04-003064 Florida Wildlife Federation, Jupiter Farms Environmental Council, Inc., D/B/A Loxahatchee River Coalition, Audubon Society Of The Everglades, Marge Ketter, Palm Beach Coalition, Steven Bell, Alexandra Larson, Michael Christianson, And Barry Silver vs. South Florida Water Management District, Palm Beach County, And Lantana Farms Associates, Inc. Status: Closed Recommended Order on Friday, December 3, 2004.

Summary: The applicants gave reasonable assurance that the aplicable permitting criteria had been met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

FLORIDA WILDLIFE FEDERATION, )

JUPITER FARMS ENVIRONMENTAL )

COUNCIL, INC., d/b/a )

LOXAHATCHEE RIVER COALITION, )

AUDUBON SOCIETY OF THE )

EVERGLADES, AND MARGE KETTER, )

)

Petitioners, )

)

vs. ) Case No. 04 - 3064

)

SOUTH FLORIDA WA TER MANAGEMENT )

DISTRICT, PALM BEACH COUNTY, )

AND LANTANA FARMS ASSOCIATES, )

INC., )

)

Respondents. )

)

PALM BEACH COUNTY ENVIRONMENTAL )

COALITION, STEVEN BELL, )

ALEXANDRA L ARSON, AND MICHAEL )

CHRISTIANSON, )

)

Petitioners, )

)

vs. ) Case No. 04 - 3084

)

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, PALM BEACH COUNTY, )

AND LANTANA FARMS ASSOCIATES, )

INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

November 1 through 4, 2004, at West Palm Beach , Florida, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearings (DOAH).

APPEARANCES

Fo r Petitioners: Susan Kennedy, Esquire

16343 Jupiter Farms Road

Jupiter, Florida 33478

(DOAH Case 04 - 3064)

Marcy I. LaHart, Esquire

711 T alladega Street

West Palm Beach Florida 33405

(DOAH Case 04 - 3064)

Barry Silver, Esquire

1200 South Rogers Circle, Suite 8

Boca Raton, Flori da 33487

(DOAH Case 04 - 3084)

For Respondents: Susan Roeder Martin, Esquire

Douglas H. MacLaughlin, Esquire

Office of General Counsel

South Florida Water Man agement District

3301 Gun Club Road

Mail Stop Code 1410

West Palm Beach, Florida 33406

(South Florida Water Management District)

Andrew McM ahon, Esquire

Palm Beach County Attorney’s Office

Post Office Box 1989

West Palm Beach, Florida 33402

(Palm Beach County)

Frank E. Matthews , Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

(Palm Beach County)

STATEMENT OF THE ISSUES

Petitioners challenge the South Florida Water Management

District’s (the District) proposed action to issue Individual

Environmental Resource Permit (ERP) 50 - 06558 - P to authorize

conceptual approval of a surface water management (SWM) system

to serve 1,919 acres of a phased, multiple - use development

referred to as the Palm Beach County Biotechnolgy Research Park

(BRP) and to authorize construction and operation of Phase 1A of

that proposed project. The ultimate issue is whether the

Applicants provided reasonable assurances that the propo sed

activities will not be harmful to the water resources of the

District; will not be inconsistent with the overall objectives

of the District; and will comply with the water quantity,

environmental, and water quality criteria of the District’s ERP

regula tions, which are set forth in Part IV of Chapter 373,

Florida Statutes, Florida Administrative Code Chapter 40E - 4, et.

seq .; and the Basis of Review for Environmental Resource Permit

Applications Within the South Florida Water Management District

– Septemb er 2003 (BOR). 1

PRELIMINARY STATEMENT

Respondents, Palm Beach County (the County) and Lantana

Farms (the Applicants), applied to the District for an ERP for

the BRP, to be constructed on a 1,919 - acre site known as Mecca

Farms. The ERP application is fo r a conceptual permit for the

SWM system for the BRP and for a construction and operation

permit for work that is referred to as the Phase 1A

construction. The on - site construction will entail a SWM

system, multiple buildings, and infrastructure. The con ceptual

plan also entails construction of off - site projects that will

directly impact jurisdictional wetlands. The Phase 1A

construction involves clearing, grading, and lake construction

on 256 acres of the southern part of the Mecca property.

Following its review of the application and of the

information submitted in support thereof, the District issued a

Staff Report which describes the project at length. The

undersigned has borrowed liberally from the Staff Report as it

is found to accurately describ e the work contemplated by the

Phase 1A Construction and the Conceptual Plan.

After the District issued its notice of intent to issue the

subject ERP, the Petitioners timely filed Petitions in

opposition to the issuance of the permit. Thereafter, in

sep arate orders, the District struck irrelevant portions of the

Petitions. Each order determined that the respective

Petitioners had complied with requisite rules and transmitted

the respective Petitions (less the stricken portions) to DOAH

for hearing, wher e the cases were assigned DOAH Case Nos. 04 -

3064 and 04 - 3084 and were consolidated.

The County moved for expedited proceedings pursuant to

Sections 403.973 and 120.574, Florida Statutes, and the matter

was duly noticed for formal hearing. Pursuant to Se ction

403.973(15), Florida Statutes, a recommended order, as opposed

to a final order, will be entered by the undersigned in this

matter.

During the course of the formal hearing, there were many

objections based on relevancy. The undersigned attempted to

limit the evidence to issues relevant to applicable permitting

criteria. The undersigned also excluded evidence pertaining to

the portions of the Petitions that had been stricken by the

District before being referred to DOAH.

At the final hearing, th e County presented the testimony of

Bevin A. Beaudet, Alan D. Wertepney, Kenneth Todd, Mark

Brandenburg, and D. Steven Lamb. Mr. Beaudet, a professional

engineer, is employed by the County as the Scripps Program

Manager. Mr. Wertepney, a professional eng ineer, is employed by

Mock, Roos, and Associates, Inc., a consulting firm employed by

the County to design the project’s surface water management

system. Mr. Todd, a professional engineer, is employed by the

County as its Water Resources Manager. Mr. Bra ndenburg is a

biologist employed by Miller, Legg & Associates, Inc., a

consulting firm employed by the County. Mr. Lamb is a geologist

employed by MacVicar, Federico & Lamb, Inc., a consulting firm

employed by the County. The County offered the following pre -

marked Exhibits, each of which was admitted into evidence (these

Exhibits were marked as “PBC Ex.” followed by the Exhibit number

and initialed by the undersigned): 3 (Secondary Impact Analysis

Report); 5 (Cumulative Impact Analysis Report); 6 (L - 8 B asin

cumulative impact analysis aerial photo chart); 7 (Florida

panther telemetry location map); 8 (bald eagle nest activity

location map); 11 (composites of aerial and ground photos of

Mecca Property); 12 (composite lapse photos of a comparative

mitigatio n area); 13 (composite photos of wildlife utilization

of comparative mitigation areas); 14 (enlargement of previously

identified exhibits 12 and 13); 15 (the Mecca Property’s

existing drainage pattern); 16 (the BRP proposed drainage

pattern); 18 (site map for the Palm Beach Aggregates); 19 (July

2004 Final Draft of the Comprehensive Everglades Restoration

Plan (CERP) for North Palm Beach County, Part 1); 20 (sketch of

proposed BRP natural area); 21 (aerial photo with proposed Phase

1A area); 22A - E (resumes of the County’s witnesses); and 25

(letter from Brian Barnett to M. Blakeslee dated April 8, 2004).

The County offered, and subsequently withdrew, its pre - marked

Exhibit 29. The County did not offer its pre - marked Exhibits 1,

2, 4, 9, 10, 17, 23, 24, 26, 27, and 28.

The District presented the testimony of three of its

employees: Terri Bates, Damon Meiers, and Michael Voich.

Ms. Bates is the Department Director of Environmental Resource

Regulation. Mr. Meiers is the Deputy Director of Environmental

Re source Regulation. Mr. Voich is the Project Manager for CERP

Design and Implementation. The District offered the following

pre - marked Exhibits, each of which was admitted into evidence

(these Exhibits were marked as “SFWMD Ex.” followed by the

Exhibit nu mber and initialed by the undersigned): 1 (the Staff

Report recommending approval of the ERP with standard and

special conditions); 3 (the District’s entire permit file);

8 (letter from Enrique Tomeu of Palm Beach Aggregates to

Ms. Bates dated 9 - 29 - 04); 9 (potential secondary impacts chart);

10 (conceptual mitigation options); 12 (Mecca Farms site and

regional facilities map); 13A and 13B (maps depicting

alternatives for the management of water in the L - 8 Basin);

15 (an attachment to a Board of Trustees ag enda item pertaining

to an easement/exchange/determination between Florida Fish and

Wildlife Conservation Commission and Palm Beach County for the

Corbett Wildlife Management Area (CWMA); 16 (technical

documentation pertaining to minimum flows and levels f or the

Northwest Fork of the Loxahatchee River); 21 (resume of Ms.

Bates); 22 (resume of Mr. Meiers); and 23 (resume of Mr. Voich).

The District did not offer its pre - marked Exhibits 2, 4, 5, 6,

7, 11, 14, 17, 18, 19, 20, and 24.

The Petitioners in DOAH C ase No. 04 - 3064 presented the

testimony of Joseph Schweigart (a retired employee of the

District and an expert in civil engineering, water resources

management, and CERP), Mr. Meiers, D. Greg Braun (an

environmental consultant), and Herb Zebuth (a retired Florida

Department of Environmental Protection employee and an expert in

South Florida water resources). The Petitioners in DOAH Case

No. 04 - 3064 presented seven Exhibits which were marked “P - 64

Ex.” followed by the number and initialed by the undersigned .

P - 64 Ex. 1 was the resume of Mr. Schweigart. P - 64 Ex. 2 was an

email to Mr. Meiers. P - 64 Ex. 3 was the resume of Mr. Braun.

P - 64 Ex. 4 was the resume of Mr. Zebuth. P - 64 Ex. 5 was a

letter to Kathy LaMartina from an employee of the Florida

Departmen t of Environmental Protection dated June 18, 2001.

P - 64 - Ex. 6 was a power point presentation pertaining to CERP.

P - 64 - EX. 7 was information pertaining to CERP. All of P - 64

Exhibits were admitted into evidence with the exception of P - 64

Ex. 5, which wa s rejected.

The Petitioners in DOAH Case No. 04 - 3084 presented the

testimony of Alexandra Larsen and Mike Christensen, both of whom

are individuals who live in the vicinity of the proposed

project. The Petitioners in DOAH Case No. 04 - 3084 presented two

Exhibits which were marked “P - 84 Ex.” followed by the number and

initialed by the undersigned. P - 84 Ex. 1 was a subpoena form

drafted by Mr. Silver. 2 P - 84 Ex. 2 was a letter dated August 16,

2004, from Karen T. Marcus, Chairperson of the Palm Beach Count y

Board of County Commissioners, to Mr. Silver and members of the

Palm Beach County Environmental Coalition. P - 84 Ex. 1 was not

moved into evidence. P - 84 - Ex. 2 was admitted into evidence.

At the request of the Petitioners and with no objection

from Respo ndents, a one - hour period for input from members of

the public was conducted pursuant to Section 120.57(1)(b),

Florida Statutes. The following persons made comments during

the public input period: Sharon Waite, Daniel Larson, Kay

Gates, Barbara Susko, an d Rosa Durando. No finding of fact

contained in this Recommended Order is based on the

communications made during the public input period.

During the course of the formal hearing, the Respondents

stipulated that the Petitioners have standing to bring th ese

challenges to the ERP.

Also during the course of the formal hearing, Barry Silver,

a named Petitioner in DOAH Case No. 04 - 3084, dismissed himself

as a party Petitioner to these proceedings.

On the motion of the District and without objection,

offici al recognition was taken by the undersigned of the

following: Chapter 373, Florida Statutes; Florida

Administrative Code Chapters 40E - 4 and 40E - 8; the BOR; the

Central and Southern Florida Comprehensive Review Study, which

the parties referred to as the Y ellow Book; consent judgment in

condemnation proceedings between the District and the Palm Beach

Aggregates brought in circuit court in Palm Beach County bearing

Case No. CA 03 0336AN; and consent judgment in condemnation

proceedings between the District a nd the Palm Beach Aggregates

brought in circuit court in Palm Beach County bearing Case

No. 502004 000669 MB AN.

A Transcript of the proceedings was filed on November 8,

2004. Each party filed a Proposed Recommended Order, all of

which have been duly - co nsidered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

THE PARTIES

1. The Florida Wildlife Federation, Audubon Society of the

Everglades, and Jupiter Farms Environmental Council, Inc. (d/b/a

Loxahatchee River Coaliti on) are not - for - profit corporations in

existence prior to 2003 with more than 25 members in Palm Beach

County. Palm Beach County Environmental Coalition was formed in

1997 and is a private, county - wide, non - profit citizen’s

organization. Ms. Ketter, Mr. Bell, Ms. Larson, and

Mr. Christensen are individuals affected by the proposed BRP.

The Respondents stipulated that the parties who remained

Petitioners after Mr. Silver’s withdrawal as a Petitioner have

standing to bring this proceeding.

2. The Distri ct, a public corporation existing by virtue

of Chapter 25270, Laws of Florida, 1949, operates pursuant to

Chapter 373, Florida Statutes, and Title 40E, Florida

Administrative Code, as a multipurpose water management district

with its principal office in We st Palm Beach, Florida.

3. The County is a duly - constituted governmental entity.

THE PROJECT SITE AND ADJACENT LANDS

4. The site of the project is generally referred to as the

Mecca Farms, which is a contiguous tract of 1,919 acres of land.

At present, the Mecca Farms is used for farming and mining

operations. There presently exists a permitted, SWM system on

the Mecca Farms that was first permitted in 1979, and has been

modified from time to time since then. The existing SWM system

includes 73 acres of ditches and a 272 - acre above - ground

impoundment area.

5. The Mecca Farms site is located within the C - 18 Basin.

6. There are no jurisdictional wetlands or delineated

surface waters on the Mecca Farms.

7. The following, which is taken from the S taff Report

(SFWMD Ex. 1), accurately describes the project site and its

adjacent lands:

The project site consists of 1,919 acres

presently supporting an active orange grove

with approximately 73 acres of associated

drainage and irrigation ditches/canals and a

30 - acre active sand mining operation. The

ditches/canals are presently maintained at

an elevation of approximately 17 feet

NGVD.[ 3 ] These ditches/canals provide

drainage conveyance to a 272 - acre above -

ground impoundment located in the northeast

co rner of the site utilizing four (4) 22,000

gpm pumps. The above - ground impoundment

discharges to the west leg of the C - 18 Canal

via gravity discharge. Project site ditches

and canals also connect directly to the C - 18

Canal through an 18,000 gpm pump. An

additional 224 - acre agricultural area east

of the 1,919 acres of orange groves is

connected to and drains into the canal/ditch

system on the project site. This adjacent

area was leased from the adjacent land owner

by the grove owner for use as row crops and

was connected to the grove canal/ditch

system for better control of drainage and

irrigation. The area is no longer used for

row crops. There is also a small area on

the site that contains caretaker housing and

an equipment maintenance building for th e

orange groves. These facilities were

originally permitted in 1979 under Surface

Water Management Permit No. 50 - 00689 - S and

subsequent modifications. The citrus grove

and primary drainage facilities have been in

existence since the 1960s.

The Hungryla nd Slough is located north of

the project site, separated from the project

site by the C - 18 Canal. This area is

comprised primarily of publicly - owned

natural areas, including an area referred to

as Unit 11, which is owned in the majority

by Palm Beach Cou nty. To the west is the

J.W. Corbett Wildlife Management Area (CWMA)

owned and managed by the Florida Fish and

Wildlife Conservation Commission (FFWCC).

To the east, a large area of low - intensity

agricultural land exists under the ownership

of Charles Va vrus and within the City of

Palm Beach Gardens. These lands contain

extensive wetlands that are adjacent to the

Loxahatchee Slough to the east. The

Acreage, a low - density residential area, is

located directly to the south of the project

site. The only a ccess to the site at this

time is an unpaved extension of Seminole

Pratt - Whitney Road (SPW), connecting the

site at its southwestern corner to the

Acreage.

THE PROPOSED PROJECT

8. The subject application is for conceptual approval of

the SWM system for the BRP and for construction and operation of

Phase 1A of the project. All of the proposed Phase 1A

construction will occur on the Mecca Farms site.

9. The following, taken from the Staff Report, accurately

describes the proposed project:

The [BRP] is a phased multiple use

development planned for approximately 1,919

acres and will consist of land uses related

to science and technology, biotechnology,

biomedical, and other related research and

development industries and manufacturing.

Additionally, pro posed support and

complementary land uses include educational,

institutional, residential, commercial, and

recreational facilities, along with

utilities and a large created natural area.

THE PROPOSED SWM SYSTEM

10. The proposed SWM system will consist of several

interconnected lakes that will provide wet detention for storm

water runoff from the property site and from 39 acres of off -

site flows from SPW Road and a proposed Florida Power and Light

(FPL) Substation. The lakes will collect, store, and treat the

runoff. The storm water will pass through the lakes, through a

247 - acre area referred to as the “Natural Area” (which will be

created as part of the mitigation plan), and discharged to the

C - 18 Canal. To provide additional water quality treatment,

t hese lakes will include planted littoral zones and the southern

lake will include a filter marsh.

11. The Natural Area will, in subsequent construction

phases, be constructed on the western boundary of the Mecca site

with discharge to the C - 18 canal, wh ich is adjacent to the

northern boundary of the Mecca Farms. The southern boundary of

the Natural Area will be the north boundary of the lake that is

to be constructed on the southern end of the property. This is

the area that is available for use as a f low - way (which will be

discussed in greater detail in a subsequent section of this

Recommended Order). The Natural Area will be a wetland type

system that will move water slowly through that system providing

additional storage and water quality benefits p rior to

discharging through a gravity control structure into the C - 18

Canal.

12. The C - 18 Canal discharges to either the Northwest or

Southwest Fork of the Loxahatchee River, depending on how

structures are operated downstream. Discharges travel in the

C - 18 Canal for approximately nine miles before reaching the

Loxahatchee River.

13. The existing SWM system for the Mecca Farms currently

discharges to the C - 18 Canal, as will the proposed SWM system.

The proposed project will not discharge to the C WMA or the

Hungryland Slough. The Grassy Waters Preserve and the

Loxahatchee Slough are several miles from the project site and

will not be affected by the project’s proposed activities.

14. The following, which is taken from the Staff Report,

accuratel y describes the proposed SWM system.

The proposed conceptual surface water

management system which will serve the

1,919 - acre site will consist of site

grading, storm water inlets and culverts

which will direct all runoff to a series of

interconnected l akes for water quality

treatment and attenuation of the peak runoff

rate. Pumps will control the runoff rate

from the developed site into the adjacent

onsite BRP natural area. The BRP natural

area will discharge into the C - 18 canal via

a gravity control structure. The system has

been designed to accommodate 39 acres of

off - site flows from SPW [Road] and a

proposed Florida Power and Light (FPL)

Substation. The existing control elevation

of the citrus grove is 17.0’ NGVD. The

proposed control elevations are 18.0’ NGVD

for the developed area and 19.0’ NGVD for

the natural area. The control elevations

are being raised to provide a “step down” of

water elevations from wetlands to the north,

west and east of the site (20.5’ to 21.0’)

to lower elevations to t he south (17.0’).

PHASE 1A CONSTRUCTION

15. The following, which is taken from the Staff Report,

accurately describes the proposed Phase 1A construction:

The Phase 1A construction activities will

allow the applicant to proceed with lake

excavation, cl earing and site grading of 536

acres in the southern portion of the site.

No permanent buildings or parking areas are

proposed at this time. Stormwater from

Phase 1A and the remainder of the site, to

remain in agricultural use, will be treated

in the Pha se 1A lakes and then pumped into

the existing impoundment for additional

water quality treatment and attenuation

prior to discharging to the west leg of the

C - 18 Canal via the existing weir structures.

The existing 18,000 gpm pump that connects

the on - sit e ditches and canals directly to

the C - 18 Canal will remain, but will only be

used if the impoundment is full. (See

Special Condition No. 21). Approval of

Phase 1A authorizes the use of the existing,

previously permitted surface water

management faciliti es, therefore, the

previous permit no. 50 - 00689 - S is superceded

by this permit.

The 224 acre agricultural area east of the

existing grove that is connected to the

grove canal/ditch system will be severed as

part of Phase 1A. The pipe connecting this

a rea will be removed and portions of the

berm around this area will be regraded so

the area will sheetflow into the adjacent

pasture land’s canal/ditch system as it did

previously [sic] to being connected to the

grove system.

16. Of the 536 acres involv ed in the Phase 1A

construction, 87 acres will become lake bottom and 449 acres

will remain pervious area, subject only to grading.

CONCEPTUAL APPROVAL

17. Pertinent to this proceeding, Florida Administrative

Code Rule 40E - 4.021(5) defines the term “con ceptual approval” to

mean an ERP issued by the District which approves a conceptual

master plan for a surface water management system or a

mitigation bank.

18. Florida Administrative Code Rule 40E - 4.305, pertains

to conceptual approvals and provides, in relevant part, as

follows:

(1) Conceptual approvals constitute final

District action and are binding to the

extent that adequate data has been submitted

for review by the applicant during the

review process.

(2) A conceptual approval does not

author ize construction, alteration,

operation, maintenance, removal, or

abandonment of a surface water management

system or the establishment and operation of

a mitigation bank.

* * *

(4) For phased projects, the approval

process must begin with an app lication for a

conceptual approval which shall be the first

permit issued for the project. An

application for construction authorization

of the first phase(s) may also be included

as a part of the initial application. As

the permittee desires to construc t

additional phases, new applications shall be

processed as individual or standard general

environmental resource permit applications

pursuant to the conceptual approval. The

conceptual approval, individual and standard

general permits shall be modified i n

accordance with conditions contained in

Chapters 40E - 4 and 40E - 40, F.A.C.

(5) Issuance of a conceptual approval

permit pursuant to Chapter 40E - 4, F.A.C.,

shall not relieve the applicant of any

requirements for obtaining a permit to

construct, alter, o perate, maintain, remove,

or abandon a surface water management system

or establish or operate a mitigation bank,

nor shall the conceptual approval permit

applicant be relieved of the District’s

informational requirements or the need to

meet the standards of issuance of permits

pursuant to Chapters 40E - 4 or 40E - 40,

F.A.C. . . .

PERMITTING CRITERIA

19. In order to obtain an ERP, an applicant must satisfy

the conditions for issuance set forth in Florida Administrative

Code Rules 40E - 4.301 and 40E - 4.302. T he conditions for issuance

focus on water quantity criteria, environmental criteria, and

water quality criteria.

20. Florida Administrative Code Rule 40E - 4.301 contains

the following permitting conditions applicable to this

proceeding:

(1) In order t o obtain a standard

general, individual, or conceptual approval

permit ... an applicant must provide

reasonable assurance that the construction,

alteration, operation, maintenance, removal,

or abandonment of a surface water management

system:

(a) will n ot 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 by wetlands and other

surface waters;

(e) will not adversely affect the quality

of receiving waters ...;

(f) will not cause adverse secondary

impact s to the water resources;

(g) will not adversely impact the

maintenance of surface or ground water

levels or surface water flows ...;

(h) will not cause adverse impacts to a

work of the District ...;

(i) will be capable, based on generally

accepte d engineering and scientific

principles, of being performed and of

functioning as proposed;

(j) will be conducted by an entity with

the sufficient financial, legal and

administrative capability to ensure that the

activity will be undertaken in accordanc e

with the terms and conditions of the permit,

if issued; and

(k) will comply with any applicable

special basin or geographic area criteria

established in Chapter 40E - 41 F.A.C.

21. Florida Administrative Code Rule 40E - 4.302 provides

the following Addi tional Conditions for Issuance of Permits

applicable to this proceeding:

(1) In addition to the conditions set

forth in section 40E - 4.301, F.A.C., in order

to obtain a standard general, individual, or

conceptual approval permit under this

chapter or Cha pter 40E - 40, F.A.C., 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 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 as set forth in subsections 4.2.3

through 4.2.3.7 of the Basis of Review for

Environmental Resource Permit Applications

Within the South Florida Water Management

District:

(1) Whether the activity will adversely

affect the public health, safety or welfare

or the property of others;

(2) Whet her 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 shoa ling;

(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 adve rsely

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 set forth in subsections

4.2.8 through 4.2.8.2 of the Basis of

Review. . . .

THE BASIS OF REVIEW

22. The District has adopted the BOR and incorporated it

by re ference by Florida Administrative Code Rule 40E -

4.091(1)(a). The standards and criteria found in the BOR are

used to determine whether an applicant has given reasonable

assurances that the conditions for issuance of an ERP have been

satisfied. Section 1. 3 of the BOR provides, in part, as

follows:

. . . Compliance with the criteria

established herein [the BOR] constitutes a

presumption that the project proposal is in

conformance with the conditions for issuance

set forth in Rules 40E - 4.301 and 40E - 4.302,

F.A.C.

WATER QUANTITY

23. The term “control elevation” describes the level of

freshwater water bodies established by a SWM system. The

existing SWM system has a control elevation of 17’ NGVD. The

control elevation for the proposed lake system will be raised to

18’ NGVD, and the control elevation for the proposed Natural

Area will be raised to 19’ NGVD. Raising the control elevations

will permit more treatment of storm water prior to discharge and

will permit a more controlled discharge. In addition, raising

the control elevation will lessen seepage onto the project site

from adjacent wetlands.

24. The Applicants provided reasonable assurances that the

proposed project will not cause adverse water quantity impacts

to receiving waters and adjacent la nds, thereby satisfying the

criteria set forth in Florida Administrative Code Rule 40E -

4.301(a).

25. The Applicants provided reasonable assurances that the

proposed project will not cause adverse flooding to on - site or

off - site property, thereby satisfyi ng the criteria set forth in

Florida Administrative Code Rule 40E - 4.301(b).

26. The Applicants provided reasonable assurances that the

proposed project will not cause adverse impacts to existing

surface water storage and conveyance capabilities, thereby

s atisfying the criteria set forth in Florida Administrative Code

Rule 40E - 4.301(c).

VALUE OF FUNCTIONS OF WETLANDS AND SURFACE WATERS

27. Florida Administrative Code Rule 40E - 4.301(d),

requires the Applicants to establish that “. . . the

construction, alte ration, operation, maintenance, removal, or

abandonment of a surface water management system . . .” “. . .

will not adversely impact the value of functions provided to

fish and wildlife and listed species by wetlands and other

surface waters.” The Distric t established that the term “value

of functions,” as used in the rule, refers to habitat and life

support functions. Because there are no wetlands or delineated

surface waters on the Mecca Farms site, there are no direct

adverse impacts to the functions t hat wetlands provide to fish

and wildlife. The Applicants have provided reasonable

assurances to demonstrate that the value of functions provided

to fish and wildlife and listed species by wetlands and other

surface waters will not be adversely affected.

28. The existing project site does not contain nesting

areas for wetland - dependent endangered or threatened wildlife

species or species of special concern. The potential for use of

the existing project site for nesting by such species is

minimal. The existing project site does contain habitat for the

American Alligator and foraging habitat for wading birds and

birds of prey.

29. The primary foraging habitat on the existing site is

around the perimeter of the existing 272 - acre impoundment area

in the northeast portion of the site. The existing impoundment

will be replaced by on - site storm water treatment lakes and the

BRP Natural Area that will have shallow banks planted with

wetland plant species common to the area. Wildlife is

opportunistic; and w ading birds commonly feed in areas where

there is water, wetland vegetation and wetland plants. The end

result will be that the proposed project will have more and

better foraging habitat acreage than the existing site.

30. The Natural Area will provid e a wetland buffer between

the developed area and CWMA that will prevent any adverse

impacts both to the wetlands and other surface waters in CWMA

and to the value of the functions those wetlands and other

surface waters provide to fish, wildlife, and list ed species.

31. The Natural Area will provide a wetland buffer between

the developed area and Unit 11 that will prevent any adverse

impacts both to the wetlands and other surface waters in Unit 11

and to the value of the functions those wetlands and oth er

surface waters provide to fish, wildlife, and listed species.

32. There was no competent evidence that the proposed

project would impact the ability of the Florida Fish and

Wildlife Conservation Commission to manage the CWMA through

control burns or o therwise, thereby adversely affecting the

diversity or abundance of fish and wildlife (including

endangered species and their habitats).

33. Petitioners attempted to raise the issue of mosquito

control in their Petitions and at the Final Hearing. The

all egations pertaining to mosquito control were struck by the

District and Special Condition Number 26 was added before the

Petitions were referred to DOAH. Petitioners made no attempt to

amend their Petitions and have not challenged Special

Condition 26. T he Addendum to Staff Report (SFWMD Ex. 2)

contains the following Special Condition Number 26: “Upon

submittal of an application for construction of any buildings,

the permittee shall submit a mosquito control plan for review

and approval by District Staff .” Since there will be no

buildings containing people or other facilities which would

encourage the use of mosquito spraying, it is appropriate for

the mosquito control condition to apply to only future phases of

construction.

34. There was no competen t evidence of impacts

attributable to pesticides associated with the application for

the SWM system or for Phase 1A construction and operation that

would adversely affect the diversity or abundance of fish and

wildlife including endangered species and the ir habitats.

35. The Applicants have satisfied the criteria set forth

in Florida Administrative Code Rule 40E - 4.301(d).

WATER QUALITY

36. The primary concern during Phase 1A construction will

be erosion control. Best Management Practices (“BMPs”) are

op erational and design elements used to either eliminate or

reduce the amount of pollutants at the source so they do not get

into a SWM system or move downstream. To contain erosion in

Phase 1A, the Applicants will use the following BMPs:

Silt screens and turbidity barriers within

existing ditches and around the perimeter of

property.

Planned construction sequencing to reduce

movement and stock piling of material;

Slope stabilization and seeding or sodding

of graded areas; and

Containment of constru ction materials with

berms.

37. All erosion and turbidity control measures will remain

in place until the completion of the on - site construction and

approval by the District’s post - permit compliance staff.

38. The Applicants provided reasonable assu rances that the

proposed Phase 1A construction activities will not adversely

impact the quality of receiving waters and that those activities

will not violate State water quality standards.

39. Section 5.2.1, BOR, requires that a SWM system provide

wet d etention for the first one inch of runoff. The proposed

SWM system will provide wet detention for one and one - half

inches of runoff.

40. The Applicants provided reasonable assurances to

demonstrate that the technical criteria in the BOR will be met.

Under Section 1.3 of the BOR, compliance with the criteria in

the BOR constitutes a presumption that the Proposed Project is

in conformance with the conditions for issuance. This

presumption was not rebutted by the Petitioners.

41. The lake system will include planted littoral zones to

provide additional uptake of pollutants. A filter marsh is also

included in the southern lake. All of the storm water runoff

from the lakes will pass through the filter marsh, which will be

planted with wetland plants. The filter marsh will provide

additional polishing of pollutants, uptake, and filtering

through the plants. The discharge will then go into the BRP,

which will provide the discharge additional uptake and

filtering.

42. BMPs utilized during the Operatio ns and Maintenance

phase will include regular maintenance inspections and cleaning

of the SWM system, street - sweeping, litter control programs,

roadway maintenance inspections and repair schedule, municipal

waste collection, pollution prevention education programs,

pesticides, herbicides and fertilizer storage, and application

training and education. The littoral zones, filter marsh, BRP

natural area, and BMPs were not included in the water quality

calculations and are over and above rule requirements.

4 3. The Applicants provided reasonable assurances to

demonstrate that the proposed project will not adversely affect

the quality of receiving waters. Therefore, Rule 40E -

4.301(1)(e), F.A.C., will be satisfied and water quality

standards will not be violat ed.

HAZARDOUS SUBSTANCES

44. Pursuant to Section 5.5.5 of the BOR, commercial or

industrial zoned projects shall provide at least one - half inch

of dry detention or retention pretreatment as part of the

required retention/detention, unless reasonable assur ances can

be offered that hazardous materials will not enter the project's

SWM system. The Addendum to Staff Report reflects the following

Special Condition 25 pertaining to hazardous materials:

Upon submittal of an application for

construction of comme rcial or industrial

uses the permittee shall submit a plan that

provides reasonable assurances that

hazardous materials will not enter the

surface water management system pursuant to

the requirements of section 5.2.2(a) of the

Basis of Review.

45. Appli cable permitting criteria does not require the

Applicants to present a hazardous substances plan at this point

because no facilities that will contain hazardous materials are

part of the Phase 1A construction.

SECONDARY IMPACTS

46. Florida Administrative Code Rule 40E - 4.301(1)(f) and

Section 4.1.1(f) of the BOR, require an applicant to provide

reasonable assurances that the proposed activities will not

cause adverse secondary impacts to the water resources. A

secondary impact is an indirect effect of a p roject resulting in

adverse effects to wetlands or other surface waters. The

District considers those adverse effects that would not occur

"but for" the activities that are closely linked and causally

related to the activity under review. This standard i s

discussed further in the Conclusions of Law section of this

Recommended Order.

47. The County’s Exhibit 3 is a secondary impact analysis

identifying the secondary impacts that may potentially result

from the proposed project. These impacts are: 1) t he widening

of SPW Road; 2) the construction of an FPL substation; 3) the

extension of PGA Boulevard; and 4) the potential relocation of a

runway at North County Airport.

48. The secondary impact analysis performed pursuant to

the Uniform Mitigation As sessment Method (UMAM) contained in

Florida Administrative Code Chapter 62 - 345 reflects that up to

153.3 acres of wetlands may be partially or completely impacted

by these secondary impacts, resulting in approximately 71.21

units of functional loss. Where future activities are expected

to directly impact wetlands, secondary impacts were assessed

based on the loss of all current functional value within the

direct footprint of that activity. Additionally, an assessment

was conducted to determine the degree of partial functional loss

where impacts beyond the footprint of these activities are

anticipated.

49. SPW Road is an existing dirt road which is in the

County's five - year road plan to widen as a four - lane paved road.

Because the widening of the exis ting dirt road to a four - lane

paved road is part of the five - year road plan, the impacts of

that widening are not attributable to the subject project.

However, as part of the proposed project, it is proposed to

widen SPW Road to a six - lane paved road. Th e additional impacts

associated with the widening from four to six lanes will be

caused by, and are linked to, the proposed project. These

impacts amount to approximately 2.2 acres.

50. The FPL substation, which is proposed to service the

proposed proje ct, may result in 1.6 acres of potential direct

impacts to wetlands. In addition, 1.0 acre of potential

indirect secondary impacts may occur to wetlands that are not

going to be dredged and filled. Those indirect secondary

impacts may have some adverse impact on the functional value to

those wetlands for wildlife utilization.

51. The extension of PGA Boulevard to the Mecca Farms site

has the potential to result in 45.6 acres of direct impacts to

wetlands and 56.6 acres of indirect secondary wetland i mpacts

which will not be dredged or filled, but will be in close

proximity to the road. The secondary impact assessment for PGA

Boulevard assumed the incorporation of wildlife crossings to

minimize habitat fragmentation.

52. If the airport runway needs to be shifted, potential

direct wetland impacts to an additional 22.7 acres may occur.

Indirect impacts to 23.6 acres of wetlands in close proximity

could also occur. Runway relocation may or may not be necessary

due to the PGA Boulevard extension; howe ver, the analysis

assumed the need for the relocation.

53. Each of the projects listed above as potential

secondary impacts will require a separate construction and

operation permit from the District. The issuance of this permit

does not in any way gua rantee the issuance of permits for any of

these identified potential secondary impacts.

MITIGATION PLAN

54. The Applicants provided a conceptual mitigation plan

using UMAM to demonstrate how potential secondary impacts could

be offset. Mitigation opt ions have the potential to provide

more than twice the functional gain than the functional loss

from the identified secondary impacts.

55. The conceptual mitigation options include:

194 acres of the land that had been

acquired for future mitigation n eeds in Unit

11.

227 acres of the BRP natural area.

32.6 acres in the southern lake wetland

along with proposed upland habitat.

56. Sufficient mitigation is available in these options to

offset the potential secondary impacts.

57. The mitiga tion for the four potential secondary

impacts is not required to be implemented now because the

impacts are not occurring now. Section 4.2.7 of the BOR

requires that the District consider those future impacts now and

that a conceptual mitigation plan be p rovided to demonstrate and

provide reasonable assurances that those impacts, in fact, can

be offset in the future.

58. The Governor and Cabinet sitting as the Board of

Trustees considered and approved a request for public easement

of approximately 30 ac res to use a portion of CWMA for SPW Road,

an FPL substation, and the land area that may be needed by

District in the future for the connection to the flow - way. As

consideration in exchange for the public easement over 30 acres,

the County will transfer f ee simple title of 60 acres to the

State.

59. This public easement also provides a benefit for CERP

as it includes the small portion that the District is going to

need for its future CERP project to connect to the flow - way on

the proposed project site.

60. The Applicants provided reasonable assurances that

mitigation will offset secondary impacts to wetlands and other

surface waters.

UNIDENTIFIED SECONDARY IMPACTS

61. Testimony at the final hearing raised a question as to

whether there is nesting or r oosting by listed wading bird

species in adjacent off - site wetlands outside the eastern

boundary of the project site. Evidence was inconclusive on

nesting or roosting in these areas.

62. Because the status of adjacent listed wading bird

nesting or roos ting is uncertain, the District suggested in its

Proposed Recommended Order that a special condition requiring a

wildlife survey prior to construction near the eastern project

boundary be added to the permit as follows:

Prior to application for constru ction

within 1000 feet of the eastern boundary of

the above - ground impoundment, the applicant

shall conduct a wildlife survey to identify

any nesting or roosting areas in the

adjoining off - site wetlands utilized by

listed species of wading birds. If such

nesting or roosting areas are found the

permittee shall, if determined necessary by

the District, incorporate additional buffers

or other appropriate measures to ensure

protection of these wetland functions.

63. The District represented in its Propo sed Recommended

Order that the County has no objection to adding the foregoing

condition.

CUMULATIVE IMPACTS

64. Pursuant to Section 373.414(8), Florida Statutes, the

District is required to consider cumulative impacts upon

wetlands and other surface wat ers delineated in Section

373.421(1), Florida Statutes, within the same drainage basin.

Cumulative impacts are the summation of unmitigated wetland

impacts within a drainage basin. The cumulative impact analysis

is geographically based upon the drainage basins described in

Figure 4.2.8 - 1 of the BOR. Cumulative impacts are unacceptable

when they would result in unacceptable adverse impacts to the

functions of wetlands and surface waters within a drainage

basin.

65. There are no wetlands or other surfac e waters

delineated pursuant to Section 373.421(1), Florida Statutes, on

the Mecca Farms site. Therefore, no cumulative impacts are

created by the direct impacts of the project.

66. Cumulative impacts may be created by a project's

secondary impacts. I f a wetland impact has been appropriately

mitigated on - site within the drainage basin, there is no

residual impact, and therefore no cumulative impact.

67. The PGA Boulevard extension, a portion of the SPW Road

widening, and the airport runway relocat ion are located within

the C - 18 Basin. The proposed mitigation options are all located

in the C - 18 Basin and will offset those impacts. Those

potential secondary impacts are considered to meet the

cumulative impact requirements of Section 373.414(8), Flo rida

Statutes. The Applicants provided reasonable assurances that

the proposed project will not result in cumulative impacts to

the C - 18 Basin.

68. The FPL substation is located within the L - 8 Drainage

Basin. The majority of the SPW Road expansion is lo cated within

the C - 18 Basin, but a portion is located on the basin line

between the C - 18 Basin and the L - 8 Basin. Because the

mitigation for the L - 8 impacts are proposed in a different

basin, the Applicants were required to conduct a cumulative

impact ana lysis for the L - 8 Basin impacts. Based on the Florida

Land Use Cover Classification System, there are 43,457 acres of

freshwater wetlands within the L - 8 Basin. Approximately 41,000

acres of the wetlands in L - 8 Basin are in public ownership.

This total c onstitutes approximately 95 percent of all the

wetlands in the L - 8 Basin. Public ownership of these wetlands

provide a high level of assurance that these lands will be

protected in perpetuity. The Respondents established that

proposed mitigation can full y offset the potential impacts from

the SPW Road expansion and the FPL substation and the

approximately four acres of impacted wetlands in the L - 8 Basin.

The Applicants provided reasonable assurances that there are no

unacceptable adverse cumulative impac ts on the L - 8 Basin. 4

GROUND WATER FLOWS, SURFACE WATER FLOWS, AND

MINIMUM FLOWS AND LEVELS

69. Florida Administrative Code Rule 40E - 4.301(1)(g)

requires an applicant to provide reasonable assurances that the

proposed activity will not adversely impact th e maintenance of

surface or ground water levels or surface water flows

established pursuant to Section 373.042, Florida Statutes.

70. The term "maintenance of surface and groundwater

levels or surface water flows" in Florida Administrative Code

Rule 40E - 4.301(1)(g) means that a project will not adversely

impact the maintenance of surface water flows that contribute to

meeting the minimum flow for the water body. An adverse impact

to the maintenance of surface or groundwater levels or surface

water flows may occur when a project discharging to a water body

with a designated minimum flow level is proposed to be diverted.

71. An analysis was done to compare the peak discharge

rate from the existing SWM system on the Mecca Farms site with

the projected pe ak discharge rate from the proposed SWM system.

The analysis showed that the peak discharge rate under the

proposed system will be less than that of the existing system.

That result was expected since the proposed system will have

higher control elevatio ns, which, as noted above, will provide

better treatment and permit a better control of the discharge

into the C - 18 Canal. Under the existing SWM system, storm event

water in a dry period is frequently stored in the existing

impoundment for future irrigat ion purposes. Under the proposed

SWM system such storm event water will be discharged downstream,

which will benefit those downstream areas during dry periods.

The proposed system will also provide better control over pulse

discharges during heavy storm events.

72. The Applicants provided reasonable assurances that the

proposed activities will not adversely impact the maintenance of

surface or ground levels or surface water flows as required by

Florida Administrative Code Rule 40E - 4.301(1)(g).

THE DIST RICT’S OBJECTIVES

73. Sections 373.414 and 373.416, Florida Statutes,

require an applicant to provide reasonable assurances that a

regulated activity will not be harmful to the water resources

and will not be inconsistent with the overall objectives of t he

District.

74. Congress initially authorized the Central and Southern

Florida (“C&SF”) Project in 1948. Thereafter extensive work was

undertaken pertaining to flood control; water supply for

municipal, industrial, and agricultural uses; prevention of

saltwater intrusion; and protection of fish and wildlife. The

work included construction of a primary system of 1000 miles

each of levees and canals, 150 water - control structures, and 16

major pump stations. Unintended consequences of the C&SF

Project h ave included the irreversible loss of vast areas of

wetlands, including half of the original Everglades; the

alteration in the water storage, timing, and flow capacities of

natural drainage systems; and the degradation of water quality

and habitat due to o ver - drainage or extreme fluctuations in the

timing and delivery of fresh water into the coastal wetlands and

estuaries.

75. In 1992, Congress authorized the C&SF Project

Comprehensive Review Study, which is generally referred to as

the “Restudy.” The ob jective of the Restudy was to reexamine

the C&SF Project to determine the feasibility of modifying the

project to restore the South Florida ecosystem and provide for

the other water - related needs of the region, such as water

supply and flood protection.

7 6. In April 1999, the U.S. Army Corps of Engineers issued

the Central and Southern Florida Project Comprehensive Review

Study Final Integrated Feasibility Report and Programmatic

Environmental Impact Statement (“Restudy Report”). The Restudy

Report recom mends a comprehensive plan for the restoration,

protection, and preservation of the water resources of Central

and South Florida. The resulting plan is known as CERP.

77. The North Palm Beach County Part I project, which

includes restoration of the Nor thwest Fork of the Loxahatchee

River (“NWFLR”), is a component of CERP.

78. The successful completion of CERP and the successful

restoration of the NWFLR are high - priority objectives of the

District.

79. The Loxahatchee River is an important feature of the

South Florida ecosystem, nationally and internationally unique,

and an important natural and economic resource. Rules

pertaining to MFL for the NWFLR and for the recovery of the

NWFLR are found at Florida Administrative Code Rule 40E - 8.011;

40E - 8.2 21(4); and 40E - 8.421. Recovery goals, which are not

presently being met, have been established; and strategies to

meet those goals have been identified.

80. The Mecca Farms site is located within the boundaries

of the CERP North Palm Beach County Par t I project and has the

potential to affect CERP and the restoration of the NWFLR.

81. Projects that potentially would affect or would be

within or adjacent to a CERP project are evaluated on a case - by -

case basis to determine whether a proposed project wo uld not be

inconsistent with CERP and other District objectives.

82. There was a dispute between Respondents and

Petitioners as to whether the proposed project was inconsistent

with the District’s objectives, including CERP and its goals

pertaining to t he restoration of the NWFLR. Petitioners contend

that the District has insufficient evidence that the Mecca Farms

will not be needed for the construction of a reservoir. That

contention is rejected. The greater weight of the credible

evidence establishe d that sufficient storage is available at a

superior site known as the Palm Beach Aggregates (PBA) site in

the L - 8 Basin, which is a unique geological site that will

provide in - ground storage of water. 5

83. Water from the PBA storage site can be conveye d to the

NWFLR to increase dry season flows. Water can be stored at the

PBA site in the wet season to prevent potentially damaging high

flows.

84. The L - 8 Basin, which is adjacent to the C - 18 Basin,

receives more water during the wet season than it use s. This

means that at present a significant amount of water must be

discharged to tide (lost) during the wet season to provide for

flood protection in this area.

85. As envisioned, the water currently lost to tide could

be stored at the PBA site for us e during the dry season. By

combining the water storage in the L - 8 Basin with connective

flow - ways to the C - 18 Canal, water demands within the C - 18

Basin, including the NWFLR, can also be met by the PBA storage

site. 6 An increase in freshwater flows to t he NWFLR will further

the District’s restoration goals for the NWFLR.

86. Storage at PBA has regional benefits for other

significant natural areas because it will provide additional

flows to the Loxahatchee Slough and Grassy Waters Preserve.

Those addi tional flows will further the District’s CERP goals.

87. Since October of 2003, County staff and the District’s

ERP staff have coordinated review of the subject project with

the District’s CERP Planning and Federal Projects Division and

other District s taff working on projects in this region. The

County asked the District to determine if the Mecca Farms’ site

could in some way accommodate CERP objectives, and three

alternatives were considered: 1) no action; 2) a reservoir; and

3) a flow - way. As oppos ed to a reservoir, t he more valuable and

the more practical, use of the Mecca Farms site would be as part

of the system to convey the stored water to the areas that would

most benefit from its discharge. The proposed flow - way in the

BRP Natural Area would be an integral part of that conveyance

system and would provide the District with greater flexibility

in managing and directing the discharge of the water stored at

the PBA site.

88. Prior to the development of the flow - way concept as

part of the propos ed development, CERP identified a single route

to take water from PBA to the NWFLR. The flow - way will provide

an additional route from PBA to the NWFLR. That additional

route will provide the District with greater operational

flexibility. The flow - way w ill complement the L - 8 Basin flow -

way and help reduce peak flows to the NWFLR and the Estuary.

The flow - way also provides a potential route allowing excess

water to be brought back from the C - 18 Basin to the PBA site for

storage. There are no other poten tial routes that allow water

to be directed from the C - 18 Basin in the wet season to the PBA

site.

89. The flow - way provides a feature that was not part of

the CERP original plan and is therefore an unanticipated benefit

for CERP.

90. The Applicant s provided reasonable assurances that the

proposed project is not inconsistent with the District’s

objectives. 7

CONCLUSIONS OF LAW

91. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

consolidated proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

92. This is a de novo proceeding designed to formulate

final agency action. See Hamilton County Bd. of County Com’rs

v. State Dep’t. Environmental Reg. , 587 So. 2d 1378 (Fla. 1st

D CA 1991); Dep’t. of Transportation v. J.W.C., Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); and § 120.57(1)(k), Fla. Stat.

93. The Petitioners in DOAH Case No. 04 - 3084 argue that

the subject permits cannot be issued because the Applicants

failed to establis h either their interest in the Mecca Farms

site, whether that interest is by contract or deed. The

argument was not raised in the Petition filed in DOAH Case

No. 04 - 3084, nor was it argued by Petitioners at the final

hearing. The argument is rejected bec ause it fails to cite the

authority on which the argument is based and because such an

argument cannot be made for the first time in a Proposed

Recommended Order. See Fla. Admin. Code R. 28 - 106.201(2) and

Brookwood Extended Care Center of Homestead, L.L.P . v. Agency

for Health Care Admin. , 870 So. 2d 834 (Fla. 3d DCA 2003).

94. Petitioners alleged and attempted to present evidence

that the ERP should be denied because other alternate sites

existed that would in their opinions be better suited for the

BRP . The District does not have the authority to consider

alternative sites when reviewing an ERP Permit. Administrative

agencies are creatures of statute and can exercise only those

powers conferred by statute. See Ocampo v. Dep't of Health , 806

So. 2d 63 3 (Fla. 1st DCA 2002). The District possesses no

inherent power and can only do what it is authorized to do by

the Legislature. See State, Bd. of Trustees v. Day Cruise

Ass'n, Inc. , 794 So. 2d 696 (Fla. 1st DCA 2001). Consequently,

evidence of alternati ve sites was excluded on the grounds of

relevance.

95. Respondents have the burden to prove by a

preponderance of the evidence that the Applicants provided

reasonable assurances that the conceptual permit for the

proposed SWM system and the Phase 1A con struction are consistent

with applicable permitting criteria. Respondents also have the

burden to prove by a preponderance of the evidence that the

Applicants provided reasonable assurances that that the proposed

activity would not be inconsistent with th e overall objectives

of the District. See J.W.C. , supra , 396 So. 2d at 787.

96. A “preponderance” of the evidence means the greater

weight of the evidence. See Fireman's Fund Indemnity Co. v.

Perry , 5 So. 2d 862 (Fla. 1942). “Competent” evidence must be

relevant, material and otherwise fit for the purpose for which

it is offered. See Gainesville Bonded Warehouse v. Carter , 123

So. 2d 336 (Fla. 1960), and Duval Utility Co. v. FPSC , 380 So.

2d 1028 (Fla. 1980). "Substantial" evidence must be sufficien t

to allow a reasonable mind to accept the evidence as adequate to

support a conclusion. See Degroot v. Sheffield, 95 So. 2d 912

(Fla. 1957), and Agrico Chemical Co. v. Fla. Dept. of

Environmental Regulation, 365 So. 2d 759 (Fla. 1st DCA 1978).

97. The standard for an applicant's burden of proof is one

of reasonable assurances, not absolute guarantees, that the

applicable conditions for the issuance of a permit have been

satisfied.

98. Reasonable assurance contemplates a substantial

likelihood that t he project will be successfully implemented.

See Metropolitan Dade Co. v. Coscan Fla., Inc. , 609 So. 2d 644,

(Fla. 3d DCA 1992).

99. The issuance of a permit must be based solely on

compliance with applicable permit criteria. See Council of

Lower Keys v. Toppino , 429 So. 2d 67 (Fla. 3d DCA 1983).

100. If an applicant presents a prima facie showing of

entitlement, the burden shifts to the party opposing the

issuance of the permit to refute the prima facie showing by

competent evidence that reasonable assurances have not been

provided. Such evidence cannot be merely speculative.

101. With the exception of the unidentified secondary

impacts discussed in paragraphs 61, 62, and 63 of this

Recommended Order, it is concluded that the Applicants have

pro vided reasonable assurances that all applicable permitting

criteria set forth in Florida Administrative Code Rules 40E -

4.301 and 40E.4.302 and the BOR have been met.

102. There are no wetlands on the project site. The

ditches and impoundment on the pro perty were constructed for

storm water treatment and are operated solely for storm water

treatment as defined in Florida Administrative Code Rule 40E -

4.0515 under a valid permit issued pursuant to Florida

Administrative Code Rule 40E - 4. Consequently, Mecc a Farms’

surface waters are exempt from the specified review criteria set

forth in Florida Administrative Code Rule 40E - 4.0515.

103. Pursuant to Florida Administrative Code Rule 40E -

4.302(1)(f) and Section 4.1.1(f) of the BOR, an applicant must

conduct a secondary impacts analysis and must provide reasonable

assurances that the regulated activity “will not cause adverse

secondary impacts to water resources.” Secondary impacts are

generally described as impacts that occur outside the direct

footprint of th e project, but which are closely linked and

causally related to the activity to be permitted. A close cause

and effect relationship must exist between an alleged impact and

the project in order for it to be considered as a secondary

impact. There must be a "but for" relationship. Closely linked

and causally related means “but for this activity taking place,

this cause and effect would not occur.” The secondary impacts

test then, by its very definition, cannot be speculative or

consist of unproven allega tions. There must be a direct cause

and effect relationship. See del Campo v. State Department of

Environmental Regulation , 452 So. 2d 1004 (Fla. 1 st DCA 1984);

Deep Lagoon Boat Club, Ltd., v. Sheridan , 784 So. 2d 1140 (Fla.

2d DCA 2001); and Conservancy Inc. v. A. Vernon Allen Builder,

Inc., 580 So. 2d at 772, rev. denied. 591 So. 2d 631 (Fla.

1991).

104. Petitioners contend that potential future development

of the neighboring Vavrus property should be considered a

secondary impact of the proposed pro ject. Petitioners failed to

prove that contention by competent evidence. There was no

evidence that any potential development on the Vavrus property

will be closely linked and causally connected to the Scripps’

construction, and there was no evidence tha t future development

on the Vavrus property would not occur but for the construction

of the proposed project. If or when the Vavrus property is

developed, it will require its own ERP and other necessary

permits.

105. Evidence should be excluded as irre levant unless it

can be shown to be “very closely linked and causally related” to

measurable violations of state environmental standards. De

minimis or remotely related secondary impacts will not be

considered in the secondary impacts analysis. See Secti on

4.2.7, BOR.

106. Respondents established that secondary impacts were

appropriately analyzed. Pursuant to Section 4.2.7, BOR, if

secondary impacts cannot be prevented, the applicant may propose

mitigation to offset the impacts. Respondents established that

the proposed mitigation plan offers adequate mitigation to

offset these secondary impacts. The applicants therefore

provided the required reasonable assurances to establish that

the project will not result in adverse closely linked and

causally rela ted secondary impacts for which mitigation has not

been provided.

107. Cumulative impacts are those created by the

cumulative effects of similar future projects within the same

drainage basin. See Caloosa Property Owners' Ass'n., Inc. v.

Dep't of Envtl . Reg. , 462 So. 2d 523 (Fla. 1st DCA 1985).

108. Section 373.414(8)(a), Florida Statutes, provides:

The governing board . . . 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 . . . within the same

drainage basin . . .

109. Cumulative impacts are the sum of any adverse impacts

to wetlands and other surface waters attributable to the project

which have not been fully offset within a drainage ba sin,

including consideration of past impacts and reasonably

anticipated future impacts.

110. The four secondary impacts delineated in the Findings

of Fact section of this Recommended Order may affect wetlands or

other surface waters, and thus those must be considered under

the cumulative impact requirements of Section 373.414(8)(a),

Florida Statutes. No other cumulative impacts need to be

analyzed.

111. The cumulative impact analysis examines impacts

within the same drainage basin. All impacts, whet her direct or

secondary, will be fully offset by mitigation for the C - 18

basin. Consequently, there will be no cumulative impacts to the

C - 18 basin. See § 373.414(8)(b), Fla. Stat.

112. There remain secondary impacts in the L - 8 Basin that

were not off set by mitigation in that basin. The District’s

cumulative impacts analysis presumes that a particular basin (in

this case the L - 8 Basin) can tolerate only so much loss of

wetland function before there is a significant adverse basin

impact. If the impact s reach that level, they are considered

unacceptable. See Broward County v. Weiss , 2002 WL 31125094, 11

(DOAH). If a project’s cumulative impacts are unacceptable,

they must be reduced so that the impacts can be equitably

distributed among the applicant and prospective applicants, such

that there would not be significant adverse or unacceptable

cumulative impacts when the basin is fully developed.

113. Pursuant to Section 4.2.8.1, BOR, cumulative impacts

are considered unacceptable when the proposed sy stems considered

in conjunction with the past, present, and future activities

would result in a violation of state water quality standards or

significant adverse impacts to functions of wetlands or other

surface waters within the same drainage basin when c onsidering

the basin as a whole.

114. As the Findings of Fact indicate, two of the four

secondary impacts are located in the L - 8 Basin. The vast

majority of the wetlands in that basin are in public ownership.

Consequently, the District correctly concl uded that the

activities would not result in a violation of state water

quality standards or significant adverse impacts to functions of

wetlands or other surface waters within the same drainage basin

when the L - 8 Basin was considered as a whole.

115. Sec tion 373.414(1), Florida Statutes, requires

applicants to provide reasonable assurances that an “activity

in, on, or over surfaces water or wetlands, as delineated in

Section 373.421(1), Florida Statutes, is not contrary to the

public interest. The public interest test requires a

consideration and balancing of seven listed criteria.

116. The public interest test is limited in scope to only

the seven factors set forth in Section 373.414(1)(a), Florida

Statutes. The application of the public interest tes t does not

involve consideration of non - environmental factors other than

those expressly set forth in the statute such as navigation or

preservation of historical or archaeological resources.

Specifically, traffic concerns, congestion, quality of rural

li fe, and school overcrowding are not within the seven factors

contained in Section 373.414(1)(a), Florida Statutes. See Van

Wagoner v. Fla. Dep't of Transp. , 18 F.A.L.R. 2277, 2285 - 88 (DEP

1996).

117. Respondents established by competent and substantial

evidence that the four potential secondary impacts will not be

contrary to the public interest.

118. The Applicants provided reasonable assurances that

the proposed activities will not be inconsistent with the

objectives of the District as required by Sections 373.414(1)

and 373.416(1), Florida Statutes.

119. Section 373.414(1), Florida Statutes, does not

specify District objectives. The evidence established that a

high - priority objective of the District is the successful

implementation of CERP, whi ch includes goals pertaining to the

restoration of the NWFLR.

120. After the overall objectives of the District for a

specific geographic area are identified, the CERP project plans

must be examined to determine if the specific property covered

by the p ermit application is identified within or adjacent to

planned CERP components or CERP study areas.

121. The next step is then for the applicant to

demonstrate that the proposed activities are not inconsistent

with the overall objectives of the District .

122. Respondents met their burden of establishing that

reasonable assurances that the activities will not be

inconsistent with the overall objectives of the District had

been provided.

123. Petitioners did not refute the evidence that

reasonable assura nces have been provided.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that the District issue the subject ERP

for the conceptual approval of the SWM system for the BRP and

the Phase 1A construction a nd operation subject to the general

and special conditions set forth in the Staff Report and the

Amended Staff Report. It is further RECOMMENDED that the

District add the following special condition:

Prior to application for construction

within 1000 fee t of the eastern boundary of

the above - ground impoundment, the applicants

shall conduct a wildlife survey to identify

any nesting or roosting areas in the

adjoining off - site wetlands utilized by

listed species of wading birds. If such

nesting or roosting areas are found the

permittee shall, if determined necessary by

the District, incorporate additional buffers

or other appropriate measures to ensure

protection of these wetland functions.

DONE AND ENTERED this 3rd day of December, 2004, in

Tallahassee, Le on County, Florida.

S

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative H earings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of December, 2004.

ENDNOTES

1/ Unless othe rwise noted, all statutory references are to

Florida Statutes (2004) and all rule references are to the

version of the rule published in the Florida Administrative Code

as of the date of this Recommended Order.

2/ On September 17, 2004, a Notice of Hea ring was entered

scheduling these consolidated proceedings for formal hearing on

October 12, 2004. On September 29, 2004, a continuance was

granted (occasioned by the hurricanes that struck Florida), and

the consolidated cases were re - scheduled for the da tes

November 1 – 5, 2004. On October 28, 2004, the Petitioners in

DOAH Case No. 04 - 3084 filed their witness list, which included

Governor Jeb Bush and the individual members of the Palm Beach

County Commission. During a break in the formal hearing on

Nov ember 1, 2004, Mr. Silver asked the undersigned for subpoenas

for the witnesses he wanted to call. The undersigned informed

Mr. Silver that he should contact DOAH’s clerk’s office for

witness subpoenas. Mr. Silver also asked counsel for the County

to acc ept service of process on behalf of the individual

commissioners and to ask Gov. Bush to appear as a witness at the

formal hearing. Counsel for the County declined Mr. Silver’s

requests. On Tuesday, November 2, 2004, Mr. Silver informed the

undersigned t hat the DOAH subpoenas would have to be mailed to

him and that he would not have time to get the subpoenas from

DOAH before the formal hearing ended. Mr. Silver presented a

witness subpoena form that he had drafted with the request that

the undersign sign the subpoena. The undersigned declined the

request after informing Mr. Silver that the form he drafted was

legally incorrect. Mr. Silver thereafter requested that P - 84

Ex. 1, which purports to be the form Mr. Silver presented to the

undersigned on Novem ber 2, 2004, be marked and kept as a part of

the file of this proceeding in the event the matter is reviewed

on appeal. Mr. Silver offered no explanation as to why he did

not make any attempt to subpoena these witnesses on a timely

basis.

3/ This is an acronym for National Geodetic Vertical Datum.

4/ There was a dispute between the Respondents and the

Petitioners whether the Vavrus property should be considered as

part of the wetland cumulative impact analysis. The undersigned

concluded that the Va vrus property should not be considered as

part of that analysis. Although Vavrus is also located within

the C - 18 Basin and there is a strong likelihood that Vavrus will

be developed in a manner that shares BRP infrastructure and

complements the BRP develo pment, there is no pending ERP

application for Vavrus. The greater weight of the competent

evidence established that the potential Vavrus development is

not closely linked or causally connected to the proposed BRP

development.

5/ There was competent e vidence to support the District’s

conclusion that the PBA site would provide more and better

storage than an impoundment on the Mecca Farms site. There are

currently 47,000 acre - feet of existing storage capacity at the

PBA site. At most, only 15,000 acre - feet of storage would be

available in an impoundment at the Mecca Farms site. Because of

its unique geology, the subsurface movement of groundwater in

the immediate area of the PBA site is very low compared to most

areas of South Florida. This means tha t the water levels in the

PBA site can be lowered below sea level with minimal seepage.

Construction of an above - ground storage is very expensive since

elaborate seepage controls have to be utilized. There was no

evidence that any entity was prepared to pay the high cost of

constructing an impoundment on the Mecca Farms site. An above -

ground storage facility would lose more water to evaporation

than an in - ground facility.

6/ Other basins that may increase freshwater flows to the

Loxahatchee River are the C - 44 and Cypress Creek, Pal - Mar

Basins. Consequently, restoration of the River is not totally

dependent on flows or storage from the C - 18 or L - 8 Basins.

Natural storage areas in CWMA and in and around the Pal - Mar

Water Control District can supplemen t dry season flows to the

NWFLR.

7/ In reaching this finding, the undersigned has carefully

considered the testimony of Mr. Schweigart (a former District

administrator) and Mr. Zebuth (a former administrator with the

Florida Department of Environmental Protection). Both witnesses

are found to be highly credible and their testimony entitled to

great weight. Mr. Schweigart’s opinions were based largely on

his belief that the District should be able to force the

Applicants to look at alternative sites. While it may be

desirable from an administrator’s point of view for the District

to have that authority, the District, as an agency of the state,

has only the authority conferred upon it by the legislature,

which has not conferred upon the District the aut hority to

require the Applicants to propose alternate sites for their

proposed project. Mr. Zebuth found the modeling studies of MFL

relied upon by the District to be too preliminary to be of value

in reaching the conclusion that the Mecca Farms site was not

needed as a reservoir. Respondents’ witnesses adequately

explained how the modeling studies were utilized and established

that the District had a sufficient basis to make its decisions

as to the Mecca Farms site.

COPIES FURNISHED:

Susan Roeder Mar tin, Esquire

Douglas H. MacLaughlin, Esquire

South Florida Water Management District

3301 Gun Club Road

Mail Stop Code 1410

West Palm Beach, Florida 33406 - 3007

Marcy I. LaHart, Esquire

Mary I. LaHart, P.A.

711 Talladega Street

West Palm Beach, Florida 3 3405 - 1443

Susan Kennedy, Esquire

16343 Jupiter Farms Road

Jupiter, Florida 33478

Andrew McMahon, Esquire

Palm Beach County Attorney’s Office

Post Office Box 1989

West Palm Beach, Florida 33402

Lantana Farms

Lantana Farms Associates, Inc.

Post Office B ox 541779

Lake Worth, Florida 33454

Barry M. Silver, Esquire

1200 South Rogers Circle, Suite 8

Boca Raton, Florida 33487 - 5703

Frank E. Matthews, Esquire

Hopping, Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 323 14

Henry Dean, Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416 - 4680

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 these cases.