05-003274 Octavio Blanco vs. Westfield Homes Of Florida And Southwest Florida Water Management District Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, August 9, 2006.

Summary: The proposed surface water management system meets Environmental Resource Permit requirements and will not adversely impact Petitioner`s wetland. Deficiencies in prior litigation between the parties have been addressed. Recommend issuance of permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OCTAVIO BLANCO, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3274

)

WESTFIELD HOMES OF FLORIDA and )

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on January 31

and February 1, 2006, in Brooksville, Florida .

APPEARANCES

For Petitioner: Marcy I. LaHart, Esquire

Mar cy I . LaHart, P.A.

711 Talladega Street

West Palm Beach, Florida 33405 - 1443

F or Respondent W estfield Homes of F lorida (Westfield):

David Smolker, Esquire

Bricklemyer, Smolker & Bolves, P.A.

500 East Kennedy Boulevard, Suite 200

Tampa, F lorida 33602 - 4936

For Respondent Southwest Florida Water Management District

(District):

Jack R. Pepper, Esquire

Nicki Spirtos, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

STATEMENT OF THE ISSUE

The issue is whether the District should approve

E nvironmental R esource P ermit No. 43024788 .002 for the

construction of a surface water management system to serve the

proposed residential subdivision on Westfield’s property in

south ern Pasco County, and based upon the prior litigation

between the parties in DOAH Case No. 04 - 0003 and the pre - hearing

rulings in this case, t he issue turns on whether Westfield has

provided “ reasonable assurances ” in relation to the pro posed

development's potential impact s on Wetland A3 and fish and

wildlife.

PRELIMINARY STATEMENT

On July 29, 2005, the District preliminarily approved

Westfield’s application for E nvironmental R esource P ermit (ERP)

No. 43024788.002. Petitioner, Octavio Blanco ( Dr. Blanco),

timely challenged the District’s preliminary approval of the ERP

through a Request for Administrative Hearing filed with the

District on August 24, 2005.

The District referred the case to the Division of

Administrative Hearings (DOAH) on September 13, 20 05, for the

assignment of an A dministrative Law J udge to conduct the hearing

requested by Dr. Blanco. At the parties’ request, t he final

hearing was s cheduled for January 31 through February 2, 2006.

The scope of the final hearing was narrowed based upon the

prior litigation between the parties , Blanco v. Southwest

Florida Water Management District , Case No. 04 - 0003 (DOAH Dec.

17, 2004 ; SWFWMD Jan. 27, 2005 ) (hereafter “ Blanco - I ”). See

Order Granting Motion in Limine, dated January 27, 2006. The

scope of the final hearing was further narrowed based upon a

stipulation of the parties related t o the fish and wildlife

issue. See Transcript, at 131 - 38, 340 - 43.

At the final hearing, Dr. Blanco testified in his own

behalf and also presented the testimony of Dr. Mark Stewart, who

was accepted as an expert in hydrology, hydrogeology, water

resource management, and environmental geophysics; and Dr. Mark

Rains, who was accepted as an expert in hydrogeology,

ecohydrology, and geomorphology. 1 Dr. Blanco’s Exhibits P - 1 and

P - 2 were received into evidence.

Westfield presented the testimony of Charles Courtney, who

was accepted as an expert in wetlands, wetland delineation,

environmental resource permitting, wetland monitoring, water

qualit y and quantity analysis, and de termination of wetland

type, nature and function; Kyle Cyr, who was accepted as an

expert in drainage engineering and surface water computer

modeling; Brian Skidmore, who was accepted as an expert in

wetlands, wetland delineation, wetland mitigation, Flori da

wetland ecology, wildlife and listed species assessment, wetland

hydroperiod determination, and Florida wetland plant

identification; and Marty Sullivan, who was accepted as an

expert in geotechnical engineering and ground and surface water

management. Westfield ’s Exhibits R - 1 through R - 7 and R - 9

through R - 16 were received into evidence. Exhibit R - 8 was

offered but not received.

The District presented the testimony of Monte Ritter, who

was accepted as an expert in surface water management systems,

surf ace water modeling, and environmental resource permitting;

Leonard Bartos, who was accepted as an expert in wetland

assessment, aquatic ecology, wetland ecology, wetland

mitigation, and ERP rules; and John Parker, who was accepted as

an expert in geology, hydrogeology, and water use permitting

rules. The District’s Exhibits D - 1 through D - 8 were received

into evidence.

Official recognition was taken of the Recommended and Final

Orders in Blanco - I .

At the pre - hearing conference held on January 19, 2006,

Pe titioner ’s ore tenus motion to include t he t ranscript of the

final hearing in Blanco - I as part of the record of this case was

granted. Petitioner di d not file any portion of that t ranscript

with DOAH as directed , 2 and as a result, the Blanco - I t ranscript

is not part of the record of this case.

The four - volume Transcript of the final hearing in this

case was filed on February 21 , 200 6 . The parties initially

requested and were given 21 da ys from that date to file proposed

recommended orders (PROs). The dea dline was subsequently

extended to March 20, 2006, on Westfield’s unopposed motion.

Each party timely filed a PRO. The PROs have been given due

consideration.

FINDINGS OF FACT

A. Parties

1. Dr. Blanco is a veterinarian. He grew up on , and has

some so rt of ownership interest in the property (hereafter “the

Blanco property”) immediately to the west of the property on

which the proposed development at issue in this case will occur.

2. Dr. Blanco is particularly concerned about the impacts

of the propose d development on the ecological health of Wetland

A3, a significant portion of which is on the Blanco property .

He has spent considerable time over the years observing and

enjoying th at wetland.

3. Westfield is the applicant for the E RP at issue in this

case , and it o wns the property (hereafter “the Westfield

property”) on which the development authorized by the ERP will

occur.

4. The District is the administrative agency responsible

for the conservation, protection, management, and control of the

water resources within its geographic boundaries pursuant to

Chapter 373, Fl orida Statutes, and Florida Administrative Code

Chapter 40D . Among other things, the District is responsible

for reviewing and taking final agency action on ERP applications

for projec ts within its boundaries.

5. The District includes all or part of 16 counties in

southwest Florida, including Pasco County.

B. The P roposed Development

(1) Generally

6. The Westfield property consists of 266.36 acres. 3 It is

located in southern Pasco County on the north side of State Road

54, approximately three miles west of U.S. Highway 41 and less

than one - h alf mile east of the intersection of State Road 54 and

the Sunco ast Parkway .

7. The Westfield property is bordered on the south by

State Road 54 , 4 on the north by an abandoned railroad right - of -

way and undeveloped woodland property, on the east by

pasture land and property that has been cleared for development,

and on the west by the Blanco property.

8. The development proposed for the Westfiel d property is

a residential subdivision with 437 single - family lots and

related infrastructure (hereafter “the Project” or “the proposed

development”) . T he ERP at issue in this proceeding is for the

surface water management system necessary to serve the P roject.

9. There are 19 isolated and contiguous wetlands on the

Westfield property, including Wetland A 3 , which is partially on

the Westfield property and partially on the Blanco property.

W etlands cover 72.69 acres (or 27.3 percent) of the Westfield

pro perty.

10. The proposed development will result in 1.61 acres of

the existing wetlands -- Wetlands B4 and C4, and a portion of

Wetland B12 -- being permanently destroyed . The remain ing 71.08

acres of existing wetlands will be preserved.

11. Wetlands B4 and C4 are small (each less than 0.75

acres), shallow, wet depressions in a pasture that have been

significantly impacted by livestock grazing and periodic mowing.

Wetland B12 is a low - quality, small (0.58 acres), isolated,

forested wetland that has been impacted by livestock grazing and

the intrusion of exotic species.

12. The proposed development will create 2.89 acres of new

wetlands, which means that the Project will result in a net gain

of 1.28 acres of wetlands. The created wetlands, referred to as

Wetlan d B2 or the “mitigation area,” are in the northern portion

of the property along the abandoned railroad right - of - way and to

the east of Wetland A3 .

13. The proposed ERP includes a number of special

conditions, Nos. 6 through 11, related to the mi tigation area.

Among other things, t he conditions require monitoring of the

mitigation area to ensure that it de velops into the type of

forested wetland proposed in the ERP application.

(2) Prior ERP Application

14. The ERP at issue in this case is the second ERP sought

by Westfield for the Project .

15. The first ERP , No. 43024788.000, was ultimately de nied

by the District through the F inal O rder in Blanco - I .

16. Blanco - I , like this case, was initiated by Dr. Blanco

in response to the District’s prel iminary approval of

Westfield’s ERP ap plication .

17. Administrative Law Judge David Maloney held a three -

day final hearing in Blanco - I at which the parties, through

counsel, fully litigated the issue of whether Westfield

satisfied the regulatory criteria for the issuance of an ERP for

the proposed development.

18. On December 17, 2004, Judge Maloney issued a

comprehensive, 64 - page Recommended Order in which he recommended

that Westfield’s ERP application be denied.

19. Judge Maloney d etermined in his Rec ommended Order t hat

Westfield failed to provide reasonable assurances as required by

the applicable statutes and rules because “ [1] it omitted an

adequate wildlife survey from the submission of information to

the District and [2] it failed to account for s eepage from Pond

P11 and its effect on Wetland A3 and the Cypress - forested

Wetland.” 5 In all other respects, Judge Maloney determined that

the applicable permit requirements had been satisfied .

20. Dr. Blanco did not file any exceptions to the

Recommend ed Order in Blanco - I .

21. Westfield’s exceptions to the Recommended Order in

Blanco - I were rejected by the District , and the Recommended

Orde r was adopted “in its entirety” in the District’s Final

Order .

22. The Final Order in Blanco - I was rendered on

Ja nuary 27, 2005, and was not appealed.

(3) Current ERP Application

23. On April 29 , 2005, approximately three months after

the Final Order in Blanco - I , W estfield submitted a n ew ERP

application for the Project .

24. The current ERP application, No. 4302 4788.002, is

identical to the application at issue in Blanco - I , except that

the depth of Pond P11 was reduced in certain areas from a

maximum of approximately 25 feet to a maximum of approximately

12 feet, an analysis of the potential impact of Pond P11 on

Wetland A3 resulting from “seepage” was included with the

application , and additional wildlife surveys were included with

the application .

25. On J uly 29, 2005, the District gave notice of its

preliminarily approv al of the current ERP application. The

notice was accompanied by a proposed ERP, which contained a

description of the Project a s well as the general and special

conditions imposed by the District.

26. On August 24, 2005, Dr. Blanco timely challenged the

District’s preliminary approval of the current ERP application.

27. The Request for Administrative Hearing filed by

Dr. Blanco in this case is identical to the request that he

filed in Blanco - I .

C . Disputed Issues Related to the

Current ERP Application

(1) Im pact of Pond P11 on Wetland A3

28. Dr. Blanco’s primary objection to the Project is the

excavation of Pond P11 adjacent to Wetland A3.

29. Wetland A3 is on the western border of the Westfield

property and, as noted above, the wetland extends onto the

Blanco property. The portion o f Wetland A3 that is on the

Westfield property is approximately 30 acres , and the portion of

the wetland on the Blanco property appears to be slightly

larger .

30. Wetland A3 is a large, mature, C ypress - forested

wetlan d . It has been impacted by nearby dev elopment and is not

a pristine wetland, but it is still a mid to high quality

wetland for the area . 6

31. Wetland A3 i s part of a larger wetland system that

extends northward and westward beyond the abandoned railroad

right - of - way that serves as the northe rn boundary of the

Westfield and Blanco properties.

32. Cypress - forested wetlands, such as Wetland A3, are

very tolerant of prolonged periods of drought and inundation.

33. The seasonal high groundwater level in Wetland A3 is

approximately one foot bel ow the surface in most areas of the

wetland. There are, however, areas in W etland A3 in which water

is frequently a foot or two above the surface.

34. The groundwater levels in Wetland A3 have , in the

past, been significantly impacted by drawdowns in the aquifer

caused b y pumping in nearby wellfields . The impac t has been

less significant in recent years as a result of the reductions

in pumping mandated by the Tampa Bay Consolidated Water Use

Permit . The p lanned inte rconnection of several nearby

wellfiel ds is also expected to minimize the dra w downs in the

aquifer and should further stabilize t he groundwater levels in

Wetland A3.

35. Pond P11 will be located adjacent to Wetland A3 .

T here will be a 25 - foot buffer between the pond and the wetland.

36. The location of P ond P11 is unchanged from the first

ERP application.

37. Pond P11 will have a surface a rea of approximately 37

acres.

38. The surface area of Pond P11 is unchanged from the

first ERP application.

39. Pond P11 is a necessary component of th e surface water

mana gement system for the Project . It also serves as a “ borrow

pit ” because the soil excavated from the pond will be used on -

site as fill for the proposed development.

40. The excavation of Pond P11 to the depth proposed in

the current ERP application is not necessary for water storage .

The pond could be excavated to the seasonal high water level --

approximately 2.5 feet deep -- and still function as intended as

part of the proposed surface water management system.

41. Pond P11 will b e used for attenuation, but the pond is

also expected to provide at least some amount of water quality

treatment, which is an added benefit to Wetland A3 into which

the proposed surface water management system will ultimately

discharge through Pond P11.

42 . The only change made to Pond P11 between the first and

current ERP applications was a reduction in the pond’s maximum

depth. The pond, which had a maximum depth of approximately 25

feet in the first ERP application, was “shallowed up” in the

current ER P application.

43. Pond P11 will now be approximately 12 - feet deep at its

deepest point , unless the District authorizes excavation to a

greater depth in accordance with special condition No. 28 . The

shallowest area of Pond P11 will be along the western e dge of

the pond adjacent to We tland A3 where there will be an expansive

“ littoral shelf” that will have almost no slope and that will be

excavated only to the seasonal high water level . 7

44. There was no change in the design of the surface water

managemen t system between the first ERP application and the

current ERP application. The reduction in the depth of Pond P11

will ha ve no impact on the operation of the system, which was

described in detail in Blanco - I . 8

45. Pond P11 will have a control structu re to allow water

to be discharge d into Wetland A3 near its southern end, which is

a more upstream location than water is currently discharged as a

result of the ditches that intercept surface water flowing

across the Westfield property. This design featu re of the

surface water management system is intended to mimic historic

hydrologic conditions and is expected to increase the hydration

of Wetland A3.

46. The ERP includes a special condition, No. 28 , relatin g

to the excavation of Pond P11. Th e condition provides:

A. Maximum depth of excavation will be

feet NGVD [ 9 ] unless additional field

observations and data are provided that

support excavation to greater depth, subject

to review and approval by District staff.

Proposed maximum depths of excavat ion . . .

may be exceeded based upon field

observations and approval as specified.

B. Due to the potentially irregular

depths to limestone, excavation will be

stopped at a shallower depth if confining

soils are encountered before reaching the

maximum depth specified in Subcondition A,

above. A geotechnical field technician will

be present on site during the entire

excavation process in order to monitor

excavated soils. The field technician will

be under the supervision of a Professional

Geologist or Professional Engineer. For the

purposes of the specific project, confining

soils are defined as soils with more then 20

percent fines passing a No. 200 sieve. The

field technician will be authorized to halt

depth of excavation when confining soils are

e ncountered. Excavation may proceed deeper

than soils containing 20 percent or more

fines if the soils are shown to be an

isolated lens of material significantly

above underlying confining soils or

limestone, as determined by field

observations and data su bject to approval by

District staff.

C. Confining soils do not uniformly

overlie the limestone; therefore it is

possible that the underlying limestone could

be encountered in spite of precautions in

Subconditions A and B above. If the

underlying lim estone is encountered,

excavation will be halted in the area of

exposed underlying limestone. The area of

exposed limestone will be backfilled to a

minimum depth of two feet with compacted

material meeting the specification of

confining soils, having more than 20 percent

fines passing a No. 200 sieve. The

geotechnical field technician must certify

that the backfill material meets this

specification.

47. One of the reasons that the ERP application was denied

in Blanco - I was that Westfield failed to tak e into account the

potential hydrologic impacts o n Wetland A3 caused by “seepage”

of water from Pond P11 due to the depth to which the pond was to

be excavated and the corresponding removal of the confining

layer of soils between the bottom of the pond and the aquifer.

48. After Blanco - I , W estfield retained Marty Sullivan, a

professional engineer and an expert in geotechnical engineering

and groundwater and surface water modeling, to evaluate the

seepage issue and the potential hydrologic impacts of Pond P11

on Wetland A3.

49. Mr. Sullivan developed a n integrated or “coupled”

groundwater/surface water model to assess the se issues. The

model was designed to project the change in groundwater levels

caused by the proposed development more so than absolute

groundwater levels.

50. The model utilized a widely - accepted computer program

and incorporated data from topographic and soil survey

information maintained by the U.S. Geologic Service; data from

soil borings performed on the Westfield property in the vi cinity

of Wetland A3 in the area where Pond P11 will be located; data

from groundwater monitoring wells and piezometers installed

around the Westfield property; data from soil permeability tests

performed on - site and in the laboratory; data from a rain gau ge

installed on the Westfield property; and data from the

District’s groundwater monitoring we l ls in the vi cinity of the

Westfield property .

51. Mr. Sullivan “calibrated” the model based upon known

pre - development conditions . He then “ran” the model wi th the

data from the Interconnected Pond Routing (ICPR) model 10 used to

design of the surface water management system in order to

project the post - development groundwater conditions over a

simulated ten - year period .

52. Mr. Sullivan’s coupled groundwater/s urface water model

addresses the shortcoming of the ICPR model set forth in Blanco -

I . 11

53. The model project s that the post - development

groundwater levels at the western boundary of the Westfield

property in Wetland A3 adjacent to Pond P11 w ill be the sam e as

the pre - development levels during the “wet season” of June to

September, and that, on average and during the “dry season” of

October to May, the post - devel opment groundwater levels will be

0.3 feet higher than the pre - development levels.

54. Mr. Sull ivan summarized his conclusions based upon

these projections in a report pr ovided to the District with the

current ERP application. The report states that :

no adverse hydrologic effects will result

from the excavation of Pond P11 and the

development of th e surrounding area.

Particularly, Wetland A3 will be essentially

unaffected and will be slightly enhanced by

this development. Some additional hydration

of wetland A3 will occur due to eliminating

the north - south drainage ditch and instead

routing runoff to Pond P11, which is

adjacent to Wetland A3.

55. T he relative differences in the pre - and post -

development levels are more important than the absolute levels

projected by the model and, in this case, there is almost no

difference in the levels.

56. Th e minimal change in the water levels expected in

Wetland A3 will not affect the wetland’s ecological functioning

or its viability. A 0.3 - foot change in the water level is well

within the normal range of hydroperiod fluc tuation for Wetland

A3.

57. The rat e at which water increases and decreases in a

wetland can impact wetland ecology and wetland - dependent

species.

58. The proposed surface water management system will not

increase the surface water discharges from the Westfield

property, and i n compliance with Section 4.2 of the Basis of

Review (BOR), 12 the post - development discharge rates will not

exceed the pre - development peak discharge rate s .

59. There is no credible evidence that there will be an

adverse impact on Wetland A3 caused by changes in the di scharge

rate from the Westfield property through Pond P11 into W etland

A3.

60. The range of error , if any, in Mr. Sullivan’s model is

unknown. He has never performed a post - development review to

determine how accurately the model predicts the post - develo pment

conditions that are actually observed.

61. Nevertheless, t he more persuasive evidence establishes

that Mr. Sullivan’s model is reasonable, as are his ultimate

conclusions based upon the model’s projections.

62. Mr. Sullivan recommended in his repo rt that Pond P11

be excavated no deeper than two feet above the limestone to

avoid potential breaches of the confining soils above the

aquifer. That recommendation led to the pond being “shallowed

up,” and it was incorporated by the District into special

condition No. 28.

63. The provisions of special condition No. 28 are

reasonable to ensure that excavation of Pond P11 will not breach

the confining layer.

64. The standards in special condition No. 28 pursuant to

which a geotechnical field technician w ill monitor the

excavation of Pond P11, and pursuant to which the District will

determine whether to authorize deeper excavation of the pond ,

are generally accepted and can be adequately monitored by

professionals in the field and the District.

65. There is a potential for the loss of “significant

volumes of water” from Pond P11 through evaporation “ [d]ue to

the sheer size of P11’s open surface area.” 13

66. It is not entirely clear how the evaporation of water

from Pond P11 was taken into account in Mr. S ullivan’s model ,

but it appears to have been considered. 14

67. Dr. Mark Rains, Petitioner’s expert in hydro geology,

ecohydrology, and geomorphology , testified that evaporation from

open water is generally about 12 inches more per year than

evaporation from a wet meadow or Cypress forest, but he d id not

offer any specific criticism of the projections in

Mr. Sullivan’s model related to the issue of evaporation.

68. In sum, the more persuasive evidence establishes that

Wetland A3 is not likely to suffer any a dverse ecological or

hydrological impacts from the proposed surface water management

system and, more particularly, from Pond P11 . Westfield has

provided reasonable assurances in that regard.

(2) Adequacy of the Wildlife Surveys

69. The other reason wh y the first ERP application for the

Project was denied in Blanco - I was that the wildlife surveys

submitted with that application were found to be inadequate.

70. Wildlife surveys are not required with every ERP

application and, in that regard, Section 3.2 .2 of the BOR

provides that:

[t] he need for a wildlife survey will depend

on the likelihood that the site is used by

listed species , considering site

characteristics and the range and habitat

needs of such species, and whether the

proposed system will impa ct that use such

that the criteria in subsection 3.2.2

through 3.2.2.3 and subsection 3.2.7 will

not be met.

71. Westfield conducted a “preliminary” wildlife

assessment in 2001 . No listed species were observed, nor was

any evidence of their presence on the Westfield property.

72. Nevertheless, as detailed in Blanco - I , 15 the District

requested that Westfield perform a wildlife survey of Wetlands

B4, C4, and B12, because all or part of those wetlands will be

permanently destroyed by the proposed developmen t.

73. In an effort to comply with the District’s request s ,

Westfield conducted additional field visits in 2003 and also

performed specific surveys for Southeastern Kestrels and Gopher

Tortoises. The field visits “confirmed” the findings from the

p relimi nary wildlife assessment , and no evidence of Southeastern

Kestrels and Gopher Tortoises was observed dur in g the surveys

for those species.

74. Judge Maloney found in Blanco - I that the wildlife

surveys conducted by Westfield were inadequate because they “d id

not employ the methodology recommended by the District: the

FWCC methodology.” 16

75. However, t he wildlife surveys were not found to b e

inadequate in Blanco - I b ecause they focused o n Wetlands B4, C4,

and B12, instead of evaluating the entire Westfiel d property

and/or all of the potentially impacted wetlands, including

Wetland A3.

76. After Blanco - I , a team of qualified professionals led

by Brian Skidmore, an expert in wetlands, Florida wetlands

ecology, and listed species assessment, conduct ed additi onal

wildlife surveys of the Westfield property. Mr. Skidmore and

his team had performed the preliminary wildlife assessment and

the supplemental surveys submitted with Westfield’s first ERP

application.

77. The “FWCC methodology” referenced in Blanco - I is a

methodology developed by the Fish and Wildlife Conservation

Commission (FWCC) to evaluate potential impacts to listed

species from large - scale projects, such as developments - of -

regional impact and new highways. It is not specifically

desi gned for use in the ERP process , which focuses only on

wetland - dependent species.

78. Mr. Skidmore adapted the FWCC methodology for use in

the ERP process . The methodology used by Mr. Skidmore was

reviewed and accepted by the District’s environmental regulation

ma nager, Leonard Bartos, who is an expert in w etland ecology and

ERP rules.

79. The surveys performed by Mr. Skidmore and his team of

professionals occurred over a five - day period in February 2005.

The surveys focused on Wetlands B4, C4, and B12, and were

performed at dawn and dusk when wildlife is typically most

active.

80. Additional wildlife surveys of the entire site were

performed on five separate days between October 2005 and January

2006. Those surveys were also performed at dawn and dusk, and

they included observations along the perimeter of Wetland A3 and

into portions of the interior of that wetland on the Westfield

property.

81. Mr. Skidmore reviewed databases maintained by FWCC to

determine whether there are any documented waterbird colonies o r

Bald Eagle nests in the vicinity of the Project. There are

none.

82. Mr. Skidmore c ontacted the Florida Natural Area

Inventory to determine whether there are any documented rare

plant or animal species on the Westfield property or in the

vicinity of th e Project. There are none.

83. The post - Blanco - I wildl ife surveys did not evaluate

the usage of the Westfield property by listed species during the

wetter spring and summer months of March through October even

though, as Mr. Skidmore acknowledged in his testimony , it is

possible that different species may use the property during the

wet season.

84. The post - Blanco - I wildlife surveys, like the original

wildlife surveys, focused primarily on the species contained in

Appendix 5 to the BOR -- i.e. , wetland - dependent species that

use uplands fo r nesting, foraging, or denning -- but

Mr. Skidmore testified that he and his surveyors “were observant

for any species,” including wetland - depend e nt species that do

not utilize uplands.

85. No listed wetland - dependent species were observed

nesting or denning on the Westfield property. Several listed

wetland - depend e nt birds -- i.e. , snowy egret, sandhill crane,

wood stork, and white ibis -- were observed foraging and/or

resting on the property. Those birds were not ob served in

Wetlands B4, C4, or B12.

86. The parties stipulated at the final hearing that the

determination as to whether Westfield provided reasonable

assurances with respect to the statutory and rule criteria

related to fish and wildlife turns on whether the wildlife

surveys submitted by Westfield are adequate. 17

87. BOR Section 3.2.2 provides that “[s]urvey

methodologies employed to inventory the site must provide

reasonable assurance regarding the presence or absence of the

subject listed species.”

88. The wildlife surveys conducted by Westfield subsequent

to Blanco - I in accordance with the FWCC methodology meet this

standard. A lthough the surveys could have been more extensive

in terms of the species assessed and the period of time over

which they we re conducted, the more persuasive evidence

establishes that the wildlife surveys are adequate to document

the presence or, more accurately the absence of listed wetland -

depend e nt species on the Westfield property .

89. The wetlands that will be directly im pacted by the

proposed development -- Wetlands B4, C4, and B12 -- do not

provide suitable habitat for listed species. Those wetlands are

small, low - quality wetlands, and Wetland B12 is technically

exempt from the District’s fish and wildlife review becaus e it

is a small isolated wetland.

90. There is no credible evidence that there will be any

other adverse impacts to fish and wildlife from the proposed

surface water management system. For example, even if there are

undocumented listed species -- e.g. , frogs, snakes, snails, etc.

-- in Wetland A3, Mr. Skidmore credibly testified that the

expected 0.3 - foot increase in groundwater levels in that wetland

during the dry season is not likely to adversely affect those

species or their habitat because the wate r will still be below

the surface.

91. In sum, W estfield has provided reasonable assurance

that the proposed development will not adversely affect fish and

wildlife.

CONCLUSIONS OF LAW

92. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes (2005). 18

93. Westfield and the District did not contest

Dr. Blanco’s standing in this case, and based upon the implicit

finding in Blanco - I that Dr. Blanco had standing to chall enge

the first ERP sought by Westfield, it is determined that

Dr. Blanco has standing to challenge the ERP at issue in this

case.

94. Westfield has the burden to prove by a preponderance

of the evidence that its ERP application should be approved.

See D ept. of Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778,

788 (Fla. 1st DCA 1981) (cited with approval in Department of

Banking and Finance v. Osborne, Stern & Co. , 670 So. 2d 932

(Fla. 1996)) .

95. This is a de novo proceeding and no presumption of

corr ectness attaches to the District’s preliminary approval of

the ERP, but, as explained in J.W.C. Co. :

as a general proposition, a party should be

able to anticipate that when agency

employees or officials having special

knowledge or expertise in the field accept

data and information supplied by the

applicant, the same data and information,

when properly identified and authenticated

as accurate and reliable by agency or other

witnesses, will be readily accepted by the

[administrative law judge], in the absen ce

of evidence showing its inaccuracy or

unreliability.

J.W.C. Co . , 396 So. 2d at 789.

96. In that regard, once the applicant makes a preliminary

showing of its entitlement to the permit through “credible and

credited evidence,” the A dministrative L aw J udge is not

authorized to deny the permit “unless contrary evidence of

equivalent quality is presented by the opponent of the permit.”

Id. Accord Lake Region Audubon Society v . Southwest Florida

Water Management District , Case No. 05 - 2606, 2005 Fla. Div. Adm.

Hear. LEXIS 1356, at * 47 (DOAH Nov. 10, 2005; SWFWMD Nov. 30,

2005).

97. An applicant for a permit to construct a surface water

management system must demonstrate that the system “will not be

harmful to the water resources of the district.” See

§ 473.313(1), Fla. Stat.

98. An applicant for an ERP must also satisfy the criteria

in Section 373.414, Florida Statutes, which is commonly referred

to as the “public interest test” and which provides in pertinent

part:

(1) As part of an applicant's

dem onstration that an activity regulated

under this part will not be harmful to the

water resources or will not be inconsistent

with the overall objectives of the district,

the governing board . . . shall require the

applicant to provide reasonable assurance

that state water quality standards . . .

will not be violated and reasonable

assurance that such activity in, on or over

surface waters or wetlands . . . is not

contrary to the public interest. . . . .

(a) In determining whether an activity,

which is in, on, or over surface waters or

wetlands . . . is not contrary to the public

interest, the governing board . . . shall

consider and balance the following criteria:

1. whether the activity will adversely

affect the public health, safety or welfare

or the property of others;

2. Whether the activity will adversely

affect the conservation of fish and

wildlife, including endangered or threatened

species, or their habitats;

3. Whether the activity will adversely

affect navigation or the flow of wat er or

cause harmful erosion or shoaling'

4. Whether the activity will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

5. Whether the activity will be of a

temporary or permanent nature;

6 . Whether the activity will adversely

affect or enhance significant historical and

archaeological resources under the

provisions of s. 267.061; and

7. Whether the current condition and

relative value of functions being performed

by areas affected by the proposed activity.

(b) If the applicant is unable to

otherwise meet the criteria set forth in

this subsection, the governing board . . .,

in deciding to grant or deny a permit, shall

consider measures proposed by or acceptable

to the applicant to m itigate adverse effects

that may be caused by the regulated

activity. Such measures may include, but

are not lim ited to, onsite mitigation,

offsite mitigation, and the purchase of

mitigation credits from mitigation banks . .

. . It shall be the responsib ility of the

applicant to choose the form of mitigation.

The mitigation must offset the adverse

effects caused by the regulated activity.

99. The rules adopted by the District to implement

Sections 373.413 and 373.414, Florida Statut es , provide in

pert inent part:

40D - 4.301 Conditions for Issuance of

Permits.

(1) In order to obtain [an ERP], an

applicant must provide reasonable assurance

that the construction . . . of a surface

water management system :

(a) will not cause adverse water quantity

impacts to receiving waters and adjacent

lands;

(b) will not cause adverse flooding to

on - site or off - site property;

(c) will not cause adverse impacts to

existing surface water stor a ge and

conveyance capabilities;

(d) will not adversely impac t the value

of functions provided to fish and wildlife,

and listed species including aquatic and

wetland dependent species, by wetlands,

other surface waters and other water related

resources of the District;

(e) will not adversely impact the quality

o f receiving waters such that . . . water

quality standards . . . will be violated;

(f) will not cause adverse secondary

impacts to the water resources;

(g) will not adversely impact the

maintenance of surface or ground water

levels or surface water flows established

pursuant to Chapter 373.042, F.S.;

(h) will not cause adverse impacts to a

work of the district established pursuant to

Section 373.086, F.S.;

(i) is capable, based on generally

accepted engineering and scientific

principles, of being effectively performed

and of functioning as proposed;

(j) will be conducted by an entity with

financial, legal, and administrative

capability of ensuring that the activity

will be undertaken in accordance with the

terms and conditions of the perm it, if

issued; and

(k) will comply with any applicable

special basin or geographic area criteria

established pursuant to this chapter.

* * *

40D - 4.302 Additional Conditions for

Issuance of Permits .

(1) In addition to the conditions set

fort h in Rule 40D - 4.301, F.A.C., in order to

obtain [an ERP,] an applicant must provide

reasonable assurances that the construction

. . . of a system:

(a) . . . will not be contrary to the

public int erest . . . as dete rmined by

balancing the following crite ria as set

forth in subsections 3.2.3 th r ough 3.2.3.7

of the [BOR] . . . .

1. whether the activity will adversely

affect the public health, safety or welfare

or the property of others;

2. whether the activity will adversely

affect the conservati on of fish and

wildlife, including endangered or threatened

species, or their habitats;

3. whether the activity will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling;

4. whether the activity will adversely

aff ect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

5. whether the activity will be of a

temporary or permanent nature;

6. whether the activity will adversely

affect or enhance significant historical and

archaeological resources under the

provisions of s. 267.061; and

7. whether 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

3.2.8 through 3.2.8.2 of the [BOR] . . . .

Fla. Admin. Code R. 40D - 4.301(1) , 40D - 4.302(1) .

100. These statutory and rule criteria are further

explained in the BOR . See BOR § 3.1.1 ( “Environ mental

Conditions for Issuance”) ; BOR § 3.2 et seq. (“Environmental

Criteria”).

101. The BOR is used by the District to determine whether

reasonable assurance s have been provided. See Fla. Admin. Code

R. 40D - 4.301(3).

102. The "reasonable assurance" standard d oes not require

the applicant to pro vide absolute guarantees, nor does it

require the applicant to eliminate all speculation concerning

what might occur i f the project is developed as proposed.

Instead, the applicant is only required to establis h a

"substantial likelihood that the project will be successfully

implemented." See , e.g. , Metro Dade County v. Coscan Florida,

Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992) ; Lake Region

Audubon Society , supra , at * * 46 - 49.

103. The doctrines of res judi cata and collateral estoppel

preclude Blanco from re - litigating issues in this case that were

determined in Blanco - I , an d, in that regard, the final hearing

in this case focused only on the deficiencies identified in

Blanco - I and any circumstances and cond itions that ha ve changed

since that case . See Thomson v. Dept. of Environmental Reg. ,

511 So. 2d 989, 991 (Fla. 1987); Deep Lagoon Boat Club, Ltd. v.

Sheridan , 784 So. 2d 1140, 1142 n.4 (Fla. 2d DCA 2001); Holiday

Inns, Inc. v. City of Jacksonville , 678 S o. 2d 528, 529 (Fla.

1st DCA 1996).

104. It is determined , based upon findings and conclusions

in the Recommended and Final Orders in Blanco - I , that the

current ERP application satisfies the applicable regulatory

criteria in all respects except as to the potential impacts of

Pond P11 on Wetland A3 and the potential impacts of the proposed

development on fish and wildlife. See Order Granting Motion in

Limine, dated January 27, 2006.

105. With respect to the potential impacts of Pond P11 on

Wetland A3 it is determined based upon the preponderance of the

evidence of record that Westfield has provided the requisite

reasonable assurances . As more specifically discussed in Part

C(1) of the Findings of Fact, t he more persuasive evidence

establishes that Pond P11 will not adversely impact Wetland A 3.

106. With respect to the potential impacts of the proposed

development on fish and wildlife, it is determined based upon

the preponderance of the evidence of record that the additional

wildlife surveys are adequa te . See Findings of Fact, Part C(2).

Therefore, based upon the parties’ stipulations at the hearing,

it follows that Westfield ha s provided reasonable assurance that

the proposed developme nt will not adversely impact fish and

wildlife.

107. Westfield m et its burden to prove that the Project

will not be harmful to the water resources of the District. See

§ 373.413(1), Fla. Stat. The deficiencies identified in Blanco -

I have been adequately addressed.

108. Westfield also met its burden to prove that th e

Project is, on balance, not contrary to the public interest.

See § 373.414(1), Fla. Stat. Indeed, a s discussed above, the

preponderance of the evidence establishes that the criteria that

were found in Blanco - I to “weigh heavily toward a determination

t hat the proposed activity is contrary to the public interest” 19

have been adequately addressed. The other criteria are either

not applicable or carry little weight in th is case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of l aw, it is

RECOMMENDED that the District issue a final order approving

Environmental Resource Permit No. 43024788.002, subject to t he

general and special conditions set forth in the proposed ERP

dated July 29, 2005 .

DONE AND ENTERED this 10th day of April , 2006, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 the Clerk of the

Division of Administrative Hearings

this 10th day of April , 2006 .

ENDNOTES

1 / Most of the testimony given by Drs. Stewart an d Rains at the

final hearing is in the form of a proffer because they were not

allowed to testify regarding facts and opinions that they did

not disclose during their depositions. See Transcript, at 11 - 12

(ruling on Westfield’s Motion to Strike Pleadings and

Witnesses). Accord Gouveia v. Phillips , 823 So. 2d 215, 219 - 23

(Fla. 4th DCA 2002) ( holding that trial court did not abuse its

discretion by excluding an expert’s testimony at trial on an

issue that the expert had no opinion on at the time of his

depo sition).

2 / See Order dated January 20, 2006, at ¶ 5. The parties were

advised at the pre - hearing conference that the Blanco - I

transcript is no longer in DOAH's possession because it was

transmitted to the District in December 2004 along with the

Recomm ended Order in that case.

3 / This figure includes the 4.49 acre “access easement”

described in Endnote 4 and a one acre “drainage easement” on the

same property as the access easement. See Construction Plans,

Sheet 3 (contained in Exhibit D - 3).

4 / The southern boundary of the Westfield property is

approximately 1,000 feet north of State Road 54. The property

has access to State Road 54 by way of a 4.49 acre “access

easement” across the undeveloped property between State Road 54

and the Westfield prope rty. See Construction Plans, Sheet 3

(contained in Exhibit D - 3).

5 / Blanco - I Recommended Order, at ¶ 132. See also id. at ¶¶

142 - 48.

6 / See Blanco - I Recommended Order, at ¶¶ 22 - 24 (describing the

various historical impacts on Wetland A3, including th e existing

ditches on the Westfield property that channel surface water

runoff away from the wetland).

7 / See Blanco - I Recommended Order, at ¶¶ 89 - 91 (describing the

characteristics of the “shelf”).

8 / Blanco - I Recommended Order, at ¶¶ 29 - 34 .

9 / Thi s measure corresponds to a maximum depth of approximately

12 feet.

10 / As explained in Blanco - I , ICPR is:

a type of hydrological computer model that

takes into account surface water flows. It

does not take into account groundwater

flows, downward or lat eral seepage or the

lowering of the water table by well - field

pumping. It models the surface water

hydrology of a site as it might be affected,

for example, by detention basins and channel

pipes. It models pre - design of a site to be

developed and then po st - design of a site

prior to actual development to provide

comparative analysis. It is also a

predictive tool. As with any predictive

tool, its accuracy can only be definitively

determined by observation and collection of

data after - the - fact, in this cas e, after

development.

Blanco - I Recommended Order, at ¶ 44 .

11 / See Blanco - I Recommended Order, at ¶ 6 4 (“ICPR, because it

does not account for effects on groundwater, is a flawed model

for determining the impact on all water resources in the area.

It di d not consider downward leakage as a means for water to

escape from the pond P11.”) (internal quotations and brackets

omitted).

12 / BOR Section 4.2 provides that “[o]ff - site discharge is

limited to amounts that will not cause adverse off - site

impacts . ” Off - site discharges are computed by using the

District’s 24 - hour, 25 - year rainfall maps, BOR § 4.2.b., and

must not exceed historic discharge, which is “the peak rate at

which runoff leaves a parcel of land by gravity under existing

site conditions.” BOR § 4.2.a.1.

13 / Blanco - I Recommended Order, at ¶ 41.

14 / For example, there are references in Mr. Sullivan’s report

to changes in the evaporation rate in the post - development

condition. See Exhibit R12, at 9. However, Mr. S ullivan did

not elaborate on t his issue in his testimony at the final

hearing.

15 / Blanco - I Recommended Order, at ¶¶ 116 - 21.

16 / Blanco - I Recommended Order, at ¶ 125.

17 / See Transcript, at 131 - 38, 340 - 43.

18 / All statutory references in this Recommended Order are to

the 2005 versi on of the Florida Statutes.

19 / See Blanco - I Recommended Order, at ¶ 145 (citing

§ 373.414(1)(a)1., 2., 5. and 7., Fla. Stat.).

COPIES FURNISHED :

David L. Moore, Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooks ville, Florida 34604 - 6899

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

711 Talladega Street

West Palm Beach, Florida 33405 - 1443

Jack R. Pepper, Esquire

Nicki Spirtos, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksvil le, Florida 34604 - 6899

David Smolker, Esquire

Bricklemyer, Smolker & Bolves, P.A.

500 East Kennedy Boulevard, Suite 200

Tampa, Florida 33602 - 4936

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 d ays from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.