05-004308 Kevin Burkett vs. Osceola County, Habitat Restoration, Inc.; And South Florida Water Management District Status: Closed Recommended Order on Wednesday, August 9, 2006.

Summary: Petitioner lacks standing to challenge the proposed modification of an environmental resource permit because his alleged injury is too speculative. The permit applicants provided reasonable assurances that all applicable regulatory criteria had been met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEVIN BURKETT , )

)

Petitioner , )

)

vs. ) Case No. 05 - 4308

)

OSCEOLA COUNTY ; HABITAT )

RESTORATION, INC. ; AND SOUTH )

FLORIDA WATER MANAGEMENT )

DISTRICT , )

)

Respondent s. )

)

RECOMMENDED ORDER

A formal administrative hearing in this case was held on

March 14 and 15, 2006, in Orlando, Florida, before Bram D. E.

Canter, an Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APP EARANCES

For Petitioner: Eric T. Olsen, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

For Respondent Osceola County:

Timot hy Smith, Esquire

Silvia Morell Alderman, Esquire 1

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

Olga Sanchez de Fuentes, Esquire

Office of the County Attorney

1 Courthouse Square, Suite 4200

Kissimmee, Florida 34741 - 5440

For Respondent South Florida Water Management District:

Pete r Cocotos, Esquire

South Florida Water Management District

3301 Gun Club Road, M ail S top C ode 1410

West Palm Beach, Florida 33406

STATEMENT OF THE ISSUE S

The issues in this case are whether Peti tioner has standing

to initiate this proceeding and whether Respondents Osceola

County and Habitat Restoration, Inc., demonstrated their

entitlement to the permit modification they are requesting.

PRELIMINARY STATEMENT

On November 2, 2005, South Florida Wa ter Management

District ("the District") gave notice of its intent to issue a

Modification to Environmental Resource Permit No. 49 - 00121 - S - 02

("the ERP Modification") to Respondents Osceola County ("the

County") and Habitat Restoration, Inc. (HRI) , for a p roject

known as Poinciana Boulevard, Phase II. Petitioner timely filed

a petition challenging the proposed agency action , and the

District referred the matter to DOAH to conduct a formal

evidentiary hearing.

At the hearing, the County presented the testi mony of Rod

Schultz, Stuart Bradow , and John Atkins. The County's Exhibits

C - 1 through C - 5, C - 7 through C - 9, C - 11 through C - 16, C - 18

through C - 25, and C - 27 were admitted into evidence. Joint

Exhibits 1, 1 - A, J - 1(c), J - 1(d), J - 1(f), J - 1(g), J - 1(i), J - 1(j) ,

2, 2 - A, and J - 9 (including Exhibit 5 to Joint Exhibit J - 9) were

also admitted into evidence at the request of the County. 2 The

District presented the testimony of Susan Elfers and Jennifer

Stout. Joint Exhibit J - 1(h) was admitted at the request of the

District. Petitioner presented the testimony of Kevin Burkett

and Tom Odom. Petitioner's Exhibits P - 1, P - 6 through P - 8, and

P - 14 through P - 17 were admitted into evidence. Petitioner's

Exhibit P - 20 was not admitted into evidence, but at the request

of Pe titioner, a proffer of the exhibit was allowed.

Official recognition was taken of Florida Administrative

Code Chapters 40E - 4 and 62 - 345, as well as the District's Basis

of Review for Environmental Resource Applications (Basis of

Review).

Th e four - volume T r anscript of the hearing was filed with

DOAH on May 10, 2006. The parties jointly moved for an

extension of the date for filing their post - hearing submittals,

and the parties were given a new deadline of June 19, 2006.

Each party timely filed a Proposed R ecommended Order that was

carefully considered in the preparation of this Recommended

Order .

FINDINGS OF FACT

Background

1. Petitioner resides in Orlando and is a recreational

hunter.

2. T he District is a multi - purpose water management

district, operati ng pursuant to Chapter 373, Florida Statutes,

and Florida Administrative Code Chapter 40E. Its principal

office is in West Palm Beach, Florida.

3. The County has been an applicant/permittee at all times

material to this proceeding.

4. HRI is co - permitte e and operates a regional mitigation

area near the town of Holopaw.

5. On October 13, 2004, the District issued Environmental

Resource Permit No. 49 - 00121 - S - 02 ("the Original ERP") to the

County, authorizing construction and operation of a surface

water m anagement system in conjunction with the widening of

Poinciana Boulevard ("the Road Project"). The Road Project is

expected to adversely impact 6.61 acres of wetlands.

6. I n the Original ERP, mitigation for the wetland impacts

was to be provided through the purchase of mitigation credits in

the 1600 - acre Florida Mitigation Bank (FMB).

7. The Road Project and the wetlands that it would impact

are located within the Shingle Creek Drainage Basin.

8. As shown in Petitioner's Exhibit P - 6, only a very small

p ortion of the FMB is located within the Shingle Creek Drainage

Basin. Almost all of the FMB is within the Reedy Creek Drainage

Basin, which is west of the Shingle Creek Drainage Basin.

9. The County applied for a modification of the original

permit , and the District issued the ERP Modification to the

County and HRI. The ERP Modification changes only the

mitigation plan for offsetting the wetland impacts of the Road

Project.

10. The ERP Modification calls for mitigation of the

wetland impacts of the Road Project through the restoration of

wetlands within the regional mitigation area operated by HRI.

The proposed HRI mitigation site is within Osceola County, but

outside the Shingle Creek Drainage Basin.

Standing

11. For the past six or seven years , Petiti oner has been

hunting within a small area of the FMB, along its eastern

boundary, as shown on Petitioner's Exhibit 15. Petitioner hunts

there approximately 20 times each year. He hunts for deer,

turkey , and hogs. He also enjoys observing nature while he is

hunting.

12. The FMB is not open to the general public for hunting.

Petitioner hunts in the FMB with the verbal permission of the

owner. Petitioner expects the permission he has been given to

hunt in the FMB will continue into the future.

13. A fen ce surrounds the FMB, but deer and turkey can get

over a fence and hogs can get under a fence.

14. At the hearing, there was some dispute about the exact

location of the boundary that divides the Shingle Creek Drainage

Basin from the Reedy Creek Drainage Basin , and in which of the

two basins Petitioner hunts. The dispute was caused by the fact

that the area where Petitioner hunts is close to the boundary

and the official maps of the b asin s are at such a small scale

that the line which depicts the boundary covers a large area.

No evidence was presented about the precise location of the

topography that divides the basins. The more persuasive

evidence in the record is that a small area of the FMB (the

acreage was never established) is within the Shingle Cre ek

Drainage Basin and includes the area where Petitioner hunts.

15. Petitioner's primary objection to the ERP Modification

is the proposal to mitigate for the loss of 6.61 acres of

wetlands by restoring wetlands that are outside the Shingle

Creek Drainage Basin. He contends that the ERP Modification

will serve as a precedent for future mitigation outside the

Shingle Creek Drainage Basin. 3 Petitioner's standing argument is

that th e future mitigation outside the B asin will reduce

populations of the wildlif e within the FMB where he hunts.

16. Undermining this premise for Petitioner's standing is

the fact that drainage basin boundaries are hydrologic

boundaries based on patterns of water movement; they are not

boundaries associated with wildlife movement. T he animals that

Petitioner hunts move freely across drainage basin boundaries.

17. Therefore, drainage basin boundaries are not the

proper focus for determining whether Petitioner is substantially

affected by the proposed ERP Modification. Whether Petiti oner

is substantially affected depends on the effect the ERP

Modification would have on environmental factors (including the

quality and extent of wetlands) that determine the populations

of wildlife Petitioner enjoys hunting and observing, no matter

where those environmental factors are located.

18. Petitioner assumes that all future mitigation outside

the Shingle Creek Drainage Basin will be detrimental to his

interests. However, Stuart Bradow explained that whether future

wetlands impacts and future mi tigation would affect Petitioner's

interests depends on the proximity of the future impacted

wetlands and associated mitigation to the area where Petitioner

hunts, without regard to wh ich drainage basin the wetlands and

mitigation are located within .

19. Some wetland impacts in the Shingle Creek Drainage

Basin would be too distant to adversely affect Petitioner's

interests. Some out - of - basin mitigation could be close enough

to positively affect Petitioner's interests. Because much of

the Shingle Creek Dr ainage Basin is more distant from

Petitioner's hunting area than areas of the Reedy Creek Drainage

Basin, it can be reasonably inferred that there could be future

mitigation in the Reedy Creek Drainage Basin to offset wetland

impacts in the Shingle Creek D rainage Basin that would benefit

Petitioner's interests.

20. Petitioner's precedent argument, that all future out -

of - basin mitigation will per se be adverse to his interests, is

contradicted by the more credible and persuasive evidence in the

record.

21. The ERP Modification does not call for any

construction or other activities within the area where

Petitioner hunts or in any other part of the FMB.

22. The ERP Modification will not physically impact the

area within the FMB where Petitioner hunts.

23. T he ERP Modification does not reduce the number of

acres within the FMB.

24. The ERP Modification will not affect Petitioner's

access to the FMB for hunting.

25. The direct and indirect impacts associated with the

loss off 6.61 acres of wetlands caused by the Road Project would

not adversely affect Petitioner's hunting or nature observation

within the FMB.

26. Petitioner's evidence regarding the biological

processes that link the alleged future wetland losses within the

Shingle Creek Drainage Basin to pop ulations of deer, turkey , and

hogs in the FMB was inadequate. There was no evidence

presented, for example, about the variability in such game

populations, the causes of the variability, and how wetland

acreage affects population variability.

27. Petitio ner's expert, Tom Odom, acknowledged that

drainage basin boundaries do not limit wildlife movement, yet

offered an opinion that seemed to assume the opposite. For

example, his opinion that Petitioner's enjoyment of deer hunting

in the FMB might diminish a s a result of the ERP Modification

was based on his belief that deer populations would be

restricted to "a certain area" and prevented from intermixing.

28. Mr. Odom's opinion was also based on the assumption

that HRI's mitigation proposal at its site nea r Holopaw would

not be successful. That opinion contradicts Petitioner's basic

contention that the HRI mitigation site is too far away to

offset the wetland impacts caused by the Road Project.

According to Petitioner, the HRI site is too far away to offs et

those wetland impacts but close enough to adversely affect

Petitioner's hunting in the FMB if the mitigation site fails to

function as proposed.

29. Mr. Odom also opined that the elimination of small

wetland areas can be detrimental to wildlife and are not

mitigated by increasing the size of a large wetland area.

However, in this regard there is no difference between the

Original ERP and the ERP Modification. Both permits would allow

the loss of the small wetland s caused by the Road Project and

would mitigate the losses by adding to or enhancing larger,

regionally significant wetland areas. Petitioner did not

challenge the Original ERP. He cannot collaterally attack in

this proceeding the District's previous determination to allow

the loss of the sma ll wetlands caused by the Road Project.

30. Petitioner failed to demonstrate that the ERP

Modification would reduce populations of deer, turkey , and hogs

in the FMB to the extent that Petitioner's enjoyment of hunting

would be diminished. Petitioner fail ed to demonstrate that he

will be substantially affected by the District's approval of the

ERP Modification.

31. At the hearing, the parties presented evidence on all

factual disputes related to the ERP Modification. Therefore,

despite the foregoing find ing that Petitioner did not

demonstrate his standing, findings related to the other factual

disputes are set forth below.

Cumulative Impact Analysis

32. Pursuant to Subsection 373.414(8)(a), Florida

Statutes (2005) , the District is required to consider the

cumulative impacts upon wetlands and other surface waters within

the same drainage basin as the proposed activity. The

cumulative impact analysis is supposed to consider existing

projects, projects under construction, projects for which

permits have b een sought, developments of regional impact, and

other activities regulated under Chapter 373, Florida Statutes,

or which may reasonably be expected based upon local government

comprehensive plans. Although Petitioner claimed otherwise, the

record shows t he District considered these projects and

activities in the cumulative impact analysis it conducted for

the ERP Modification.

33. Section 4.2.8 of the Basis of Review provides that ,

when adverse impacts to wetlands are not fully offset within the

same dra inage basin as the impacts, the applicant must provide

reasonable assurance that the proposed activity will not result

in unacceptable cumulative impacts to the functions of wetlands

within the drainage basin where the impacts would occur.

34. In conducti ng its cumulative impacts analysis, the

District considered future projects within the Shingle Creek

Drainage B asin which the District determined would likely have

similar impacts. It determined that similar impacts would be

caused by future road - widening projects.

35. Petitioner complained that the County did not perform

a cumulative impact assessment of the Orange County portion of

the Shingle Creek Drainage Basin, but the testimony revealed

that was because the District already had this data. The

Dist rict reviewer who conducted the cumulative impact analysis,

Susan Elfers, is also the reviewer for all road projects in the

Orlando area. The Florida Department of Transportation

routinely provides the District projections of future road

projects. Becaus e Ms. Elfers had considerable information

regarding Orange County transportation projects, the District

did not require the County to provide that information.

36. In performing the cumulative impact analysis, the

District is directed by Section 4.2.8 of the Basis of Review to

consider the functions of wetlands and other surface waters in

the basin "as a whole."

37. Approximately 20,000 acres of the Shingle Creek

Drainage Basin lies within Osceola County. Of this total, 4,631

acres are wetlands. More th an a quarter of the wetlands are in

some form of conservation status. According to the County,

there are 3 , 113 more acres of wetlands proposed for conservation

in the Shingle Creek Drainage Basin. Altogether, 94 percent of

the wetlands in the Shingle Cre ek Drainage Basin in Osceola

County are either in conservation or proposed for conservation.

38. More than half of the Shingle Creek Drainage Basin

lies in Orange County, north of Osceola County. Tom Odom

determined that the entire Shingle Creek Drainage Basin was

comprised of over 22,000 acres of wetlands , of which 88 percent

are protected.

39. Considering the wetland functions of the Shingle Creek

Drainage Basin "as a whole," the projected cumulative loss of

wet lands associated with road projects repre sents a very minor

impact on the total wetland functions in the Shingle Creek

Drainage Basin and a very small fraction of the wetland

functions already under protection.

40. A s discussed in detail below, the proposed HRI

mitigation site will provide subst antial environmental benefits

to the region.

41. The County and HRI proved by a preponderance of the

evidence that the ERP Modification will not result in

unacceptable cumulative impacts within the Shingle Creek

Drainage Basin.

Secondary Impacts

42. In a ddition to addressing the direct impacts of a

project, the District’s Basis of Review requires that a

project’s secondary impacts be offset. Petitioner contends that

the secondary impacts associated with the ERP Modification were

not addressed. However, the record evidence indicates a

qualitative analysis of secondary impacts was made by the

District to determine whether the HRI mitigation site would

offset the secondary impacts of the Road Project.

43. The District determined that the excess value of th e

proposed HRI mitigation over the lost value of the impacted

wetlands was sufficient to offset the relatively minor secondary

impacts expected from the Road Project. That determination was

reasonable.

The Proposed Mitigation Site

44. HRI owns a regional mitigation area of over 2,000

acres. This area includes extensive wetland areas that were

significantly degraded by the cattle and agricultural operations

of previous owners. Portions of the 2,000 - acre tract continue

to suffer from over - drainage and wid espread exotic nuisance

species, including the area which HRI proposes to restore as

mitigation for the wetland impacts of the Road Project.

45. The 2,000 - acre mitigation area already contains

23 previously approved wetland mitigation projects. Wildlife

use of the area has been steadily increasing as each mitigation

project has been implemented. The area now supports a high

diversity of wildlife, including an impressive array of

endangered and threatened animal species.

46. The HRI mitigation site for the ERP Modification

consists of 26.1 acres in four separate areas with separate

mitigation activities proposed for each area. There would be

high level enhancement of 6.8 acres of a forested wetland area,

moderate level enhancement of 13.9 acres of mixe d forested

wetland, four acres of upland buffer enhancement and

preservation, and 1.4 acres of herbaceous wetland enhancement.

47. The proposed mitigation will include filling in part

of a drainage canal, removing exotic plant species, and planting

cypres s trees. The mitigation site will be managed for wildlife

and protected by a conservation easement.

48. The mitigation proposal for the ERP Modification

involves activities that are similar to those that HRI has

successfully completed as part of several other mitigation

projects in HRI's regional mitigation area. HRI's success with

similar mitigation projects provides part of the reasonable

assurances that the mitigation authorized by the ERP

Modification will also succeed in creating wetlands of high

fu nctional value.

49. The proposed offsite mitigation area represents

substantially greater wildlife habitat benefits than were

provided by the 6.61 acres of wetlands impacted by the Road

Project.

50. Petitioner claims that the County and HRI failed to

dem onstrate that the proposed mitigation site was engineered to

allow water movement as needed to create and maintain

appropriate hydrologic conditions for the restored wetlands.

Petitioner did not claim that the proposed mitigation project

was not properly engineered, but only that the District was not

provided the kind of engineering analysis usually required for

such projects.

51. At the hearing, the District witness, Ms. Elfers,

explained that the District's determination that the proposed

mitigation pro ject was properly engineered was based in part on

information exchanged during meetings with the applicant.

Moreover, the County presented an expert engineering witness,

John Atkins , who testified about the engineering aspects of the

project site related to hydrology and offered his opinion that

the project is properly engineered. 4 The more persuasive

evidence in the record is that the proposed mitigation project

is engineered so that the hydrologic aspects of the project will

allow for the successful res toration and maintenance of the

wetlands involved.

Uniform Mitigation Assessment Method

52. The Uniform Mitigation Assessment Method (UMAM),

codified in Florida Administrative Code Chapter 62 - 345, is used

to determine the amount of wetland mitigation requ ired. The

UMAM methodology provides a standardized procedure for assessing

the function provided by wetlands. By examining a number of

environmental factors, such as its community structure and its

water environment, the UMAM can assess the value of the function

being provided by a wetland. UMAM allows for the functional

value of a wetland to be quantified and compared t o the

functional value of other wetlands .

53. A UMAM analysis was performed on both the wetlands

that would be impacted by the Road Pro ject and the wetlands that

HRI proposes to restore. Under UMAM, the functional gain score

for the restored wetlands must at least equal to the functional

loss score for the impacted wetlands.

54. The UMAM score determined for the wetlands impacted by

the Road Project was 4.47 functional units. The UMAM score

determined for the HRI mitigation site was 5.4 7 functional

units. These scores mean that the wetland functional value gain

for the proposed HRI mitigation site was determined to more than

offset the functional loss that would be caused by the wetland

impacts of the Road Project.

55. The four restoration areas within the HRI mitigation

site were separately scored using the UMAM methodology. Among

the factors considered were time lag and risk. Time lag means

“the period of time between when the functions are lost at an

impact site and when those functions are replaced by the

mitigation.” Fla. Admin. Code R. 62 - 345.600(1)(a). Mitigation

risk refers to the degree of uncertainty in achieving the

mitig ation objectives. Fla. Admin. Cod R. 62 - 345.600(2) .

56. Petitioner disagreed with the risk factor used to

score the HRI mitigation site because, according to Petitioner,

no engineering modeling or information was provided for the

hydrologic changes that would be required to achieve success.

The adequacy of the engineering analysis for the HRI mitigation

site was addressed above. The risk factor used in scoring this

particular area was reasonable.

57. Petitioner also objected to the time lag values used

to obtain the score for the HRI mitigation site areas designated

Eastern Forested WL Enhancement (High Level) and the Western

Forested WL Enhancement (Moderate). The time values used for

these areas equate to an expectation that the functions lost

becaus e of the wetland impacts of the Road Project will be

replaced within five years. Petitioner contends that

expectation is unreasonable because the impacted wetlands

contain mature wetland trees which cannot be replaced in five

years.

58. The time lag valu e used, however, does not reflect an

assumption that in five years all the trees planted in the

mitigation site will be as mature as a particular tree or trees

found in the impacted wetlands. The time lag value reflects the

time needed for the mitigation site to gain functional values

equivalent to the functional values lost. Furthermore, there

are already trees in the mitigation site. The more persuasive

evidence of record indicates that the time lag value used was

reasonable.

59. Petitioner argues tha t the use of the same time lag

factor for the different types of wetland systems in the HRI

mitigation site contradicts the "express direction" of Florida

Administrative Code Rule 62 - 345.600(1)(a). That rule, however,

merely contains a qualitative stateme nt of the general

comparison of time lags for different wetland systems. It does

not require that time lags used for different systems must be

different.

60. Wetlands are classified into different community types

by the Florida Land Use Cover and Classif ication System

(FLUCCS). Petitioner complains that none of the FLUCCS codes

for the ecological communities at the HRI mitigation site match

the FLUCCS codes of the wetlands proposed to be impacted by Road

Project. Petitioner admits , however, that two of the HRI

mitigation areas have similar FLUCCS codes. The two areas with

dissimilar wetland types are the upland buffer and existing

canal that will be restored to a deep water marsh. However, i t

was never suggest ed that these two areas were similar to the

impacted wetlands. They are simply areas within the HRI

mitigation site that are being restored in conjunction with

adjacent forested wetlands to enhance the overall diversity and

quality of the resulting ecosystem.

61. The more persuasive and competent evidence in the

record indicates that the UMAM scores for the impacted wetlands

and the mitigation site were reasonable and that they fairly

characterized the proposed HRI mitigation as exceeding in

functional value what would be lost as a result of the w etland

impacts caused by the Road Project.

CONCLUSIONS OF LAW

62. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Section s 150.569 and

120.57, Florida Statutes (2005) . 5

63. The District is the agency with respo nsibility and

authority to review and act upon the ERP Permit Modification at

issue, pursuant to Chapter 373, Part IV, Florida Statutes, and

the "Operating Agreement Concerning Regulation Under Part IV,

Chapter 373, F.S." between the District and the Depar tment of

Environmental Protection, adopted by reference in Florida

Administrative Code Rule 40E - 4.091(1)(c).

64. Under S ubs ection 120.569(1), Florida Statutes, formal

administrative proceedings are limited to persons whose

substantial interests are determ ined by an agency.

65. In Agrico Chemical Company v. Department of

Environmental Regulation , 406 So. 2d 478, 482 (Fla. 2nd DCA

1981), a two - pronged test was articulated to establish a party's

substantial interest. A party must demonstrate (1) the propose d

agency action will result in injury - in - fact of sufficient

immediacy to justify a Section 120.57 hearing, and (2) the

injury is of the type or nature the proceeding is designed to

protect. The first prong involves the degree of the injury and

the second concerns the nature of the injury at stake. Menorah

Manor v. AHCA , 908 So. 2d 1100, 1104 (Fla. 1st DCA 2005).

66. Petitioner failed to meet the first prong of the

Agrico test because h is claim that he will suffer injury as a

result of the ERP Modificatio n is speculative. His allegation

of injury depend s on several independent, future actions or

effects which might never occur: (1) the ERP Modification will

serve as a precedent for future wetland impacts in the Shingle

Creek Drainage Basin that are mitiga ted outside the B asin;

(2) the future out - of - basin mitigation will cause a net loss of

wetlands in the Shingle Creek Drainage Basin; (3) the net loss

of wetlands in the B asin will occur in locations and will be of

such an extent as to cause a reduction in the populations of

deer, turkey , and hogs within the FMB; (4) Petitioner will

continue to have permission to hunt in the FMB; and

(5) Petitioner's enjoyment of hunting in the FMB will be

diminished.

67. The second prong of the Agrico test requires a

de monstration of a n injury of the type that the applicable

statute is designed to protect. The County argues that

Petitioner does not meet th is test because he has no legally

enforceable entitlement to hunt and enjoy wildlife in the future

on the FMB proper ty. Petitioner , on the other hand, cites

S ubs ection 403.412(5), Florida Statutes, for the proposition

that he only needs to show the proposed activity affects his use

or enjoyment of natural resources.

68. There is no decisional law on the precise questi on of

whether a petitioner's use of natural resources on lands which

he has access to by verbal permission of the owner is sufficient

for standing. The undersigned is inclined to the view that the

undisputed present right of Petitioner to hunt in the FMB is

sufficient to confer standing on him to object to activities

that affect his use and enjoyment of the natural resources of

the FMB; no contract or other "formal" right of access is

required. However, a legal conclusion on this particular

question is un necessary because Petitioner did not demonstrate

that the ERP Modification will affect his use and enjoyment of

the natural resources within the FMB.

69. The County and HRI, as the applicants for the ERP

Modification, have the ultimate burden of proving t he ir

entitl ement to the permit. Department Of Transportation v.

J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

70. In order to prove their entitlement to the ERP

Modification, the County and HRI must provide reasonable

assurances that the prop osed mitigation is not contrary to the

public interest, based on seven criteria enumerated in

S ubs ection 373.414(1)(a), Florida Statutes. Relevant here are

the following criteria:

2. Whether the activity will adversely

affect the conservation of fish and

wildlife, including endangered or threatened

species, or their habitats;

* * *

4. Whether the activity will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

* * *

7. The curr ent condition and relative value

of functions being performed by areas

affected by the proposed activity.

71. An applicant must provide reasonable assurances, not

absolute guarantees. “Reasonable assurance” contemplates a

substantial likelihood that the project will be successfully

implemented. Metropolitan Dade County v. Coscan Florida, Inc. ,

609 So. 2d 644, 648 (Fla. 3d DCA 1992).

72. Subsection 373.414(1)(b), Florida Statutes, provides in

relevant part:

If the applicant is unable to otherwise meet

the criteria set forth in this subsection,

the governing board or the department, in

deciding to grant or deny a permit, shall

consider measures proposed by or acceptable

to the applicant to mitigate adverse effects

that may be caused by the regulated

acti vity. Such measures may include, but

are not limited to, onsite mitigation,

offsite mitigation, offsite regional

mitigation, and the purchase of mitigation

credits from mitigation banks permitted

under s. 373.4136 . It shall be the

responsibility of the a pplicant to choose

the form of mitigation. The mitigation must

offset the adverse effects caused by the

regulated activity.

73. Mitigation is further addressed in Section 373.4135,

Florida Statutes, which provides in relevant part as follows:

(1) The L egislature finds that the adverse

impacts of activities regulated under this

part may be offset by the creation,

maintenance, and use of mitigation banks and

offsite regional mitigation. Mitigation

banks and offsite regional mitigation can

enhance the cer tainty of mitigation and

provide ecological value due to the improved

likelihood of environmental success

associated with their proper construction,

maintenance, and management. Therefore, the

department and the water management

districts are directed to participate in and

encourage the establishment of private and

public mitigation banks and offsite regional

mitigation. Mitigation banks and offsite

regional mitigation should emphasize the

restoration and enhancement of degraded

ecosystems and the preserv ation of uplands

and wetlands as intact ecosystems rather

than alteration of landscapes to create

wetlands. This is best accomplished through

restoration of ecological communities that

were historically present.

* * *

( b) It is the further inte nt of the

Legislature that mitigation banks and

offsite regional mitigation be considered

appropriate and a permittable mitigation

option under the conditions specified by the

rules of the department and water management

districts.

(c) Offsite mitigation , including offsite

regional mitigation, may be located outside

the regional watershed in which the adverse

impacts of an activity regulated under this

part are located, if such adverse impacts

are offset by the offsite mitigation.

74. A lthough Petitione r frequently referred to the adverse

precedent that would be created by the ERP Modification because

it allows for mitigation outside the Shingle Creek Drainage

Basin, Section 373.4135, Florida Statutes, expressly authorizes

out - of - basin mitigation. The a ppropriate i nquiry, therefore, is

not whether the mitigation proposed in the ERP Modification is a

precedent, but whether it meets the applicable criteria for

approval.

75. The applicable rule criteria for an Environmental

Resource Permit in the District are set forth in Florida

Administrative Code Rules 40E - 4.301 (1) and 40E - 4.302 , and in the

Basis of Review which is incorporated by reference in Florida

Administrative Code Rule 40E - 4.091 . Florida Administrative Code

Rule 40E - 4.301(3) provides that the sta ndards and criteria ,

including mitigation provisions, in the Basis of Review shall

determine whether reasonable assurances required by Florida

Administrative Code Rule s 40E - 4.301(1) and 40E - 4.302 have been

provided.

76. Section 4.2.8 of the Basis of Revie w requires an

applicant to provide reasonable assurances that the proposed

activity will not cause unacceptable cumulative impacts upon

wetlands and other surface waters within the same drainage basin

as the regulated activity for which a permit is sought.

77. Section 4.2.8.1 of the Basis of Review explains that the

cumulative impacts analysis focuses on whether there will be 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 considering the basin " as a whole . "

78. The County and HRI provided reasonable assurances that

that the ERP Modification will not result in unacceptable

cumulative impacts in the Shingle Creek Drainage Basin.

79. The County a nd HRI provided reasonable assurances that

the ERP Modification is not contrary to the public interest,

taking into account the seven criteria set forth in Subsection

373.414(1), Florida Statutes.

80. The County and HRI provided reasonable assurances that

the HRI mitigation site will offset the wetland impacts that

will be caused by the Road Project. In fact, reasonable

assurance s w ere provided that a net ecological benefit to the

region will be achieved as a result of the proposed mitigation.

RECOMMENDAT ION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Governing Board of the South Florida

Water Management District enter a f inal o rder issuing

Modification to Environmental Resource Permit No. 49 - 00121 - S - 02

to O sceola County and Habitat Restoration, Inc., subject to the

general and special conditions set forth in the District's Staff

Review Summary.

DONE AND ENTERED this 9 th day of August , 2006 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with th e Clerk of the

Division of Administrative Hearings

this 9 th day of August , 2006 .

ENDNOTES

1/ Ms. Alderman did not participate in the final hearing but

was substituted as counsel for Mr. Smith, who left the firm of

Akerman Senterfitt after the conclusion of the final hearing.

2/ Although the parties pre - marked a number of exhibits as

"Joint Exhibits," the parties reserved the right to object to

the admission of these exhibits. Therefore, the joint exhibits

were only admitted if requested by a party and after any

objections thereto were overruled.

3/ The parties' pre - hearing stipulations include a stipulation

that the wetland mitigation authorized in the Original ERP was

within the Shingle Creek Drainage Basin. However, there is

evidence in the record contradicting that stipulation. The

County's witness, Stuart Bradow, expressed the opinion that the

assignment of mitigation credit under the Original ERP to the

small portion of the FMB located in the Shingle Creek Drainage

Basin was arbitrary because i t did not equate to actual

environmental benefits occurring there. His opinion was based

largely on the small size of the FMB area within the Basin and

the number of mitigation credits previously purchased from the

FMB and assigned to that Basin.

4/ Pet itioner argues that Mr. Atkins ' opinion that the proposed

mitigation project is engineered properly does not provide

reasonable assurances because all of the data and analysis that

support his opinion were not presented at the hearing in this

case. Howeve r, Petitioner did not object at the hearing to

Mr. Atkins' opinion for lack of foundation, and an expert

opinion is not insufficient to support a finding merely because

the data upon which the opinion is based is not all described by

the witness or contai ned in exhibits admitted into the record.

It is the obligation of the cross - examining party to enquire

into the factual basis of an expert opinion and to demonstrate

that the factual basis is insufficient to support the opinion.

See § 90.705, Fla. Stat. (2005). Petitioner's cross - examination

of Mr. Atkins and Ms. Elfers on this subject did not reveal

evidence that the project would not function properly.

Petitioner also objected to Mr. Atkins' testimony as being

beyond the scope of rebuttal and more pro perly part of the

County's prima facie case. However, the objection was raised

after the testimony was given. Furthermore, Petitioner

misapprehends the nature of a permit applicant's prima facie

case. A permit applicant is not required to prove all the facts

associated with a proposed project (which can number in the tens

of thousands) as part of his prima facie case. It is the

responsibility of the challenger to present factual issues in

dispute, at which point the applicant may offer new evidence in

r ebuttal. Department of Transportation v. J.W.C. Company , Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). Mr. Atkins' testimony was

proper rebuttal to the testimony of Mr. Odom that there was

insufficient engineering data to determine that the mitigation

site w ould function as proposed.

5/ Unless otherwise indicated, all references to Florida

Statutes are to the 2005 codification.

COPIES FURNISHED :

Peter Cocotos, Esquire

South Florida Water Management District

3301 Gun Club Road, M ail S top C ode - 1410

West Pa lm Beach, Florida 33406

Eric T. Olsen, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

Ol g a Sanchez de Fuentes , Esquire

Office of the County Attorney

1 Courthouse Square, Suite 4200

Kissimmee, Florida 34741 - 5440

Stuart N. Bradow

Habitat Restoration, Inc.

484 North Causeway

New Smyrna Beach, Florida 32169

Timothy A. Smith, Esquire

Silvia Morell Alderman, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

Carol Ann Wehle, 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 Recommen ded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.