06-000805 Captiva Civic Association, Inc., And Sanibel Captiva Conservation Foundation vs. South Florida Water Management District And Plantation Development, Ltd Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, February 14, 2008.

Summary: Applicant did not prove that all of the economically viable options to reduce or eliminate impacts to valuable wetlands were explored.

Case No. 06-0805

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAPTIVA CIVIC ASSOCIATION, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

INC., and SANIBEL CAPTIVA

CONSERVATION FOUNDATION, RECOMMENDED ORDER

Petitioners,

and

THE CONSERVANCY OF SOUTHWEST

FLORIDA,

Intervenor,

vs.

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT and PLANTATION

DEVELOPMENT, LTD,

Respondents.

On July 24-28, 2006, a final administrative hearing was held

in this case in Fort Myers, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioners: Richard J. Grosso, Esquire

Everglades Law Center, Inc.

3305 College Avenue

Fort Lauderdale, Florida 33314-7721

Lisa Interlandi, Esquire

Robert N. Hartsell, Esquire

Everglades Law Center, Inc.

330 US Highway 1, Suite 3

Lake Park, Florida 33403-3531

Matthew D. Uhle, Esquire

Knott, Consoer, Ebelini & Swett, P.A.

1625 Hendry Street, Third Floor

Fort Myers, Florida 33901

For Intervenor: Gary A. Davis

The Conservancy of Southwest Florida

1450 Merrihue Avenue

Naples, Florida 34102

For Respondent South Florida Water Management District:

Peter Cocotos, Esquire

South Florida Water Management District

3301 Gun Club Road, MSC-1410

West Palm Beach, Florida 33406-3007

For Respondent Plantation Development, LTD:

Kenneth G. Oertel, Esquire

Gavin D. Burgess, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

301 South Bronough Street

Post Office Box 1110

Tallahassee, Florida 32302-1110

STATEMENT OF THE ISSUE

The issue in this case is whether the South Florida Water

Management District (SFWMD, or District) should issue a

Modification to Environmental Resource Permit (ERP) No. 36-00583-

S-02, Application No. 050408-15 to Plantation Development, Ltd.

(PDL), for construction and operation of a surface water

management system serving a 78.11-acre condominium development

known as Harbour Pointe at South Seas Resort, with discharge into

wetlands adjacent to Pine Island Sound.

PRELIMINARY STATEMENT

On March 7, 2006, SFWMD referred to DOAH the Request for

Administrative Hearing filed by Petitioners, Captiva Civic

Association, Inc. (CCA), and Sanibel Captiva Conservation

Foundation (SCCF). The matter was given DOAH Case No. 06-0805

and scheduled for final hearing on June 20-23, 2006.

On May 10, 2006, The Conservancy of Southwest Florida (CSWF)

petitioned for leave to intervene, which was granted. On June 5,

2006, Petitioners' Unopposed Motion for Leave to Amend Petition

was granted. On June 8, 2006, Petitioners' Motion for

Continuance was granted, and final hearing was continued to

July 24-28, 2006. The parties' Joint Prehearing Stipulation was

filed on July 14, 2006, and later supplemented with additions to

the exhibit list of Petitioners and Intervenor. Several motions

remained pending and were addressed during the final hearing.

At the final hearing, the parties had Joint Exhibits A-X

admitted in evidence. As applicant, PDL called as witnesses:

Robert Taylor, chairman of PDL's general partner, Mariner Group,

Inc.; Ray Pavelka, PDL's project manager, and also president of

Mariner Properties Development, Inc., which owns 51% of a

partnership which owns and operates the Little Pine Island

Wetland Mitigation Bank; David Vincent Willems, an expert in

civil engineering; Harvey Howard Harper, III, Ph.D., an expert in

water quality evaluations; Thomas M. Missimer, Ph.D., an expert

in hydrogeology and water quality; Kevin Lee Erwin, an expert in

ecology; Joseph Walter Ebner, a civil engineer; David Warren

Depew, an expert in urban and regional planning; Michael Joseph

Frankenberger, an expert in ecology; and Corbett Torrence, an

expert in archaeology. PDL also had Applicant Exhibits (labeled

A-) 8, 15, 20, 22, 28, 30, 36, 38, 39, 40(a), 41, 42(a), 43(a)-

(g), 45, 47, and 48 admitted in evidence. SFWMD called:

Anita Bain, its director of ERP regulation, and an expert in

wetland ecology and ERP permitting; and Anthony Waterhouse, an

expert in water resource engineering and surface water management

permitting. SFWMD also had its Exhibits D-5 and D-6 admitted in

evidence. Petitioners and Intervenors called the following

witnesses: Paul Garvey; Eric Linblad; Richard Gilmore, Ph.D., an

expert in marine ecology; Nicole Ryan; Sarita VanVeck;

Jeffrey Morgan; Dave Ceilley, an expert in wetland ecology;

Kristy Anders; Gary Bello; Edward Cronyn, a senior supervisor and

environmental analyst for SFWMD, and an expert in ecology;

Kathy Bond Worley, co-director of environmental science for CSWF,

and an expert in water quality and mangrove systems; and Rae Ann

Wessel, a natural resource policy analyst for SCCF, and an expert

in marine biology and ecology. Petitioners and Intervenor also

had Petitioners' Exhibits (labeled P-) 4, 9, 10(a)-(c), 11, 12,

13(a)-(i), 16, 22, 25(a), 26, 28, 33, 34, 40, 47, 48, 49, 50, 51,

52, 53, 54, 66, 67, 72, 75, 80, 83, 84, 85, 86, 87, 90, and 91

admitted in evidence. Ruling was reserved on objections P-27,

which are now sustained.

After presentation of evidence, SFWMD requested a transcript

of the final hearing, and the request of Petitioners and

Intervenor for 20 days from the filing of the transcript in which

to file proposed recommended orders (PROs) was granted over PDL's

objection. The Transcript (in eight volumes) was filed on

September 8, 2006, but the parties agreed to a two-day extension

of the time for filing PROs due to a delay in some parties'

receipt of copies, making PROs due to be filed by September 28,

2006. Timely PROs were filed by all parties; the PROs filed by

CCA, SCCF, and CSWF were amended the next day. Due consideration

has been given to the PROs in the preparation of this Recommended

Order.

FINDINGS OF FACT

Based on the evidence and arguments, the following facts are

found:

A. The Parties

1. PDL, the applicant, is a limited partnership which is

the successor to Mariner Group, Inc. (Mariner).

2. SFWMD has jurisdiction over PDL's application, as

amended, and has given notice of its intent to grant PDL's

application, as amended, with certain conditions.

3. Petitioners, CCA and SCCF, and Intervenor, CSWF, are

Florida not-for-profit corporations that challenged the proposed

ERP.

B. Development and Permit History

4. The property subject to PDL's application was part of

approximately 310-acres on the northern end of Captiva Island in

Lee County, Florida. Redfish Pass is to the immediate north,

separating Captiva Island from North Captiva Island. Farther to

the north is Cayo Costa Island, a large island to the south of

Boca Grande Pass. Most of Cayo Costa is a State Park. To the

south of Captiva Island is Sanibel Island, the site of the Ding

Darling National Wildlife Refuge. To the northeast of Sanibel

Island and to the east of the rest of the string of barrier

islands just mentioned is Pine Island Sound, which is to the west

of Pine Island. Pine Island Sound is a state-designated Aquatic

Preserve and Outstanding Florida Water (OFW). Pine Island Sound

also is state-designated Class II water, but shell-fishing is

prohibited in the immediate vicinity of Captiva Island. To the

east of Pineland Island is Little Pine Island, which is

surrounded by the Matlacha Pass Aquatic Preserve, which includes

the Matlacha Pass National Wildlife Refuge. All of these

features are part of the Charlotte Harbor National Estuary

(CHNE). San Carlos Bay is farther south. The Lee County

mainland is to the east of Matlacha Pass and San Carlos Bay.

5. The 310-acre site was purchased by Mariner in 1972 for

development of a resort that became known as the “South Seas

Plantation.” Mariner's property included both Captiva Island

proper and a smaller island immediately to the east across Bryant

Bayou to the north and Chadwick Bayou farther to the south.

Bryant Bayou has a narrower inlet from the north, and Chadwick

Bayou has a narrower inlet to the south. Both inlets lead to

Pine Island Sound.

6. When Mariner purchased the property, it theoretically

was possible to develop a maximum of 3,900 dwelling units on the

310-acre property, pursuant to Lee County zoning. In 1973,

Mariner submitted an application to Lee County for the right to

develop of 912 dwelling units on its 310 acres. PDL

characterizes this as a "voluntary down-zoning" for the purpose

of protecting the environment and unusual for a developer to do

at that point in time. However, it is speculative how much more

than 912 dwelling units would have been approved by Lee County at

the time.

7. The purpose of Mariner’s application to Lee County was

to create a resort where recreational, single family, multi-

family, and some commercial uses would coexist in a resort

setting. The overall development plan was to construct the

resort while conserving many of the property’s natural resources,

including several miles of mangrove and Gulf of Mexico shoreline.

Lee County approved the rezoning and the concept of the South

Seas Plantation in 1973.

8. Mariner's development began with Captiva Island proper

and included a marina, golf course, and a variety of residential

condominiums and single-family home sites. Some of the

residential units were sold, and others remained in Mariner's

ownership. Mariner marketed the rental of units at South Seas

Plantation and served as rental agent for units not owned by

Mariner.

9. Development of the marina included dredging, and spoil

was deposited on the northern tip of the smaller island, helping

to create approximately 1.4 acres of upland there. In the 1950's

or 1960's, a natural sand-and-shell berm along the eastern shore

of the smaller island was built up and maintained by addition of

fill material to create a two-track sand/shell road, which was

used for vehicular access to the northern tip via an east-west

road that divided the smaller island roughly in half and

connected it to Captiva Island proper and the main road at South

Seas Plantation. At a later point in time, the east-west portion

of the road was paved for better access to a drinking water

plant, a wastewater treatment plant, and a helicopter pad used by

the Lee County Mosquito Control District.

10. In 1985, Mariner received from SFWMD a “Master

Stormwater Permit” for its entire development (the 1985 Permit).

At that time, SFWMD did not regulate wetland impacts, only

surface water management systems. The Department of

Environmental Regulation regulated wetland impacts through its

dredge and fill permit program, and there was no evidence

relating to any dredge and fill permitting on the property. The

1985 Permit was for surface water management systems for

construction in uplands on the property. No surface water

management systems were needed or permitted in any wetlands.

11. The 1985 Permit included a surface water management

system for an 18-unit hotel on the spoil uplands of the northern

tip of the smaller island. Permit drawings showed plans for a

golf course on much of the remainder of the smaller island, which

consisted mostly of wetlands. Access to the facilities was

envisioned to be by water taxi, with emergency access via the

utility and sand/shell road. Together, the hotel and golf course

was to become a part of the resort known as Harbour Pointe.

12. The 1985 Permit was modified several times in the years

since its initial issuance, during which time Chapter 373,

Florida Statutes, was amended to give SFWMD authority to regulate

activities in waters and wetlands. However, until the pending

application, none of the modifications had wetland impacts.

13. In 1998, Mariner negotiated the sale of ten resort

properties it owned in Florida, including South Seas Plantation,

to Capstar, which later became Meristar S.S. Plantation Co., LLC

(Meristar). Meristar was a real estate investment trust which

specialized in hotels. Because it was not in the development

business, Meristar was not interested in purchasing the as-yet

undeveloped Harbour Pointe portion of South Seas Plantation, or

Mariner's remaining development rights. As a result, Meristar

purchased all the developed land on South Seas Plantation but not

the approximately 78 acres of undeveloped land which is the

subject of the pending application, or any of Mariner's

development rights. Thus, after the sale of South Seas

Plantation, Mariner retained its development rights and the 78

acres of undeveloped land, which are the subject of PDL's

application. In 2002, Lee County issued an Administrative

Interpretation which clarified that those development rights

consisted of a maximum of 35 more residential units. Eleven

units subsequently were built, leaving a maximum of 24

residential units when PDL filed its application in this case.

14. The 78-acre Harbour Pointe site consists of mangrove

wetlands, privately owned submerged lands, the 1.4-acre upland

area at the northern tip of Harbour Pointe and another 1.4 acres

of upland, which contain a Calusa Indian mound, known as the

Chadwick Mound for its location west of Chadwick Bayou. While

agreements between Meristar and PDL contemplate that PDL's

subsequent development at Harbour Pointe would be marketed as

part of the South Seas Resort and share some amenities and

services, the parcels which comprise the Harbour Pointe

development are the only undeveloped lands PDL owns or controls.

PDL has no contractual or other legal right to develop on

property owned by Meristar.

15. Because it was modified several times since issuance,

the 1985 Permit has not expired. However, Harbour Pointe never

was constructed, and that part of the 1985 Permit expired in that

Mariner lost its entitlement to proceed with construction.

Instead, development of Harbour Pointe would require a permit

modification under the new laws and rules, which included the

regulation of wetland impacts.

C. The Application and Proposed ERP

16. In October 2003, PDL applied to SFWMD to further modify

the 1985 Permit for construction of a water taxi dock for access

to Harbour Pointe. After being informed by SFWMD that

modifications to the 1985 Permit for development of Harbour

Pointe would be reviewed under current laws and regulations, PDL

withdrew the application.

17. In April 2005 PDL applied for modification of the 1985

Permit to construct six 9,500 square-foot, four-plex condominium

buildings (each two stories over parking, and accommodating units

having 3,600-3,800 square feet of air-conditioned living space),

a pool and spa, a tennis court, an access road, a filter marsh

and surface water management facilities. Additionally, the site

plan deleted all boat docks, except for a single water taxi slip

and possibly a dock for launching kayaks and canoes and proposed

a drawbridge across the inlet to Bryant Bayou to connect the

project site to the South Seas Resort and eliminate the need for

the emergency access road on the smaller island. This

application described a development site of 7.4 acres, which

included 4.8 acres of direct impacts to (i.e. , destruction and

fill of) mangroves and .1 acre of shading impacts from

construction of the drawbridge. The proposed mitigation for the

mangrove impacts included: restoration (by removal and

replanting) of .6 acre of the north-south sand/shell road, with

resulting enhancement of the adjacent preserved mangrove wetlands

through improved hydrologic connection across the former

shell/sand road and improved tidal connection to Pine Island

Sound to the east; and preservation of the rest of PDL's

property. The preserved areas would include: approximately 36

acres of mangrove wetlands adjacent to and south of the impacted

wetlands (included the road to be restored) (Parcel A); 24.5

acres of mangrove wetlands south of the utility road and east of

the narrow inlet to Chadwick Bayou (Parcel B); 9.3 acres of

mangrove wetlands (7.9 acres) and tropical hardwoods (1.4 acres,

which includes the Chadwick Mound), south of the utility road and

west of the inlet to Chadwick Bayou, (Parcel C); .9 acre of

mangrove wetlands to the west of Parcel C and the South Seas

Resort main road (Parcel D); and .8 acre of mangrove wetlands

separated from Parcel A by Bryant Bayou and adjacent to the South

Seas Resort main road. A monitoring program lasting at least

five years was offered to ensure success of the restoration and

mitigation proposal.

18. The application itself incorporated some reduction and

elimination of wetland impacts. The total site consists of five

separate tax parcels which could be developed into a number of

single-family home sites. Such a development plan would have

greater direct impacts than the proposed project and would

require the shell/sand road to be significantly widened to meet

current code requirements. By using the bridge as access, .11

acre of wetlands would be disturbed, as compared to 3.9 acres of

total impact that would occur because of the widening the road.

This approach results in the entire project causing less wetland

impact than would occur from the use of the road alone.

19. After the application was filed, PDL responded to two

written requests for additional information and several other

questions raised during meetings, phone conversations, and email

exchanges with one or more SFWMD staff members. During this

process, the application was amended. The tennis court was

eliminated, and the filter marsh was replaced by a five dry

detention ponds. In addition, the resulting development was

concentrated more into the northern tip of the island to reduce

and eliminate the greater secondary impacts (from more "edge

effect") to the preserved wetlands to be expected from a more

linear site plan. These changes reduced the footprint of the

proposed project to 5.24 acres, the building size to 6,400 square

feet each, the residential unit size to 2,400 to 2,600 square

feet each, and wetland impacts to 2.98 acres, plus .11 acre of

shading impacts from construction of the drawbridge. In

addition, since the project was more concentrated at the northern

tip, another tenth of an acre of the sand/shell road was to be

restored. A conservation easement was offered for the 73.31

acres to be preserved, including 71.10 acres of wetlands, in

Parcels A through E. PDL also offered to purchase .11 credits of

offsite mitigation from the Little Pine Island Wetland Mitigation

Bank (LPIWMB).

20. On February 2, 2006, SFWMD's staff recommended approval

of the amended application with 19 standard general conditions

and 30 special conditions. Some of the special conditions in the

Staff Report addressed prevention of erosion, shoaling, silt,

turbidity, and water quality problems during construction or

operation; remediation of any such problems not prevented; and

restoration of any temporary wetland impacts. A pre-construction

meeting was required to discuss construction methods, including

construction dewatering. Although PDL indicated that dewatering

would not be necessary for construction of the project, the Staff

Report recommended that a dewatering plan be submitted before any

dewatering occurred and noted that PDL would have to obtain all

necessary Water Use authorizations, unless the work qualified for

a No-Notice Short-Term Dewatering permit pursuant to Rule 40E-

20.302(3) or is exempt pursuant to Rule 40E-2.051. 1

21. On February 8, 2006, SFWMD's Governing Board gave

notice of its intent to approve the amended application with two

additional conditions that were added to the Staff Report: PDL

was required to apply for and receive a permit modification for

the roadway necessary to access the project (i.e. , the road

leading from the South Seas Resort main road to the proposed

drawbridge), and the applicant for the road to the drawbridge was

required to document that proposed construction was consistent

with the design of the master surface water management system,

including land use and site grading assumptions; and a perpetual

maintenance program for restored and preserved areas, including

removal of exotic and nuisance vegetation in excess of five

percent of total cover between regular maintenance activities, or

such vegetation dominating any one section, was required to

ensure integrity and viability. The parties interpreted the

first of the two additional conditions to mean that construction

access to build the project would be via the new roadway and

drawbridge.

22. On May 30, 2006, to address certain issues raised by

the pending challenge to SFWMD's intended action, PDL further

amended the application to substitute two wet retention ponds and

three dry retention ponds for the five dry detention ponds and to

make associated minor changes to the proposed surface water

management system's water quality treatment methods to further

reduce water quality impacts from the discharge of the system

into the adjacent preserved wetlands. In addition, in view of

disagreements among the parties as to the ability of PDL's onsite

mitigation proposal to offset wetland impacts, PDL offered to

increase offsite mitigation by purchasing as many additional

credits from the LPIWMB as necessary to completely offset wetland

impacts, as determined by the Uniform Mitigation Assessment

Methodology (UMAM).

D. Water Quantity Impacts

23. Pursuant to Rule 40E-4.301(1), an applicant must

provide reasonable assurance that the construction, alteration,

operation, maintenance, removal or abandonment of a surface water

management system:

(a) will not cause adverse water quantity

impacts to receiving waters and adjacent

lands;

(b) will not cause adverse flooding to on-

site or off-site property;

(c) will not cause adverse impacts to

existing surface water storage and

conveyance capabilities.

24. Section 6.0 of the Basis of Review for Environmental

Resource Permit Applications Within the South Florida Water

Management District (BOR), entitled Water Quantity Criteria,

outlines the criteria that the applicant must meet for water

quality at the project site.

25. As outlined in BOR Section 6.2, the off-site discharge

is limited to rates not causing adverse impacts to existing off-

site properties.

26. The proposed surface water management system consists

of a series of swales, dry retention, and then a wet retention

system with an outfall into the areas to the south. Ordinarily,

stormwater runoff eventually will be absorbed into the ground.

Any discharge associated with the system, typically only in

conjunction with major rain events, will flow into a preserved

wetland that will be hydrologically connected to Bryant Bayou and

Pine Island Sound.

27. As outlined in BOR Section 6.2, the off-site discharge

rate is limited to historic discharge rates.

28. As required by BOR Section 6.3, a storm event of 3-day

duration and 25-year return frequency is used in computing off-

site discharge rates.

29. As required by BOR Section 6.4, building floors must be

at or above the 100-year flood elevations.

30. PDL conducted a hydrologic analysis of the existing

condition of the property, analyzed the runoff patterns that

would result during the 25-year rainfall event and then compared

the development plan hydrologic analysis to the existing

condition. The conclusion was that the development plan would

not adversely affect offsite area.

31. PDL analyzed a series of storm conditions for the

protection of road elevations and the protection of finished

floors.

32. There are no off-site areas that contribute to runoff

through this piece of property.

33. The proposed system will not cause adverse water

quantity impacts to waters and adjacent lands, flooding to onsite

or offsite properties, or adversely impact existing surface water

storage and conveyance capabilities.

E. Water Quality Impacts

34. 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 so that State

water quality standards will not be violated.

35. BOR Section 5.0 is entitled Water Quality Criteria.

BOR Section 5.1 states that projects shall be designed and

operated so that offsite discharges will meet State water quality

standards.

36. BOR Section 5.2.1 requires that either retention or

detention, or both retention and detention be provided in the

overall system in one of the following three ways or equivalent

combinations thereof:

1. 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.

2. Dry detention volume shall be provided

equal to 75 percent of the above amounts

computed for wet detention.

3. 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.

37. BOR Section 5.9 states that all new drainage projects

will be evaluated based on the ability of the system to prevent

degradation of receiving water and the ability to conform to

State water quality standards.

38. In the design of the system, PDL proposed a series of

best management practices. The first is to treat runoff through

grassed swale areas adjacent to buildings and some of the

internal roadways. From there, the water would discharge through

a series of dry retention areas where there would be further

removal and treatment.

39. The water would discharge through a proposed wet

retention area prior to outfall under more significant rainfall

events, southward into the preserved wetland area. Because of

the hydrological connection from there to Bryant Bayou and Pine

Island Sound, a more detailed evaluation was conducted.

40. PDL's detailed evaluation included source control

measures. The first one is a construction pollution prevention

plan. PDL also proposed an urban storm water management plan.

PDL is going to provide guidance to property owners about

pesticide and fertilizer management control. The Applicant also

submitted a street-sweeping proposal.

41. The design of the system incorporates an additional 50

percent water quality treatment volume, over and above the

requirements of the BOR.

42. The wet retention system, located to the north of the

proposed outfall structure, incorporates submerged aquatic

vegetation. That is not a requirement of the District. It is an

extra measure that will remove additional levels of pollutants

prior to outfall.

43. PDL proposed an urban stormwater management plan. The

plan requires annual inspection of the water management

facilities, and it must be documented that the system is

functioning as originally designed and built.

44. The stormwater management system is capable, based on

generally accepted engineering and scientific principles, of

functioning as proposed.

45. The stormwater management system satisfies the

District's water quality criteria.

46. Petitioners and Intervenor criticized the method used

by PDL's water quality consultant, Dr. Harvey Harper, for

projecting and evaluating water quality impacts to be expected

from PDL's stormwater management design. They contended that the

so-called "Harper method" has been criticized by other experts,

none of whom testified. Dr. Harper ably defended himself against

the criticism leveled at him. He testified that most if not all

of the components he has incorporated into his evaluation method

are not new but rather have been accepted and used by experts in

his field for years. He also explained that he refined his

evaluation method in response to some early criticism and that

the method he used in this case has been peer-reviewed and

accepted by the Department of Environmental Protection for

evaluation of stormwater design criteria. While some of the

assumptions incorporated in his evaluation method are simple

averages of a relatively small samples, and sometimes averages of

averages, Dr. Harper was confident in the ability of his method

to accurately evaluate the expected water quality impacts from

PDL's system. While there is potential for error in any

projection, Dr. Harper's evaluation provided reasonable

assurances that utilization of PDL's proposed stormwater

management and treatment method will not result in violation of

any State water quality standards or significantly degrade the

water quality of Bryant Bayou or Pine Island Sound.

F. Value of Wetland and Surface Water Functions

47. In general, as part of the CHNE, the mangrove wetlands

to be impacted by the proposed ERP are very important. The CHNE

Coast Conservation Management Plan identifies three major threats

to the estuary and local ecosystem: fish and wildlife habitat

loss; water quality degradation; and hydrological alteration.

The plan calls for the preservation of mangroves within the CHNE.

A wide array of wildlife uses the habitat in the vicinity of the

mangrove wetlands to be impacted. The site is in an important

coastal fly-way for migratory birds, including numerous species

of waterfowl and songbirds that migrate across the Caribbean and

Gulf of Mexico to and from South and Central America. The

project area also provides habitat for several listed wildlife

species, including the American crocodile, wood stork, and West

Indian manatee.

48. The mangrove wetlands that will be impacted directly

and indirectly by the proposed ERP are in relatively good

condition and are very important due primarily to their location

near Redfish Pass at the northern end of Captiva Island and to

their relationship to the rest of the relatively large area of

contiguous and relatively undisturbed wetlands in Parcels A

through E. These attributes make them especially important as a

nursery ground for several valuable fish species.

49. Existing impacts attributable to the spoil and other

disturbances in the adjacent uplands, the northernmost extent of

the sand/shell road, and the South Seas Plantation/Resort

development to the west across the inlet to Bryant Bayou keep

these impacted wetlands from being of the very highest quality.

50. Clearly, and obviously, the project will destroy and

fill 2.98 acres of these wetlands. Indirect (secondary) impacts

to the adjacent preserved wetlands will result from alteration of

hydrology of the 2.98 acres of directly impacted wetlands.

Instead of sheet-flowing across the uplands on the northern tip

of Harbour Pointe into those wetlands, surface water on the 5.24-

acre development project will be directed into a series of

swales, to the dry retention ponds, and to the wet retention

ponds with an outfall to the adjacent preserved wetlands to the

south. Secondary impacts from the Harbour Pointe project will be

similar to the existing secondary impacts to the 2.98 acres

attributable to the adjacent spoil and the South Seas

Plantation/Resort development, if not somewhat greater due to the

absence of any buffer like the inlet.

51. On the other hand, PDL's mitigation proposal will

restore .7 acre of wetlands where the northern end of the north-

south sand/shell road now exists. Eventually, the restored

wetland would be expected to become an extension of the existing,

adjacent red and basin black mangrove forest. In addition, the

resulting improved hydrologic connection to Pine Island Sound

will enhance the value of functions in the preserved wetlands,

including possibly expanding the existing fish nursery and making

it accessible to fish larvae and juvenile fish entering from the

east as well as from the west via Bryant Bayou.

52. There was much debate during the hearing as to whether

the sand/shell road is natural or man-made and whether it is

reducing what otherwise would be the natural tidal and hydrologic

connection between the wetlands to the west of the road and Pine

Island Sound. As indicated, a prior owner added fill material to

the natural sand and shell berm in the 1950's and 1960's to

create better vehicular access. See Finding 9, supra . The

evidence was reasonably persuasive that those man-made changes

have altered hydrology and tidal connection to some extent and

that the restoration project will enhance the value and functions

of the preserved wetlands to some extent.

53. Impacts to the value of wetland and surface water

functions, and corresponding mitigation for impacts, are required

to be assessed using UMAM. See Fla. Admin. Code R. 62-345.100.

While the mitigation assessment method might be uniform, its

application and results are not. Three different experts used

UMAM with differing results. SFWMD's expert, Mr. Cronyn, and

PDL's consultants, Kevin L. Erwin Consulting Ecologist, Inc.

(KLECE), conferred after their initial assessments, resulting in

changed results by both (as well as correction of errors in

initial scoring by Mr. Cronyn.) Dave Ceilley, an expert for

Petitioners and Intervenor, scored the 2.98 acre impact area

significantly higher in its current state than the final score of

either Mr. Cronyn or KLECE, resulting in a higher functional loss

from its destruction and filling. He also gave no credit for

restoration of the sand/shell road, in contrast to KLECE and

Mr. Cronyn, and scored PDL's mitigation proposal as it affected

36.6 acres of preserved wetlands (essentially, Parcel A) as a

functional loss instead of a functional gain, as scored by KLECE

and Mr. Cronyn. Mr. Ceilley also scored PDL's mitigation

proposal as it affected 24.5 acres of preserved wetlands (Parcel

B) as a functional loss instead of a functional gain, as scored

by KLECE and Mr. Cronyn. Finally, he gave no credit for

preservation of Parcels A through E via a conservation easement

because he was under the mistaken impression that the land

already was under a conservation easement in favor of Lee County.

(Actually, PDL had agreed to preserve 65 acres of mangrove forest

in return for the right to develop Harbour Pointe, although a

conservation easement actually was imposed on only about six

acres. Although not identified, the 65 acres probably would have

included the preserved wetlands in the proposed ERP.) Mr. Cronyn

gave credit for preservation of Parcels B through E. KLECE did

not claim credit, because KLECE did not think it was necessary,

but KLECE accepts Mr. Cronyn's assessment of those parcels.

54. Mr. Ceilley's recent onsite field work was extremely

limited, and much of his assessment was based general knowledge

of the area and dated (14-year old) onsite field work. In

addition, this was the first "real-life" UMAM assessment

performed by Mr. Ceilley. His only other use of UMAM was for

practice in training. Finally, his assessment was entirely

independent without the input of any other consultants to aid

him. In contrast, both KLECE and Mr. Cronyn had extensive prior

experience using UMAM. In addition, KLECE functioned as a three-

man team in performing its UMAM assessments and talked out any

initial discrepancies and disagreements (albeit with Mr. Erwin

being the final arbiter). KLECE and Mr. Cronyn also consulted

with one another, as well as experts in other related fields

before finalizing their respective UMAM assessments. KLECE was

able to draw on field work conducted during over 200 man-hours

onsite in recent years. While KLECE was the retained consultant

and agent for the applicant in this case, Mr. Ceilley conceded

that Mr. Erwin adheres to high ethical standards.

55. Petitioners and Intervenor were critical of credit

given in the UMAM assessments performed by Mr. Cronyn for

preservation of Parcels B through E. (KLECE did not claim credit

for their preservation in its UMAM assessment.) Petitioners and

Intervenor contend that PDL already has agreed to preserve the

wetlands in those parcels in return for the ability to utilize

the remaining 24 residential units of development rights at

Harbour Pointe and that development of the Chadwick Mound is

unlikely. Actually, as found, PDL's agreement with the County

only specified six of the 65 acres of wetlands to be preserved.

Besides, the preserved wetlands in the proposed ERP would

implement the agreement with the County. As for the Chadwick

Mound, preservation without the proposed ERP is not a certainty,

although residential development there would be difficult now

that its existence is common knowledge. In any event, the

relative unlikelihood of development in Parcels A through E,

especially after development of 24 units at Harbour Pointe, was

taken into consideration by Mr. Cronyn in determining the amount

of credit to be given for their preservation.

56. Taking all the evidence into account, Mr. Cronyn's UMAM

assessment of the value of wetland functions with and without the

proposed ERP are accepted. According to his assessment, the

proposed ERP will result in a functional loss of .34 functional

units, meaning an equivalent amount of mitigation credit would

have to be purchased from the LPIWMB to offset wetland impacts.

Based on the functional assessment used to permit that mitigation

bank, approximately an additional .9 of a mitigation bank credit

would be needed, in addition to the .11 already offered.

57. The evidence as to cumulative impacts did not clearly

define the pertinent drainage basin. Logically, the pertinent

drainage basin either would encompass all land draining to

surface waters connected to Pine Island Sound, which would

include Little Pine Island, or would be limited to the land that

is subject to the proposed ERP. If the former, all offsetting

mitigation would be within the same drainage basin. If the

latter, there would be no cumulative impacts, since the proposed

ERP would complete all development.

G. Reduction and Elimination of Wetland Impacts

58. According to BOR Section 4.2.1.1, if a proposed surface

water management system will result in adverse impacts to wetland

or other surface water functions such that it does not meet the

requirements of Sections 4.2.2 through 4.2.3.7, the District must

consider whether the applicant has implemented practicable design

modifications to reduce or eliminate such adverse impacts. The

term "modification" does not mean not implementing the system in

some form, or requiring a project that is significantly different

in type or function, such as a commercial project instead of a

residential project. Elimination and reduction also does not

require an applicant to suffer extreme and disproportionate

hardship--for example, having to construct a ten mile-long bridge

to avoid half an acre of wetland impacts. However, Anita Bain,

SFWMD's director of ERP regulation, agreed that, in interpreting

and applying BOR Section 4.2.1.1, "the more important a wetland

is the greater extent you would require elimination and reduction

of impact."

59. As reflected in Findings 17-19, supra , PDL explored

several design modifications in order to reduce and eliminate

impacts to wetland and other surface water functions. However,

several options for further reducing and eliminating wetland

impacts were declined.

60. PDL declined to eliminate the swimming pool and move

one or more buildings to the pool's location at the extreme

northern tip of Harbour Pointe because that would not be a

practicable means of reducing the Harbour Pointe footprint.

First, the undisputed testimony was that a residential building

could not be sited as close to the water's edge as a swimming

pool could. Second, because it would block the view from some of

Meristar's residential properties, and Meristar has the legal

right to approve or disapprove PDL's development on Harbour

Pointe.

61. PDL declined to reduce the number of buildings because,

without also reducing the number and/or size of the residential

units, reducing the number of buildings would make it difficult

if not impossible to accommodate all cul-de-sacs required by Lee

County for use by emergency vehicles and meet parking needs

beneath the buildings, as proposed. (In addition, it would

reduce the number of prime corner residential units, which are

more marketable and profitable.)

62. PDL declined to further reduce unit size because a

further reduction to 2,000 square feet would only reduce the

footprint of the six proposed buildings by a total of 5,000

square feet--less than a ninth of an acre. Reducing unit size to

much less than 2,000 square feet would make it difficult if not

impossible to market the condos as "luxury" units, which is what

PDL says "the market" is demanding at this time (and also what

PDL would prefer, since it would maximize PDL's profits for the

units.) But it was not proven that smaller condos could not be

sold at a reasonable profit.

63. PDL declined to reduce the number of condo units at

Harbour Pointe (while maintaining the conservation easement on

the remainder of PDL's acreage, which would not allow PDL to

develop all of the 24 dwelling units it wants to develop and is

entitled to develop on its 78 acres, according to Lee County).

However, it was not proven that such an option for further

reducing and eliminating wetland impacts would not be technically

feasible, would endanger lives or property, or would not be

economically viable.

64. With respect to economic viability, SFWMD generally

does not examine financial statements or profit-and-loss pro

formas as part of an analysis of a site plan's economic

viability. This type of information is rarely provided by an

applicant, and SFWMD does not ask for it. As usual, SFWMD's

reduction and elimination analysis in this case was conducted

without the benefit of such information. Rather, when PDL

represented that any reduction in the number of units would not

be economically viable, SFWMD accepted the representation,

judging that PDL had done enough elimination and reduction based

on the amount of wetland impacts compared to the amount of

wetlands preserved, in comparison with other projects SFWMD has

evaluated. As Ms. Bain understands it, "it's almost like we know

it when we see it; in that, you wouldn't ask an applicant to

build a ten-mile bridge to avoid a half an acre wetland impact,

so something that's so extreme that's obvious, rather than how

much profit would a particular applicant make on a particular

project."

65. Although SFWMD did not inquire further into the

economic viability of modifications to reduce and eliminate

wetland and surface water impacts, Petitioners and Intervenor

raised the issue and discovered some profit-and-loss pro formas

that were presented and addressed during the hearing.

66. A pro forma prepared in August 2003 projected a profit

of $2.79 million for the first 8 of 12 units and an additional

$1.72 million profit on the next four units (taking into account

construction of a drawbridge and road to the west at a cost of

$1.8 million). This would result in a total profit of $4.51

million, less $800,000 for a reserve to pay for maintenance of

the drawbridge (which PDL said was required under timeshare

laws).

67. Another pro forma prepared in February 2004 projected

profits of $11.99 million on 16 "big-sized" units (3,000 square

feet), $11.81 million on 20 "mid-sized" units (2,200 square

feet), and $13.43 million on 24 "mixed-size" units (16 "mid-

sized" and 8 "small-sized" at 1,850 square feet), all taking into

account the construction of the drawbridge and road at a cost of

$1.8 million.

68. After production of the earlier pro formas during

discovery in this case, PDL prepared a pro forma on June 7, 2006.

The 2006 pro forma projected net profit to be $4.9 million,

before investment in the property. However, PFL did not make its

investment in the property part of the evidence in the case. In

addition, Petitioners and Intervenor questioned the validity of

the 2006 pro forma . PDL answered some of the questions better

than others.

69. To arrive at the projected net profit, PDL projected

significantly (33%) higher construction costs overall. The cost

of the drawbridge and road to the west was projected to increase

from $1.8 million to $2.5 million. Based on its experience, PDL

attributed the increase in part to the effect of rebuilding

activity after Hurricane Charlie and in part to the effect of

Sanibel Causeway construction (both increased overweight charges

and limitations on when construction vehicles could cross the

causeway, resulting construction work having to be done at night,

at a significantly higher cost). At the hearing, PDL did not

present any up-to-date market surveys or other supporting

information on construction costs, and the Sanibel Causeway

construction is expected to be completed before construction on

the Harbour Pointe project would begin. In addition, without a

full enough explanation, PDL replaced the bridge operation and

maintenance reserve of $800,000 with an unspecified bridge

reserve fund of $2 million.

70. On the revenue side of the 2006 pro forma , gross sales

of $1.9 million per unit were projected, which is less than PDL

was projecting per square foot in February 2004, despite the

assumed increased construction costs. PDL also attributes this

to the effects of Hurricane Charlie. Again, there were no market

surveys or other information to support the pricing assumptions.

Besides predicting lower price potential, the 2006 pro forma

deducts a pricing contingency of $2.3 million.

71. PDL did not calculate or present evidence on whether it

could make a profit building and selling 16 or 20 units, thereby

eliminating a building or two (and perhaps some road and

stormwater facility requirements) from the project's footprint.

The absence of that kind of evidence, combined with the

unanswered questions about the 2006 pro forma for the maximum

number of units PDL possibly can build, constituted a failure to

give reasonable assurance that wetland and surface water impacts

would be reduced and eliminated by design modifications to the

extent practicable, especially given the very high importance of

the wetlands being impacted.

H. Public Interest Test

72. An ERP applicant who proposes to construct a system

located in, on, or over wetlands or other surface waters must

provide reasonable assurances that the project will “not be

contrary to the public interest, or if such an activity

significantly degrades or is within an Outstanding Florida Water,

that the activity will be clearly in the public interest.”

§ 373.414(1)(a), Fla. Stat.; Rule 40E-4.302(1)(a); and SFWMD BOR

Section 4.2.3. This is known as the “Public Interest Test,” and

is determined by balancing seven criteria, which need not be

weighted equally. See Lott v. City of Deltona and SJRWMD , DOAH

Case Nos. 05-3662 and 05-3664, 2006 Fla. Div. Adm. Hear. LEXIS

106 (DOAH 2006). The Public Interest criteria are as follows:

i. Whether the activity will adversely affect the

public health, safety or welfare or the property of others.

73. There are no property owners adjacent to the site, and

the closest property owners to the site are located across the

inlet which connects Bryant Bayou to Pine Island Sound. While

mangrove wetlands generally provide maximum protection from

hurricanes, it does not appear from the evidence that existing

conditions would provide appreciably more protection that the

conditions contemplated by the proposed ERP. Otherwise, the

project would not adversely affect the public health, safety or

welfare, or property of others.

ii. Whether the activity will adversely affect the

conservation of fish and wildlife, including endangered or

threatened species, or their habitats.

74. The proposed ERP would impact (fill and destroy) 2.98

acres of very important, high quality mangrove wetlands. Even

with the restoration or creation of .7 acre of probable former

wetlands and improvements in the hydrologic connection of the

36.5-acre preserved wetland (Parcel A) to Pine Island Sound, the

proposed ERP probably will have a negative effect on the

conservation of fish and wildlife, including listed species.

However, the negative effect would not be considered "adverse" if

the elimination and reduction requirements of BOR 4.2.1.1 are

met.

iii. Whether the activity will adversely affect navigation

or the flow of water or cause harmful erosion or shoaling.

75. The proposed drawbridge will be constructed over the

inlet connecting Bryant Bayou with Pine Island Sound, a distance

of approximately 65 feet. Boaters use the inlet for navigation.

However, by its nature, a drawbridge allows for and not adversely

affect navigation. The proposed ERP does not contain specifics

on operation of the drawbridge, but PDL's consultant, Mr. Erwin,

testified that there would be no adverse effect on navigation,

assuming that the bridge would remain in the open position

between use for crossings by road. The drawbridge would not

adversely affect the flow of water or cause harmful erosion or

shoaling.

iv. Whether the activity will adversely affect the fishing

or recreational values or marine productivity in the vicinity

of the activity.

76. The question whether the proposed ERP will adversely

affect fishing or recreational values is informed by both the

UMAM functional assessment and the reduction and elimination

analysis. If impacts to wetlands and surface waters are reduced

and eliminated, and offset by mitigation, there should be no

significant adverse effects on fishing and recreational values.

v. Whether the activity will be of a temporary

or permanent nature.

77. The proposed development is permanent in nature.

vi. Whether the activity will adversely affect or will

enhance significant historical and archaeological resources

under the provisions of Section 267.061, Florida Statutes.

78. There are no significant archaeological resources on

the Harbour Pointe project site. Although shell scatter left by

the Calusa Indians has been found on Parcel A, they have been

evaluated in the permit application process by Corbett Torrence,

an archeologist, and found to be of limited historical or

archaeological value. The reduced scope of the project avoids

most of these areas. The proposed ERP will, however, enhance

significant archaeological resources by placing a conservation

easement on Parcel C, which is the site of the Chadwick Mound,

one of the largest Calusa Indian mounds in Lee County. Further

studies of this site could lead to a much better understanding of

the Calusa culture. This Indian mound is a very valuable

historical treasure, and its protection through inclusion in a

conservation easement is very much in the public interest.

vii. The current condition and relative value of functions

being performed by areas affected by the proposed activity.

79. This subject also was considered in the reduction and

elimination analysis and in the UMAM functional assessment. As

in the Findings the current condition and relative value of the

functions being performed by the areas affected by the proposed

activity are very valuable. That is why the reduction and

elimination analysis is particularly important in this case.

Assuming appropriate reduction and elimination, mitigation

according to the UMAM assessment can offset unavoidable impacts

to the functions performed by the areas affected by the proposed

activity.

I. Standing of CCA, SCCF, and CSWF

80. CCA, SCCF, and CSWF each has at least 25 current

members residing within Lee County and was formed at least one

year prior to the date of the filing of PDL's application.

81. CCA's mission statement includes protection of "our

residents' safety, the island ecology, and the unique island

ambience . . . ." CCA also is dedicated to "preserving and

expanding, where possible, the amount of native vegetation on

Captive Island" and preservation of natural resources and

wildlife habitat on and around Sanibel and Captiva Islands.

82. SCCF's mission is the preservation of natural resources

and wildlife habitat on and around Sanibel and Captiva. It

manages just over 1,800 acres of preserved lands, including

mangrove forest habitat similar to that being proposed for

development by PDL. Management activities involve invasive non-

native plant control, surface water management, prescribed

burning, native plant habitat restoration and wildlife

monitoring.

83. CSWF's purpose is to sustain and protect the natural

environment of Southwest Florida through policy advocacy,

research, land acquisition and other lawful means. Its four core

programs are: environmental education; scientific research;

wildlife rehabilitation; and environmental policy.

84. Of CCA's 464 members, approximately 115 live within the

boundaries of South Seas Plantation/Resort. Approximately 277 of

SCCF's 3,156 members live on Captiva Island, and 40 live within

the boundaries of South Seas Plantation/Resort.

85. The members of CCA and SCCF who own property on Captiva

Island rely on the mangrove systems for protection from storms.

86. A substantial number of the Captiva Island residents

and the other members of CCA and SCCF engage in recreational

activities in the vicinity of PDL's property, including boating,

fishing, bird-watching, wildlife observation, and nature study

that would be adversely affected by significant water quality and

wetland impacts from the proposed ERP.

87. CSWF has 5,600 family memberships, approximately 400 in

Lee County, and 14 on Sanibel. No members live on Captiva

Island. There was no evidence as to how many of CSWF's members

use the natural resources in the vicinity of the proposed ERP for

recreational purposes or otherwise would be affected if there are

water quality and wetland impacts from the proposed ERP.

CONCLUSIONS OF LAW

J. Standing of CCA, SCCF, and CSWF

88. Under Section 403.412(6), Florida Statutes:

Any Florida corporation not for profit which

has at least 25 current members residing

within the county where the activity is

proposed, and which was formed for the

purpose of the protection of the environment,

fish and wildlife resources, and protection

of air and water quality, may initiate a

hearing pursuant to s. 120.569 or s. 120.57,

provided that the Florida corporation not for

profit was formed at least 1 year prior to

the date of the filing of the application for

a permit, license, or authorization that is

the subject of the notice of proposed agency

action.

It is concluded that use of virtually the identical statutory

language is not mandatory for standing under this statute and

that CCA, SCCF, and CSWF all meet the requirements for standing

under this statute.

89. Party status under Sections 120.569 and 120.57, Florida

Statutes, also can be based on proof that "substantial interests

will be affected by proposed agency action." § 120.52(12)(b),

Fla. Stat. This requires proof of "an injury in fact which is of

sufficient immediacy and is of the type and nature intended to be

protected" by the substantive law. § 403.412(5), Fla. Stat. See

also Agrico Chemical Co. v. Dept. of Environmental Reg. , 406

So. 2d 478 (Fla. 2d DCA 1981). An organization like CCA, SCCF,

and CSWF may allege and prove either that its own substantial

interests or those of a substantial number of its members will be

affected. See Florida Home Builders Ass'n v. Dept. of Labor and

Employment Security , 412 So. 2d 351 (Fla. 1982); Farmworker

Rights Organization, Inc. v. Dept. of Health, etc. , 417 So. 2d

753 (Fla. 1st DCA 1982). In addition, Section 403.412(5),

Florida Statutes, provides:

No demonstration of special injury different

in kind from the general public at large is

required. A sufficient demonstration of a

substantial interest may be made by a

petitioner who establishes that the proposed

activity, conduct, or product to be licensed

or permitted affects the petitioner's use or

enjoyment of air, water, or natural resources

protected by this chapter.

CCA and SCCF made a sufficient demonstration under this statute

that the proposed ERP will affect the use or enjoyment of water

and natural resources protected by Chapter 403 by a substantial

number of membership of those organizations. As a result, they

also proved standing under Sections 120.569 and 120.57, Florida

Statutes.

90. CSWF did not initiate a proceeding under Section

403.412(6), but it filed a verified petition to intervene and

also has standing to intervene under Section 403.412(5), Florida

Statutes, as PDL concedes. CSWF did not prove standing under

Sections 120.569 and 120.57, Florida Statutes.

K. Burden of Proof

91. This is a de novo proceeding designed to formulate

final agency action. See Florida Department of Transportation v.

J.W.C. Company, Inc. , 396 So. 2d 778, 786-787 (Fla. 1st DCA

1981); and § 120.57(1)(k), Fla. Stat. As an ERP applicant, PDL

has the ultimate burden of proof and burden of persuasion. See

J.W.C. Company, Inc. , 396 So. 2d at 786-789. In light of the

evidence presented in this case, the option suggested in the

J.W.C. case to shift the burden of presenting evidence was not

useful.

L. ERP Criteria

92. The permitting criteria for PDL's proposed project are

found in Parts I and IV of Chapter 373, Florida Statutes, Florida

Administrative Code Chapter 62-345, Florida Administrative Code

Rules 40E-4.301 and 40E-4.302, and the BOR, which is adopted by

reference in Rule 40E-4.091(1)(a). For its proposed project to

be permitted, PDL must give reasonable assurance of compliance

with those criteria. Issuance of an ERP must be based solely on

compliance with applicable permit criteria. See Council of the

Lower Keys v. Charley Toppino & Sons, Inc. , 429 So. 2d 67 (Fla.

3d DCA 1983).

93. Reasonable assurance contemplates a substantial

likelihood that the project will be successfully implemented.

See Metropolitan Dade County v. Coscan Florida Inc ., 609 So. 2d

644 (Fla. 3d DCA 1992). Absolute guarantees are not necessary,

and a permit applicant is not required to eliminate all contrary

possibilities or address impacts that are only theoretical and

cannot be measured in real life. See City of Sunrise v. Indian

Trace Community Development District, et al. , DOAH Case No. 91-

6036, 1991 Fla. ENV LEXIS 6997, 92 ER FALR 21 (DOAH 1991, SFWMD

1992); Manasota-88 Inc. v. Agrico Chemical Co. and Department of

Environmental Regulation , DOAH Case No. 87-2433, 1990 Fla. ENV

LEXIS 38 (DER 1990).

94. Rule 40E-4.301(1)(a)-(c) requires the applicant to

provide reasonable assurance that the construction, alteration,

operation, maintenance, removal, or abandonment of a surface

water management system:

(a) will not cause adverse water quantity

impacts to receiving waters and adjacent

lands;

(b) will not cause adverse flooding to on-

site or off-site property; and

(c) will not cause adverse impacts to

existing surface water storage and conveyance

capabilities; . . . .

As found, PDL met its burden of providing reasonable assurances

to satisfy Rule 40E-4.301(1)(a)-(c).

95. Rule 40E-4.301(1)(d) and BOR Section 4.2.2 require an

applicant to provide reasonable assurance that the construction,

alteration, operation, maintenance, removal, or abandonment of a

surface water management system will not adversely impact the

value of functions provided to fish and wildlife and listed

species by wetlands and other surface waters. BOR Section

4.2.2.3 provides that the value of wetland functions is to be

determined by considering the wetland’s: (a) condition; (b)

hydrologic connection; (c) uniqueness; (d) location; and (e) fish

and wildlife utilization. Additionally, the applicant must

provide reasonable assurance that the activity will not change

the hydroperiod of the wetland so as to adversely affect wetland

functions pursuant to BOR Section 4.2.2.4.

96. As found, the 2.98 acres of mangrove wetlands that will

be impacted currently are of high quality and are very important.

PDL contends that their proximity to spoil-created uplands and

residential development across the inlet to Bryant Bayou keep

them from being of the very highest quality. However, secondary

impacts of a similar nature will adversely affect existing very

high quality wetlands immediately adjacent and to the south of

the directly-impacted 2.98 acres, subject to improvements

resulting from the mitigation plan to restore .7 acre of wetlands

where the shell/sand road now exists.

97. Mitigation proposals to offset environmental impacts

are governed Section 373.414, Florida Statutes. Specifically,

Section 373.414(1)(b) states:

If the applicant is unable to otherwise meet

the criteria set forth in this subsection,

the governing board or the department, in

deciding to grant or deny a permit, shall

consider measures proposed by or acceptable

to the applicant to mitigate adverse effects

that may be caused by the regulated activity.

Such measures may include, but are not

limited to, onsite mitigation, offsite

mitigation, offsite regional mitigation, and

the purchase of mitigation credits from

mitigation banks permitted under s. 373.4136.

It shall be the responsibility of the

applicant to choose the form of mitigation.

The mitigation must offset the adverse

effects caused by the regulated activity.

98. Additionally, Section 373.414(18), Florida Statutes,

states, in pertinent part:

The department and each water management

district responsible for implementation of

the environmental resource permitting program

shall develop a uniform mitigation assessment

method for wetlands and other surface

waters. . . . The rule shall provide an

exclusive and consistent process for

determining the amount of mitigation required

to offset impacts to wetlands and other

surface waters, and, once effective, shall

supersede all rules, ordinances, and variance

procedures from ordinances that determine the

amount of mitigation needed to offset such

impacts. Once the department adopts the

uniform mitigation assessment method by rule,

the uniform mitigation assessment method

shall be binding on the department, the water

management districts, local governments, and

any other governmental agencies and shall be

the sole means to determine the amount of

mitigation needed to offset adverse impacts

to wetlands and other surface waters and to

award and deduct mitigation bank credits.

. . . It shall be a goal of the department

and water management districts that the

uniform mitigation assessment method

developed be practicable for use within the

timeframes provided in the permitting process

and result in a consistent process for

determining mitigation requirements. It

shall be recognized that any such method

shall require the application of reasonable

scientific judgment. The uniform mitigation

assessment method must determine the value of

functions provided by wetlands and other

surface waters considering the current

conditions of these areas, utilization by

fish and wildlife, location, uniqueness, and

hydrologic connection, and, when applied to

mitigation banks, the factors listed in s.

373.4136(4). The uniform mitigation

assessment method shall also account for the

expected time-lag associated with offsetting

impacts and the degree of risk associated

with the proposed mitigation. The uniform

mitigation assessment method shall account

for different ecological communities in

different areas of the state.

Thus, the UMAM developed under Section 373.414(18), Florida

Statutes, is the only allowable way to evaluate the wetland

impacts of a project and determine the required mitigation. The

applicant has committed to compensate for any functional loss

determined by UMAM by purchasing additional mitigation bank

credits from the LPIWMB, which is specifically allowed by Section

373.414(1)(a)(7), Florida Statutes, and Rule 62-345.100(2).

99. Additionally, pursuant to Rule 40E-4.301(3), an

applicant’s proposed mitigation must meet the requirements of BOR

Sections 4.3 through 4.4.13.5. PDL’s proposal to remove existing

shell/sand road, restore wetlands there, place a conservation

easement on 72.8 acres, including the conservation of the Calusa

Indian mound on Parcel C, and the purchase of mitigation bank

credits meet those mitigation requirements.

100. Rule 40E-4.301(1)(e) requires that an applicant

provide a reasonable assurance that the surface water management

system

[w]ill not adversely affect the quality of

receiving waters such that the water quality

standards set forth in Chapters 62-4, 62-302,

62-520, 62-522 and 62-550, F.A.C., including

any antidegradation provisions of paragraphs

62-4.242(1)(a) and (b), subsections 62-

4.242(2) and (3), and Rule 62-302.300,

F.A.C., and any special standards for

Outstanding Florida Waters and Outstanding

National Resource Waters set forth in

subsections 62-4.242(2) and (3), F.A.C., will

be violated.

Additionally, BOR Sections 5 and 4.2.4 require the applicant to

provide reasonable assurances regarding the short-term and long-

term water quality impacts associated with the system.

101. Assuming construction access by the road and bridge to

be constructed, and no construction dewatering, the project will

not create short-term water quality impacts, as the permit

provides for a turbidity control plan, the placement of silt

screens or other sediment control measures, and buffers.

(Without those assumptions, short-term water quality would have

to be re-evaluated.)

102. Regarding long-term impacts, PDL provided reasonable

assurances through the unrebutted expert testimony of Dr. Harper

and Dr. Missimer that any discharge into the wetland area would

not increase the levels of nitrogen or phosphorus, both of which

naturally occur in the wetland and the surrounding waters, and

that the ambient water quality of Pine Island Sound is not of

higher quality than any discharge which will occur from the site.

This testimony provided reasonable assurance that any discharge

from the project that eventually flows into Pine Island Sound

will not violate any water quality or significantly degrade

receiving waters. As a result, it was not necessary for PDL to

affirmatively demonstrate that the proposed activity is "clearly

in the public interest," or that "existing ambient water quality"

will not be lowered, as would have been required under Rule 62-

4.242(2)(a)2. if the activity were in, or significantly degraded,

an OFW. Finally, the applicant provided reasonable assurance

that there would be no long-term turbidity violations or erosion.

103. Rule 40E-4.301(1)(f) requires that an applicant

provide reasonable assurance that the surface water management

system “[w]ill not cause adverse secondary impacts to the water

resources.” In assessing secondary impacts, BOR Section 4.2.7

requires the District to evaluate impacts to wetland and surface

water functions, water quality, upland habitat for aquatic or

wetland-dependent listed species, and historical and

archeological resources. With the required turbidity control

plan, the placement of silt screens or other sediment control

measures, and buffers, reasonable assurance was provided that

there will be no net secondary impacts to the water resources as

a result of the proposed ERP. Additionally, BOR Section 4.2.7

allows applicants to propose mitigation where secondary impacts

cannot be avoided. As indicated, use of the mandatory UMAM

established that PDL's proposed mitigation, plus approximately an

additional .9 of LPIWMB credit, would offset impacts, including

secondary impacts, and satisfy the requirements of Rule 40E-

4.301(1)(f).

104. Rule 40E-4.301(1)(g) requires that an applicant

provide reasonable assurance that the surface water management

system “[w]ill not adversely impact the maintenance of surface or

ground water levels or surface water flows established pursuant

to Chapter 373.042, F.S.” Because of the intertidal nature of

the area affected, this rule is inapplicable.

105. There are no works of the District within the Harbour

Pointe development area; therefore, Rule 40E-4.301(1)(h) is

satisfied.

106. Rule 40E-4.301(1)(i) requires that an applicant

provide reasonable assurance that the surface water management

system “[w]ill be capable, based on generally accepted

engineering and scientific principles, of being performed and of

functioning as proposed.” The unrebutted expert testimony of

Drs. Harper and Missimer, David Willems, and Anthony Waterhouse

provided reasonable assurance that the project will satisfy Rule

40E-4.301(1)(i).

107. Rule 40E-4.301(1)(j) requires that an applicant

provide reasonable assurance that the surface water management

system “[w]ill be conducted by an entity with the sufficient

financial, legal and administrative capability to ensure that the

activity will be undertaken in accordance with the terms and

conditions of the permit, if issued.” PDL satisfied Rule 40E-

4.301(1)(j).

108. Because the project is not located in a special basin

or geographic area as established in Rule 40E-41, the project

meets the requirements of Rule 40E-4.301(1)(k).

109. Rule 40E-4.301(2) is inapplicable in this case because

it only applies when the receiving waters do not meet ambient

water quality standards.

110. Rule 40E-4.301(3) provides that the determination

whether reasonable assurance has been provided includes the

provisions for elimination and reduction of impacts contained in

the BOR. BOR Section 4.2.1 provides the governing criteria

regarding the elimination or reduction of impacts for a proposed

project as follows:

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 proposed 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. Design

modifications to reduce or eliminate adverse

impacts must be explored, as described in

subsection 4.2.1.1. Any adverse impacts

remaining after practicable design

modifications have been implemented may be

offset by mitigation as described in

subsections 4.3 - 4.3.9. An applicant may

propose mitigation, or the District may

suggest mitigation, to offset the adverse

impacts caused by regulated activities as

identified in sections 4.2 - 4.2.8.2. To

receive District approval, a system cannot

cause a net adverse impact on wetland

functions and other surface water functions

which is not offset by mitigation.

The relevant portion of Basis of Review Section 4.2.1.1 provides

in pertinent part:

The term "modification" shall not be

construed as including the alternative of not

implementing the system in some form, nor

shall it be construed as requiring a project

that is significantly different in type or

function. A proposed modification which is

not technically capable of being done, is not

economically viable, or which adversely

affects public safety through the

endangerment of lives or property is not

considered "practicable". A proposed

modification need not remove all economic

value of the property in order to be

considered not "practicable". Conversely, a

modification need not provide the highest and

best use of the property to be "practicable".

In determining whether a proposed

modification is practicable, consideration

shall also be given to the cost of the

modification compared to the environmental

benefit it achieves.

111. As found, while PDL made several modifications to its

proposed project that reduced and eliminated wetland impacts, it

did not provide reasonable assurance that wetland impacts were

reduced and eliminated to the extent practicable.

112. PDL claims that it began its impact

elimination/reduction process in 1973 when Mariner filed an

application with Lee County for the right to develop 912 dwelling

units on its 310 acres instead 3,900 dwelling units, which was

the theoretical maximum at that time. PDL characterizes

Mariner's application as a "voluntary downzoning." Regardless

whether that is a fair characterization, as a matter of law,

development rights on a piece of property are not relevant to the

District's inquiry into whether a proposal reduces and eliminates

wetland impacts to the extent practicable. In addition, PDL's

application was for modification of the 1985 Permit, which only

contemplated construction of an 18-unit hotel on the property.

113. On the other hand, Petitioners and Intervenor contend

essentially that reduction and elimination was considered in the

1985 Permit, which authorized all residential development in

uplands, and that no additional wetland impacts should be allowed

at this time. However, the 1985 Permit did not regulate wetland

impacts, and the possibility of future wetland impacts from a

proposed golf course were contemplated although no such impacts

were permitted at that time.

114. Petitioners and Intervenor also contend, in the

alternative, that PDL should be required to reduce and eliminate

wetland impacts by consolidating dwelling units and amenities on

Captiva Island proper. However, PDL has no right to use

Meristar's property except for possibly sharing some amenities.

Even assuming that PDL's Harbour Pointe could share swimming

pools on Meristar's property, the evidence proved that

elimination of the swimming pool at Harbour Pointe would not be a

practicable design modification.

115. According to the testimony of Anita Bain, SFWMD's

director of ERP regulation, SFWMD decides whether further

elimination and reduction of wetland impacts is practicable by

comparing the amount of wetland impacts to the amount of wetlands

preserved. Based on the comparison, "it's almost like we know it

when we see it; in that, you wouldn't ask an applicant to build a

ten-mile bridge to avoid a half an acre wetland impact, so

something that's so extreme that's obvious, rather than how much

profit would a particular applicant make on a particular

project." As a result, SFWMD's staff did not review any

financial or market information before accepting PDL's claim that

further reduction and elimination through development of fewer

condo units would not be economically viable. This was not a

sufficient inquiry. See Dibbs v. Dept. of Environmental

Protection, et al. , DOAH Case No. 94-5409, 1995 Fla. ENV LEXIS 26

(DEP Apr. 14, 1995).

116. In the de novo hearing on the issues raised by

Petitioners and Intervenor in this case, discovery was conducted,

and evidence was presented on the issue of economic viability.

As SFWMD conceded through the testimony of Ms. Bain, in

interpreting and applying BOR Section 4.2.1.1, "the more

important a wetland is the greater extent you would require

elimination and reduction of impact." As found, the evidence was

not sufficient to prove that the proposed ERP reduces and

eliminates wetland impacts to the extent practicable.

117. Rule 40E-4.302(1)(a) requires an applicant to provide

reasonable assurance that a system “located in, on, or over

wetlands or other surface waters will not be contrary to the

public interest, or if such an activity significantly degrades or

is within an OFW, that the activity will be clearly in the public

interest.” See also BOR § 4.2.3. The proposed system is not

located in the Pine Island Sound OFW; rather, it discharges into

adjacent wetlands. Secondly, PDL offered the unrebutted expert

testimony of Drs. Harper and Missimer that the system will not

measurably degrade Pine Island Sound. Therefore, PDL’s burden

was to provide reasonable assurances that the project is not

contrary to the public interest.

118. As found, assuming proper elimination and reduction,

and with some stipulations, in balancing the seven criteria in

the public interest test, PDL provided reasonable assurance that

the proposed ERP would not be contrary to the public interest.

119. Rule 40E-4.302(1)(b) requires that an applicant

provide reasonable assurance that the surface water management

system “[w]ill not cause unacceptable cumulative impacts upon

wetlands and other surface waters as set forth in BOR Sections

4.2.8. through 4.2.8.2." Unacceptable cumulative effects are

described by BOR Section 4.2.8.1 as follows:

Cumulative impacts are considered

unacceptable when the proposed system,

considered in conjunction with the past,

present, and future activities as described

in 4.2.8, as set forth in subsection

4.1.1(c), would result in a violation of

state water quality standards or significant

adverse impacts to functions of wetlands or

other surface waters, identified in

subsection 4.2.2, within the same drainage

basin when considering the basin as a whole.

As found, there will not be any adverse cumulative impacts.

120. The Harbour Pointe project is “[l]ocated in, adjacent

to or in close proximity to Class II waters” for purposes of Rule

40E-4.302(1)(c). Therefore, the project must comply with the

additional criteria in BOR Section 4.2.5, the relevant portion of

which states that the SFWMD shall:

(a) deny a permit for a regulated activity

in Class II waters which are approved for

shellfish harvesting unless the applicant

submits a plan or proposes a procedure to

protect those waters and waters in the

vicinity. The plan or procedure shall detail

the measures to be taken to prevent

significant damage to the immediate project

area and the adjacent area and shall provide

reasonable assurance that the standards for

Class II waters will not be violated.

(b) deny a permit for a regulated activity

in any class of waters where the location of

the system is adjacent or in close proximity

to Class II waters, unless the applicant

submits a plan or proposes a procedure which

demonstrates that the regulated activity will

not have a negative effect on the Class II

waters and will not result in violations of

water quality standards in the Class II

waters; . . . .

The waters surrounding this project are prohibited for shellfish

harvesting and have been for some time. The evidence gave

reasonable assurance that the plan and design of the stormwater

system will protect the surrounding waters from degradation,

satisfying the above policies.

121. Rule 40E-4.302(1)(d) is not applicable to the proposed

project, as the Harbour Pointe development does not contain any

vertical seawalls in estuaries or lagoons.

122. When determining whether an applicant has provided

reasonable assurances, Rule 40E-4.302(2) requires the District

take into consideration a permit applicant’s previous violation

of rules under the jurisdiction of the District. Here, the

evidence was that PDL has not violated any District rules.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the proposed ERP be denied; however, if

wetland and surface water impacts are reduced and eliminated to

the extent practicable, the proposed ERP should be issued with

the additional conditions, as represented by PDL's witnesses:

that the proposed drawbridge be left drawn except when in use for

road access; that construction access be via the proposed

drawbridge only; and that there be no construction dewatering.

DONE AND ENTERED this 8th day of November, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th of November, 2006.

ENDNOTE

1 All rule references are to the current version of the Florida

Administrative Code.

COPIES FURNISHED :

Richard J. Grosso, Esquire

Everglades Law Center, Inc.

3305 College Avenue

Fort Lauderdale, Florida 33314-7721

Lisa Interlandi, Esquire

Everglades Law Center, Inc.

330 US Highway 1, Suite 3

Lake Park, Florida 33403-3531

Matthew D. Uhle, Esquire

Knott, Consoer, Ebelini & Swett, P.A.

1625 Hendry Street, Third Floor

Fort Myers, Florida 33901

Kenneth G. Oertel, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

301 South Bronough Street

Post Office Box 1110

Tallahassee, Florida 32302-1110

Peter Cocotos, Esquire

South Florida Water Management District

3301 Gun Club Road, MSC-1410

West Palm Beach, Florida 33406-3007

Robert N. Hartsell, Esquire

Everglades Law Center

330 U.S. Highway 1, Suite 3

Lake Park, Florida 33403-3531

Gary A. Davis

The Conservancy of Southwest Florida

1450 Merrihue Avenue

Naples, Florida 34102

Carol Ann Wehle, Executive Director

South Florida Water Management District

3301 Gun Club Road, MSC-1410

West Palm Beach, Florida 33406-3007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.