall across Jensen Beach Boulevard in the northwest corner of the 18.64-acre commercial property to the north. Runoff from a portion of Jensen Beach Boulevard and undeveloped portions of the West Jensen project are conveyed into the commercial property by this culvert. This runoff then flows easterly and south within the commercial property and, ultimately, under an existing unpaved road used to access two Martin County Utility potable wells located in the eastern project area. The previously referenced north-to-south ditch located along the western edge of the adjacent Pinecrest Lakes project directs this flow southerly into the Pinecrest Lakes Phase I SWM system. A ridge traversing the northern portion of the Gables project site from west to east prevents appreciable volumes of this off-site discharge from reaching wetlands south of this ridge. In general, wetlands found over the southwestern one- half of the Gables project site are in very good condition, displaying healthy and appropriate vegetation and water levels. The northeast one-half was observed to have significantly less standing water when inspected, and vegetation appeared to be transitioning to less water-tolerant species such as slash pines. The southern portion of the Gables project site consists largely of wetlands. Wetlands designated as Wetlands 4 and 7B extend off-site westerly into the neighboring Pineapple Plantation development. The northernmost 18.64 acre commercial portion of the July 2003 Gables project site has been removed. The commercial portion will require a separate permit prior to any development on that parcel. The Gables has proposed an exfiltration trench to provide runoff from its multi-family section, which is on the northern portion of the site, with dry pre-treatment equal to one-half inch over the area prior to discharge into the master SWM system. An exfiltration trench consists of buried perforated piping surrounded by gravel which allows runoff to be filtered and treated before exiting the system. The southernmost area of the Gables development is to consist of single-family residential development located in an upland peninsula in the central western portion of the overall Gables project site. This area will be surrounded by a retaining wall. Runoff from the lots and the access road within the single-family area will be directed to the wet detention lakes of the master SWM system. The master SWM system water quality and storm attenuation facilities include 2.415 acres of wet detention pond to be located in the central eastern project site area, as well as dry detention areas, swales and the exfiltration trench located within the project. Discharge from the master SWM system is into the adjacent Pinecrest Lakes development within a previously established drainage easement. The revised conceptual design for the Gables project site continues to re-route the existing historical off-site discharge from West Jensen and Jensen Beach Boulevard southward to the on-site wetlands through a dedicated culvert conveyance that will commence at the northern boundary of the revised Gables project site area. Conveyance through the formerly included commercial tract will be through existing wetlands. The master SWM system conceptual design will continue to utilize a cascading wetland system, cascading from west to east in accordance with the natural hydrology of the site, with final connection into the master SWM wet detention pond. As the Gables application is for a conceptual permit only, final construction details are not required to be presented at this time, and modifications are to be expected when the applicant files an application for a construction permit. Conditions For Issuance In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. The Conditions for Issuance primarily focus on: a) water quantity, b) wetland environmental values, and c) water quality. Water Quantity Under Rule 40D-4.301(1), an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on- site or off-site property will not cause adverse impacts to existing surface water storage and conveyance capabilities. The Applicant has demonstrated through hydrological analysis, which takes into consideration the systems on the surrounding properties, the hydrologic inflow from the north, from the West Jensen project, that the proposed project will not cause flooding to on-site or off-site property. Petitioner alleged that the proposal to install a berm around wetland 7 on the Gables property would cause flooding into Pineapple Plantation. But the evidence was that Pineapple Plantation’s SWM system, as permitted, was intended to contain the runoff within the boundaries of Pineapple Plantation’s property, including the small portion of wetland 7 that straddles the property line between Pineapple Plantation and The Gables. To accomplish this, permission was obtained from Mr. Gibson to install a berm on his property. However, the berm was never installed. The Gables now proposes to install the berm that was supposed to have been there since Pineapple Plantation was permitted. The proposed berm would be established at an elevation sufficient to control runoff produced by a 25-year rainfall event and maintain the previously-established hydrologic divide. For these reasons, installation of the proposed berm, which is necessary to make The Gables' proposed SWM system function properly, will not cause adverse flooding to the Pineapple Plantation. For various other reasons, Petitioner also alleged that The Gables project will lower wetland water levels in Pineapple Plantation, as well as on the Gables property, having adverse impacts on the quality of those wetlands. Petitioner did not present any expert opinion to support his allegations. Instead, he primarily pointed out what he termed "anomalies" in the permit file during cross-examination of expert witnesses for The Gables and the District. In most instances, the expert witnesses explained that Petitioner was mistaken. In every instance where Petitioner had detected an actual "anomaly," the experts explained that they were insignificant for purposes of the permitting criteria. The Gables provided reasonable assurances that it will not cause adverse impacts to existing surface water storage and conveyance capabilities through the determination of appropriate wetland control elevations which are based on wet season water levels. Petitioner raised a question regarding aquifer recharge, which is a consideration under Section 6.10(e) of the BOR, which requires the project to be designed to "preserve site ground water recharge characteristics." The project is designed so that water tables are preserved or even raised. It is also designed to preserve the significant wetland features of the site. There are large areas of contiguous areas of wetland and upland habitat which can function as groundwater recharge. The exfiltration trenches make runoff also available to the aquifer for storage. The lakes are not lined, so the water in the lake can leak out. Based on volumetric calculations, the site will have more water post-development than predevelopment. The types of regional investigations of aquifer recharge capabilities and impacts cited by Petitioner were relevant to consideration of groundwater withdrawal issues, not surface water management design. In conclusion, The Gables provided reasonable assurances that it would comply with the District rules pertaining to water quantity and flood control pursuant to Rule 40E-4.301(1)(a),(b), and (c) and the BOR. Value Of Functions Of Wetlands Rule 40E-4.301(1)(d) requires an applicant to provide reasonable assurances to demonstrate that its proposed project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. The wetlands generally located on the north side of the Gables project site are in a more degraded condition than the wetlands to the south. Wetlands generally located over the southerly extent of the site are adequately hydrated and possess high-quality vegetation associations consisting of St. John's wort, maidencane, yellow-eyed grass, and beak rush. This habitat lends itself to utilization by a variety of wading birds, raptors, snakes, and small mammals such as raccoons, bobcats, armadillos, opossums, and feral pigs. In contrast, Wetlands 5, 6, and 7 on the north side exhibit slight-to-significant hydrologic and vegetation changes due to the adjacent Jensen Beach Boulevard and Pinecrest Lakes development to the north and east, respectively. The Gables is proposing both wetland and upland preservation. A mosaic of uplands and wetlands together enhances the value of both and provides a good habitat for wildlife. Mixing upland preservation mixture with wetland preservation increases the value of the wetlands because uplands support wetland habitat, and the “ecotone” at the edge of the upland and wetlands provides the most valuable part of the habitat. The value of preserving this area outweighs potential preservation of the less valuable wetlands to the north, which will be impacted by the multi-family portion of the project. The Gables has provided reasonable assurances to demonstrate that the value of functions provided by wetlands and other surface waters will not be adversely affected. Water Quality Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that the proposed project will not adversely affect the quality of receiving waters such that state water quality standards will not be violated. Section 5.2.1 of the BOR requires that retention, detention, or both retention and detention be provided in the overall system in one of the following three ways or equivalent combinations thereof: Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff of 2.5 inches times the percentage of imperviousness, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. Retention volume included in flood protection calculations requires a guarantee of long term operation and maintenance of system bleed-down ability. The Gables has proposed an exfiltration trench system for the multi-family parcel and a lake system to handle runoff from the overflow and from the single-family portion of the project. With these facilities in place, runoff from the proposed development will be treated before any stormwater is discharged off site. Calculations were performed to ensure that the project is engineered to meet these criteria. Petitioner suggested that the project may require more exfiltration trench than in the current plans, due to compaction of the soil from construction activities, which may affect permeability. However, Petitioner presented no evidence to support this suggestion. The expert witness for the Gables explained that compaction usually affects the top two feet of the soil profile, whereas the exfiltration trenches are designed to be 4-5 feet below the ground surface and probably will function as expected. In any event, when a construction permit is sought, final testing will be performed and additional trench will be installed if necessary. The project will accommodate double the amount of exfiltration trenching in the conceptual plan. The Gables has provided reasonable assurances to demonstrate that the project will not adversely affect the quality of receiving waters such that State water quality standards will not be violated. Reduction And Elimination Section 4.2.1 BOR requires that practicable design modifications be explored to reduce or eliminate adverse impacts to wetlands and maximize functions provided by wetlands on the project site. The applicant explored all practicable alternatives in order to reduce or eliminate wetlands impact. In 2000, the Applicant proposed approximately 7.5 acres of wetland impact. In 2001, the Applicant submitted a plan to the District that preserved part of Wetland 5 and impacted the remainder of Wetland 5 by dredging a lake. The current application proposes preserving more of Wetland 5 and three smaller lakes, rather than a single lake, which has the effect of further decreasing wetland impacts The site plan was also modified to address flowage from north of Jensen Beach Boulevard to the south, thereby reducing secondary impacts to all the wetlands that are now being preserved. In addition, a retaining wall has been added around much of the development to offset secondary impacts, and additional buffers have been put in place. Finally, as noted above, the preservation of a large tract of mixed upland and wetlands is more beneficial than preservation of a small amount of degraded wetlands. Conceivably, wetland impacts could be further reduced or eliminated by further decreasing the amount of development. But given the present layout of the proposed site plan, a further reduction would not be considered practicable. Therefore, The Gables has adequately applied the reduction and elimination criteria as required by the BOR and the District's regulations. Secondary Impacts Secondary impacts are indirect impacts that are reasonably expected to occur as a result of development. Rule 40E-4.301(1)(f) and Section 4.1.1(f) of the BOR require an applicant to provide reasonable assurances that the proposed activities will not cause adverse secondary impacts to the water resources. The District conducted a secondary impact analysis and assessed secondary impacts to wetlands 5, 6, and 7. A small portion of wetland 1, which extends off-site, was also assessed as a secondary impact because approximately half an acre of it is cut off by a proposed berm. Pursuant to Subsection 4.2.7(a) of the BOR, a 25- foot buffer is required around a wetland to prevent secondary impacts. Except for the small portion of wetland 1 discussed above, wetlands 1, 2, 3, and 4 will not be secondarily impacted because each wetland has at least a 25-foot buffer and, in some cases, a retaining wall. Mitigation An applicant is required to mitigate for secondary impacts as well as for direct wetlands impacts.3 The Gables is providing a conservation easement in favor of the District to include 18.26 acres of high-quality uplands and 20.8 acres of high-quality wetlands, though mitigation credit is being allowed by the District for only 5.79 acres of the upland portion. The value and importance of a conservation easement is that it provides reasonable assurances that a resource will not be developed in the future. Inclusion of uplands in a conservation easement is particularly valuable because development of uplands ordinarily would be more likely, and because combining wetlands and uplands in a conservation easement has the effect of enhancing the value of the wetlands by encouraging their use by wildlife. Under Section 373.414, Florida Statutes, the Uniform Mitigation Assessment Method (UMAM), which is implemented through Rule Chapter 62-345, wetland impacts from the proposed project will result in 2.63 units of functional loss, while proposed mitigation will provide 2.87 units of functional gain. This UMAM analysis demonstrates that the proposed mitigation offsets wetland impacts. Petitioner questioned whether The Gables and the District properly applied Rule 62-345.600(3)(c) in determining the amount of required mitigation. Specifically, Petitioner contended that, since The Gables is not using a mitigation bank or a regional offsite mitigation area as mitigation, the acreage of mitigation required to offset wetland impacts was to be calculated by dividing functional loss (FL) by relative functional gain (RFG). However, Petitioner did not explain what the result would be if this calculation were made. Meanwhile, the expert witnesses for both the District and The Gables interpreted the language of the Rule to provide that one divides FL by RFG to determine acres of mitigation required only when one discrete area is being impacted and another discrete area is serving as mitigation, which is not the case here. According to the experts, the second sentence of subparagraph (3)(c) explains that, when there is more than one impact or mitigation assessment area, total functional loss and total RFG for each assessment area is determined by summation of the FL and RFG for each assessment area. While the language of the Rule is confusing, the expert testimony is credited and accepted as providing a logical and correct interpretation. The BOR specifically provides in Section 4.3.1.2 that mitigation is best accomplished on-site or in close proximity to the area being impacted. In this case, all of the mitigation proposed is onsite.4 Section 4.2.2 of the BOR provides that as part of the District's assessment of impacts of regulated activities upon fish and wildlife and their habitats, the District will provide notice of ERP applications to the Florida Game and Freshwater Fish Commission (now the Fish and Wildlife Commission, or FWC) for its review and comment. The FWC did not comment on the Gables at Stuart application. The U.S. Fish and Wildlife Service wrote a letter to the U.S. Army Corps of Engineers in 2003, stating that it did not object to the applicant’s wetland impacts and proposed mitigation plan for the proposed project. The Gables provided reasonable assurances that mitigation will offset all impacts to wetlands. Petitioner's Extrapolation from Well Permitting Concerns Petitioner's testimony at final hearing revealed his challenge was motivated by his belief that, because the District has denied applications for permits to withdraw substantial amounts of groundwater in the region, in part due to potential impacts on surficial aquifer and wetlands, it does not make sense to allow any impacts to wetlands in SWM permitting. However, SWM permitting is governed by the criteria discussed above, not the criteria of consumptive use permitting. In addition, the potential impacts of massive consumptive use of groundwater cannot be compared to wetland impacts of the Gables proposal. Finally, as indicated, The Gables has established water table elevations for resulting wetland systems based on the existing condition of those wetlands. In some places, The Gables has proposed to raise water levels to benefit the wetlands and raise the water table above what it has been historically, primarily along the eastern boundary of the property in the Pinecrest Lakes subdivision. This has the effect of maintaining if not raising groundwater levels.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order issuing to The Gables ERP number 43-01438-P, to expire in two years, subject to the conditions set forth in the Amended Staff Report. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2006.
The Issue The ultimate legal and factual issue in this matter is whether FCC Partners LP, LTD, et al. (collectively FCC) has provided the St. Johns River Water Management District (District) with reasonable assurances that the activities it proposes to conduct for construction and operation of a surface water management system for a commercial and residential project and alteration of two surface water management systems to implement a wetland mitigation plan pursuant to Environmental Resource Permit (ERP) Application No. 4-031-17237-4 (the Permit), meet the conditions for issuance of permits established in Chapter 373, Florida Statutes, Florida Administrative Code Rules 40C-4.301 and 40C-4.302 and the District’s Applicant’s Handbook: Management and Storage of Surface Water (A.H.).
Findings Of Fact The Parties The Sierra Club, Inc., is a national environmental group whose purpose is to preserve, protect, and enhance the natural environment. The Sierra Club, Inc., through its Northeast Florida Group, uses the St. Johns River. It was stipulated that the substantial interests of the Sierra Club, Inc., and/or of a substantial number of its members will be determined in this proceeding and that the interests of those members will be adversely affected. The St. Johns Riverkeeper, Inc., is a Florida non-profit corporation whose mission is to protect, preserve, and restore the ecological integrity of the St. Johns River watershed. It was stipulated that the substantial interests of the St. Johns Riverkeeper, Inc., and/or a substantial number of its members will be determined in this proceeding and that the interests of those members will be adversely affected. Respondents, FCC Partners LP, LTD, Plaza Partners Group, LTD, and Pyramid Partners LP, LTD, collectively hold title to the property that is the subject of the Permit and have not previously violated any District rules. The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated as Florida Administrative Code Chapter 40C. The FCC Site FCC owns an 853-acre parcel in Duval County, Florida, on which the Project is to be located (the Site).1 The Site is bounded by Interstate 95 (I-95), a six-lane highway, on the east and south, Phillips Highway (US-1), a four- lane highway, on the west, and Baymeadows Road on the north. FCC Ex. 2. Baymeadows Road includes an assortment of retail properties and office parks. A patchwork of industrial and commercial development exists adjacent to US-1 and the Site. US-1 and I-95 meet at the southern end of the project Site near the Avenues Mall. Based on prior approvals, 600,000 square feet of office space, 352 residential units, and an 83,500 square foot cinema have already been constructed on the southern part of the Site. In addition, approximately 124.4 acres of on-site wetlands are currently preserved under a conservation easement. FCC Ex. 14B. Aside from the previously developed area on the Site of over 100 acres, the Site is comprised of undeveloped, mature forested uplands and wetlands. The upland and wetland areas have the following classifications under the Florida Land Use Cover and Classification System (FLUCCS): 434 (mixed forested uplands, pine, hardwood), 610 (wetland hardwood forest), 611 (bay swamp), 615 (bottomland hardwood), 617 (mixed wetland hardwood), and 630 (wetland forested mix). FCC Ex. 30. The wetland communities include depressional pockets, shallow wetland sloughs, and seepage slopes that drain into the bottomland swamp, known as Pottsburg Creek Swamp. The Site slopes from east to west coming from I-95 down into the bottomland swamp and west to east coming from US-1 down into the Pottsburg Creek Swamp, which serves as the headwaters to Julington and Pottsburg Creeks, which are tributaries of the St. Johns River. FCC Ex. 20. The on-site wetlands in the center of the property (Pottsburg Creek Swamp), during certain rainfall conditions, contribute to both Julington Creek (which runs to the south) and Pottsburg Creek (which starts to the north of the Site). FCC Ex. 17. In addition to rainwater which falls on the Site, stormwater is routed from nearby urbanized areas onto the Site through seven culverts. This water generally flows from the eastern and western sides of the property in conveyance channels and through sheet flow toward the center of the property. Approximately 2,000 acres of off-site drainage enter the Site from the east through five large-boxed culverts. This drainage flows westerly underneath I-95 and into natural conveyances, natural ditches and unnamed tributaries to the Pottsburg Creek Swamp. The area to the east is urbanized and developed with residential, commercial, and light industrial property. Approximately 1,000 acres of off-site drainage enter the Site from the west via two boxed culverts. The water passes through these two culverts and drains from west to east through natural conveyances also into the Pottsburg Creek Swamp. See FCC Exs. 14B, 15, 17, and 20. This area includes US-1 and the Florida East Coast Railroad. It is an urbanized and developed area with light industrial, residential, and retail/office/cinema property. On-site drainage comes from rainwater that actually falls onto the Site and drains into the Pottsburg Creek Swamp. Once in the Pottsburg Creek Swamp, depending on the hydrologic conditions, the water drains either north into Pottsburg Creek or south into Julington Creek. The wetlands in the center of the Site form a channelized area running north and south on the Site, which is at a lower elevation by approximately 15 feet from the perimeter areas. See FCC Exs. 17, 19, and 59; see also Finding of Fact 11. Land to the north of the Site is generally developed as office parks and apartments. The northern portion of the channelized flow from the swamp toward Pottsburg Creek (north and south of Freedom Crossing Trail, FCC Exs. 1, 14B, 18, and 59) has already been preserved under a conservation easement. This flow runs north into a green corridor then under J. Turner Butler Boulevard, the start of Pottsburg Creek, approximately two miles north of the project Site. Pottsburg Creek is a small creek that flows north and then west, becoming larger as it discharges to the Arlington River, which eventually flows into the St. Johns River. FCC Ex. Pottsburg Creek is approximately five miles long with a drainage basin of approximately 12,000 acres. The basin includes both developed and undeveloped areas. See FCC Ex. 63. To the south of the Site, the land is used for I-95 and a mixture of office park, residential, and retail (including the Avenues Mall). Julington Creek exits the Site to the south and runs south under US-1 and underneath the Florida East Coast Railroad then west where it joins Durbin Creek and then becomes larger and ultimately discharges to the St. Johns River. FCC Exs. 17, 58, and 61. Julington Creek is approximately eight miles long and has a drainage basin of approximately 23,000 acres. This drainage basin comprises both developed and undeveloped areas. Furthermore, there are approximately 3,000 to 4,000 acres of wetlands and upland preservation in the Julington Creek corridor running south of the project Site. D Exs. 16 and 29. The level of wildlife utilization of the Site is lower than expected. This may be explained in part by the reduced connectivity because of the surrounding roads and development. No federally or state listed species have been identified on the Site. See § 2.0(cc), A.H. Wildlife found on the Site is limited primarily to those in a typical urbanized forest such as snakes, armadillos, rabbits, raccoons, moles, possums, and frogs. Invertebrate species can be found. Amphibians and reptiles have been seen primarily in the center of the Site. There is evidence of feral hogs being on-site. Small birds, such as doves, blue jays, cardinals, and mocking birds, can be seen along the perimeter of the Site although few migratory birds use the Site because of the thick canopy and the “very mature forest” which permeates the Site. Also, I-95 and US-1 are natural deterrents to these migratory birds. The Project The Site is a mixed-use DRI in Duval County, known as the Freedom Commerce Centre. The approved DRI consists of approximately 853 acres, 526 acres of which are either in conservation or preservation. FCC Ex. 2. FCC intends to develop approximately 208 acres of the remaining acres not previously developed or encumbered. The project includes four development pods, including a small parcel in the northwestern corner of the Site, just south of Freedom Crossing Trail; a parcel in the northeastern quadrant of the Site; a parcel at the south-southeastern end of the Site; and a small parcel in the west-central area along the border of the Site. The largest pods of impact are in the northeast and south southeastern portions of the Site. FCC proposes to dredge and fill approximately 126.8 acres of the on-site wetlands. Under the proposed plan, the developed areas will be 85 percent impervious coverage. The identified Cypress Tree on the Site will be preserved. FCC Exs. 2, 14B, and 19. FCC sought an ERP from the District for the construction of a surface water management system to support the development. The Project includes a stormwater management system comprised of ten wet detention ponds natural and man-made channels to direct the flow of water settling ponds and oil skimmers to help clean the stormwater and culverts for road crossings. See FCC Exs. 18-19. There are no adverse water quality impacts expected as a result of the construction and operation of the system. See also Prehearing Statement at 24- 25. The Project has been reviewed in its entirety and does not include any future phases. Wetland Impacts To develop the 208 acres on the Site, FCC proposes to directly impact 126.8 acres of wetland impacts (126.7 acres of wetland impacts and 0.1 acres of right-of-way wetland impacts, FCC Ex. 14B). Less than 17 acres within the 25-year floodplain will be impacted. Approximately 24.7 acres of mixed hardwood wetlands (617) will be impacted during the development of the northeastern and southeastern pods; 53.7 acres of mixed forested wetlands (630) will be impacted during the development of the northeastern and northwestern pods; and 48.4 acres of wetland hardwood forest (610) will be impacted during the development of the western and southeastern pods. See FCC Exs. 14B, 19, 30, and 31D; D Ex. 6 at 5. The Project will result in indirect (secondary) impacts to an additional 7.4 acres of wetlands. The values of functions these wetlands provide to fish and wildlife have been evaluated using the five factors set forth within Section 12.2.2.3, A.H. These factors are condition, hydrologic connection, uniqueness, location, and fish and wildlife utilization. Condition The on-site wetlands being impacted have impaired functions from the perspective of hydrology, although, in general, the overall condition of the wetlands to be impacted is good. The wetlands have a good canopy and diversity of community types. The hydroperiods vary with both saturated and inundated areas. The hydrology of the Site has been altered through a series of culverts and man-made stormwater conveyance systems. The historical sheet flow has been disrupted and channelized by construction and development surrounding the Site. For example, there is evidence of subsidence or hydrologic alterations associated with an old stormwater ditch constructed in the northeast portion of the Site. Subsidence occurs when the soils are subject to oxidation. Oxidation removes the organic material from the soil and the soil sinks, exposing the roots of the wetland trees. Portions of the on- site wetlands also show indications of converting to uplands due to changes in hydrology as indicated by soil oxidation and the colonizing of young pine trees along with some evidence of exotic and nuisance species. In addition, the wildlife function is impaired due to the Site’s isolation and lack of wildlife crossings, and the surrounding urbanization. The Site has lower wildlife diversity and abundance than typically associated with a site of its size and character. See Finding of Fact 21. Hydrologic Connection All of the wetlands on the Site are hydrologically connected. There are high spots on the Site that are only saturated, meaning the water does not come above the land surface, and there are areas of the Site that are inundated, meaning that the water comes above the land surface. Under certain storm events, there may be extensive inundation into areas that are normally only saturated. The hydrologic connection leaving the Site could be better; however, water and small mammals can move through the culverts at this point under US-1 to the south and Baymeadows Road to the north. The wetlands on the Site contribute to the production of detritus and detrital export. Detritus is organic material derived from dead and decaying organic material. Detritus can exist in two forms: dissolved or particulate. The dissolved form of detritus is mostly molecular, material that could dissolve and flow in water. Dissolved organic carbon (DOC) includes compounds that are both easily and slowly assimilated by bacteria and other compounds. DOC comes from leaching of stored leaf litter and from stored organic matter in soils. The particulate form of detritus is organic material that does not dissolve in water, like small leaf fragments, wood chips or branches. Detrital export is the amount of organic matter being exported from a system. The microbial food web is a complicated array of natural processes in which different sized particles of organic matter are used by different components of the system. Detrital export is viewed as the base of the food web because the detritus and DOC that enters a water body is used by detritivores, macroinvertebrates, and insects as a source of food and these organisms, in turn, become food for larger organisms. See P Ex. 5. If the amount of detritus entering a waterbody is reduced, there may be a consequent reduction, e.g., in the detritivores and organisms that consume the detritivores. During the hearing, there was much testimony and evidence offered regarding the potential loss of detritus and detrital export in light of evaluating the proposed project’s potential impacts on and off the Site. The wetlands on the Site contribute to detrital production and export because of their extensive tree canopy and their hydroperiod. Based on the weight of the evidence, as a general proposition, the loss of 126.8 acres of wetlands on the Site can be expected to cause a loss of detritus. The amount of the loss of detritus and detrital export and potential off-site impacts are less certain. FCC’s experts performed a detrital export analysis of the wetlands to be disturbed (which at the time exceeded the current number of impacted wetlands, FCC Ex. 28) and determined that "[w]ithout [considering the offsite contribution of detrital material], the estimated detrital export from the proposed impact area is less than 8% of the total export from the [Site]." Id. FCC also provided an analysis quantifying the detrital export functional value of the mitigation proposed at the time of the analysis. FCC Ex. 29. FCC conducted a comparison of actual total organic carbon (TOC) at the project Site which shows no identifiable contribution from the impacted areas to the creeks. Readings of total organic and dissolved organic carbon in the St. Johns River are markedly higher than the readings in the creeks at and near the Site. FCC Exs. 61-62, and 64. Sampling data demonstrated that Julington and Pottsburg Creeks and the St. Johns River had an over-abundance of organic carbon. FCC’s experts opined that there is no evidence of a significant site-specific contribution to the lower organisms necessary to the food chain and that it is not likely that a loss of detrital export will adversely affect fishing or marine productivity off the Site. The scope and extent of FCC’s analyses was criticized indirectly by, e.g., Dr. Meyer and Dr. Dobberfuhl.2 There was no persuasive evidence that there are likely to be adverse impacts or affects to the St. Johns River or to fish or recreational values or marine productivity therein. With regard to impacts to Julington Creek and Pottsburg Creek, the evidence differed. The evidence offered by Petitioners, including District experts, from the standpoint of qualitative analysis, indicates that there will be a loss of detrital export which will cause adverse affects on fish and marine productivity in Julington Creek, and to a much lesser degree in Pottsburg Creek, as a result of losing 126.8 acres of wetlands on the Site. See, e.g., Endnote 2. On the other hand, based on the qualitative and limited quantitative analyses offered by FCC, there is evidence that it is not likely that there will be a loss of detrital export occurring off-site and that it is not likely that hydrologic connectivity or fish or marine production on or off the Site will be adversely affected. It was asserted that detrital export areas were unnecessary in Trout Creek, also known as Whites Ford Creek, (the receiving waters for the Rood/Rayland mitigation tracts discussed below). Actual empirical evidence demonstrated that 49 (mgC/L) TOC in Trout Creek is less than the 54 mgC/L TOC found in Julington Creek. FCC Exs. 70-72. The alleged salinity differences noted by the Petitioners in the St. Johns River between Trout Creek and Julington Creek do not warrant a finding that marine productivity is diminished. Notwithstanding the above, the District required FCC to provide detrital export mitigation and applied a four-to-one wetland creation ratio based on the assumption that all 126.8 on-site wetland acres were exporting detritus. Multiplying that number by four, resulted in the need for 507.2 acres of mitigation specifically for detrital export. See P Ex. 85 at 25; see also Findings of Fact 99-104. The District's required four-to-one detrital export mitigation was reasonable and has been satisfied by FCC. Uniqueness The vegetative communities and hydroperiods of the wetland areas to be impacted are fairly common in northeast Florida and are not considered unique. The wetlands to be impacted are not necessarily unique. The uniqueness of the wetlands to be preserved is high. Location The location of the wetlands to be impacted in relation to the surrounding area is not ideal because of the extensive development that surrounds the Site. See Finding of Fact 6, regarding the roadways which border the Site. Fish and Wildlife Utilization Based upon the different community types within the Site, the different hydroperiods of the Site and its overall maturity, extensive fish and wildlife utilization would be expected. However, the expected amount of fish and wildlife utilization on the Site has not been observed. See Finding of Fact 21. Secondary Impacts Under the first part of the secondary impact criterion, FCC must provide reasonable assurance that the secondary impacts from construction, alteration and intended or reasonably expected uses of the project, will not adversely affect the function of adjacent wetlands or other surface waters. See § 12.2.7(a), A.H. When evaluating the project under this part of the criterion, the District considered increased noise, night lighting, visual disturbances and other impacts that are attendant to human activity associated with the FCC project. In addition, several wetland areas will be severed as a result of the project. These secondary impacts are equivalent to the loss of the ecological value of 7.4 acres of wetlands. FCC has proposed additional mitigation within the overall mitigation plan to offset the project’s anticipated adverse secondary impacts the construction and use of the site have on the remaining wetlands. Under the second part of the secondary impact criterion, FCC must provide reasonable assurance that the construction, alteration, and intended reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland-dependent listed species for enabling existing nesting or denning by these species. § 12.2.7(b), A.H. There are no upland areas on the project site that are suitable for nesting or denning by listed species. Under the third part of the secondary impact criterion, and as a part of the public interest test, the District must consider any other relevant activities that are very closely linked or causally related to any proposed dredging or filling which will cause impacts to significant historical and archeological resources. § 12.2.7(c), A.H. When making a determination with regard to this part of the secondary impact criterion, the District is required by rule to consult with the Division of Historical Resources. § 12.2.3.6, A.H. The District received information from the Division of Historical Resources and FCC regarding the classification of significant historical and archeological resources. In response to the District's consultation with the Division of Historical Resources, the Division indicated that there would be no adverse impacts from the project to significant historical or archeological resources. Also, District staff did not observe any significant historical or archeological resources on the project site. Under the fourth part of the secondary impact criterion, the applicant must demonstrate that any future phases of a project and certain additional project-related activities will not result in adverse impacts to the function of wetlands or result in water quality violations. § 12.2.7(d), A.H. The proposed project has been reviewed in its entirety and does not include any future phases. In an earlier application submittal, there was an internal roadway proposed on the project site that would connect the northern and southern portions of the project. This roadway is no longer a part of the application, and the area where the roadway was proposed will be preserved as part of the on-site mitigation plan for the project. The District also considered the FCC DRI Development Order and road improvements required for US-1 and Baymeadows Road. At this time, the impacts are not well defined; however, the impacts are expected to be relatively minor. These relatively minor impacts can be offset with mitigation within the drainage basin. The applicant has also conceptually shown that these road improvements can be designed in accordance with the District's rule criteria. Surface Water Diversion and Wetland Drawdown Impacts If the water within proposed wet detention ponds is at a lower elevation than adjacent wetlands there is a concern that water would drain out of the wetlands and follow the gradient into the wet detention ponds that are at a lower elevation. Two of the wet detention ponds proposed could present this issue: Pond A2 in the northeastern portion of the Site and Pond 1 at the southern end of the Site. Those ponds will be constructed with impermeable barriers to prevent adverse impacts to adjacent wetland areas. FCC has also proposed the construction of bypass ditches. Two of these bypass ditches will be lined to prevent water from flowing from the wetlands into the stormwater management system. Mitigation Areas As compensation for the adverse direct and secondary impacts to the value of functions provided to fish and wildlife, FCC has proposed regionally significant on-site wetland and upland preservation: off-site wetland creation, enhancement, and preservation; off-site upland preservation and enhancement; and purchase of mitigation bank credits. FCC Exs. 13A and 13B. The off-site portion of the overall mitigation plan includes four components: the Rood Tract, the Rayland Tract,3 the Hunt Farm Tract, and credits from the Tupelo Mitigation Bank (TMB). D Ex. 6. On-site Mitigation FCC proposes to preserve 393.1 acres of remaining on- site wetlands in conjunction with 8.8 acres of adjacent upland buffer and internal upland islands. With the existing preservation area of 124.4 acres, a total of approximately 517.5 acres of on-site wetlands will be preserved. FCC Ex. 14B. The on-site wetlands being preserved are very mature forested areas including the bay swamp area on the east central portion of the Site. FCC Exs. 14B and 30. The deep swamp area of the Site, a wide corridor running north and south, and the entire central portion of the Site, including the lowest elevations of the Site and the very narrow threads of Pottsburg and Julington Creeks, will be preserved as part of the 393.1 acres. FCC Ex. 19. The thick canopy above the swamp and creek areas will also be preserved. In addition, the mean annual floodplain (the wetter part of the Site) is almost completely preserved. Approximately 16.6 acres of the total wetland impact of 126.8 acres is within the 25-year floodplain areas in the southeastern portion of the proposed development on the Site. FCC Ex. 31D. The on-site conservation/preservation area is approximately one-half mile wide at its mid-point on the Site. FCC Exs. 14B and 31D. Preservation of on-site wetland and upland areas provides an adequate wildlife corridor for habitat. These preservation areas will be encumbered under conservation easements that are consistent with Section 704.06, Florida Statutes, and dedicated to the District in perpetuity. The on-site preservation area is contiguous with a conservation corridor along Julington Creek of approximately 3,000 to 4,000 acres of uplands and wetlands. The District established a ratio of 30 to one for the new 393.1-acre wetland preservation along the Pottsburg Creek Swamp/Julington Creek corridor. Application of the ratio resulted in 13.1 offset acreage credits. The ratio means, for example, that for each acre of wetland preservation, FCC receives 1/30th of a credit. FCC Exs. 14B, 17, and 40; P Ex. 85 at 26. The District established a ratio of ten to one for the new 8.8-acre upland preservation, for 0.9 offset acreage credits. A 1.4-acre upland strip that is located between US-1 and the western project boundary and several small areas previously encumbered by easements (e.g., drainage easements) or other restrictive covenants will not be included as part of the conservation easement, and FCC has not proposed any work within these previously encumbered areas. FCC Exs. 14B and 31D; D Ex. 6 at 6. Rood Tract Off-Site Mitigation The Rood Tract is located approximately one mile south of County Road (CR) 210 at the terminus of Leo Maguire Road in central St. Johns County within Basin 5. (The Rood/Rayland Tracts are located approximately ten miles from the Site.) FCC proposes to preserve 248.7 acres of mixed forested wetlands (primarily bottom-land hardwood) and 6.5 acres of adjacent upland preservation under a conservation easement. This mitigation area is a streambed with surrounding wetlands and, like the FCC Site, is a headwater area. There are small basins within the Rood Tract that overflow and discharge northerly into Whites Ford Creek. Whites Ford Creek leads to Trout Creek and eventually to the St. Johns River. See FCC Ex. 35; D Exs. 6, 30, and 31. The Rood Tract site is adjacent to approximately 1,400 to 2,500 acres of wetland and upland preservation that have been encumbered by conservation easement and an additional 600+ acres that have been proposed to be encumbered under a conservation easement as mitigation for other projects. The Rood Tract mitigation area is a mature forest and could be timbered (although not recently) and used for silviculture. The vegetation is very mature like the vegetation on the Site and has a good hydroperiod. The presence of exotic species is minimal. The preservation of wetlands provides mitigation value because it provides perpetual protection by ensuring that development will not occur in those areas as well as preventing activities, such as silviculture timbering, and other relatively unregulated activities. This in turn will allow the conserved lands to provide more forage and habitat for the wildlife that would utilize those areas. Rayland Tract Off-Site Mitigation The Rayland Tract is located within Basin 5, immediately east of the Rood Tract. The Rood and Rayland Tracts are bisected by Leo Maguire Road, a dirt roadway. The Rayland site is approximately 808 acres and bounded to the north and east by Whites Ford Creek, to the south by undeveloped uplands and wetlands, and to the west by Leo Maguire Road. FCC Exs. 32- 36. The Rayland Tract is connected to the east by the Sylvan property of approximately 1,000 acres under a conservation easement, which will have silviculture activity for another 20 years. I-95 borders the Sylvan property on the east. The Cummer Trust/Twelve Mile Swamp Property (consisting of approximately 20,000 acres) is located adjacent to and east of I-95 and the Sylvan property. D Exs. 30 and 31. There are large drainage culverts under I-95 between the Sylvan and Cummer property. According to Ms. Wentzel, there are large boxed culverts between 12 and 15 feet wide that are underneath I-95 and connect the Cummer property with the mitigation preservation lands on the west side of I-95. These boxed culverts may serve as a wildlife crossing for small mammals and also maintain hydrologic connection. The Rayland/Rood Tracts, in conjunction with Whites Ford Creek, provide a wide corridor for wildlife. The Rayland Site is also contiguous with areas that have been preserved, including approximately 3,100 acres from various projects. A majority of this tract has been maintained for silviculture for many years and provides minimal habitat benefits or diversity to wildlife. Another part of the site includes naturally forested wetlands that have been selectively timbered during recent operations, except along a narrow band associated with Whites Ford Creek. A majority of the planted pine areas are currently wetlands providing minimal functions. The Rayland Site includes wetland and upland preservation, wetland enhancement, and wetland creation. The entire Rayland Tract will be placed in a conservation easement, which among other things, will prohibit roads. T. 64-65. This should be a required condition of the ERP. FCC proposes to preserve a total of 295.9 acres of wetlands and 27.4 acres of adjacent uplands. Preservation of these upland and wetland areas will enhance the existing wildlife habitat by removing the silviculture operations and allowing the areas to naturally succeed and regenerate with indigenous species. Portions of the Rayland Tract are similar to the FCC Site, and by accepting drainage from other off-site areas, these wetlands will eventually drain into Whites Ford Creek. In turn, Whites Ford Creek, later called Trout Creek, discharges to the St. Johns River. See Finding of Fact 67. The amount of nuisance and exotic species is limited. In terms of fish and wildlife utilization, bears have been observed in the immediate vicinity of the Rayland Tract. FCC also proposes to create 121.5 acres of wetlands from existing upland islands scattered throughout the parcel, and vegetatively enhance approximately 363.6 acres of existing wetlands that are currently maintained as pine plantation. In the enhancement areas, FCC proposes to remove a majority of the existing pine and replant the area with a mixture of native wetland hardwood trees and to enhance the wetland hydrology pursuant to detailed grading, planting, and monitoring plans. For the wetland creation areas, FCC will grade the site to create deeper elevations to allow for more extended hydroperiods and will plant mixed hardwood trees. The geotechnical report for the site, which includes soil borings, demonstrates that the underlying soil of these areas of the Rayland Tract is similar to that of the Site. Creation and enhancement of the wetland areas will provide improved species diversity and hydrology that, in turn, will enhance the habitat for wildlife. The quality of detritus is expected to be improved. Hunt Farm Tract Off-Site Mitigation The Hunt Farm Tract, approximately 203 acres, is located in southwestern St. Johns County, within an adjacent, but different drainage basin (Basin 8), and approximately 11 miles south of the TMB. FCC Exs. 32-33 and 38. The Hunt Farm Tract was the site of an active potato farm. FCC proposes to preserve 15.5 acres of mixed hardwood wetlands associated with a tributary of Deep Creek in conjunction with 40.0 acres of adjacent mixed forested uplands. See FCC Ex. 38 for an aerial of this site. Further, FCC proposes to enhance approximately 147.8 acres of mixed forested upland habitat from an existing potato farm and remove this acreage from active agriculture. The entire Hunt Farm Tract will be placed in a conservation easement. The farm provides essentially no viable wildlife habitat and has altered the historic drainage patterns in the vicinity of the Site; altered the hydrology of the adjacent wetlands; and contributed to the degradation of the St. Johns River through the discharge of untreated, pollutant-loaded runoff. The proposed enhancement of this site will create viable wildlife habitat. The detritus produced from this Site will, in time, benefit the ecology of the St. Johns River. The water quality improvements implement and are consistent with the District’s Surface Water Improvement and Management (SWIM) Plan for the area, although they are not part of the SWIM Plan. See Findings of Fact 118-120. The proposed enhancement will also eliminate furrows so that the hydrology can be restored. A portion of the Hunt Farm Tract will drain towards a ditch or man-made canal bordering the western boundary of the property that eventually flows into the St. Johns River. Another portion (northern) of the site will discharge into a tributary of Deep Creek and eventually into the St. Johns River. FCC Ex. 38. There is a hydrologic connection between the Hunt Farm Tract and the St. Johns River. The Hunt Farm Tract will have depression areas which function similarly to the depression areas on the Site. These areas will fill up with water and then discharge. The upland preservation on the Hunt Farm Tract is different than the wetlands to be impacted on the Site. However, there are certain species that need uplands in order to fulfill their life cycles. The exotics on the Hunt Farm Tract are minimal. In terms of off- setting wildlife impacts at the Site, the wetlands and uplands at the Hunt Farm Tract are of a similar nature to the Site. Tupelo Mitigation Bank Off-Site Mitigation The TMB is an approximately 1,525-acre mitigation bank that was mostly in silviculture production. The TMB is located in Basin 5, east of Highway 13A and south of Highway 208 in St. Johns County and approximately eight miles south of the Rayland/Rood mitigation sites. FCC Exs. 32-33, and 39. FCC proposes to purchase 114.9 credits from the TMB located in Basin 5. Each credit equals approximately 3.3 acres, meaning that the 114.9 credits represent 379.17 acres of mitigation. See Pet. Ex. 85 at 26. (One mitigation bank credit is equivalent to the ecological value gained by the successful creation of one acre of wetland. § 12.4.5(b), A.H.) A letter of reservation has been issued for these credits from the owner of the mitigation bank. The overall goal of the bank is to enhance, restore, and protect wetlands and uplands within the bank, promoting conditions similar to those that existed prior to alteration. This will be accomplished by ceasing silviculture activities and eliminating most planted pines; reducing most beds and swales through re-grading; restoring hydrologic levels and patterns by filling or plugging ditches; reducing the grade of unneeded roads, and restoring altered, channelized stream sections; restoring native forest tree types through nurturing existing recruited trees and by supplemental plantings; eliminating hunting leases; implementing prescribed burning; and implementing perpetual preservation and management. Town Branch (a creek tributary to Six Mile Creek) runs through the northern portion of the TMB site and connects to Six Mile Creek, which discharges to the St. Johns River. FCC Ex. 39. VIII. Mitigation Ratios and Application As discussed above, the proposed mitigation includes preservation, creation, and enhancement mitigation, to offset adverse impacts of the project: On-Site Wetland Preservation 393.10(acres) On-Site Upland Preservation 8.80 Rood Wetland Preservation 248.70 Rood Upland Preservation 6.50 Rayland Wetland Preservation 295.90 Rayland Upland Preservation 27.40 Rayland Wetland Enhancement 363.60 Rayland Wetland Creation 121.50 Tupelo Mitigation Bank 114.90(credits) Hunt Wetland Preservation 15.50(acres) Hunt Upland Preservation 40.00 Hunt Upland Enhancement 147.80 See, e.g., FCC Exs. 13A, 40 at 2, and 41; P Ex. 85 at 16; D Ex. 6 at 13. Mitigation ratio recommendations and guidelines are set forth in Sections 12.3.2-12.3.2.2 of the District’s Applicant’s Handbook. The District determined that certain mitigation ratios should be applied: ten to one for upland preservation; 30 to one for wetland preservation; 15 to one for wetland enhancement; four to one for wetland creation; ten to one for upland enhancement; three to one for mitigation bank credits; and four to one for detrital export impacts. Id.4 These ratios reflect a consideration of the ecological lift associated with the mitigation, time lag, and risk. Time lag accounts for the time period between incurring wetland impacts and the mitigation fully offsetting the functions that are lost as a result of the impacts. When considering the long term, accounting for time lag results in more resources being provided by the mitigation plan then the original impact area. Risk accounts for the probability of success of the mitigation. There are 134.2 acres of direct and secondary impacts which will result from the project. The District also added a ten percent factor (13.42 acres) reflecting “greater long term ecological value,” which yielded total habitat impacts of 147.62 acres. D Ex. 6 at 25. When the ratios are applied to the proposed mitigation acreage and credits, there are 147.65 total habitat offset acres. Id. at 26. The District also determined that detrital export impacts should also be mitigated and used a four to one wetland creation ratio. Id. at 25. The direct impact number of 126.8 acres was multiplied times four to equal 507.2 acres of total detrital export impacts. (Although the Applicant’s Handbook does not provide a ratio for detrital export, the District considered a range for the ratio and concluded a four-to-one ratio was appropriate. The ratio chosen is reasonable.) Again, the four-to-one ratio, as well as the other ratios used, reflects a consideration of the ecological lift associated with mitigation, time lag, and risk. A similar ratio was applied for wetland creation in the habitat function offset. The mitigation acreage for wetland preservation on-site (393.1), Rood (248.7), Rayland (295.9), and Hunt (15.5) were added with the wetland enhancement acreage for Rayland (363.3) and Tupelo (379.17 (114.9 credits x 3.3 acres/credit)) to yield 1695.97 acres. The District then applied an ecological lift factor of 15 percent to the 1695.97 acres of wetland preservation and enhancement components of the mitigation plan, resulting in a value of 254.40 acres. Id. at 26. (Dr. Dobberfuhl stated that the 15 percent factor is the difference in the averages over time he found in the literature for hardwood wetlands and pine silviculture.) This factor represents the ecological improvement with regard to detrital production associated with converting, e.g., a pine plantation that is subject to periodic harvesting to hardwood wetlands, i.e., more detrital production is expected from replanting hardwood wetlands. T. 956. An ecological lift of 100 percent was applied to the upland preservation, upland enhancement, and wetlands creation areas resulting in 352.1 acres. Because these areas are currently uplands and may be developed, there could be a complete loss of detrital export from these areas. The total detrital export offset was 606.5 acres versus proposed detrital export impacts of 507.2 acres. P Ex. 85 at 26. The replanting of the wetland enhancement and creation areas on the Rayland Tract will enhance the production, the quality and quantity of detrital material. The areas that are currently pine plantation provide less value in terms of quantity and quality of detritus as compared to hardwoods. The upland enhancement at the Hunt Farm Tract will produce detritus in the form of particulate and dissolved organic carbon. The on-site and off-site preservation areas will benefit detrital production because unregulated activities like silviculture timbering will be prevented. When areas are timbered, there is a consequent loss of detrital production. The detrital export function of the wetlands to be impacted is not only offset, but exceeded by the mitigation plan. FCC did not propose any impacts on-site that will not be offset by the proposed mitigation. Section 12.2.1, A.H. - Elimination and Reduction “The degree of impact to wetland and other surface water functions caused by a proposed system, whether the impact to these functions can be mitigated and the practicability of design modifications for the site, as well as alignment alternatives for a linear system, which could eliminate or reduce impacts to these functions, are all factors in determining whether an application will be approved by the District.” § 12.2.1, A.H. “Except as provided in subsection 12.2.1.2, if the proposed system will result in adverse impacts to wetland functions and other surface water functions such that it does not meet the requirements of subsections 12.2.2 through 12.2.3.7, then the District in determining whether to grant or deny a permit shall consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts.” § 12.2.1.1, A.H. FCC has reduced the proposed wetland impacts by more than 130 acres from 258 acres to the currently proposed 126.8 acres during the course of the application review process. See generally FCC Exs. 31B-D. One of the most substantial modifications to the proposed design includes the removal of an extension of an existing roadway (Sunbeam Road) from its intersection with US-1, easterly, over I-95 to Western Way. Construction of this east/west roadway across the headwater swamp would have further bisected the wetlands. Another substantial modification includes the removal of a north/south connector roadway and, instead, the creation of two access roadways that terminate in cul-de-sacs and service future development in the northern and southern portions of the Site. There was limited evidence produced regarding whether additional modifications (other than reducing wetland impacts from 258 acres to 126.8 acres) were appropriate or whether additional modifications, if appropriate, would be “economically viable.” There is no persuasive evidence that information regarding economic viability was produced to the District during the application process. (Ms. Wentzel testified that FCC “did not submit an economic analysis relative to 12.2.1 of the Applicant’s Handbook.” T. 781, 849.) However, Mr. Dowd testified that the project reached the point, where if further reductions were made, FCC (Goodman Company) would be unable to pursue the development. Notwithstanding the above, during the processing of the instant ERP, the District concluded that the mitigation implemented was part of a plan that would provide regionally significant ecological value and have greater long-term value than that of the impact Site. See D Ex. 6 at 6-7. As a result, FCC would not have been required to reduce or eliminate impacts pursuant to Section 12.2.1, A.H., assuming this assessment was proven during the final hearing. Based on the persuasive evidence offered on this topic, it is determined that FCC was not required to eliminate or reduce the impacts of the project as contemplated in Section 12.2.1, A.H. Stated slightly differently, FCC offered persuasive evidence that it has complied with the elimination and reduction criteria because it has proposed mitigation that implements all or part of a plan that provides regional ecological value and the proposed mitigation will provide greater long-term ecological value than the wetlands to be impacted. (“The District will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when:. . .b. the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected.” § 12.2.1.2 b., A.H.) Section 12.2.1.2 b., A.H. – The “Out Provision” – Significant Regional ecological Value of Mitigation The location of the mitigation and improvements are regionally significant and the perpetual easements ensure greater long-term ecological significance than is associated with the wetlands to be impacted. Under the pending application, there are four plans of regional ecological value for consideration under Section 12.2.1.2 b., A.H.5 The on-site preservation is a part is the Julington/Durbin Creek corridor, which is a plan of regional ecological value. This plan includes the proposed on-site preservation; the existing on-site preservation of 124.4 acres; the mitigation required by prior District permits in the Julington/Durbin Creek corridor; and publicly-owned lands within the corridor. See D Exs. 6, 16, and 29. The on-site preservation in conjunction with the publicly-owned lands has ecological value. Almost 3,000 to 4,000 acres of wetlands and uplands form a preservation corridor that provides good habitat and hydrology, although wildlife has been limited. See Findings of Fact 62-63. The proposed mitigation plan implements a number of other plans that provide regional ecological value have been considered under Section 12.2.1.2 b., A.H. The plan of regional ecological value for consideration for the Rayland and Rood Tracts consists of the proposed mitigation for this project; the mitigation required by prior District permits; and lands under public ownership. The Rayland and Rood mitigation sites are contiguous with, and in the vicinity of, wetland preservation and upland preservation parcels that have been accepted as mitigation for other projects. The combination of land currently encumbered by conservation easements and lands proposed for mitigation under this application, totals approximately 3,100 acres in an area that is under significant development pressure. These mitigation areas increase the protected area provided by the District’s Cummer Trust/Twelve Mile Swamp and provide significant added wildlife value to this protection plan. The overall mitigation plan provides significant regional ecological value. See Findings of Fact 67-80. In its Technical Staff Report dated December 30, 2003, District staff stated, in part, that the TMB “project will result in a significant acreage of enhanced forested wetlands, a small amount of enhanced uplands, and the improvement of wildlife habitat. In addition, the project will restore the historic hydrologic patters to the degree possible, including Town Branch, which is a major tributary to Sixmile Creek.” D Ex. 21 at 6. The project site is located within regional watershed 5 which is nested within watershed 4. Id. at 9. By virtue of receiving a permit from the District, the TMB enhances and contributes to the ecological value within a regional watershed. The preservation and improvement of the Hunt Farm Tract wetlands and uplands implements the District’s regional objective of improving the water quality in the Lower St. Johns River by addressing stormwater pollution associated with agricultural land use. The Lower Basin SWIM Plan is a District plan to improve the water quality in the lower St. Johns River, including the Hasting Drainage District. The District SWIM plan calls for the development and implementation of best management practices, the construction of stormwater treatment systems and the acquisition/forestation of farmlands in order to accomplish this objective. The proposed mitigation is part of a larger ecological system and is part of an intact wetland system. The FCC mitigation plan for the Hunt Farm Tract is consistent with the District’s SWIM Plan to purchase conservation easements and reforest lands currently in row crop agriculture. By converting the property from row crops to upland forest, there will be less drainage off of the property and the water quality draining off of the property is expected to improve significantly. (The Hunt Farms Tract is located within the Hastings Drainage District. This drainage district maintains a number of large ditches with substantial drainage. The St. Johns River is the eventual outlet for all of these ditches in the vicinity of the Harm Farm Tract.) Furthermore, notwithstanding the ecological value on the Site, FCC’s mitigation will provide greater long-term ecological value because FCC has proposed significantly more mitigation than is needed to offset the project’s adverse impacts to fish and wildlife caused by the proposed wetland alteration. FCC provided mitigation to offset an additional 13 acres of wetland impacts that are not being proposed. In addition, the mitigation plan, when implemented, will provide more ecological resources above that are currently on the Site and that are expected on the Site in the future. The proposed mitigation plan also provides additional habitat for animal species not present on the impacted wetlands on the Site. Over objection and the denial of a motion in limine filed by FCC and the District, Petitioners introduced testimony and evidence related to a potential, yet speculative future road project by St. Johns County (CR 2209) that might affect a portion of FCC’s proposed mitigation on the Rayland Tract. See FCC Ex. 35 (generally showing a potential road bisecting the Rayland Tract as a single blue line and generally showing the east-west right-of-way reservation corridor leading from a proposed town center to I-95 to the east as part of the Silverleaf DRI as a jagged blue line). A corridor study was competed in 2001, which explored various alternatives for and identified a corridor that led through the Rayland Tract. The complete proposed CR 2209 is expected to be about 20 miles. This study was incorporated into the northwest sector plan. In July 2004, St. Johns County became aware that FCC proposed to place a conservation easement over the Rayland Tract. Ultimately, an agreement was reached between FCC Partners LP, Ltd., and St. Johns County, in which FCC Partners LP, Ltd., agreed to convey to St. Johns County by warranty deed the right-of-way required to construct CR 2209 across the Rayland Tract for the right-of-way location approved by the Board of Commissioners’ Resolution on February 9, 2005. P Ex. 16. The alignment of the corridor has changed a “little bit” since the corridor study was conducted. Changes are frequently made during the negotiation process to applications for development approval of DRIs. In addition, Petitioners presented testimony regarding a proposed DRI named Silverleaf that allegedly would border and partially surround the Rayland Tract. Other developments near the Rayland Tract and Whites Ford Creek were also discussed. Petitioners contend that if the proposed mitigation will be bisected by a road in the future, or surrounded by a future DRI and other development, the mitigation could not be considered to provide “long-term ecological value,” as required by Section 12.2.1.2 b., A.H. The envisioned CR 2209 was not considered by the District in determining whether the mitigation at the Rood and Rayland Tracts would provide greater long-term ecological value than the wetlands to be impacted. Such a roadway would require a District ERP, and all direct and secondary impacts to wetlands and surface waters would have to be offset. No ERP application has been submitted to the District for CR 2209. The specific road alignment and design are needed to determine the type and nature of any impacts that may result from the construction of CR 2209. With respect to Silverleaf, no evidence was presented that any permit from any regulatory agency had been issued. Rather, there was testimony that an ADA for a DRI had been submitted to the Northeast Florida Regional Planning Council. There was evidence regarding the proposed development at Silverleaf. However, it is typical that frequent changes are made to ADAs during the review process. The Silverleaf DRI and the specific land uses contained therein have not been approved. The District did not evaluate the Silverleaf proposed development, but its analysis assumed that the upland areas surrounding the mitigation areas would eventually be improved similar to the single-family residential development that is occurring in the area surrounding the Rood and Rayland Tracts. This assumption did not diminish the long-term regional ecological value of the mitigation areas. Accordingly, it is open to speculation as to whether the Silverleaf DRI will be approved, whether it will ever apply for an ERP, and the extent to which any proposed impacts would affect the current proposed ERP for FCC. Petitioners’ theory that CR 2209 and Silverleaf will in some manner affect FCC’c proposed mitigation in the future is based on speculation and conjecture. Florida Administrative Code Rule 40C-4.301 Florida Administrative Code Rule 40C-4.301(1)(d) - Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters Florida Administrative Code Rule 40C-4.301(1)(d), in conjunction with portion of the Applicant’s Handbook, requires that construction and operation of the system must not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. The proposed mitigation plan offsets any adverse impacts to fish and wildlife caused by the project’s proposed wetland impacts. The evidence also showed that the project will not cause the hydroperiod of wetlands or other surface waters to be altered so as to adversely affect wetland functions or surface water functions. This criterion is satisfied. Florida Administrative Code Rule 40C-4.301(1)(f) and Section 12.2.7, A.H. – Will not cause adverse secondary impacts to the water resources Secondary impacts have been considered and quantified to be 7.4 acres and have been mitigated. This criterion is satisfied. Florida Administrative Code Rule 40C-4.301(1)(i) – Will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed FCC presented evidence that its mitigation plan was fully capable of being performed and functioning as proposed, based on generally accepted engineering and scientific principles. However, the District should consider whether the monitoring period of five years should be extended as a result of the extensive mitigation proposed, including wetland creation. This criterion is satisfied. Florida Administrative Code Rule 40C-4.302(1)(a)1.-7. - Public Interest Test The public interest test has seven criteria, only four of which are in dispute. See Endnote 9. It is a balancing test and each factor is evaluated on its own merit, although each factor need not be given equal weight. See also § 373.414(1)(a)1.-7., Fla. Stat. The public interest test applies to the parts of the project that are in, on, or over wetlands. Those parts of the project must not be contrary to the public interest. (If they are located in, on, or over an Outstanding Florida Water (OFW) or significantly degrade an OFW, then the project must be clearly in the public interest. No part of this project is located in or near an OFW.) The disputed public interest criteria are discussed below.6 See Endnote 9. Florida Administrative Code Rule 40C-4.302(1)(a)2. - Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats The evidence demonstrated that the FCC Site is sparsely used by fish and wildlife. The weight of the evidence indicates that, contrary to biological assumptions regarding habitat use at the Site, there was very little actual use of this Site by wildlife. See, e.g., Finding of Fact 21. The abundance of wildlife was low considering the various types of habitat on the Site. In contrast, the evidence demonstrated that the off-site mitigation areas (specifically the Rayland Tract) are surrounded by lands used by listed species, including the Black Bear, American Bald Eagle, and Southeast Kestrel. The District considered this factor to be positive in light of the mitigation plan. This factor is considered to be positive. Florida Administrative Code Rule 40C-4.302(1)(a)4. - Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity No open water exists on the Site, rather only deep swamps and creek channels. The areas proposed for development do not include the swamp or creeks. FCC Ex. 31D. Although not quantified, from a qualitative analysis standpoint, there will be a loss of detrital export with the removal of 126.8 acres of wetlands on the Site, which may cause some potential adverse affects to the fish and marine production in Julington Creek, and to a much lesser degree, Pottsburg Creek, but not the St. Johns River. See Findings of Fact 35-46. The District initially (and still does) considered this factor to be negative because of their determination that the impact to the 126.8 acres of wetlands is expected to decrease detrital production and export in the vicinity of the project in the downstream waters of Julington and Pottsburg Creeks and, as a result, adversely affect the fish and marine productivity in these waters. Notwithstanding, the District required detrital export mitigation. The request for four-to-one detrital export mitigation was reasonable and satisfied. This factor is considered to be negative to neutral. Florida Administrative Code Rule 40C-4.302(1)(a)5. - Whether the activity will be of a temporary or permanent nature FCC’s development and impact to the wetlands on the FCC Site will be permanent. Even though the project is permanent, this factor is considered neutral because the proposed mitigation will offset the permanent adverse impacts. Florida Administrative Code Rule 40C-4.302(1)(a)7. - The current condition and relative value of functions being performed by areas affected by the proposed activity The District assessed the value and functions of the wetlands on the FCC Site as “high” value and initially considered this factor to be negative. However, because the implementation of the mitigation plan will offset the wetland impacts, this factor is considered positive. Florida Administrative Code Rule 40C-4.302(1)(b) – Will not cause unacceptable cumulative impacts upon wetlands and other surface waters During the processing of the ERP, it was the position of FCC and the District that the project offset its functional loss by providing sufficient mitigation within District Drainage Basin 5. As a result, FCC was not required to perform a cumulative impact assessment if they were correct in this assessment. The proposed mitigation for the project will result in the improvement of approximately 1,800 acres of wetlands within Basin 5, sufficient to offset the direct and secondary impacts in Basin 5. Notwithstanding, FCC performed a cumulative impact analysis. After the District issued its preliminary intent to issue the ERP, Dr. Dennis performed a cumulative impact analysis and evaluated all of the reasonably foreseeable impacts in Basin 5, including Silverleaf and CR 2209. In accordance with that analysis, he opined that no more than seven percent of the “at risk” forested wetlands (FLUCCS Code numbers 611/617/630, FCC Ex. 46) would be impacted in the basin. Approximately 25,000 (roughly 20 percent of 139,051) acres of FLUCCS Code 611/617/630 forested wetlands are already in some form of public ownership and control. FCC Exs. 30 and Approximately 952 acres of the similar FLUCCS Code forested wetlands would be the applicable cumulative impact to consider (13,600 x .07). Thus, after applying the guidance contained in Section 373.414(8), Florida Statutes, and Section 12.2.8, A.H., there was persuasive evidence that the project will not cause adverse cumulative impacts. Conservation Easements FCC submitted into evidence copies of draft conservation easements that it will execute and record for all of the mitigation areas. These conservation easements are consistent with Section 704.06, Florida Statutes, and dedicate the mitigation areas to the District in perpetuity. Petitioners argued at hearing that a settlement agreement between FCC and St. Johns County, which may lead to FCC conveying “fee simple” title for a proposed road right-of- way to St. Johns County at a future date, creates an encumbrance that will prevent FCC from recording a conservation easement on the Rayland Tract. The settlement agreement does not create an encumbrance that prevents the recording of a conservation easement on the Rayland Tract. The settlement agreement does not impede the placement of a conservation easement on the Rayland Tract. Public Hearing Many concerned citizens testified under oath during the public hearing portion of the final hearing. Their concerns supported those raised by Petitioners. Their comments have been considered during the preparation of this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District issue ERP Application No. 4-031-17237-4 with conditions set forth in the Technical Staff Report dated April 4, 2005, and as suggested herein. See Finding of Fact 138. DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 5th day of August, 2005.
The Issue The issues are whether David Boston should be issued an environmental resource permit and sovereign submerged lands authorization allowing him to construct 96 linear feet of rip rap revetment; construct a private dock of less than 1,000 square feet; and place 3,500 square feet of fill in non-jurisdictional areas; and whether he qualifies for a general permit to place a fill pad in isolated wetlands adjacent to the St. Johns River, a Class III waterbody.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute between neighbors, Petitioner, Vincent R. D'Antoni, Jr., contends generally that Respondent, David Boston (Boston), will cause flooding to Petitioner's property by reason of placing too much fill on an isolated wetland, which lies in the center of Boston's property. The filling is in conjunction with Boston's efforts to construct a single-family residence and private dock on his property, purchased in June 1998, which lies adjacent to the St. Johns River, a Class III waterbody, in Duval County, Florida. In preliminary decisions made on November 5, 1998, and January 21, 1999, Respondent, Department of Environmental Protection (DEP), "acknowledge[d] receipt" of Boston's intent to use a noticed general permit "to fill less than 4,000 square feet of an isolated wetland to facilitate construction of a single family home" on his lot (Case No. 99-2861), and gave notice of its intent to issue Boston an environmental resource permit and sovereign submerged lands authorization allowing him to construct a rip rap revetment and a dock and to place 3,500 square feet of fill in mainly non-jurisdictional areas (Case No. 99-1916). Although a number of objections were raised by Petitioner in his original filings, as clarified at the final hearing, Petitioner now contends that Boston placed excessive fill on his lot, including an isolated wetland, and that the fill has resulted in flooding, saturated soil, or standing water on Petitioner's property. He also contends that the location of Boston's proposed dock will affect the ability to use his own dock. Because no evidence was presented on the docking issue, and through admissions Petitioner acknowledged that there will be no adverse environmental impacts, no consideration will be given to those objections. Finally, Petitioner does not object to the placement of the rip rap revetment on the shoreline. Accordingly, the request for an environmental resource permit and consent to use sovereign submerged lands in Case No. 99-1916 should be approved. The property in issue lies just south of the Jacksonville University Country Club and a few blocks west of University Boulevard North on Wayland Street, which fronts the eastern side of the St. Johns River in a tract of land known as University Park. Except for the Boston lot, all other waterfront lots are now developed. When facing the river from Wayland Street, Petitioner's lot lies to the right of Boston's lot, while another lot owned by Robert Henderson (Henderson) lies to the left of Boston's lot. The lots are up to 500 feet deep; Boston's lot is around 96 feet wide, while Petitioner's lot has a similar width but narrows to only 20 feet or so near the river. At the river end of the D'Antoni, Boston, and Henderson lots is an area of contiguous wetlands. Until 1995, DEP regulated those wetland areas and this prevented D'Antoni and Henderson from placing any fill in those areas. Under DEP's current wetland delineation rule, however, such areas are non- jurisdictional, and any placement of fill at the river end is outside the purview of DEP's jurisdiction. Before Boston's lot was cleared and filled, it was about a foot lower in elevation than the D'Antoni lot; this was true even though Petitioner has never changed the natural grade of his property since it was purchased and developed. Therefore, water tended to flow naturally from an upland area north or east of the D'Antoni lot, through the D'Antoni lot to Boston's lot, and then through the lower part of the Henderson lot populated by "very mature cypress trees," and eventually into the St. Johns River. According to a 1977 aerial photograph, the Boston lot contained what appears to be a tidal connection from an uplands area through the wetlands on his property to the river. However, construction on property adjacent to the Henderson lot sometime after 1977 severed this connection, and a tidal connection (direct hydrologic connection) to the river no longer exists. Under Rule 62-341.475(1)(f), Florida Administrative Code, "a single family residence" is exempt from the Environmental Resource Program permitting and a general permit will be granted "as long as it is not part of a larger plan of common development," and "the total area of dredging or filling in isolated wetlands for the residence and associated residential improvement shall not exceed 4000 square feet." Since there is no longer a direct hydrologic connection between the wetlands on Boston's property and the St. Johns River, the wetlands are isolated within the meaning of this rule. Availing himself of the foregoing provision, on October 19, 1998, Boston gave notice to DEP "of [his] intent to use a noticed general permit to fill less than 4,000 square feet of an isolated wetland" on his property. He also provided certain drawings and other information (prepared by his surveyor) to show that he qualified for the permit. DEP does not "issue" a noticed general permit; rather, it only determines whether the applicant qualifies for a permit and then "acknowledges" this fact. Accordingly, on November 5, 1998, DEP "acknowledge[d] receipt" of Boston's notice. Although DEP encourages the user of such a permit to notify affected or adjoining property owners, there was no legal requirement that Boston do so, and he proceeded to clear the lot and then fill a part of the wetland area with two or three feet of dirt without giving notice to Petitioner or Henderson, his two neighbors. The filling raised the elevation of the Boston property at least two feet above the D'Antoni and Henderson lots and impeded the prior natural flow of water. At the same time, Boston constructed a three to four-foot timber wall (consisting of railroad ties) on the Henderson property line to retain the fill and a similar two-foot wall on Petitioner's line. These changes had the effect of impounding the water which had previously flowed naturally in a north-south direction through the wetlands from the D'Antoni lot to the Boston lot to the Henderson lot. It also generated runoff from the Boston lot to the D'Antoni lot, which had not previously occurred. When Petitioner observed the adjacent lot being cleared and filled, and the resulting erosion of fill onto his property, pooling of water, and damage to his chain link fence after a heavy rain in January 1999, he filed a complaint with DEP. An inspection was made by DEP, and Boston was told to stop work until corrective changes were made to ensure that such flooding would not occur. After a series of changes were made which satisfied DEP's concerns, the stop work order was lifted. Boston also signed a consent order and paid a $100.00 fine. However, pending the outcome of these cases, no further construction work has occurred. Petitioner has contended that Boston has placed more than 7,200 square feet of fill on his property in violation of the rule, which limits the amount of fill to less than 4,000 square feet. While this amount of filling has in fact occurred, approximately 3,500 square feet of fill was placed in non- jurisdictional areas between the shoreline and the isolated wetlands, and the rule only requires that Boston limit his fill to less than 4,000 square feet on the isolated wetland. Thus, contrary to a suggestion by Petitioner's engineer, the jurisdictional and non-jurisdictional filling are not totaled together to determine whether the threshold within the rule has been exceeded. Through photographs received in evidence and testimony by Petitioner and his wife, it was established that flooding or standing water has occurred on Petitioner's property during heavy rainfalls since the filling occurred, even as recently as January 2000. The evidence further shows that Petitioner's chain link fence has been damaged through the weight of the fill pressing against the fence. In addition, Petitioner has suffered the loss of "a couple of trees" because of "mucky" and "oversaturated" soil caused by excessive water. Also, a dog house on a raised platform in the back yard which was previously dry now "stays in water." These affected areas lie immediately adjacent to the filled area of the isolated wetland on Boston's property. Finally, there is an erosion problem beyond the isolated wetland consisting of sand and silt flowing from Boston's lot onto Petitioner's lot during heavy rainfalls. Despite these problems, Petitioner does not object to the development of the lot; he only asks that Boston do so in a manner which prevents these conditions from recurring in the future. Petitioner's engineering expert, Ronnie D. Perron (Perron), a professional engineer who visited the site in August 1999, ran a computer model (Interconnected Channel and Pond Routing, Version 2.11) showing runoff both before and after the fill was placed on Boston's lot. He concluded that "there was over one and a half feet of flooding in that wetlands due to filling Mr. Boston's lot" during a "mean annual storm event," which assumes five inches of rain during a 24-hour period. Even when he used more conservative estimates, Perron still arrived at water accumulations ranging from 0.6 feet to 1.5 feet. This excessive runoff is caused by the retaining wall and fill, which "blocks off" the water and causes it to "spread out in [Petitioner's] whole back yard." In response to Perron's model, a DEP professional engineer, David P. Apple (Apple), ran another computer model (PONDS, Version 2.25) received in evidence as Respondent's Exhibit No. 14. That model shows that during a three-year, one- hour storm event, the small depressed area on Boston's property (including the isolated wetland) had sufficient storage capacity to absorb up to six inches of runoff from off-site areas and not overflow back onto Petitioner's property. This size of storm event (which produces two and one-half inches of rain in an hour) is typically used by the Department in calculations for single- family residential property when the impervious area site is less than fifty percent. In this case, Apple didn't "feel that the impervious area out there was greater than [fifty] percent." Therefore, Apple concluded that the storm event used by Perron was too large, and that the smaller event used in his model was more appropriate. He also concluded that the Boston property could retain all water in a normal storm event without discharging any stormwater onto the D'Antoni lot. He did not, however, address the issue of the fill and retaining wall on the Boston lot impounding the water on his neighbor's lot. In developing the input perameters for his model, Apple assumed that water falling at the front (Wayward Street) side of the D'Antoni property drained to the front roadway; in fact, much of that water drains to the rear of the lot into the wetland area. A similar incorrect assumption was made regarding runoff on the Boston lot. If modifications were made to account for the proper drainage patterns, the Apple model would show larger amounts of water staging on the Boston property during rainfall events, which would increase the possibility of runoff onto the D'Antoni lot. Apple questioned the accuracy of the Perron model given the fact that Perron had used a larger storm event than he (Apple) believed was appropriate. However, even if Perron had used a three-year, one-hour storm event on his computer model, as advocated by Apple, he established that it would have resulted in flood staging on Petitioner's property between 0.97 and 1.64 feet during a smaller storm event. DEP proposed no solutions to the water problems on the D'Antoni lot, presumably because it concluded that the rule was satisfied; that by filling the Boston lot, it was no longer the "stormwater pond for the neighborhood runoff"; and that DEP had no other regulatory authority to solve this peculiar situation. The record shows clearly, however, that if no changes are made, water will continue to back up on Petitioner's property by virtue of the higher elevation on the Boston lot, and the possibility of runoff from Boston's lot exists during certain storm events. Neither condition existed before the fill was added. To correct the foregoing conditions, Perron proposes two corrective measures. First, Boston should install a yard drain (underground culvert) beginning in the wetlands area of his property and outfalling to the cypress trees on the adjacent Henderson lot. Besides providing an outfall for the excess water, this would also help recharge the mature cypress trees on the Henderson lot. Second, D'Antoni should install a series of "yard drains" using high-density polyethylene pipes to convey the standing water on his lot directly into the St. Johns River. The expert opined that neither activity would require a permit from DEP. These modifications are reasonable and appropriate and should be used by the factioning parties. Accordingly, the installation of a yard drain should be a condition for Boston to use his noticed general permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application for a permit and consent in Case No. 99-1916 and confirming that David Boston qualifies for use of a noticed general permit in Case No. 99-2861 provided, however, that such use be conditioned on Boston constructing an underground culvert with a yard drain from the wetland area on his lot to the St. Johns River. DONE AND ENTERED this 22nd day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Vincent R. D'Antoni, Jr. 3824 Wayland Street Jacksonville, Florida 32277 David Boston 2262 Orchard Street Jacksonville, Florida 32209 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issues are (1) whether Respondents, Frank H. and Linda M. Molica, dredged and filled wetlands on their property in Merritt Island, Brevard County (County), Florida, without a permit and should take certain corrective actions, and (2) whether Respondents' activities are exempt from permitting under Section 373.406(2), Florida Statutes.1
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 1990, Respondents purchased a 3.47-acre, rectangular- shaped parcel at 2050 North Tropical Trail, Merritt Island, Florida, which is located within the regulatory jurisdiction of the District. See § 373.069, Fla. Stat. The parcel identification number is 24-36-15-00-00764-00000.00. The property is less than a mile south of State Road 528 (A1A), approximately one-half mile west of State Road 3 (North Courtney Parkway), and around one-half mile east of the Indian River. The property is bounded on its western side by a roadway known as North Tropical Trail, on the south side by a drainage ditch, and on the east side by another drainage ditch. Further to the east of the drainage ditch on the eastern side of the property are a holding pond and a subdivision known as Copperfield Subdivision developed in 1993, while a nursery is located just south of the drainage ditch on the southern side. The northern boundary of the parcel is five hundred twenty feet long and is adjoined by a vacant parcel of land similar in size to the Molica parcel and which is owned by the Lacanos. The Lacano property is largely a wetland. To the north of the Lacano property is a parcel owned by the Stricklands. Historically, the natural flow of water in the area was north to south, that is, from the Stricklands to the Lacanos to the Molica's property, and then to the drainage ditch on the south side of the Molica's property. When Respondents purchased the property in 1990, citrus trees were located "mostly in the front half," or western side of the property, "but they were also located in the rear scattered throughout." There was also "weed grass" or "mini grass" throughout the entire parcel. In 2002 or 2003, the citrus industry was economically hurt by a drop in prices due to various problems, and it became difficult to find fruit pickers or purchasers for the fruit. Because of these conditions, and pursuant to a recommendation by another citrus grower, Respondents state that they began to "transform their property to palm tree production." In late 2003, Respondents began removing orange trees and clearing the land; this continued throughout 2004. At the same time, they began to remove vegetation from the eastern half of the property, which included the excavation of the vegetation, soil, and roots. This was accomplished by the use of heavy equipment, including a tracked cab with hoe, a bobcat with front end loader bucket and root rake, and a wheeled tractor with front end root rake. This is confirmed by photographs taken of the property in April and December 2004. See District Exhibits 8 through 10. Also, a few cabbage palms were removed that were damaged during the clearing process, as well as trees damaged by hurricanes that struck the east coast of Florida in 2004. The vegetation and soil were trucked off-site for disposal, and new soil or fill was placed throughout the eastern half of the property in which vegetation and soil had been excavated. In some cases, the fill measured as high as thirty-three inches but averaged around one foot in height. There is no dispute that dredging (or excavation) and filling on the property occurred. Respondents did not obtain an Environmental Resource Permit (ERP) before performing this work. On December 13, 2004, the County received a complaint (generated by Mrs. Strickland, the neighbor to the north) about "heavy machinery operating in a wetland" on the Molica property. Mr. Pinnick, who was charged with enforcement of County environmental ordinances, visited the subject property to determine whether a violation of an ordinance had occurred. He observed heavy machinery operating on the central and eastern sides of the property and took several photographs of the site. See District Exhibit 12. He also observed vegetation and muck soil in the disturbed area and standing water in the ditch to the south and concluded that wetlands were being impacted. It is fair to infer that he then notified the DEP about the incident. On December 15, 2004, Mr. Pinnick, accompanied by two DEP employees, Mr. West and his supervisor, Ms. Booker, visited the site and met Mr. Molica and his consultant. At that time, "clearing and [dredging and filling] of wetland at rear [or east end] of Molica's property [was observed]." See District Exhibit 49. The DEP requested that Respondents' consultant "flag a [wetland] line and then Molica have all fill within wetland area removed." The DEP also advised Mr. Molica that "[a]rea then needs to be restored to natural grade." Id. Notes taken by Mr. Pinnick confirm that Mr. Molica agreed to remove the fill "to restore the natural grade and the wetland boundary would be delineated [by Mr. Molica's consultant.]" See District Exhibit The conclusion of both the County and DEP was that wetlands were present in the central part of the property. No formal delineation of wetlands was performed by them since the parties reached an understanding that Mr. Molica's consultant would perform this task. Because Mr. Molica thereafter denied access to the property, this would be the last time regulatory personnel were able to make an on-site inspection of the property until October 2008, when the District obtained an Order authorizing them to inspect the property. The County later charged Respondents with violating the County Code ("prohibitions in functional wetlands"), and the matter was considered by a Special Magistrate. An Order of Dismissal was entered by the Special Magistrate on February 1, 2006, on the grounds the property was zoned agriculture and enjoyed an agricultural exemption, and Respondents agreed to use Best Management Practices, as prescribed by the Department of Agriculture and Consumer Affairs. See Respondents' Exhibit 4. However, neither the DEP nor the District was involved in that action, and the matter concerned an alleged violation of a local ordinance, and not a provision in Chapters 373 or 403, Florida Statutes. At some point in time, but presumably after the site visit in December 2004, Mr. Molica asserted to the DEP that he was conducting an agricultural operation. In early 2005, the DEP referred the matter to the District since the two agencies have an operating agreement concerning which agency will handle certain types of permitting and enforcement matters. By letter dated August 15, 2005, Mr. Molica advised the local District office in Palm Bay, Florida, that the owners of the property were engaging in agricultural activities and denied that any unauthorized fill and excavation activities had occurred. He also requested copies of any statutes, rules, or case law that supported the District's position. See Respondents' Exhibit 2A. On August 3, 2007, the District advised Mr. Molica by letter that it had received a complaint from DEP, that the matter had not yet been resolved, and that it wished to inspect his property to determine if unauthorized fill and excavation activities had occurred. See Respondents' Exhibit 2B. According to a District witness, the delay in responding to Mr. Molica's letter was caused by the building boom occurring in 2005 and 2006, which required action on numerous pending permits, and in-house confusion over whether the DEP or District had jurisdiction to handle the complaint. There is no evidence to suggest that at any time the District agreed that the activities were lawful, or that the delay in responding to Mr. Molica's letter prejudiced Respondents in any manner. After conducting a preliminary investigation, which included a review of aerial photographs of the area, wetland maps, and soil maps, a visual inspection taken from the Copperfield Subdivision to the east and North Tropical Trail from the west, and a flyover of the property, the District issued its Complaint on August 8, 2008. Are there wetlands on the property? To determine whether wetlands were present on the Molica property, the District made a site inspection on October 22, 28, 29, and 30, 2008. Besides making a visual inspection of the property, the staff took photographs, performed twenty-nine soil borings on both the Molica and Lacano properties, reviewed soil surveys for the area, completed one west-to-east transect and five north-to-south transects to determine locations of hydric soils and any fill materials, and observed lichen and water stain lines on trees. The locations of the various soil borings are depicted on District Exhibit 22. Finally, the staff examined a series of aerial photographs of the property. Under the wetland delineation rule, three different indicators are used to make that determination: vegetation; soils; and signs of hydrology. See Fla. Admin. Code R. 62- 340.300(2)(a)-(d). In addition, where the vegetation and soil have been altered by man-induced factors so that the boundary between the uplands and wetlands cannot be delineated by use of Rule 62-340.300(2), such a determination shall be made by using the most reliable information and "reasonable scientific judgment." See Fla. Admin. Code R. 62-340.300(3)(a). The parties presented conflicting evidence on the wetland issue; the District's evidence has been accepted as being the more persuasive and credible and supports a finding that the areas where dredging and filling occurred in the eastern and central parts of the property meet the test for a wetland. Wetland Soils Muck presence is a hydric soil indicator and also a wetland indicator. The District's expert, Mr. Richardson, established that the soil on the property where the dredging and filling occurred was hydric in nature, and therefore indicative of a wetland. Although Respondent's soil expert disagreed with this conclusion, he generally agreed with Mr. Richardson's methodology, and he agreed that muck was present below the fill material. Wetland Vegetation The presence or absence of wetland vegetation is another factor to consider in deciding whether an area is or was a wetland. Wetland hardwood trees, and not grass planted on top of the fill, are more appropriate for evaluating whether the area in which the trees are located was a wetland. Large trees, estimated to be fifty to sixty years old, remain on the property in the vicinity of certain District soil borings. They include boring 20 (swamp tupelo); borings 3, 4, and 5 (red maple, American elm, and holly); and borings 9 and 10 (maple and American elm). These are all wetland canopy species and provide further support for the District's position. Hydrologic Indicators Algal matting is found on the surface of the property in the vicinity of borings 3, 4, 5, 8, and 9. Algal matting occurs because water has inundated the surface of the ground sufficiently long for algae to grow in the water and then remains on the ground surface after the water no longer covers the ground. Rainfall alone does not produce algal mats. Trees on the property provided evidence of being in saturated or inundated soil conditions through the morphological adaptation of buttressing and adventitious roots, particularly in the vicinity of District borings 20, 8, 9, and 10. Also, the trees had lichen lines on them, which are indicators of seasonal high water inundation elevations in wetlands. The presence of muck soils is a hydrologic indicator. As noted above, the District determined through soil borings that muck was under the fill that had been placed on the property. Reasonable Scientific Judgment The evidence established that there was significant alteration to the soils and vegetation across the central and eastern parts of the subject property due to man-induced factors of vegetation removal, dredging, and filling. Through consideration of the most reliable information available, including aerial photographs, the remaining trees on the site, hydrologic indicators, the presence of hydric soils, coupled with reasonable scientific judgment, the evidence established that the areas where the recent dredging and filling occurred met the wetland delineation test in Florida Administrative Code Rule 62- 340.300(3). Agricultural Exemption Mr. Molica is a full-time practicing attorney. His wife is his legal secretary. Respondents contend that since they purchased the property in 1990, they have been continuously engaged first in the occupation of citrus farming, and then beginning sometime in 2004 in the production of palm trees. Therefore, they assert they are entitled to the exemption provided under Section 373.406(2), Florida Statutes. That provision states in relevant part that "[n]othing herein . . . shall be construed to affect the right of any person engaged in the occupation of . . . horticulture . . . to alter the topography of any tract of land consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters." The parties agree that the burden of proving entitlement to this exemption rests on Respondents. When the property was purchased in 1990, there were citrus trees on the land, mainly in the western half. A few navel oranges were later added, and some citrus trees were removed at that time. Beginning at the end of 2003, and continuing in 2004, the citrus trees were removed. At the time of the DEP inspection in December 2004, no potted palm trees were observed on the property. The precise date when they were first placed on the property is not clear. Photographs taken in January 2006, more than a year after the dredging and filling and just before the County code violation charge was resolved, reflect around fifty or so small trees in pots located in a small, cleared section of the property. See Respondents' Exhibit Photographs taken three years later (January 2009), long after the dredging and filling occurred, show a comparable number of small palm trees in pots placed on what appears to be the same part of the property. See Respondents' Exhibit 21. Mr. Molica also submitted numerous documents (dated 2005 and later) downloaded from the internet by his wife which pertain to palm trees, see Respondents' Exhibit 20; and he stated that a marketing plan for the sale of palm trees has been developed, which was simply a goal of selling the trees after they were ten years old. He further stated that he intends to work the "farm" as a business full-time after retiring from his law practice. Finally, he presented the testimony of an agronomist who stated that clearing property, filling holes, smoothing land, and building an access road are normal agriculture activities. It is fair to infer from the record that Respondents' activities can be characterized as an avocation, not an occupation. Notably, there is no evidence that since they purchased the property in 1990, Respondents have sold any citrus fruit or a single palm tree. There is no evidence that dredging and filling in wetlands is a normal agriculture practice, or that it is consistent with the practice of horticulture, including the growing of exotic palm trees. Mr. Molica's agronomist acknowledged that he has never been associated with an application to conduct agricultural or horticultural activities that involve the filling of wetlands. Moreover, extensive dredging, filling, and removal of vegetation were not necessary to accommodate the small area on which the potted plants sit. The more persuasive evidence supports a finding that the topographic alterations on the property are not consistent with the practice of agriculture. The evidence shows that the filling on the property has obstructed the natural flow of surface water. More than likely, the filling of the wetlands was for the predominant purpose of obstructing and diverting surface water that flowed south from the Lacano property, and not for the purpose of enhancing horticultural productivity. Corrective Actions At hearing, the District submitted certain revisions to the proposed corrective action, which are described in District Exhibit 73. The revisions provide greater specificity regarding the formulation of a restoration plan and who must be involved in formulating that plan. In general terms, the corrective action offers Respondents the option of seeking an after-the-fact permit or restoring the wetlands. Respondents offered no proof at hearing that the original or revised corrective action is unreasonable. The revised corrective action is found to be reasonable and designed to address the restoration needs of the property and is hereby approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the charges in the Complaint, requiring Respondents to take the corrective actions described in District Exhibit 73, and determining that Respondents are not entitled to an agricultural exemption under Section 373.406(2), Florida Statutes. DONE AND RECOMMENDED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2009.
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. D. "Sonny" Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issues for determination in this proceeding are whether DER properly asserts jurisdiction over the site in question, and whether Petitioner (Vatalaro) is entitled to a permit to fill that site.
Findings Of Fact Sometime in 1986, Billie Vatalaro purchased approximately eleven acres within an approximately 20-acre wetland contiguous to Lake Rouse in east Orange County, Florida. Approximately five acres of the Vatalaro parcel are in the lake itself. In June 1987, personnel from Orange County's planning department and environmental protection department visited the site in response to reports of illegal filling. Correspondence ensued, and meetings were held among Mrs. Vatalaro and her sons and the staff from Orange County. In the meantime, some activity on the site continued, including clearing of trees and vegetation and sometime in January 1988, Mrs. Vatalaro obtained from the Orange County building department building permits and septic tank permits for two houses on approximately 1/2 acre of the property. In early February 1988, the Orange County Environmental Protection Department requested the involvement of DER. Jurisdiction Pamela Thomas is an environmental specialist with DER in the Orlando office. She first visited the site on February 8, 1988, with DER's enforcement officer, a staff person from Orange County, Mrs. Vatalaro, and Mrs. Vatalaro's sons, Russ and Ron Vatalaro. She performed a jurisdictional determination on the occasion of that visit, and returned for subsequent visits on July 20, 1988 and February 22, 1989. Jurisdictional determinations were made pursuant to Rule 17-4.022 F.A.C. (Since renumbered as 17-3.022). This required locating the water body of the state, Lake Rouse, and a determination of whether there is a connection of the water body to the adjacent wetlands. The vegetation is then examined to determine whether canopy, sub-canopy or ground cover will be analyzed. Within the rule are two tests, one used when submerged species predominate, the other used when the wetland vegetation is more transitional. Ms. Thomas located Lake Rouse and found no berms or other barriers between the lake and the wetlands. She also performed transects, visually sampling segments of the area and determined there was continuity between the lake and landward to the site in question. She found a full mature canopy in the uncleared area and loblolly bay, a submerged species, dominated. This area, between the lake and cleared site met the first ("A") test in Rule 17-4.022, F.A.C. The submerged plus transitional species were greater than 50 percent of the vegetation, the submerged species was greater than 10 percent and exceeded the upland species present. Because a portion of the area had been cleared, it was necessary to attempt to reconstruct what vegetation had existed prior to clearing. The cleared area included tall spindly pine trees spaced to indicate that other trees had been growing between them. The pine trees which did not have fill next to them were sitting on hummocks, a common phenomena in wetlands. Within the disturbed area Ms. Thomas found two bore holes where previous soil borings had been done. She and the DER enforcement officer determined by examining those holes that substantial fill had been placed in the cleared area. Root mat was more than ten inches below the surface and water was standing in the bottom of the holes. In order to reconstruct what vegetation had been present in the cleared area, Ms. Thomas completed a series of three feet by ten feet visual transects fanning out into the thicket from the cleared area. The dominant species were Ioblolly bay (gordonia), sweet bay and dahoon, all submerged species. It was apparent that the predominance of trees that had been removed were submerged species, mainly Ioblolly bays. As reconstructed, the biomass in a transect would have been greater than the sum of the biomass of the pine trees. This reconstruction was further validated on subsequent visits to the site when juvenile loblolly bay trees were found seeded and thriving in the disturbed area, but no pine seedlings were found, even though there was adequate time for that to occur. DER staff also viewed aerial photographs provided by the Valataros, taken in 1984, prior to major clearing and in 1987, after the clearing. The photographs are on a scale of 1 to 300 and do not indicate a drastic change in the area that would reflect that the cleared area had been mostly pine trees. The photographs are not of such quality that a conclusive determination can be made on them alone. David Kriz is an area resource soil scientist with the U. S. Department of Agriculture Soil Conservation Service. He visited the site with representatives of DER and Mrs. Vatalaro on July 20, 1988, at the request of DER. He performed three soil borings, the first in an area of bay trees outside the area cleared for the house. This boring revealed Samsula muck, a hydric soil, indicative of being saturated or flooded. The second boring was taken within the area designated for the house pad. This yielded about fifteen inches of fill, then St. Johns soil, an organic sandy layer, which can be hydric if inundated for more than thirty days in a year. It was impossible to determine whether this specimen was hydric, because this surface had been disturbed and filled. The third boring was taken just off the pad, but still in the cleared area. It yielded about nine inches of sandy fill and Samsula muck below, similar to the first boring, and clearly a hydric soil. St. Johns fine sand also appears on the site in a USDA soil conservation map of Orange County. The map is a good guide, but cannot be relied upon without ground tests in specific sites as the scale on the map is 1 to 20,000. Although distinct soil zones are indicated, in fact there are transitional areas between soil types in the zones, which means that in a transitional zone there may be either wet or dry areas. It would be virtually impossible to determine the soil type prevalent in Mrs. Vatalaro's cleared half acre, without the borings. DER properly concluded that it has jurisdiction over the site. Petitioner's expert, William Dennis, concedes that most of the Vatalaro property is within DER's jurisdiction, including a substantial portion of the cleared area, most notably the 43 by 100 foot cleared finger extending south from the cleared area designated for the house. In performing his jurisdictional analysis, Dr. Dennis concentrated on the cleared area. He did not complete transects. He counted and measured trees, and with the aid of a compass, sited them on a chart, received in evidence as Petitioner's exhibit #13. Within the cleared area he found a predominance of pines, and upland species (71%) and some submerged and transitional species (4.8% and 24.2%, respectively). This, he concluded, failed the jurisdictional test described in paragraph 7, above. Dr. Dennis also examined the aerial photographs and determined there was a vegetation break extending approximately 30 feet into the thicket from the northwest corner of the cleared area. He counted and measured trees in that area and found 14.8% submerged species, 35.4% transitional species, and 49.8% upland species. That area failed the jurisdictional "A" test because the submerged species did not outnumber the upland species present. Extrapolating from this finding, he concluded that the upper part of the cleared area designated for placement of the house, is outside of DER's jurisdiction. This conclusion is unreliable. The aerial photographs, particularly the pre-clearance photographs from 1984, are not crisp and clear. It is also possible that in looking at an aerial photograph, the tallest trees, the pines, would overshadow the other species which are also four inches or greater in diameter breast height (DBH) and are, therefore, equally significant. Rule 17.4.022(1)(c), F.A.C. provides that belt transects be used when the line demarcating the landward extent of waters of the state cannot be determined visually or by photo interpretation. DER, but not Mr. Dennis, relied on belt transects. Rule 17.4.022(I)(d), F.A.C. provides that other methods may be used as long as the department and applicant both agree in writing, to the method used. DER did not agree with Dr. Dennis' method. Counting trees in an area that has been disturbed is not a reliable means of establishing what existed prior to clearance when substantial evidence suggests that the clearing left the pines but eliminated the predominant submerged and transitional species. Section 403.8171(5), F.S. provides a "back-stop" to the vegetative jurisdictional determination by providing that "...in no case shall [the landward extent of the waters of the state] extend above the elevation of the 1- in-10-year recurring flood event or the area of the land with standing or flowing water for more than 30 consecutive days per year calculated on an average annual basis, whichever is more landward." The petition in this proceeding raised the issue of the jurisdictional backstop but the application and evidence at a hearing fails to include sufficient information to substantiate that this alternative applies. Generally, a study would be required, and the applicant has not provided such. The Merits of the Application The wetland contiguous to Lake Rouse, within which the Vatalaro property is located, comprises approximately 20 acres. It is the only mature forested wetland of its quality within a large region of east Orange County. This wetland provides a filtration function contributing to the water quality of Lake Rouse and to the waters of the region. The Lake Rouse wetland also provides flood abatement capacity via its soil and plants. The effects of the loss of this capacity in other severely impacted wetlands along the State Road 50 corridor have become evident. The altered areas are no longer able to provide water holding capacities. Wildlife which are residents of the area and which use the area as a stopover will be impacted by alteration of the habitat which they currently rely upon for food, cover, nesting and resting. Examples of those wildlife are ducks and other birds, raccoons, deer and opossums. Even though the proposed project will comprise only 1/2 to 3/4 an acre of the wetland, the impact is significant considering the unique quality of the wetland. Dr. Dennis agrees that alteration of the site would change the habitat value of the area and would impact the functions of the wetlands. He argues, however, that the effects of this project are minimal compared to the development which has already occurred in surrounding areas. Although the applicant has a building and septic tank permit and a Corps of Engineers permit, the regulations for those permits are not the same as the balancing criteria which DER must consider. The Orange County Planning and Environmental Protection Departments recommend denial of the project. No evidence was presented with regard to mitigation proposed or agreed to by the applicant.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a Final Order be entered denying the application for fill permit. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, 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 26th day of May, 1989. COPIES FURNISHED: Michael D. Jones, Esquire 996 Westwood Square Suite 4 Oviedo, Florida 32765 Vivian F. Garfein, Esquire Department of Environmental Regulation Twin Towers Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether the proposed Walden Chase development (the "Project"), is consistent with the standards and criteria for issuance of an Environmental Resource Permit ("ERP") as set forth in Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.
Findings Of Fact The Project The Project will allow construction and operation of a proposed surface water management system ("System") designed to serve a 258-acre residential community and an adjacent 21-acre commercial out parcel (the "Project"). The Project is part of a larger proposed development, the "County Road 210 PUD," that contains additional areas that are not owned by Walden Chase and are not part of the Project. The Project is located east of U.S. 1, a federal highway with average daily traffic of 16,500 cars per day; along the western boundary is light residential development. The northern boundary of the property is County Road 210, with daily traffic of about 8,500 cars per day. To the south is Nease High School, and to the east is Quail Ridge Farm subdivision ("Quail Ridge"), a major development, and Christ Episcopal Church. The Project property is bifurcated by a major overhead power line, including an associated fill road which runs through the middle of the property. The Project consists of approximately 565 homes, a recreation area (including ball fields) located in the center of the Project, and the System. The Project is being developed by Walden Chase Developers, Ltd., a limited partnership formed in 1999 for the purpose of developing the Project. The budget for the Project is $16,000,000, which is being financed through investors, equity, and an acquisition and development loan. Raymond O’Steen, president of Walden Chase’s Managing Partner, Florida First Coast Development Corporation, testified that he is responsible for ensuring that the Project is constructed in compliance with the Permit conditions. To ensure such compliance, he will supervise construction, hire professional engineers to make monthly inspections, and cooperate with agency staff inspecting the Project. During construction, all construction equipment will be maintained to ensure that no oils and greases will be discharged into wetlands. The long-term maintenance entity will be the Walden Chase Homeowners Association, Inc. (the "HOA"). The HOA has authority to: (i) operate and perform routine custodial maintenance of the surface water management system; (ii) establish rules and regulations; (iii) assess the cost of operation and maintenance, and enforce the collection of such assessment; and (iv) exist in perpetuity. If the HOA is dissolved, then operating responsibility will be transferred to a suitable entity acceptable to the District. Walden Chase has entered into an agreement with the owner of the 21-acre commercial out parcel (which is to be served by the System), whereby the owner of that outparcel will pay a pro-rata share of the operation and maintenance costs. Cross-easements have been recorded to that effect. The outfall from the storm water management system is through a ditch to the east of the Project. Walden Chase has legal authority to use that ditch. The ditch will be maintained by HOA. No septic tanks are planned for the Project. The Surface Water Management System The System is primarily a wet detention type of storm water treatment system, composed of a series of interconnected lakes that discharge at the southeastern portion of the property. Wet detention systems contain ponds with permanent pools of water with structures limiting discharge from the System so that pollutants from the storm water gradually settle out. The System was designed to capture 2.5 inches of runoff from the impervious area. The receiving bodies of water for the System are Twelve Mile Swamp and Durbin Creek, which are classified as Class III waters, pursuant to Rule 61-400, Florida Administrative Code. Neither Durbin Creek nor Twelve Mile Swamp are classified as Outstanding Florida Waters, pursuant to Rule 62-4.242(2), Florida Administrative Code. The System does not discharge to a land-locked lake. The System is designed to accommodate a 25-year/24-hour storm. The System is designed to provide replacement storage within 14 days following a storm event. The System is not located within a 10-year flood plain, nor within a flood way. The System has been designed so that it will not cause a reduction in the 10-year flood plain, nor will it cause a net reduction in flood conveyance capabilities within a flood way. To ensure that the System will not cause sediment transport, the outfall ditch is lined with concrete, and a sediment pond will be constructed at the end of the ditch to collect any type of sand or silt. Additionally, the banks of the System will be stabilized and will be seeded and mulched to prevent erosion. A detailed erosion and sediment control plan has been incorporated in the design, including the use of silt fencing and hay bales during construction. The parties stipulated that: excluding backyard swales and the diversion of storm water from Quail Ridge subdivision . . . the system is designed in accordance with Rule 40C-42.026(4), Fla. Admin. Code, the design criteria for wet detention systems. In addition to the wet detention component of the System, water quality treatment is provided by draining storm water run-off from the backyards, across vegetative natural buffers, and then into wetlands. The width of vegetative natural buffers needed to provide the required water quality treatment was calculated using the District's required methodology. Based on these calculations, vegetative natural buffers of a minimum of 15 feet and an average of 25 feet are provided around all wetlands which will remain on site. On two wetlands, larger buffers of 25.65 feet will be provided to ensure adequate water quality treatment. These buffers are consistent with the calculated requirements for vegetative natural buffers. Diversion of Surface Waters The run-off from approximately 47 acres currently discharges onto the Walden Chase property from Quail Ridge, the subdivision located to the east of the Project. Currently, the water discharges from the Quail Ridge storm water treatment pond into a ditch located in the power line easement which bifurcates the Walden Chase property. Under current conditions, the Quail Ridge pond does not discharge into the wetland systems on-site. After development, the Quail Ridge discharge will be diverted into a large wetland system on-site which extends over and onto Petitioner’s property ("Wetland 8"). This diversion will replace surface water from 42 acres that currently discharge into Wetland 8, but after development, will be re-routed through the Project's System. The run-off volume directed to Wetland 8 will be approximately the same after development as pre-development conditions. The surface water hydrology of the wetland system will also be maintained. The diversion of the Quail Ridge discharge does not require modification of the Quail Ridge storm water system, but rather, only modification of the drainage patterns on the Project site. The diversion will provide flood control benefits to Quail Ridge because the outfall from the Quail Ridge storm water treatment pond will be improved. Even if the diversion were not to take place, there will be no adverse impacts to the hydrology of Wetland 8 because that wetland is primarily hydrated through groundwater sources. If the diversion were not to take place, Walden Chase would monitor Wetland 8 to ensure that the hydrology was not adversely affected, and institute appropriate remedial measures if necessary to protect its functions and values. The System will also divert some surface waters that currently drain into other wetlands located on the Project site. The diversion will redirect the flow of water into treatment ponds to meet the ERP Criteria for water quality treatment. The run-off from portions of the houses and the back yards will continue to drain into the wetlands. The impacts from any diversion should be minimal because the wetlands are primarily hydrated through rainfall and the presence of groundwater under the wetlands. To ensure that the diversion will not significantly adversely affect the wetlands, Walden Chase will monitor the wetlands on-site; if there is significant adverse effect experienced, then Walden Chase will undertake appropriate remedial action. Diversion of Groundwater The wetlands which will remain after development are primarily hydrated by on-site groundwater, which is part of the area-wide surficial aquifer groundwater system. The soil types on the property indicate that it is not an aquifer recharge area, so no adverse impacts to aquifer recharge are anticipated. Additionally, due to the characteristics of the proposed residential development, water will be able to percolate into the soil, and thence into the groundwater. For these reasons, there will not be a significant adverse impact to the groundwater source for the wetlands. Walden Chase is undertaking additional measures to ensure the System will not adversely draw down groundwater. Two of the storm water facilities near wetlands were lined with clay materials to ensure they would not lower the groundwater elevations below the wetlands. Groundwater will not be lowered more than an average of three feet across the site nor more than five feet at any one location. Of particular concern to Petitioner were possible effects to the hydrology of Wetland 8, a large wetland system that extends onto her property. However, the source of seepage to Wetland 8 is primarily a groundwater source, not surface water. Rainwater percolates through the ground and then travels laterally through the soil to the seepage slope. The Project will not significantly reduce the groundwater source because the percolation area is to be maintained. Water Quantity In permitting wet detention-type systems, the maximum flow of water discharged (the "peak rate of discharge") from the system is analyzed to ensure that the natural drainage conveying water off-site is not overtaxed. Under pre-development conditions, the peak rate of discharge from the Project site is 52 cubic feet per second. After development, the peak rate of discharge will be 49 cubic feet per second. The post-development peak rate of discharge will not exceed the pre-development peak rate of discharge. The Project roads have been designed to be flood-free, pursuant to the requirements of the applicable St. Johns County regulations. The first floor elevations of buildings will be located above the 100-year flood elevation, as is required by St. Johns County. The Project is not located on a water course. The upstream drainage area for the Project is significantly less than five square miles. Water Quality Before discharge, storm water from the Project is treated by the wet detention system and the vegetative natural buffers. The wet detention system slows water to allow time for pollutants to settle out. Also, treatment processes are provided through "nutrient uptake" by resident algae that live in the ponds, and by adsorption and oxidation of pollutants on the pond slopes and bottom. The proposed vegetative natural buffers treat the run-off from the back yards prior to discharge into wetlands. The District has determined that the storm water treatment system for Quail Ridge is not currently in compliance with the District's design criteria, but no evidence was presented that the quality of discharge from Quail Ridge is out of compliance with water quality standards. To ensure that the water diverted from Quail Ridge into Wetland 8 complies with state water quality standards, Walden Chase will undertake a three-step analysis. First, if the Quail Ridge storm water system is brought into compliance with its design, then the water quality being discharged from the system will presumptively meet water quality standards and the diversion can take place. Second, if the Quail Ridge system is not brought into compliance with the design criteria, then Walden Chase will sample the water quality of water discharging from Quail Ridge: if that water meets water quality standards, then the diversion can take place. Third, if the Quail Ridge system is not in compliance and the water quality discharging from that system does not meet water quality standards, then the diversion will not take place. In that instance, the currently existing discharge will be maintained until water quality standards are met, and Wetland 8 will be monitored to ensure that the surface water diversions caused by the Project will not adversely affect that wetland. Environmental Considerations The Project site includes pine flatwoods, scrubby flatwoods, sandhills, pine plantations, cypress swamp, wet pine flatwoods, two borrow pits, and several drainage ditches. The wetlands on site total 34.57 acres. There are also 1.27 acres of upland-cut drainage ditches, a 3.9 acre borrow pit, and a 0.18-acre borrow pit adjacent to Wetland 5. The following wetlands and drainage ditches will be preserved or otherwise not be disturbed by the Project: 1, 3, 4, 8, 9, 13, 15, 16, and 17. A total of 29.29 acres of wetlands will be preserved through imposition of a conservation easement, and 1.94 acres of wetlands will remain undisturbed. None of the wetlands on site are high quality. The following wetlands and other surface waters are of low or marginal quality or do not otherwise require mitigation of impacts: 10, 14, 18, 20, and 21. With the exception of three areas (the 3.9-acre borrow pit, the 0.18-acre borrow pit adjacent to Wetland 5, and a small borrow pit within Wetland 8), the wetlands on site are all "ephemeral," meaning that they dry-up periodically during the year. Wetland Impacts Certain of the wetlands are considered "isolated," which means that they are completely surrounded by uplands. In considering impacts to isolated wetlands, the District rules distinguish between isolated wetlands of less than 0.5 acres and those 0.5 acres or larger. Isolated wetlands of less than 0.5 acres are: Wetlands 2 (0.02 acres); 5 (0.37 acres); 10 (0.01 acres); 11 (0.3 acres); 12 (0.14 acres); and 14 (0.04 acres). All of these isolated wetlands are proposed to be impacted by the Project (D Ex 10). Isolated wetlands of 0.5 acres or larger are: Wetlands 1 (1.52 acres); 3 (1.06 acres); 4 (7.51 acres); 6 (0.5 acres); 9 (5.52 acres); and 15 (1.12 acres). Of those wetlands, only isolated Wetland 6 (0.5 acres) is proposed to be impacted. The other wetlands on-site are considered contiguous. These are: Wetlands 7 (1.04 acres); 8A (1.81 acres); 8 (13.7 acres on site); and 13 (0.01 acres). Of these, Wetlands 7 and 8A will be impacted for a total of 2.85 acres. The following are not truly wetlands, but rather are upland cut drainage ditches: 16 (0.02 acres); 17 (0.12 acres); 18 (0.07 acres); 19 (0.25 acres); 20 (0.06 acres); and 21 (0.06 acres). Of these, the following will be impacted by the Project: 16, 18, 19, 20, and 21. Alterations in upland cut drainage ditches are not required to comply with the criteria related to fish, wildlife, or listed species and their habitats unless they provide significant habitat for threatened or endangered species. Wetlands Functions All of the wetlands and uplands have been impacted in part by land management activities on the site and adjacent sites. For example, the site has been extensively logged, borrow pits have been constructed, and the Quail Ridge subdivision severed Wetlands 5, 6, 7, and 8A from a formerly large wetland area that extended into the Quail Ridge site. The power line and its associated road and the construction of the Quail Ridge subdivision altered the hydrology of Wetlands 5, 6, 7, and 8A. All of these alterations were completed prior to existing District rules requiring a permit prior to construction of a surface water management permit became effective on December 7, 1983. For the isolated wetlands less than 0.5 acres in size which will be impacted (Wetlands 2, 5, 10, 11, 12, and 14), the following unrebutted testimony was provided: (i) the wetlands are not used by threatened or endangered species for more than an incidental use; (ii) the wetlands are not located in an area of critical state concern; and (iii) the wetlands are not connected by standing or flowing surface waters at seasonal high water levels to one or more wetlands. These isolated wetlands less than 0.5 acres in size are of minimal value to fish and wildlife, when considered individually and cumulatively. The impact to these isolated wetlands are considered de minimus, based upon the disturbed condition of these wetlands and their use by limited members of animal species. Petitioner’s expert MacDonald opined that Wetlands 2, 5, 11, and 12 were of more than minimal value, although she admitted Wetlands 2 and 11 were not as important as other wetlands on the site. However, the mitigation plan compensates for whatever functional value these wetlands may provide. The major wetland impacts are to Wetlands 6, 7, and 8A. Wetland 6 is a lower quality wetland which provides some forage habitat for wading birds and mammals that may stray through, and some breeding habitat for amphibians. Wetland 6 may provide some minimal value or less-than-minimal value to wood storks that may incidentally use the wetland, and no value for the Florida Black Bear. Wetland 7 is a lower quality wetland due to the adjacent ditch, roadway, trail road, and power line easement. Wetland 7 may provide breeding habitat for some frogs, but not for gopher frogs. It may provide for foraging, cover, breeding, nesting and perching for other animal species. Wetland 8A may provide breeding habitat for gopher frogs and foraging, cover, breeding, nesting, and perching areas for other animals. It is not a habitat typically suited for forage habitat for wood storks. Upland cut drainage ditches to be impacted are 16, 18, 19, 20, and 21. These are considered to be low quality. The 3.9-acre borrow pit and the 0.18-acre borrow pit provide minimal functional value. Gopher frogs (a Species of Special Concern) may breed in the 0.18-acre borrow pit. The larger borrow pit supports a fish population but does not have sufficient shallow water areas for forage or draw down ability to concentrate fish. The smaller borrow pit does not have a fish population and does not appear to have suitable forage areas. Petitioner testified that on one occasion she saw wood storks (an endangered species) on the Walden Chase property in the power line easement near Wetlands 7 and 8A. She also saw Little Blue Herons (a Species of Special Concern) use the 3.9 acre borrow pit more than once. She also saw a Sherman's Fox Squirrel (a Species of Special Concern), Snowy Egret (a Species of Special Concern), and Bald Eagle (a Threatened Species), but she did not specify where or when she saw those animals or how frequently. Petitioner's daughter saw a Florida Black Bear (a Threatened Species) one time near the power line on the Walden Chase property about four years ago. However, there was no evidence that these animals use the wetlands for nesting or denning or that the wetlands on the Walden Chase property provide critical habitat for these animals. Petitioner's expert MacDonald testified that the site is not used for nesting or denning of these and other species. Any use of the wetlands on-site by threatened or endangered species would be incidental because the habitat on-site is not the type typically used by such species. Any impacts to these species would be offset by the mitigation plan. All parties agreed that gopher frogs may be present on-site and may use some of the wetlands on-site for breeding habitat. However, impacts to gopher frogs will be mitigated through Walden Chase’s plan to relocate all gopher frogs to an approved site. The relocation plan has been approved by the Florida Fish and Wildlife Conservation Commission. Any gopher frogs which escape this relocation effort will still be able to use the wetlands remaining on the site for breeding purposes. Wetland Mitigation To mitigate for anticipated impacts to wetland functions, Walden Chase will create 3.8 acres of new wetlands, preserve 29.39 acres of wetlands, and preserve 5.64 acres of uplands. Wetlands will be created adjacent to Wetlands 8 and 4. The creation areas are currently typical pine plantation, an abundant land form in the area. The wetland and upland preservation areas will be encumbered by a conservation easement subject to the provisions of Section 704.06, Florida Statutes. The mitigation ratios offered are consistent with the District’s past practice and within the District’s rule guidelines. The mitigation is to be conducted on-site. The mitigation is viable and sustainable. Allegations that the mitigation offered is "poor" because it does not preserve adjacent uplands is in error because the preserved wetlands remaining are surrounded by upland buffers, except for a road-crossing in Wetland 8A. The road-crossing is considered a secondary impact, off-set by additional mitigation. The proposed mitigation will off-set the adverse impacts to wetland functions caused by the Project. The functional values lost by the Project will be replaced. The conservation easement will preserve portions of the property, keeping those portions in their existing condition in perpetuity. Permit conditions have been imposed to ensure success of the creation areas. A monitoring and maintenance program will be undertaken to assure success. Mitigation Costs The mitigation, including monitoring and maintenance, is expected to cost between $81,287 and $112,800. Walden Chase will ensure that the funds to complete the mitigation are available by funding an escrow account for that purpose. The escrow account will be established at 110 percent of the contracted amount for such work. Reduction and Elimination Walden Chase considered alternative designs which would reduce or eliminate the impacts to Wetlands 6, 7, and 8A. Wetland 6, as a 0.5 acre isolated wetland, will be impacted for the construction of Lake 5 (part of the storm water management system). Reconfiguration of Lake 5 to avoid impact to Wetland 6 would result in a loss of seven residential lots (at a cost of approximately $280,000) and increased construction costs (of $46,800), for a total increase of $326,000. The alternative is not practicable because the benefits to be achieved by preservation of Wetland 6 do not warrant the cost of avoidance. Wetland 7 is being impacted to construct ballfields which are part of the recreation park located in the center of the Project. Moving the ballfields to an alternative location would result in a loss of approximately 15 residential lots (at a cost of $525,000) and would require construction of additional supporting facilities (at a cost of $150,00), for a total cost of $675,000. Wetland 7 is a medium quality wetland that has been previously drained, and is not a pristine wetland. The alternative is not practicable because the environmental benefits would be very small compared to the costs of relocating the facilities. Wetland 8A is being impacted by construction of a road-crossing and a storm water pond (Pond 3). The road-crossing is required to connect the various areas in the Project and the various land uses in the CR 210 PUD. The road-crossing is unavoidable, and crosses the wetland at the narrowest location. There is no practical alternative to relocating Pond 3 because that relocation would require use of pipes that would be too large to install in the ground. Two other alternatives were considered: (i) relocating the pond and discharge through Wetland 8 (at a cost of $1,600,000); and (ii) moving the pond immediately south of Pond 3 and losing 13 lots (at a cost of $450,000). Wetland 8A is a medium quality wetland. The alternative is not practicable because the environmental benefits to be achieved compared to the cost were not reasonable. The District provided unrebutted testimony that a reduction and elimination analysis would not be required for the isolated wetlands less than 0.5 acre in size. Further reduction of Wetland impacts will be achieved by lining storm water Ponds 3 and 4, which are adjacent to wetlands. Wildlife Utilization The potential exists for secondary impacts to wildlife utilization in wetlands crossings located adjacent to Wetland 1 and into Wetland 8A. However, except for those areas, upland buffers of a minimum width of 15 feet and an average width of 25 feet are provided abutting the Wetlands that will remain on-site. The wetland mitigation plan offsets any wetland functions and values lost through those impacts. With regard to whether the Project will adversely impact adjacent uplands which are used by aquatic and wetland-dependent animal species that are listed in Table 12.2.7- 1 of the Applicant’s Handbook, the uplands are not used for nesting or denning by any of the species listed. Historical and Archaeological Resources There will be no adverse impact to significant historical or archaeological resources. There are no such resources on the site. Additionally, the Permit conditions require that if any such resources are discovered during construction that work be halted, and the District be notified. Future Phases Potential secondary impacts of the Project are wetland impacts which could potentially result from future phases of the Project. Walden Chase and the District presented an unrebutted analysis of a future phase of the CR 210 PUD that could potentially impact a portion of Wetland 8, which is located off the Walden Chase property. The potential wetland impact would be a 0.6-acre road-crossing required by the local government in order to connect portions of the CR 210 PUD. Conceptually, the 0.6-acre impact could be mitigated by preservation of wetlands and uplands on the tract of land served by the road-crossing. However, the additional phase could be constructed in a way consistent with the District rules that would not result in secondary impacts to wetlands or water quality. ERP Criteria In order for an applicant to obtain an ERP from the District, an applicant must provide reasonable assurances that construction and operation of the proposed surface water management system comply with the criteria enunciated in Rules 40C-4.301 and 40C-4.302, Florida Administrative Code. The Applicant’s Handbook adopted in Rule 40C-4.091, Florida Administrative Code, provides clarification of these rules. Section 10.2.1 of the Applicant’s Handbook establishes a presumption that construction and operation of a surface water management system will meet certain rule criteria if certain conditions are met. These conditions are met because: (i) the post-development peak rate of discharge (49 cubic feet per second) does not exceed the pre-development rate of discharge (52 cubic feet per second); (ii) no calculations are required regarding volume of discharge because the system does not discharge to a land-locked lake, nor are any special basin criteria adopted for the area; and (iii) flows of adjacent streams, impoundments or other water courses will not be decreased so as to cause adverse impacts. Having satisfied these four conditions, the following rule criteria are presumably met: Construction and operation of the System will not cause adverse water quantity impacts to receiving waters and adjacent lands. § 40C-4.301(1)(a), Florida Administrative Code; Construction and operation of the System will not cause adverse flooding to on-site or off-site property. § 40C-4.301(1)(b), Florida Administrative Code; and Construction and operation of the System will not cause adverse impacts to existing surface water storage and conveyance capabilities. § 40C-4.301(1)(c), Florida Administrative Code. Rule 40C-4.301(1)(d), Florida Administrative Code, requires that construction and operation of the System will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. A four-part test for satisfying any secondary impacts for the System affecting this criterion is described in Section 12.2.1 of the Applicant’s Handbook. A potential adverse secondary impact exists for the disturbance of the wetlands by use of adjacent uplands (e.g., horses, dogs, cats, etc.). However, pursuant to Section 12.2.7 of the Applicant’s Handbook, these impacts are not considered adverse if upland buffers of a minimum of 15 feet, an average of 25 feet, are provided. No aquatic and wetland-dependent species use the uplands on the site for nesting and denning and therefore it is presumed that no adverse secondary impact to those species will occur. There will be no adverse impact to significant archeological and historical resources and therefore it is presumed that no adverse secondary impact to those species will occur. The future phase of the CR 210 PUD is not part of the Project nor is it being developed by Walden Chase. However, for purposes of permitting, wetland impacts on that phase could be considered potential secondary impacts of the Project. Walden Chase and the District presented unrebutted testimony that the future phase of the CR 210 PUD could be constructed so as not to adversely impact wetlands or water quality, and therefore it is presumed that no adverse secondary impacts will occur as a result of that phase. The potential secondary impact for the road-crossing in Wetland 8A would not result in adverse impacts to wetlands or water quality. The potential secondary impact for the road-crossing in Wetland 8A was considered as part of the other impacts to that wetland, and as part of the wetlands impact onsite are offset by the mitigation plan. Additionally, the values and functions of the wetland impacts are off-set by the mitigation plan. Consequently, the criterion contained in Rule 40C-4.301(1)(d) has been satisfied. Rule 40C-4.301(1)(e), Florida Administrative Code, requires that construction and operation of the System will not adversely affect the quality of receiving waters so as to violate state water quality standards. This criterion is presumed met if the System is designed and constructed in accordance with Chapter 40C-42, Florida Administrative Code; and Section 10.7.2, Applicant’s Handbook. The parties have stipulated that this condition has been met for all portions of the System except: (i) the diversion from Quail Ridge into Wetland 8; and (ii) the discharge of storm water from back yards through vegetative natural buffers. With regard to the diversion from Quail Ridge, Walden Chase has agreed to refrain from diverting that discharge until water quality standards are met, assuring that the diversion will not violate these standards. With regard to the vegetative natural buffers, those buffers have been calculated to be large enough to provide the required level of storm water treatment. Consequently, the criterion contained in Rule 40C-4.301(1)(e) has been satisfied. Rule 40C-4.301(1)(f), Florida Administrative Code, requires that construction and operation of the System will not cause adverse secondary impacts to the water resources. Water quality discharging from the System will presumptively meet water quality standards because the System is designed in accordance with the provisions of Chapter 40C-42, Florida Administrative Code. No diversion of water from Quail Ridge to Wetland 8 will be allowed if water quality standards are not met. The vegetative natural buffers provide water quality treatment for water discharging into the wetlands. Therefore, there will be no adverse secondary impacts to the water quality of the water resource. Additionally, Walden Chase has provided reasonable assurance that there will be no adverse impact to groundwater resources by lining those storm water ponds necessary to prevent draw-down of wetlands, and by ensuring that water will continue to percolate into groundwater sources. There will be no adverse impact to aquifer recharge. Consequently, the criterion contained in Rule 40C-4.301(i)(f), Florida Administrative Code, is satisfied. Compliance with Rules 40C-4.301(1)(g), (h), and (k), Florida Administrative Code, has been stipulated to by the parties. Rule 40C-4.301(1)(i), Florida Administrative Code, requires that construction and operation of the System will be capable of being performed and of functioning properly. The System is a very simple, low-maintenance system that is expected to perform well. Consequently, the criterion contained in Rule 40C-4.301(1)(i) has been satisfied. Rule 40C-4.301(1)(j), Florida Administrative Code, requires that construction and operation of the System will be performed by an entity with the financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms of the permit. Walden Chase has designated the HOA as the operation and maintenance entity. In conformance with Section 7.1.2 of the Applicant’s Handbook, Walden Chase has submitted Articles of Incorporation, draft revisions to those Articles of Incorporation, and Covenants and Restrictions which provide sufficient powers to the HOA to operate the System, establish rules and regulations, assess members for associated costs, contract for services, and exist in perpetuity. Walden Chase will also establish an escrow account in the amount of 110 percent of the cost of mitigation for the purpose of establishing the financial responsibility for the mitigation, monitoring, and corrective action for wetland mitigation work. Consequently, the criterion contained in Rule 40C-4.301(1)(j), Florida Administrative Code, is satisfied. Rule 40C-4.301(2), Florida Administrative Code, and Section 12.2.4.5 of the Applicant’s Handbook set forth special requirements that are to be applied if an applicant is unable to meet water quality standards because the ambient conditions in the receiving body of water are below water quality standards. As set forth above, Walden Chase has provided reasonable assurances that water quality standards will not be violated. Consequently, the criterion contained in Rule 40C-4.301(2), Florida Administrative Code, is satisfied. Rule 40C-4.302(1)(a), Florida Administrative Code, requires that the District balance seven factors to determine whether construction and operation of the System will be contrary to the public interest. The public health, safety, and welfare factor is considered neutral because: (i) the System will not impact off-site properties; (ii) flood levels are controlled; and (iii) water flows are maintained. The factor related to conservation of fish and wildlife, including endangered or threatened species or their habitats is considered neutral because adverse impacts to those functions are offset by the mitigation plan. The factor related to erosion, navigation, the flow of water, and shoaling is considered neutral because an effective erosion control plan is in place, and no harmful effects are anticipated to navigation or the flow of water or as a result of shoaling. The factor related to fishing or recreational values and marine productivity in the vicinity of the activity is considered neutral because the mitigation would off-set any adverse impact. The factor related to significant historical and archaeological resources is considered neutral because none are anticipated to be on-site. The factor related to the current condition and relative functions being performed by areas affected by the proposed activity is considered neutral because the current condition and relative values of wetlands will be maintained. The System will be permanent, a condition which is considered neutral in balancing the public interest because any adverse impacts are off-set by the mitigation plan. On balance, the Project is not contrary to the public interest. Consequently, the criterion contained in Rule 40C-4.302(1)(a), Florida Administrative Code is satisfied. Rule 40C-4.302(1)(b), Florida Administrative Code, requires that construction and operation of the System will not cause unacceptable cumulative impacts. Such an analysis asks the question whether the proposed system, considered in conjunction with past, present and future activities in the drainage basin, would be the "straw that breaks the camel’s back" with regard to water quality, wetland, and other surface water functions. The mitigation for wetlands impacts is being conducted on-site and adequately off-sets any adverse impacts. If all projects in the same drainage basin undertook similar mitigation for the same type of wetland impacts, there would be no adverse cumulative effect. As attested by Petitioner’s expert, there will be no cumulative loss occurring on site. Consequently, the criterion contained in Rule 40C-4.302(1)(b), Florida Administrative Code, is satisfied. Rule 40C-4.302(1)(c), Florida Administrative Code, establishes additional criteria for Projects located in adjacent or in close proximity to certain classified waters. The parties have stipulated that the Project is not so located. Consequently, this criterion has been satisfied. Rule 40C-4.302(1)(d), Florida Administrative Code, requires certain conditions for projects which constitute vertical sea walls. The parties have stipulated that the Project does not contain vertical sea walls. Consequently, this criterion has been satisfied.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that a final order be entered granting the requested permit in accordance with the agency’s proposed agency action. DONE AND ENTERED this 1st day of September, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 1st day of September, 1999. COPIES FURNISHED: Deborah Andrews, Esquire 11 North Roscoe Boulevard Ponte Vedra Beach, Florida 32082 David J. White, Esquire Suite 100 4804 Southwest 45th Street Gainesville, Florida 32068 Veronika Thiebach, Esquire Mary Jane Angelo, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 John G. Metcalf, Esquire Pappas, Metcalf, Jenks, Miller & Reisch Suite 1400 200 West Forsyth Street Jacksonville, Florida 32202 Marsha Parker Tjoflat, Esquire Rogers, Towers, Bailey, Jones and Gay, P.A. Suite 1500 1301 Riverplace Boulevard Jacksonville, Florida 32207 Henry Dean, Executive Director St. Johns River Water Management District Highway 100, West Palatka, Florida 32177
The Issue The issue to be determined is whether Petitioner Cargor Partners VIII – Long Bar Pointe, LLLP (“Cargor”) is entitled to an award of attorney’s fees pursuant to section 57.105, Florida Statutes (2017).
Findings Of Fact Notice On February 17, 2017, the attorney for Cargor sent Joseph McClash a letter on law firm stationary. In the first paragraph of the letter it states, “Please allow this letter to serve as notice of Cargor’s intent to seek relief pursuant to Section 57.105, Florida Statutes (the “Statute”) against you, individually as qualified representative, and the named Petitioner.” Cargor sent an email to McClash on February 28, 2017, reminding McClash that “the 57.105 deadline is March 10, 2017.” McClash referred to a motion for attorney’s fees that he received on or about March 13, 2017, but the motion was not shown to the Administrative Law Judge nor introduced into evidence. On April 5, 2017, the same day that McClash voluntarily dismissed the petition for hearing in DOAH Case No. 17-0655, Cargor filed with DOAH its motion for attorney’s fees under section 57.105. Contested Claims The renewal of a FDOW is governed by section 373.421(2), Florida Statutes, which states in relevant part that the FDOW shall be renewed “as long as physical conditions on the property have not changed, other than changes which have been authorized by a permit pursuant to this part, so as to alter the boundaries of surface waters or wetlands.” If the boundaries of wetlands or other surface waters have been altered without a permit, the FDOW cannot be renewed and an application for a new FDOW is required. The SWFWMD reviewer explained in a letter requesting additional information from Cargor: Please be advised that letters of exemption do not qualify as permits issued under Part IV of chapter 373, F.S. and therefore if work has been done on the site that has altered the wetlands or other surface water boundaries in association with a letter of exemption, a new formal determination application will be required. McClash claims Cargor did not qualify for the renewal of its FDOW because Cargor altered the boundaries of surface waters or wetlands on its property after the 2011 FDOW was issued and the some of the alterations were made pursuant to letter of exemption. In its February 17, 2017, letter to McClash, Cargor set forth six grounds for Cargor’s contention that McClash’s petition for hearing should be withdrawn. The first three grounds were described in Cargor’s letter as follows: The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, which is the subject of this Proceeding, does not authorize any construction activity. Consequently, no standing to challenge is or could be properly presented. There is no injury in fact and no one is in immediate danger of a direct injury from the issuance of the Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, as of the date and time of filing the Petition in this Proceeding. Consequently, no standing to challenge is or could be properly presented. The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, is not a permit, license, or authorization. Consequently, no standing to challenge is or could be properly presented by an association. These were issues of law and they were decided against Cargor in an Order dated February 28, 2017. The fourth and fifth grounds described in Cargor’s letter involve the central issue in the case: Changes in the land have been previously authorized by the Southwest Florida Water Management District (“SWFWMD”) pursuant to existing and final permits including (i) SWFWMD ERP No. 43040157.001, dated August 6, 2014, (ii) SWFWMD CONCEPTUAL ERP No. 49040157.002, dated September 4, 2015, (iii) SWFWMD ERP No. 4304157.003, dated March 31, 2016, and (iv) SWFWMD Notice of Qualification for Permanent Farming Exemption, dated August 30, 2016. Changes in the land are authorized by the identified permits and authorizations. All changes in the land have occurred pursuant to the identified permits and authorizations. Allegations to the contrary are simply false and are not supported by material facts. In 2015, Cargor was issued a “Conceptual ERP” permit, which describes, among other things, planned modifications to some agricultural ditches. However, the conceptual permit does not allow the commencement of construction activities. On August 30, 2016, SWFWMD issued to Cargo a Permanent Farming Exemption, pursuant to section 373.406(13), which authorized Cargor to excavate three agricultural ponds in uplands. In its application for the exemption, Cargor also proposed to modify some agricultural ditches. On March 31, 2017, SWFWMD issued Cargor an ERP Individual Construction Major Modification, which, among other things, authorized work in ditches. This permit was issued just before McClash’s voluntary dismissal and, therefore, could not have authorized the changes on Cargor’s property that McClash described in the petition for hearing. Before filing his petition, McClash consulted with a wetland scientist, Clark Hull, about the merits of McClash’s proposed challenge to the FDOW renewal. Hull gave McClash an affirmative response, but his input was speculative because it was based on assumptions and representations that Hull had not investigated. McClash consulted with another wetland scientist, Pamela Fetterman, who conducted an “aerial, desktop review of publically available Geographic Information Systems (GIS) data.” Fetterman described her initial review as an evaluation of potential undelineated wetlands and other surface waters. The Administrative Law Judge ruled that the delineation approved by the 2011 FDOW became final and could not be challenged by McClash. McClash then asked Fetterman to review changes in physical conditions on the property that occurred after the FDOW was issued. Fetterman produced a report (McClash Exhibit R-6), in which she opined that the changes to physical conditions on Cargor’s property “have a high likelihood of affecting the previously delineated landward extent of wetlands and other surface waters.” She stated further: [C]hanges in physical conditions of the property took place prior to issuance of the [FDOW renewal] as purported “exempt agricultural activities”, and include ditch dredging alterations to delineated other surface waters. . . . A Permanent Farming Request for Exemption Confirmation letter was applied for on August 23, 2016 for construction of these ponds and modification of existing ditches, some of which were determined to be jurisdictional other surface waters by the subsequently re-issued [FDOW]. At the final hearing on fees, neither McClash nor Cargor made clear to the Administrative Law Judge: (1) the physical changes to the property that were alleged to be authorized by permit, (2) the physical changes that were alleged to be authorized by exemption, or (3) any physical changes that were alleged to be unauthorized. The sixth ground described in Cargor’s letter is as follows: The picture attached to the Petition as set forth in Paragraph 9, and the stop work allegation set forth in Paragraph 10 are irrelevant and have no factual relationship to any issue in the proceeding. Since any changes in the land have occurred pursuant to identified permits and authorizations, the allegations are simply false and/or intentionally misleading. It is not a basis for an award of attorney’s fees under section 57.105 that an irrelevant photograph was included in a petition for hearing. Moreover, the aerial photograph in McClash’s petition was relevant in this case because it showed the physical conditions of Cargor’s property. In the petition, McClash states that Manatee County issued a stop work order on November 16, 2016, for construction activities commenced on Cargor’s property without a County- approved erosion control plan. This allegation also pertained to physical changes to the property. All evidence about physical changes was relevant in determining whether Cargor was entitled to renewal of the FDOW. Fees Cargor claims fees based on 48.4 hours of attorney time (Edward Vogler) at an hourly rate of $410, and 3.6 hours of attorney time (Kimberly Ashton) at an hourly rate of $385, for a total of $21,230.00. The fees Cargor is seeking include the hours spent on legal issues raised by Cargor that were rejected by the Administrative Law Judge. These fees amount to at least $1,025. See Cargor Exhibit 1, Invoice entries for February 20, 2017. Cargor’s attorney testified that the fees are reasonable. Cargor did not call an expert witness to corroborate the reasonableness of the hourly rate and the reasonableness of the hours expended.
Findings Of Fact On November 13, 1990, the St. Johns River Water Management District (SJRWMD) Governing Board voted to issue to the University of North Florida (UNF), a Management and Storage of Surface Waters (MSSW) permit #4-031-0359GM for the construction and operation of a surface water management system associated with road and parking lot construction on the UNF campus in Jacksonville. On the same day, the board also voted to issue water resource management permit #12-031-0007G authorizing dredging and filling in waters of the state related to said road and parking lot construction. Petitioners timely petitioned for hearing, challenging the SJRWMD decision to award the permits. Neither the standing of the Petitioners nor the Intervenor is at issue in this proceeding. The UNF campus contains approximately 1000 acres in Duval County, Florida, and lies completely within the jurisdiction of the SJRWMD. The UNF is an agency of the State of Florida, and has the apparent authority to make application for the referenced permits. The UNF campus is designated as a wildlife sanctuary. Of the 1,000 acres, wetlands constitute approximately 450 acres. Prior to development of the UNF campus, the property was utilized for silviculture, with pine trees farmed and harvested on the land. The property was and continues to be crossed by numerous logging roads and trails. During the 1970's extensive alterations occurred in the property related to local development activity. Swamps and stream flows were disrupted. Wetlands headwaters were altered by the construction of lakes. Adjacent highways and office developments were constructed, borrow pits were utilized, and wetlands were filled. There is some planted pine forest, generally no more than 40 years old, remaining on the UNF campus. Much of the UNF property remains undeveloped and consists of a variety of common habitat, including pine flatwoods, oak hammocks, and various wetlands. The existing UNF campus is crossed by a series of wetlands located generally north to south through the property. The wetlands include Sawmill Slough, Buckhead Branch, Boggy Branch, and Ryals Swamp. The water in the area flows to the southeast. Previous construction of UNF Drive required the crossing of Buckhead Branch and the filling of portions of Boggy Branch. The UNF now proposes to construct approximately .66 miles of three lane roadway across the southern portion of the campus to connect the existing UNF access drive into a loop (the "loop" road), approximately .34 miles of two lane roadway from a point on the loop into an upland area in the southeastern part of the campus (the "eastern connector"), pave an existing parking lot near UNF nature trails, and construct related surface and stormwater management facilities. The purpose of the loop road project is to enhance access around the UNF campus. The eastern connector will provide access to an undeveloped upland area of the campus. The expansion is related to and required by the anticipated continued growth of the University. The on-campus silviculture logging roads and trails, which remain from the pre-development period, have long been utilized by the UNF community as nature trails. The trails bisect a substantial part of the remaining undeveloped campus. In 1978, approximately 12 miles of trails were listed by the UNF with the United States Department of the Interior as National Recreational Trails, a national collected listing of recreational trails. These named trails, (the "maintained trails" as identified below, and the White Violet, Switchcane, and Turkey Trace trails) were marked by means of paint blazing and signs. In some locations, such markings, and at least one sign remain visible, even though the paint markings have not been repainted since the original blazing occurred. The UNF is fiscally unable to maintain all twelve miles of trail for general public use. The UNF concentrates maintenance and education efforts on three of the trails, the Blueberry, the Red Maple and the Goldenrod (hereinafter referred to as the "maintained trails"). The maintained trails, approximately 6 miles in total length, are signed and marked to provide clear and safe direction through the area. For public use, the UNF provides educational materials related to the maintained trails. Approximately 17,000 persons use the maintained trails annually. Two rangers are employed to supervise the maintained trails. In the most recent two year fiscal period, about $21,000 has been spent rebuilding and upgrading parts of the maintained trails. The UNF provides no security for the logging trails (hereinafter the "unmaintained trails") which are not part of the maintained trail system, and does not encourage the use of the old logging roads as trails. The proposed road construction project will adversely affect the use of the unmaintained trails because the road projects will intersect and overlap several of the trails. The evidence fails to establish that the UNF is without authority to amend, alter, relocate or abandon trails listed with the United States Department of the Interior as National Recreational Trails, or that notice need be provided to the Department prior to such action. There are additional recreational facilities available on the UNF campus, including two jogging trails, as well as a multi-sport facility in the north part of the campus. Approximately 10 total miles of trails exist (including the maintained trails and excluding the unmaintained logging trails). Persons who travel to the maintained trails by automobile currently park in an unpaved lot. The proposed roadway construction for which permits are being sought includes expansion and paving of the nature trail parking lot. This improvement will provide for better access to, and increased utilization of, the maintained trails and eliminate maintenance problems experienced in relation to the unpaved parking area. Notwithstanding the adverse impact on current use of the unmaintained logging trails, the project will enhance recreational development. Operation of the stormwater system, which will result in improved water quality discharged into the receiving waters, will not adversely affect recreational development. Although the recreational values of the impacted unmaintained trails will be adversely affected, on balance the additional access to the maintained trails and the recreational opportunities presented elsewhere on the UNF campus negate the impact on the unmaintained trails. Construction of the roadway will adversely impact portions of the Boggy and Buckhead Branches, which contains wetlands (as defined by, and under the jurisdiction of, the SJRWMD) and waters of the State of Florida (as defined by, and under the jurisdiction of, the Florida Department of Environmental Regulation, which has authorized the SJRWMD to review projects on the DER's behalf). The extent of the wetland impact was determined by the UNF and corroborated by the SJRWMD in an reliable manner. The wetlands impact areas are identified as follows: Area 1, at the upper margin of Boggy Branch, includes slash pine canopy and mixed bay trees; Area 2 is primarily second growth loblolly bay canopy, dense undergrowth, swamp. The loblolly is approximately 20 years old; Area 3 is a west flowing connection between Boggy and Buckhead Branches; Area 4, (the Buckhead Branch crossing), is bay canopy and bottomland hardwood. Areas 1, 2 and 4 will require filling for the construction of the loop road. Area 3 requires filling for the construction of the eastern connector. A total of approximately 2.3 total acres of forested wetlands are included within the impacted area. Of the 2.3 acres identified as wetlands for MSSW permitting purposes, 1.5 acres are classed as waters of the state for purposes of dredge and fill permitting. The wetlands are generally classified as fair to poor quality, although there is a limited wetland area classified as fair to good quality. The wetlands impact of the project on wetland dependent and off-site aquatic species would, without mitigation, be unpermittable. The loop road project includes three drainage areas. Accordingly to plans, drainage area #1 is served by curbs and gutters into storm sewers and discharging into wet detention pond E, drainage area #2 is served by curbs and gutters into storm sewers and discharging into wet detention pond F, and drainage area #3 is served by curbs and gutters discharging into a dry retention swale located adjacent to the road. Stormwater management and treatment for the eastern connector will be provided by a swale system located adjacent to the eastern connector. The western portion of the loop road and the newly paved nature trail parking lot will be separately served by a dry swale system and two retention ponds at the newly paved nature trail parking lot. Wet detention ponds retain the "first flush" stormwater runoff and discharge the water at a reduced rate through a "bleed down" structure. Pollutant removal occurs when first flush runoff is retained and mixed with additional water. Pond and soil organisms and littoral plants provide additional treatment. Such ponds are effective and require minimal maintenance, generally involving removal of nuisance species and cleaning of the "bleed down" structure. Oil skimmers will prevent the discharge of oils and greases from the site. The wet detention ponds have side slopes no steeper than a 4 to 1 horizontal to vertical angle and will be mulched or vegetated to prevent erosion. Dry retention facilities retain the "first flush" runoff and attenuate peak stormwater discharge. The water within the dry swale is filtered as it percolates down through the soil. Maintenance of dry swale systems requires mowing and removal of silt buildup. The design of the system provides that the post development peak rate of discharge will not exceed the pre-development peak rate of discharge for a 24 hour duration storm with a 25 year return frequency. The project will not cause a reduction in the flood conveyance capabilities provided by a floodway. The project will not result in flows and levels of adjacent streams, impoundments or other water courses being decreased so as to cause adverse impacts. The projects detention basins will provide the capacity for the specified treatment volume of stormwater within 72 hours following a storm event. The project is not located in and does not discharge directly to Class I or Class II waters, to Class III waters approved for shellfish harvesting, or to Outstanding Florida Waters. The receiving waters for the system are Boggy and Buckhead Branches, both Class III surface waters. Operation of the system will not cause or result in violation of state water quality standards for the receiving waters. The discharge from the system will meet Class III water standards. There is no evidence that operation of the system will induce pollution intrusion. The design and sequence of construction includes appropriate Best Management Practice provisions for erosion and sediment control, including silt barriers and hay bales. Such provisions are required by the SJRWMD permit conditions. Silt barriers will completely enclose the dredging locations. The bottoms of silt curtains will be buried and will extend 3.5 to 4 feet above the land surface. Slopes will be stabilized by sodding or seeding. The locations of the wet ponds and dry swales, nearby the roadways, will facilitate maintenance activities. Maintenance requirements are included within the SJRWMD permit conditions and are sufficient to ensure the proper operation of the facilities. Although the Petitioners asserted that prior violations of SJRWMD rules related to water quality discharge by the UNF indicate that the UNF is not capable of effectively and adequately operating and maintaining the system, the evidence establishes that the permit conditions are sufficient to provide for such operation and maintenance. The project also includes replacement of an existing culvert at a connection between Boggy and Buckhead Branches. The existing culvert is impounding water during the wet season. The replacement culvert will be installed at the connection floor elevation and will serve to restore the natural hydrology. The new culvert will also be substantially larger than the existing pipe, and can allow fish and wildlife passage under the road. In order to mitigate the impact of the project on wetland dependent and off-site aquatic species, the UNF has proposed to create a 6.3 acre freshwater forested wetland at a site contiguous to Buckhead Branch. The wetlands creation project includes 2.9 acres of submerged wetlands and 3.4 acres of transitional wetlands. Of the 6.3 acres, 4.1 acres of the created wetlands are designated to mitigate the adverse impacts related to the dredge and fill activities. The mitigation proposal constitutes a ratio of 2.7 acres of wetlands creation for every acre of wetland impact. The mitigation site is a low upland pine flatwood and mesic flatwood area surrounded on three sides by wetlands related to Buckhead Branch. The mitigation area will be scraped down to a suitable level and over-excavated by six inches. The elevation of the proposed wetland creation area is based upon water table data and surveying of the Buckhead Branch, located adjacent to the proposed mitigation area, which serves as the wetlands reference area. The UNF monitors surface and ground water elevation in the proposed mitigation area and in Buckhead Branch, and records rainfall amounts. The hydrology of the proposed wetland creation area is based upon the connections of the created wetlands with Buckhead Branch and is sufficient to assure an appropriate hydroperiod. The six inch over-excavation will receive muck soils removed from the impacted wetland areas. The subsurface soils in the wetland creation area are, because of the existing water table level, compatible with the wetland creation. The muck soil will naturally contain seeds and tubers of appropriate vegetation. Additionally, wetland trees, based upon trees in adjacent wetland areas, will be planted in the wetland creation. Prior to planting, the UNF will be required to submit an as-built survey demonstrating that the hydrology and elevation newly- created wetland is proper. The UNF proposal to monitor and maintain the created wetland includes physical and aerial examination of the site, which will be protected by a deeded conservation easement. The monitoring and maintenance plan will continue for three years. The mitigation effort must achieve a ground cover of not less than 80% to be considered successful. Nuisance species will comprise less than 10% of the site's vegetation, and excessive nuisance species will be removed. The UNF is required to periodically report the status of the site to the SJRWMD. The mitigation proposal is adequately detailed and sufficient to offset adverse impacts to wetlands resulting from construction and operation of the system and the dredge and fill project. The wetland creation permit conditions indicate that the wetlands will function as designed and approved by the SJRWMD. The wetland creation is greater in size than the impacted wetlands, will replace the habitat and function of the impacted wetlands and will offset the adverse impacts of the loss of existing wetlands. There will be no impact on any threatened or endangered animal species. The evidence that such species utilize impacted sites is limited. Existing utilization of the impacted site will be accommodated by the remaining wetlands and the created wetland mitigation area. There is no evidence that fish will be adversely affected by the project. Construction and operation of the system will not cause adverse changes in the habitat, abundance, diversity or food sources of threatened and endangered species or off-site aquatic and wetland dependent species. More than five years ago, a bald eagle, listed as endangered by the State of Florida, was observed perched on an upland tree in an area where a retention pond will be constructed. The eagle was not nesting or feeding at the time of observation. The closest known eagle's nest is more than four miles away from the site. None of the impacted area provides appropriate feeding ground for a bald eagle. Colonies of red-cockaded woodpeckers exist between one and one half to ten miles away from the UNF campus. Red- cockaded woodpeckers have been observed on the UNF campus but not in the vicinity of the areas to be impacted by the project. Red- cockaded woodpeckers habitat pine trees at least 50 years old. While the existing pine may provide red-cockaded woodpecker habitat in the future, the pine trees to be impacted by this project are not suitable habitat for red-cockaded woodpeckers at this time. There are no pines on the UNF campus which would currently provide suitable red-cockaded woodpecker habitat. Woodstorks have been sighted on the UNF campus, but not in the impacted area or the mitigation area. Woodstorks feed in areas dissimilar to the impacted areas, therefore there should be no impact on the species. Gopher tortoises have been observed on the UNF campus, but not in the impacted wetland areas or in the mitigation areas. There is no evidence that gopher tortoises would be impacted by this project. A number of animal species identified as wetland dependent have been observed on the campus. However, the evidence of actual utilization of impacted areas by such species is unclear as to frequency and manner of utilization. Such wetland-dependent species are capable of utilizing proximal habitat and will be absorbed by the unimpacted wetland acreage on the UNF campus. Further, the impact on potential habitat caused by the project will be effectively mitigated through the created wetland area. Five hooded pitcher plants are located within the wetland impact area and will be destroyed by construction activities. The hooded pitcher plant is listed by the State of Florida as a threatened species, however, the plant is common in wet areas throughout Duval, Clay, St. Johns and Nassau Counties. Because the muck soils removed from the area will contain seeds, roots and rhizomes from existing vegetation, the plants will likely reproduce in the created wetland area which will contain the muck soil removed during the permitted construction activity. There is no evidence that the dredge and fill project will adversely affect public health, safety and welfare. There are no significant secondary impacts resulting from the proposed project. The SJRWMD considered the environmental impacts expected to occur related to the construction of the roadways for which the permits are sought. In this case, the anticipated secondary impact of the project relates to the effect of automobiles on existing wildlife. The evidence does not establish that there will be such an impact. The road poses no obstacle to wildlife migration. The replacement of the existing culvert with a new culvert at the proper ground elevation may provide enhanced access for some wildlife. The cumulative impacts of the project include the potential expansion of the eastern connector which would require the crossing of Boggy Branch, and future building construction in the southeast portion of the UNF campus. There is no evidence that such impacts, which would require additional permitting, could not be offset with additional mitigation at such time as the permitting is sought.
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 11-12, 1991, in Jacksonville, Florida.
Findings Of Fact Introduction Respondent, South Florida Water Management District (SFWMD or District), is a creature of the legislature having been created under Chapter 373, Florida Statutes (1985). It has jurisdiction over and administers all "waters in the District", including the regulation of the management and storage of surface waters. According to the map depicted in Rule 40E-1.103, Florida Administrative Code, the SFWMD's jurisdiction appears to extend over all of Monroe, Dade, Broward, Collier, Palm Beach, Martin, Lee, Hendry and Glades Counties and portions of St. Lucie, Okeechobee, Osceola, Charlotte and Orange Counties, Florida. A precise legal description of its boundaries is found in Subsection 373.069(2)(e), Florida Statutes (1985). Under the District's surface water management permitting authority, a permit is required for the construction of any works that impound, impede, obstruct or otherwise impact the flow of water, irrespective of whether the property contains a wetland of any nature. To implement the above jurisdiction, the District has adopted by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a technical manual entitled "Basis of Review for Surface Water Management Permit Application within the South Florida Water Management District" (Basis for Review). The manual was first adopted in 1977 and has been readopted with various modifications since that time. The most recent version became effective in July 1986. The manual contains criteria to be used by the District when reviewing permit applications for the construction and operation of surface water management systems within its jurisdictional boundaries. These criteria specify the manner in which an applicant must provide reasonable assurance that a project meets SFWMD objectives, and include both water quantity and quality considerations as well as environmental standards designed to protect fish and wildlife. One feature of the Basis of Review is a provision allowing an applicant to submit and implement innovative project designs as long as they meet District objectives. Many of the principles embodied in the Basis of Review have been carried forward into the challenged rules. An applicant may apply for a conceptual approval or a construction and operation (C&O) permit. The conceptual approval is a permit for a master plan when the applicant is not ready to submit all detailed drawings necessary to obtain a C&O permit. It is especially appropriate for large projects developed in phases. A conceptual approval does not authorize construction of a surface water management system, but rather authorizes a master plan with which subsequent construction and operation must be consistent. Once a conceptual permit has been issued, the individual C&O permits are then applied for and issued consistent with the terms of the conceptual permit. In 1986 the Legislature enacted Section 373.414, Florida Statutes (Supp. 1986). That section requires the District, not later than March 31, 1987, to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department (of environmental regulation) for purposes of regulation of dredging and filling." The statute goes on to require that the rule include the following: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. The statute further provides that until the District adopts specific isolated wetland rules, its review of fish and wildlife impacts in small isolated wetlands is limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. In response to the foregoing legislation, and after a series of meetings and workshops, on November 7, 1986 the District proposed to amend existing Rules 40E-4.091 and 40E- 4.301, Florida Administrative Code. The text of the amended portion of Rule 40E-4.301 reads as follows: 40E-4.301 Conditions for Issuance of Permits. (1)(m) is not against public policy, and will meet the general and specific criteria in the document described in Rule 40E-4.091(1)(a), and will meet the criteria for isolated wetlands, which are found in Appendix 7 of the document described in Rule 40E-4.091(1)(a) (Underscored words represent the proposed amendment.) In conjunction with the foregoing, the District prepared an economic impact statement (EIS) which read as follows: SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULE: 1. COST TO THE AGENCY: The proposed rule largely reflects existing policy and procedure but enunciates the specific guidelines the District applies in permitting decisions. The rule strikes a balance between specific quantitative guidelines and administrative flexibility with regard to permitting decisions. While there may be some initial implementation costs to the District, a minimal total cost increase to the agency is expected. The specific quantitative guidelines provided in the Appendix are expected to facilitate agency decisions regarding required mitigation- compensation, so that in the long run costs may actually decline as a result of implementation of the new criteria. There are no plans to change the size of District regulatory staff as a result of implementation of the standards in Appendix To the extend that additional staff is required in the future to address the impacts of permitting decisions on wetland habitat on threatened and endangered species, this impact can more correctly be attributed to the adoption of Section 373.414, F.S., by the Florida Legislature than to this rule. COSTS AND BENEFITS TO THOSE DIRECTLY AFFECTED: Appendix 7 provides the applicant with the choice of either meeting specific quantitative project design criteria or proposing a unique project design which will be reviewed by a qualitative standard to ensure that the proposed project complies with the District's objective of protecting isolated wetlands and their associated fish and wildlife functions and values. The requirements that project applications which proposed to impact wetlands provide reasonable assurances, such as mitigation/compensation, maintenance plans, monitoring and a guarantee of performance, is expected to result in some cost increases to permittees. Such require- ments are likely to improve the effectiveness of District protecting the water and related land resources of the District. IMPACT ON COMPETITION AND THE OPEN MARKET FOR EMPLOYMENT: No significant impact on competition and the open market for employment is expected. IMPACTS ON SMALL BUSINESS: The quantitative criteria in the Appendix set differential standards on the basis of isolated wetland size rather than firm size. Large projects are expected to have slightly greater flexibility in meeting the reasonable assurance requirements than small projects; however, the differential impact on small business, as defined in Section 288.703, Florida Statutes, is not expected to be significant. DATA AND METHODS USED: Data from the computer files of the District's Resource Control Department were the primary source of data used. Appendix 7 adopted by reference in amended Rule 40E- 4.301(1)(o) is a document entitled "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District - Appendix 7 - Isolated Wetlands" (Appendix 7). As originally proposed for adoption, the Appendix contained sections 1.0 through 6.0 covering the following subjects: introduction (1.0), glossary (numbered as 2.0 and containing sections 2.1, 2.2, 2.3, 2.4, 2.7., 2.9 and 2.10), size threshold (3.0), review procedures for projects which propose to impact isolated wetlands (numbered as 4.0 and containing sections 4.1-4.5), review criteria (5.0), quantitative design criteria (5.1.1., 5.1.2., 5.1.3, 5.1.4, 5.1.5, 5.1.7 and 5.1.8), qualitative criteria (5.2-5.2.3) and project guarantee criteria (numbered as 6.0 and containing sections 6.1-6.3). For purposes of surface water management permitting, Appendix 7 applies only to activities in isolated wetlands while all other activities are subject to the criteria embodied in the Basis of Review. On November 26, 1986 petitioners, Orlando Central Park, Inc. (OCP), Real Estate Corporation of Florida, N.V. (REC), and National Association of Industrial and Office Parks, Region IV (NAIOP), filed a Petition for Administrative Determination of Invalidity of Proposed Rules wherein they sought to have declared invalid proposed rules 40E-4.091(1) and 40E-4.301(1)(o). In their petition, petitioners generally challenged all or portions of sections 2.0, 3.0, 4.0, 5.0, 5.1., 5.2 and 6.0-6.4 in Appendix 7 as well as the sufficiency of the EIS. In light of the above petition having been filed, the District again considered its proposed rules on January 8, 1987 and amended Appendix 7 in a number of respects. The revised Appendix has been received in evidence as joint exhibit number 2. As a result of those revisions, and as reflected in their post- hearing pleadings, petitioners have limited their attack to sections 2.2, 4.2b, 4.3, 4.4, 5.1.1a, 5.1.1b, 5.1.1d, 5.1.2, 5.1.3 and 5.1.7 in Appendix 7 and the adequacy of the EIS. On January 15, 1987 intervenor/respondent, The Florida Audubon Society (intervenor or FAS), filed a petition to intervene. This petition was granted conditioned upon intervenor proving up at final hearing its standing in the proceeding. Standing In order to challenge a proposed rule, a party must generally demonstrate that its substantial interests will be affected by the challenged rule. To do so, petitioners presented evidence on this issue at final hearing. In the same vein, the standing of intervenor was also questioned, and it too presented evidence to demonstrate its right to have access to this proceeding. REC - REC is the owner and developer of a residential and commercial development consisting of approximately 2,400 acres known as the Buenaventura Lakes Planned Unit Development between Kissimmee and St. Cloud in Osceola County. The project has been subdivided into what is known as Basins 1, 2 and 3, of which the undeveloped acreage lies within the latter Basin. The corporation has plans to develop the remaining acreage into single family and multi-family residential and commercial developments but has not yet obtained the necessary environmental permits for the undeveloped tract. Through the testimony of an REC representative, the undeveloped acreage was described as having open grasslands, wooded areas and low, marshy areas. Some portions of the land were also described as a "wet, marshy, boggy area." However, their specific size was not disclosed, and there was only conjecture on the part of petitioners' expert that the areas were in fact isolated wetlands as defined in the proposed rule. The representative fears that if jurisdictional isolated wetlands are located within Basin 3, and the rules are adopted, it will impact upon REC in that more restrictive permits will be required prior to any further development of the land. The District has previously issued construction and operation permits for Basins 1 and 2 and necessary Department of Environmental Regulation (DER) permits have also been obtained. None have been sought or issued for Basin 3, and there was no evidence that a letter of conceptual approval covering drainage in Basin 3 has been issued by the District. Had one been issued, the project might be grandfathered and exempt from the pending rules. Even so, the record does not support a finding that isolated wetlands as defined in the proposed rule are definitely located within Basin 3 so as to make REC's substantial interest affected by this proceeding. NAIOP - The NAIOP is a national non-profit organization of developers, consisting of some 6,000 members nationwide. In Florida, it has four chapters (Jacksonville, Fort Lauderdale, Orlando and Tampa) and "several hundred" members. As developers of office, industrial and commercial real estate, it is necessary that its members obtain permits from the District on certain projects within the District's jurisdiction. The association monitors all rulemaking proceedings affecting its members, and has actively lobbied the legislature on environmental matters. It has appeared before the District and DER concerning rules and policy, especially those that affect the permitting process. According to an NAIOP representative, Eric B. Eicher, approximately 30 percent of its state members do business in SFWMD jurisdictional territory. However, Eicher had no first-hand knowledge as to how many members owned property within the District, or whether any members are intending to develop isolated wetlands which would be subject to the proposed rule. Indeed, he admitted that only two members had even talked to him about the proposed rules. As such, the NAIOP has not demonstrated any immediate and discernible impact that the proposed rule would have on its members. OCP - The OCP is a wholly-owned subsidiary of Martin-Marietta Corporation, a large corporation with offices in the Orlando area. However, Martin-Marietta is not a party in this proceeding. OCP itself is the owner and developer of an office, industrial and commercial park known as Orlando Center Park in Orange County, Florida. In addition, OCP acts as the developer of certain properties owned by Martin-Marietta. At the present time, OCP has approximately 2,400 acres in its own name which it intends to develop. They are generally located in an area west of the Florida Turnpike, south of Sand Lake Road, north of the Beeline Expressway and east of 1-4. Various aerial photographs and maps of the area were received in evidence as petitioners' exhibits 5, 8 and 9. It is undisputed that this property lies within the territorial jurisdiction of the SFWMD. On November 17, 1977 the District issued a permit granting conceptual approval of a master plan for the development of certain properties owned by OCP. However, the permit itself (petitioners' exhibit 15) did not include a review of impacts on wetlands for OCP's property. Therefore, the project is not grandfathered under proposed rule 4.1, and is subject to the new rules. If the proposed rules are adopted, OCP would have to modify its master plan and reduce the amount of its sellable or developable property. In two jurisdictional determinations performed by DER in 1983 and 1984, DER identified various isolated wetlands on OCP's property not subject to DER jurisdiction. These are located on what are identified as phases 8-B and 9 of the undeveloped tract of land (petitioners' exhibits 8 and 13). Since it is undisputed that OCP intends to develop this land, OCP is substantially affected by the proposed rules. FAS - Intervenor, which supports the rule amendments, is a non-profit association with principal headquarters in Maitland, Florida. Its membership numbers some 30,000, of which a large part live in Southeastern Florida and within the territorial jurisdiction of SFWMD. Although only one member (its president) testified at final hearing, it was the president's contention that "most" of its members support the proposed rules and the perpetuation of the isolated wetland as a function for wildlife. Through documentation offered in evidence as intervenor/respondent's exhibit 1, it was established that FAS owns various tracts of undeveloped land in Lee, St. Lucie and Collier Counties, which lie within SFWMD's boundaries. A part of these lands are isolated wetlands, and other parts are adjacent to wetlands areas. Although FAS expressed a fear that adjacent wetlands may be developed if the proposed rules are invalidated, it offered no proof of impending developments on isolated wetlands, or that such development would occur on properties adjacent to its own. Therefore, any adverse impact is remote and speculative, and has no immediacy or reality. The FAS has entered into a contract with the Game and Fresh Water Fish Commission to administer the Florida Breeding Bird Atlas Program. Under the program, FAS has contracted to establish a baseline of the numbers and types of breeding birds in the State. The FAS fears that if the rule amendments are not adopted, the destruction of wetlands will occur, thereby interfering with its ability to carry out the contract. Again, however, it offered no proof of impending developments on adjacent isolated wetlands, or otherwise established that its substantial interests under the contract would be affected. Economic Impact Statement Other than the introduction of the EIS into evidence as joint exhibit 4, there was no relevant factual evidence presented by the parties concerning the insufficiency or inaccuracy of the EIS. It is noted, however, that the District merely estimated that the proposed rules would "result in some cost increases to the permittees", and did not attempt to precisely identify the economic impact. Respondent offered into evidence various documents upon which it relied in preparing the EIS. However, such documents are hearsay, and it was not shown what competent evidence, if any, they were intended to supplement and explain. The Challenged Rules Petitioners' real concern lies with portions of Appendix 7 which has been adopted and incorporated by reference by Rule 40E-4.301(1)(o), Florida Administrative Code. That document spells out in detail the criteria that will apply to applications for surface water management permits where the proposed activity affects isolated wetlands. As noted earlier, the Appendix is divided into a number of sections, which for ease of discussion will be referred to as "rules." Each challenged "rule" will be dealt with separately. Rule 2.2 - This rule defines an "isolated wetland" as follows: Any wetland not under the jurisdiction of the Department of Environmental Regulation (DER) for the purposes of regulation of dredging and filling. Multiple individual wetlands normally connected by surface flow during a wet season with average rainfall shall be presumed to be an isolated wetland. The first sentence of the rule simply provides that any wetland not subject to DER dredge and fill jurisdiction is to be considered an isolated wetland and subject to Appendix 7 criteria. Conversely, if a wetland is subject to DER jurisdiction, any District regulated activity affecting that land must be considered under the existing Basis of Review criteria. Petitioners' concern is with the second sentence of the rule and is that whenever multiple isolated wetlands are connected by surface flow during the wet season, they believe the rule would confer jurisdiction in SFWMD not only over the isolated wetlands themselves, but also the uplands that lie adjacent to and between the individual wetlands. But, through credible and persuasive testimony, it was established that this is not the intent or result of the proposed amendment. Indeed, it was established that jurisdiction is intended to lie only over the wetlands themselves, and not the connecting uplands. Petitioners also object to the District aggregating small isolated wetlands into a single larger isolated wetland for jurisdictional purposes. However, such aggregation is necessary because of the biological interaction between the small wetlands. Petitioners further voiced some criticism of the provision in the rule that connected wetlands shall be presumed to be an isolated wetland. Even so, the rule allows an applicant to present evidence to contradict this presumption. Finally, despite suggestions to the contrary, there was no evidence of any conflicting DER policy or concept regarding isolated wetlands, how such wetlands are defined by DER, or that DER prefers the District to follow such policy or definition. Rule 4.2b. - This rule prescribes certain information that must be filed by an applicant for a permit whenever the project impacts isolated wetlands. As is pertinent here, Section b. requires the following to be filed with the application: b. A list of all plant and animal species listed as endangered, threatened or of special concern pursuant to 50 Code of Federal Regulations, Section 17.12, and Rules 39-27.03, 39-27.04 and 39-27.05, Florida Administrative Code, which are incorporated by reference and made a part of this rule which utilize the area and an evaluation of the probable significance of the area to the listed species. Petitioners object to the requirement that an applicant submit a list of all plant species of special concern as defined by Rule 39-27.05, Florida Administrative Code. This rule was promulgated by the Game and Fresh Water Fish Commission and designates some forty-three plant "species of special concern". Petitioners' objection is based on the premise that the term "species" does not include plants, and that plant species are accordingly outside the purview of the District's permitting authority. However, they presented no evidence to support this construction of the term. In contrast, through testimony from a National Audubon Society employee, it was established that the term "species" not only includes animals, but plants as well. Mitigation/Compensation Rules - A number of rules within Appendix 7 make reference to mitigation and compensation proposals to be submitted by applicants whose projects impact isolated wetlands. As is relevant here, they include rules 4.3, 4.4, 5.1.1a., b. and d., 5.1.2, 5.1.3 and 5.1.7, all challenged by petitioners. These rules generally require or provide for mitigation when an applicant intends to impact or destroy all non-exempt isolated wetlands 0.5 acre to 5.0 acres in size. It is petitioners' contention that the District has no authority to require or otherwise provide for mitigation or compensation as a permit criterion. Mitigation is defined in rule 2.8 as "remedying isolated wetland impacts by restoring or enhancing affected habitat, or by creating similar habitat of equal or greater function". Compensation is defined in rule 2.9 as the "replacement of isolated wetlands with a mixture of wetland/upland habitat, unique upland habitat, or otherwise provide overall benefits to the natural system". Mitigation is a common practice in environmental permitting and has been routinely used by the District in its existing Basis for Review. Indeed, at the present time ``most'' applicants include a mitigation plan with their applications for permits. Even petitioners' expert conceded that the use of mitigation is "a reasonable practice" and has resulted in "better projects", and "better" protection of the water resources. Rules 4.3 and 4.4 require applicants who propose mitigation or compensation to submit certain information with their applications. This information is necessary to insure that the mitigation/compensation plan will be successful. It is also noted that mitigation is not used or required for every project, and can be avoided where a project has other built-in compensation features. The new rules simply continue existing agency policy. Rules 5.1.1a. and b. provide the following presumptions concerning mitigation and compensation: Mitigation or compensation for elimination of isolated wetlands between 0.5 and 5.0 acres in size, pursuant to Section 5.1.2 below, shall be presumed to maintain wetland functions. There is no presumption that the function of isolated wetlands over 5.0 acres in size can be maintained by measures other than protection as defined in Section 2.4 above. Protection of isolated wetlands over 5.0 acres in size shall be the preferred method of providing the required reasonable assurance, however, other reasonable alternatives proposed by the applicant will be considered. Section a. creates a presumption in favor of the applicant that mitigation or compensation, in ratios specified within the rules, shall be presumed to maintain the functions of isolated wetlands between .5 and 5 acres in size. Section b. eliminates this presumption for isolated wetlands over five acres in size since the District's experience has been that applicants have not generally been successful in mitigating larger wetlands, and that it is more difficult to mitigate and compensate for larger projects. Even so, the rule allows an applicant to present "other reasonable alternatives" to mitigation. Petitioners object to the presumption in Section b. since they contend it reposes in the District the authority to preserve isolated wetlands over 5.0 acres in size. However, this "authority" comes into play only when the criteria cannot be met, and the applicant fails to present "other reasonable alternatives". Rule 5.1.1d. provides as follows: (d) Protection of isolated wetlands or incorporation of isolated wetlands into surface water management systems in favored over isolated wetland destruction and mitigation or compensation. Wetland destruction and mitigation or compensation shall be considered only when there are no feasible project design alternatives for the particular site. Reasonable project design alternatives to isolated wetland impacts shall be considered. This rule essentially favors the protection of isolated wetlands as opposed to their destruction. It goes on to permit destruction and mitigation/compensation whenever there are no "feasible project design alternatives". In other words, the District has established a first priority of preserving wetlands whenever possible, and allowing destruction only when no "reasonable project design alternatives" are available. Under the latter situation, mitigation/compensation will then be required. Petitioners assert the term "feasible project design alternative" is not readily understood, or comprehensible to the average person. However, even their engineer stated he could "apply it", and that he "normally" goes about designing projects consistent with the terms of the rule. It was further established that the District construes the terms "feasible" and "reasonable" to be synonymous, and that the rule would not require an applicant to present a proposal that was prohibitively expensive, or technically unfeasible. Rule 5.1.2 also deals with mitigation/compensation and addresses mitigation ratios to be used by applicants. It reads as follows: Isolated wetland mitigation shall be implemented based upon ratios of acres wet- lands created, or restored to acres of wet- lands destroyed which provide reasonable assurance that the mitigation will be successful. The following ratios shall be presumed to provide such reasonable assurance for type-for-type mitigation: Forested swamp, non-cypress dominated-2. 5:1 Forested swamp, cypress dominated---2.0:1 Freshwater marshes 1.5:1 Ratios for mitigation with unlike habitat, including expanded littoral zones, or compen- sation shall be determined on a case-by-case basis. When type-for-type mitigation is provided as defined in Section 2.8 and accepted by the District prior to isolated wetland impacts, a one-to-one ratio shall be presumed to provide such reasonable assurance. The rule explains that the prescribed mitigation ratios provide reasonable assurance that the creation or restoration will be successful. It is a natural corollary to the District's mitigation/compensation policy. Testimony established that these ratios were reasonable, favor an applicant, and are consistent with the different natural communities to which they apply. Higher ratios of wetlands created to wetlands destroyed are necessary because of the time required for an artificially created replacement system to provide all of the previous native functions. Finally, the use of a one-to-one ratio when type-for- type mitigation is used reduces the amount of land required by an applicant for mitigation, and provides flexibility from the otherwise specified ratios. Rule 5.1.3 prescribes the use of mitigation/compen-sation where disturbed wetlands are impacted by a project. It reads as follows: Disturbed isolated wetlands may be developed and their loss compensated for by: Mitigation at ratios less than those required in 5.1.2, based on the degree of disturbance and the remaining functional qualities. Mitigation through restoration or other disturbed wetlands is preferred over wetland creation. Preservation of unique uplands or in- clusion of developable uplands within an up- land/wetland protected system. Mitigation or compensation shall not be required for isolated wetlands which do not provide fun- ctions and values as expressed above in Sections 1.0 and 5.0. Unlike rule 5.1.2., this rule provides for mitigation ratios based upon the degree of disturbance and the remaining functional qualities of the wetland. It is too is a natural corollary of the District's stated policy. It recognizes that some wetlands have been disturbed, and that the ratios prescribed in rule 5.1.2. are inappropriate and too rigid for a previously disturbed wetland. Rule 5.1.7 - The final rule challenged by petitioners provides for the establishment of "buffer zones" under certain conditions. It is petitioners' contention that, like many of the other cited rules, the District has no authority to adopt the rule because buffer zones in upland areas are not a part of the surface water management system. A buffer zone is defined in rule 2.7 as "an area adjacent to the isolated wetland which protects wetland function and minimizes adverse impacts of upland development on wetland function". The challenged rule reads as follows: Buffer zones may be required around all isolated wetlands that are to be protected or incorporated into a surface water management system to protect wetland function and mini- mize adverse impacts of upland development on wetland function. Actual delineation of the buffer zone may vary according to site specific conditions. Buffer zones which extends (sic) at least fifteen feet landward from the edge of the wetland in all places and averages twenty-five feet from the landward edge of the wetland will be presumed to be adequate. Prior to issuance of Construction and Operation permits, buffer zones shall be field verified and delineated in the field. Buffer zones may consist of undisturbed uplands, open water bodies, wildlife corr- idors or other natural or structural features which serve the purpose stated in Section 2.7 as appropriate for the particular site. Upland areas or wildlife corridors adja- cent to buffer zones may be incorporated as compensation areas, provided they are in excess of the minimum buffer zone and meet all other requirements for compen- sation areas. Under current District policy, buffer zones are required around wetlands whenever they are necessary to maintain the integrity of the wetland. They are a reasonable tool in the District's arsenal to protect water, fish and wildlife resources. Testimony established that they are particularly essential when an applicant proposes to build a project immediately adjacent to a wetland so that erosion or destruction of the wetland may be avoided. The rule merely extends the District's existing policy to isolated wetlands.
