99-004158 Carlos M. Beruff vs. Southwest Florida Regional Planning Council Status: Closed Recommended Order on Tuesday, February 29, 2000.

Summary: No environmental resource permit because proposed activity would increase post-development runoff rate by 50 percent, decrease historic basin storage by more than 40, and destroy wetlands with an enhancement mitigation ratio of six to one.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS M. BERUFF, as Trustee )

under Florida Land Trust )

No. 22 dated March 30, 1989, )

)

Petitioner, )

)

vs. ) Case No. 99-4158

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

______________________________)

CARLOS M. BERUFF, as Trustee )

under Florida Land Trust )

No. 22 dated March 30, 1989, )

)

Petitioner, )

)

vs. ) Case No. 99-4159

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Tampa, Florida, on December 8-10, 1999.

APPEARANCES

For Petiti oner: S. W. Moore

Tracey B. Starrett

Brigham, Moore, Gaylord, Schuster,

Merlin & Tobin, LLP

100 Wallace Avenue, Suite 310

Sarasota, Florida 34237-6043

For Respondent: Mark F. Lapp

Jack R. Pepper

Assistant General Counsel

Southwest Florida

Water Management District

2379 Broad Street

Brooksville, Florida 34609

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to an

environmental resource permit for a surface water management

system and the alteration of a wetland in connection with the

construction of two warehouses, paved parking and loading

areas, a detention pond, and enhancement of the remainder of

the existing wetland. If not otherwise entitled to the

permit, an additional issue is whether Petitioner is entitled

to the permit through an exemption, waiver, or variance from

the standard requirements for mitigation.

PRELIMINARY STATEMENT

On November 10, 1998, Petitioner filed a Petition for

Exemption, Waiver or Variance as to Mitigation Requirements.

Relying upon Section 120.542, Florida Statutes, and Rule

40D -1.52, Florida Administrative Code, the petition seeks an

exemption, waiver, or variance from Chapter 373, Florida

Statutes, and any environmental resource permitting rules that

would require offsite wetlands mitigation and any additional

onsite wetlands mitigation, in addition to the 1.592 acres of

wetlands already proposed for preservation and enhancement.

In support of the request for an exemption, waiver, or

variance, the petition alleges that the subject property has

been platted since 1911 and consists almost entirely--4.89 of

5.49 acres--of a wetland. The petition asserts that the

wetland was historically herbaceous, but is now forested,

isolated, and infested with Brazilian pepper trees. The

petition states that the proposed activity would set aside 29

percent, or 1.592 acres, of the total site acreage, and the

only uplands on the site consist of a developed access road

totaling 0.6 acres. The petition claims that Petitioner

cannot make any other economically viable use of the property

without impacting the remaining onsite wetlands.

Noting that the wetland is small, isolated, and

surrounded by industrial development, the petition reasons

that the wetland does not serve as valuable habitat for native

wildlife. The petition contends that the proposed surface

water management system and development should adequately

provide for any water storage and aquifer recharge presently

occurring onsite. The petition warns that, absent the

project, the wetland would continue to deteriorate through the

invasion of nuisance exotic species.

The petition seeks relief in the form of an exemption,

waiver, or variance, as appropriate.

On November 13, 1998, Petitioner filed an application for

an environmental resource permit to construct two warehouses

with parking and driveways on a 5.88-acre parcel, of which

4.95 acres are wetlands. The application proposed the

destruction of 3.37 acres of wetlands and preservation and

enhancement of 1.59 acres of existing wetlands.

On August 26, 1999, Respondent issued a Notice of Final

Agency Action Denying Environmental Resource Permit

Application No. 4318761.00 and an Order Denying the Petition

for Exemption, Waiver or Variance as to Mitigation

Requirements.

On September 9, 1999, Petitioner filed a Petition for

Consolidated Hearing on Denial of Permit and Denial of

Exemption, Waiver, or Variance as to Mitigation Requirements.

This petition asserts that Respondent acted arbitrarily and

capriciously, so as to deprive Petitioner of all reasonable

use of his property, when Respondent denied Petitioner's

requests for an environmental resource permit and an

exemption, waiver, or variance.

In particular, the petition alleges that Respondent

denied the permit due to Petitioner's failure to provide

reasonable assurance concerning downstream drainage capacity

and water quality impacts to receiving waters and adjacent

lands; onsite and offsite flooding; flooding of Bowlees Creek;

additional runoff into the drainage facilities constructed in

connection with the 301 Park of Commerce at 24th Street; and

the loss of drainage due to a proposed berm. Other alleged

shortcomings in reasonable assurance arise from Petitioner's

alleged failure to provide mitigating storage to offset the

filled wetland or demonstrate that no adverse impacts result

from the loss of storage; calculations showing that 10.6 cubic

feet per second discharge from the onsite wetland into the 42-

inch storm sewer will not adversely impact the receiving

drainage system of ditches and Bowlees Creek; documentation to

confirm that the proposed berm east of 24th Street will not

block drainage; evidence that Manatee County will accept the

additional runoff from the wetland and into the 24th Street

East storm sewer; documentation to support a Curve Number of

96 for the 7.2-acre area of the contributing watershed of the

wetland in the predevelopment analysis of the proposed

project; an assessment of the wetland's relative functions;

consideration and implementation of practicable design

modifications; a mitigation proposal offsetting the loss of

wetland functions; consideration of secondary impacts to

habitat functions; consideration of cumulative impacts and any

necessary mitigation plan; an accurate and reproducible

depiction of Respondent's verified wetland delineation

boundary; and demonstration that the proposed project is not

contrary to the public interest.

The petition asserts that Petitioner has provided all of

the information alleged by Respondent to be absent. The

petition concludes that the denial of the permit was based on

unsubstantiated environmental considerations, so as to be a

gross abuse of discretion and an uncompensated taking.

As for the issues concerning the denial of the petition

for an exemption, waiver, or variance as to the mitigation

requirements, the petition alleges that Petitioner had the

wetland surveyed and flagged; expended considerable time,

effort, and money to address the wetland permitting

requirements; identified the rule from which he seeks a

variance or waiver; provided reasonable assurance that the

construction of the proposed surface water management system

would not adversely impact the value of functions provided to

fish and wildlife and listed species; provided reasonable

assurance that the construction of the proposed surface water

management system would not cause adverse secondary impacts to

water resources; showed that the improper construction of a

recent drainage system has caused artificially high water

levels so that the current condition and relative value of

wetland functions are low; showed that the proposed project

and development would not cause unacceptable cumulative

impacts; provided reasonable assurance that the construction

of the proposed surface water management system would not be

contrary to the public interest, after consideration of the

relevant public-interest criteria; and showed generally that

the proposed project and development satisfied all of the

requirements of the Basis of Review.

Addressing mit igation, the petition rejects the

possibility of a conveyance by Petitioner of a separate parcel

as a form of mitigation due to reasons of economic viability

and private property rights. The petition asserts that the

wetland is surrounded by industrial development and, despite

the value of other small, isolated wetlands, is not providing

any valuable function. The petition contests Respondent's

assertion that the wetland is used by birds, fish, mammals,

and aquatic invertebrates, alleging instead that the wetland

is subject to an infestation of Brazilian pepper. Lastly, the

petition contends that Petitioner has shown that, absent a

permit, exemption, variance, or waiver, he would suffer a

substantial hardship or that the denial of any relief would

violate principles of fairness.

In reliance upon numerous cited statutes and rules, as

well as the constitutions of the United States and State of

Florida, the petition seeks relief in the form of either an

environmental resource permit or an exemption, variance, or

waiver.

By letter dated September 30, 1999, Respondent

transmitted the consolidated petition to the Division of

Administrative Hearings to conduct a formal hearing on the

issues raised in the petition. The Division of Administrative

Hearings assigned two case numbers to the consolidated

petition. DOAH Case No. 99-4158 applies to the agency's

tentative denial of the request for an environmental resource

permit, and DOAH Case No. 99-4159 applies to the agency's

denial of an exemption, variance, or waiver.

At the hearing, Petitioner called five witnesses and

offered into evidence Petitioner Exhibits 1-22 and 24-25.

Respondent called five witnesses and offered into evidence

Respondent Exhibits 1-14. The parties filed Joint Exhibit 1.

All exhibits were admitted except for Petitioner Exhibits 16a

and 16b, which were proffered.

The court reporter filed the Transcript on January 6,

2000.

FINDINGS OF FACT

I. Background

1. Petitioner Carlos M. Beruff, as Trustee under Florida

Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased

85 acres of land in Manatee County for $1.2 million in May

1989. (All acreages are approximate.) The east boundary of

the 85-acre parcel consists of about 1700 feet of frontage

along U.S. Route 301.

2. One month after the purchase, Petitioner sold 70 of

the 85 acres for $1.6 million. In the intervening month,

Petitioner incurred no significant expenses for development or

marketing, although the development and marketing expertise of

Carlos Beruff facilitated the $1.6 million sale.

3. The 70 acres that were sold included the frontage on

U.S. Route 301. The 15 acres remaining after the sale

comprise two tracts of 9 and 5.88 acres. In these cases,

Petitioner seeks an environmental resource permit (ERP) for

activities involving the 5.88-acre parcel (Site).

4. The 9-acre parcel occupies the northwest corner of

the 85-acre parcel. The Site, which was platted in 1911, is

the only noncontiguous land constituting the 85-acre parcel;

it is 450 feet south of the remainder of the 85-acre parcel.

The sole parcel between the Site and the remainder of the 85-

acre parcel was originally owned by Lowe's and is now owned by

Cheetah Technologies (Cheetah Parcel).

5. The 5.88-acre Site is subject to a road right-of-way

of 0.32 acres in favor of the Cheetah Parcel. Of the

remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are

upland. The 0.9 acres of upland are subject to an access

easement of 0.42 acres, also in favor of the Cheetah Parcel,

so the net available upland acreage is only 0.48 acres.

6. The Cheetah Parcel occupies the northwest corner of

U.S. Route 301 and Saunders Road (also known as 63rd Avenue

East). The Site is immediately west and south of the Cheetah

Parcel and occupies the northeast corner of Saunders Road and

24th Street East (also known as Arlin Road). The Site is

about 530 feet west of the intersection of U.S. Route 301 and

Saunders Road.

7. U.S. Route 301 is a major arterial, and Saunders Road

is at least a major collector road. The Site contains about

600 feet of frontage along Saunders Road and 465 feet of

frontage along 24th Street East.

8. The Site is in unincorporated Manatee County roughly

midway between downtown Bradenton and downtown Sarasota.

Saunders Road crosses a north-south railroad line

approximately one-half mile west of the Site and Bowlees Creek

about 650 feet west of the railroad track.

9. The 9-acre parcel still owned by Petitioner is about

350 feet north-south by 1250 feet east-west. The western

boundary of the 9-acre parcel runs along the east side of the

railroad line. Like the other parcels involved in this case,

the 9-acre parcel drains into Bowlees Creek.

10. The Site is in an area characterized by industrial

land uses, including warehouses, a junkyard, an industrial

center, and a bakery. A halfway house for persons recently

released from prison is located one-quarter mile to the west

of the Site. The Site is zoned HM (heavy manufacturing),

which is a limited, and thus valuable, zoning category in

Manatee County.

11. Respondent has issued three relatively recent

surface water management permits that are relevant to these

cases: a 1986 permit for the development of the Cheetah

Parcel (Cheetah Permit), a 1988 permit for the widening of

Saunders Road from two to four lanes (Saunders Road Permit),

and a 1989 permit for the construction of a commercial park

north of the Site known as 301 Park of Commerce (301 Permit).

12. Bowlees Creek runs from north to south, emptying

into Sarasota Bay across from Longboat Key. Sarasota Bay is

an Outstanding Florida Water. Bowlees Creek drains a nine

square-mile basin, which is about 21-25 percent developed.

The Bowlees Creek basin is an open drainage basin.

13. Due to flooding problems, Manatee County has imposed

special limitations upon development within the Bowlees Creek

basin. Among these limitations is that the rate of post-

development runoff must be less than the rate of pre-

development runoff--up to 50 percent less, according to expert

witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp.

118-19; and Daryl Flatt, Tr. Vol. IV, p. 230).

14. By stipulation, the Site is at the extreme eastern

end of the Bowlees Creek basin. In fact, the Site may have

historically drained into Bowlees Creek and will drain into

Bowlees Creek after, as described below, the northwest window

is added to the surface water management system.

15. In 1993 or 1994, Petitioner began the process of

developing the Site following the sale five years earlier of

the larger 70-acre parcel. Mr. Beruff has been in the

development business for 20 years. His career began in 1980

when Mr. Beruff became an employee for U.S. Homes and Modern

Builders; he became self-employed in 1984. Mr. Beruff has

developed seven commercial and ten residential developments.

II. Application Process

16. Deciding to pursue warehouse development for the

Site, Petitioner initiated the development process by hiring

an engineer and environmental consultant. With the assistance

of these consultants, Petitioner prepared its application for

an ERP.

17. By application dated October 9, 1998, and filed

November 13, 1998, Petitioner requested that Respondent issue

an individual ERP for the construction on the Site of a

surface water management system in connection with the

construction of two warehouse buildings, paved parking and

loading areas, and a detention pond, as well as the

enhancement of the remainder of the existing wetland

(Application). The Application states that the total

building, parking, and loading areas would be 58,026 square

feet and that wetlands constitute 3.37 acres of the 5.88-acre

Site.

18. The site plan attached to the Application shows a

"wetland preservation & enhancement" area of 1.592 acres at

the north end of the Site. To the south, toward Saunders

Road, are two buildings with paved parking and loading areas.

On the southwest corner is a "stormwater treatment &

attenuation" area.

19. After several discussions with Respondent's staff,

Petitioner modified the proposed development. In its latest

revision, the footprint of the proposed development would

occupy 2.834 acres of wetland, leaving 1.826 acres of wetland.

20. On November 13, 1998, Petitioner filed a Petition

for Exemption, Waiver or Variance as to Mitigation

Requirements, seeking an exemption, waiver, or variance from

all laws requiring offsite mitigation or additional onsite

mitigation for the portion of the wetland that would be

destroyed by the proposed development.

III. Drainage

21. At present, the Site receives runoff from a total of

27 acres. The offsite contributors of runoff are the Cheetah

Parcel and a segment of Saunders Road east of 21st Street

East. These locations have drained into the Site for hundreds

of years.

22. In general, drainage raises two distinct issues:

water quality and water quantity. For an open drainage basin,

the issue of water quantity expresses itself primarily in

runoff discharge rate, although historic basin storage is also

an issue.

23. As discussed in the Conclusions of Law, the

Respondent's Basis of Review identifies different storm events

to which applicants must design different components of

surface water management systems. For water quantity, the

system may release no more than the permitted discharge rate

in the design storm, which is the 25-year, 24-hour storm

event. At present, the design storm would produce about eight

inches of rain, although the same design storm, due to a

different model or modeling assumptions, produced 9.5 inches

of rain at the time of the issuance of the permit for the

Cheetah Parcel. (The practical effect of this change in the

calculation of the design storm is that the quantitative

capacity of the surface water management system of the Cheetah

Parcel is nearly 20 percent greater than would be required

today.)

24. For water quality, the system must capture the first

inch of runoff (sometimes only the first half-inch of runoff,

depending on the type of system and receiving waterbody). In

contrast to the relatively infrequent 25-year storm,

approximately 90 percent of the storms in Respondent's

jurisdiction produce no more than one inch of runoff. The

underlying premise is that the first inch of runoff contains

nearly all of the contaminants that will be flushed from

impervious surfaces.

25. The Cheetah surface water management system features

a wetland and a retention pond along the north property line

of the Site. The Cheetah pond and wetland attenuate runoff

before allowing it to drain south onto the Site. The Cheetah

surface water management system also includes a swale running

north along 24th Street East to take runoff eventually to

Bowlees Creek.

26. The Saunders Road surface water management system

discharging onto the Site consists largely of an underground,

offline storage and attenuation system that stores excess

runoff, as compared to pre-development rates, in lateral pipes

off a weir.

27. Nothing in the record suggests that the surface

water management systems authorized by the Cheetah Permit or

the Saunders Road Permit fail to provide reasonable assurance

that the discharged runoff is of satisfactory water quality.

28. Following their respective permits in 1986 and 1988,

respectively, the rates of discharge of runoff from the

Cheetah Parcel and Saunders Road were no greater post-

development than they had been pre-development. The Cheetah

Parcel post-development and pre-development discharge rates

were both 10.6 cubic feet per second (cfs). The Saunders Road

post-development and pre-development discharge rates were both

32.4 cfs.

29. In issuing the 301 Permit, Respondent authorized the

construction of a drainage system that would take runoff north

along 24th Street East and then west, eventually emptying into

Bowlees Creek. Conforming to the previous drainage system,

the new system replaced an open ditch with underground

stormwater pipes.

30. Of particular relevance to the Site, two prominent

features of the system authorized by the 301 Permit were

windows in the vicinity of the southwest and northwest corners

of the Site (Southwest Window and Northwest Window).

31. A window is an opening in the wall of a hardened

structure whose purpose includes drainage. The opening is

constructed at a certain elevation and a certain size to allow

specified volumes or rates of water to pass into the structure

and then offsite.

32. The 301 Permit authorized the construction of a

swale along the southwest corner of the Site to direct runoff

discharging from the Saunders Road system into the Southwest

Window. This swale has been construed.

33. However, several problems have precluded the

construction of the Southwest Window, probably permanently.

The most serious problem, from an engineering perspective, is

the failure to lay the stormwater pipe along 24th Street East

at the proper depth. The stormwater pipe was erroneously

installed at an elevation of 15.32 feet National Geodetic

Vertical Datum (NGVD), and the Southwest Window was to have

been cut at a control elevation of 14.75 feet NGVD. The

discharge elevation of the Saunders Road outlet precludes

raising the control elevation of the Southwest Window

sufficiently to allow gravity drainage into the stormwater

pipe.

34. Exacerbating the discrepancy among the as-built

elevations of the three structures is what appears to be a

design problem belatedly recognized by Respondent. Respondent

is justifiably concerned that the Southwest Window, at a

control elevation of 14.75 feet NGVD, would draw down the

water elevation of the Site's wetland, which is at a wet

season elevation of 16.5 feet NGVD (now actually 17 feet NGVD,

possibly due to the absence of the Southwest Window).

35. A third problem with the Southwest Window is that

the southwest corner of the Site was not historically a point

of discharge, so the Southwest Window would deprive the Site's

wetland of runoff.

36. Fortunately, neither the Southwest nor the Northwest

Window is essential for the proper operation of the surface

water management system of 301 Park of Commerce, which largely

depends on a series of lakes for treatment and attenuation.

37. The Northwest Window was to be at elevation 16.5

feet NGVD, and its construction would provide needed drainage

for the Site. In general, the Northwest Window does not raise

the same concerns as does the Southwest Window. The Northwest

Window is in the vicinity of the historic point of discharge

for the Site and replaces a ditch permitted for the Cheetah

Parcel to take runoff north along 24th Street East. The

Northwest Window would also alleviate a standing-water problem

at the northwest corner of the Site.

38. However, Manatee County, which controls the right-

of-way on which the Northwest Window is located and is

responsible for its construction and maintenance, has

discovered that it lacks a sufficient property interest to

access the Northwest Window. The County has since initiated

the process by which it can obtain the necessary interest,

and, once completed, the County will cut the Northwest Window

into the existing structure. Due to the role of the Northwest

Window in draining the runoff in the area, including the Site,

the Application reincorporates the Northwest Window, as it

should have been constructed pursuant to the 301 Permit.

39. Although the Cheetah and Saunders Road permits

resulted in greater runoff volume entering the Site, more

importantly to area drainage, these permits did not result in

greater runoff rates and or in a deterioration in runoff water

quality. Likewise, the failure to construct the Southwest

Window and Northwest Window is not especially relevant to area

drainage, nor is the likely inability ever to construct the

Southwest Window.

40. Far more important to area drainage is the fact that

Petitioner proposes that the Site, post-development, would

produce a runoff rate of 10.6 cfs, as compared to a

pre-development runoff rate of 7 cfs. A serious adverse

impact to area drainage, the proposed activity increases the

runoff rate by 50 percent in a floodprone, 80-percent builtout

basin--a basin of such sensitivity that Manatee County is

imposing a post-development requirement of

substantially reduced runoff rates.

41. The cumulative impacts of the proposed development,

together with existing developments, would be to cause

substantial flooding of the Bowlees Creek basin.

42. Petitioner's expert attempted to show that the

runoff from the Site, which is at the extreme eastern end of

the Bowlees Creek basin, would be delayed sufficiently so as

not to exacerbate flooding. Respondent's expert thoroughly

discredited this testimony due, among other things, to its

reliance upon obsolete data and an unrealistic limitation upon

the assumption of the direction of travel of storms.

43. Similarly, Petitioner failed to prove that the

authorized discharge rate for the 301 Permit is 42 cfs. This

assertion is most succinctly, though not exclusively, rebutted

by the fact that the 42-inch pipe can only accommodate 18 cfs.

Even if the 42-inch pipe could accommodate a substantially

greater runoff rate, Petitioner's expert would have

erroneously inferred a permitted discharge rate from this

increased capacity without negating the possibility that other

structures in the 301 surface water management system

effectively reduced the rate or that oversized structures

existed to accommodate higher runoff rates in storms greater

than the design storm.

44. In addition to increasing the runoff rate by 50

percent, Petitioner's proposal would also reduce the historic

basin storage by over 40 percent. Displaced basin storage

moves downstream, increasing flood levels from fixed storm

events.

45. At present, the Site provides 8.68 acre-feet of

historic basin storage. The Application proposes to replace

this storage with storage in the wetland and retention pond

totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of

basin storage means that this additional volume of water

would, post-development, travel down Bowlees Creek.

46. A final drainage deficiency in Petitioner's proposal

arises out of a berm's proposed outside of the Northwest

Window. A one-foot bust in the survey of Petitioner's expert

would have resulted in this berm preventing runoff from

entering the Site from the Cheetah Parcel, as runoff presently

does.

47. Respondent's expert suggested several possible

alternatives that might result in a permittable project with

respect to post-development runoff rates (the record is silent

as to the effect of these alternatives upon historic basin

storage, although it would seem that they would add storage).

Reducing the area of destroyed wetlands to one acre would

probably reduce the excess of post-development runoff rate to

1-2 cfs. Petitioner could then obtain offsetting attenuation

through a variety of means, such as by obtaining an easement

to use the wetland on the Cheetah Parcel, constructing an

attenuation pond on the 9-acre parcel, or constructing

underground vaults in the filled area of the wetland on the

Site.

IV. Wetlands

48. Except for the road right-of-way, the Site is

undeveloped and forested. The presence of 25-year-old red

maples militates against attributing the transition from an

herbaceous to a forested wetland to the failure to install the

Northwest and Southwest windows. More likely, this transition

to the sub-climax species of red maple and willow (in the

absence of a cypress source) is due to the repression of fire

on the Site.

49. Experts for the opposing sides differed sharply in

their biological assessments of the wetland. Petitioner's

expert described a stressed wetland whose impenetrable thicket

provided habitat only to a lone rat and swarm of mosquitoes.

Respondent's expert described a robust wetland featuring a

luxuriant overstory of red maple and Carolina willow; an rich

understory of ferns, and diverse wildlife ranging from birds

in the air (direct evidence); fish, snails, and tadpoles in a

small pond (direct evidence); and squirrel and opossum

(indirect evidence) scampering (indirect evidence) among the

buttonbush, elderberry, and wax myrtle (direct evidence).

50. Undoubtedly, the wetland has been stressed;

approximately 30 percent of the wetland vegetation is

Brazilian pepper, which is a nuisance exotic. However, the

wetland is well hydrated. Issuance of the Cheetah Permit was

predicated, in part, upon the rehydration of the wetland on

the Site. With the issuance of the Cheetah Permit and

especially the Saunders Road Permit, the quality of water

entering the wetland has improved by a considerable amount.

As already noted, added volumes of runoff are entering the

wetland since the issuance of these two permits, although

post-development runoff rates are the same as pre-development

runoff rates. On balance, the wetland is functioning well in

providing habitat and natural drainage functions.

51. Giving due weight to the current condition of the

wetland, the enhancement offered by Petitioner does not

approach offsetting the loss of wetland area. In return for

destroying 2.83 acres of the wetland, Petitioner proposed the

enhancement of the remaining 1.83 acres by removing exotic

species to no more than 10 percent of the total vegetation.

52. The mitigation is plainly insufficient because of

the level of functioning of the entire wetland at present.

Additionally, Petitioner has failed to demonstrate that the

Brazilian pepper, which is the major nuisance exotic occupying

the Site, is evenly distributed; to the contrary, it is

present mostly outside the wetland, along a berm just outside

of the wetland. The lack of seedlings and old specimens

suggests that the Brazilian pepper population may not be

stable and may itself be stressed. Petitioner's failure to

show that the remaining wetland area has more than 10 percent

infestation or is likely to suffer additional infestation

further undermines the effectiveness of the proposed

mitigation.

53. Respondent has never issued an ERP for a proposed

activity involving the alteration of wetlands when the

enhancement mitigation ratio is as low as .65:1, as Petitioner

proposes. In general, Respondent requires higher mitigation

ratios when proposals involve wetlands enhancement, rather

than wetlands creation, because the wetlands to be enhanced

are already functioning--in these cases, at a relatively high

level.

54. Although Petitioner has been unwilling to consider

such alternatives, numerous alternatives exist for offsite

mitigation or mitigation banking, if insufficient area exists

for adequate onsite mitigation.

55. Lastly, Petitioner devoted considerable effort at

hearing to portraying Respondent's handling of the Application

as flawed and unfair. However, the evidence does not support

these assertions.

56. Most strikingly, Respondent's staff treated the

drainage windows inconsistently, to the benefit of Petitioner.

They treated the Northwest Window as installed for the purpose

of calculating the pre-development runoff discharge rate to

Bowlees Creek. Until the Northwest Window is installed, the

actual rate is even lower. This approach is justifiable

because the Northwest Window will be installed at some point.

On the other hand, Respondent's staff ignored the higher

wetland elevation on the Site, presumably resulting from the

absence of the Southwest Window. However, this approach,

which benefits Petitioner in calculating wetland drawdown

effects, is unjustifiable because the Southwest Window

probably will never be installed.

57. Petitioner's specific complaints of unfair treatment

are unfounded. For example, Petitioner suggested that

Respondent credited Lowe's with wetland acreage for the

littoral shelf of its wetland, but did not do so with the

wetland on the Site. However, Petitioner produced no evidence

of similar slopes between the two shelves, without which

comparability of biological function is impossible.

Additionally, Petitioner ignored the possibility that, in the

intervening 14 years, Respondent may have refined its approach

to wetland mitigation.

58. Although occurring at hearing, rather than in the

application-review process, Respondent's willingness to enter

into the stipulation that the Site presently drains into

Bowlees Creek, despite recent data stating otherwise, was

eminently fair to Petitioner. Absent this stipulation,

Respondent would have been left with the formidable prospect

of providing reasonable assurance concerning drainage into the

floodprone Bowlees Creek when the post-development rate was

10.6 cfs and the pre-development rate was 0 cfs.

CONCLUSIONS OF LAW

59. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (Unless preceded by "Basis of Review," all

references to Sections are to Florida Statutes. All

references to Rules are to the Florida Administrative Code.)

60. Petitioner has the burden of showing its entitlement

to the ERP. Department of Transportation v. J. W. C. Company,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

61. Citing Graham v. Estuary Properties, Inc. , 399 So.

2d 1374, 1379 (Fla. 1981), Petitioner argues that the "initial

burden of proof" is on Respondent. In Graham and similar

cases, the courts examine carefully the statutory scheme

enacted by the Legislature in order to determine the proper

allocation of the burden of proof. However, some language in

these cases suggests an allocation of the burden of proof to

the governmental agency when the denial of a permit would

deprive an applicant of the use of its property.

62. In the present cases, the statutory scheme clearly

places the burden of proof on Petitioner, and the denial of

the ERP for the proposed development does not mean the

deprivation of economic use of the Site. (It is thus

unnecessary to consider the more difficult issue whether, with

the sale of the 70 acres and the clear ability to sell or

develop the nine acres, Petitioner has already enjoyed the

full economic use of its property.)

63. Even if, as Petitioner contends, Respondent were

required to make an initial showing of adverse impacts,

Respondent has done so with respect to the post-development

conditions of a 50 percent increase of runoff discharge rate,

a 40 percent loss of historic basin storage, and the

uncompensated loss of functioning wetland.

64. Sections 373.413 and 373.414 require that an

applicant show that its proposed activity will not be harmful

to the water resources or inconsistent with the objectives of

Respondent. A broad range of statutes and rules applies to

the Application because Petitioner proposes activities in a

wetland, as well as other activities outside of wetlands to

construct, operate, and maintain a surface water management

system.

65. As for activities outside of wetlands, Sections

373.413(1) and 373.416(1) authorize the water management

districts to adopt rules and impose permit conditions to

ensure that the construction, alteration, operation, or

maintenance of surface water management systems complies with

applicable statutes and rules and does not harm the water

resources. Section 373.413(2) requires that a person seeking

to perform a regulated activity must obtain a permit before

commencing work.

66. Rule 40D-40.301 provides:

(1) In order to obtain a standard general,

individual, or conceptual permit under this

chapter or Chapter 40D-40, F.A.C., an

applicant must provide reasonable assurance

that the construction, alteration,

operation, maintenance, removal or

abandonment of a surface water management

system:

(a) will not cause adverse water

quantity impacts to receiving waters and

adjacent lands;

(b) will not cause adverse flooding to

on-site or off-site property;

(c) will not cause adverse impacts to

existing surface water storage and

conveyance capabilities;

(d) will not adversely impact the value

of functions provided to fish and wildlife,

and listed species including aquatic and

wetland dependent species, by wetlands,

other surface waters and other water

related resources of the District;

(e) will not adversely affect the

quality of receiving waters such that the

water quality standards set forth in

chapters 62-3, 62-4, 62-302, 62-520, 62-522

and 62-550, F.A.C., including any

antidegradation provisions of sections 62-

4.242(1)(a) and (b), 62-4.242(2) and (3),

and 62-302.300, F.A.C., and any special

standards for Outstanding Florida Waters

and Outstanding National Resource Waters

set forth in sections 62-4.242(2) and (3),

F.A.C., will be violated;

(f) will not cause adverse secondary

impacts to the water resources;

(g) will not adversely impact the

maintenance of surface or ground water

levels or surface water flows established

pursuant to Section 373.042, F.S.;

(h) will not cause adverse impacts to a

work of the District established pursuant

to Section 373.086, F.S.;

(i) is capable, based on generally

accepted engineering and scientific

principles, of being effectively performed

and of functioning as proposed;

(j) will be conducted by an entity with

financial, legal and administrative

capability of ensuring that the activity

will be undertaken in accordance with the

terms and conditions of the permit, if

issued; and

(k) will comply with any applicable

special basin or geographic area criteria

established pursuant to this chapter.

* * *

(3) The standards and criteria contained

in the Basis of Review for Environmental

Resource Permit Applications shall

determine whether the reasonable assurances

required by subsection 40D-4.301(1) and

Section 40D-4.302, F.A.C., have been

provided.

* * *

67. Section 373.414(1)(a) provides that activities in

wetlands must not be contrary to the public interest. Section

373.414(1) provides:

(1) As part of an applicant's

demonstration that an activity regulated

under this part will not be harmful to the

water resources or will not be inconsistent

with the overall objectives of the

district, the governing board or the

department shall require the applicant to

provide reasonable assurance that state

water quality standards applicable to

waters as defined in s. 403.031(13) will

not be violated and reasonable assurance

that such activity in, on, or over surface

waters or wetlands, as delineated in s.

373.421(1), is not contrary to the public

interest. However, if such an activity

significantly degrades or is within an

Outstanding Florida Water, as provided by

department rule, the applicant must provide

reasonable assurance that the proposed

activity will be clearly in the public

interest.

(a) In determining whether an activity,

which is in, on, or over surface waters or

wetlands, as delineated in s. 373.421(1),

and is regulated under this part, is not

contrary to the public interest or is

clearly in the public interest, the

governing board or the department shall

consider and balance the following

criteria:

1. Whether the activity will

adversely affect the public health, safety,

or welfare or the property of others;

2. Whether the activity will

adversely affect the conservation of fish

and wildlife, including endangered or

threatened species, or their habitats;

3. Whether the activity will

adversely affect navigation or the flow of

water or cause harmful erosion or shoaling;

4. Whether the activity will

adversely affect the fishing or

recreational values or marine productivity

in the vicinity of the activity;

5. Whether the activity will be of a

temporary or permanent nature;

6. Whether the activity will

adversely affect or will enhance

significant historical and archaeological

resources under the provisions of s.

267.061; and

7. The current condition and

relative value of functions being performed

by areas affected by the proposed activity.

68. Section 373.414(8) addresses cumulative impacts as

follows:

The governing board or the department, in

deciding whether to grant or deny a permit

for an activity regulated under this part

shall consider the cumulative impacts upon

surface water and wetlands, as delineated

in s. 373.421(1), within the same drainage

basin as defined in s. 373.403(9), of:

(a) The activity for which the permit

is sought.

(b) Projects which are existing or

activities regulated under this part which

are under construction or projects for

which permits or determinations pursuant to

s. 373.421 or s. 403.914 have been sought.

(c) Activities which are under review,

approved, or vested pursuant to s. 380.06,

or other activities regulated under this

part which may reasonably be expected to be

located within surface waters or wetlands,

as delineated in s. 373.421(1), in the same

drainage basin as defined in s. 373.403(9),

based upon the comprehensive plans, adopted

pursuant to chapter 163, of the local

governments having jurisdiction over the

activities, or applicable land use

restrictions and regulations.

69. Section 373.414(9) authorizes Respondent

to adopt rules:

The department and the governing boards, on

or before July 1, 1994, shall adopt rules

to incorporate the provisions of this

section, relying primarily on the existing

rules of the department and the water

management districts, into the rules

governing the management and storage of

surface waters. Such rules shall seek to

achieve a statewide, coordinated and

consistent permitting approach to

activities regulated under this part.

Variations in permitting criteria in the

rules of individual water management

districts or the department shall only be

provided to address differing physical or

natural characteristics. Such rules

adopted pursuant to this subsection shall

include the special criteria adopted

pursuant to s. 403.061(29) and may include

the special criteria adopted pursuant to s.

403.061(34). Such rules shall include a

provision requiring that a notice of intent

to deny or a permit denial based upon this

section shall contain an explanation of the

reasons for such denial and an explanation,

in general terms, of what changes, if any,

are necessary to address such reasons for

denial. Such rules may establish

exemptions and general permits, if such

exemptions and general permits do not allow

significant adverse impacts to occur

individually or cumulatively. . . .

70. Respondent's rules incorporate these requirements

for an ERP in wetlands. Rule 40D-4.302(1) provides:

(1) In addition to the conditions set

forth in Section 40D- 4.301, F.A.C., in

order to obtain a standard general,

individual, or conceptual permit under this

chapter an applicant must provide

reasonable assurance that the construction,

alteration, operation, maintenance,

removal, and abandonment of a system:

(a) Located in, on, or over wetlands or

other surface waters as delineated pursuant

to the methodology authorized by subsection

373.421(1), F.S., will not be contrary to

the public interest, or if such an activity

significantly degrades or is within an

Outstanding Florida Water, that the

activity will be clearly in the public

interest, as determined by balancing the

following criteria:

1. whether the activity will

adversely affect the public health, safety,

or welfare or the property of others;

2. whether the activity will

adversely affect the conservation of fish

and wildlife, including endangered or

threatened species, or their habitats;

3. whether the activity will

adversely affect navigation or the flow of

water or cause harmful erosion or shoaling;

4. whether the activity will

adversely affect the fishing or

recreational values or marine productivity

in the vicinity of the activity;

5. whether the activity will be of a

temporary or permanent nature;

6. whether the activity will

adversely affect or will enhance

significant historical and archaeological

resources under the provisions of Section

267.061, F.S.; and

7. the current condition and

relative value of functions being performed

by areas affected by the proposed activity.

(b) Will not cause unacceptable

cumulative impacts upon wetlands and other

surface waters, as delineated pursuant to

the methodology authorized by subsection

373.421(1), F.S.

* * *

71. Section 373.414(1)(b) adds that an applicant

otherwise unable to meet the requirements of law for

activities in wetlands may propose mitigation "to offset the

adverse effects caused by the regulated activity." Mitigation

may include "onsite mitigation, offsite mitigation, offsite

regional mitigation, and the purchase of mitigation credits

from mitigation banks permitted under s. 373.4136."

72. Rule 40D-4.091(1) incorporates into the Florida

Administrative Code Respondent's Basis of Review.

73. According to Basis of Review Section 1.1, Respondent

adopted the Basis of Review to assist in the application of

these statutes and rules to ensure that no permit will

authorize activities harmful to the water resources or

inconsistent with the public interest. Basis of Review

Section 1.3 provides:

The primary goal of the review criteria is

to meet District water resource objectives.

However, the criteria are designed to be

flexible. Performance criteria are used

where possible. Other methods of meeting

overall objectives will be considered

depending on the magnitude of specific or

cumulative impacts.

74. The Basis of Review also defines various terms used

in the permitting process. The following definitions are

relevant to these cases.

75. Basis of Review Section 1.7.17 defines "historic

basin storage" as the "depression storage available on the

site in the pre-development condition. The volume of storage

is that which exists up to the required design storm."

76. Basis of Review Section 1.7.29 defines an "open

drainage basin" as any watershed not meeting the definition of

a "closed drainage basin." Basis of Review Section 1.7.1

defines a "closed drainage basin" as a basin lacking a surface

outfall in flooding up to and including the 100-year flood.

77. Basis of Review Section 1.7.32 defines a "regulated

activity" as the "construction, alteration, operation,

maintenance, abandonment or removal of a system regulated

pursuant to Part IV, Chapter 373, F.S."

78. Basis of Review Section 3.1.0 discusses the role of

wetlands:

Wetlands are important components of the

water resource because they often serve as

spawning, nursery and feeding habitats for

many species of fish and wildlife, and

because they often provide important food

storage, nutrient cycling, detrital

production, recreational and water quality

functions. . . . Not all wetlands or other

surface waters provide all of these

functions, nor do they provide them to the

same extent. A wide array of biological,

physical and chemical factors affect the

functioning of any wetland or other surface

water community. Maintenance of water

quality standards in applicable wetlands

and other surface waters is critical to

their ability to provide many of these

functions.

It is the intent of the Governing Board

that the criteria in subsections 3.2

through 3.3.8 be implemented in a manner

which achieves a programmatic goal and a

project permitting goal of no net loss of

wetlands or other surface water functions.

This goal shall not include projects that

are exempt by statute or rule or which are

authorized by a noticed general permit.

Unless exempted by statute or rule, permits

are required for the construction,

alteration, operation, maintenance,

abandonment and removal of systems so that

the District can conserve the beneficial

functions of these communities. The term

"systems" includes areas of dredging and

filling, as those terms are defined in s.

373.403(13) and (14), F.S.

79. Basis of Review Section 3.1.1 identifies the various

provisions of the Basis of Review that apply to proposed

activities, depending on whether they are in wetlands. Basis

of Review Section 3.1.1(a) requires an applicant to provide

reasonable assurance that any "regulated activity" will not

"adversely impact the value of functions provided to fish,

wildlife and listed species . . . by wetlands and other

surface waters and other water related resources of the

District." This section references Rule 40D-4.301(1)(d) and

Basis of Review Section 3.2.2.

80. Basis of Review Section 3.1.1(b) requires an

applicant to provide reasonable assurance that a "regulated

activity located in . . . wetlands" will "not be contrary to

the public interest" or, if such an activity "significantly

degrades or is located within an Outstanding Florida Water,"

that the activity is "clearly in the public interest." This

section references Basis of Review Section 3.2.3.

81. Basis of Review Section 3.1.1(f) requires an

applicant to provide reasonable assurance that any "regulated

activity" will "not cause adverse secondary impacts" to the

water resources. This section excludes from consideration as

secondary impacts "[d]e minimis or remotely related secondary

impacts." This section references Rule 40D-4.301(1)(f) and

Basis of Review Section 3.2.7.

82. Basis of Review Section 3.1.1(g) requires an

applicant to provide reasonable assurance that any "regulated

activity" will "not cause adverse cumulative impacts upon

wetlands and other surface waters." This section references

Rule 40D-4.302(1)(b) and Basis of Review Section

3.2.8.

83. Basis of Review Section 3.2.1 predicates the

permitting decision upon the "degree of impact to wetland . .

. functions," the ability to mitigate this impact, and the

"practicability of design modifications for the site."

84. Basis of Review Section 3.2.1.1 provides that,

subject to two exceptions, Respondent shall consider whether

an applicant has "implemented practicable design

modifications" to "reduce or eliminate" adverse impacts. The

exceptions are if the ecological value of the impacted wetland

is low or the ecological value of the mitigation is high.

85. Basis of Review Section 3.2.1 adds: "Any adverse

impacts remaining after practicable design modifications have

been implemented may be offset by mitigation," which is

addressed by Basis of Review Sections 3.3 through 3.3.8.

However, Basis of Review Section 3.2.1 warns: "To receive

District approval, a system cannot cause a net adverse impact

on wetland functions and other surface water functions which

is not offset by mitigation."

86. Basis of Review Section 3.3.1 notes that mitigation

usually involves the "restoration, enhancement, creation, or

preservation" of wetlands, other surface waters, or uplands.

87. Of particular relevance to these cases are the

"mitigation ratio guidelines" at Basis of Review Sections

3.3.2 et seq. The discussion of mitigation ratios

acknowledges that the exact ratio to be required is a function

of several factors, as set forth in Basis of Review Sections

3.3.2.1 and 3.3.2.2. However, the mitigation ratio for

enhancement, as opposed to creation and restoration, is higher

because "the area being enhanced currently provides a degree

of the desired functions, and this type of mitigation serves

to increase, rather than create, those functions."

88. Basis of Review Section 3.3.2.1.2 states that the

mitigation ratio guidelines for enhancement range from four

acres of enhancement for each acre impacted to 20 acres of

enhancement for each acre impacted. The enhancement ratios

are relatively demanding ratios as compared to the ratios

required for creation and restoration, as described by Basis

of Review Section 3.3.2.1.1, of 1.5 acres to five acres for

each acre of wetland impacted. However, the enhancement

ratios are relatively relaxed as compared to the ratios

required for preservation, as described in Basis of Review

Section 3.3.2.2, of ten to 60 acres for each acre of wetland

impacted.

89. Basis of Review Section 3.2.2 provides that an

applicant must provide reasonable assurance that a regulated

activity will not impact the values of wetlands, other surface

waters, and other water-related resources so as to cause

adverse impacts to "the abundance and diversity of fish,

wildlife and listed species" and "the habitat of fish,

wildlife and listed species." In making these determinations,

"the magnitude of the effect of the regulated activity shall

be considered, and de minimis effects shall not be considered

adverse." Basis of Review Section 3.2.2.3 requires

consideration of the wetland's condition, hydrologic

connection, uniqueness, location, and extent of fish and

wildlife use.

90. Basis of Review Section 3.2.3 requires the District

to "consider and balance" the seven statutory criteria, noted

above, in determining whether a regulated activity in wetlands

is not contrary to the public interest or, if "significantly"

degrading or within an Outstanding Florida Water, is clearly

in the public interest.

91. Basis of Review Section 3.2.3.1(c) requires the

District, in considering the first of the seven criteria--

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

determine whether the regulated activity in wetlands will

"cause flooding or alleviate existing flooding on the property

of others." This section notes that an applicant gains at

least a neutral consideration on this criterion if the

application meets the water quantity criteria of Basis of

Review Chapter 4.

92. Basis of Review Section 3.2.7(a) requires

consideration of secondary impacts upon wetland functions from

the intended or reasonably expected use of a proposed system.

93. Basis of Review Section 3.2.8 requires an applicant

to provide reasonable assurance that a regulated activity will

"not cause unacceptable cumulative impacts upon wetlands and

other surface waters within the same drainage basin as the

regulated activity for which a permit is sought."

94. A close reading of Basis of Review Section 3.2.8

reveals that cumulative impacts require consideration of two

types of impacts not caused by the proposed activity: those

impacts already existing at the time of the regulated activity

that is the subject of the permit and those impacts likely to

come into existence following the regulated activity that is

the subject of the permit. Specifically, Basis of Review

Section 3.2.8.1 requires consideration of the proposed system,

together with "past, present, and future activities as

described in Section 3.2.8," for determinations of whether the

proposed activity would cause violations of state water

quality standards or "significant adverse impacts" to wetland

functions, as identified in Section 3.2.2, "within the same

drainage basin when considering the basis as a whole."

95. Basis of Review Section 4.2 limits "off-site

discharge . . . to amounts which will not cause adverse off-

site impacts." Basis of Review Section 4.2.a provides that

the allowable discharge in an open drainage basin is:

1. historic discharge, which is the peak

rate at which runoff leaves a parcel of

land by gravity under existing site

conditions, or the legally allowable

discharge at the time of permit

application, or

2. amounts determined in previous District

permit actions.

96. Basis of Review Section 4.7 states: "Provision must

be made to replace or otherwise mitigate the loss of historic

basin storage provided by the project site."

97. Petitioner has failed to provide reasonable

assurance in three respects.

98. First, Petitioner has failed to provide reasonable

assurance that the proposed activity will not cause flooding

in the already-floodprone Bowlees Creek basin because the

post-development runoff rate would exceed the pre-development

runoff rate by 50 percent.

99. Petitioner failed to show that the post-development

runoff rate was an amount determined by Respondent in any

previous permit actions. The relevant runoff rate pertains to

the Site, not another parcel, such as Saunders Road. Even if

the Saunders Road runoff rate were relevant, the evidence does

not establish that Respondent permitted a runoff rate

sufficiently high for Saunders Road as to accommodate the 10.6

cfs runoff rate sought by Petitioner. The overriding

objective of the Basis of Review, rules, and statutes is to

protect the water resources of the State, including the

limitation of flooding, and Petitioner's reading of the

guidelines of Basis of Review Section 4.2.a.2 does not achieve

this objective.

100. Considered in conjunction with the development

already in place, the ERP sought in this case would exacerbate

flooding in the Bowlees Creek basin. The absence in the

record of any indication of already-permitted future

development of the remaining 21-25 percent undeveloped area

precludes consideration of cumulative impacts in terms of

future development.

101. Additionally, the proposed berm outside the

Northwest Window would also cause flooding at the southwest

corner of the Cheetah Parcel.

102. Second, Petitioner has failed to provide reasonable

assurance that the proposed activity will not reduce historic

basin storage. To the contrary, the proposed activity will

reduce historic basin storage on the Site by over 40 percent.

Again, this downstream transfer of historic basin storage will

exacerbate flooding in the Bowlees Creek basin.

103. Third, Petitioner has failed to provide reasonable

assurance that the proposed activity will not destroy a

portion of the existing wetland. To the contrary, the

proposed activity, which is obviously permanent in nature,

will destroy a portion of the existing wetland, which is a

functioning wetland providing wildlife habitat and natural

drainage. On balance, the proposed activity is contrary to

the public interest.

104. Additionally, Petitioner has failed to show that it

has minimized the proposed activity to the extent practicable.

Petitioner has not attempted all reasonable design

modifications to reduce or eliminate adverse impacts.

105. Petitioner has also failed to show the adequacy of

its mitigation proposal, which is to enhance the remainder of

the existing wetland left after filling the rest. The

proposed enhancement of 1.826 acres of wetland would

compensate for the destruction of 2.834 acres of wetland in a

ratio of about .6 acres of enhancement for each acre

destroyed. This is dramatically less than the guideline

ratios for enhancement mitigation.

106. In the alternative, Petitioner requests an ERP

through an exemption, variance, or waiver.

107. Section 373.414(17) provides:

The variance provisions of s. 403.201 are

applicable to the provisions of this

section or any rule adopted pursuant

hereto. The governing boards and the

department are authorized to review and

take final agency action on petitions

requesting such variances for those

activities they regulate under this part.

108. Section 403.201 states:

(1) Upon application, the department in

its discretion may grant a variance from

the provisions of this act or the rules and

regulations adopted pursuant hereto.

Variances and renewals thereof may be

granted for any one of the following

reasons:

(a) There is no practicable means known

or available for the adequate control of

the pollution involved.

(b) Compliance with the particular

requirement or requirements from which a

variance is sought will necessitate the

taking of measures which, because of their

extent or cost, must be spread over a

considerable period of time. A variance

granted for this reason shall prescribe a

timetable for the taking of the measures

required.

(c) To relieve or prevent hardship of a

kind other than those provided for in

paragraphs (a) and (b). Variances and

renewals thereof granted under authority of

this paragraph shall each be limited to a

period of 24 months, except that variances

granted pursuant to part II may extend for

the life of the permit or certification.

(2) No variance shall be granted from any

provision or requirement concerning

discharges of waste into waters of the

state or hazardous waste management which

would result in the provision or

requirement being less stringent than a

comparable federal provision or

requirement, except as provided in s.

403.7221.

(3) The department shall publish notice,

or shall require a petitioner for a

variance to publish notice, in the Florida

Administrative Weekly and in a newspaper of

general circulation in the area affected,

of proposed agency action; and the

department shall afford interested persons

an opportunity for a hearing on each

application for a variance. If no request

for hearing is filed with the department

within 14 days of published notice, the

department may proceed to final agency

action without a hearing.(4) The

department may require by rule a processing

fee for and may prescribe such time limits

and other conditions to the granting of a

variance as it deems appropriate.

109. Section 373.406(6) provides:

Any district or the department may exempt

from regulation under this part those

activities that the district or department

determines will have only minimal or

insignificant individual or cumulative

adverse impacts on the water resources of

the district. The district and the

department are authorized to determine, on

a case-by-case basis, whether a specific

activity comes within this exemption.

Requests to qualify for this exemption

shall be submitted in writing to the

district or department, and such activities

shall not be commenced without a written

determination from the district or

department confirming that the activity

qualifies for the exemption.

110. Section 120.542 states:

(1) Strict application of uniformly

applicable rule requirements can lead to

unreasonable, unfair, and unintended

results in particular instances. The

Legislature finds that it is appropriate in

such cases to adopt a procedure for

agencies to provide relief to persons

subject to regulation. A public employee

is not a person subject to regulation under

this section for the purpose of petitioning

for a variance or waiver to a rule that

affects that public employee in his or her

capacity as a public employee. Agencies

are authorized to grant variances and

waivers to requirements of their rules

consistent with this section and with rules

adopted under the authority of this

section. An agency may limit the duration

of any grant of a variance or waiver or

otherwise impose conditions on the grant

only to the extent necessary for the

purpose of the underlying statute to be

achieved. This section does not authorize

agencies to grant variances or waivers to

statutes or to rules required by the

Federal Government for the agency's

implementation or retention of any

federally approved or delegated program,

except as allowed by the program or when

the variance or waiver is also approved by

the appropriate agency of the Federal

Government. This section is supplemental

to, and does not abrogate, the variance and

waiver provisions in any other statute.

(2) Variances and waivers shall be granted

when the person subject to the rule

demonstrates that the purpose of the

underlying statute will be or has been

achieved by other means by the person and

when application of a rule would create a

substantial hardship or would violate

principles of fairness. For purposes of

this section, "substantial hardship" means

a demonstrated economic, technological,

legal, or other type of hardship to the

person requesting the variance or waiver.

For purposes of this section, "principles

of fairness" are violated when the literal

application of a rule affects a particular

person in a manner significantly different

from the way it affects other similarly

situated persons who are subject to the

rule.

(3) The Governor and Cabinet, sitting as

the Administration Commission, shall adopt

uniform rules of procedure pursuant to the

requirements of s. 120.54(5) establishing

procedures for granting or denying

petitions for variances and waivers. The

uniform rules shall include procedures for

the granting, denying, or revoking of

emergency and temporary variances and

waivers. Such provisions may provide for

expedited timeframes, waiver of or limited

public notice, and limitations on comments

on the petition in the case of such

temporary or emergency variances and

waivers.

(4) Agencies shall advise persons of the

remedies available through this section and

shall provide copies of this section, the

uniform rules on variances and waivers,

and, if requested, the underlying statute,

to persons who inquire about the

possibility of relief from rule

requirements.

(5) A person who is subject to regulation

by an agency rule may file a petition with

that agency, with a copy to the committee,

requesting a variance or waiver from the

agency's rule. In addition to any

requirements mandated by the uniform rules,

each petition shall specify:

(a) The rule from which a variance or

waiver is requested.

(b) The type of action requested.

(c) The specific facts that would

justify a waiver or variance for the

petitioner.

(d) The reason why the variance or the

waiver requested would serve the purposes

of the underlying statute.

(6) Within 15 days after receipt of a

petition for variance or waiver, an agency

shall provide notice of the petition to the

Department of State, which shall publish

notice of the petition in the first

available issue of the Florida

Administrative Weekly. The notice shall

contain the name of the petitioner, the

date the petition was filed, the rule

number and nature of the rule from which

variance or waiver is sought, and an

explanation of how a copy of the petition

can be obtained. The uniform rules shall

provide a means for interested persons to

provide comments on the petition.

(7) Except for requests for emergency

variances or waivers, within 30 days after

receipt of a petition for a variance or

waiver, an agency shall review the petition

and request submittal of all additional

information that the agency is permitted by

this section to require. Within 30 days

after receipt of such additional

information, the agency shall review it and

may request only that information needed to

clarify the additional information or to

answer new questions raised by or directly

related to the additional information. If

the petitioner asserts that any request for

additional information is not authorized by

law or by rule of the affected agency, the

agency shall proceed, at the petitioner's

written request, to process the petition.

(8) An agency shall grant or deny a

petition for variance or waiver within 90

days after receipt of the original

petition, the last item of timely requested

additional material, or the petitioner's

written request to finish processing the

petition. A petition not granted or denied

within 90 days after receipt of a completed

petition is deemed approved. A copy of the

order granting or denying the petition

shall be filed with the committee and shall

contain a statement of the relevant facts

and reasons supporting the agency's action.

The agency shall provide notice of the

disposition of the petition to the

Department of State, which shall publish

the notice in the next available issue of

the Florida Administrative Weekly. The

notice shall contain the name of the

petitioner, the date the petition was

filed, the rule number and nature of the

rule from which the waiver or variance is

sought, a reference to the place and date

of publication of the notice of the

petition, the date of the order denying or

approving the variance or waiver, the

general basis for the agency decision, and

an explanation of how a copy of the order

can be obtained. The agency's decision to

grant or deny the petition shall be

supported by competent substantial evidence

and is subject to ss. 120.569 and 120.57.

Any proceeding pursuant to ss. 120.569 and

120.57 in regard to a variance or waiver

shall be limited to the agency action on

the request for the variance or waiver,

except that a proceeding in regard to a

variance or waiver may be consolidated with

any other proceeding authorized by this

chapter.

(9) Each agency shall maintain a record of

the type and disposition of each petition,

including temporary or emergency variances

and waivers, filed pursuant to this

section. On October 1 of each year, each

agency shall file a report with the

Governor, the President of the Senate, and

the Speaker of the House of Representatives

listing the number of petitions filed

requesting variances to each agency rule,

the number of petitions filed requesting

waivers to each agency rule, and the

disposition of all petitions. Temporary or

emergency variances and waivers, and the

reasons for granting or denying temporary

or emergency variances and waivers, shall

be identified separately from other waivers

and variances.

111. The record does not support the granting of an ERP

on the basis of an exemption, variance, or waiver. Although

the Site is less than six acres, design and mitigation

alternatives exist, but Petitioner has declined to explore

them, evidently on economic grounds.

112. The drainage issues in this case graphically frame

the fairness issue inherent in all requests for a special

exemption, variance, or waiver. Downstream property owners

have a right to expect that their government will enforce

long-established statutes and rules for the protection of

their lives and property from flooding. It would be an odd

perversion of the notion of fairness to override the

legitimate and time-honored expectations of landowners in

order to allow Petitioner to develop the final 5.88 acres of

its 85-acre parcel. It is thus unnecessary to apply the

statutory provisions governing exemptions, variances, and

waivers with respect to the portion of the denial of the ERP

based on the wetlands issues.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Respondent deny Petitioner's application

for an environmental resource permit and for an exemption,

variance, or waiver.

DONE AND ENTERED this 29th day of February, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of February, 2000.

COPIES FURNISHED:

S. W. Moore

Tracey B. Starrett

Brigham. Moore, Gaylord, Schuster,

Merlin & Tobin, LLP

100 Wallace Avenue, Suite 310

Sarasota, Florida 34237-6043

Mark F. Lapp

Jack R. Pepper

Assistant General Counsel

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609

E. D. "Sonny" Vergara

Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

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 must be filed with the

agency that will issue the final order in this case.