16-001861 City Of West Palm Beach vs. Palm Beach County, Florida Department Of Transportation, And South Florida Water Management District Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, July 18, 2019.

Summary: Petitioner failed to prove that the applicants were not entitled to the environmental resource permit to build the SR 7 extension and associated surface water management system.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF WEST PALM BEACH,

Petitioner,

vs. C ase No. 16 - 1861

PALM BEACH COUNTY, DEPARTMENT OF

TRANSPORTATION, AND SOUTH

FLORIDA WATER MANAGEMENT

DISTRICT,

Respondents.

_______________________________/

RECOMMENDED ORDER

The final hearing in this case was held on August 23 - 26 and

November 29 - 30, 2016, in West Palm Beach, Florida, before Bram

D.E. Canter, Administrative Law Judge of the Division of

Administrative Hearings (ÐDOAHÑ).

APPE ARANCES

For Petitioner: Roger William Sims, Esquire

Holland & Knight LLP

200 South Orange Avenue, Suite 2600

Orlando, Florida 32801

Rafe Petersen, Esquire

Holland & Knight LLP

800 17th Street Northwest

Washington, DC 20006

Martin John Alexander, Esquire

Holland & Knight LLP

701 Br ickell Avenue, Suite 3300

Miami, Florida 33131

For Respondent Palm Beach County :

Philip Mugavero, Esquire

Kim Phan, Esquire

Palm Beach County Attorney's Office

300 North Dixie Highway, Suite 359

West Palm Beach, Florida 33401

For Respondent Department of Transportation:

John J. Fumero, Esquire

Nason Yeager Gerson White

& Lioce, P.A.

750 Park of Commerce Boulevard, Suite 210

Boca Raton, Florida 33487

Douglas H. MacLaughlin, Esquire

Thomas F. Mullin, Esquir e

Nason, Yeager, Gerson, White

& Lioce, P.A.

7700 Congress Avenue, Suite 2201

Boca Raton, Florida 33487

For Respondent South Florida Water Management Distri ct:

Susan Roeder Martin, Esquire

Julia Lomonico, Esquire

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

STATEMENT OF ISSUE

The issue to be determined in this case is whether the

Respondents, Florida Department of Transportation (ÐFDOTÑ) and

Palm Beach County (also referred to as Ðthe ApplicantsÑ), are

entitled to the issuance of an Environmental Resource Permit

(ÐERPÑ) to construct an extension of State Road 7 (ÐSR 7Ñ) and

its associated surface water management system in Palm Beach

County.

PRELIMINARY STATEMENT

On February 15, 2016, South Florida Wate r Management

District (ÐDistrictÑ) issued its Notice of Intended Agency Action

to approve Permit No. 50 - 05422 - P to FDOT and Palm Beach County

for construction of a road and surface water management system

with on - site and off - site mitigation for wetland im pacts.

On March 22, 2016, the City of West Palm Beach (ÐCityÑ)

filed a petition challenging the proposed permit. The petition

was subsequently amended. The District referred the CityÓs

amended petition to DOAH to conduct an evidentiary hearing and

issue a Recommended Order. On June 20, 2016, the City filed a

Second Amended Petition.

On or about August 19, 2016, FDOT and the County made

modifications to their application.

At the final hearing, the City presented the testimony of

four expert witnesses: Ha rvey Harper, III, Ph . D. ; Evelyn Gaiser,

Ph . D. ; Kevin Erwin, C.E. ; and Thomas E. Lodge, Ph . D. The City

called Scott Kelly, P.E., as a fact witness. City Exhibits 1 - 5,

7, 7a, 8 - 19, 21, 22, 22a, 24 - 27, 29, 34, 44, 47 - 49, 53, 61, 63,

74 - 77, 79, 81, 84, 100, 102, 104, 105, 111, 112, 124, 133, 136 -

138, 140, 141, 143, 145, 149, 151, 173, 174, 174a, 175 - 180, 184,

185, 188, 191, 191a, 192, 193a, 194, 195, 198, 201, 202, 205,

208, 212, 219a, 226 - 235, 240, 244 - 248, 250, and 251 were admitted

into evidence.

FDOT pres ented the testimony of three expert witnesses:

Hian Kor, P.E. ; Patricia Gertenbach, P.G. ; and Michael Garau,

P.E. FDOT called Ann Broadwell as a fact witness. FDOT Exhibits

1, 4 - 9, 11, 12, 14, 28 - 30, and 32 - 34 were admitted into evidence.

Palm Beach Cou nty presented the testimony of expert witness

Robert Robbins, P.W.S., and fact witness George Webb. County

Exhibits 1, 11 , and 12e were admitted into evidence.

The District presented the testimony of three expert

witnesses: Anthony Waterhouse, P.E. ; Meli nda Parrott, P.W.S. ;

and Zachariah Welch, Ph . D. District Exhibits 1, 2, 3, 16, 21,

22a, 24 , and 35 were admitted into evidence. City Exhibits 164,

220 , and 221 were accepted as proffers.

Joint Exhibits 1 - 27 were admitted into evidence. Official

recognit ion was granted for the Administrative Complaints and

Orders for Corrective Action filed in SFWMD vs. City of West Palm

Beach , SFWMD No. 2016 - 056 - DAO - ERP, and SFWMD vs. Northern Palm

Beach County Improvement District , SFWMD No. 2016 - 057 - DAO - ERP.

A time was set aside for receiving public comments and

several members of the public spoke , some for and some against

the proposed permit. Two documents were submitted by members of

the public and placed in the record. The public comments and the

two submitted doc uments are not part of the evidentiary record.

The 14 - volume Transcript of the final hearing was filed with

DOAH. The parties filed Proposed Recommended Orders that were

considered by the Administrative Law Judge in the preparation of

this Recommended Ord er.

FINDINGS OF FACT

I. The Parties

1. The City is a municipality incorporated under Florida

law.

2. The District is a regional agency with the authority to

regulate the construction, operation, and maintenance of any

surface water management system pur suant to chapter 373, Part IV,

Florida Statutes, and Florida Administrative Code Titles 40E and

62.

3. FDOT is an agency of the state of Florida charged with

the establishment, maintenance, and regulation of public

transportation. It is a co - applicant fo r the ERP permit.

4. Palm Beach County is a political subdivision of the

State of Florida , and is a co - applicant for the ERP permit.

II. Background

A. State Road 7 Extension

5. The ERP was issued by the District for an 8.5 - mile

extension of SR 7 betwee n Okeechobee Boulevard and Northlake

Boulevard in Palm Beach County.

6. The purpose of the proposed roadway is to relieve

traffic now moving through rural residential areas and two large

residential developments known as The Acreage and Jupiter Farms.

Th e proposed roadway would also improve hurricane evacuation by

providing additional capacity and connectivity , and reduce

emergency response time in the rural residential areas.

7. The proposed roadway alignment was selected by FDOT

after a multiyear corri dor study under a National Environmental

Protection Policy Act process. Four corridors were considered

using federal selection criteria that addressed social,

environmental, property, physical, and financial impacts.

8. There are two segments of the prop osed roadway covered

by the ERP. The southern segment would add two more lanes to the

existing two - lanes of SR 7 from Okeechobee Boulevard North to

60th Street North, just south of the M - Canal. This segment is

4.4 miles long. The southern segment is not at issue in this

case.

9. The northern segment would extend four lanes of SR 7

east from 60th Street North about one mile, and then north

3.1 miles to Northlake Boulevard. This is the roadway segment

challenged by Petitioner. Hereafter, all references to Ðthe

ProjectÑ are to the northern segment.

10. The Project includes a raised roadway, median,

sidewalks, bike lanes, and stormwater swales. It also includes a

bridge over the M - Canal and a bridge over a water control

outfall.

11. The Project would be constructed in an existing right -

of - way (ÐROWÑ). FDOT owns a ROW that is approximately 200 feet

wide. The County owns an adjacent 120 - foot - wide ROW, so that the

total width of the Project ROW is 320 feet.

12. Running north/south within the ROW is a d irt service

road, a ditch, and a fence.

13. Much of the vegetation in the ROW is dominated by

invasive and exotic plant species, including Melaleuca, Carolina

Willow, Brazilian Pepper, and Australian Pine.

B. The Ibis Development

14. West of the Project ROW is the 1,958 - acre Ibis Golf and

Country Club residential development (Ð IbisÑ ). In 1989, an ERP

was issued for IbisÓ surface water management system (Ðthe Ibis

systemÑ). The Ibis system includes almost 300 acres of

interconnected lakes that provide w ater management and water

quality treatment for Ibis.

15. The 1989 permit required the Ibis system to be sized to

receive and treat runoff from a segment of Northlake Boulevard

and from an existing two - lane road off of Northlake Boulevard

that serves the commercial area of Ibis, which is directly north

of the Ibis residential area.

16. The Ibis system was also required to receive and

provide water treatment and storage for the stormwater runoff

from 46.8 acres of the ROW for SR 7.

17. The parties introdu ced evidence about modifications to

the 1989 permit, which the City contends reduced the treatment

capabilities of the system. It is found from the preponderance

of the evidence that the original system and its modifications

continued to meet design requi rements to store and treat future

runoff from 46.8 acres of the SR 7 ROW. 1/

18. When the water in the Ibis lakes reaches elevation

17.5 feet NGVD (National Geodetic Vertical Datum) , pumps at two

pump stations at the south end of Ibis begin pumping water o ver a

berm into Ibis Preserve, a 366 - acre natural area directly south

of Ibis.

19. Water is retained in Ibis Preserve un les it exceeds an

elevation of 18.5 feet, when it then passes over an outfall

structure into the Grassy Waters Everglades Preserve (ÐGr assy

WatersÑ) to the east.

20. Ibis Preserve provides additional water quality

treatment for the water pumped from Ibis, but this additional

treatment was not part of the calculation of water quality

management for Ibis. The Ibis system was required to m eet

District permitting criteria before discharge to Ibis Preserve.

21. The North Palm Beach County Improvement District

(ÐImprovement DistrictÑ) owns and has operational and maintenance

responsibility for the Ibis system. It also owned and managed

Ibis Preserve, but transferred ownership and management of Ibis

Preserve to the City in 2004.

C. Grassy Waters/Water Catchment Area

22. To the east of the Project is the City - owned ÐWater

Catchment Area,Ñ which covers about 14,700 acres or 23 square

miles.

23 . The Water Catchment Area is owned by the City and is

part of its public drinking water supply system. Water in the

Water Catchment Area flows to Lake Mangonia where it is

withdrawn, treated, and then delivered to residents and

businesses in the City, t he Town of Palm Beach, and the Town of

South Palm Beach.

24. There is a statement in the Project application that

Grassy Waters refers only to the open water marsh within the

Water Catchment Area. The Water Catchment Area includes other

habitat types bes ides open marsh. Most of the information in the

record indicates that Grassy Waters and the Water Catchment Area

have the same boundaries. Therefore, in this Recommended Order,

Grassy Waters and the Water Catchment Area are treated as being

two names for the same area.

25. Grassy Waters was once connected to the Everglades and

large portions of it have the same characteristics, being an open

water marsh with an extended hydroperiod. It is oligotrophic,

meaning it is low in nutrients and has an ecosystem adapted to

low nutrient conditions.

26. It was undisputed that most areas of Grassy Waters are

of high or even pristine environmental quality.

27. Grassy Waters has periphyton, an assemblage of algae

that only survive in phosphorous levels of less than 10 parts per

billion (ÐppbÑ). Periphyton is the base of the food chain in the

open water marsh area of Grassy Waters and is consumed by apple

snails and many invertebrates and fish.

28. Grassy Waters has a visitor and nature center and

provides recreatio nal opportunities, such as canoeing, hiking,

and bird watching.

29. There appeared to be disagreement about whether the

Project ROW is located in Grassy Waters or adjacent to it. The

ROW is not within Grassy Waters, it is adjacent. However, t he

wetlands and other surface waters within the ROW are

hydrologically connected to Grassy Waters.

30. In the western part of Grassy Waters, which ends at the

Project ROW, there are hammock islands and hydric pine flatwoods.

The City contends these areas and the re st of the ROW were

historically open water marsh, but were changed by human

activities. The more persuasive evidence is that this western

area was not all open marsh, historically. It was an area of

natural transition from open water marsh to other habit at types.

D. Ibis Impacts to Grassy Waters

31. The parties disputed whether the Ibis system is a

Ðfailed system.Ñ This is not a technical or defined term. The

relevant issue is whether the Ibis system is operating in

conformance with the requirements o f its permit.

32. The City contends the Ibis lakes are eutrophic and that

sediment accumulation in the lakes is releasing phosphorus back

into the water, which ends up in Grassy Waters. However, the

CityÓs expert witness, Dr. Harper, admitted that the ph osphorus

concentration being discharged from the Ibis system, about

40 ppb, is typical for surface water management systems serving

large residential developments, although that concentration is at

the high end of the range.

33. The phosphorus concentrati on is closer to 30 ppb in

discharges from Ibis Preserve into Grassy Waters, showing that

Ibis Preserve provides additional treatment to the waters coming

out of Ibis.

34. The characterization of the nutrient loading from the

Ibis system as ÐtypicalÑ did n ot address the additional nutrients

in the drainage that the Ibis system is required to accept from

the SR 7 ROW. The record does not show that the nutrient

concentrations from the Ibis system would still be typical if all

of the ROW drainage were added w ithout pre - treatment , as was

contemplated by the 1989 Ibis permit .

35. Because Grassy Waters is an oligotrophic ecosystem, it

can be adversely affected by phosphorus levels above 10 ppb.

When phosphorus is introduced into an oligotrophic system in

concen trations over 10 ppb, the system begins to change to denser

wetland vegetation, which can include invasive and nuisance

species, such as cattail.

36. There is denser vegetation and cattails in Grassy

Waters near the Ibis Preserve outfall. There is also m ore

phosphorus in sediments near the outfall. These effects decrease

with distance from the outfall, but some effects were detected as

far as a half mile from the outfall.

37. The CityÓs expert witness, Dr. Gaiser, testified that

periphyton is dissolved by high nutrient levels and replaced by

weedy algae. She found adverse effects on periphyton near the

outfall.

38. Dr. Gaiser also found microcystis near the outfall.

Microcystis is a toxic algae caused by high elevations of

phosphorous. Microcystis co mprised over 10 percent of the cell

density of the algal community near the outfall.

39. The DistrictÓs witness, Mr. Waterhouse, conceded that

there is a problem with nuisance vegetation at the discharge

point into Grassy Waters. He said the District was not aware of

the problem before information was developed for this case.

40. No evidence was presented about what consideration the

District gave in 1989, when Ibis was permitted, to the potential

adverse impacts of discharging phosphorus into the oligot rophic

ecosystem of Grassy Waters. Based on the evidence that a

phosphorus concentration of 30 ppb is expected for this kind of

surface water management system, it must be concluded that the

Ibis system was not designed to prevent harm to oligotrophic

rec eiving waters.

41. Respondents presented evidence to show that phosphorus

loadings from the M - Canal could be the cause of the adverse

impacts found near the Ibis Preserve outfall. The M - Canal was

constructed by the City for the primary purpose of deliver ing

water from Lake Okeechobee, via connection to the L - 8 Canal, to

the Water Catchment Area for public water supply. For most of

its length, the M - Canal runs through Grassy Waters.

42. The City generally maintains the water level in the

M - Canal below th e elevation of Grassy Waters so water in the

canal will not flow into Grassy Waters. However, on some

occasions, water flows from the M - Canal into Grassy Waters. High

phosphorus concentrations have been recorded in the M - Canal; as

high as 300 ppb. Nuisa nce vegetation is growing in the area

where the M - Canal connects to the Water Catchment Area.

43. The preponderance of the evidence establishes that the

adverse impacts described by the CityÓs experts in the area of

the Ibis Preserve outfall are caused pr imarily by discharges from

Ibis Preserve.

44. There are three other developments adjacent to Grassy

Waters that occasionally discharge to Grassy Waters. These

discharges are likely to contain some nutrients , but the amount

of nutrients and their effects , if any, on Grassy Waters were not

described in the record.

45. The Water Catchment Area is a Class I waterbody because

it is used for public water supply. The water quality standard

for phosphorus and other nutrients in a Class I waterbody is set

forth in Florida Administrative Code Rule 62 - 302.530(48)(b):

In no case shall nutrient concentrations of a

body of water be altered so as to cause an

imbalance in natural populations of aquatic

flora or fauna.

46. Grassy Waters was designated by the Departmen t of

Environmental Protection (ÐDEPÑ) as a stream. Rule

62 - 302.531(2)(c) states that the narrative criterion Ðshall be

interpreted as being achieved in a stream segment where

information on chlorophyll a levels, algal mats or blooms,

nuisance macrophyte g rowth, and changes in algal species

composition indicates there are no imbalances in flora or fauna.Ñ

47. The City presented some evidence regarding nuisance

macrophyte growth and changes in algal species composition in

Grassy Waters near the Ibis Preserv e outfall.

48. Little evidence was presented regarding the practice of

DEP or the District in the application of the narrative nutrient

standard, but the preponderance of the evidence indicates the

agency practice is to consider a stream segment as a who le to

determine whether it exhibits an imbalance in natural populations

of aquatic flora and fauna. 2/

49. During the course of this proceeding, t he District

issued administrative complaints against the Improvement District

and the City, which include Orde rs for C orrective Action. The

complaints were issued pursuant to section 373.119, Florida

Statutes, which authorizes such action when a water management

district believes that a violation of any provision of chapter

373 or district rule has occurred. How ever, at the final

hearing, the District was reluctant to say the Improvement

District had violated any law or permit condition.

50. The Improvement District did not challenge the

enforcement action against it and, therefore, the DistrictÓs

enforcement or der became final. The Improvement District is

required to address the accumulation of sediment in the Ibis

Lakes, develop a nutrient source control plan, eliminate and

reduce the use of herbicides containing copper sulfate, and

reassess pumping schedules.

51. There is no target nutrient limit specified in the

DistrictÓs Orders for Corrective Action.

52. The DistrictÓs enforcement action against the City

seeks to require the City to increase secondary treatment and

retention in Ibis Preserve, provide a pl an to remove the

exotic/invasive vegetation at the outfall, provide a vegetation

monitoring plan, and develop source control measures for

residential developments that discharge into Grassy Waters. The

City challenged the enforcement action and it remains pending.

E . Snail Kites

53. The Everglades snail kite gets its name from its

primary food, the apple snail. In the Everglades, snail kites

also feed on an exotic island snail, which occurs there in about

equal numbers as apple snails. There was no evi dence presented

that there are exotic island snails in Grassy Waters.

54. Snail kite habitat is dependent on conditions conducive

to apple snails, which are the open marsh and oligotrophic

conditions where periphyton flourish. If a sufficient number of

a pple snails are present, snail kites will find suitable nesting

nearby.

55. Dense wetland vegetation is not good forage for snail

kites because, even if apple snails are present, the apple snails

will be difficult or impossible for the snail kites to see.

56. Dr. Welch, who was the state snail kite conservation

coordinator at the Florida Fish and Wildlife Conservation

Commission and wrote the snail kite management plan for Florida,

testified for the District, where he is now employed as a senior

scientist . He said field surveys of snail kite nests in Grassy

Waters indicate their numbers are relatively low compared to

other areas where snail kites are found. There were only ten

successful nests (eggs laid) observed from 2000 to 2016.

57. The CityÓs Everg lades expert, Dr. Lodge, speculated

that the low nest counts could be due to difficulty in seeing the

nests, but he was not familiar with the survey techniques used

and, therefore, his opinion that the numbers could be materially

underestimated is not cred ited.

58. Snail kites nest throughout the Water Catchment Area,

but primarily in the open marsh areas of the central and eastern

portions of the Water Catchment Area. Over 90 percent of snail

kite nests are more than a mile from the Project ROW.

59. Dr. Lodge said there are four snail kite nests within

800 feet of the Project, but he was not more specific about their

locations. Most nests are closer to Northlake Boulevard, State

Road 710, and the Florida Turnpike.

60. The major factor that adversely af fects successful

nesting by snail kites and produc tion of offspring is predation,

usually by raccoons and rat snakes . ÐCold snapsÑ and drought are

also factors.

III. Impacts of The Proposed Project

A. Water Quantity Impacts

61. Water storage for the Project , which was going to be

handle d in the Ibis system under the 1989 Ibis permit, would be

provided in the road side swales. The Project is designed to

retain water volumes greater than typically required for

roadways.

62. Stormwater would not flow ou t of the Project into the

Ibis system except in unusually large storm events , in excess of

six inches of rainfall .

6 3 . The City did not dispute the ProjectÓs compliance with

the applicable water quantity criteria in the District rules.

B. Water Quality I mpacts

6 4 . To address the CityÓs concerns about adverse impacts

caused by the Ibis system, the Applicants expanded the roadside

swales by ten feet and raised the outfall elevation by 0.05 feet .

With these modifications, the Project would provide water qu ality

treatment for its stormwater and no longer rely on the Ibis

system for treatment. The swales would provide treatment in

excess of the treatment required by District rules.

6 5 . Respondents contend that, when the treatment provided

by the Ibis system is added, the total treatment provided for the

Project stormwater is more than twice as much as required by

District rules. The City , on the other hand, claims that no

additional water quality treatment can be provided by the Ibis

system because the Ibis Lakes are eutrophic. The preponderance

of the evidence supports a finding that Project runoff to the

Ibis system would receive additional water quality treatment in

the Ibis system and in Ibis Preserve before flowing to Grassy

Waters.

6 6 . The effect of the ProjectÓs on - site treatment of its

stormwater is that the amount of nutrients that would otherwise

flow into the Ibis system from SR 7 would be reduced. Therefore,

the effect of the Project is to reduce the nutrient load that t he

Improvement District was permitted to discharge to Ibis Preserve

and Grassy Waters.

67. The City did not dispute the ApplicantsÓ evidence that

the Project exceeds the DistrictÓs design criteria for water

quality. The City focused instead on its contention that,

despite its c ompliance with water quality design criteria, the

Project would result in additional nutrient loading to Grassy

Waters, which would cause additional adverse impacts to its flora

and fauna.

68. The Applicants and the City performed nutrient loading

analyse s even though such analyses are only required by the

District when the receiving waters have been designated by the

Department as ÐimpairedÑ by nutrients or in the case of certain

other specially designated waters. Grassy Waters does not have

any of these special designations.

69. The ApplicantsÓ nutrient loading analysis concluded

that the post - development loading of phosphorus and nitrogen from

the Ibis system would be less than the pre - development condition ,

so there would be a net decrease in nutrient s discharged into

Grassy Waters. PetitionerÓs expert witness, Dr. Harper, believes

the Project would increase nutrient loading to Grassy Waters,

even if stormwater from the Project did not carry additional

nutrients, because the increased volume of water moving through

the Ibis system would entrain more nutrients from sediments in

the Ibis lakes.

7 0 . Dr. Harper believes the Project would also cause

nutrient loading via groundwater seepage through the roadway

swales into Grassy Waters. The preponderance o f the evidence

does not support his opinion that groundwater seepage would cause

additional nutrient loading. 3/

7 1 . Dr. Harper believes another source of nutrient loading

from the Project would be from surface flow down the roadway

embankments . On the ea stern embankment , t his flow would enter

the mitigation area 150 feet from Grassy Waters.

72 . Dr. HarperÓs estimated total loading from all sources is

not persuasive . The estimate gives a false sense of precision .

It is based on a number of variable assu mptions, some of which

are not widely known or in use by experts in the fi e ld. In

addition, Dr. HarperÓs opinion did not appear to appropriately

account for the modifications to the ProjectÓs storage capacity.

73. Dr. HarperÓs estimated loading was not t ranslated into

physical effects in Grassy Waters.

74. The Applicants Ó estimate of total nutrient loading also

gives a false sense of precision, but it is based on a well - known

and widely used methodology. The City failed to prove that the

Project would r esult in more nutrient loading to Grassy Waters

than is currently contributed by the ROW. Because the Project

would not rely on the Ibis system for stormwater treatment, the

Project would reduce the loading that the Improvement District

was permitted to d ischarge to Grassy Waters.

75. To address potential vehicular spills into Grassy

Waters, FDOT produced a Spill Response Plan. The swales would

capture and contain any material spilled on the roadway or swale.

The curb and gutter, a guardrail, gravity wa ll , and fence also

provide protection against spills. The bridge over the M - Canal

would use a 54 - inch traffic barrier, which is higher than FDOT

specifications for the design speed for the bridge.

76. The City did not present evidence to show that the

pr otective measures proposed by the Applicants are less than what

is usually considered adequate under similar circumstances, or

fails to meet a relevant safety standard.

C . Wetland Impacts

Direct Impacts

77. The Project would directly impact 52.37 acres o f

wetlands and 7.86 acres of surface waters. The impacted wetlands

are fresh water marsh, mixed shrubs, and hydric pine flatwoods.

The surface waters affected consist of vegetated ditches and un -

vegetated channels or canals. The impacted wetlands includ e

11.77 acres of freshwater marsh. The impacted surface waters are

ditches. Most of these wetlands are disturbed and their

functional values have been reduced.

Secondary Impacts

78. District rules require an applicant to account for the

secondary impact s caused by a project that could adversely affect

the functions of adjacent wetlands or other surface waters. The

ApplicantÓs Handbook defines secondary impacts to include impacts

on wetland functions, water quality, and endangered species,

including impa cts on areas needed by endangered species for

foraging.

79. Part of the ApplicantsÓ assessment of secondary impacts

of the Project was made by reviewing the effects of the Acreage

Reliever Road on Pond Cypress Preserve, a 1,737 - acre conservation

area mana ged by the County that is immediately south of the

proposed Project.

80. The County has been monitoring the effect of the

Acreage Reliever Road on hydrology, vegetation, and species

compensation ever since the road was built. The County found no

adverse secondary impacts caused by the road. The species that

use the wetlands near the road, including wading birds, appear to

be unaffected by the road.

81. The scoring of secondary impacts for the Projects,

using the Uniform Mitigation Assessment Methodology (ÐUMAMÑ), was

conservative, meaning that assumptions were made at the high side

of the potential range of impacts. This resulted in more

mitigation being required.

82. The Applicants claim the Project would Ðmaintain a

300 - foot buffer between the projec tÓs construction boundary and

[Grassy Waters].Ñ This appears to be a misstatement. The

ApplicantsÓ combined ROW is only 320 feet wide. Going east from

the limits of construction, it is 160 feet to Grassy Waters. The

ProjectÓs buffer is 160 feet wide.

8 3. The District accounted for secondary impacts to wetland

dependent species, including snail kites, from noise and lights

that might discourage use of the area. The Project would provide

a tree buffer that will reduce noise and light impacts to Grassy

W aters. The roadway lighting plan is also intended to reduce

light penetration into Grassy Waters.

84. Most of the threatened and endangered bird species are

tolerant of roadways for foraging and roosting, but not for

nesting.

85. Section 10.2.7 requires the Applicants to provide

reasonable assurances that any future phase of a project or

project - related activities will not result in adverse impacts to

the functions of wetlands or water quality violations. The

Applicants satisfied this requirement by rel easing of FDOT ROW

north and south of the Project.

Cumulative Impacts

86. An applicant must provide reasonable assurance that a

regulated activity will not cause unacceptable cumulative impacts

upon wetlands and other surface waters within the same draina ge

basin as the regulated activity for which a permit is sought.

87. Some of the proposed mitigation for the Project is out -

of - basin. If an applicant proposes to mitigate impacts in

another drainage basin, District rules require consideration of

factors such as Ðconnectivity of waters, hydrology, habitat range

of affected species, and water qualityÑ to determine whether

there are unacceptable cumulative impacts.

88. The Project is located in the eastern Palm Beach County

Basin, which has approximately 21 ,000 acres of wetlands. About

89 percent of the wetlands in the basin are publicly - owned

conservation lands, which means their wetland functions will

continue into the future.

89. The cumulative impact analysis was conservative, meaning

that the actual i mpacts are likely to be fewer.

90. Petitioner contends that RespondentsÓ cumulative impact

analysis did not account for the unique nature of the Grassy

Waters ecosystem as the only remaining low nutrient oligotrophic

wetland in the region. The prepondera nce of the evidence shows

that the historical wetland types in the Project area were not

all like the open marsh found in the central and eastern portion

of Grassy Waters. Respondents accounted for the loss of open

water marsh that would be caused by the Project.

D . On - Site Mitigation

91. There would be 52.4 acres of on - site mitigation within

a 160 - foot - wide strip of land along the eastern limits of

proposed construction.

92. This area of the ROW would be managed by removing or

treating the exotic veget ation , such as Brazilian Pepper and

Maleleuca. Removing the exotic vegetation seed source would

prevent further spread of these nuisance species into Grassy

Waters.

93. Where native habitats have been altered with ditches

and berms, the land would be gra ded to create a slope from the

limits of construction eastward to the edge of the ROW. The

eastern elevation would be similar to the adjacent marsh or

hydric pine areas of Grassy Waters.

94. Then, native vegetation would be planted. The habitats

enhance d, restored, or created would include freshwater marsh,

hydric pine flatwoods and mixed forested wetlands, including

cypress.

95. The planting of mixed, forested species would provide

sound and light buffering for snail kites and other species in

Grassy W aters.

96. Two wildlife passages would be created underneath the

Project with fencing designed to direct wildlife to use the

wildlife passages. Slats would be placed in the roadway fencing

to prevent small animals from going through the fence and onto

th e roadway.

97. The on - site mitigation was scored using UMAM and

determined to result in functional gain. The UMAM analysis was

conservative, meaning that the actual functional gain is likely

to be greater.

98. The City did not contest the UMAM scoring.

E . Off - site Mitigation

99. FDOT is applying mitigation credits from 210 acres at

the Pine Glades Natural Area (ÐPine GladesÑ) to offset impacts to

15.7 acres of herbaceous marsh and 26.78 acres of forested

wetland impacts.

100. Pine Glades is a regional off - site mitigation area

located in the Loxahatchee River Basin and is owned and operated

by Palm Beach County. Pine Glades consists of a mix of wet

prairie, depression marshes, hydric pine flatwoods, and mesic

flatwoods. The restoration work in Pine Gl ades has already been

completed. Pines Glades implements a detailed management plan that

provides regional ecological value.

101. Robbins testified that Pine Glades has similar habitats

to Grassy Waters. Pine Glades has periphyton, apple snails,

snail k ites, wood storks, and sand hill cranes. Pine Glades has

some areas with oligotrophic conditions.

102. Additional off - site mitigation to offset 52 acres of

wetland impacts caused by the Project would be provided at the

DuPuis Reserve (ÐDuPuisÑ) . DuPuis is a regional off - site

mitigation area located between the L - 8 Canal and the C - 44 Canal

in western Palm Beach and Martin Counties, and is owned and

operated by the District. DuPuis would provide mitigation with

34.71 acres of herbaceous wetlands and 43.8 acres of forested

wetlands.

103. DuPuis is appropriate to offset the impacts associated

with the Project because it provides similar habitats with similar

values of functions for similar wildlife. DuPuis implements a

detailed management plan that provide s regional ecological value.

104. The City argues that there is little similarity

between the Grassy Waters ecosystem and Pine Glades or DuPuis , so

the mitigation there cannot offset the unique assemblage of

plants and animals that would be lost in Grass y Waters. It is

unnecessary for Pine Glades and DuPuis to be dominated by open

water marshes like Grassy Waters. It is only necessary that they

have some of these areas to offset Project impacts to open water

marsh.

105. Proposed snail kite mitigation w ould provide 52.5 more

acres of snail kite habitat than would be directly impacted by

the Project. The mitigation for snail kites will be located in

FDOT ROW adjacent to the Project, south of the M - Canal, and north

of Northlake Blvd.

10 6 . Erwin expressed concern about fragmentation of the

ecosystems that would be caused by the Project. The areas that

would be affected by the Project have already been fragmented by

berms, ditches, and fences. Grassy Waters is surrounded by

berms, a canal, and highways.

1 0 7 . The Project would cause fragmentation, like all roads.

However, the fragmentation was reduced where practicable, and the

City did not show that the roadway would cause the loss of any

significant ÐgreenwayÑ now used by wildlife.

F . Snail Kite Impa cts

10 8 . Section 10.2.2(a) requires an applicant to provide

reasonable assurances that a proposed activity would not impact

wetlands and other surface waters so as to reduce the abundance

and diversity of listed species.

10 9 . Snail kites, wood storks, sa ndhill cranes, white

ibises, and little blue herons are listed species that have been

observed within the Project corridor.

11 0 . As explained in the Conclusions of Law, the UMAM

process is designed to mitigate for wetland functional losses,

not snail kite functional losses. However, the potential impact

to any listed species warrants close attention to the issue of

whether function - for - function wetland mitigation would be

provided.

11 1 . There will be 11.5 acres of direct impacts to snail

kite habitat wit hin the footprint of the Project area. Dr. Welch

believes secondary impacts to wetland functions associated with

snail kites could extend 800 feet east of the ROW.

11 2 . Mitigation for snail kites would be located in the

Rangeline corridor south of the M - Canal and north of Northlake

Boulevard. Dr. Welch estimated there were about 64 acres of

snail kite habitat in the Rangeline corridor similar to the

11.5 acres of habitat located in the Project footprint.

Dr. Welch conceded that he has no evidence that sn ail kites

currently use the Rangeline, but he believes the habitat is

suitable and is appropriate mitigation.

11 3 . Petitioner claims there are studies of Ðsimilar birdsÑ

indicating that snail kites avoid highways due to noise.

However, the studies were n ot of similar birds. More weight is

given to Dr. WelchÓs testimony that snail kites are not

particularly sensitive to roadway noise.

11 4 . Dr. Welch stated that Pine Glades would likely have

value for snail kites because it is near the Hungryland Wildlife

Management Area, which has the same number of successful snail

kite nests as Grassy Waters.

11 5 . The City contends that Pine Glades is too far away

from Grassy Waters to mitigate Project impacts to snail kites.

However, snail kites range long distances to forage; several

hundred miles in a few days. Satellite telemetry of snail kites

shows snail kites from Grassy Waters are using Pine Glades for

feeding.

11 6 . Dr. Welch reviewed snail kite nesting data to

determine whether roads deterred nesting and fou nd that snail

kites frequently nested within 500 feet of major roadways.

11 7 . Dr. Welch refuted the idea that Grassy Waters provided

snail kite refuge during drought conditions, because Grassy

Waters is also subject to drought conditions that adversely

af fect snail kites.

11 8 . There are conditions in the permit to limit potential

impacts to snail kites during construction of the Project. If

snail kite nesting is observed within 1 , 640 feet of construction,

all Project construction must cease. Thereafter, monitoring of

the nest and notification of the U . S . Fish and Wildlife Service

is required. Construction cannot resume until that nest has been

considered finished.

1 19 . FDOT would place a conservation easement over

82.6 acres in the FDOT ROW between Oke echobee Boulevard and the

M - Canal, south of the Project area that is the subject of this

proceeding. The conservation easement would maintain

connectivity between the Pond Cypress Natural Area and Grassy

Waters and ensure that no future southern extension of the

roadway will be constructed.

12 0 . A conservation easement would be placed on the FDOT

ROW between Northlake B oulevard and SR 710, an area of

approximately 43.5 acres. Preserving this area protects a

hydrologic connection between Loxahatchee Sloug h Natural Area and

Grassy Waters. It also ensures no future northern extension of

the roadway.

12 1 . A conservation easement would be placed on a portion

of the FDOT ROW between SR 710 and Jupiter Farms, an area of 44.5

acres. This section of ROW is in t he Loxahatchee Slough and the

release of the ROW would be a direct benefit to Loxahatchee

Slough.

12 2 . The preservation of these areas would benefit fishing

and recreational values in the Pond Cypress Natural Area, Grassy

Waters, and the Loxahatchee Sloug h Natural Area.

12 3 . These conservation areas did not receive UMAM credits

to reduce the wetland acreage needed to offset wetland functional

losses, but they were included in the mitigation credit for

benefits to snail kites and other wildlife.

G. Summar y

12 4 . The preponderance of the evidence established that the

proposed mitigation offsets the impacts to wetlands and other

surface waters that would be caused by the Project and exceeds

the requirements of District rules.

H. Practicable Design Modificat ions

12 5 . District rules require an applicant to consider

alternatives that would avoid or reduce wetland impacts. The

City claims the Applicants failed to comply with this rule

because FDOT selected a roadway corridor that was expected to

have greater e nvironmental impacts than some of the other three

corridors that were being considered.

12 6 . As explained in the Conclusions of Law, this argument

is misplaced. The DistrictÓs review of the ApplicantsÓ measures

to avoid or minimize wetland impacts was ap propriately confined

to Corridor 3, the corridor selected by FDOT where the Project is

proposed.

12 7 . The Applicants reduced and eliminated impacts of the

Project in several ways. For example, the footprint of the road

was narrowed from six lanes to four lanes, wildlife underpasses

were provided, retaining walls were used to narrow stormwater

features, the median was reduced in size, and the design speed

limit was reduced for the bridge at the M - Canal crossing.

12 8 . Under two circumstances, District rule s allow an

applicant to avoid the requirement to implement practicable

design modifications to reduce or eliminate wetland impacts,

which are referred to as the Ðopt - outÑ provisions. Section

10.2.1.2, Vol ume I, of the ApplicantÓs Handbook (ÐA.H.Ñ)

provide s:

(a) The ecological value of the functions

provided by the area of wetland or other

surface water to be adversely affected is

low, based on a site specific analysis using

the factors in section 10.2.2.3, below, and

the proposed mitigation will provide g reater

long term ecological value than the area of

wetland or other surface water to be

adversely affected, or

(b) The applicant proposes mitigation that

implements all or part of a plan that

provides regional ecological value and that

provides greater l ong term ecological value

than the area of wetland or other surface

water to be adversely affected.

1 29 . The District determined that the Applicants meet both

tests. The preponderance of the evidence supports the DistrictÓs

determination.

13 0 . The ecol ogical value of the functions provided by the

affected wetlands and surface is low and the proposed mitigation

would provide greater long - term ecological value than the area

being impacted. Pine Glades and DuPuis are part of a plan to

restore the ecologic al value of Northern Palm Beach County and

create an Ðocean to lakeÑ system of preserves and natural areas.

CONCLUSIONS OF LAW

Jurisdiction

13 1 . DOAH has jurisdiction over the subject matter and the

parties to this proceeding. § 120.57(1), Fla. Stat.

Standing

13 2 . The City presented competent evidence to show it has

substantial interests that could be affected by the proposed ERP.

Therefore, it has standing to challenge the proposed permit. See

St. Johns Riverkeeper, Inc. v. St. Johns River Water Mg mt. Dist. ,

54 So. 3d 1051, 1054 (Fla. 5th DCA 2011).

Burden and Standard of Proof

13 3 . This is a de novo proceeding designed to formulate

final agency action, not to review action taken preliminarily.

See Capeletti Bros. v. DepÓt of Gen. Servs ., 432 So. 2 d 1359,

1363 - 64, (Fla. 1st DCA 1983); § 120.57(1)(k), Fla. Stat.

13 4 . Because the City challenged a permit issued pursuant

to chapter 373, the procedure described in section 120.569(2)(p)

is applicable:

For any proceeding arising under Chapter 373,

Chapte r 378, or Chapter 403, if a non -

applicant petitions as a third party to

challenge an agencyÓs issuance of a license,

permit, or conceptual approval, the order of

presentation in the proceeding is for the

permit applicant to present a prima facie

case demon strating entitlement to the

license, permit, or conceptual approval,

followed by the agency. This demonstration

may be made by entering into evidence the

application and relevant material submitted

to the agency in support of the application,

and the agen cy staff report or notice of

intent to approve the permit, license, or

conceptual approval. Subsequent to the

presentation of the applicants prima facie

case and any direct evidence submitted by the

agency, the petitioner initiating the action

challenging the issuance of the permit,

license, or conceptual approval has the

burden of ultimate persuasion and has the

burden of going forward to prove the case in

opposition to the license, permit, or

conceptual approval through the presentation

of competent and substantial evidence.

13 5 . The statute contemplates an abbreviated presentation

of the applicantÓs prima facie case. The permit application and

supporting material that the agency determined was satisfactory

to demonstrate the applicantÓs entitlement to the permit retains

its status as satisfactory when it is admitted into evidence at

the final hearing. It logically follows from the wording of the

statute that the permit application and supporting materials may

be received into evidence for the truth of the matters asserted

in them, without being subject to hearsay objections. If these

documents could not be admitted into evidence except through

witnesses with actual knowledge and requisite competence as to

all statements in the documents, one of the pr imary purposes of

the statute would be destroyed.

13 6 . Section 120.569(2)(p) does not address the situation

which sometimes occurs, and which occurred in this case, when a

proposed permit is modified Ðafter the fact,Ñ that is, after

issuance of the agency staff report or notice of intent to

approve the permit. There is no basis to presume that an after -

the - fact modification is entitled to the abbreviated prima facie

showing. Therefore, the Administrative Law Judge ruled that the

modifications to the Proj ect had to be proved in the ÐnormalÑ

manner; the principal difference being that hearsay evidence

would not be admissible to demonstrate that the modification

complies with applicable permitting criteria.

13 7 . There is no mention in section 120.569(2)(p) of

surrebuttal, but judges have always had discretion to allow

surrebuttal when appropriate. Here, surrebuttal is appropriate

because, otherwise, the challenger would not be afforded two

presentations, which is a right afforded to petitioners in all

other administrative proceedings, plaintiffs in all civil

proceedings, and appellants in all appellate proceedings.

13 8 . The Applicants met their burden to present a prima

facie case for entitlement to the permit. Therefore, the burden

of ultimate persuasion was upon the City to prove its case in

opposition to the permit.

1 39 . The standard of proof is a preponderance of the

evidence. § 120.57(1)(j), Fla. Stat. The City had to prove by a

preponderance of the evidence that the Applicants did not provide

reason able assurance of compliance with applicable criteria.

14 0 . Reasonable assurance contemplates a substantial

likelihood that the project will be successfully implemented.

See Metropolitan Dade C n ty v. Coscan Fl a. , Inc. , 609 So. 2d 644

(Fla. 3d DCA 1992).

Waiver

14 1 . Respondents argue that the City waived its right to

challenge the 46.8 acres of drainage from the ROW that was

provided for in the 1989 Ibis permit, because the City did not

challenge the permit. If that were correct, it would mean the

Distri ct was also required to permit the 46.8 acres of runoff

from the Project. However, Ibis was issued a permit obligating

it to treat and store runoff from the 46.8 acres; FDOT was not

simultaneously issued a permit authorizing it to send its runoff

to Ibis. The City has the right to raise any issue the District

had the right to raise in its review of the Project.

ERP Permit Criteria

14 2 . In order to provide reasonable assurances that a

Project will not be harmful to the water resources of the

District, th e Applicants must satisfy the conditions for issuance

set forth in rules 62 - 330.301 and 62 - 330.302, and the applicable

sections of Volumes I and II of the ApplicantÓs Handbook.

Impact Avoidance

14 3 . Section 10.2.1, A.H., Vol. I, requires an applicant to

e liminate or reduce impacts through practicable design

modifications. The City argued that this rule required FDOT to

select the corridor with the least environmental impacts from the

corridors studied by FDOT in the federal review p rocess. That

argument is rejected.

14 4 . The selection of a roadway corridor is made based on

many factors other than environmental impacts. If FDOT were

required to select the corridor projected to have the least

environmental impact, then consideration of other factors would

be meaningless. The evaluation of measures to avoid or reduce

wetland impacts caused by the Project was appropriately confined

to Corridor 3 where the Project is proposed.

14 5 . This is the same way the rule applies to projects

other than roads. For exa mple, an applicant does not have to

show the District that its project would have fewer impacts on

the proposed site than on other properties the applicant might

own or control. The District appropriately reviews only the

opportunities for avoiding or red ucing wetland impacts for the

same type of project on the proposed site.

14 6 . The design modifications made by the Applicants to

eliminate and reduce impacts within Corridor 3 satisfy the rule.

14 7 . Moreover, the Applicants demonstrated they qualified

to use the Ðopt outÑ provisions of Section 10.2.1.2, which a llow

an applicant to opt out of a showing of reduction or elimination of

impacts when the ecological value of the functions of affected

wetlands is low and the proposed mitigation will provide great er

long - term ecological value, or when the mitigation implements all

or part of a plan providing regional ecological value and greater

long - term ecological value than the affected wetlands.

Water Quantity

14 8 . The City failed to prove adverse water quanti ty

impacts would result from the Project constituting a violation of

any rule of the District. The Applicants provided reasonable

assurance that the Project would not cause adverse flooding or

adversely impact to off - site storage and conveyance capabiliti es.

Water Quality

1 49 . The City does not dispute that the Project meets the

DistrictÓs design criteria for water quality protection. The

ProjectÓs compliance with the design criteria creates a

presumption that it meets water quality standards. Section

8 .3.3., A.H., Vol. I. The City attempted to rebut the

presumption by showing that, despite the ProjectÓs compliance

with design criteria, the Project would cause adverse water

quality impacts in Grassy Waters.

15 0 . Rule 62 - 302.300(15) prohibits pollution which causes or

contributes to new violations of water quality standards or to

continuation of existing violations.

15 1 . Respondents argue that the rules of the District

cannot prevent the Applicants from causing or contributing to

water quality violation s in Grassy Waters because the ApplicantsÓ

runoff would be discharged to a surface water management system.

Th is interpretation would be a substantial w eakening of

chapter 373 and rule 62 - 302.300.

15 2 . The RespondentsÓ citation to section 373.4142, which

states that water quality standards do not apply within a

stormwater management system, misses the point. Section 373.4142

also states that water management districts must prevent the water

quality in a stormwater management system from adversely impacti ng

adjacent waters. This statute and others show the LegislatureÓs

expectation that the District would not find reasonable assurances

if the ApplicantsÓ discharge to the Ibis system caused a violation

of water quality standards in adjacent Grassy Waters.

15 3 . The District construed the issue as Ðwhether an

applicant can be required to provide reasonable assurances that a

downstream system does not have maintenance issues.Ñ That is not

the issue. An applicant does not have to make any showing about

a Ð do wnstream system Ñ in order to qualify for a presumption of

reasonable assurances. The issue is whether the presumption can

be rebutted when the District knows or a challenger shows the

District that the applicantÓs discharge will cause or contribute

to a w ater quality violation in adjacent waters. The DistrictÓs

argument is essentially that the presumption cannot be rebutted.

That argument appears to conflict with chapter 373 and FloridaÓs

antidegradation policy. 4 /

15 4 . However, this issue is made moot b y the finding that

the Project would not cause or contribute to a water quality

violation in Grassy Waters.

15 5 . The agency practice in applying the narrative nutrient

standard for streams in rule 62 - 302.530 is to consider the stream

segment as a whole to determine whether nutrient concentrations

of a waterbody have been altered so as to cause an imbalance in

natural populations of aquatic flora or fauna. This is a

reasonable interpretation of the narrative standard because it is

more logical for the term Ðnutrient concentrations of a water

body , Ñ and the term Ðnatural populations , Ñ to be reference s to

the entire waterbody , not to the plants and animals in a small

area.

15 6 . It was undisputed that most of Grassy Waters continue s

to be of high or even pris tine quality. Therefore, when Grassy

Waters is considered as a whole, there is no imbalance in natural

populations of aquatic flora and fauna.

15 7 . Because a system - wide imbalance in natural populations

of flora and fauna is necessary to establish a viol ation of the

narrative nutrient standard, it makes the near - destruction of an

ecosystem the line that must be crossed before the standard is

violated. That is the reason DEP replaced the narrative standard

with numerical nutrient criteria for most waterbo dies in Florida.

However, the narrative nutrient standard still applies to some

waterbodies, including Grassy Waters.

15 8 . The City cited general policy statements in statutes

and rules expressing the desire to prevent Ðharm,Ñ Ðadverse

impacts,Ñ or Ðdegr adation.Ñ However, the City did not show that

any court or agency order has ever determined that harm, adverse

impact, or degradation of water quality which fell short of

violating a water quality standard , was a sufficient basis for

denying a permit.

1 59 . As stated above, the District takes the position that

it cannot deny the Project even if the Project would cause a

violation of water quality standards in Grassy Waters. If the

District is wrong and it does have authority to prevent such

harm, it was s till not enough for the City to show that nutrient

loading from Ibis caused adverse impacts to Grassy Waters and

additional loading from the Project would cause some unspecified

additional harm. The City had to prove that the additional

loading from the P roject would result in an imbalance in the

natural populations of flora and fauna in Grassy Waters. It

failed to do so.

16 0 . Additionally, section 373.414(1)(b)(3) provides:

If the applicant is unable to meet water

quality standards because existing ambi ent

water quality does not meet standards, the

governing board or the department shall

consider mitigation measures proposed by or

acceptable to the applicant that cause net

improvement of the water quality in the

receiving body of water for those paramete rs

which do not meet standards.

The Applicants demonstrated that the Project would create a net

improvement in water quality by treating its stormwater before

discharge to the Ibis system.

Wetlands and Snail Kites

16 1 . Section 10.2.1, A.H., Vol. I, state s that, Ðan

activity cannot cause a net adverse impact on wetland functions

and other surface water functions that is not offset by

mitigation.Ñ

16 2 . The District argues that its determination whether

proposed mitigation is sufficient is within its sole d iscretion,

citing a 1996 final order of the Department. Cases decided

before the adoption and use of UMAM should no longer be

controlling on this issue. UMAM established a quantifiable

method for determining wetland functional losses and the amount

of mi tigation necessary to offset the losses. Because mitigation

assessments are now quantified using a uniform methodology,

deference to an agencyÓs determination that proposed mitigation

is sufficient is no longer necessary or appropriate.

16 3 . However, the preponderance of the evidence supports

the DistrictÓs determination that the Applicants demonstrated all

direct and secondary impacts to wetlands and other surface waters

would be offset by mitigation. The Applicants also demonstrated

that there would be no unacceptable cumulative impacts from the

Project. Therefore, there would be no net adverse impact caused

by the Project.

16 4 . The Applicants provided reasonable assurance that the

Project would comply with r ule 62 - 330.301(1)(d), Section 10.2.2,

A.H., Vol. I, and all other District rules requiring that the

construction, operation, and maintenance of the Project not

adversely impact the value of functions provided to fish, wildlife

and listed species by wetlands and other surface waters.

16 5 . Section 1 0.3.1.1 states that, for a degraded wetland,

mitigation is best accomplished through creation, restoration,

enhancement , or preservation of the ecological community that was

historically present. The proposed mitigation appropriately

accounts for historic ally present habitats, including open water

marsh.

16 6 . T he UMAM process is designed to mitigate for wetland

functional losses, including losses associated with foraging,

roosting, nesting, and other values by listed bird species. When

functional loss un its are offset by creating or restoring

wetlands of similar type, it is assumed that all related

functional values are mitigated, including values to listed

species.

16 7 . Potential impacts to Grassy Waters open marsh and to

snail kites were appropriately evaluated . T he Applicants

provided reasonable assurance that the proposed mitigation would

offset the impacts.

Public Interest Test

16 8 . Permit applicants must demonstrate that projects in

wetlands or surface waters are not contrary to the public

interes t, as determined by balancing seven factors set forth in

section 373.414:

1. Whether the project will adversely affect

the public health, safety, or welfare or the

property of others;

2. Whether the project will adversely affect

the conservation of fish and wildlife,

including endangered species, or their

habitats;

3. Whether the project will adversely affect

navigation or the flow of water or cause

harmful erosion or shoaling;

4. Whether the project will adversely affect

the fishing or recreationa l values or marine

productivity in the vicinity of the project;

5. Whether the project will be of a temporary

or permanent nature;

6. Whether the project will adversely affect

or will enhance significant historical and

archaeological resources under th e provisions

of s.267.061; and

7. The current condition and relative value

of functions being performed by areas affected

by the proposed activity.

1 69 . The parties stipulated that factors 1 and 2 are not at

issue. The parties also stipulated that the ProjectÓs impacts

are permanent.

17 0 . The Project would not adversely affect the public

interest factors associated with wetlands and wildlife (factors 2

and 3) because the Project would not cause impacts which are not

offset by mitigation.

17 1 . The Pro ject would not adversely impact public health,

safety, and welfare associated with the CityÓs public water

supply in the Water Catchment area because the Project would have

no effect on the CityÓs water supply operations. In addition,

there are reasonable protective measures to prevent a spill from

entering the CityÓs public water supply.

17 2 . After balancing the public interest factors, it is

concluded that the Project is not contrary to the public

interest.

Other Permitting Criteria

17 3 . Rule 62 - 300.30 1(1)(i) requires an applicant to provide

reasonable assurance that the construction and operation of a

proposed project will be capable, based on generally accepted

engineering and scientific principles, of performing and

functioning as proposed. The Appl icants provided reasonable

assurances that the Project satisfies this rule.

17 4 . Rule 62 - 330.301(1)(j) requires a showing that the

applicant has the financial, legal, and administrative capability

of ensuring that the activity will comply with the terms a nd

conditions of the permit. Because the Applicants both have the

power of eminent domain, they satisfied the requirement to

demonstrate legal capability to comply with requirements of the

permit. The City did not show that the Applicants lack the

necess ary financial or administrative capability to implement the

project in conformance with all permit conditions.

Summary

17 5 . The City failed to meet its burden of ultimate

persuasion to prove that the Project does not comply with all

applicable permitting criteria. The Applicants demonstrated their

compliance with all applicable permitting criteria and their

entitlement to the permit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the South Florida W ater Management District

enter a final order approving Permit Number 50 - 05422 - P on the

terms and conditions set forth in the amended Staff Report, and

the complete application for the Permit.

DONE AND ENTERED this 31st day of March , 2017 , in

Tallahassee, L eon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of March , 2017 .

ENDNOTE S

1/ The City sought to move into evidence all of the permit

modifications to the 1989 Ibis permit , as well as the entire

permit ap plication file, arguing that these materials show there

are additional limitations that affect the ApplicantsÓ right to

discharge Project runoff into the Ibis system. However, upon a

relevance objection from Respondents, the City was unable to

identify a specific limitation in any of the offered documents.

Therefore, the relevance objection was sustained . A portion of

the documents were accepted only as a proffer.

2/ The parties reported that DEP was unwilling to allow an

employee to be deposed for thi s purpose.

3/ Respondents contend the Administrative Law Judge must give

deference to the DistrictÓs interpretation of the statutes it

administers. However, deference to an agencyÓs interpretation is

a judicial principle. It is not required by any prov ision of the

Administrative Procedure Act, chapter 120, Florida Statutes.

Deference to an agencyÓs interpretation of law would be

inconsistent with chapter 120Ós emphasis on de novo proceedings

and its prohibition against an agencyÓs rejection of an

Admin istrative Law JudgeÓs conclusion of law unless the agency

makes a specific finding that its own interpretation of law is

Ðas or more reasonableÑ than the rejected interpretation. See

§ 120.57(1)(l), Fla. Stat. There would be no occasion to reject

an Admi nistrative Law JudgeÓs interpretation of a statute or rule

if the judge were compelled to defer to the interpretation

advanced by the agency.

4/ The City was restricted in its presentation of evidence

regarding this claim because it was untimely and conf licted with

other evidence already presented by the City.

COPIES FURNISHED:

Roger William Sims, Esquire

Holland & Knight LLP

200 South Orange Avenue, Suite 2600

Orlando, Florida 32801

(eServed)

Rafe Petersen, Esquire

Holland & Knight LLP

800 17th Stre et Northwest

Washington, DC 20006

(eServed)

Martin John Alexander, Esquire

Holland & Knight LLP

701 Brickell Avenue , Suite 3300

Miami, Florida 33131

(eServed)

Lawrence E. Sellers, Jr., Esquire

Holland and Knight, LLP

315 South Calhoun Street , Suite 600

Tallahassee, Florida 32301

(eServed)

Aaron S. Heishman, Esquire

Holland & Knight, LLP

800 17th Street, Northwest

Washington, DC 20006

(eServed)

Philip Mugavero, Esquire

Palm Beach County Attorney's Office

300 North Dixie Highway , Suite 359

West Pa lm Beach, Florida 33401

(eServed)

Kim Phan, Esquire

Palm Beach County Attorney's Office

300 North Dixie Highway , Suite 359

West Palm Beach, Florida 33401

(eServed)

John J. Fumero, Esquire

Nason Yeager Gerson White

& Lioce, P.A.

750 Park of Commerce Boulevard, Suite 210

Boca Raton, Florida 33487

(eServed)

Douglas H. MacLaughlin, Esquire

Nason, Yeager, Gerson, White

& Lioce, P.A.

7700 Congress Avenue , Suite 2201

Boca Raton, Florida 33487

(eServed)

Thomas F. Mullin, Esquire

Nason, Yeager, Gers on, White

& Lioce, P.A.

7700 Congress Avenue , Suite 2201

Boca Raton, Florida 33487

(eServed)

Susan Roeder Martin, Esquire

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

(eServed)

Julia Lo monico, Esquire

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

(eServed)

Peter Antonacci, Executive Director

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

We st Palm Beach, Florida 33406

(eServed)

Brian Accardo, General Counsel

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the ri ght 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.