98-000819 Michael D. Rich, Coalition For Responsible Econlockhatchee Development, Inc. vs. St. Johns River Water Management District Status: Closed Recommended Order on Monday, November 2, 1998.

Summary: Conceptual permit approval should be granted to large multi-phased residential project where mitigation is adequate, impacts have been minimized and public interest test met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES H. GRIFFIN, )

)

Petitioner, )

)

vs. ) Case No. 98-0818

)

ST. JOHNS RIVER WATER MANAGEMENT )

DISTRICT, )

)

Respondent, )

)

and )

)

LIVE OAK PLANTATION NO. 1, LTD., )

)

Inter venor. )

___________________________________)

MICHAEL D. RICH, a citizen of the )

state of Florida, and COALITION )

FOR RESPONSIBLE ECONLOCKHATCHEE )

DEVELOPMENT, INC., a not-for- )

profit corporation of the state )

of Florida, )

)

Petitioners, )

)

vs. ) Case No. 98-0819

)

ST. JOHNS RIVER WATER MANAGEMENT )

DISTRICT, )

)

Respondent, )

)

and )

)

LIVE OAK PLANTATION NO. 1, LTD., )

)

Intervenor. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, Mary Clark,

held a formal hearing in the above-styled consolidated cases on

July 14-17, 1998, in Orlando, Florida.

APPEARANCES

For Petitioners: Scott M. Price, Esquire

Rich and C-RED J.A. Jurgens, P.A.

505 Wekiva Springs Road

Longwood, Florida 32779

For Petitioner: Charles H. Griffin, pro se

Griffin 250 West 7th Street

Chuluota, Florida 32766

For Respondent: Michael L. Gore, Esquire

Live Oak Meredith A. Harper, Esquire

Ken W. Wright, Esquire

Shutts and Bowen, LLP

20 North Orange Avenue

Suite 1000

Orlando, Florida 32801

For Respondent: Anthony J. Cotter, Esquire

District St. Johns River Water

Management District

Post Office Box 1429

Palatka, Florida 32178-1429

STATEMENT OF THE ISSUES

Live Oak Plantation No. 1, Ltd. (Live Oak) through Stanford

Development Group filed application number 4-117-0464AC-ERP with

the St. Johns River Water Management District (SJRWMD) in

April 1997, seeking a conceptual approval environmental resource

permit. After SJRWMD issued its notice of intent to grant the

permit, the Petitioners filed their petitions challenging the

intended agency action.

The central issue in this proceeding is whether the permit

should be issued pursuant to Chapter 373, Florida Statutes, and

Chapters 40C-4, 40C-41 and 40C-42, Florida Administrative Code,

including specific provisions of the Applicant's Handbook adopted

by rule and identified in the parties' prehearing stipulation

filed July 8, 1998.

PRELIMINARY STATEMENT

After the SJRWMD forwarded the petitions to the Division of

Administrative Hearings (DOAH), they were consolidated and Live

Oak was granted leave to intervene.

At the commencement of the hearing, upon the motion by

SJRWMD, official recognition was given to the SJRWMD Applicant's

Handbook, as well as certain provisions of the Florida Statutes

and Florida Administrative Code.

Live Oak presented the testimony of three witnesses, all of

whom were qualified as expert witnesses. John Florio, a Florida

registered professional engineer employed by Donald W. McIntosh

and Associates, Inc., the applicant's consulting engineer, was

accepted as an expert in the areas of engineering and design,

permitting and construction of water and wastewater systems,

including retention/detention basins, control structures, pipe

networks and its grading. James Nugent, a project engineer

employed by Universal Engineering Sciences, Inc., was accepted as

an expert in the analysis of soil and groundwater conditions.

James Modica, a biologist and the owner of Modica and Associates,

Inc., was accepted as an expert in the area of analysis of

wildlife, including threatened and endangered species surveys,

evaluation and relocation of species, analysis of wetland

communities, including mitigation design and ratios and

environmentally sensitive lands.

SJRWMD presented the testimony of four witnesses, three of

whom were qualified as expert witnesses. David Eunice, an

environmental specialist employed by the SJRWMD, was accepted as

an expert in the field of ecology, wetland and wildlife ecology,

mitigation planning and environmental resource permitting. Glen

Lowe, a division director of the Division of Environmental

Resource Management, was accepted as an expert in the field of

wetland ecology, wildlife biology, mitigation planning, and

environmental resource permitting. Carla Palmer, the chief

engineer for the SJRWMD's Department of Resource Management, was

accepted as an expert in the field of storm water and surface

water system engineering and design, and environmental resource

permitting. Patrick Frost, the assistant director of the

Department of Resource Management, appeared as a fact

witness.

Petitioners Coalition for Responsible Econlockhatchee

Development, Inc. (CRED) and Michael Rich offered one fact

witness, Petitioner Michael Rich, and three expert witnesses.

Vickie Larson was accepted, over objection, as an expert in the

wildlife survey methodologies, wildlife biology and ecology, and

wetlands mitigation. Steven Rich was accepted as an expert in

land management, water quality, wildlife with regard to

threatened and endangered species, mitigation, wetlands, uplands,

proscribed environmental burning, enforcement and compliance with

environmental permits, and turbidity and erosion control.

Charles Drake was accepted as an expert in hydrogeology and

groundwater flow modeling.

Petitioner Charles Griffin testified on his own behalf.

Live Oak offered 13 Exhibits which were admitted into

evidence as Live Oak Exhibit numbers 1 through 13. SJRWMD

identified 10 Exhibits during the course of the hearing. The

district's Exhibit numbers 1 and 3 through 10 were admitted into

evidence. C-RED identified 15 Exhibits during the course of the

hearing. C-RED Exhibits 1,3,4,5,7,8,9,10,13,14, and 15 were

admitted into evidence. Mr. Griffin did not offer any exhibits

into evidence.

The transcript of the proceedings was filed on August 17,

1998 and the parties, with the exception of Mr. Griffin,

submitted their Proposed Recommended Orders on September 11 and

September 14, 1998. The proposals of the SJRWMD are

substantially adopted here.

FINDINGS OF FACT

A. T he Parties

1. Michael D. Rich is a former resident of Seminole County

who lived on the property contiguous to the Live Oak site. He is

the legal representative of his mother who still resides on the

property and he is president of C-RED.

2. C-RED is a Florida non-for-profit corporation with

members from the City of Oviedo and unincorporated areas of

Seminole County who are interested in assuring that development

is done without improper impact on the taxpayers and the rural

character of the area.

3. Mr. Griffin is a resident of Seminole County living on

Horseshoe Lake, which adjoins the Live Oak site.

4. Live Oak is a Florida Limited Partnership which intends

to develop the project that is the subject of this proceeding.

5. SJRWMD is a special taxing district created by Chapter

373, Florida Statutes, and charged with responsibility for

various permitting programs, including the one at issue here.

B. The Project

6. Live Oak proposes to develop a large multi-phased single

family project with two small commercial sites. The project, to

be known as "Live Oak Reserve," will be on approximately 1,041

acres on the south side of county road 419 in southeastern

Seminole County in the City of Oviedo.

7. The project site is located near the confluence of the

Econlockhatchee River (Econ River) and Little Econlockhatchee

River. The Live Oak Reserve property includes approximately half

of Horseshoe Lake, as well as a small creek, Brister Creek, which

flows from Horseshoe Lake across the property to the Econ River.

The Econ River, a class III water and designated an Outstanding

Florida Water ( OFW), crosses the southwestern corner of the Live

Oak Reserve property. The Econ River is the receiving water body

of Live Oak Reserve.

8. The Live Oak Reserve property is located within the

Econlockhatchee River Hydrologic Basin. A portion of the Live

Oak Reserve property lies within the Econlockhatchee River

Riparian Habitat Protection Zone ( RHPZ). The Live Oak property

lies within a 1,500 acre drainage basin; approximately 450 acres

off-site drain through Live Oak Reserve. Horseshoe Lake has

approximately 500 acres that drain through it, then through the

wetlands and into the Econ River.

9. Historically, the Live Oak Reserve property has been

used for agricultural practices, including siliviculture and

cattle production. Some areas of the property have been logged

and some areas have been converted to pasture. Cattle have

grazed in wetlands, thereby decreasing the amount and diversity

of groundcover vegetation on portions of the property.

Additionally, on-site drainage ditches have had a major impact on

the hydrological characteristics of the wetlands on the property,

including the reduction of surface water elevations. The Live

Oak Reserve property is currently vacant and undeveloped.

C. The Application Process

10. In April 1997, Live Oak submitted to the SJRWMD an

Environmental Resource Permit Application, N4-117-0464AC-ERP, for

conceptual approval of a master stormwater and floodplain

management system for the development of Live Oak Reserve.

11. A conceptual permit is utilized in complex multi-phased

projects which are expected to have a longer build-out period

than a single phase project. A conceptual permit does not allow

any construction activity, but provides the outline for final

engineering calculations and construction drawings. Further

permits are required before any sitework or construction is

undertaken.

12. In conjunction with its permit application Live Oak

submitted detailed technical information, including but not

limited to charts, maps, calculations, studies, analyses and

reports necessary to show that the conceptual development plan

was consistent with the permitting criteria of the SJRWMD found

in Chapter 40C-4, Florida Administrative Code, and the

Applicant's Handbook.

13. The master plan for the Live Oak project was designed

by Donald W. McIntosh Associates, Inc.(McIntosh) using input

from: (a) land planners who were required to consider issues

related to the comprehensive plans, open space requirements and

related issues; (b) landscape architects who were responsible for

the proposed park systems and landscape treatments throughout the

project; (c) geotechnical engineers responsible for evaluating

the soil and groundwater conditions; and (d) environmental

consultants, Modica and Associates, who were responsible for

wetland delineation and flagging and wildlife surveys.

14. The first version of the Live Oak Reserve site plan

prepared for the project by McIntosh included development of all

upland areas and filling several portions of the mixed forested

wetlands to maximize lot yield. This included development of the

upland adjacent to the Econ River and development of an upland

parcel on the west side of the river. After much consideration

and revision by the developer and its consultants, a site plan

was developed which minimizes impacts to wetlands and other

surface water functions, particularly as it relates to the Econ

river, and maximizes the benefits to wildlife by establishing a

series of wildfire corridors across the site.

15. The final plan submitted to the SJRWMD at the time of

the application includes the preservation of the entire Econ

River floodplain and two adjacent developable upland areas, a

large mixed hardwood forested wetland which traverses the site

from the northeast to the southwest, and upland and wetland areas

in the southern portion of the site that provide a corridor

between a large undeveloped parcel to the east and the Econ River

to the west.

16. After submission of its application, Live Oak

participated in a review process with SJRWMD staff to further

eliminate and reduce wetland impacts. Specifically, SJRWMD

requested changes to the site plan which included reductions in

impacts to various wetlands and additional buffers to other

wetlands. Several changes to the site plan were made to

accommodate the SJRWMD's concerns relating to reducing impacts to

wildlife, particularly the Florida sandhill crane.

17. The reductions in wetland impacts and other design

changes resulted in a revised site plan which the SJRWMD staff

recommended to the district's governing board for approval. The

staff recommendation of approval, with associated conditions, is

set forth in Technical Staff Report dated February 10, 1998.

On July 14 and 16, 1998, the SJRWMD revised the technical staff

report to reflect changes to the project design and mitigation

plan, as well as to add conditions inadvertently omitted from the

earlier technical staff report. Condition no. 8 was mistakenly

added to the July 16 technical staff report and by stipulation of

all the parties, this condition was removed from the technical

staff report. (See transcript, page 521)

D. Stormwater Analysis

18. McIntosh utilized information from different sources in

preparing the stormwater calculations submitted to the SJRWMD.

The developer provided information regarding proposed lot sizes

and types so as to determine the impervious surface area for

developable lots. The geotechnical consultants, Universal

Engineering Sciences, (Universal) provided McIntosh with

preliminary, interim, and final geotechnical reports, soil boring

logs, and groundwater table estimates.

19. The input from Universal primarily involved the

establishment of seasonal high and seasonal low groundwater

elevations for the pre-development and post-development

conditions on the site. The estimated seasonal high and seasonal

low groundwater levels refer to the range of levels the

groundwater is expected to attain on the site during the wetter

(high) and dryer (low) periods of a normal year. These

elevations were then utilized in the stormwater calculations

prepared by McIntosh.

20. Topography on Live Oak Reserve consists of elevations

ranging from 48 feet to 25 feet NGVD. In its pre-development

condition, Live Oak Reserve has 6 distinct drainage patterns.

Off-site drainage basins also contribute runoff to the property.

The conceptual post-development design will modify the project's

on-site drainage patterns into 28 drainage basins.

21. At the request of the SJRWMD, Live Oak prepared

seasonal high and seasonal low groundwater elevation contour

maps. Live Oak performed approximately 200 borings on the Live

Oak Reserve property. From the borings, Live Oak determined the

soil types present and the existing groundwater elevations. Live

Oak also used the borings to assist in establishing the estimated

seasonal groundwater elevations. With the exception of several

shallow borings in wetland areas, all borings were taken by split

spoon sampling. Seventy-nine piezometers were installed next to

bore holes to measure groundwater levels.

22. In establishing the seasonal high groundwater levels,

Live Oak evaluated the groundwater level at the time of boring;

the time of year the groundwater level was measured; the time

span of the investigation and its relationship to normal rainfall

patterns; soil indicators such as coloration, mottling, and

particle size; site specific topography; USGS quadrangle maps

depicting site topography; Soil Conservation Service ( NSCS)

estimates of the expected seasonal high groundwater levels; and

vegetative indicators.

23. It is not essential to evaluate rainfall data when

determining the seasonal water levels because the historical

seasonal water levels are recorded in the soils. The estimated

seasonal high groundwater level can be determined during the dry

season. The range of the estimated seasonal high groundwater

level on the Live Oak Reserve property is from standing water on

the ground to five feet below the existing grade.

24. In evaluating Live Oaks estimated seasonal groundwater

levels, the District reviewed Live Oak's submittals, and also

reviewed the NSCS soil survey to confirm that the estimated

seasonal groundwater levels were reasonable.

25. Wetland seasonal surface water levels were estimated

using biological indicators such as lichen lines, buttressing,

water lines, and sand lines. Lichen lines were apparent on the

Live Oak Reserve properly and reflective of normal rainfall

conditions. Seasonal high water levels are expected at the end

of September. Seasonal low water levels are expected in May.

26. The wetland surface water levels encountered in

January 1997, when the seasonal levels were estimated, were

neither exceptionally low nor exceptionally high. The water

levels were representative of a period of normal rainfall.

27. Water quantity attenuation and stormwater treatment

will be accomplished through wet detention ponds and vegetative

natural buffers.

28. Due to the location of Live Oak Reserve in the

Econlockhatchee River Hydrologic Basin, special basin criteria

apply this project. The special basin criteria, also known as

the "Econ Rule," is more stringent than the stormwater management

criteria set forth in Applicant's Handbook sections 9 and 10.

The special basin criteria, as it relates to the surface water

management systems, requires Live Oak to control its discharge

from two design storms: the mean-annual design storm, and the

25-year, 24-hour design storm. A design storm is a hypothetical

storm with a predetermined rainfall amount, a predetermined

intensity and 24 hour-duration.

29. Designing the system to control the peak discharge

during the mean-annual storm will prevent erosive velocities

that would be harmful to Brister Creek and the Econ River. The

conceptually proposed system is designed to limit peak rates of

discharge to those of pre-development for the mean-annual and the

25-year, 24-hour design storm events. The system, as

conceptually proposed, will limit post-development discharge

rates to the same as or lower than the pre-development discharge

rates.

30. Each stormwater management area will pre-treat its

respective post-development basin's pollution volume prior to

discharge downstream. Live Oak proposes to use vegetative

natural buffers for a portion of the rear lots within the post-

development condition to fulfill treatment requirements.

31. Live Oak Reserve is designed for the retention of the

first inch of runoff from the total area of the post-development

basins or the total runoff from 2.5 inches times the post-

development basin's impervious area, whichever is greater.

Furthermore, because Live Oak Reserve conceptually discharges to

the Econ River, an OFW, the system is designed to provide an

additional 50 percent of treatment. For discharges to an OFW the

system must treat to a 95 percent removal standard.

32. The outfall structures within each wet detention system

are designed to draw down one-half the required treatment volume

between 60 to 72 hours following storm event, but no more than

one-half of this volume will be discharged within the first 60

hours. Each wet detention pond is designed with a permanent pool

with a 31.5-day residence time during the wet season. Residence

time is the time that the water within a pond will stay in the

pond prior to discharge. The residence time includes the 14-day

residence time required of all wet detention systems, an

additional 50 percent residence time (7 days) for discharging

into an OFW, for a total of 21 days. In addition, each system

has been designed to provide an additional 50 percent residence

time (10.5 days) because Live Oak has elected not to plant

littoral shelves within each pond.

33. As conceptually designed, Live Oak reserve's post-

development drainage pattern will have no effect on the drainage

patterns of Lake Eva or Horseshoe Lake. As conceptually

designed, Live Oak Reserve's post-development drainage pattern

will reduce the rate of flow during the storm events, which is a

positive effect on the drainage pattern of Brister Creek. The

reduction in flow velocity reduces the erosiveness of the storm.

34. Live Oak has demonstrated that the 25-year and 100-

year, 24-hour storm events' post-development peak stages for Lake

Eva and Horseshoe Lake are not changed as a result of this

conceptual project. Based upon Live Oak's calculations, the Live

Oak Reserve project will not cause any restriction to the flow of

water as it outfalls from Horseshoe Lake to Brister Creek.

35. The conceptual wet detention systems within Live Oak

Reserve are proposed to have a maximum depth of 12 feet.

However, Live Oak requested consideration at the time of final

engineering for each phase of development to maximize selected

stormwater management areas for maximum depths of up to 25 feet.

That consideration will be made in subsequent application review

and is also subject to the City of Oviedo's approval.

36. The conceptual wet detention ponds are designed with an

average length to width ratio of two to one, and are configured

to minimize the occurrence of short circuiting. As such, they

will meet the criteria of the applicable rules.

37. Tailwater conditions for the project were based on

published flood elevations. Live Oak analyzed the tailwater

condition for the mean-annual, 25-year 24-hour, and the 100-year

24-hour design storms.

38. Live Oak completed a 100-year flow analysis for Live

Oak reserve. Pre-development floodplain elevations for Lake Eva,

Horseshoe Lake, and the Econ River were referenced from previous

studies (Seminole County) and the Federal Emergency Management

Agency. Live Oak determined that the 100-year floodplain

elevations effecting Live Oak Reserve to be 40.2 feet NGVD from

Horseshoe Lake, 45.0 feet NGVD for Lake Eva, and 32.5 feet NGVD

for the Econlockhatchee.

39. The U.S. Geological Survey ( USGS) has produced a map of

flood prone areas which indicates that the elevation delineating

the flood prone area for Horseshoe Lake is 40.14, not 40.2, and

for Lake Eva is 43.38, not 45.0. Therefore, the area indicated

by USGS as the flood prone area is included in the 100-year

floodplain analysis of Live Oak. Live Oak, in its conceptual

design, has demonstrated that it will provide compensating

storage for any encroachments into the 100-year floodplain. Live

Oak has conceptually proposed to fill approximately 18.69 acre-

feet within the 100-year floodplain.

Live Oak will compensate the filling of the floodplain by

providing a cut with the 100-year floodplain of approximately

27.09 acre-feet.

40. By meeting the criteria in the " Econ Rule" the project

conceptually meets all other relevant standards for stormwater

management as the basin rule is more stringent. Live Oak has

provided reasonable assurance that the development will not

affect surrounding property or raise stagewater elevations of any

surrounding property; the development will not displace the 100-

year flood plain area; and the development will not restrict or

impede the natural flow from Horseshoe Lake.

E. Wetland and Wildlife Impacts

41. Approximately 430 acres of wetlands cover the project

site. Two general types of wetlands on found on the Live Oak

reserve property: herbaceous wetlands and forested wetlands.

Twenty-three herbaceous wetlands are classified as freshwater

marshes. These wetlands range in size from 0.2 acre to over 8

acres. Wetlands 10 and 16, the largest on the property, are

mixed hardwood forested wetlands.

42. Approximately 525 acres of the Live Oak Reserve

property are located within the RHPZ. Of this area,

approximately 410.5 acres are wetlands, and the remainder are

uplands that are predominantly pine flatwoods and xeric scrub. A

few of the wetlands on site are considered RHPZ wetlands, not

"isolated," solely because they are connected to floodplain

wetlands by ditches. These wetlands and 50 feet of the uplands

surrounding them are considered part of the RHPZ.

43. The wetlands within the RHPZ are intact with little

disturbance, especially in the Econ River corridor that is a part

of wetland 16. Wetland 10 has been logged and the species

composition in that wetland has changed. Wetlands 12 and 14 have

ditch connections to the Econ River, but these ditch connections

do not appear to have adversely impacted the wetlands

hydrologically. Wetlands 2,3, and 8 have ditch connections to

the Econ River. These wetlands have been adversely affected

(drained) by the ditching.

44. The RHPZ uplands are in good condition and provide very

valuable habitat, except for 12 acres that are adjacent to upland

cut drainage ditches. These 12 acres have no habitat value. The

portion of the Live Oak Reserve property within the RHPZ provides

good habitat important to fish and wildlife, and is part of the

Econ River floodplain.

45. The upland areas outside the RHPZ on the Live Oak

Reserve property primarily consist of pine flatwoods and pasture.

The pine flatwoods have been logged and are overgrown. The

pasture appears to have been cleared many years ago and planted

with bahia grass.

46. Twenty-two isolated wetlands, which total approximately

17.9 acres, are located on the Live Oak reserve property. The

isolated wetlands are intact and in good condition, except for

temporary impacts due to cattle grazing and logging. The

isolated wetlands provide habitat for wading birds, frogs, toads,

and other wildlife.

47. Ephemeral wetlands are wetlands that are seasonally

inundated, but not necessarily inundated every year. Ephemeral

wetlands provide important functions to wildlife, including

gopher frogs and other amphibians for breeding, wading birds and

sandhill cranes for foraging, and invertebrates.

48. Ephemeral wetlands or "seasonal" wetlands occur on the

Live Oak Reserve property. Although Live Oak did not separately

address any of the wetlands as ephemeral, the value and functions

of ephemeral wetlands were assessed by SJRWMD staff-person, David

Eunice. While several small ephemeral wetlands are being

impacted by the proposed development, several others are being

preserved.

49. Live Oak conducted wildlife surveys of the Live Oak

Reserve property in accordance with the Florida Game and Fresh

Water Fish Commission's approved Wildlife Methodology Guidelines.

50. Based on the surveys, Live Oak determined that three

listed species occurred on-site: the Florida sandhill crane, the

gopher tortoise, and the Sherman's fox squirrel. The Florida

sandhill crane is a threatened species. Live Oak found no

evidence that the property hosts Florida panthers.

51. Although the wildlife surveys did not identify gopher

frogs, a species of special concern, the SJRWMD recognized the

potential for the gopher frog to use the wetlands, including the

ephemeral or seasonal wetlands, on the Live Oak Reserve property.

52. Florida sandhill cranes have been observed foraging in

a few areas on the Live Oak reserve property. In the spring of

1997, Live Oak identified two active nests in freshwater marshes

(wetlands 21 and 29). There is no evidence that the sandhill

cranes are currently nesting in wetland 29; however, Florida

sandhill crane nests have been located in wetlands 14 and 21 this

year.

53. The typical critical nesting habitat for Florida

sandhill cranes is a large, isolated marsh, generally either

dominated by maidencane or pickerel weed. The marsh must

maintain a surface water level between 12 and 24 inches so that

the birds can construct a suitable nesting platform in the marsh.

Nesting success, in part, depends upon wetland type used and

water depths.

54. The Florida sandhill crane also requires a certain

amount of pasture-like upland habitat in which to forage.

However, the crane forages in both uplands and wetland. Upland

pasture is the sandhill crane's preferred foraging habitat. The

sandhill crane's second most preferred foraging habitat is

freshwater marsh.

55. When the sandhill cranes have chicks and fledglings,

the birds forage in the wetlands. After a period of three to

four months, the juvenile and adult sandhill cranes will move to

open pasture to forage.

56. The Econ River floodplain wetlands and their associated

upland habitats on the Live Oak reserve property are regionally

ecologically significant. Overall, the Live Oak Reserve property

provides good ecological value. It is part of the river

corridor, has a tributary that runs through it and has uplands

that have had little disturbance.

57. Live Oak has eliminated certain wetland impacts and

reduced others during the design of the Live Oak Reserve project.

Live Oak eliminated some road crossings, and redesigned the pond

configuration to eliminate or reduce encroachments into wetlands.

Live Oak's site plan that was submitted as part of the initial

April 14, 1997, application reflects Live Oak's initial attempts

to eliminate or reduce impacts. Live Oak, in its application,

proposed a project design with 46 acres of wetland impacts. The

site plan has changed since Live Oak made the initial application

to the SJRWMD.

58. The initial project design called for the removal of

the southern one-half of wetland 29 for the construction of a

stormwater pond. Live Oak redesigned the project to preserve

wetland 29 with a 50-foot upland buffer around it to eliminate

direct impacts to the sandhill cranes nesting there.

59. Live Oak further reduced impacts by preserving wetlands

14 and 15, and by placing upland buffers around them to protect

sandhill crane habitat. The revised design of the surface water

management system reduced wetland impacts by approximately 7

acres. The SJRWMD February 10, 1998, technical staff report

includes the design plans reducing impacts by 7 acres.

60. After the SJRWMD issued its February 10, 1998,

technical staff report, Live Oak once again redesigned the

project to preserve wetland 12. This redesign reduced wetland

impacts by an additional 3 acres.

61. In this case, SJRWMD staff worked with Live Oak to

reduce or eliminate its impacts. Nonetheless, staff believed

Live Oak's proposed mitigation qualified for the exception under

Section 12.2.1.2b, that is, the on-site preservation of the Econ

River floodplain and associated uplands, in concert with Live

Oak's contribution to acquiring a conservation easement over the

Yarborough parcel, discussed below, provides regional ecological

value and provides greater long term ecological value then the

areas impacted. Live Oak proposes practicable design

alternatives, but it is not required to reduce or eliminate all

impacts. Some design alternatives, such as whether to use a

bridge or culverts for the Brister Creek crossing, must be

addressed and considered at a later permit application stage and

not at this conceptual permit stage.

62. The proposed design includes dredging or filling of

approximately 35.9 acres of wetlands and construction in

approximately 38 acres of RHPZ uplands. Of these 35 wetlands on

the Live Oak Reserve property, Live Oak will completely impact 23

of the wetlands (17.64 acres of wetland impact); partially impact

5 wetlands (18.28 acres of wetland impacts out of 370.15 acres of

wetlands); and will avoid impacts to 7 wetlands (40.63 acres).

63. The impacts are mostly limited to the small isolated

wetlands, the upland/wetland transitional edges of the floodplain

wetlands, and portions of RHPZ already degraded by a ranch

roadway and ditch placement. Live Oak focused its impacts on

areas, including wetlands, that were historically disturbed.

64. SJRWMD staff considered that the isolated wetlands less

than 0.5 acre were used by sandhill cranes and other threatened

or endangered species. Therefore, staff required Live Oak to

offset impacts to the small isolated wetlands.

65. In addition to physical impacts to wetlands and RHPZ,

the habitation of the proposed subdivision, which will result in

noise and intrusion into wildlife habitat by humans and their

pets, will cause secondary impacts. Those secondary impacts are

offset in part by the upland buffers proposed by the applicant

(a total of 10 acres of 25 foot buffers and 47.86 acres of 50-

foot buffers.)

66. After considering the type of impact proposed; past,

present and future activities that may occur in the Econ River

Hydrologic Basin; and that Live Oak off-site mitigation of

adverse impacts is located within the same hydrologic basin;

SJRWMD staff appropriately determined that Live Oak Reserve would

not have an adverse cumulative impact.

E. Mitigation

67. Live Oak's mitigation plan consists of both on-site and

off-site preservation.

68. The proposed on-site component of the mitigation plan

entails the preservation of 19.3 acres of herbaceous marsh,

373.2 acres of forested wetlands, and 124.9 acres of uplands.

The mitigation plan preserves approximately 5.65 acres of

isolated wetlands on-site, and approximately 386.86 acres of RHPZ

wetlands on-site.

69. The cornerstone of Live Oak's on-site mitigation is the

preservation of the Econ River forested floodplain swamp, as well

as two upland areas, in the southwestern corner of the property.

One of the upland areas is a 15-acre upland scrub island on the

east side of the river that is surrounded by forested wetlands.

The other upland area is 24 acres of uplands located near the

Econ River on its west side. Portions of both uplands are within

the RHPZ.

70. Both the forested floodplain and the associated upland

areas provide habitat of regional ecological significance. The

forested floodplain wetlands and the uplands that are part of the

RHPZ are protected to a large degree by SJRWMD regulations.

These regionally significant wildlife communities, however, can

be temporarily, but chronically, impacted, if not permanently

degraded, by timbering and other activities that are relatively

unregulated. Live Oak proposes to protect and preserve these

areas by placing them in a conservation easement.

71. Placing Econ River forested floodplain wetlands and the

upland RHPZ areas in a conservation easement will provide a

greater level of protection and assurance that they will mature

to an "old growth" condition, which will benefit many wildlife

species. The Econ River floodplain wetlands, the upland scrub

island and the small isolated wetland in the scrub island will

accommodate the smaller wildlife species that currently use the

Live Oak Reserve property.

72. Live Oak has preserved most of the larger isolated

wetlands with high ecological value. The large isolated wetlands

preserved on-site will continue to maintain a high level of

ecological function even with the surrounding development.

Wildlife, such as frogs, toads, snakes, and wading birds will

continue to use those wetlands.

73. The on-site portion of the mitigation plan preserves

approximately 71.87 acres of upland buffers, of which 2.04 acres

are located in 25-foot buffers and 69.83 acres are located in 50-

foot RHPZ buffers. The buffer areas will be placed in a

conservation easement.

74. The wildlife values of the uplands on this property

that are not within the RHPZ are protected to some degree by

local government regulations; they are, however, largely

unprotected by the existing regulations of SJRWMD. Without the

proposed conservation easements, this habitat may be developed or

significantly degraded by other activities.

75. As a component of its on-site sandhill crane nesting

site management plan, Live Oak preserves a 6.83-acre upland

buffer next to wetland 21, which hosts a sandhill crane nest.

Additionally, Live Oak provides enhancement of 3.88 acres on the

southside of wetland 21 within the 6.83-acre buffer area by

converting this area to improved pasture for sandhill crane

foraging habitat.

76. The mitigation plan sufficiently offsets the impacts to

the smaller isolated wetlands, even if these wetlands have more

than a typical resource value.

77. When evaluating impacts and mitigation, Applicant's

Handbook Section 12.2.3.7 requires the SJRWMD to evaluate the

predicted ability of the wetland or other surface water to

maintain their current functions as part of the proposed system

once the project is developed. Many of the smaller isolated

wetlands, when located in a natural setting such as a pine

flatwood, are very critical and provide very high ecological

value. However, once a project is developed and the small

isolated wetland is surrounded by homes, the resource value of

the small isolated wetland is diminished. Many of the smaller

wildlife species, such as frogs and snakes, will be extirpated

from the developed area of property, whether or not the smaller

isolated wetlands remain. SJRWMD considered the value of the

off-site mitigation to offset the adverse impacts to the smaller

isolated wetlands.

78. In determining the adequacy of the preservation

component of the mitigation plan, SJRWMD staff did not rely upon

any specific rule, regulation, or comprehensive plan of the City

of Oviedo. However, the staff did consider the overall

protections afforded by the regulatory and comprehensive plan

requirements of the city and determined that preservation of the

mitigation areas by conservation easement provided greater

assurance that these areas will be protected than the local

government rules, regulations, and comprehensive plan.

79. The off-site component of the mitigation plan is the

contribution of $160,525 towards participation in the SJRWMD

acquisition of a conservation easement over the 3,456 acre

Yarborough parcel. The Yarborough parcel is located in the

northeastern corner of the Econ River Hydrologic Basin. The

Yarborough parcel encompasses property north and south of the

Econ River. A portion, mostly sovereign lands, lies within the

Puzzle Lake/Upper St. Johns River Hydrologic Basin. The

Yarborough parcel is part of a large working ranch. The parcel

contains improved and unimproved pasture, significant cabbage

palm hammocks, pine flatwood communities, and freshwater marsh.

80. Live Oak's participation equates to the acquisition of

a conservation easement over 200 acres of the Yarborough parcel.

However, Live Oak is not purchasing any particular 200 acres with

the Yarborough parcel. Live Oak's contribution is applied to 200

acres of the Yarborough parcel within the Econ River Hydrologic

Basin.

81. SJRWMD estimates that of the 200 acres, 165 acres are

wetlands and 35 acres are uplands. This assessment is based on

the composition of wetlands and uplands on the Yarborough

property within the Econlockhatchee River Hydrologic Basin.

82. SJRWMD has purchased development rights over the

Yarborough parcel. Yarborough is authorized to continue its

cattle operation on the Yarborough parcel for 20 years in

accordance with the conditions of the conservation easement.

However, Yarborough is not permitted to increase the amount of

improved pasture or further develop the parcel. On the contrary,

the conservation easement requires Yarborough to decrease the

number of cattle on the parcel over the next 20 years.

83. Purchase of the conservation easement over the working

ranch has positive environmental benefits. The conservation

easement will protect the wildlife species that use the ranch.

This environmental benefit can be used to offset adverse impacts

on the Live Oak Reserve property.

84. To participate in this type of mitigation, the

acquisition must be imminent so that the SJRWMD is reasonably

assured that the purchase will go forward. Participation is

precluded for a parcel after its acquisition is concluded.

85. Live Oak's mitigation plan, with its on-site and off-

site components, offsets Live Oak Reserves adverse impacts.

86. SJRWMD calculates the mitigation ratio and compares it

to the guidelines in the Applicant's Handbook to determine if

mitigation is adequate. SJRWMD however, is not required to

adhere to any set ratio. The upland preservation ratio (area

preserved to area impacted), excluding the 12 acres of uplands

along the upland cut ditches and the Yarborough parcel uplands,

is 6 to one. The rule guidelines for upland preservation is from

3 to one to 20 to one. The wetland preservation ratio is 15.5 to

one. The rule guidelines for wetland preservation is from 10 to

one to 60 to one.

F. Public Interest Criteria

87. Live Oak Reserve will not have any effect on the public

health, safety or welfare or property of others.

88. Because the mitigation plan adequately offsets all

adverse impacts, Live Oak reserve will not adversely affect the

conservation of fish and wildlife, including endangered or

threatened species or their habitats.

89. Because of the benefits of lowering the discharge rates

in the post-development condition and reducing the velocity of

stormwater in Brister Creek, Live Oak Reserve will reduce the

potential for erosion.

90. Live Oak Reserve will not have any affect on the

fishing or recreational values or marine productivity in the

vicinity of the site.

91. Live Oak Reserve will be of permanent nature. However,

its adverse impacts have been offset by mitigation. The

permanence of the project is beneficial in that it provides

treatment of untreated off-site runoff from county road 419 by

the Live Oak surface water management system and it reduces the

discharge rate of stormwater down Brister Creek. Therefore, the

permanence of the project is not contrary to the public interest.

92. In accordance with Section 373.414, Florida Statutes,

the Florida Department of State Division of Historical Resources

determined that the Live Oak Reserve project will have no

possible impact to historic properties listed, or eligible for

listing, in the National Register of Historical Places, or

otherwise of historical or architectural value. Furthermore, the

Division of Historical Resources determined that the project is

consistent with Florida's Coastal Management Program and its

historic preservation laws and concerns.

93. The current condition and relative value of functions

being performed by the various vegetative communities on the Live

Oak Reserve property is good. However, there is no guarantee

that the value and functions would remain good if the property is

not managed for species like the sandhill crane or if

agricultural and silvicultural practices continue to occur on the

property. The mitigation plan, preserving regionally

ecologically significant wetland and upland communities on both

the Live Oak Reserve and Yarborough parcel by conservation

easement, should provide a greater protection of those

communities than what currently exists.

CONCLUSIONS OF LAW

Regulatory Jurisdiction and Rules

94. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

95. Live Oak's application for a conceptual approval

environmental resource permit is governed by Florida

Administrative Code Chapter 40C-4, Regulation of Surface Water

Management Systems. Chapter 40C-4 implements, in part, Part IV

of Chapter 373, Florida Statutes. Pursuant to these laws and

regulations, SJRWMD has regulatory jurisdiction over the permit

applicant in this case. Rule 40C-4.041(2)(a), Florida

Administrative Code.

96. Live Oak has the burden of proving by a preponderance

of the evidence that it is entitled to the requested permit.

Rule 40C-1.545, Florida Administrative Code; Department of

Transportation v. JWC Co. , 396 So 2d. 778, 788 (Fla 1st DCA

1981).

97. SJRWMD requirements applicable to Live Oak's

application are found in Rule 40C-4.301, Florida Administrative

Code, with the exception of 40C-4.301(1)(g),(h) and (i), Florida

Administrative Code; Rules 40C-4.302(1)(a) and (b), Florida

Administrative Code; Rule 40C-4.381, Florida Administrative Code;

and Rule 40C-41.063(5), Florida Administrative Code.

Econlockhatchee River Special Basin Criteria

98. Brister Creek (wetland 16) is not a named tributary for

the purposes of the Econlockhatchee River Hydrologic Basin

standards and design criteria set forth in Applicant's Handbook

Section 11.4. Pursuant to Applicant's Handbook Section 11.4.4,

only Brister Creek and uplands which are within 50 feet landward

of the landward extent of the wetlands are within the RHPZ.

99. To satisfy the Riparian Habitat Protection Standard

(Applicant's Handbook Section 11.4.4), Live Oak must provide

reasonable assurance that the surface water management system

within the RHPZ, as conceptually designed, will not adversely

affect the abundance, diversity, food sources, or habitat of

aquatic or wetland dependent species. Applicant's Handbook

Section 11.4.4(a).

100. The evidence presented at the hearing demonstrated

that the overall merits of the proposed plan of development,

including the preservation of the regionally ecologically

significant Econ River forested floodplain and the associated

uplands, as well as the preservation of the Yarborough parcel,

provide a degree of resource protection to fish and wildlife

which offsets adverse effects that the system may have on the

abundance, diversity, food sources, or habitat of aquatic or

wetland dependent species provided by the RHPZ. Therefore, Live

Oak has provided reasonable assurance that the surface water

management system within the RHPZ, as conceptually designed, will

not adversely affect the abundance, diversity, food sources, or

habitat of aquatic or wetland dependent species. Applicant's

Handbook Sections 11.4.4(a)and (e).

101. Live Oak has provided reasonable assurance that its

conceptual surface water management system complies with the

design storm criteria set forth in Applicant's Handbook Section

11.4.1.

102. Live Oak has provided reasonable assurance that its

conceptual surface water management system complies with the

floodplain storage criteria set forth in Applicant's Handbook

Section 11.4.2.

103. Live Oak has provided reasonable assurance that its

conceptual surface water management system complies with all the

applicable stormwater management standard criteria in Applicant's

Handbook Section 11.4.3. The criteria set forth in Applicant's

Handbook Section 11.4.3(b)(4) do not apply because Live Oak

elected to provide at least 50 percent additional permanent pool

volume pursuant to Rule 40C-42.026(4)(d)2.a, Florida

Administrative Code. The criteria in applicant's Handbook

Section 11.4.3(b)(8) and (9) are not applicable in the instant

case because these criteria are addressed during the permitting

of the construction phases of the project.

Environmental Criteria

104. Live Oak provided reasonable assurance that the Live

Oak reserve project complies with the applicable environmental

conditions for issuance in Applicant's Handbook Section 12.1.1,

including Sections 12.1.1(a), 12.1.1(b), 12.1.1(c), 12.1.1(f),

and 12.1.1(g). Sections 12.1.1(d) and (e), are not applicable to

this application.

105. Compliance with Applicant's Handbook Section 12.1.1 is

determined through compliance with the criteria explicated in

Applicant's Handbook Sections 12.2 through 12.3.8.

106. Generally, the applicant must explore design

modifications to reduce or eliminate adverse impacts. Adverse

impacts remaining after the applicant makes practicable design

modification may be offset by mitigation. A proposed

modification that is not technically capable of being done, is

not economically viable, or which adversely affects public safety

through the endangerment of lives or property is not considered

practicable. Applicant's Handbook Section 12.2.1.

107. Applicant's Handbook Section 12.2.1.2 provides in

part:

The District will not require the

applicant to implement practicable

design modifications to reduce or

eliminate impacts when:

* * *

b. the applicant proposes mitigation

that implements all or part of a plan

that provides regional ecological value

and that provides greater long term

ecological value than the area of wetland

or other surface water to be adversely

affected.

108. The findings of fact in this case demonstrate that

Live Oak proposes mitigation that implements all or part of a

plan that provides regional ecological value and provides greater

long term value than the area of wetland or other surface water

to be adversely affected. Consequently, Live Oak was not

required to implement practicable design modifications to reduce

or eliminate impacts in accordance with Applicant's Handbook

Section 12.2.1. However, Live Oak has reduced its impacts where

practicable and therefore has complied with elimination or

reduction of impacts criteria in Applicant's Handbook Section

123.2.1.

109. Live Oak has provided reasonable assurance that the

Live Oak Reserve project will not adversely affect the value of

wetlands, including isolated wetlands less than one-half acre,

and other surface water functions to fish, wildlife, listed

species and their habitats. Applicant's Handbook Section 12.2.2.

110. Petitioners presented no competent evidence that the

Live Oak Reserve project would significantly degrade or is within

the Econ River. To the contrary, the evidence indicated that the

project will benefit the Econ River by reducing stormwater

velocities during the mean-annual and 25-year, 24-hour design

storm events.

111. Since the project is located adjacent to, but not

within the Econ River, an OFW, Live Oak must provide reasonable

assurance that the surface water management system, as

conceptually designed, is not contrary to the public interest.

Applicant's Handbook Section 12.2.3. Based on the present design

which provides water quality benefits and a mitigation plan that

offsets the project's adverse impacts, on balance, Live Oak has

provided reasonable assurance that the Live Oak Reserve project

is not contrary to the public interest. Applicant's Handbook

Section 12.2.3.

112. Secondary impacts to the habitat functions of wetlands

associated with adjacent upland activities will not be considered

adverse if buffers with a minimum width of 15 feet and an average

width of 25 feet are provided abutting those wetlands that will

remain under the permitted design, unless additional measures are

needed for protection of wetlands used by listed species for

nesting, denning, or critically important feeding habitat.

Applicant's Handbook Sections 12.2.7(a)). The project meets this

criteria and Live Oak has provided reasonable assurance that the

Live Oak reserve project will not cause adverse secondary impacts

to the water resources. Applicant's Handbook Section 12.2.7.

113. Live Oak has provided reasonable assurance that the

Live Oak Reserve project will not cause adverse cumulative

impacts. Applicant's Handbook Section 12.2.8.

114. Live Oak has complied with the applicable criteria

under Applicant's Handbook Section 12.3.2, namely, Applicant's

Handbook Section 12.3.2.2. The mitigation ratios provided in

Section 12.3.2 are guidelines for preliminary planning purposes

only. The actual ratio needed to offset adverse impacts may be

higher or lower based on the consideration of factors listed in

subsections 12.3.2.1 and 12.3.2.2. Based on the regional

ecological significance and long-term viability of much of the

mitigation proposed, the SJRWMD properly assessed and implemented

appropriate mitigation and preservation ratios. Applicant's

Handbook Section 12.3.2.

115. Applicant's Handbook Section 12.3.1.8 provides in

pertinent part:

Innovative mitigation proposals which

deviate from the standard practices

described in Sections 12.3-12.3.6 shall

be considered on a case-by-case basis.

The donation of money is not considered

to be an acceptable method of mitigation,

unless cash payments are specified for

use in a District or Department of

Environmental Protection endorsed

environmental preservation, enhancement

or restoration project and the payments

initiate a project or supplement an

ongoing project. The project or portion

of the project funded by the donation of

money must offset the impacts of the

proposed system.

116. Live Oak's contribution of money towards the purchase

of a conservation easement is an innovative mitigation proposal

subject to Applicant's Handbook Section 12.3.1.8. Further, the

uncontroverted evidence demonstrated that the donation was

specified for use in a district-endorsed environmental

preservation project. Accordingly, said donation is acceptable

under Applicant's Handbook 12.3 if the portion of the project

funded by Live Oak offsets the impacts of the proposed system.

117. Based on the testimony and evidence presented Live Oak

provided reasonable assurance that the payment of money toward

the acquisition of a conservation easement over the Yarborough

parcel, in concert with the on-site mitigation, offset the

adverse impacts, including secondary impacts to the Florida

sandhill crane.

Surface Water Management System Engineering Criteria

118. Live Oak has provided reasonable assurance that it

complied with the applicable surface water management criteria

set forth in Applicant's Handbook Sections 8, 9, and 10.

119. In summary, the evidence presented at the final

hearing demonstrated that Live Oak has provided reasonable

assurance that the requirements of SJRWMD rules have been met and

the permit should be granted.

RECOMMENDATION

Based on the forgoing, it is

RECOMMENDED

That a final order be entered granting Live Oak's

application for a conceptual approval environmental resource

permit with the conditions set forth in the SJRWMD technical

staff report dated July 16, 1998, with the exception of condition

8, deleted by stipulation.

DONE AND ENTERED this 2nd day of November, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of November, 1998

COPIES FURNISHED:

Henry Dean, Executive Director

St. Johns River Water Management

District

Post Office Box 1429

Palatka, Florida 32178-1429

Scott M. Price, Esquire

J.A. Jurgens, P.A.

505 Wekiva Springs Road

Longwood, Florida 32779

Charles H. Griffin, pro se

250 West 7th Street

Chuluota, Florida 32766

Michael L. Gore, Esquire

Meredith A. Harper, Esquire

Ken W. Wright, Esquire

Shutts and Bowen, LLP

20 North Orange Avenue

Suite 1000

Orlando, Florida 32801

Anthony J. Cotter, Esquire

St. Johns River Water

Management District

Post Office Box 1429

Palatka, Florida 32178-1429

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the final order in this case.