00-002231 The Sierra Club vs. St. Johns River Water Management District And Hines Interests Limited Partnership Status: Closed Recommended Order on Monday, April 9, 2001.

Summary: Applicant Respondent showed reasonable assurance that all stormwater and water quality parameters would be met, especially in view of wetland mitigation and preservation plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOBBY C. BILLIE; SHANNON )

LARSEN; and THE SIERRA CLUB, )

)

Petitioners, )

)

vs. ) Case Nos. 00-2230

) 00-2231

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT and HINES )

INTERESTS LIMITED PARTNERSHIP, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard on October 11 and

12, 2000, and December 20, 2000, in St. Augustine, Florida,

before P. Michael Ruff, duly-designated Administrative Law Judge

of the Division of Administrative Hearings. The appearances

were as follows:

APPEARANCES

For Petitioners Bobby C. Billie, Shannon Larsen, and

The Sierra Club:

Deborah Andrews, Esquire

11 North Roscoe Boulevard

Ponte Vedra Beach, Florida 32082

For Petitioner The Sierra Club:

Peter Belmont, Esquire

102 Fareham Place, North

St. Petersburg, Florida 33702

For Respondent St. Johns River Water Management District:

Thomas I. Mayton, Jr., Esquire

Mary Ellen Jones, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32078-1429

For Respondent Hines Interest Limited Partnership:

Marcia Parker Tjoflat, Esquire

John G. Metcalf, Esquire

Pappas, Metcalf, Jenks & Miller P.A.

200 West Forsyth Street, Suite 1400

Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues to be resolved in this proceedings concern

whether Environmental Resource Permit (ERP) No. 4-109-0216-ERP,

should be modified to allow construction and operation of a

surface water management system (project) related to the

construction and operation of single-family homes on "Marshall

Creek" (Parcel D) in a manner consistent with the standards for

issuance of an ERP in accordance with Rules 40C-4.301 and

40C-4.302, Florida Administrative Code.

PRELIMINARY STATEMENT

This case concerns an application for modification of a

previously issued ERP, which has provided for the construction

of a portion of the Marshall Creek Development of Regional

Impact (DRI). That permit had been previously issued by the

St. Johns River Management District (District) and on April 18,

2000, the District noticed its intent to grant the modification

application as to that permit. That modification would

authorize construction of a 29.9-acre, single-family,

residential development with an associated surface water

management system, including modifications to a previously

permitted stormwater pond and with an associated wetland

mitigation area.

The above-named Petitioners filed Petitions opposing the

proposed grant of the modification of the permit on or about

May 12, 2000. The dispute thereafter was referred to the

Division of Administrative Hearings and the undersigned

Administrative Law Judge, in accordance with Subsection

120.57(1), Florida Statutes.

The cause came on for hearing as noticed. At the hearing,

the applicant presented testimony from witnesses Lee Alford, a

civil engineer with a specialty in water resource engineering;

Harvey H. Harper, Ph.D., an expert in water quality, hydrology

and stormwater management; Anne Stokes, Ph.D., an expert in

archeology and cultural resource management; Nancy C. Zyski, an

expert in biology, wetlands habitat, wetlands mitigation and

wildlife; William Michael Dennis, Ph.D., an expert in wetlands

ecology, wetlands mitigation and wildlife; and testimony by

deposition of Laura Kammerer, State of Florida Deputy State

Historic Preservation Officer. The applicant (Hines) had

exhibits one through six, nine through sixteen, eighteen through

twenty-two, twenty-seven, twenty-eight, thirty-one, thirty-five,

thirty-six, forty, forty-two through forty-five, forty-nine

through fifty-one admitted into evidence.

The District presented testimony from Walter Esser, an

expert in wetland and wildlife ecology, mitigation planning and

wetland delineation; Everett M. Frye, an expert in water

resources engineering and the deposition testimony of

David C. Heil, Bureau Chief of the Bureau of Agriculture

Environmental Services of the Florida Department of Agriculture

and Consumer Services. The District offered exhibits one

through fourteen, which were received into evidence.

The Petitioners' witnesses were: Michael McElveen, an

expert in real estate appraisal and economic evaluation of real

estate development; Robert Bullard, an expert in civil

engineering, hydrology and water resource engineering; Robert

Livingston, Ph.D., an expert in wetlands ecology, aquatic

ecology, estuarine ecology, pollution biology, water quality and

ecology of stormwater ponds; Roger Lloyd, Ph.D., an expert in

zoology and marine biology; Laurie MacDonald, an expert in

conservation biology and wildlife ecology with an emphasis on

the Florida Black Bear; Daniel h. Donaldson; George William

Hamilton, III, an expert in pesticides and trees; and Bobby C.

Billie, an expert in indigenous culture in Florida.

Petitioners' exhibits one through twelve were received into

evidence.

Upon conclusion of the proceeding the parties obtained a

Transcript of the proceedings and availed themselves of the

right to submit Proposed Recommended Orders. Proposed

Recommended Orders were timely filed and have been considered in

the rendition of this Recommended Order. Because of the result

reached herein, the post-hearing motions and objections filed by

the Respondents, concerning the Petitioner's excession of the

page limit for the Proposed Recommended Order and concerning

evidence filed after conclusion of the hearing, need not be

addressed.

FINDINGS OF FACT

The Project

1. The project is a 29.9-acre residential development and

associated stormwater system in a wetland mitigation area known

as "Parcel D." It lies within the much larger Marshall Creek

DRI in St. Johns County, Florida, bounded on the northeast by

Marshall Creek, on the south and southeast by a previously

permitted golf course holes sixteen and seventeen, and on the

north by the "Loop Road." The project consists of thirty

residential lots of approximately one-half acre in size; a short

segment of Loop Road to access Parcel D; an internal road

system; expansion of previously permitted Pond N, a wet

detention stormwater management pond lying north of the Loop

Road and wetland mitigation areas.

2. Approximately 1.15 acres of wetlands are located on the

Parcel D site. The project plan calls for filling 0.63 acres of

the wetlands for purposes of constructing a road and residential

lots for Parcel D. Part of that 0.63-acre impact area, 0.11

acres, is comprised of a 760-foot-long, narrow drainageway, with

0.52 acres of adjacent wetland. Downstream of the fill area,

0.52 acres of higher quality wetland is to be preserved.

3. Hines proposes to preserve 4.5 acres of existing

wetland and 2.49 acres of upland, as well as to create .82 acres

of forested wetland as mitigation for the proposed impact of the

project. Additionally, as part of the project, Hines will

implement a nutrient and pesticide management plan. The only

pesticides to be used at the project will be approved by the

Department of Agriculture for use with soil types prevailing at

the site and only pesticides approved by the Environmental

Protection Agency may be used on the site. All pesticides to be

used on the project site must be selected to minimize impacts to

ground and surface water, including having a maximum 70-day

half-life.

Stormwater Management System

4. The majority of surface runoff from Parcel D will be

diverted to a stormwater collection system and thence through

drainage pipes and a swale into Phase I of Pond N. After

treatment in Pond N, the water will discharge to an upland area

adjacent to wetlands associated with Marshall Creek and then

flow into Marshall Creek. The system will discharge to Marshall

Creek.

5. In addition to the area served by Pond N, a portion of

lots fourteen though twenty drain through a vegetated, natural

buffer zone and ultimately through the soil into Marshall Creek.

Water quality treatment for that stormwater runoff will be

achieved by percolating water into the ground and allowing

natural soil treatment. The fifty-foot, vegetated, natural

buffer is adequate to treat the stormwater runoff to water

quality standards for Lots 14, 15 and 20. Lots 16, 17, 18 and

19, will have only a twenty-five foot buffer, so additional

measures must be adopted for those lots to require either that

the owners of them direct all runoff from the roofs and

driveways of houses to be constructed on those lots to the

collection system for Pond N or placement of an additional

twenty-five foot barrier of xeriscape plants, with all non-

vegetated areas being mulched, with no pesticide or fertilizer

use. An additional mandatory permit condition, specifying that

either of these measures must be employed for Lots 16, 17, 18

and 19, is necessary to ensure that water quality standards will

be met.

6. Pond N is a wet detention-type stormwater pond. Wet

detention systems function similarly to natural lakes and are

permanently wet, with a depth of six to twelve feet. When

stormwater enters a wet detention pond it mixes with existing

water and physical, chemical and biological processes work to

remove the pollutants from the stormwater.

7. Pond N is designed for a twenty-five year, twenty-four-

hour storm event (design storm). The pre-development peak rate

of discharge from the Pond N drainage area for the design storm

event is forty cubic feet per second. The post-development peak

rate of discharge for the design storm event will be

approximately twenty-eight cubic feet per second. The discharge

rate for the less severe, "mean annual storm" would be

approximately eleven cubic feet per second, pre-development peak

rate and the post-development peak rate of discharge would be

approximately five cubic feet per second. Consequently, the

post-development peak rate of discharge does not exceed the pre-

development peak rate of discharge.

8. Pond N is designed to meet the engineering requirements

of Rule 40C-42.026(4), Florida Administrative Code. Because the

pond is not designed with a littoral zone, the permanent pool

volume has been increased by fifty-percent. Additionally,

because Pond N discharges to the Class II waters of Marshall

Creek, an additional fifty-percent of treatment volume is

included in the pond design.

9. The system design addresses surface water velocity and

erosion issues through incorporation of best management

practices promulgated by the District to prevent erosion and

sedimentation, including; designing side slopes of 4:1; siding

and seeding disturbed areas to stabilize soil; and the use of

riprap at the outfall from Pond N. During construction, short-

term water quality impacts will be addressed through

installation of silt fences and hay bales.

10. The majority of the eightee n-acre drainage basin which

flows into the Parcel D wetland lies to the south and southwest

of Parcel D. In accordance with the prior permit, water from

those off-site acres will be intercepted and routed to

stormwater ponds serving golf course holes sixteen and

seventeen.

11. The system design will prevent adverse impacts to the

hydroperiod of remaining on-site and off-site wetlands. The

remaining wetlands will be hydrated through groundwater flow.

Surface waters will continue to flow to the wetlands adjacent to

lots fourteen through twenty because drainage from those lots

will be directed across a vegetated, natural buffer to those

wetlands. There is no diversion of water from the natural

drainage basin, because Pond N discharges to a wetland adjacent

to Marshall Creek, slightly upstream from the current discharge

point for the wetland which is to be impacted. This ensures

that Marshall Creek will continue to receive that fresh-water

source. An underground "PVC cut-off wall" will be installed

around Pond N to ensure that the pond will not draw down the

water table below the wetlands near the pond.

12. Pond N has been designed to treat stormwater prior to

discharge, in part to remove turbidity and sedimentation. This

means that discharge from the pond will not carry sediment and

that the system will not result in shoaling. There will be no

septic tanks in the project.

13. The system is a gravity flow system with no mechanical

or moving parts. It will be constructed in accordance with

standard industry materials readily available and there will be

nothing extraordinary about its design or operation. The system

is capable of being effectively operated and maintained and the

owner of the system will be the Marshall Creek Community

Development District (CDD).

Water Quality

14. Water entering Pond N will have a residence time of

approximately 200 days or about fifteen times higher than the

design criteria listed in the below-cited rule. During that

time, the treatment and removal process described herein will

occur, removing most of the pollutants. Discharge from the pond

will enter Marshall Creek, a Class II water body. The

discharges must therefore meet Class II water quality numerical

and anti-degradation standards. The design for the pond

complies with the design criteria for wet detention systems

listed in Rule 40C-42.026(4), Florida Administrative Code.

15. In addition to meeting applicable design criteria, the

potential discharge will meet water quality standards. The pond

will have low levels of nitrogen and phosphorous resulting in

low algae production in the pond. The long residence time of

the water in the pond will provide an adequate amount of time

for pesticides to volatilize or degrade, minimizing the

potential for pesticide discharge. Due to the clear

characteristics of the water column, neither thermal

stratification nor chemical stratification are expected.

16. Periodically, fecal coliform and total coliform levels

are exceeded under current, pre-development conditions. These

are common natural background conditions. Because the detention

time in the pond will be an average of 200 days, and because the

life span of fecal coliform bacteria is approximately seven to

fourteen days the levels for coliforms in the pond will be very

low. Discharges from the pond will enhance water quality of the

Class II receiving waters because the levels of fecal coliform

and total coliform will be reduced.

17. The discharge will be characterized by approximately

100 micrograms per liter total nitrogen, compared with a

background of 250 micrograms per liter presently existing in the

receiving waters of Marshall Creek. The discharge will contain

approximately three micrograms per liter of phosphorous,

compared with sixty-three micrograms per liter presently

existing in Marshall Creek. Total suspended solids in the

discharge will be less than one-milligram per liter compared

with seventy-two milligrams per liter in the present waters of

Marshall Creek. Biochemical oxygen demand will be approximately

a 0.3 level in the discharge, compared with a level of 2.4 in

Marshall Creek. Consequently, the water quality discharging

from the pond will be of better quality than the water in

Marshall Creek or the water discharging from the wetland today.

The pollutant loading in the discharge from the stormwater

management system will have water quality values several times

lower than pre-development discharges from the same site.

Comparison of pre-development and post-development mass loadings

of pollutants demonstrates that post-development discharges will

be substantially lower than pre-development discharges.

18. Currently, Marshall Creek periodically does not meet

Class II water quality standards for dissolved oxygen.

Construction and operation of the project will improve water

quality in the creek concerning dissolved oxygen values because

discharges from Pond N will be subjected to additional aeration.

This results from design features such as discharge from the

surface of the system, where the highest level of dissolved

oxygen exists, and the discharge water draining through an

orifice and then free falling to a stormwater structure,

providing additional aeration.

19. Discharges from the system will maintain existing uses

of the Class II waters of Marshall Creek because there will be

no degradation of water quality. Discharges will not cause new

violations or contribute to existing violations because the

discharge from the system will contain less pollutant loading

for coliform and will be at a higher quality or value for

dissolved oxygen.

20. Discharges from the system as to water quality will

not adversely affect marine fisheries or marine productivity

because the water will be clear so there will be no potential

for thermal stratification; the post-development discharges will

remain freshwater so there will be no change to the salinity

regime; and the gradual pre-development discharges will be

replicated in post-development discharges. Several factors

minimize potential for discharge of pesticide related

pollutants: (1) only EPA-approved pesticides can be used;

(2) only pesticides approved for site-specific soils can be

used; (3) pesticides must be selected so as to minimize impacts

on surface and groundwater; (4) pesticides must have a maximum

half-life of 70 days; and (5) the system design will maximize

such pollutant removal.

Archaeological Resources

21. The applicant conducted an archaeological resource

assessment of the project and area. This was intended to locate

and define the boundaries of any historical or archaeological

sites and to assess any site, if such exists, as to its

potential eligibility for listing in the National Register of

Historic Places (National Register). Only a portion of one

archaeological site was located on the project tract. Site

8SJ3473, according to witness Anne Stokes, an expert in the

field of archaeological assessment, contains trace artifacts

dating to the so-called "Orange Period," a time horizon for

human archaeological pre-history in Florida dating to

approximately 2,300 B.C. The site may have been only a small

campsite, however, since only five pottery fragments and two

chert flakes, residuals from tool-making were found. Moreover,

there is little possibility that the site would add to knowledge

concerning the Orange Period or pre-history because it is a very

common type of site for northeast Florida and is not an

extensive village site. There are likely other campsites around

and very few artifacts were found. No artifacts were found

which would associate the site with historic events or persons.

22. The applicant provided the findings of its cultural

resource assessment, made by Dr. Stokes, to the Florida Division

of Historical Resources. That agency is charged with the

responsibility of reviewing cultural resource assessments to

determine if significant historic or archaeological resources

will be impacted. The division reviewed the survey techniques

used by Dr. Stokes, including shovel testing, sub-surface

testing and pedestrian walk-over and investigation. The

division determined that the site in question is not of a

significant historical or archaeological nature as a resource

because it does not meet any of the four criteria for inclusion

in the National Register. 1 Thus the referenced agency determined

that the site in question is not a significant historical or

archaeological resource and that construction may proceed in

that area without further investigation, insofar as its

regulatory jurisdiction is concerned.

Wetlands

23. The wet lands to be impacted by the project consist of

a 1,000 foot drainage-way made up of a 0.11 acre open-water

channel, approximately four feet wide, and an adjacent vegetated

wetland area of approximately 0.52 acres containing fewer than

30 trees. The open-water channel is intermittent in that it

flows during periods of heavy rainfall and recedes to a series

of small, standing pools of water during drier periods.

24. The Parcel D wetland is hydrologically connected to

Marshall Creek, although its ephemeral nature means that the

connection does not always flow. The wetland at times consists

only of isolated pools that do not connect it to Marshall Creek.

Although it provides detrital material export, that function is

negligible because the productivity of the adjacent marsh is so

much greater than that of the wetland with its very small

drainage area. Because of the intermittent flow in the

wetland, base flow maintenance and nursery habitat functions are

not attributed to the wetland.

25. The Parcel D we tland is not unique. The predominant

tree species and the small amount of vegetated wetland are water

oak and swamp bay. Faunal utilization of the wetland is

negligible. The wetland drainage-way functions like a ditch

because it lacks the typical characteristics of a creek, such as

a swampy, hardwood floodplain headwater system that channelizes

and contains adjacent hardwood floodplains.

26. The location of the wetland is an area designated by

the St. Johns County comprehensive plan as a development parcel.

The Florida Natural Areas Inventories maps indicate that the

wetland is not within any unique wildlife or vegetative

habitats. The wetland is to be impacted as a freshwater system

and is not located in a lagoon or estuary. It contains no

vegetation that is consistent with a saltwater wetland. The

retaining wall at the end of the impact area is located 1.7 feet

above the mean high water line.

Wetland Impacts

27. The proposed 0.63 acre wetland impact area will run

approximately 760 linear feet from the existing trail road to

the proposed retaining wall. If the wetland were preserved,

development would surround the wetland, adversely affecting its

long-term functions. Mitigation of the wetland functions is

proposed, which will provide greater long-term ecological value

than the wetland to be adversely affected. The wetland to be

impacted does not provide a unique or special wetland function

or good habitat source for fish or wildlife. The wetland does

not provide the thick cover that would make it valuable as Black

Bear habitat and is so narrow and ephemeral that it would not

provide good habitat for aquatic-dependent and wetland-dependent

species. Its does not, for instance, provide good habitat for

woodstorks due to the lack of a fish population and its closed-

in tree canopy. Minnow sized fish (Gambusia) and crabs were

seen in portions of the wetland, but those areas are downstream

of the proposed area of impact.

Mitigation

28. Mitigation is offered as compensation for any wetland

impacts as part of an overall mitigation plan for the Marshall

Creek DRI. The overall mitigation plan is described in the

development order, the mitigation offered for the subject permit

and mitigation required by prior permits. A total of 27 acres

of the more than 287 acres of wetlands in the total 1,300-acre

DRI tract are anticipated to be impacted by the DRI.

Approximately 14.5 acres of impacted area out of that 27 acres

has already been previously authorized by prior permits. The

overall mitigation plan for the DRI as a whole will preserve all

of the remaining wetlands in the DRI after development occurs.

Approximately one-half of that preserved area already has been

committed to preservation as a condition of prior permits not at

issue in this case. Also, as part of prior permitting, wetland

creation areas have been required, as well as preserved upland

buffers which further protect the preserved wetlands.

29. The mitigation area for the project lies within the

Tolomato River Basin. The development order governing the total

DRI requires that 66 acres of uplands must also be preserved

adjacent to preserved wetlands. The overall mitigation plan for

the DRI preserves or enhances approximately 260 acres of

wetlands; preserves a minimum of 66 acres of uplands and creates

enhancement or restores additional wetlands to offset wetland

impacts. The preserved wetlands and uplands constitute the

majority of Marshall Creek, and Stokes Creek which are

tributaries of the Tolomato River Basin, a designated

Outstanding Florida Water (OFW). Preservation of these areas

prevents them from being timbered and ensures that they will not

be developed in the future.

30. The overall DRI mitigation plan provides regional

ecological value because it encompasses wetlands and uplands

they are adjacent to and in close proximity to the following

regionally significant resources: (1) the 55,000 acre Guana-

Tolomato-Matanzas National Estuarine Research Reserve; (2) the

Guana River State Park; (3) the Guana Wildlife Management Area;

(4) an aquatic preserve; (5) an OFW; and (6) the 22,000 acre

Cummer Tract Preserve. The mitigation plan will provide for a

wildlife corridor between these resources, preserve their

habitat and insure protection of the water quality for these

regionally significant resources.

31. The mitigation offered to offset wetland impacts

associated with Parcel D includes: (1) wetland preservation of

0.52 acres of bottom land forest along the northeast property

boundary (wetland EP); (2) wetland preservation of 3.98 acres of

bottom land forest on a tributary of Marshall Creek contained in

the DRI boundaries (Wetlands EEE and HHH); (3) upland

preservation of 2.49 acres, including a 25-foot buffer along the

preserved Wetlands EEE and HHH and a 50-foot buffer adjacent to

Marshall Creek and preserved Wetland EP; (4) a wetland creation

area of 0.82 acres, contiguous with the wetland preservation

area; and (5) an upland buffer located adjacent to the wetland

creation area. The wetland creation area will be graded to

match the grades of the adjacent bottomland swamp and planted

with wetland tree species. Small ponds of varying depths will

be constructed in the wetland creation area to provide varying

hydrologic conditions similar to those of the wetland to be

impacted. The wetland creation area is designed so as to not

de-water the adjacent wetlands. All of the mitigation lands

will be encumbered with a conservation easement consistent with

the requirements of Section 704.06, Florida Statutes.

32. The proposed mitigation wi ll offset the wetland

functions and values lost through the wetland impact on

Parcel D. The wetland creation is designed to mimic the

functions of the impact area, but is located within a larger

ecological system that includes hardwood wetland headwaters.

The long-term ecological value of the mitigation area will be

greater than the long-term value of the wetland to be impacted

because; (1) the mitigation area is part of a larger ecological

system; (2) the mitigation area is part of an intact wetland

system; (3) the wetland to be impacted will be unlikely to

maintain its functions in the long-term; and (4) the mitigation

area provides additional habitat for animal species not present

in the wetland to be impacted.

33. Certain features will prevent adver se secondary

impacts in the vicinity of the roadway such as: (1) a retaining

wall which would prevent migration of wetland animals onto the

road; (2) a guard rail to prevent people from moving from the

uplands into wetlands; and (3) a vegetated hedge to prevent

intrusion of light and noise caused by automotive use of the

roadway.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding pursuant to Section 120.57, Florida Statutes.

35. This is a de novo proceeding intended to formulate

final agency action. See Department of Transportation v.

J.W.C., Inc. , 396 So. 2d 778, 786-87 (Fla. 1st DCA 1981). The

burden is on the applicant to prove entitlement to the permit

modification by a preponderance of evidence. J.W.C. 396 So. 2d

at 788. To carry that initial burden, the applicant must

provide reasonable assurances through presentation of credible

evidence of entitlement to the permit. The burden is one of

reasonable assurances and not absolute guarantees. City of

Sunrise v. Indian Trace Community Dev. Dist. , 14 F.A.L.R. 866,

869 (South Florida Water Management Dist., January 16, 1990).

36. Once an applicant has carried the burden of a

preliminary showing of entitlement, the burden of presenting

contrary evidence shifts to the Petitioner. Hoffert v. St. Joe

Paper Co. , 12 F.A.L.R. at 4972, 4987 (Dep't of Envtl.

Regulation, December 6, 1990). A Petitioner is required to

present evidence of equivalent quality and prove the truth of

the facts alleged in the Petition. See Hoffert at 4987. When

an applicant has established prima facie evidence of

entitlement, the permit cannot be defeated unless the Petitioner

presents contrary evidence of equivalent value. Ward v.

Okaloosa County , 11 F.A.L.R. 217, 236 (Dep't Envtl. Regulation,

June 29, 1989). A Petitioner's burden cannot be met by mere

speculation of what "might" occur. Chipola Basin Protective

Group, Inc., v. Florida Chapter of Sierra Club , 11 F.A.L.R. 467,

480-81 (Dep't of Envtl. Regulation, December 29, 1988).

37. The conditions for issuance of an ERP are contained in

Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.

These conditions are further explained in the "Applicant's

Handbook: Management and Storage Surface Waters" (A.H.), adopted

by reference in Rule 40C-4.091(1), Florida Administrative Code.

Rule 40C-4.301, Florida Administrative Code, Conditions of

Issuance of ERP :

38. Concerning water quantity impacts, Rule 40C-4.301(1),

Florida Administrative Code, and Sections 9.1.1(a) and 10.2,

A.H., require that construction and operation of the system must

not cause adverse water quantity impacts to receiving waters and

adjacent lands. Pursuant to Section 10.2.1, A.H., a presumption

is created that this standard is satisfied if: (1) the post-

development peak rate of discharge does not exceed the pre-

development peak rate of discharge for a 25-year, 24-hour storm

design; (2) for systems which discharge to landlocked lakes, the

post-development volume of water discharged does not exceed the

pre-development volume of water discharged; (3) for projects

located on a stream or water course of five square miles or

greater, floodplain storage conveyance protection measures are

undertaken; and (4) where applicable, low and base flow criteria

are met. All of the applicable criteria are met for the

presumption to arise. The post-development peak rate of

discharge of twenty-eight cubic feet per second (CFS) for the

25-year, 24-hour storm event is less than the pre-development

rate of 40 CFS. The system will not discharge to a landlocked

lake and therefore the volume standard is not applicable. The

project is not located in a stream or water course with an

upstream drainage area of five square miles or greater.

Therefore, the floodplain encroachment criterion is not

applicable. Under pre-development conditions, the wetland to be

impacted periodically goes dry. Therefore, there is no low flow

or base flow to be maintained and the low flow criterion is not

applicable. Hines and the District have provided reasonable

assurances of compliance with the above criteria and the

presumption is created that construction and operation of the

system will not cause adverse water quantity impacts to

receiving waters and adjacent lands. No contrary evidence was

presented as to these matters and these criteria are satisfied.

Flooding

39. Pursuant to Rule 40C-4.301(1)(b), Florida

Administrative Code, and Sections 9.1.1(b) and 9.1.3, A.H., an

applicant must provide reasonable assurance that construction

and operation of a system will not cause adverse flooding to on-

site or off-site property. The parties have stipulated that the

applicant has provided reasonable assurance that the project

will not cause adverse flooding to on-site or off-site property.

Surface Water Storage and Conveyance

40. Rule 40C-4.301(1)(c), Florida Administrative Code, and

Sections 9.1.1(c) and 10.5, A.H., require that the applicant

provide reasonable assurance that construction and operation of

the system will not cause adverse impacts to existing surface

water storage and conveyance capabilities. This criterion is

only applied to projects located on a stream or water course

where the upstream drainage area is five square miles or

greater. The wetland to be impacted does not have an upstream

drainage area of five square miles or greater; consequently,

this standard is not applicable.

Fish and Wildlife

41. Rule 40C-4.301(1)(d), Florida Administrative Code in

Sections 9.1.1(d), 12.1.1(a) and 12.2, et. seq. , A.H., require

that construction and operation of the system must not adversely

impact the value of functions provided to fish and wildlife and

listed species by wetlands and other surface waters. The

applicant is proposing to fill 0.63 acres of freshwater wetland

as part of the project. Section 12.2.2.3, A.H., requires

consideration of the relative functional values of the wetlands

to be impacted. The current quality of the wetland to be

impacted is moderate to moderately low. The wetland functions

would be diminished if the wetland were left intact and

development were to occur around it. It is not a unique wetland

and it is in an area designated for development by the St. Johns

County Comprehensive Plan. The area to be impacted is an

ephemeral or intermittent freshwater wetland which has little or

no use by wildlife although saltwater areas downstream are used

by estuarine species.

42. Additionally, pursuant to Section 12.2.2.4, A.H., cut-

off walls have been designed to surround Pond N and will assure

that the pond will not change the hydroperiod of adjacent

wetlands so as to adversely affect wetland functions.

43. Pursuant to Section 12.3, A.H., mitigation may be

required to offset adverse impacts to wetland functions and

values. To offset the impacts to 0.63 acres of wetlands, the

applicant will create 0.82 acres of wetlands, preserve 4.5 acres

of wetlands and preserve 2.5 acres of uplands. The functions

and values of the wetland to be impacted will be replaced or

compensated by the mitigation plan. The mitigation will provide

greater functional value and greater long term ecological value

in the wetland to be impacted because: (1) the mitigation area

will be part of a larger ecological unit; (2) the actual wetland

will be larger than the impacted wetland; (3) the creation area

will have a direct connection to Marshall Creek; (4) the

creation area will provide habitat which is not provided by the

wetland to be impacted; and wetlands and uplands will be

preserved. Therefore, the wetland values and functions for fish

and wildlife will not be adversely impacted.

Water Quality

44. Pursuant to Rule 40C-4.301(1)(e), Florida

Administrative Code, an applicant must provide reasonable

assurances that construction and operation of a system will not

adversely affect the quality of receiving waters such that water

quality standards will be violated. The surface water

management system for the project discharges to Class II surface

water. Therefore, the system must meet Class II water quality

standards.

45. Pursuant to Section 10.7.2., A.H., adopted by the

above-cited rule, an applicant must provide reasonable

assurances that construction and operation of a system will not

degrade water quality below water quality standards and that the

quantity of water discharged offsite will not cause adverse

environmental or water quality impacts. The quality of

stormwater discharge to receiving waters is presumed to meet the

water quality standards if the system requires a permit pursuant

to Chapter 40C-42, Florida Administrative Code, and is in

compliance with that Chapter. See Section 10.7.2., A.H. The

design of the system is in compliance with the applicable design

criteria for wet detention, stormwater management systems

contained in Rule 40C-42.026(4), Florida Administrative Code,

giving rise to the presumption in Section 10.7.2. A.H., that

discharges from the system meet water quality standards. See

Rule 40C-42.023(2)(a), Florida Administrative Code. Further,

both the applicant and the District presented site-specific

analyses of the system which demonstrate that Class II water

quality standards will be met at the point of discharge and that

water quality in the receiving waters will actually improve for

the parameters which are currently out of compliance in the

receiving waters. Post-development pollutant loadings and

pollutant concentrations will be less than those of pre-

development circumstances; this results in an improvement in the

water quality in the Class II receiving waters. Discharges in

the system will not result in adverse impacts to the temperature

or salinity regime in the receiving waters. Thus, reasonable

assurances have been provided that construction and operation of

the system will not adversely affect the quality of receiving

waters in a way that will result in violation of state water

quality standards.

46. Pursuant to Section 12.2.4, A.H., such a system must

be evaluated using a five-part test:

(1) Short-Term Water Quality Considerations - The

applicant here will implement erosion control best management

practices prescribed by the District, including the use of

turbidity barriers during construction, stabilizing newly

created slopes or surfaces in or adjacent to wetlands and other

surfaces, and the prevention of other discharges or releases of

pollutants during construction that will prevent water quality

standards from being violated. Thus this factor has been

satisfied.

(2) Long-Term Water Quality Considerations - Pursuant to

Section 12.2.4.2, A.H., the applicant must address long term

water quality impacts of the proposed system. In light of the

conclusions made in paragraph 1, next above, reasonable

assurances have been provided that construction and operation of

the system will not adversely affect the quality of receiving

water such that state water quality standards will not be

violated in the long term either.

(3) The tests appearing at 12.2.4.3 and 12.2.4.4, A.H.,

involve water quality considerations regarding docking

facilities and mixing zones. Neither of such factors is

proposed or at issue in this case, so these two tests or

considerations do not apply.

(4) Section 12.2.4.5, A.H., concerns circumstances where

ambient water quality does not meet standards. If the proposed

receiving waters do not meet applicable water quality standards

for any parameter, then an applicant is required to demonstrate

that, in addition to other water quality requirements, the

proposed activity will not contribute to the existing violation

for the parameters which do not meet the standards. Water

quality sampling data from Marshall Creek indicate that the

receiving waters do not currently meet Class II water quality

standards for total and fecal coliform and dissolved oxygen.

Due to the size of Pond N, the long residence time of water in

the pond and the design of the pond, reasonable assurances have

been demonstrated that the system will serve to improve water

quality in the receiving waters for total and fecal coliform

bacteria and for dissolved oxygen. Thus, this test has been

satisfied.

Secondary Impacts

47. Pursuant to Rule 40C-4.301(1)(f), Florida

Administrative Code, and Sections 9.1.1(f), 12.1.1(f) and

12.2.7, A.H., an applicant must provide reasonable assurances

that a regulated activity will not cause adverse secondary

impact to water resources. If secondary impacts cannot be

prevented then mitigation may be offered to offset those

impacts. A four-part test is employed in evaluating secondary

impacts:

(1) Construction, Alteration and Intended Use of Uplands -

As part of the Secondary Impacts Test, the applicant must

provide reasonable assurances that secondary impacts for the

construction and use of the project will not cause violations of

water quality standards or adverse impacts to the functions of

wetlands. When a design provides for an upland buffer of an

average 25 feet, then upland activities will not be considered

adverse unless additional measures are needed for protection of

wetlands used by listed species for nesting or denning or

critically important feeding habitat. See Section 12.2.7(a),

A.H. A 50-foot buffer has been provided along the wetlands

adjacent to Marshall Creek remaining after the project is

constructed, except for the end of the cul-de-sac at the

location of the retaining wall. To address adverse secondary

impacts in the retaining wall area, the following measures have

been undertaken: (a) the retaining wall prevents migration of

wetland animals onto the road; (b) a guardrail will prevent

people from moving from the uplands to the wetlands; and (c) a

vegetated hedge will prevent intrusion from noise and lighting

when automobiles use the roadway. No wetlands on the site are

used by listed species for nesting, denning or critically

important feeding habitat and, therefore, no additional measures

for protection of such areas are needed. The project will

comply with state water quality standards and the pesticide

management plan assures that the use of pesticides on the

project will not result in violation of water quality standards.

Consequently, this portion of the Secondary Impacts Test is

satisfied.

(2) Ecological Value of Uplands for Nesting or Denning of

Aquatic or Wetland Dependent Listed Animal Species - In order to

pass the Secondary Impact Test Hines must provide reasonable

assurance that construction alteration and use of the proposed

system will not adversely impact the ecological value of uplands

to aquatic or wetland dependent, listed animal species for

enabling existing nesting or denning by these species.

Consideration for areas needed for foraging or wildlife

corridors will not be required, except as necessary for ingress

and egress to a nest or den site from the wetland or other

surface water. Section 12.2.7(b), A.H. Since none of the

listed aquatic or wetland dependent species use the project site

for nesting or denning, this portion of the Secondary Impacts

Test is satisfied.

(3) Significant Historical and Archaeological Resources -

As part of the Secondary Impacts Test, the District must

consider any other relevant activities that are very closely

linked and causally related to any proposed dredging or filling

which will cause impacts to significant historical and

archaeological resources. Section 12.2.7(c), A.H. The

applicant presented a cultural resource assessment prepared and

conducted by Dr. Stokes, a professional archaeologist, which

indicates that no significant historical or archaeological

resources will be impacted by the project. The Florida Division

of Historical Resources advised the District that it concurred

in that determination. Consequently, reasonable assurances have

been provided that the project will not result in adverse

secondary impacts to significant historical or archaeological

resources and this portion of the secondary impacts test is also

satisfied.

(4) Future Activities - As part of the Secondary Impacts

Test, Section 12.2.7(d), A.H., requires that the applicant

provide reasonable assurances that the following future

activities will not result in water quality violations or

adverse impacts to the functions of wetlands or other surface

waters: (1) Future phases; (2) Activities regulated under ERP

which are very closely linked or causally related. Reasonably

expected future phases of the DRI have been shown, along with

the associated overall mitigation plan. No adverse secondary

impacts are anticipated from expansion of the proposed system.

Mitigation will be required for future wetland impacts,

consistent with the District rules and a conservation easement

will be placed on the wetlands remaining on the project site and

adjacent upland areas, so those areas will not be impacted in

the future. This factor in the Secondary Impacts Test has been

satisfied, thus the four-part Secondary Impacts Test criteria

have been met.

(5) Maintenance of Flows and Levels Established by Chapter

40C-8, Florida Administrative Code -

48. Pursuant to Rule 40C-4.301(1)(g), Florida

Administrative Code, and Section 9.1.1(g), A.H., reasonable

assurances must be provided that construction, operation or

alteration of a proposed system will not adversely affect the

maintenance of surface or groundwater levels or surface water

flows established in Chapter 40C-8, Florida Administrative Code.

No such flows or water levels pursuant to Chapter 40C-8, Florida

Administrative Code, have been established for the area of the

project and therefore, this criterion is not applicable to this

proceeding and application.

Works of the District

49. Pursuant to Rule 40C-4.301(1)(h), Florida

Administrative Code, and Section 9.1.1(h), A.H., an applicant

must provide reasonable assurance that construction and

operation of a proposed system will not cause adverse impacts to

a work of the District established pursuant to Section 373.086,

Florida Statutes. No work of the District has been established

in the area of the project and therefore, this criterion is not

applicable.

Performance and Function

50. Pursuant to Rule 40C-4.301(1)(i), Florida

Administrative Code, and Section 9.1.1(i) A.H., an applicant

must provide reasonable assurances that, based on generally

accepted engineering and scientific principles, the proposed

system will be capable of being performed and of functioning as

proposed. The system is a gravity flow system, with no

mechanical or moving parts. It will be constructed with

standard industry materials which are readily available. There

is nothing extraordinary about the drainage or collection

system. It is capable of being effectively operated and

maintained by the owner and operator, which will be the related

Community Development District (CDD). The CDD has the ability

financially and operationally to maintain the system and operate

it. Therefore, reasonable assurances have been provided that

this criterion will be satisfied.

Financial, Legal and Technical Capability

51. Pursuant to Rule 40C-4.301(1)(j), Florida

Administrative Code, and Rule 9.1.1(j), A.H., an applicant must

provide reasonable assurances that construction and operation of

the system will be conducted by an entity with the financial,

legal and administrative capability of ensuring that the

activity will be undertaken in accordance with the terms and

conditions of the permit. The applicant, Hines Interest Limited

Partnership, has the means to complete the work and to operate

the system successfully. A CDD will provide for the operation

and maintenance of the system and the parties have stipulated

that the CDD has the financial capability to undertake the

operation and maintenance. It also has the legal power to

enforce compliance with the permits and the ability to hire

qualified engineers and contractors to undertake the work

authorized by the permit. Thus, reasonable assurances have been

provided that this criterion is satisfied.

Special Basin Criteria

52. Pursuant to Rule 40C-4.301(1)(k), Florida

Administrative Code, and Section 9.1.1(k), A.H., an applicant is

required to provide reasonable assurances that construction and

operation of the system will comply with any applicable special

basin criteria or geographic area criteria established in

Chapter 40C-41, Florida Administrative Code. No such special

criteria have been implemented in the geographical area of the

project and thus this is not applicable.

Public Interest Test

53. Pursuant to Rule 40C-4.302(1)(a), Florida

Administrative Code, and Sections 12.1.1(b), 10.1.1(a) and

12.2.3, A.H., the construction and operation of those portions

of the system located in, on or over wetlands or other surface

waters my not be contrary to the public interest as determined

by balancing the following criteria 2 :

(1) Public health, safety or welfare or the property of

others - Pursuant to Rule 40C-4.302(1)(a)1, and Sections

10.1.1.(a)1, 12.2.3(a) and 12.2.3(1), A.H., the District must

consider whether the proposed activity located in, on or over

wetlands or other surface waters will adversely affect the

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

This analysis requires consideration of whether the activity

will cause an environmental hazard to public health, safety or

improvements to public health or safety with respect to

environmental issues. The project does not present an

environmental hazard to public health and safety. The project

is not located directly in a classified shellfish harvesting

area nor will it cause closure or additional restrictions on

shellfish waters. There will be no flooding on the property of

others. Cut-off walls around the stormwater ponds assure that

the project will not cause groundwater to be drawn down in off-

site wetlands. Thus, this factor is considered neutral.

(2) The conservation of fish and wildlife, including

endangered or threatened species, or their habitats - Pursuant

to Rule 40C-4.302(1)(a), Florida Administrative Code, and

Sections 10.1.1(a)2, 12.2.3(b) and 12.2.3.2, A.H., the District

must consider whether the activity proposed in, on or over

wetlands or surface waters will adversely affect the

conservation of fish and wildlife, including endangered or

threatened species or their habitats. Although the wetland

impact results in adverse impact to certain wetland values and

functions, that impact is compensated for by the proposed

wetland mitigation. Additionally, there is no indication that

endangered or threatened species use the wetlands to be

impacted. Thus, this factor is also considered neutral.

(3) Navigation, the flow of water, erosion or shoaling -

Pursuant to Rule 40C-4.302(1)(a)3, Florida Administrative Code,

and Sections 10.1.1(a)3, 12.2.3(c) and 12.2.3.3, A.H., the

District must consider whether the activity involving wetlands

or other surface waters will adversely affect navigation, flow

of water or cause harmful erosion or shoaling. There are no

navigable waters in the impact area and sedimentation control

measures during construction will ensure that there will be no

shoaling. There are no surface water diversions of water from

one basin to another and erosion and sediment control measures

are adequately included in the design. Thus, this factor is

considered to be neutral.

(4) Fishing and recreational values, and marine

productivity in the vicinity of the activity - Pursuant to Rule

40C-4.302(1)(a)4, Florida Administrative Code, and Sections

10.1.1(a), 12.2.3(d) and 12.2.3.4, A.H., the District must

consider whether the activity located in or over wetlands or

other surface waters will adversely affect fishing or

recreational values or marine productivity. This factor is

considered neutral since there is no on-site fishery nursery

habitat to be degraded or eliminated and the on-site wetland to

be impacted does not contribute significant values for detrital

export, temperature regimes or to normal salinity regimes. Any

minimal values which may be impacted will be replaced by the

wetland mitigation effort and installation.

(5) Temporary or permanent nature - In accordance with

Rule 40C-4.302(1)(a)5, Florida Administrative Code, it must be

considered whether the activity will be of a temporary or

permanent nature. It is of a permanent nature and although the

wetland impacts are thus permanent, the mitigation is also

permanent in alleviating any adverse impacts and thus, this

factor is a neutral one as well.

(6) Significant historical and archaeological resources -

Pursuant to Rule 40C-4.302(1)(a)6, Florida Administrative Code,

the District must consider whether the activity located in, on

or over wetlands or surface waters will adversely affect or

enhance significant historical and archaeological resources

under the provision of Section 267.061, Florida Statutes.

Pursuant to subparagraph (2)(a) of that Section, the District as

a permitting agency must consider the effect of any permitting

action on any historic property that this is included in, or

eligible for inclusion in the National Register of Historic

Places. The District is thus required to afford the Division of

Historical Resources of the Department of State a reasonable

opportunity to comment with regard to the project. Although a

portion of one archaeological site is located on the property,

the site is a minor one, not of significant archaeological

significance. It is not eligible for listing on the National

Register of Historic Places. The District notified the Division

of the pending permit application and the Division has concurred

that no significant archaeological or historical sites are

recorded for the site of the project or are likely to be

affected by it. Thus, reasonable assurances have been provided

that no such significant sites will be adversely affected and

this factor is neutral as well.

(7) Current condition and relative value functions -

Pursuant to Rule 40C-4.302(1)(a)7, Florida Administrative Code,

the District is required to consider the current conditions and

relative value of functions being performed in the areas

affected by the proposed activity involving wetlands or other

surface waters. The wetland mitigation proposed will compensate

for and maintain the current conditions and relative values and

functions of the wetland to be impacted by the project. The

functions that the wetland currently provides will be diminished

if it were left intact but development occurred around it. The

wetland mitigation is part of an overall plan that will provide

regional ecological value. The project mitigation will provide

greater long-term benefits than the on-site wetland can provide

because development around the wetland to be impacted would

diminish its already fairly low functional value, the wetland

creation will be approximately one-third larger in size than the

impacted area and conservation easements will ensure that four

and one-half acres of wetlands and two and one-half acres of

uplands will be preserved permanently. Thus, this factor is a

neutral consideration as well. Therefore, all factors of the

public interest "balancing test" are determined to be neutral.

Therefore, the portions of the project located in, on or over

wetlands or other surface waters are not considered to be

contrary to the public interest.

Cumulative Impacts

54. In accordance with Subsection 373.414(8), Florida

Statutes (2000), Rule 40C-4.302(1)(b), Florida Administrative

Code, and Sections 10.1.1(b) and 12.2.8, A.H., Hines must

provide reasonable assurances that the project, when considered

in conjunction with past, present and future activities in that

drainage basin will not result in unacceptable, cumulative

impacts to water quality or wetland functions. The relevant

drainage basin the project lies in is the Tolomato River Basin.

The applicant has proposed mitigation which lies within that

drainage basin which offsets the adverse impacts caused by the

project. Subsection 373.414(8), Florida Statutes, was amended

by Chapter 2000-133, Laws of Florida, to add subparagraph

373.414(b), which provides:

If an Applicant proposes mitigation within

the same drainage basin as the adverse

impacts to be mitigated, and if the

mitigation offsets those adverse impacts,

the governing board and department shall

consider the regulated activity to meet the

cumulative impact requirements . . .

This provision became effective on May 17, 2000. The project

satisfies the statutory cumulative impact requirement.

55. T he District rules, including the provisions of

Section 12.2.8, A.H., were not amended after that statutory

change. Even prior to that change, however, the District's

interpretation of its rules was consistent with the policy

expressed in the statutory provision which became effective on

May 17, 2000. In that vein, the District interpreted its rules

such that no adverse cumulative impacts would be found if the

offered mitigation offsets the adverse impacts of the project

and the mitigation is to be undertaken on the project site and

is to be undertaken in the same drainage basin. See S arah H.

Lee v. St. Johns River Water Management District and Walden

Chase Developers, Ltd. , DOAH Case No. 99-2215 at 47 (rendered

September 27, 1999). All of these conditions are satisfied and

thus, under both the revised statute and the District's rule

interpretation, the project will not cause unacceptable

cumulative impacts.

Class II Waters; Waters Approved for Shellfish Harvesting -

56. Pursuant to Rule 40C-4.302(1)(c), Florida

Administrative Code, and Sections 10.1.1(c), 12.1.1(d) and

12.2.5, A.H., the applicant must provide reasonable assurances

that, if any portion of the project is located in or adjacent to

or in close proximity to Class II waters or Class III waters

approved, restricted or conditionally restricted for shellfish

harvesting by the Department of Agriculture and Consumer

Services, that portion of the project must comply with the

additional criteria set forth in Subsection 12.2.5, A.H. The

waters of Marshall Creek below the mean high water line are

classified by that department as "Conditionally Restricted" for

shellfish harvesting. However, all portions of the project are

located above the mean high water line. Additionally, the

species within the project boundaries are not saltwater species.

Therefore, reasonable assurances exist that none of the project

activities are located in waters approved to any degree or

restricted to any degree as to shellfish harvesting. Therefore,

the requirements of Subsection 12.2.5, A.H., do not apply.

Vertical Seawalls

57. Pursuant to Rule 40C-4.302(1)(d), Florida

Administrative Code and Sections 10.1.1(d), 12.1.1(e) and

12.2.6, A.H., an applicant is required to provide reasonable

assurances that vertical seawalls located in estuaries or

lagoons will comply with the additional criteria of Subsection

12.2.4, A.H. The evidence establishes that the retaining wall

at the edge of the wetland impact area is located in freshwater

above mean high water line and is thus not located in an estuary

or lagoon, as a matter of law. Thus, this criterion is not

applicable.

Elimination or Reduction of Impacts

58. Pursuant to Section 12.2.1, A.H., the District must

consider whether an applicant has implemented "practicable

design modifications" to reduce or eliminate adverse impacts if

the proposed system will result in adverse impacts to wetland

and surface water functions, and the proposed system does not

meet the environmental criteria set forth in Subsection 12.2.2

through 12.2.3.7, A.H. In accordance with Subsection

12.2.1.2(b), A.H., however, consideration of practicable design

modifications is not required when the applicant proposes

mitigation that implements all or part of a plan that provides

regional ecological value and provides greater long-term

ecological value than the area of wetland or other surface water

which would be adversely affected.

59. In recommending issuance of an ERP for the project,

the District staff relied on the "out provision" of subsection

12.2.1.2(b), A.H. The overall mitigation plan for the DRI of

which this project is a part, provides regional ecological value

by providing for preservation of at least 241 acres of wetlands,

including the majority of Marshall and Stokes Creeks;

preservation of 66 acres of associated uplands; restoration and

enhancement of wetlands adversely impacted by past activities

and creation of additional wetlands. The preserved wetlands are

tributaries of the Tolomato River, on OFW. Preservation of

these wetlands and uplands insures that they will not be logged

or developed in the future, The overall mitigation plan

contained in the DRI provides regional ecological value because

it encompasses uplands and wetlands that are adjacent to and in

close proximity to the regionally significant resources, the

various reserves and preserves, such as the 22,000 acre Cummer

Tract preserve, referenced in the above findings. The

mitigation plan will help preserve habitat and water quality of

these regionally significant resources and helps to provide a

wildlife corridor between the various resources areas.

60. Preservation of a floodplain swamp as well as uplands

can provide regional ecological value, especially where the

preserved wetland is associated with an area designated with a

special status. See Griffin v. St. Johns River Water Management

District , ER F.A.L.R. '99:007, p. 6-9 (St. Johns River Water

Management District December 9, 1998). When a mitigation plan

is shown to have regional ecological value and is of greater

ecological value than the wetland to be impacted, then the out

provisions of Subsection 12.2.1(b), may be applied and the

practicable alternative analysis is not required. See id.

61. The mitigation offered will provide greater long-term

ecological value than the wetland to be impacted. The wetland

to be impacted does not provide a quality habitat resource for

fish and wildlife, it is moderate to moderately low quality

wetland, whose functions and values will be diminished in the

future by adjacent upland activities. A majority of its surface

waters' hydrologic inputs has been diverted pursuant to the

prior permit. The mitigation will replicate the functions of

the impacted wetland by providing similarly varying hydrologic

conditions and drainage into Marshall Creek. The ecological

value of the mitigation area will be greater than the wetland to

be impacted because the mitigation area will be part of a larger

ecological system; the mitigation area will be part of an intact

wetland system; the wetland to be impacted will be unlikely to

maintain its functions in the long-term and the mitigation area

will provide habitat for animal species which do not currently

use the wetland to be impacted.

62. The applicant has provided reasonable assurances that

the proposed mitigation is part of a plan which provides

regional ecological value and which will provide greater long-

term ecological value than the wetland to be impacted.

Consequently the applicant is not required to implement the

practicable design modifications to reduce or eliminate impacts

in accordance with Section 12.2.1, A.H.

RECOMMENDATION

Having considered the foregoing Findings of Fact and

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is

RECOMMENDED:

That a final order be entered granting the subject

application for modification of Permit 4-109-0216A-ERP so as to

allow construction and operation of the Parcel D project at

issue, with the addition of the inclusion of a supplemental

permit condition regarding the vegetated natural buffers for

Lots 16 through 19 described and determined above.

DONE AND ENTERED this 9th day of April, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

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.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of April , 2001.

ENDNOTES

1/ See 36 Code of Federal Regulations, Section 60.4.

2/ Because the project is not located within an OFW and does not

significantly degrade an OFW, the standard is "not contrary to

the public interest." See Rule 40C-40302(1)(a), Florida

Administrative Code. This standard has been stipulated to be

the correct one by the parties in the Prehearing Stipulation.

COPIES FURNISHED:

Deborah Andrews, Esquire

11 North Roscoe Boulevard

Ponte Vedra Beach, Florida 32082

Peter Belmont, Esquire

102 Fareham Place, North

St. Petersburg, Florida 33702

St. Johns River Water Management District

Thomas I. Mayton, Jr., Esquire

Mary Ellen Jones, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32078-1429

Hines Interest Limited Partnership

Marcia Parker Tjoflat, Esquire

John G. Metcalf, Esquire

Pappas, Metcalf, Jenks & Miller P.A.

200 West Forsyth Street, Suite 1400

Jacksonville, Florida 32202

Henry Dean, Executive Director

St. Johns Water Management District

4049 Reid Street

Palatka, Florida 32177

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.