14-004735 Joseph Mcclash vs. Land Trust No. 97-12 And Southwest Florida Water Management District Status: Closed Recommended Order on Thursday, June 25, 2015.

Summary: It is recommended that the agency deny the environmental resource permit because practicable modifications were not made to avoid wetland impacts and cummulative adverse effects of the project would cause significant environmental harm.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH MCCLASH,

Petitioner,

and

SIERRA CLUB, INC., AND SUNCOAST

WATERKEEPER, INC.,

Intervenors,

vs. Case No. 14 - 4735

LAND TRUST NO. 97 - 12 AND

SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT,

Responde nts.

_______________________________/

MANASOTA - 88, INC.,

Petitioner,

and

SIERRA CLUB, INC., AND SUNCOAST

WATERKEEPER, INC.,

Intervenors,

vs. Case No. 14 - 5038

LAND TRUST NO. 97 - 12 AND

SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT,

Respondents.

__________ _____________________/

FLORIDA INSTITUTE FOR SALTWATER

HERITAGE, INC.,

Petitioner,

and

SIERRA CLUB, INC., AND SUNCOAST

WATERKEEPER, INC.,

Intervenors,

vs. Case No. 14 - 5135

LAND TRUST NO. 97 - 12 AND

SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT,

Resp ondents.

_______________________________/

RECOMMENDED ORDER

The final hearing in these consolidated cases was held on

February 17 - 19, 2015, in Tamp a, Florida, before Bram D.E. Canter,

Administrative Law Judge of the Division of Administrative

Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner Joseph McClash:

Joseph McClash, pro se

711 89th Street Northwest

Bradenton, Florida 34209

For Petitioner Manasota - 88, Inc.:

Joseph McClash, Qualified Representative

711 89th Street Northwest

Bradenton, Florida 34209

For Petitioner Florida I nstitute for Saltwater

Heritage, Inc.:

Joseph McClash, Qualified Representative

711 89th Street Northwest

Bradenton, Florida 34209

For Respondent Land Trust #97 - 12:

Douglas P. Manson, Esquire

Brian A. Bolves, Esquire

Paria Shirzadi, Esquire

MansonBolves, P.A.

1101 West Swann Avenue

Tampa, Florida 33606

For Resp ondent Southwest Florida Water Management District:

Christon R. Tanner, Esquire

Martha A. Moore, Esquire

Southwest Florida Water Management District

7601 Highway 301 North

Tampa, Florida 33637

For Intervenor Sierra Club, Inc.:

Ralf G. Brookes, Esquire

1217 East Cape Coral Parkway , Suite 107

Cape Coral, Florida 33904

For Interve nor Suncoast Waterkeeper, Inc.:

Justin Bloom, Esquire

Post Office Box 1028

Sarasota, Florida 34230

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent Land Trust

# 97 - 12 (ÐLand TrustÑ) is entitled to an Environmental Resource

Permit (ÐERPÑ) for its proposed project on Perico Island in

Bradenton, Florida.

PRELIMINARY STATEMENT

On August 21, 2014, Respondent Southwest Florida Water

Management District (ÐDistrictÑ) issued a Notice of Intended

Agency Action to issue an ERP to Land Trust to construct a

building pad for four single - family homes, an access drive, and

surface water management system.

On August 29, 2014, Petitioner Joseph McClash filed a

petition for hearing to ch allenge the proposed ERP. On

September 10, 2014, Petitioner Manasota - 88 , Inc., filed a

petition for hearing. On September 18, 2014, Florida Institute

for Saltwater Heritage, Inc. (ÐFISHÑ), filed a petition for

hearing. The District referred the three pe titions to DOAH and

they were consolidated for final hearing.

On January 26, 2015, Sierra Club, Inc., moved to intervene

in the proceeding. On January 27, 2015, Suncoast Waterkeeper,

Inc., moved to intervene. The motions were granted.

At the final hearin g , Land Trust presented the testimony of

Jeb Mulock, P.E., an expert in engineering; and Alec Hoffner, an

expert in soil science and wetland ecology. After the hearing,

Land Trust was allowed to present the testimony of Anthony

Janicki, Ph.D., through a t ranscript of his deposition. Land

Trust Exhibits 1 - 3, 6 - 8, and 16 were admitted into evidence.

The District presented the testimony of David Kramer, P.E.,

an expert in surface water management system engineering;

Al Gagne, an expert in wetland science; an d John Emery, an expert

in wetland science. District Exhibits 4 and 6 - 7 were admitted

into evidence.

Petitioners presented the testimony of Jacqueline Cook, an

expert in wetland science; Sam Johnston, an expert in

environmental assessment and wetland scie nce; John Stevely, an

expert in mangroves and marine habitat; Joseph McClash;

Ed Sherwood; Robert B rown; and Jay Leverone. Petitioners '

Exhibits 1 - 6, 31 - 32, 38 - 39, 41 - 43, 47, 53, 55, 74, 88, 88A, 91 -

104, 110, and 112 were admitted into evidence.

Members o f the public were allowed to make comments at the

final hearing. Comments were received from Mary Shep herd ,

Terry Wonder, Jan VonHahmann, and Sandra Ripberger.

The five - volume T ranscript of the final hearing was filed

with DOAH. The parties submitted pro posed recommended orders

that were considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

The Parties

1. Petitioner Joseph McClash is a resident of Bradenton,

Florida , who uses the waters in the vicinity of the project for

fishing, cra bbing, boating, and wildlife observation.

2. Petitioner Manasota - 88, Inc., is an active Florida

nonprofit corporation for more than 20 years. Manasota - 88 has

approximately 530 members, most of who m (approximately 300)

reside in Manatee County. The miss ion and goal of Manasota - 88

includes the protection of the natural resources of Manatee

County, including Anna Maria Sound and Perico Island.

3. Petitioner FISH is an active Florida nonprofit

corporation in existence since 1991. FISH owns real property in

unincorporated Cortez in Manatee County and maintains a Manatee

County mailing address. FISH has more than 190 members and more

than 150 of them own property or reside in Manatee County. The

mission and goal of FISH includes protection of the natural

resources of Manatee County, including Anna Maria Sound and

Perico Island.

4. Intervenor Suncoast Waterkeeper, Inc., is an active

Florida nonprofit corporation in existence since 2012. The

mission of Suncoast Waterkeeper is Ðto protect and restore the

S uncoastÓs waterways through enforcement, fieldwork, advocacy,

and environmental education for the benefit of the communities

that rely upon coastal resources.Ñ Suncoast Waterkeeper provided

the names and addresses of 25 members residing in Manatee County.

A substantial number of the members of Suncoast Waterkeeper use

the area and waters near the proposed activity for nature - based

activities, including nature observation, fishing, kayaking,

wading, and boating along the natural shorelines of Anna Maria

So und and Perico Island.

5. Intervenor Sierra Club, Inc., is a national organization

that is a California corporation registered as a foreign

nonprofit corporation in Florida. Sierra Club has been permitted

to conduct business in Florida since 1982. The mission of Sierra

Club includes protection of the natural resources of Manatee

County, which include Anna Maria Sound and Perico Island. Sierra

Club provided the names and addresses of 26 members who live in

Manatee County. A substantial number of the me mbers of Sierra

Club use the area and waters near the proposed project for

nature - based activities , including observing native flora and

fauna, fishing, kayaking, wading, and boating along the natural

shorelines of Anna Maria Sound and Perico Island.

6. Respondent Land Trust is the applicant for the

challenged ERP and owns the property on which the proposed

project would be constructed.

7. Respondent District is an independent special district

of the State of Florida created, granted powers, and assigne d

duties under chapter 373, Florida Statutes, including the

regulation of activities in surface waters. The proposed project

is within the boundaries of the District.

The Project Site

8. The project site is 3.46 acres of a 40.36 - acre parcel

owned by Lan d Trust. The parcel includes uplands, wetlands, and

submerged lands, on or seaward of Perico Island, next to Anna

Maria Sound, which is part of Lower Tampa Bay. Anna Maria Sound

is an Outstanding Florida Water.

9. The project site is adjacent to a larg e multi - family

residential development called Harbour Isles, which is currently

under construction. Access to the Land Trust property is gained

through this development.

10. The Land Trust parcel contains approximately seven

acres of high quality mangro ves along the shoreline of Anna Maria

Sound. They are mostly black and red mangroves, with some white

mangroves. The mangroves on the project site amount to a total

of 1.9 acres.

11. Mangroves have high biological productivity and are

important to estu arine food webs. Mangroves provide nesting,

roosting, foraging, and nursery functions for many species of

wildlife.

12. Mangroves also provide a buffer from storm surge and

help to stabilize shorelines.

13. Wildlife species found on the project site i nclude

ibises, pelicans, egrets, spoonbills, mangrove cuckoos, bay

scallops, fiddler crabs, mangrove tree crabs, horseshoe crabs,

marsh rabbits, raccoons, mangrove bees, and a variety of fish.

14. No endangered species have been observed on the project

s ite , but mangroves are used by a number of listed species .

The Proposed Project

15. The proposed project is to construct a retaining wall,

place fill behind the wall to create buildable lots for four

single - family homes, construct an access driveway, an d install a

stormwater management facility.

16. The stormwater management facility is a ÐStormtechÑ

system, which is an underground system usually used in situations

where there is insufficient area to accommodate a stormwater

pond.

17. Riprap would be placed on the waterward side of the

retaining wall. The retaining wall would be more than 35 feet

landward of the mean high water line in most areas.

18. Petitioners contend the proposed retaining wall is a

vertical seawall, which is not allowed in an e stuary pursuant to

section 373.414(5). ÐVertical seawallÑ is defined in section

2.0(a)(111), Volume I, of the Environmental Resource Permit

ApplicantÓs Handbook (ÐApplicants HandbookÑ) as a seawall which

is steeper than 75 degrees to the horizontal. It f urther states,

ÐA seawall with sloping riprap covering the waterward face to the

mean high water line shall not be considered a vertical seawall.Ñ

19. The retaining wall is vertical, but it would have

riprap covering its waterward face and installed at a slope of 70

degrees. The retaining wall is not a vertical seawall under the

DistrictÓs definition .

Stormwater Management

2 0 . Stormwater in excess of the Stormtech systemÓs design

capacity would discharge into Anna Maria Sound. Because Anna

Maria Sound is an Outstanding Florida Water, District design

criteria require that an additional 50 percent of treatment

volume be provided.

2 1 . The Stormtech system meets the DistrictÓs design

criteria for managing water quality and water quantity. Projects

which m eet the DistrictÓs design criteria are presumed to provide

reasonable assurance of compliance with state water quality

standards. PetitionersÓ evidence was not sufficient to rebut

this presumption.

22 . Petitioners contend the District waiver of water

qua lity certification for the proposed project means that Land

Trust was not required to meet water quality standards. However,

that was a misunderstanding of the certification process. All

state water quality criteria are applicable.

23 . Petitioners cont end water quality monitoring should be

imposed for this project. However, section 4.7 of the

ApplicantÓs Handbook , Volume II, provide s that if the applicant

meets the DistrictÓs design criteria, water quality monitoring is

not required.

24 . Petitioners f ailed to prove the proposed stormwater

management system cannot be constructed, operated, or maintained

in compliance with applicable criteria.

Wetland Impacts

2 5 . In order to create buildable lots, 1.05 acres of the

1.9 acres of mangroves on the project site would be removed and

replaced with fill. A swath of mangroves approximately 40 f eet

wide would remain waterward of the retaining wall.

2 6 . The proposed direct and s econdary impacts to the

functions provided by wetlands were evaluated using the Unif orm

Mitigation Assessment Method (ÐUMAMÑ) as required by Florida

Administrative Code Chapter 62 - 345. UMAM is used to quantify the

loss of functions performed by wetlands considering: current

condition, hydrologic connection, uniqueness, location, fish an d

wildlife utilization, time lag, and mitigation risk.

2 7 . The District determined the filling of 1.05 acres of

wetlands would result in a functional loss of 0.81 units and the

secondary impacts resulting from installation of the retaining

wall would res ult in a loss of 0.09 units for a total functional

loss of 0.9 units. Petitioners contend the functional loss would

be greater.

2 8 . Petitioners contend the wetland delineation performed

by Land Trust and confirmed by the District did not extend as far

la ndward as the hydric soils and, therefore, the total acreage of

affected wetlands would be greater. However, Petitioners did not

produce a wetland delineation for the project site, and their

evidence was not sufficient to rebut Land Trust's prima faci e

ev idence on this issue.

29 . Petitioners Ó experts believe the secondary impacts

caused by the proposed project would be greater than calculated,

including fragmentation of the shoreline mangrove system, damage

to the roots of mangroves near the retaining wal l, and scouring

effects caused by wave action associated with the retaining wall.

Respondents assert that the analysis by PetitionersÓ expert

Jacqueline Co ok relied on federal methodology and that Ðthe

science used in her analysis is not contained in the state or

district rule criteria.Ñ

3 0 . Reliance on science is always appropriate. However,

Ms. Co ok Ós use of a federal impact assessment methodology creates

doubt about whether her scoring is consis tent with UMAM. Despite

the unreliability of Ms. Co ok Ós UMAM score, it is found that

RespondentsÓ UMAM scor e under - calculated secondary impacts due to

scour and other effects of changed water movement that would be

cause d by the retaining wall.

3 1 . It was not explained how the loss of storm buffering

and erosi on prevention functions of wetlands are accounted for in

the UMAM score.

Elimination or Reduction of Impacts

3 2 . Section 10.2.1 of the ApplicantÓs Handbook , Volume I,

states that in reviewing a project the District is to consider

practicable design modi fications to eliminate or reduce impacts

to wetland functions. Section 10.2.1.1 explains:

The term ÐmodificationÑ shall not be

construed as including the alternative of not

implementing the activity in some form, nor

shall it be construed as requiring a p roject

that is significantly different in type or

function. A proposed modification that is

not technically capable of being completed,

is not economically viable, or that adversely

affects public safety through the

endangerment of lives or property is no t

considered Ðpracticable.Ñ A proposed

modification need not remove all economic

value of the property in order to be

considered not Ðpracticable.Ñ Conversely, a

modification need not provide the highest and

best use of the property to be Ðpracticable.Ñ

In determining whether a proposed

modification is practicable, consideration

shall also be given to cost of the

modification compared to the environmental

benefit it achieves.

3 3 . Land Trust originally proposed constructing a surface

water retention pond . The Stormtech stormwater management system

would cause less wetland impact than a retention pond.

3 4 . Land Trust contends the use of a retaining wall reduces

wetland impacts because, otherwise, more mangroves would have to

be removed to account for the slope of the waterward side of the

fill area. However, this proposition assumes the appropriateness

of the size of the fill area.

3 5 . Land Trust also contends wetland impacts are reduced by

using the adjacent development to access the proposed project

site, rather than creating a new road. However, the evidence did

not establish that Land Trust had a practicable and preferred

alternative for access.

3 6 . Unlike the Stormtech system, the retaining wall and

access driveway were not shown to be project mo difications.

3 7 . The proposed project would cause fewer impacts to

wetlands if the fill area was reduced in size, which was not

shown to be impracticable. Reducing the size of the fill area

would not cause the project to be significantly different in ty pe

or function.

38 . Land Trust did not demonstrate that it implemented

reasonable design modifications to eliminate or reduce impacts to

wetland functions.

Mitigation

39 . Land Trust proposes to purchase credits from the Tampa

Bay Mitigation Bank, which is 17 miles north of the proposed

project site. The Tampa Bay Mitigation Bank is in the Tampa Bay

Drainage Basin. The project site is in the South Coastal

Drainage Basin.

4 0 . Pursuant to section 10.2.8 of the ApplicantÓs Handbook,

Volume I, if an appli cant mitigates adverse impacts within the

same drainage basin, the agency will consider the regulated

activity to have no unacceptable cumulative impacts upon wetlands

and other surface waters. However, if the applicant proposes to

mitigate impacts in ano ther drainage basin , factors such as

Ðconnectivity of waters, hydrology, habitat range of affected

species, and water qualityÑ will be considered to determine

whether the impacts are fully offset.

4 1 . The parties disputed whether there was connectivity

b etween the waters near the project site and the waters at the

Tampa Bay Mitigation Bank. The more persuasive evidence shows

there is connectivity.

4 2 . There was also a dispute about the habitat range of

affected species. The evidence establishes that t he species

found in the mangroves at the project site are also found at the

mitigation bank. However, local fish and wildlife, and local

biological productivity would be diminished by the proposed

project. This diminution affects PetitionersÓ substantial

interests.

4 3 . T he loss or reduction of storm buffering and erosion

prevention functions performed by the mangroves at Perico Island

cannot be mitigat ed for at the Tampa Bay Mitigation Bank.

4 4 . C umulative impacts are unacceptable when the proposed

acti vity, considered in conjunction with 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. See § 10.2.8.1, ApplicantÓs

Handbook , Vol. I .

4 5 . Section 10.2.8(b) provides that, in considering the

cumulative impacts associated with a project, the District is to

consider other activities which reasonably may be expected to be

located within wetlands or other surface waters in the same

drainage basin, based upon the local governmentÓs comprehensive

plan. Land Trust did not make a prima facie showing on this

point.

4 6 . Land Trust could propose a similar project on another

part of its property on Perico Island. Any one owning property in

the area which is designated for residential use under the City

of BradentonÓs comprehensive plan and bounded by wetlands could

apply to enlarge the buildable portion of the property by

removing the wetlands and filling behind a retaining wall.

4 7 . When considering future wetland impacts in the basin

which are likely to result from similar future activities, the

cumulative impacts of the proposed project would result in

significant adverse impacts to wetland functions in the area.

Public Interest

48 . Fo r projects located in, on, or over wetlands or other

surface waters, an applicant must provide reasonable assurance

that the project will not be contrary to the public interest, or

if such activities significantly degrade or are within an

Outstanding Flori da Water, are clearly in the public interest, as

determined by balancing the criteria set forth in rule 62 -

330.302(1)(a), and as set forth in sections 10.2.3 through

10.2.3.7 of the ApplicantÓs Handbook. Rule 62 - 330.302, which is

identical to section 373. 414, Fl orida Statutes , lists the

following seven public interest balancing factors to be

considered:

1. Whether the activities will adversely

affect the public health, safety, or welfare

or the property of others;

2. Whether the activities will adverse ly

affect the conservation of fish and wildlife,

including endangered or threatened species,

or their habitats;

3. Whether the activities will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling;

4. Whether the activ ities will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

5. Whether the activities will be of a

temporary or permanent nature;

6. Whether the activities will adversely

affect or will enhan ce 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 regulated activity.

49 . The Parties s tipulated that the proposed project would

not have an adverse impact on public health, navigation,

historical resources, archeological resources, or social costs.

5 0 . Land Trust proposes to give $5,000 to the City of

Palmetto for an informational kiosk at the City of PalmettoÓs

public boat ramp. A District employee testified that this

contribution made the project clearly in the public interest.

5 1 . Reasonable assurances were not provided that the

proposed project is clearly in the public interest becaus e of the

adverse cumulative effects on the conservation of fish and

wildlife, fishing and recreational values, and marine

productivity of Anna Maria Sound, an Outstanding Florida Water.

CONCLUSIONS OF LAW

Standing

5 2 . Standing to participate in a proceedi ng under section

120.57(1), Florida Statutes, is afforded to persons whose

substantial interests will be affected by the proposed agency

action. See § 120.52(13)(b), Fla. Stat. (2014) (definition of

Ðparty.Ñ)

5 3 . For organizational standing under chapter 120, it must

be shown that a substantial number of an associationÓs members,

but not necessarily a majority, have a substantial interest that

would be affected, that the subject matter of the proposed

activity is within the general scope of the interests a nd

activities for which the organization was created, and that the

relief requested is of the type appropriate for the organization

to receive on behalf of its members. Fla. Home Builders AssÓn v .

DepÓt of Labor and Emp ' t Servs . , 412 So. 2d 351 (Fla. 1982 ); Fla.

League of Cities, Inc. v. DepÓt of Envtl. Reg. , 603 So. 2d 1363

(Fla. 1 st DCA 1992).

5 4 . Section 403.412(6) , Florida Statutes, provides standing

to any Florida corporation not for profit which has at least 25

current members residing within the co unty where the activity is

proposed, and which was formed for the purpose of the protection

of the environment, fish and wildlife resources, and protection of

air and water quality, to initiate an administrative hearing,

provided the corporation was formed at least one year prior to the

date of the filing of application for the permit that is the

subject of the notice of proposed agency action.

5 5 . Section 403.412(5) provides standing to any citizen to

intervene in an administrative, licensing, or other pr oceeding for

the protection of the air, water, or other natural resources of

the state from pollution, impairment or destruction, upon the

filing of a verified pleading.

5 6 . Respondents stipulated to Petitioner McClashÓs

substantial interests in using the waters near the proposed

project, but did not stipulate to his alleged injury and contend

he failed to prove an injury to his interests. A petitioner can

establish standing by offering evidence to prove that its

substantial interests could be affected by the agencyÓs action.

St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist . ,

54 So. 3d 1051, 1054 (Fla. 5th DCA 2011). Petitioner McClash

offered evidence to prove his interests could be adversely

affected by the proposed project. He has stan ding.

5 7 . Respondents stipulated to the standing of Petitioners

FISH, Manasota - 88, and Suncoast Waterkeeper to intervene in an

ongoing proceeding pursuant to section 403.412(5).

58 . Sierra Club claims associational standing to intervene

under chapter 120 . Respondents stipulated that a substantial

number of Sierra Club members have substantial interests in the

use of the waters near the project site, but assert that Sierra

Club failed to demonstrate injury to these interests. Sierra Club

offered evidence to prove the interests of its members could be

adversely affected by the proposed project. Sierra Club has

standing under chapter 120.

59 . Sierra Club also claims standing to intervene pursuant

to section 403.412(5), but Sierra Club is not a citizen of the

state; it is a foreign nonprofit corporation. Legal Envtl.

Assistance Found . v. DepÓt of Envtl. Protection , 702 So. 2d 1352

(Fla. 1st DCA 1997). Sierra Club does not have standing under

section 403.412(5).

Burden and Standard of Proof

6 0 . This is a de novo proceeding designed to formulate final

agency action, not to review action taken preliminarily. See

Capeletti Bros. v. DepÓt of Gen . Servs . , 432 So. 2d 1359, 1363 - 64,

(Fla. 1st DCA 1983); Fla. Dep't of Transp. v. J. W .C. Co., Inc. ,

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

6 1 . Because Petitioners challenge a permit issued by the

District under chapter 373, section 120.569(2)(p) is applicable .

This statute provides that the permit applicant must present a

prima facie case demonstrating entitlement to th e permit, but the

challenger has the burden of ultimate persuasion.

6 2 . The standard of proof is a preponderance of the

evidence. § 120.57(1)(j), Fla. Stat.

6 3 . Entitlement to an ERP requires reasonable assurance from

the applicant that the activities a uthorized will meet the

applicable conditions for issuance as set forth in rules 62 -

330.301 and 62 - 330.302 and related provisions of the Applicant's

Handbook.

6 4 . Reasonable assurance that a proposed activity is clearly

in the public interest does not req uire a demonstration of need or

net public benefit. See 1800 Atlantic Developers v. DepÓt of

Envtl. Reg . , 552 So. 2d 946, 9 57 (Fla. 1st DCA 1989).

6 5 . Whether assurances are reasonable will depend on the

circumstances involved, especially with respect to the potential

harm that could be caused. See AngeloÓs Aggregate Materials, Ltd.

v. DepÓt of Envtl. Protection , DOAH Case No. 09 - 1543 (Recommended

Order, June 28, 2013, adopted in its entirety by the Department of

Environmental Protection). The potential to harm an Outstanding

Florida Water requires greater assurances than for waters without

this special designation.

66. Land Trust presented a prima facie case of entitlement

to the permit except with regard to the cumulative impacts of the

proposed proje ct. Petitioners then presented their case in

opposition to the permit and demonstrated that Land Trust was not

entitled to the permit for the reasons stated below.

Compliance with Applicable Criteria

6 7 . The Stormtech system meets the DistrictÓs design

c riteria for managing water quality and water quantity. Projects

which meet the DistrictÓs design criteria are presumed to provide

reasonable assurance of compliance with state water quality

standards. Land TrustÓs proposed project complies with all

storm water management requirements.

6 8 . Section 10.2.1 of the ApplicantÓs Handbook require s an

applicant to eliminate or reduce adverse impacts to the functions

of wetlands or other surface waters caused by a proposed project

by implementing practicable design modifications. Land TrustÓs

proposed project fails to comply with this requirement.

6 9 . Pursuant to rule 62 - 330.301(d) and 62 - 330.301(f), an

applicant must provide reasonable assurance that the regulated

activity will not adversely impact the value of f unctions provided

to fish and wildlife and listed species by wetlands and other

surface waters. Land TrustÓs proposed project fails to comply

with this requirement.

70 . Section 373.414(1)(b) provides that if an applicant is

unable to otherwise meet the c riteria, the District shall consider

measures proposed by or acceptable to the applicant to mitigate

adverse effects that may be caused by the regulated activity,

including the purchase of mitigation credits from a mitigation

bank.

7 1 . The proposed mitiga tion must fully offset the expected

impacts. Land Trust did not provide reasonable assurance that the

adverse impacts caused by the proposed project would be fully

offset by purchasing mitigation credits from the Tampa Bay

Mitigation Bank.

7 2 . Section 10 .2.8 of the ApplicantÓs Handbook states that

cumulative impacts are considered unacceptable when the proposed

activity, considered in conjunction with the past, present, and

future activities , would result in significant adverse impacts to

functions of wet lands or other surface waters within the same

drainage basin when considering the basin as a whole. The

cumulative impacts that would result from the proposed project

would result in significant adverse impacts to functions of

wetlands in the basin.

7 3 . Determinations as to the sufficiency of mitigation for

adverse wetland impacts are within the jurisdiction of the

District. See Save Anna Maria, Inc. v. DepÓt of Transp. , 700 So.

2d 113, 116 (Fla. 2nd DCA 1997).

7 4 . The District rules state that Ðprotect ion of wetlands

and other surface waters is preferred to destruction and

mitigation.Ñ The proposed permit does not reflect that

preference.

7 5 . Although not acknowledged by the District, this is an

unusual project. It resembles the kind of project that was

common in the 1960s and 1970s in Florida, before the enactment of

environmental regulatory programs, when high - quality wetlands

were destroyed by dredging and filling to create land for

residential development. In all the reported DOAH cases

involving ERPs and mitigation of wetland impacts, the

circumstances have involved impaired wetlands and/or the

restoration or permanent protection of other wetlands on the

project site. No case could be found where an applicant simply

paid for authorization to des troy almost an acre of high - quality

wetlands and convert it to uplands.

7 6 . The District should determine that the proposed

mitigation is insufficient.

7 7 . Land TrustÓs propos ed project is not clear ly in the

public interest as required by section 373.414 (1) and rule

62 - 330.302(1) because it would cause significant adverse

cumulative effects on the conservation of fish and wildlife,

fishing and recreational values, and marine productivity of Anna

Maria Sound .

R ECOMMENDATION

Based on the Findings of Fact a nd Conclusions of Law set

forth above, it is

RECOMMENDED that the Southwest Florida Water Management

District issue a final order that denies the Environmental

Resource Permit.

DONE AND ENTERED this 25th day of June , 2015 , in

Tallahassee, Leon County, Flo rida.

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

Fax Filing (850) 921 - 6847

www.doah.state.fl .us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of June , 2015 .

COPIES FURNISHED:

Christian Thomas Van Hise, Esquire

Abel Band, Chartered

Post Office Box 49948

Sarasota, Florida 34230 - 6948

(eServed)

M artha A. Moore, Esquire

Southwest Florida Water Management District

7601 Highway 301 North

Tampa, Florida 33637

(eServed)

Douglas P. Manson, Esquire

MansonBolves, P.A.

1101 West Swann Avenue

Tampa, Florida 33606

(eServed)

Joseph McClash

711 89th Street Northwest

Brad enton, Florida 34209

(eServed)

Ralf G. Brookes, Esquire

Ralf Brookes Attorney

1217 East Cape Coral Parkway , Suite 107

Cape Coral, Florida 33904

(eServed)

Justin Bloom, Esquire

Post Office Box 1028

Sarasota, Florida 34230

(eServed)

Robert Beltram, P. E., Executive Director

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recom mended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.