17-000795 Suncoast Waterkeeper, Inc.; Florida Institute For Saltwater Heritage, Inc.; And Joseph Mcclash vs. Long Bar Pointe, Lllp, And Department Of Environmental Protection
 Status: Closed
Recommended Order on Tuesday, March 6, 2018.


View Dockets  
Summary: Petitioners failed to prove that Long Bar did not satisfy criteria for establishment of a mitigation bank in Manatee County.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SUNCOAST WATERKEEPER, INC.;

11FLORIDA INSTITUTE FOR SALTWATER

15HERITAGE, INC.; AND JOSEPH

19MCCLASH,

20Petitioners,

21vs. Case Nos. 17 - 0795

2717 - 0796

30LONG BAR POINTE, LLLP, AND

35DEPARTMENT OF ENVIRONMENTAL

38PROTECTION,

39Respo ndents.

41_______________________________/

42RECOMMENDED ORDER

44Administrative Law Judge D. R. Alexander conducted a

52hearing in these cases on December 5 and 6, 2017, in Sarasota,

64Florida.

65APPEARANCES

66For Petition ers: Ralf Gunars Brookes, Esquire

73(Suncoast and Ralf Brookes Attorney

78FISH) 1217 East Cape Coral Parkway

84Suite 107

86Cape Coral, Florida 33904 - 9604

92For Petitioner: Joseph McClash, pro se

98(McClash) 711 89th Street Northwest

103Bradenton, Florida 34209 - 9692

108For Respondent: Chris R. Tanner, Esquire

114(Long Bar) Amy Wells Brennan, Esquire

120Manson Bolves Donaldson Varn, P.A.

125Suite 300

127109 North Brush Street

131Tampa, Florida 33602 - 4167

136For Respondent: Marianna Sarkisyan, Esquire

141(Department) Department of Environmental Protection

146Mail Station 35

1493900 Commonwealth Boul evard

153Tallahassee, Florida 32399 - 3000

158STATEMENT OF THE ISSUE

162The issue is whether Long Bar Pointe, LLLP's (Long Bar),

172application for a Mitigation Bank/Environmental Resource Permit

179(ERP) to establish a mitigation bank on a 260.80 - acre coastal

191site located in western Manatee County should be approved.

200PRELIMINARY STATEMENT

202By letter dated December 16, 2017, the Department of

211Environmental Protection (Department) issued its Notice of

218Intent to Issue Mitigation Bank Permit No. 0338349 - 002 (Notice)

229authorizing Long Bar to establish the Long Bar Pointe Mitigation

239Bank on a 260.80 - acre site in Manatee County. The Notice

251indicates that a total of 18.01 potential mitigation bank

260credits will be awarded.

264Petitioners, Suncoast Waterkeeper, Inc. (Suncoast), and

270Florida Institute for Saltwater Heritage, Inc. (FISH), timely

278filed a Verified Petition challenging the agency action. After

287the initial pleading was dismissed by the Department, an Amended

297Verified Petition was filed. The matter was ref erred to the

308Division of Administrative Hearings (DOAH) and assigned Case

316No. 17 - 0795. Petitioner, Joseph McClash (McClash), also timely

326filed a Verified Petition challenging the same action. After

335his initial pleading was dismissed by the Department, a First

345Amended Verified Petition for Formal Administrative Hearing was

353filed. This filing was referred to DOAH and assigned Case

363No. 17 - 0796. The two cases were then consolidated.

373At the hearing, Petitioners jointly presented the testimony

381of seven witnes ses, including Mr. McClash. Also, Petitioners'

390Exhibits 1 through 47, 55 (treated as hearsay only), 63, 67

401(Land Use Map only), 78, and 81 (except the Key West photograph)

413were accepted in evidence. The remainder of Exhibit 67 and

423Exhibits 68, 69, and 75 were accepted on a proffer basis only.

435Long Bar presented the testimony of two witnesses. Long Bar

445Exhibits 1 through 12 were accepted in evidence. The Department

455presented no witnesses; however, Department Exhibit 1 was

463accepted in evidence. Finally, Joint Exhibit 1 was accepted in

473evidence.

474A two - volume Transcript of the hearing was prepared.

484Proposed findings of fact and conclusions of law were filed by

495the parties on February 16 and 19, 2018, and they have been

507considered in the preparation of t his Recommended Order.

516FINDING S OF FACT

520The Parties

5221. The Department is the state agency having concurrent

531jurisdiction with the water management districts for permitting

539mitigation banks pursuant to chapter 373, Florida Statutes.

547Pursuant to an opera ting agreement executed by the Department

557and the water management districts, the Department is

565responsible for reviewing and taking final agency action on this

575activity.

5762. Long Bar is a Florida limited liability limited

585partnership registered to do busi ness in the state. Its address

596is 1651 Whitfield Avenue, Sarasota, Florida.

6023. Suncoast has been registered as a nonprofit corporation

611in Florida since 2012. Its mission is to "protect and restore

622the Suncoast's waterways through enforcement, fieldwork,

628advocacy, and environmental education for the benefit of the

637communities that rely upon these precious coastal resources."

645Respondents have stipulated that at least 25 members reside

654within Manatee County.

6574. Suncoast's geographical area of interest is the coastal

666waters of Manatee and Sarasota Counties, including the waterways

675and coastline in the immediate area of the project site and

686within the proposed Mitigation Service Area (MSA) of the bank.

6965. Suncoast's representative, Mr. Merriam, testified that

703the organization has more than 800 members residing within

712Manatee County. However, he does not know the exact number of

723members who actually use the site or MSA and might reasonably be

735expected to be affected by the proposed activities. Moreover,

744h e was unaware of what activities the proposed permit actually

755authorizes that would adversely affect the interests of the

764members. After learning what activities are authorized by the

773permit, he admitted they have a beneficial purpose.

7816. FISH is an ac tive not - for - profit corporation in good

795standing since 1991 and has an address at 4515 124th Street

806West, Cortez, Florida. FISH owns and maintains real property,

815including coastal land within the village of Cortez. FISH also

825owns and maintains a wetland restoration/mitigation project

832known as the "FISH Preserve" property located in Cortez.

8417. The mission and goal of FISH includes the protection of

852the nature and natural resources within Manatee County,

860including Anna Maria Sound an d Perico Island located within the

871MSA. Respondents have stipulated that FISH has at least

88025 members who reside in Manatee County.

8878. According t o a representative of FISH, Mr. Stevely,

897there are more than 150 members who reside or own property in

909Manatee County. The numbe r who actually use and enjoy the

920natural resources located in the bank site and MSA is not known.

932Mr. Stevely could not explain how the activities authorized by

942the proposed permit would adversely affect its members. He also

952admitted that the removal of exotics, planting of native plants,

962and recording of a conservation easement (the only activities

971authorized by the permit) may actually benefit his environmental

980interests. Mr. Stevely asserted that the trimming of mangroves

989would adversely affect his in terests, but the permit, as

999proposed, does not authorize mangrove impacts. He speculated

1007that the proposed placement of buoys along the shoreline might

1017attract inexperienced boaters to the area, but admitted that

1026good channel marking is one of the best wa ys to protect

1038seagrasses. Moreover, the installation of buoys requires a

1046separate permit from the Florida Fish and Wildlife Conservation

1055Commission (FFWCC). Presumably, a point of entry to contest

1064that action will be provided by the agency.

10729. Mr. McCla sh is a resident of Bradenton who uses the

1084waters in the vicinity of the project site for fishing,

1094crabbing, boating, and wildlife observation. He contends the

1102informational buoys will attract inexperienced boaters to the

1110area, who will harm the seagrasse s. He is also concerned that

1122if the application is approved, other ERPs may be issued in the

1134future and their impacts could potentially be offset by the

1144purchase of credits from the Project.

1150The Project Site

115310. The property designated to become the miti gation bank

1163is a 260.80 - acre site located in western Manatee County, west of

1176El Conquistador Parkway and 75th Street West, and an adjacent

1186unsurveyed portion of Sarasota Bay, an Outstanding Florida Water

1195(OFW), Class II Waters. Around half of the site is adjacent to

1207agricultural lands that may be developed with a mixed use

1217residential/commercial project. The other half is contiguous

1224with Sarasota Bay and/or existing conservation lands. The

1232project site has more than two miles of shoreline making it the

1244l argest continuous mangrove shoreline along Sarasota Bay. The

1253site is near other properties with high ecological value, such

1263as Emerson Point, Robinson Preserve, Neal Preserve, Tidy Island,

1272Sister Keys, and Legends Bay. All of these properties are

1282conserv ation lands. Long Bar has a sufficient real property

1292interest to conduct the proposed activities.

129811. Based on historical aerial photography, the area

1306encompassing the Project site has remained essentially

1313undeveloped since 1944, with the exception of mosquito ditching

1322that was conducted in the northwestern portion of the property

1332from the 1940s to the 1970s, and agricultural ditching that has

1343occurred adjacent to and within some portions of the site.

135312. The site is dissected by four, approximately 3 0 - foot -

1366wide strips of land owned by Manatee Fruit Company (MFC), which

1377are excluded from the credit assessment. However, Long Bar has

1387sufficient ownership interest in the MFC strips of land and will

1398be required to maintain the area free of debris and nuis ance and

1411exotic vegetation.

141313. The Town of Longboat Key also has a 30 - foot - wide

1427easement in the southeastern portion of the site, which will be

1438preserved, enhanced, and maintained similar to the adjacent area

1447of the project site , but is excluded from th e credit

1458assessment.

145914. The project site consists of privately - owned submerged

1469Sarasota Bay bottomlands that are dominated by seagrasses;

1477mangrove swamps; mangrove hedges; areas of salt marsh/saltern;

1485coastal freshwater herbaceous wetlands; and areas of coastal

1493uplands (maritime hammock).

149615. The seagrass areas are dominated by shoal grass with

1506patches of turtle grass in deeper pockets. The mangrove areas

1516are predominately black mangroves, mixed with red mangroves

1524closer to the shoreline and with whit e mangroves in the more

1536landward mangrove areas. Red mangroves increase in dominance in

1545the vicinity of the mosquito ditches in the northwestern portion

1555of the site, and white mangroves increase in dominance in the

1566formerly disturbed portions of the site. The salt marsh/saltern

1575area is generally open and sandy, but supports some herbaceous

1585vegetation, such as buttonwood, glasswort, and saltwort. The

1593coastal freshwater herbaceous wetlands and much of the coastal

1602uplands are currently dominated by a near m onoculture of

1612invasive exotic Brazilian Pepper, though areas of intact

1620maritime hammock remain. Brazilian Pepper is present in the

1629ecotone areas (the transition area between two communities)

1637between the freshwater herbaceous and mangrove swamp assessment

1645areas. There are also spoil mounds within the mangrove swamp

1655assessment areas.

1657Mitigation Bank Permits

166016. Section 373.403(19), Florida Statutes, defines a

1667mitigation bank as "a project permitted under Section 373.4136,

1676F.S. undertaken to provide for the withdrawal of mitigation

1685credits to offset adverse impacts authorized" by an ERP issued

1695under Part IV, chapter 373. A mitigation bank permit is a type

1707of ERP. See Fla. Admin. Code R. 62 - 330.301(3).

171717. Section 373.4136(1) authorizes the Department an d

1725water management districts to require an ERP to establish,

1734implement, and operate a mitigation bank. A bank acts as a

1745repository for wetland mitigation credits that can be used to

1755offset adverse impacts to wetlands that occur as the result of

1766future ERP projects. A bank is designed to "enhance the

1776certainty of mitigation and provide ecological value due to the

1786improved likelihood of environmental success associated with

1793their proper construction, maintenance, and management," often

1800within larger, contig uous, and intact ecosystems.

180718. Mitigation banks are intended to "emphasize the

1815restoration and enhancement of degraded ecosystems and the

1823preservation of uplands and wetlands as intact ecosystems." Id.

1832Therefore, the Department and the water managem ent districts are

1842directed to participate in and encourage the establishment of

1851mitigation banks. Id.

185419. A mitigation bank is to be awarded a number of

1865mitigation credits by the permitting agency. § 373.4136(4),

1873Fla. Stat. A mitigation credit is a "st andard unit of measure

1885which represents the increase in ecological value resulting from

1894restoration, enhancement, preservation, or creation activities."

1900Fla. Admin. Code R. 62 - 345.200(8). The number of credits must

1912be "based upon the degree of improvemen t in ecological value

1923expected to result from the establishment and operation of the

1933mitigation bank as determined using a functional assessment

1941methodology." § 373.4136(4), Fla. Stat. In this case, the

1950Department is proposing to issue 18.01 credits.

1957Mit igation Service Area (MSA)

196220. Rule 62 - 342.600 requires the establishment of a MSA

1973for a mitigation bank. An MSA is a geographical area within

1984which adverse impacts may be offset by the bank credits. A

1995single MSA is proposed for the Project, covering bo th freshwater

2006and saltwater credits. The MSA includes portions of Charlotte,

2015Manatee, and Sarasota Counties within the South Coastal Drainage

2024Basin and portions of the Manatee River Basin west of Interstate

203575 and the portion of the Tampa Bay Drainage Bas in located west

2048of Interstate 75 and south and west of Interstate 275. Credits

2059are not allowed for use outside the MSA, except as provided for

2071by section 373.4136(6)(d).

2074Criteria for a Mitigation Bank

207921. Besides statutory criteria in section 373.4136(1) , a

2087maze of Department rules applies to the creation of a mitigation

2098bank. Pertinent to this case, rule 62 - 342.400 sets forth

2109criteria specifically applicable to a mitigation bank.

2116Rule 62 - 330.301 sets forth criteria for the issuance of an ERP,

2129while ru le 62 - 330.302 establishes additional ERP criteria that

2140form the basis for the public interest test. In the Joint Pre -

2153hearing Stipulation, Petitioners agree that only the criteria in

2162rule 62 - 330.301(1)(d) and (f), rule 62 - 330.302(1)(a)2., 4.,

2173and 5., and r ule 62 - 342.400(1)(a) - (f) are at issue. Petitioners

2187also agree that Long Bar has provided reasonable assurance in

2197regards to all requirements of financial responsibility.

2204The Project

220622. Long Bar submitted to the Department its application

2215for a permit o n September 12, 2016. After additional

2225information was submitted, the application was deemed complete

2233on December 16, 2016. See Fla. Admin. Code R. 62 - 342.450.

224523. The majority of the site is mangrove swamp and

2255privately owned submerged seagrass bottoml ands that are proposed

2264for preservation only. The site also contains areas of coastal

2274freshwater marsh and coastal uplands that are currently degraded

2283by invasive exotic vegetation which will be enhanced through

2292removal of invasive exotic vegetation, plan ting of desirable

2301vegetation, and implementation of a perpetual management plan.

2309No wetland creation or dredging or filling activities are

2318proposed for the Project.

232224. The Project has the potential to generate several

2331credit types, including seagrass, m angrove swamp, mangrove

2339hedge, salt marsh/saltern, and freshwater herbaceous credits.

2346The credit release schedule provides for an initial credit

2355release upon recordation of a conservation easement and

2363establishment of financial assurance mechanisms, follo wed by a

2372series of potential credit releases based on satisfactory

2380completion of specified mitigation activities, and a final

2388credit release once all success criteria are met.

239625. Prior to the release of credits, the site will be

2407preserved by a conservati on easement in favor of the Department

2418and Southwest Florida Water Management District. Long Bar will

2427establish financial assurance performance bonds for construction

2434and implementation and perpetual management. Financial

2440assurance is required to ensure the Project reaches success, it

2450remains in compliance, and the perpetual management activities

2458have a dedicated funding source.

246326. In addition to protection provided by the conservation

2472easement, Long Bar proposes implementation of a Seagrass

2480Information al Buoy Placement Plan (Plan) in an effort to provide

2491additional protection to the submerged seagrass beds within and

2500in the vicinity of the Project. The Plan contemplates the

2510installation of non - regulatory seagrass information buoys at

2519approximately the three - foot bathymetric contour along the

2528Project site, and which follows the path of the traditional

2538unmarked navigational channel where they can be readily seen.

2547The buoys will inform boaters of the presence of seagrasses

2557surrounding the Project site, wh ich support significant

2565estuarine habitats and can be harmed or destroyed from vessel

2575groundings or prop scarring. Installation of the buoys will

2584provide a significant public benefit in that it should

2593significantly reduce or eliminate prop scars within th e seagrass

2603beds along the project site. Good channel marking is one of the

2615best ways to protect seagrasses from prop scarring. There is no

2626credible evidence that signage will attract inexperienced

2633boaters who will damage the seagrasses in the area.

264227. The permit does not authorize the installation of the

2652buoys. In order to implement the Plan, Long Bar must apply to

2664the FFWCC for a Uniform Waterways Markers in Florida Waters

2674permit. The Plan must be implemented prior to credit release.

268428. No mangrove trimming is authorized by the permit.

2693Pursuant to a Conceptual Mangrove Trimming Plan, attached to the

2703permit as Attachment A, Long Bar has reserved the right to trim

2715approximately 30 percent of the onsite mangrove acreage to a

2725minimum height of 12 feet, as measured from the substrate. No

2736trimming will be allowed within the Project's mangrove swamps

2745that are greater than 500 feet in width from the shoreline, and

2757no trimming can result in fragmentation of the remaining intact

2767mangrove forest into more tha n four individual fragments. Prior

2777to the initial release of credits, Long Bar must develop and

2788submit a Final Mangrove Trimming Plan and modify the permit to

2799substitute the final plan for the conceptual plan, adjust the

2809assessment area configuration and acreages, and recalculate the

2817total potential mitigation credits.

282129. Any mangrove trimming must be conducted by a licensed

2831professional mangrove trimmer and take place under a mangrove

2840trimming permit issued pursuant to section 373.327 that may be

2850issu ed at some time in the future by the Department if

2862applicable criteria are met. Long Bar's reserved right to

2871conduct limited mangrove trimming was accounted for in the

2880credit scores.

288230. Many of the current communities on the site are

2892generally similar t o the types of communities that would have

2903been present historically, but have been adversely affected by

2912invasion of nuisance and exotic vegetation, including Brazilian

2920Pepper and Australian Pine. As such, the Project also involves

2930a number of enhancemen t activities on the site. Approximately

294017.35 acres of degraded coastal freshwater marsh will be

2949enhanced by removing invasive exotic vegetation and replanting

2957with appropriate native vegetation. Approximately 13.13 acres

2964of degraded coastal uplands will be enhanced by removing

2973invasive exotic vegetation and replanting with appropriate

2980native vegetation. Approximately 6.44 acres of relatively

2987intact coastal uplands will be enhanced by removing nuisance

2996vines and exotic vegetation. All areas of preserved mangroves

3005and salt marsh/saltern will be treated to remove existing low

3015levels of nuisance and invasive exotic vegetation. Upon

3023implementation and planting, the permit requires Long Bar to

3032conduct "time zero" monitoring to establish a baseline for use

3042in future monitoring events to determine whether success

3050criteria have been achieved.

305431. Although the proposed activities are expected to

3062maintain and enhance site conditions in perpetuity, Long Bar

3071will employ other strategies, based on continual evaluati on of

3081environmental data collected from the site, to ensure the goals

3091of the Project continue to be met in perpetuity.

310032. Long Bar will implement a Security Plan to take all

3111measures necessary to ensure the integrity of the Project is

3121upheld in perpetuit y. Large hole 50 - inch high hog fencing will

3134be installed at the Project boundary where it interfaces with

3144offsite areas to ensure separation and protection from any

3153future development on adjacent lands. Fencing will act as a

3163barrier to deter trespassing, but will still allow wildlife to

3173move across and into the Project site. Conservation easement

3182signage will also be installed at a minimum of every 300 feet,

3194and at every bank boundary turn along the fence line. The buoy

3206plan is also part of the Security Plan. Long Bar will conduct

3218quarterly inspections of the fencing and signage, as well as

3228Project site lands, and will repair or replace fencing as soon

3239as the need is discovered. Any trash and other debris will be

3251removed during site inspections either by hand or by a method

3262that minimizes disturbances to Project lands. If habitat

3270impacts are discovered during an inspection, adaptive management

3278actions will be implemented.

328233. After the Project's final success criteria are met,

3291the Perpetual Management Plan will ensure that the Project is

3301managed by Long Bar in a manner that ensures all permit

3312conditions are maintained. The Perpetual Management Plan

3319includes quarterly inspections of the Project site, including

3327security measures.

3329The Calculation of Cred its

333434. In 2004, the Department adopted chapter 62 - 345, the

3345Uniform Mitigation Assessment Method (UMAM) rule, which provides

3353a standardized procedure for assessing the functions provided by

3362wetlands and other surface waters, the amount those functions

3371are decreased by a proposed project, and the amount of

3381mitigation necessary to offset that loss. UMAM is the sole

3391means for determining the amount of mitigation credits to be

3401awarded to mitigation banks and applied to Long Bar.

341035. When applying UMAM, rea sonable scientific judgment

3418must be used. Therefore, even though UMAM is a standardized

3428procedure, UMAM is not a precise assessment, and in the exercise

3439of reasonable scientific judgment, two scientists can arrive at

3448different results.

345036. In general t erms, the UMAM analysis consists of two

3461parts. Part I is a qualitative characterization of the

3470property, which divides the property into assessment areas.

3478Part II assigns mitigation bank credits to those areas based on

3489scoring criteria established in UMA M.

349537. The mitigation proposal was assessed by the Department

3504using UMAM. The Department determined that the Project had the

3514potential to generate a total of 18.01 credits. These credits

3524are differentiated as 7.38 for seagrass - dominated submerged

3533botto mlands, 0.23 for salt marsh/saltern, 7.07 for mangrove

3542swamps, 0.68 for trimmed mangrove hedge, and 2.65 for coastal

3552freshwater marsh.

355438. The environmental communities present at the site are

3563subdivided into 47 different assessment areas. The assessment

3571areas were established by Long Bar's expert, Mr. Hoffner, who

3581has worked on the Project since 2014 and has spent hundreds of

3593hours evaluating the site. The assessment areas were generally

3602grouped into seagrass, mangrove, saltwater, salt marsh,

3609freshwater marsh, and uplands, and then sub - assessed based on

3620their proximity to different habitats and different activities

3628within the bank.

363139. Assessment area boundaries were based upon aerial

3639photography interpretation, the Florida Land Use, Cover and

3647Forms C lassification System, habitat map, Natural Resources

3655Conservation Service soil maps, site inspections, formal

3662wetlands jurisdiction determination, surveys performed by

3668professional land surveyors, field verification, and reasonable

3675scientific judgment. Th e record shows that ecotone community

3684boundaries in the environment do not often have distinct lines

3694of demarcation and two adjacent communities can be identified as

3704unique assessment areas and yet have ecotone areas that share

3714characteristics of both comm unities. For example, Brazilian

3722Pepper is present within the ecotone areas between the mangrove

3732and freshwater marsh assessment areas.

373740. The Department's expert, Mr. Rach, verified the

3745boundaries of the bank and assessment areas both in the field

3756and t hrough aerial photographs and descriptions provided by the

3766applicant. Mr. Rach reiterated that the determination of

3774assessment areas is not an exact science and requires the use of

3786scientific judgment. He determined that Long Bar provided

3794sufficient info rmation for each assessment area to be evaluated

3804under the second part of the UMAM analysis and that they provide

3816an appropriate frame of reference to use in the Part II

3827evaluation.

382841. While Petitioners' expert, Mr. Hull, disagreed with

3836the assessment ar ea boundaries, he agreed that UMAM is not an

3848exact science. He conceded that he was not sure whether he

3859visited every assessment area on the site, and he was unable to

3871provide an explanation of where he believed each specific

3880boundary should be located.

38844 2. Petitioners did not establish by a preponderance of

3894the evidence that the assessment areas are in contravention of

3904Department rules.

390643. The Department's scoring of the Project was determined

3915by review of the UMAM scores provided by Long Bar, review o f

3928available information provided, numerous discussions with Long

3935Bar, and field work. The Department's summary of the credit

3945evaluation for each of the 47 assessment areas is contained in

3956Condition 11 of the permit and is accepted as being the most

3968persua sive on this issue. The actual scores for each assessment

3979area are contained in Exhibit H of the draft permit.

398944. While Mr. Hull disagreed with the scoring of the

3999project, the difference between his and Long Bar's numbers are a

4010reflection in the differe nce in the application of reasonable

4020scientific judgment.

402245. Petitioners failed to prove by a preponderance of the

4032evidence that the Department's determination that the project

4040could generate 18.01 credits was incorrect.

4046Petitioners' Objections

404846. In their PROs, Petitioners raise three broad

4056objections. First, they contend that no credits should be

4065awarded to Long Bar for seagrasses, or that a much smaller

4076number is appropriate. Second, they contend fewer credits

4084should be awarded for areas where ma ture mangroves that are

409540 to 50 feet in height could be trimmed to 12 feet simply to

4109provide a view for future residents of the adjacent upland

4119residential development conceptually proposed by Long Bar.

4126Finally, they contend the site is bisected by a 100 - foot gap

4139that is excluded from the bank because Long Bar intends to allow

4151future access from the planned adjacent upland residential

4159development to the shoreline. They argue that by creating this

4169gap, Long Bar fails to maintain an intact ecosystem. Give n

4180these considerations, Suncoast and FISH contend that no more

4189than 4.18 mitigation credits shoul d be awarded, while

4198Mr. McClash argues that the application should be denied.

420747. As to the first issue, Petitioners generally contend

4216that in the seagrass a reas, the bank is focused on preservation

4228only, and not restoration, and therefore no additional

4236protection or functional lift will be provided for any seagrass

4246assessment areas. To begin with, preservation is a goal

4255expressly included in the UMAM rule, w hich emphasizes

4264preservation of undegraded areas and restoration of degraded

4272systems over alteration of existing landscapes to create

4280artificial wetlands. The proposed conservation easement

4286increases protection to the wetlands and other surface waters in

4296the site by preventing structures (such as docks or piers)

4306within the seagrass assessment areas. If the site is not

4316preserved, it is likely to be used to access Sarasota Bay from

4328the uplands. As previously found, there will also be

4337enhancement activities in adjacent assessment areas. In short,

4345the steps being proposed by Long Bar provide additional

4354protection to the seagrasses. The UMAM seagrass score is

4363appropriate.

436448. As to the second issue, no mangrove trimming is

4374authorized by the permit. Long Ba r has, however, reserved the

4385right to modify the permit to trim approximately 30 percent of

4396the onsite mangrove acreage to a minimum height of 12 feet, as

4408measured from the substrate. The potential trimming was

4416properly accounted for in the UMAM scores. If Long Bar chooses

4427not to implement the proposed trimming, it would likely receive

4437more credits. Notably, no trimming can result in fragmentation

4446of the remaining intact mangrove forest into more than four

4456individual fragments. And prior to the release of credits, Long

4466Bar must develop and submit a final mangrove trimming plan and

4477modify the permit, adjust the assessment area configuration and

4486acreages, and recalculate the total potential mitigation

4493credits. Petitioners did not prove by a preponderance of the

4503evidence that mangrove trimming affects the Department's

4510assessment of the number of credits to be awarded.

451949. Finally, the exclusion of a 100 - foot gap from the

4531conservation easement does not diminish the value of the bank as

4542an intact system as a whole. While this area will not be

4554included in the recorded plans, this will not fragment an intact

4565ecosystem. No construction is proposed in the gap, and current

4575Manatee County regulations do not allow for dredging in this

4585area. Therefore, wildlife u tilizing the site will be able to

4596continue to utilize the excluded area and traverse the gap,

4606regardless of the lines drawn on a set of plans. The net effect

4619of the Project is to preserve approximately two miles of intact

4630shoreline. The more persuasive e vidence supports a finding that

4640the 100 - foot wide strip does not affect the overall suitability

4652of the site as a mitigation bank. Petitioners did not prove by

4664a preponderance of the evidence that the so - called "gap" impacts

4676the number of credits to be awa rded.

4684Compliance with Applicable Criteria

468850. The preponderance of the evidence supports a finding

4697that Long Bar has satisfied all criteria in rule 62 - 330.301 for

4710the issuance of an ERP.

471551. The preponderance of the evidence supports a finding

4724that Long Bar has established that the Project is clearly in the

4736public interest, as required by rule 62 - 330.302(1).

474552. The preponderance of the evidence supports a finding

4754that Long Bar has satisfied all criteria for establishing a

4764mitigation bank, as required by rule 62 - 342.400 .

4774CONCLUSIONS OF LAW

477753. Suncoast and FISH allege standing to initiate this

4786proceeding under chapter 120 and section 413.412(6).

4793Respondents have stipulated that the facts established by the

4802two organizations provide standing under sec tion 403.412(6).

481054. For an association to establish standing under

4818section 120.57(1) when acting solely as a representative of its

4828members, it must demonstrate that a substantial number of its

4838members, although not necessarily a majority, are substant ially

4847affected by the challenged action, that the subject matter of

4857the challenged action is within the association's general scope

4866of interest and activity, and that the relief requested is of a

4878type appropriate for an association to receive on behalf of its

4889members. See , e.g. , St. John's Riverkeeper, Inc. v. St. Johns

4899River Water Mgmt. Dist. , 54 So. 3d 1051, 1054 (Fla. 5th DCA

49112011); Fla. League of Cities, Inc. v. Dep't of Envtl. Reg. , 603

4923So. 2d 1363 (Fla. 1st DCA 1992). Suncoast and FISH have failed

4935t o quantify the number of members that reside in the area of the

4949Project that might reasonably be expected to be affected by the

4960proposed activities. Therefore, they have no standing under

4968chapter 120.

497055. Mr. McClash alleges he has standing under chapter 120

4980as a person whose substantial interests are affected by the

4990proposed issuance of the permit. Here, the evidence shows that

5000Mr. McClash is concerned with activities contemplated, but not

5009authorized, by the permit, and future ERPs that may have impacts

5020that could potentially be offset through the purchase of credits

5030from the Project. These concerns will not result in a direct

5041injury or place Mr. McClash in an immediate danger of sustaining

5052a direct injury as a result of the agency action. His concern

5064is with future permit impacts, which are too speculative and

5074remote to give rise to standing under chapter 120.

508356. Petitioners have challenged the issuance of a

5091mitigation bank permit issued under chapter 373. Therefore,

5099section 120.569(2)(p) is applica ble. Under this provision, the

5108permit applicant must present a prima facie case demonstrating

5117entitlement to the permit. Thereafter, a third party

5125challenging the issuance of the permit has the burden "of

5135ultimate persuasion" and the burden "of going for ward to prove

5146the case in opposition to the . . . permit." If the third party

5160fails to carry its burden, the applicant prevails by virtue of

5171its prima facie case.

517557. Issuance of the permit is dependent upon there being

5185reasonable assurance that the mit igation bank will meet

5194applicable statutory and regulatory standards. § 373.4136(1),

5201Fla. Stat.

520358. Reasonable assurance means "a substantial likelihood

5210that the project will be successfully implemented." See Metro.

5219Dade Cnty. v. Coscan Fla., Inc. , 609 So. 2d 644, 648 (Fla. 3d

5232DCA 1992). Reasonable assurance does not require absolute

5240guarantees that the applicable conditions for issuance of a

5249permit have been satisfied.

525359. Long Bar made its prima facie case of entitlement to

5264the permit. Therefore, th e burden of ultimate persuasion is on

5275Petitioners to prove their case in opposition to the permit by a

5287preponderance of the competent and substantial evidence.

5294Having failed to do so, Long Bar must prevail.

530360. In summary, Long Bar has provided reasonab le assurance

5313that all relevant criteria for the issuance of an ERP and

5324establishment of a mitigation bank have been satisfied.

5332RECOMMENDATION

5333Based on the foregoing Findings of Fact and Conclusions of

5343Law, it is

5346RECOMMENDED that the Department of Envi ronmental Protection

5354enter a final order approving the issuance of Mitigation Bank

5364Permit No. 0338349 - 002 to Long Bar.

5372DONE AND ENTERED this 6th day of March , 2018 , in

5382Tallahassee, Leon County, Florida.

5386S

5387D. R. ALEXANDER

5390Administrative Law Judge

5393Division of Administrative Hearings

5397The DeSoto Building

54001230 Apalachee Parkway

5403Tallahassee, Florida 32399 - 3060

5408(850) 488 - 9675

5412Fax Filing (850) 921 - 6847

5418www.doah.state.fl.us

5419Filed with the Clerk of the

5425Division of Administrative H earings

5430this 6th day of March , 2018 .

5437COPIES FURNISHED:

5439Joseph McClash

5441711 89th Street Northwest

5445Bradenton, Florida 34209 - 9692

5450(eServed)

5451Ralf Gunars Brookes, Esquire

5455Ralf Brookes Attorney

5458Suite 107

54601217 East Cape Coral Parkway

5465Cape Coral, Florida 33904

5469(eServed)

5470Douglas P. Manson, Esquire

5474Manson Bolves Donaldson, Varn P.A.

5479Suite 300

5481109 North Brush Street

5485Tampa, Florida 33602

5488(eServed)

5489Marianna Sarkisyan, Esquire

5492Department of Environmental Protection

5496Mail Station 35

54993900 Commonwealth Boulevard

5502Talla hassee, Florida 32399 - 3000

5508(eServed)

5509Chris R. Tanner, Esquire

5513Manson Bolves Donaldson, Varn P.A.

5518Suite 300

5520109 North Brush Street

5524Tampa, Florida 33602

5527(eServed)

5528Edward Vogler, II, Esquire

5532Vogler Ashton, PLLC

55352411 - A Manatee Avenue West

5541Bradenton, Florid a 34205 - 4948

5547(eServed)

5548Noah Valenstein, Secretary

5551Department of Environmental Protection

5555Douglas Building

55573900 Commonwealth Boulevard

5560Tallahassee, Florida 32399 - 3000

5565(eServed)

5566Lea Crandall, Agency Clerk

5570Department of Environmental Protection

5574Mail Stat ion 35

55783900 Commonwealth Boulevard

5581Tallahassee, Florida 32399 - 3000

5586(eServed)

5587Robert A. Williams, General Counsel

5592Department of Environmental Protection

5596Legal Department, Suite 1051 - J

5602Douglas Building, Mail Station 35

5607Tallahassee, Florida 32399 - 3000

5612(eSe rved)

5614Amy Wells Brennan, Esquire

5618Manson Bolves Donaldson Varn, P.A.

5623Suite 300

5625109 North Brush Avenue

5629Tampa, Florida 33602 - 2637

5634NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5640All parties have the right to submit written exceptions within

565015 days from the date of this Recommended Order. Any exceptions

5661to this Recommended Order should be filed with the agency that

5672will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/27/2018
Proceedings: Agency Final Order
PDF:
Date: 04/27/2018
Proceedings: Department of Environmetal Protection's Responses to Petitioner McClash's Exceptions to Recommended Order filed.
PDF:
Date: 04/27/2018
Proceedings: Respondent Long Bar Pointe, LLLP's Response to McClash's Exceptions to Recommended Order filed.
PDF:
Date: 04/27/2018
Proceedings: Petitioner Joseph McClash Exceptions to Proposed Recommended Order filed.
PDF:
Date: 04/27/2018
Proceedings: Florida Department of Environmental Protection's Exceptions to Recommended Order filed.
PDF:
Date: 04/27/2018
Proceedings: Agency Final Order filed.
PDF:
Date: 03/06/2018
Proceedings: Recommended Order
PDF:
Date: 03/06/2018
Proceedings: Recommended Order (hearing held December 5 and 6, 2017). CASE CLOSED.
PDF:
Date: 03/06/2018
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
Date: 02/22/2018
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 02/16/2018
Proceedings: Respondent Long Bar Pointe, LLLP's Proposed Recommended Order filed.
PDF:
Date: 02/16/2018
Proceedings: Respondent Long Bar Pointe, LLLP's Proposed Recommended Order filed.
PDF:
Date: 02/16/2018
Proceedings: Petitioner Joseph McClash Proposed Recommended Order (filed in Case No. 17-000796).
PDF:
Date: 02/16/2018
Proceedings: Suncoast Waterkeeper, Inc. and Florida Institute for Saltwater Heritage, Inc.'s Proposed Recommended Order filed.
PDF:
Date: 02/16/2018
Proceedings: Department of Environmental Protection's Proposed Recommended Order (filed in Case No. 17-000796).
PDF:
Date: 02/16/2018
Proceedings: Proposed Recommended Order filed.
Date: 01/17/2018
Proceedings: Transcript of Proceedings Volumes 1-2 (not available for viewing) filed.
PDF:
Date: 01/17/2018
Proceedings: Letter to Judge Alexander from Betsy Ridenour Regarding Filing of Hearing Transcripts filed.
PDF:
Date: 12/06/2017
Proceedings: Petitioner Joseph McClash Notice of Subpoenas Issued for Testimony at the Hearing (filed in Case No. 17-000796).
Date: 12/05/2017
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/07/2017
Proceedings: Notice of Appearance (Amy Brennan) (filed in Case No. 17-000796).
PDF:
Date: 10/30/2017
Proceedings: Joint Pre-hearing Stipulation (filed in Case No. 17-000796).
PDF:
Date: 10/18/2017
Proceedings: Order on Motion in Limine.
PDF:
Date: 10/17/2017
Proceedings: Amended Notice of Hearing (hearing set for December 5 through 7, 2017; 9:30 a.m.; Sarasota, FL; amended as to final hearing location).
PDF:
Date: 09/25/2017
Proceedings: Notice of Hearing (hearing set for December 5, 2017; 9:30 a.m.; Sarasota, FL. December 6 and 7 are also reserved, if necessary).
PDF:
Date: 09/25/2017
Proceedings: Amended Petitioner Joseph McClash Response to Respondent's Response to Amended Notice of Hearing and Motion for Reconsideration (filed in Case No. 17-000796).
PDF:
Date: 09/22/2017
Proceedings: Petitioner Joseph McClash Response to Respondents Response to Amended Notice of Hearing and Motion for Reconsideration (filed in Case No. 17-000796).
PDF:
Date: 09/21/2017
Proceedings: Respondents' Response to Amended Notice of Hearing and Motion for Reconsideration filed.
PDF:
Date: 09/21/2017
Proceedings: Joint Response to Amended Order Canceling Hearing filed.
PDF:
Date: 09/15/2017
Proceedings: Amended Order Canceling Hearing.
PDF:
Date: 09/07/2017
Proceedings: Order Canceling Hearing (parties to advise status by September 18, 2017).
PDF:
Date: 09/07/2017
Proceedings: Petitioner McClash's Response to Respondents', Long Bar Pointe, LLLP and Department of Environmental Protection's Motions in Limine (filed in Case No. 17-000796).
PDF:
Date: 09/05/2017
Proceedings: Respondent Long Bar Pointe, LLLP's Motion in Limine filed.
PDF:
Date: 09/01/2017
Proceedings: Respondents, Long Bar Pointe, LLLP and Department of Environmental Protection's Motion in Limine filed.
PDF:
Date: 08/30/2017
Proceedings: Petitioners Suncoast Waterkeeper, Inc,; Florida Institute for Saltwater Heritage, Inc.; and Joseph McClash, Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 08/22/2017
Proceedings: Amended Notice of Hearing (hearing set for September 12 through 14, 2017; 9:30 a.m.; Sarasota, FL; amended as to final hearing location).
PDF:
Date: 08/17/2017
Proceedings: Respondent, Long Bar Pointe, LLLP's Notice of Taking Deposition Duces Tecum (Clark Hull) filed.
PDF:
Date: 08/14/2017
Proceedings: Respondent, Long Bar Pointe, LLLP's Amended Notice of Taking Deposition Duces Tecum (Stevely) filed.
PDF:
Date: 08/14/2017
Proceedings: Respondent, Long Bar Pointe, LLLP's Notice of Taking Deposition Duces Tecum (John Stevely) filed.
PDF:
Date: 08/11/2017
Proceedings: Respondent, Department of Environmental Protection's, First Request for Production of Documents to Petitioner, Florida Institute for Saltwater Heritage, Inc. filed.
PDF:
Date: 08/11/2017
Proceedings: Respondent, Department of Environmental Protection's First Request for Production of Documents to Petitioner, Joseph McClash filed.
PDF:
Date: 08/11/2017
Proceedings: Respondent, Department of Environmental Protection's, First Request for Production of Documents to Petitioner, Suncoast Waterkeeper, Inc. filed.
PDF:
Date: 08/03/2017
Proceedings: Petitioners' Suncoast Waterkeeper, Inc., Florida Institute for Saltwater Heritage, Inc., and Joseph McClash's Joint Notice of Service of Discovery Responses to Long Bar Pointe, LLLP filed.
PDF:
Date: 07/17/2017
Proceedings: Respondent, Long Bar Pointe, LLLP's Notice of Service of Request for Admissions to Petitioner, Suncoast Waterkeeper, Inc. filed.
PDF:
Date: 07/17/2017
Proceedings: Respondent, Long Bar Pointe, LLLP's Notice of Service of Request for Admissions to Petitioner, Florida Institute for Saltwater Heritage, Inc. filed.
PDF:
Date: 07/14/2017
Proceedings: Respondent, Long Bar Pointe, LLLP's Notice of Service of Request for Admissions to Petitioner, Joseph McClash filed.
PDF:
Date: 06/30/2017
Proceedings: Respondent, Long Bar Pointe, LLLP's Notice of Service of First Interrogatories to Petitioner, Florida Institute for Saltwater Heritage, Inc. filed.
PDF:
Date: 06/30/2017
Proceedings: Respondent, Long Bar Pointe, LLLP's Notice of Service of First Interrogatories to Petitioner, Suncoast Waterkeeper, Inc. filed.
PDF:
Date: 06/27/2017
Proceedings: Respondent Long Bar Pointe, LLLP'S Notice of Service of First Interrogatories to Petitioner Joseph McClash filed.
PDF:
Date: 06/01/2017
Proceedings: Order on Motion to Compel.
PDF:
Date: 05/30/2017
Proceedings: Petitioner Joseph McClash Acceptance of Stipulations Contained in the Response to Motion to Compel (Site Inspection) Submitted by Respondent Long Bar Pointe, LLLP (filed in Case No. 17-000796).
PDF:
Date: 05/24/2017
Proceedings: Respondent Long Bar Pointe, LLLP's Response to Petitioner Joseph McClash's Motion to Compel (Site Inspection) filed.
PDF:
Date: 05/17/2017
Proceedings: Petitioner Joseph McClash Motion to Compel (Site Inspection; filed in Case No. 17-000796).
PDF:
Date: 05/09/2017
Proceedings: Notice and Certificate of Service of Petitioner Joseph McClash Request for Entry Upon Land for Inspecton and Other Purposes to Long Bar Pointe, LLLP (filed in Case No. 17-000796).
PDF:
Date: 04/17/2017
Proceedings: Amended Notice of Hearing (hearing set for September 12 through 14, 2017; 9:30 a.m.; Bradenton, FL; amended as to final hearing dates).
PDF:
Date: 03/21/2017
Proceedings: Notice of Appearance (James Fussell) filed.
PDF:
Date: 03/15/2017
Proceedings: Respondent, Long Bar Pointe, LLLP'S, Notice of Service of Answers to Petitioner, Joseph McClash's First Set of Interrogatories (filed in Case No. 17-000796).
PDF:
Date: 03/15/2017
Proceedings: Notice of Service of Department's Answers to Petitioner's First Set of Interrogatories (filed in Case No. 17-000796).
PDF:
Date: 02/22/2017
Proceedings: Notice of Appearance (Edward Vogler; filed in Case No. 17-000796).
PDF:
Date: 02/20/2017
Proceedings: Order Denying Motion.
PDF:
Date: 02/20/2017
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/20/2017
Proceedings: Notice of Hearing (hearing set for September 19 through 21, 2017; 9:00 a.m.; Bradenton, FL).
PDF:
Date: 02/20/2017
Proceedings: Order of Consolidation (DOAH Case Nos. 17-0795 and 17-0796)).
PDF:
Date: 02/17/2017
Proceedings: Department of Environmental Protection's Amended Response to Initial Order filed.
PDF:
Date: 02/15/2017
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 02/14/2017
Proceedings: Petitioner's Response to Initial Order filed.
PDF:
Date: 02/08/2017
Proceedings: Initial Order.
PDF:
Date: 02/06/2017
Proceedings: Agency action letter filed.
PDF:
Date: 02/06/2017
Proceedings: Amended Verified Petition for Formal Administrative Hearing filed.
PDF:
Date: 02/06/2017
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
02/06/2017
Date Assignment:
02/08/2017
Last Docket Entry:
04/27/2018
Location:
Sarasota, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (11):

Related Florida Rule(s) (7):